County of Los Angeles v. Employee Relations Commission CA2/7

Filed 1/12/15 County of Los Angeles v. Employee Relations Commission CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
COUNTY OF LOS ANGELES et al., B244307
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BS132903)
v.
EMPLOYEE RELATIONS
COMMISSION OF THE COUNTY OF
LOS ANGELES,
Defendant;
ASSOCIATION OF DEPUTY DISTRICT
ATTORNEYS,
Real Party in Interest and
Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ann I.
Jones, Judge. Affirmed.
Gree & Shinee and Richard A. Shinee for Real Party in Interest and Appellant.
John F. Krattli, County Counsel, Joyce Aiello, Assistant County Counsel, Julie A.
Silva, Principal Deputy County Counsel; Hausman & Sosa, Jeffrey M. Hausman, Larry
D. Stratton; Ballard, Rosenberg, Golper & Savitt, Linda M. Savitt; Nassiri & Jung and
John J. Manier for Plaintiffs and Respondents.
No appearance for Defendant.
__________________________
INTRODUCTION
Real party in interest Association of Deputy District Attorneys (ADDA) appeals
from a judgment in favor of plaintiffs County of Los Angeles and the County’s Office of
the District Attorney, Chief Executive Office, and Department of Human Resources. The
court issued a peremptory writ of administrative mandate commanding defendant
Employee Relations Commission of the County of Los Angeles (ERCOM) to set aside its
order prohibiting the District Attorney’s Office (DAO) from making changes to the
Deputy District Attorney (DDA) performance evaluation system, to enter a new order
that the DAO and the County did not make the changes improperly, and to dismiss the
ADDA’s unfair practice charge.
ADDA first challenges the judgment on the ground the trial court did not have
jurisdiction to rule on the petition for writ of administrative mandate because the petition
was untimely under Government Code section 3509.5, subdivision (b). ADDA also
challenges the judgment on the merits, arguing that the DAO implemented the new
performance evaluation system after ADDA was certified as the collective bargaining
unit for DDAs. Therefore, ADDA contends, it was an unfair practice for the DAO to
implement the new system outside the collective bargaining process, and ERCOM
properly ordered the DAO not to implement the system.
We hold that the trial court had jurisdiction to rule on the petition for writ of
mandate because the limitations period set forth in Government Code section 3509.5,
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subdivision (b), does not apply to judicial review of ERCOM decisions. We further hold
that, because the DAO made the decision to implement the new performance evaluation
system prior to ADDA’s certification as a bargaining unit, the DAO was not required to
submit the new system to collective bargaining. We therefore affirm the trial court’s
judgment ordering ERCOM to set aside its order prohibiting the DAO from
implementing the new system.
FACTUAL AND PROCEDURAL BACKGROUND
A. ADDA’s Certification as a Bargaining Unit
On January 12, 2006 ADDA filed a petition for certification of a collective
bargaining unit consisting of all non-supervisory DDAs. The County objected, and the
matter was referred to ERCOM for a hearing.
ERCOM held hearings on March 29 and April 16, 2007. On August 7, 2007 the
hearing officer recommended that ERCOM find “that the petitioned for unit of DDAs is
an appropriate unit for collective bargaining.” The County filed a written statement of
exceptions on August 23. ERCOM heard argument on the matter on September 24. On
October 22 ERCOM adopted the hearing officer’s recommendation and ordered that
ADDA was an appropriate unit for collective bargaining. On March 24, 2008, after
ADDA had presented valid authorization cards from a majority of the members of the
proposed unit, ERCOM certified ADDA “as the exclusive representative for purposes of
collective bargaining of Unit No. 801.”
B. The Performance Evaluation System
For many years, the DAO, like other County departments, prepared performance
evaluations using the County Human Resources Department’s “Report of Performance
Evaluation” form. This was a paper form filled out by the reporting officers. It provided
check-off boxes for ratings ranging from “outstanding” to “unsatisfactory” in the five
performance categories of “professional skills,” “application to duties,” “adaptability,”
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“personal relations,” and “supervisory ability.” The form also provided space for
comments. Supervisors reviewed employees annually, with the performance review
period based on an employee’s anniversary date.
