The underlying case addresses mutual allegations of bad faith bargaining between the city of Lompoc and the Lompoc Police Officers Association (LPOA), which includes both peace officer and non-peace officer members. A proposed decision was issued in May 2012 by an administrative law judge who found the city liable for unilaterally implementing a salary reduction without negotiating the salary reduction methodology. The city was then ordered to cease and desist its salary reduction and pay all non-peace officer members of the union the amount their salary was reduced for the 12 pay periods at issue.
Oral Argument Request
LPOA requested oral argument to address the inequity of “making whole” only the non-peace officer members of the union, leaving those peace officers who were a party to the same cause of action without remedy. Its main argument is that PERB has exclusive authority over “mixed” bargaining units such as itself.
The source and scope of PERB’s authority stems from Government Code section 3511, which explicitly states that certain sections of the code — including section 3509 granting PERB the authority to issue remedial orders — “shall not apply to persons who are peace officers.” Section 3511 was added to the Government Code without explanation by SB 739 (2000), making the peace officer carve-out ambiguous and without legislative intent to serve as guidance.
The city of Lompoc stressed, both in its briefs and in its oral argument, that the plain language of the Government Code states that PERB does not have authority over “persons who are peace officers,” regardless of the union they are a part of. The natural result of such language is that PERB cannot issue a remedy that flows to individual peace officers in the unit.
The League of California Cities and California State Association of Counties (CSAC) filed a joint informational brief in support of the city’s position, cautioning against providing individual peace officers “two bites of the apple” by allowing them to seek remedy in both the courts and through PERB.
The four-person board gave the parties 30 minutes to present their oral arguments, peppering both sides with difficult questions and hypothetical scenarios. The board challenged the union on its argument that PERB properly has authority over mixed units, citing two cases that that were recently heard in court involving mixed units. It also challenged the city’s arguments that PERB has jurisdiction to determine liability of mixed units, but cannot then issue individual remedies. Such an interpretation creates a distinction between “individual” claims and “union” claims, when often such a distinction does not exist.
It is not clear when the final ruling will be issued because PERB now enters closed session until August.
The League wishes to thank Tim Yeung and Erich Shiners from Renne Sloan Holtzman Sakai LLP for drafting the joint brief filed on behalf of the League and CSAC.