PERB Schedules First Oral Argument In 10 Years

City of Lompoc v. Lompoc Police Officers Association; Lompoc Police Officers Association v. City of Lompoc (PERB Case Nos. LA-CO-100-M; LA-CE-555-M; LA-CE-564-M; LA-CE-585-M)

PERB has scheduled oral argument in this case for June 13, 2013, at 2:00 p.m. at the PERB offices in Sacramento. This will be the first oral argument heard by PERB in a case since 2002, when PERB heard oral argument in the Turlock Joint Elementary School District (PERB Decision No. 1490) case. Pursuant to the notice from PERB, here is the issue for oral argument:

In light of Government Code section 3511, does PERB have the authority to issue a remedial order applicable to a (mixed) bargaining unit that includes non-peace officer and peace officer classifications? If so, what is the source and scope of PERB’s authority; and what is the relevance of the peace officer exclusion as set forth in Government Code section 3511 as it applies to mixed units?

In the proposed decision, the ALJ found that the City of Lompoc improperly imposed a salary reduction as part of its last, best, and final offer. The remedy was to make the employees whole. However, because the bargaining unit was a mixed-unit containing both peace officers and non-peace officers, the ALJ only extended the make-whole remedy to the non-peace officers in the bargaining unit. The ALJ held that PERB did not have the authority to make whole the peace officers in the bargaining unit because of Government Code section 3511. The union filed exceptions to the proposed decision and now the Board has requested oral argument on that issue.

Comments:

This jurisdiction issue is very interesting. I grappled with it in the County of Sonoma (2010) PERB Decision No. 2100-M case. There, the Board largely bypassed the issue of jurisdiction over a mixed-unit since the complaint was dismissed.
But here’s my objection to the union’s argument. Allowing PERB to have jurisidiction over 830.1 peace officers in a mixed-unit gives these peace officers an unfair advantage. They can read the tea leaves and if they feel they have a better chance in front of the courts, they can file a writ in court and bypass PERB. On the other hand, if they feel PERB is a better forum they can have the non-peace officers in the unit file an unfair practice charge with PERB and the peace officers can tag along. So it would allow peace officers a choice of forum while all other employees would be subject to PERB’s exclusive jurisdiction.
There are other implications too. For example, if PERB declares that it has jurisdiction over peace officers in a mixed-unit, would that give employers the right to file unfair practice charges against them and drag them before PERB? Bear in mind that the cops lobbied to be excluded from PERB’s jursidiction when SB 739 was enacted. So I think this definitely falls into the category of “be careful what you wish for…”