Cal Fire Local 2881 v. Pub. Emp't Relations Bd.

In 2010 , the State Personnel Board promulgated proposed changes in the procedures that govern its disciplinary hearings and appeals conducted pursuant to its duty under the Constitution to "review disciplinary actions" in the civil service. ( Cal. Const., art. VII, § 3, subd. (a).) Plaintiff had the same opportunity as the general public to submit comment (submitting objections to the changes), but the State Personnel Board rejected plaintiff's demand that it "meet and confer" about the regulations, the duty imposed under the Ralph C. Dills Act (the Dills Act; Gov. Code, § 3524 ; see id. , § 3512 et seq.)^[3] to meet and confer with exclusive representatives before imposing any

Rather than accept the PERB's straightforward application of its own precedent to this matter as the writ of mandate directed, plaintiff again sought judicial review with its present petition in February 2015. In its ruling, the trial court first found that plaintiff was precluded from relitigating the legal issue that was adjudicated in the prior proceeding: PERB did not erroneously interpret section 3519 as applying to a state entity only when it acts as an employer and not as a regulator. However, plaintiff persisted in arguing that a regulator could still be an employer, contending there was a distinction between the adjudicatory function at issue in Gonzales-Coke and the quasi-legislative function at issue in the present case. The trial court rejected that distinction as creating an absurd situation in which any statewide policy decision having an impact on the conditions of state employment would be subject to negotiation with the represented bargaining units (pointing out past PERB decisions that concluded neither the Governor's budget proposal nor legislative changes to the state retirement system was subject to negotiation because these were acts under constitutional roles other than employer^[10] ). The court also noted that plaintiff's reliance on Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55 , 151 Cal.Rptr. 547 , 588 P.2d 249 ( Civil Service Com. ) was inapt, because its holding is limited to the distinct statutory scheme of the Meyers-Milias-Brown Act (MMB Act; § 3500.5; see § 3500 et seq.) governing the employment relations of local entities. Moreover, whatever the merit to plaintiff's constitutional claim under Civil Service Com. , it "has no bearing on this case because PERB's decision is not based on the ground" of unconstitutionality. The court therefore entered judgment on May 18, 2016, in favor of the PERB and State Personnel Board. Plaintiff filed its notice of appeal on July 19, 2016.

Both the PERB and the trial court have provided cogent decisions explaining why this challenge to the PERB's dismissal of the charge is without any basis in law. Plaintiff nonetheless persists. Fortunately for plaintiff, neither the PERB (which appears in this court to defend the judgment) nor the State Personnel Board request imposition of sanctions for a frivolous appeal. We accordingly affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This case turns on what is essentially a legal question. We set out the operative facts, which are not disputed, and some

Plaintiff filed its charge with the PERB in February 2011, identifying only the State Personnel Board as unlawfully refusing to meet and confer under the Dills Act (§ 3519, subd. (c) )^[4] over changes to terms and conditions of employment; it eschewed any intent to name either Cal Fire or the designated representative of the Governor^[5] in the charge. It requested the PERB to order the State Personnel Board to rescind the new regulations until it first met and conferred with plaintiff. After allowing plaintiff to file an amended charge in November 2011, the PERB's general counsel dismissed the charge in December 2011 on the ground that the State Personnel Board's constitutional authority to oversee disciplinary actions as part of the general merit principle cannot be restricted under the Dills Act, which the Legislature specifically crafted to avoid any such conflict. ( State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512 , 526-527, 36 Cal.Rptr.3d 142 , 123 P.3d 169 ; Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168 , 174, 172 Cal.Rptr. 487 , 624 P.2d 1215 .)

The PERB affirmed the dismissal on a different ground in June 2013, declining to address the constitutional issue. It relied on a prior precedential decision^[6] in which a PERB plurality had found the term "state" as used in section 3519 was broader for unlawful labor practices than "state employer" as defined in section 3513^[7] (which is limited to the Governor's designated representative in the context of

Plaintiff sought a writ of mandate directing the PERB to reinstate the charge and issue a complaint. In December 2014, the trial court issued its judgment.

The trial court concluded that the PERB was not erroneous in interpreting the term "state" in section 3519 more broadly than the statute defining "employer" for purposes of meeting and conferring to establish conditions of employment (§§ 3513, subd. (j) & 3517-3517.5), for which reason an appointing power-or indeed any state entity-comes within the term "state" for purposes of an unlawful practice. The court also took note of another past precedential decision ( Gonzalez-Coke v. California State Employees Assn. (2000) PERB Dec. No. 1411-S, pp. 17-18 & fn. 11 [25 PERC § 32006] ( Gonzales-Coke ) ), concluding it was not erroneous for Gonzalez-Coke to have found that the reach of section 3519 is limited to state entities acting as employers in the sense of the purposes of the Dills Act (see § 3512).^[9] However, the court found that the distinction drawn in the PERB's present decision, in which it found that a state entity acts as an "employer" only with respect to its own employees was erroneous, because it would lead to the conclusion that the State Personnel Board (or the PERB) would be obliged to meet and confer about proposed regulatory changes only with its own employees and no others; the trial court considered this to be an absurd form of line-drawing. It therefore granted the request in the petition to vacate the decision, and directed the PERB to apply the distinction as posited in Gonzales-Coke in deciding whether the State Personnel Board was acting as an employer or a regulator. It denied the request in the petition to direct a finding of an unlawful labor practice. Plaintiff did not appeal the decision.

Within days, the PERB issued its new decision. Consistent with the directions on remand, the PERB acknowledged it had in State Personnel Board found the State Personnel Board subject to section 3519 as a "state" entity "in certain circumstances." (Citing State Personnel Board , supra ,

1.0-2.0^[11]

3.0 That the State Personnel Board Could Be Liable for Unfair Labor Practices as a State Entity Nonetheless Leaves an Analytic Shoe Undropped

The point of this argument is unclear. No one takes issue with the premise drawn from Gonzales-Coke and State Personnel Board , summarized above, that section 3519's use of the broader term "state" subjects all state entities to liability for an unfair labor practice for failure to meet and confer over changes in working conditions. However, being subject to section 3519 and actually violating section 3519 are two separate matters. The latter requires the state entity to be acting as an employer within the purpose of the Dills Act.^[12]

The exact nature of the unfair labor charge that the PERB was adjudicating in Gonzalez-Coke is immaterial. It is the fact that the PERB was acting in an adjudicatory function. The State Personnel Board is similarly acting in its adjudicatory function in modifying the rules of procedure that apply uniformly to its disciplinary hearings and appeals. Plaintiff's argument is akin to a claim that the Supreme Court is not acting as a court in amending its Rules of Court.

Plaintiff fails otherwise to offer a salient argument-indeed, any argument-that would establish the State Personnel Board was acting as an employer. Nor, for that matter, has plaintiff engaged at any point with the fundamental absurdity of its position, which taken to its logical conclusion would require the State Personnel Board to meet and confer with all 21 bargaining units about changes to its process for disciplinary review, leaving the possibility of inconsistent outcomes. We thus reject the claim that Gonzalez-Coke does not control the outcome in this case.

DISPOSITION

The judgment is affirmed. The PERB and the State Personnel Board shall recover costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur:

RAYE, P.J.

BLEASE, J.