PERB: JPA’s Are Covered By MMBA

Central Contra Costa Transit Authority (2012) PERB Dec. No. 2263-M (Issued on 5/08/12)

The underlying unfair practice charge in this matter was filed by the Amalgamated Transit Union, Local 1605 (ATU) against the Central Contra Costa Transit Authority (Authority). The Office of the General Counsel dismissed the charge on the ground that the Authority, as a joint powers authority, is not an employer covered by the MMBA. This appeal followed.

The sole issue on appeal was whether PERB had jurisdiction over the Authority. What presumably raised this issue was the Board’s decision in North Orange County Regional Occupational Program (1990) PERB Decision No. 857-E (“North Orange County”) issued in 1990. In that case, PERB overturned prior precedent by holding that a JPA created by five school districts was not a “public school employer” for purposes of EERA. Last year, the Legislature overturned North Orange County with the passage of AB 501.

The Authority argued that since AB 501 only changed the language in EERA, JPA’s remain uncovered by the MMBA. The majority—comprised of Chair Martinez and Member Huguenin—rejected the Authority’s argument and reversed the dismissal. The majority found that the language in the MMBA, which covers “any public agency,” is broader than the term “public school employer” under EERA; and more important, broad enough to cover JPA’s under the MMBA.

The dissent—by Member Dowdin-Calvillo—argued that North Orange County is controlling of the issue here. Under North Orange County, the dissent would find that the term “public agency” does not cover JPA’s. According to the dissent, the majority opinion “represents an unwarranted expansion of the Public Employment Relations Board’s (PERB or Board) jurisdiction beyond that vested in it by the Legislature.”

Comments:

This case raised an issue that I didn’t think was in dispute. As we know, the National Labor Relations Act (NLRA) expressly excludes “any State or political subdivision thereof” from its coverage. In California, the governmental entities excluded by the NLRA have been subject to a variety of public sector labor statutes. In my mind, I’ve always thought of the term “any public agency” in the MMBA as a catchall to capture any governmental entity that is exempt from the NLRA but not covered by another public sector labor statute.
As a matter of public policy, I don’t have a problem with this decision. In a prior post, I argued that AB 501 was unnecessary because JPA’s excluded from EERA would still be covered by the MMBA. (See prior post here.) However, excluding JPA’s from the MMBA would mean that they would be covered by the NLRA or not covered by any labor relations statute at all.
With respect to being covered by the NLRA, I don’t see that as a good thing. It’s true that you can avoid card check under the NLRA, but other than that I’m not sure an employer is better off being subject to the NLRA. In my opinion, the National Labor Relations Board is much more prone to switching positions with every change in administration. This creates instability and uncertainty which no employer wants. So for me, I would rather be subject to PERB.
Admittedly, there is the possibility that a governmental entity could be excluded from the NLRA and also excluded from the MMBA and other California labor statutes. This was probably the goal of the Authority here. However, such a result would be a short-lived victory as there is little doubt in my mind that the Legislature would promptly “correct” the situation by amending the MMBA.