AB 2305: Adds Police Unions To PERB’s Jurisdiction

AB 2305 was introduced on February 13, 2018, by Assembly Member Rodriguez. AB 2305 would amend the Meyers-Milias-Brown Act (MMBA) to provide that peace officer unions are subject to PERB’s jurisdiction while individual peace officers remain exempt. This change would allow peace officer unions to file unfair practice charges with PERB instead of having to file such charges directly in a superior court.

A similar bill, AB 530, was introduced in the Assembly last year. AB 530 would have brought both peace officer unions and individual peace officers under PERB’s jurisdiction. However, AB 530 would have maintained the ability of peace officers to skip PERB and go directly to court for injunctive relief. Governor Brown vetoed AB 530, stating, in part, “No other group has both of these rights and I’m unconvinced that providing such a unique procedure is warranted.”

To the extent the Governor dislikes giving one group of employees special treatment, AB 2305 is actually worse than AB 530. This is because for some of the most common unfair practice charges, the distinction between a union and an individual is a distinction without a difference. For example, suppose a peace officer believes he or she has been discriminated against for protected union activities. Under the MMBA, such an unfair practice charge could be brought by either the individual or the union, or both. Thus, under AB 2305, peace officers—and no other employee group—would have the option pick their forum: court or PERB.

Is AB 2305 Merely A Codification of Existing Law?

What is really interesting about this bill is that some union advocates argue that AB 2305 merely codifies existing law. Indeed, the most recent legislative analysis of this bill states that the authors believe the bill merely codifies existing law. I disagree.

For many years there was a dispute over whether PERB had jurisdiction over “mixed” units containing both peace officers and non-sworn employees. In 2013, PERB held an oral argument—it’s first in nearly ten years—on this exact issue in a case involving the City of Lompoc. That case settled before a decision could be issued. However, two years later in County of Santa Clara (2015) PERB Decision No. 2431-M, PERB squarely addressed this issue and held that it did have jurisdiction over “mixed” units.

At the time, and to this day, I read the County of Santa Clara decision to only hold that PERB has jurisdiction over mixed units, which was the issue before PERB. However, some union advocates cite to the broad language of the County of Santa Clara decision to assert that it holds PERB has jurisdiction over mixed units and units comprised solely of peace officers. At least one PERB ALJ appears to agree with this position. (See Orange County Deputy Sheriffs v. County of Orange (July 19, 2017) PERB Case No. LA-CE-1101-M (non-precedential).

Comments:

Jeff Edwards at the Mastagni Law firm represented the prevailing union in the County of Santa Clara case. I recall reading Jeff’s update on this case which focused on PERB’s assertion of jurisdiction over “mixed” units. It was widely understood in the management community that PERB had asserted jurisdiction over “mixed” units. But I certainly didn’t understand the County of Santa Clara decision to hold that all peace officer unions are now under PERB’s jurisdiction. Such a holding would be a sea change for PERB.
Notwithstanding the language of the County of Santa Clara decision, I strongly believe that a unit comprised solely of peace officers is not under PERB’s jurisdiction as the law is written today. I actually looked into this issue many years ago. I recall talking with Steve Keil, the Legislative Director for the California State Association of Counties, who was the chief negotiator for CSAC on SB 739, the bill that brought most of the MMBA under PERB’s jurisdiction. He told me the idea for the peace officer carve-out came from the unions, not from CSAC or the League of Cities. Apparently, at that time the police unions were happy with their situation and were distrustful of PERB. Accordingly, they wanted to be exempted from SB 739. Based on what Steve Keil told me, I cannot fathom that anyone involved with SB 739 envisioned that the carve-out would only apply to individual peace officers and not peace officer unions. That simply defies logic given that the police unions wanted nothing to do with PERB at that time.