In 2002 the County Board of Supervisors began looking at “ways to enhance the
quality and productivity of the County workforce by, among other things, looking at new
web-based methods to improve employee work performance.” The Board adopted a
County-Wide Strategic Plan, “an overall planning initiative” intended “to align the
activities of all departments in one, overall county strategic direction.” The plan
“consists of goals, . . . strategies, objectives that apply across the county.” Part of the
County-Wide Strategic Plan was a performance evaluation system to accurately assess
employee performance and tie performance to compensation. In the 2005 update to the
Strategic Plan the Board set a strategy to reach the goal of workforce excellence: “By
July 1, 2007 begin a phased implementation of the proposed countywide performance
management system, designed to improve individual performance, and align employee
job performance and work behaviors with County and/or departmental strategic
objectives and values.” One of the objectives for fulfilling this goal was to develop “a
plan for implementing an automated, enterprise-wide performance management system”
by September 30, 2005.
In April 2006 Chief Deputy District Attorney John K. Spillane established a
management working committee to assist the DAO in reaching Strategic Plan goals. He
appointed Pamela Booth, Director of the Bureau of Branch and Area Operations, Region
II, to head the committee. The goal was to have the new performance management
system in place by the end of 2006.
DAO management concluded that the old performance evaluation forms did not
provide a reliable indicator of attorney performance because most DDAs routinely
received a rating of “outstanding,” which suggested that ratings were inflated.
Management wanted more objective rating criteria in order “to honestly, fairly and
correctly evaluate” DDAs’ performance.
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C. Implementation of the New Performance Evaluation System
According to Spillane, implementation of the new performance evaluation system
began in January 2007. At that time “[t]he work plans . . . which had been already
created . . . began to be given out to the district attorneys.” The performance evaluation
tool was “substantially” in existence at that time. That same month Booth prepared a
power point presentation that explained the new performance evaluation system to the
raters and included the performance evaluation worksheet. Training sessions for the
raters using the presentation were scheduled to begin in February 2007.1
On February 14, 2007 Spillane wrote to all DDAs regarding performance
evaluations. He stated that “[a] new Performance Evaluation form for the 2007-2008
rating period has been developed in order to assist supervisors using the performance
evaluation system to effectively and accurately rate attorney staff.” After explaining the
goals of the new system, he stated, “In order to make each of you aware of the
performance expectations and new terminology used in the 2007-2008 Performance
Evaluations, at the time the evaluation covering the 2006-2007 rating period is discussed
with a deputy, each Rater will provide the deputy with a document entitled Performance
Work Plan. . . . The Performance Work Plan provides guidelines of the objective
behaviors a deputy should regularly manifest in order to meet the requirements and
responsibilities for each assignment and for employment as a deputy district attorney.
[¶] The office will continue to use the current Performance Evaluation form for all
evaluations that will be issued in the 2007 calendar year. Beginning January 1, 2008, the
office will employ the new Performance Evaluation document for all attorney staff to
evaluate performance for the 2007-2008 rating period.”
Booth wrote in a February 16, 2007 email that “Mr. Spillane has approved the
final version of the Work Plan and Acknowledgment form,” and attached copies so that
the raters could create templates. The email again stated that the plan was for the raters
1 According to Spillane, “we began training the raters on the new performance
evaluation system in 2007, and it continued on into 2008.”
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to discuss the forms during the 2006-2007 performance evaluations. Lynn Vodden
responded on February 21 that she would “create a template of the Work Plan and
Acknowledgement [sic] Form and then distribute [it] electronically . . . . We do not have
a system yet to pre-populate these forms with the employee’s information. In order to get
this off the ground we’re going to have to implement as described above until a system is
designed to produce the Work Plan as well as the new PE once it’s finalized.” On
February 22 Booth asked when the form would be available, noting “our immediate
concern is to meet Mr. Spillane’s time-table for getting the form out to the Raters by the
end of this month . . . .”
