SB 656: Removing “Mixed-Units” of Law Enforcement From PERB

SB 656 (DeSaulnier) would remove from PERB’s jurisdiction a bargaining unit comprised of a majority of peace officers as defined by Penal Code section 830.1. (830.1 officers.) Currently, the MMBA already excludes 830.1 officers from PERB’s jurisdiction. (Gov. Code, §3511.) However, what happens when you have a dispute involving a bargaining unit comprised of both 830.1 officers (who are exempt from PERB) and other employees covered by PERB? This bill tries to address that situation.

I’m pretty sure I can take some credit for this bill’s introduction. Last year I litigated this issue before PERB on behalf of the County of Sonoma (County) in an unfair practice charge filed by the Sonoma County Law Enforcement Association (SCLEA). (PERB Case No. SF-CE-523-M.) The case involved the County’s imposition of its last, best and final offer upon impasse. Most of the classifications in the SCLEA unit were covered by PERB, but some were not. Also, about a third of the classifications in the unit were covered by SB 440, the binding interest arbitration statute. SCLEA’s argument was that the County could not impose its last, best and final offer on the unit because the County had to first submit the dispute to binding arbitration under SB 440. The ALJ held that even if the County had to go to binding arbitration under SB 440, it only had to do so with respect to those officers covered by SB 440. For those officers not covered, the County could go ahead and impose its last, best, and final offer. There was also a jurisdictional issue over whether the inclusion of some 830.1 officers would preclude PERB from jurisdiction over the entire unit. PERB held that the inclusion of some 830.1 officers in the unit would not deny PERB jurisdiction over the remaining individuals in the unit. The case is now before the PERB Board on exceptions filed by the parties.

Comments:

1. I’m ambivalent over this bill. CSAC has already taken a position against it. I guess if I had to take a position, I would oppose this bill on the principle that it’s bad public policy to have certain employees covered by PERB and not others. However, part of me says that if the unions want to exclude more people from PERB, let them do it. After all, the unions were the ones who wanted to bring the MMBA under PERB’s jurisdiction in the first place. Here’s a direct quote from the Assembly Analysis (dated 8/26/2000) of SB 739 (Solis), which placed the MMBA under PERB’s jurisdiction:

“Proponents argue that the MMBA has ‘no effective enforcement procedures except for court action, which is time-consuming and expensive. One of the basic principles of an effective collective bargaining law should be to provide for enforcement by an administrative agency with expertise in labor relations. The appropriate role for the courts is to serve as an appellate body.’”

So the argument in favor of SB 739 was that having to go to court was time consuming and expensive; and that it was a basic principle of collective bargaining that there should be an administrative remedy. Now more law enforcement want to leave PERB and go back to the courts? Part of me says let them do it.

2. I think what really is driving this bill is the prospect of binding arbitration under SB 440. (That prospect was greatly dimmed by an appellate decision last week finding SB 440 unconstitutional; that decision may change the calculus behind this bill.) SCLEA wanted everyone in its unit to benefit from binding arbitration under SB 440. The problem is that SB 440 covers a different set of law enforcement officers than the MMBA excludes. For example, with SCLEA, there were some law enforcement classifications covered by both SB 440 and PERB. Some were covered by SB 440, but not PERB. And some were covered by PERB, but not SB 440.

Instead of this bill, I think the better policy solution would be to reconcile the definition of officers excluded from PERB with those covered by SB 440. In others words, the definition of peace officers covered by SB 440 should be the same as those excluded from PERB. Then you wouldn’t have employees covered by one but not the other. Keep in mind, I’m strongly opposed to SB 440; but if I’m going to have binding arbitration forced upon me I would rather have it be a well-drafted law.

3. Finally, I’ll point out what I believe is a flaw in the drafting of SB 656. Gov Code section 3511 currently states:

“The changes made to Sections 3501, 3507.1, and 3509 of the Government Code by legislation enacted during the 1999-2000 Regular Session of the Legislature shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code."

As amended, it would state:

“The changes made to Sections 3501, 3507.1, and 3509 of the Government Code by legislation enacted during the 1999-2000 Regular Session of the Legislature shall not apply to a bargaining unit which is comprised of a majority of persons who are peace officers as defined in Section 830.1 of the Penal Code."

The flaw is that the bill removes the term “persons.” Under the MMBA, the two most common types of unfair practices are: 1) discrimination and/or retaliation against individuals for union activities, and 2) unilateral changes in the terms and conditions of employment. Discrimination charges are brought on behalf of individuals or groups of individuals, and can be litigated by either the individual or the union. In contrast, unilateral change charges are brought on behalf of the union which is the only entity with standing to do so. As amended, section 3511 would clearly exclude unilateral change charges involving units with a majority of 830.1 officers. However, what if an individual 830.1 officer wanted to bring a charge of discrimination or retaliation? Under the former section 3511, they would be excluded from PERB because it covered “persons” who are 830.1 officers. As amended, it’s not so clear. Arguably, because SB 656 only excludes a "bargaining unit," it might not cover individual cases of discrimination. Thus, it could be argued that section 3511 wouldn’t apply to any unfair practice charge brought on behalf of an individual 830.1 officer and that such charges would fall under PERB's jurisdiction. I doubt that was the intent of the sponsor or author (but who knows, maybe it was?). What I think they should have done is amend section 3511 to state, “. . . shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code or any bargaining unit which is comprised of a majority of persons who are peace officers as defined in Section 830.1 of the Penal Code.” That would keep all 830.1 officers excluded from PERB while adding any bargaining unit comprised of a majority of 830.1 officers.