SB 1296: Keeping PERB Out of It

Over the years, unions (and I guess to be fair, also public employers) have had a love-hate relationship with PERB depending largely on the perception of whether PERB is “friendly” or not to its interests. The same holds true of the NLRB, which is currently perceived to be anti-union; and thus private sector unions have become adept at “NLRB-avoidance” as they call it.

This same dynamic can be seen in the current debate involving PERB’s jurisdiction over strikes that impact public health and safety. (See City of San Jose v. Operating Engineers Local No. 3 (2008) 160 Cal.App.4th 951 (review granted); County of Contra Costa v. Public Employees Union Local One (2008) 163 Cal.App.4th 139 (review granted; briefly deferred pending outcome in San Jose); County of Sacramento v. AFSCME Local 146 (2008) 165 Cal.App.4th 401 (petition for review expected).) On that issue unions are pushing the courts to give PERB exclusive initial jurisdiction over such strikes to avoid local superior courts, which they perceive as much more sympathetic to cities and counties. Their hope is that if PERB declines to intervene in a health and safety strike, that decision will be binding on the superior courts or at least influence the courts to also not intervene.

SB 1296—sponsored by the California Professional Firefighters (CPF)—provides an interesting contrast. SB 1296 seeks to keep PERB out of the way when firefighters want to proceed to interest arbitration under local rules. The preamble of the bill asserts that, “In recent years, the dispute resolution process under PERB has been used as a tool by some employers to impede or eliminate altogether the otherwise appropriate review of issues in an alternative forum adopted by voters.” According to the Assembly analysis, what prompted SB 1296 was the decision in City and County of San Francisco v. International Union of Operating Engineers (2007) 151 Cal. App. 4th 938.

Here is basically the scenario the CPF is worried about: 1) the union reaches a point where it feels remaining disputed issues are ready to be submitted to interest arbitration under local rules, 2) the employer disagrees and refuses to proceed to arbitration, 3) the union files a petition to compel arbitration in superior court, 4) citing to San Francisco the employer then argues that PERB, not the court, has jurisdiction over the dispute since if the employer refused to proceed to arbitration under the local rules that would be an unfair practice subject to PERB’s exclusive initial jurisdiction.

SB 1296 attempts to change this outcome for firefighters seeking interest arbitration by amending MMBA section 3509 to provide that:
“[S]uperior courts shall have exclusive jurisdiction over actions involving interest arbitration, as governed by Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, when the action involves an employee organization that represents firefighters, as defined in Section 3251.”

SB 1296 recently passed the Legislature and is on its way to the Governor. Even if signed, however, SB 1296 may not give CPF the outcome it desires. This is because of how the bill is drafted. The amendment to MMBA 3509 only eliminates PERB’s jurisdiction, not the MMBA’s. Thus, SB1296 does not prevent the filing of unfair practice charges, it only prevents PERB from hearing them. In effect, it places firefighters in the same category as peace officers who are not subject to PERB’s jurisdiction. Peace officers are still covered by the MMBA and can file unfair practice charges, just not with PERB. They must go directly to court.

So even with SB 1296, an employer could still file an unfair practice charge in court in response to a petition to compel. Under CCP 1281.2(c), there is a special provision that allows the court to stay or abate a petition to compel when there is another action pending. That certainly would seem to apply if there was an unfair practice charge on file based on the same set of facts. If that occurs, SB 1296 will not provide firefighter unions the relief they seek, it will only keep PERB out of it.