One of the recipients of the emails, John Morris, wrote on April 17, 2007 that
Spillane had “approved the Memorandum for Implementation of the Attorney Work Plan
. . . and the instructions for implementing it.” Morris stated that, before DAO
management could send out these documents, he needed a list of attorneys whose
performance evaluations were due for the period of January 1 through April 20, 2007,
and he needed staff to set up computer icons and email them to the raters.
On April 19, 2007 Spillane sent a memorandum to the district attorney, assistant
district attorneys, and bureau directors regarding implementation of the new system. He
stated: “Effective January 1, 2007, the office implemented a new Performance
Evaluation system for attorneys. This new program includes three new documents: A
Work Plan; an accompanying form showing acknowledgment of receipt of the Work
Plan . . . ; and a new Performance Evaluation rating instrument.” Spillane explained that,
“[i]n order to facilitate implementation,” raters would complete and discuss the new
forms with the attorneys during their 2006-2007 performance evaluations. The Systems
Division would send the raters computer icons containing templates of the work plan and
acknowledgment form.
DDA Frank Tavelman was Senior Vice-President of ADDA in 2007 and 2008. He
stated that in June or July 2007 Booth met with the ADDA board of directors to explain
the new performance evaluation system. He remembered “her talking about the
performance work plan and how it was going to be implemented.” Tavelman
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remembered Booth talking “about timing, that it hadn’t been implemented yet and it was
a work in progress.” Tavelman said the meeting was somewhat “heated.” The board
members “were expressing concerns about what was happening and the need for us to
have some input because of the way that we believed this was going to affect D.A.’s
[sic], given the limited knowledge that we had.”
On June 21, 2007 the ADDA board voted to oppose the new performance
evaluation system. On July 9, 2007 ADDA’s president, Steve Ipsen, sent a letter to
Booth stating ADDA’s objections to the system. Tavelman sent Booth “more detailed
concerns pertaining to the new Performance Work Plan (‘PWP’) and Performance
Evaluation (‘PE’). These comments are based on a discussion with the Board as well as
DDAs who are already being subject to these new forms (although we were under the
impression that implementation would not take place as of yet).”
Booth responded to Ipsen on August 17, 2007, stating that “[a]fter reading your
letter, I am very concerned that I failed to effectively communicate several key elements
of the revised system.” She noted that “[t]he revised PE system is still in the process of
being drafted. In fact, since the Board meeting, input has been solicited and received
from a number of deputies, several of whom will be rated under the revised system, and
significant changes have been made as a result of their comments.” She further noted
that she expected the worksheet used for evaluations would undergo adjustments for the
next several years.
Booth responded to Tavelman on August 21, 2007, stating that then-Assistant
District Attorney Jackie Lacey would attend the ADDA board meeting that evening to
address his concerns. Booth said Lacey would “have two documents in the final draft
phase that we hope to promulgate within the next several weeks that address several of
the concerns expressed by the ADDA Board as well as some of the issues you raise . . . .”
Booth also told Tavelman the “PE Worksheet” he requested was “not yet ready for
distribution,” but it would “be available to all deputies for review before the end of the
year.”
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On November 12, 2007 Spillane wrote in his “View from the 18th Floor”
newsletter that the DAO had announced in February 2007 “that significant revisions had
been made to the Performance Evaluation (PE) system for attorney staff. Implementation
of this revised PE will take effect in April of 2008. . . . Beginning in April of this year,
the process was begun whereby each deputy will be provided a copy of the Performance
Work Plan.” Spillane noted that, “[i]n response to a number of excellent suggestions
from deputies, the Work Plan has recently been revised. . . . It is anticipated that the
Worksheet will continue to undergo consequential adjustments for the next several years
in an effort to achieve the goals of fair, accurate and meaningful evaluations of attorney
performance.”
