SB 548: Allows Firefighters To Bypass PERB

SB 548 was introduced by Senators Atkins (D-San Diego) and Leyva (D-Chino) on February 16, 2017. SB 548 only applies to firefighters under the MMBA and Dills Act. But if enacted, this bill would fundamentally change PERB’s role in adjudicating unfair practice charges for this group of employees.

First, SB 548 provides that if PERB has not acted on an unfair practice charge within 150 days of filing, any party can request a “right-to-sue” letter allowing the party to bring a civil action in superior court. Second, SB 548 provides that PERB must issue a right-to-sue letter upon completion of its investigation or after one year has elapsed from the filing of the unfair practice charge, whichever is earlier.

Comments:

A bill analysis is not yet available for SB 548. However, I’m sure the impetus for this bill is how long it takes to litigate an unfair practice charge through the PERB process. I advise clients that it typically takes at least two years from the filing of an unfair practice charge to issuance of a Board decision. And it can take much longer than that in complex cases.
Both unions and employers are understandably frustrated with how long it takes it litigate a case through PERB. When the MMBA came under PERB’s jurisdiction in 2001, the primary reason for the change was the belief that PERB would be faster than going to court. In the bill analysis for SB 739, the proponents argued that the MMBA has “no effective enforcement procedures except for court action, which is time-consuming and expensive…” It’s ironic that the PERB process has gotten to the point that unions would rather go to court.
With respect to the actual language of the bill, I have several questions and/or concerns. The concept of a “right-to-sue” letter is used in the employment arena by the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC). However, either through statute or policy, neither the DFEH nor EEOC will issue a right-to-sue letter if the agency is going to take on a case itself. And if the DFEH or EEOC issue a right-to-sue letter, they will not litigate the case themselves. It’s not clear whether PERB would have to operate in the same manner.
Under SB 548, PERB must issue a right-to-sue letter upon completion of its investigation. But suppose the investigation determines that a complaint should issue. Because a right-to-sue letter must be issued, does that mean the unfair practice charge must be litigated in court? Or would PERB continue to have jurisdiction to send the complaint to a hearing even after a right-to-sue letter has been issued? SB 548 also states that any “party” can request a right-to-sue letter. So if PERB decides to issue a complaint, and the union is fine with proceeding through a PERB hearing, can the employer request a right-to-sue letter? And if so, can the employer force the union to litigate the case in court? These are just some questions I have about how this process would work.
Last thought, if the firefighters think that the PERB process is too slow, perhaps they should exempt themselves from PERB like police officers. All they would need to do is amend MMBA section 3511 to include firefighters, and add a similar section to the Dills Act.