PERB’s Jurisdiction Over Units Containing Cops

As discussed in this blog, PERB’s jurisdiction over public employee strikes that threaten health and safety is one of the hot issues in the public sector. Another brewing issue involves PERB’s jurisdiction over bargaining units containing Penal Code section 830.1 peace officers. When PERB gained jurisdiction over administration of the MMBA in 2001, an exception was carved out for Penal Code 830.1 peace officers. (Gov. Code, §3511.) Penal Code 830.1 peace officers include most all city police officers and county deputy sheriffs. As it stands, while Penal Code 830.1 peace officers are subject to the MMBA, they are not subject to PERB’s jurisdiction. Therefore when unions or employers want to bring unfair practice charges under the MMBA, they must go directly to court.

For bargaining units containing exclusively Penal Code 830.1 peace officers, the exclusion created by Government Code section 3511 is straight forward – PERB doesn’t have jurisdiction. However, what happens where a bargaining unit contains both Penal Code 830.1 peace officers and employees that are otherwise subject to PERB? For example, many cities and counties have law enforcement bargaining units that mix Penal Code 830.1 peace officers together with other peace officers, such as correctional officers or probation officers.

The Sacramento County Deputy Sheriff’s Association (SCDSA) is such a unit. 1400 of the 1700 members in the SCDSA are Penal Code 830.1 peace officers. 300 members are not. Late last year, the SCDSA was successful in obtaining a trial court order enjoining PERB from asserting jurisdiction over a dispute involving the SCDSA. PERB argued before the court that it retained full jurisdiction over the dispute because the SCDSA contains 300 peace officers subject to PERB’s jurisdiction. The trial court disagreed, noting that “the overwhelming majority of SCDSA members are [830.1] peace officers and it is those peace officers who would be affected by a PERB decision.” The case is currently on appeal in the Third District. (Sacramento County Deputy Sheriff’s Assoc. v. Public Employment Relations Bd. et al., Court of Appeal Case No. C057877.) Briefing is expected to be completed in late 2008, and a decision expected in 2009.