A series of emails between Booth and others in January and February 2008 shows
that the DAO was still making revisions to the PE Work Plan. On February 26, 2008
Booth sent Spillane “the latest electronic version of the Workplan.” She asked whether it
was still going to debut in April, referring to problems with “the people in HR.” The
following day Booth emailed staff members that she “just confirmed with Mr. Spillane
that we [are] good for launch on April 1 – April Fool’s Day and all.” She added that she
was “really looking forward to testing the stuff out next week,” and that work had started
on the manual. On March 14, 2008 Booth explained, in response to a question about
training, “Originally, the plan was to begin the new PE process in January of 2008.
Because the Work Plan was not available until April, however, and the deputies who had
PEs completed from January-March had not had a full year’s notice of the criteria set in
the Work Plan, we delayed the implementation of the new PEs until April (this was
announced in LADAnet in December of 2007).”
D. ADDA’s Challenge to Implementation of the New Performance
Evaluation System
On March 10, 2008 John Harrold, Chairman of ADDA’s Labor Committee, wrote
to then-District Attorney Steve Cooley stating that on March 24 ERCOM would formally
recognize ADDA as the certified bargaining unit for all Los Angeles DDAs. “It is the
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position of the ADDA that this Administration’s decision to implement any significant
alteration or modification of employee/employer relations during this time of
unionization would constitute an unfair labor practice unless submitted to the bargaining
unit for negotiation. Changing the status of employer/employee relations while clear
efforts aimed at unionization are underway is considered inimical to constitutionally
protected rights of association. It is our belief the new Performance Evaluation
significantly alters employer/employee relations, and as such should not be implemented,
if at all, until after your administration meets and confers with authorized representatives
of the ADDA and an agreement is reached.”
On March 26, 2008 Spillane wrote a letter on behalf of Steve Cooley reminding
Harrold that the new performance evaluation system had been announced on
February 14, 2007, Booth had met with ADDA concerning the new plan, and the
Performance Evaluation Revision Committee had accepted many of ADDA’s
suggestions. Spillane recounted that “[t]he Implementation of the new forms was
delayed from January 1, 2008 to April 1, 2008 to allow all Deputy District Attorneys to
receive a Performance Work Plan well in advance of receiving the new performance
evaluation.” Spillane told ADDA, “[t]he Department will be implementing the new
performance evaluation forms on April 1, 2008.”
Harrold testified, however, that “[n]o one from the District Attorney’s Office . . .
ever responded to me.” The only response he received was from Donald L. Washington,
Manager and CEO/Employee Relations with the County’s Chief Executive Office.
Washington wrote on April 24, 2008 that “the Chief Executive Office/Employee
Relations Division is responsible for conducting contract negotiations for newly
established bargaining units . . . .” He invited Harrold to contact him “so that we can
schedule a meeting to discuss the issues you raised regarding the ‘proposed new
performance evaluation form.’” Washington also suggested that Harrold consult
ADDA’s board of directors “regarding the commencement of formal negotiations for a
new Memorandum of Understanding for Deputy District Attorneys.”
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On August 21, 2008 ADDA filed a formal unfair labor practices charge with
ERCOM. ADDA filed amended charges on August 27 and September 24, 2008. ADDA
alleged that it was certified as a bargaining unit on March 24, 2008. The DAO
subsequently “unilaterally modified the existing employer/employee relationship without
properly meeting and conferring, as well as negotiating with the ADDA on the changes.”
“The management of the District Attorney’s Office was aware of the ADDA’s efforts to
certify for the past several years,” and those efforts “predate[d] the management’s
commencement of it[s] modification of the existing performance evaluation . . . .”
ADDA alleged that the new performance evaluation system “was, by admission,
not implemented until sometime after April 1, 2008, subsequent to the ERCOM
declaration establishing the ADDA as a bargaining unit . . . .” The DAO’s “ongoing
effort to alter or change the employer/employee relationship during the ADDA’s effort to
certify and afterward is an unfair labor practice, and the County’s refusal to intervene,”
despite ADDA’s requests that it do so, “is an ongoing offense.” ADDA requested that
ERCOM order the DAO to cease and desist from implementing the new performance
evaluation system and to rescind any evaluations made using the new system.
On February 26, 2009 ERCOM appointed a hearing officer to hear the matter.
The hearing officer conducted hearings in late 2009 and early 2010, and issued a report
on August 19, 2010. The hearing officer concluded that the DAO, “through PERSA [the
new Performance Evaluation Review Systems for Attorneys], made material changes to
the existing DDA I-IV performance evaluation system set forth in [Civil Service Rule]
20.04 without notice to or opportunity for the Charging Party to bargain.” The hearing
officer also found that “PERSA had not been fully implemented at the time the ADDA
became certified and demanded to bargain.” The hearing officer concluded that the
matter was “clearly negotiable as it implicates or relates to unit employees’ wages, hours,
and working conditions within the scope of bargaining. The County thus has a duty to
negotiate with Charging Party on the effects of P.E. Rule changes and its failure and
refusal to do so violates [Employee Relations] Ordinance Sections 12(a)(1) and 12(a)(3).
[¶] Once its duty to bargain arose, the County also failed to provide the ADDA with
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relevant requested information necessary to meet and confer and thereby violated
Sections 12(a)(1), 12(a)(3) and 15 of the Ordinance.” The hearing officer also found that
the DAO’s actions were not motivated by anti-union animus.
The hearing officer recommended that ERCOM order the DAO to “[r]escind the
PERSA system changes and restore the status quo ante to DDA I-IV employee
performance evaluations as they existed prior to April 1, 2008.” He further
recommended that ERCOM order the DAO not to make any changes to the performance
evaluation system without first bargaining with ADDA.
The DAO filed exceptions to the hearing officer’s report. The DAO argued that
the hearing officer had no authority to rule on the DAO’s compliance with Civil Service
Rules and, in any event, the change to the performance evaluation system did not violate
Civil Service Rules. The DAO also argued that the change to the performance evaluation
system did not have any adverse impact and thus did not violate the Employee Relations
Ordinance. The DAO also asserted that the hearing officer’s recommendation that the
DAO restore the status quo ante was ambiguous and would “unwind” the entire
performance evaluation system. ADDA responded to the DAO’s exceptions, and the
parties argued the matter before ERCOM.
ERCOM issued its decision adopting the hearing officer’s report and
recommendations in their entirety. ERCOM ordered the DAO to “cease and desist from
making changes to the DDA I-IV performance evaluation system and Civil Service Rules
(“CSR”) pertaining thereto, including but not limited to CSR 20, without first negotiating
with the ADDA.”
The County, the Chief Executive Office, and the Department of Human Resources
filed a motion for reconsideration. ADDA filed an opposition arguing, among other
things, that the County, the Chief Executive Office, and the Department of Human
Resources were improperly seeking to intervene in the action. ERCOM denied the
motion for reconsideration and affirmed its previous decision.
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E. Mandate Proceedings
On July 12, 2011 the County, the Chief Executive Office, the Department of
Human Resources, and the DAO (collectively, the County) filed a petition for writ of
administrative mandate (Code Civ. Proc., § 1094.5), writ of mandate (id., § 1085), and
complaint for declaratory relief (id., § 526, subd. (a)). ADDA sought an order directing
the DAO to comply with ERCOM’s final order in the absence of a stay, and the County
filed a cross-motion to stay enforcement of ERCOM’s order. In support of the County’s
motion to stay, Booth submitted a declaration explaining the difficulty and unfairness of
undoing the ratings given under the new performance evaluation system and returning to
the old system. The trial court granted the County’s motion for a stay, finding that a stay
of the proceedings was in the public’s best interest, and it denied as moot ADDA’s
request for an order requiring the DAO to comply immediately with ERCOM’s decision.
The trial court heard the matter on July 27, 2012 and issued a ruling on July 30.
The court first addressed the issue whether the DAO was required to negotiate with
ADDA. The court noted the DAO’s position “that the revised performance evaluation
system was implemented no later than the beginning of the 2007-2008 rating period in
April 2007,” although “the use of the new forms was delayed” until “April 1, 2008 so that
all DDAs had received a Performance Work Plan by the time the new evaluations were
given.” The court also noted ADDA’s position “that the lynchpin [sic] of the revised
evaluation system was the PERSA Data Sheet—the computer interface used as a rating
tool for the new performance evaluation system. Unless and until that form was
completely settled and finalized, the Performance Evaluation System was not
‘implemented.’” The court recognized that, according to ADDA, the new performance
evaluation system was not implemented until after April 1, 2008.
In the trial court’s view, the fact that the DAO was still revising and disseminating
certain aspects of the new performance evaluation system did not constitute substantial
evidence that the DOA had not implemented the system. “The relevant inquiry is not
whether there are rating documents and the computer interface documents that will be
revised,” because such documents are always subject to revision. Rather, “the relevant
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inquiry requires ERCOM to ask whether the revised personnel system was underway in a
way and to a degree whereby there would have been no alteration to the system even if
collectively bargained. The uncontroverted evidence in the record demonstrates that the
system was in place, that deputy DAs were being evaluated using new work plans and
new measures of performance and that there was nothing meaningful to discuss at the
time the ADDA was certified. That rating forms required to generate data were
incomplete does not constitute substantial, relevant evidence that the revised system was
not fully [implemented] before March 24, 2008.”
The trial court found that “[i]mplementation of a revised personnel system occurs
at the beginning of the rating period—when the new Work plan is issued to rated
employees—not at the end when the PEs are finally issued.” Because this occurred
before ADDA was certified as a bargaining unit, the DAO “did not have a statutory
obligation to negotiate pursuant to LA County Code sections 5.04.030 and 5.04.240.”
The court added that ERCOM had no jurisdiction over actions taken before ADDA’s
certification. Therefore, ERCOM’s “decision finding an unfair employee relations
practice against [the DAO] for failing to bargain with . . . ADDA is an abuse of discretion
because such a conclusion is not supported by substantial evidence . . . .”
The trial court also addressed the petitioners’ argument that ERCOM erred as a
matter of law in concluding that the DAO had a duty to bargain under the balancing test
in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, which
sets forth the factors that an employer must consider in determining whether a
management action is subject to collective bargaining. Under Claremont, the trial court
stated, the question is “whether, as a matter of law, the revised personnel system had a
‘significant and adverse effect on the . . . working conditions’ of represented district
attorneys.” The court concluded that the revised system did have such an effect because,
under the new system, far fewer DDAs received the highest rating. The new
“performance evaluation system would have far-reaching consequences, affecting job
security, specialty assignments, promotional opportunities, merit pay increases, step-
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salary increases; disciplinary consequences, and appraisal of promotion and layoff
issues.”
The trial court noted, however, that Claremont “mandates two additional
inquiries—neither of which appear[s] to have been considered by ERCOM. [¶] ERCOM
failed to consider whether the significant and adverse effects associated with the revised
PE system arose from the implementation of a fundamental managerial or policy
decision. In addition, ERCOM failed to balance the employer’s need for unencumbered
decision-making in managing its operations against the benefit to employer-employee
relations of bargaining about the change to the performance evaluation system.” By
failing to perform the entire Claremont analysis, the court concluded, ERCOM “failed to
proceed in a manner required by law.” For that reason, ERCOM’s conclusion that the
DAO’s failure to bargain constituted an unfair labor practice “was erroneous as a matter
of law.”
The trial court entered judgment on August 13, 2012. The court issued a writ of
administrative mandate commanding ERCOM to set aside its decision and to enter a new
and different decision that the DAO did not violate the Employee Relations Ordinances
or Civil Service Rules, and dismissing ADDA’s unfair labor practice charge with
prejudice. ADDA timely appealed.
DISCUSSION
A. The Superior Court Had Subject Matter Jurisdiction
ADDA first contends that the superior court lacked subject matter jurisdiction over
this case because under Government Code section 3509.5, subdivision (b),2 the Court of
Appeal has jurisdiction over a challenge to a decision by ERCOM, and the County failed
to file the petition for writ of administrative mandate within the 30-day time limit
2 Unless otherwise specified, all further section references are to the Government
Code.
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prescribed by section 3509.5, subdivision (b). The County argues that section 3509.5
does not apply to a writ petition challenging a decision by ERCOM. Whether section
3509.5, subdivision (b), applies to decisions by ERCOM is a matter of statutory
interpretation involving several statutes and the contexts in which the Legislature enacted
them.
1. The Meyers-Milias-Brown Act and Section 3509.5
“In 1961, the Legislature enacted the George Brown Act (Stats. 1961, ch. 1964,
§ 1, pp. 4141-4143, adding Gov. Code, § 3500 et seq.), which granted public employees
in California the right to organize and have their representatives ‘meet and confer’ with
their employers over wages and working conditions [citation]. That right was expanded
in 1968, when the Legislature enacted the [Meyers-Milias-Brown Act (MMBA)] (Gov.
Code, §§ 3500-3510) authorizing public entities and labor representatives not only to
confer but also to reach binding agreements on wages, hours, and working conditions.
[Citations.]” (City of San Jose v. Operating Engineers Local Union No.3 (2010) 49
Cal.4th 597, 603; see Coachella Valley Mosquito & Vector Control Dist. v. California
Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077, 1084.)
The history of the Public Employment Relations Board (PERB) began “in 1975,
when the Legislature enacted the Educational Employment Relations Act (EERA)
(. . . §§ 3540-3549.3). That law established the Educational Employment Relations
Board (EERB), which in 1977 was renamed the Public Employment Relations Board.”
(City of San Jose v. Operating Engineers Local Union No.3, supra, 49 Cal.4th at pp. 603-
604, citing Coachella Valley Mosquito & Vector Control Dist. v. California Public
Employment Relations Bd., supra, 35 Cal.4th at p. 1085.) Section 3541.5 gave PERB
jurisdiction over charges of unfair labor practices. (City of San Jose, supra, at p. 604.)
“In 2000, the Legislature extended PERB’s jurisdiction to cover matters arising
under the MMBA—this was done through enactment of . . . section 3509, which became
effective July 1, 2001. (Stats. 2000, ch. 901, § 8.)” (City of San Jose v. Operating
Engineers Local Union No.3, supra, 49 Cal.4th at p. 605.) Section 3509, subdivision (a),
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provides: “The powers and duties of the board described in Section 3541.3 [of the
EERA] shall also apply, as appropriate, to this chapter . . . .” Section 3501,
subdivision (f), specifies that, as used in the MMBA, “‘[b]oard means the Public
Employment Relations Board established pursuant to Section 3541.”
With respect to local agencies, the MMBA provides in section 3507,
subdivision (a), that “[a] public agency may adopt reasonable rules and regulations after
consultation in good faith with representatives of a recognized employee organization or
organizations for the administration of employer-employee relations under this chapter.”
Subdivision (d) of section 3507 provides: “Employees and employee organizations shall
be able to challenge a rule or regulation of a public agency as a violation of this chapter.
This subdivision shall not be construed to restrict or expand the board’s jurisdiction or
authority as set forth in subdivisions (a) to (c), inclusive, of Section 3509.”
Subdivisions (a) to (c) of section 3509 provide that PERB’s powers and duties extend to
the MMBA, “[a] complaint alleging any violation of this chapter or of any rules and
regulations adopted by a public agency pursuant to Section 3507 or 3507.5 shall be
processed as an unfair practice charge by the board,” and “[t]he board shall enforce and
apply rules adopted by a public agency concerning unit determinations, representation,
recognition, and elections.” Subdivision (d) of section 3509 provides: “Notwithstanding
subdivisions (a) to (c), inclusive, the employee relations commissions established by, and
in effect for, the County of Los Angeles and the City of Los Angeles pursuant to
Section 3507 shall have the power and responsibility to take actions on recognition, unit
determinations, elections, and all unfair practices, and to issue determinations and orders
as the employee relations commissions deem necessary, consistent with and pursuant to
the policies of this chapter.”
The Legislature enacted Section 3509.5 in 2002 “to establish procedures for
judicial review of determinations by the Public Employment Relations Board.” (Stats.
2002, ch. 1137, § 1(c).) Subdivision (a) of section 3509.5 provides that any party
“aggrieved by a final decision or order of the board in an unfair practice case . . . may
petition for a writ of extraordinary relief from that decision or order.” Subdivision (b) of
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that section provides that “[a] petition for a writ of extraordinary relief shall be filed in
the district court of appeal having jurisdiction over the county where the events giving
rise to the decision or order occurred. The petition shall be filed within 30 days from the
date of the issuance of the board’s final decision or order, or order denying
reconsideration, as applicable. . . .”
2. ERCOM
“In the same year the MMBA was enacted, the County passed its own ordinance
conforming to the legislative policies expressed in the MMBA. [Citation.] The
ordinance created ERCOM to administer its provisions. [Citations.] In giving PERB
jurisdiction over MMBA disputes, the Legislature made an express exception for
ERCOM. Section 3509, subdivision (d) states that, notwithstanding PERB’s jurisdiction
to administer the MMBA, ERCOM retains the power to consider and resolve
employment relations matters ‘consistent with and pursuant to the policies of this
chapter.’ Allegations of unfair labor practices by the County must be brought to
ERCOM, not PERB. In essence, ERCOM is a separate agency empowered to resolve
public employment labor disputes in Los Angeles County just as PERB does for all other
counties in California. [¶] ERCOM must exercise its authority in a manner ‘consistent
with and pursuant to’ the policies of the MMBA as interpreted and administered by
PERB. [Citation.]” (County of Los Angeles v. Los Angeles County Employee Relations
Com. (2013) 56 Cal.4th 905, 916-917.)
ERCOM is governed by chapter 5.04 of title 5 of the Los Angeles County Code of
Ordinances, “known as the ‘employee relations ordinance of the county of Los Angeles’”
(ERO). (ERO § 5.04.010.) The purpose of the ERO was to establish public policy with
respect to labor relations, including “A. Recognizing and defining the rights of
employees to join organizations of their own choosing for the purpose of representation
on matters affecting employee relations or to represent themselves individually in dealing
with the county; [¶] B. Establishing formal rules and procedures to provide for the
orderly and systematic presentation, consideration and resolution of employee relations
17
matters; and [¶] C. Creating an independent employee relations commission to ensure
that all county employees and their representatives are fairly treated, that their rights are
maintained, and that their requests are fairly heard, considered and resolved.” (ERO
§ 5.04.020.) The provisions of the ERO were “not intended to conflict with the
provisions of Chapter 10, Division 4, Title 1 of the Government Code of the state of
California (Sections 3500 et seq.) as amended in 1968 [i.e., the MMBA].” (ERO
§ 5.04.040, subd. E.)
The ERO provided for the continued existence of ERCOM to “implement and
administer the provisions of this chapter.” (ERO § 5.04.100, subd. A.) Among the
powers the ERO granted to ERCOM is the power “[t]o investigate charges of unfair
employee relations practices or violations of this chapter, and to take such action as the
commission deems necessary to effectuate the policies of this chapter . . . .” (Id.,
§ 5.04.160, subd. E.) The ERO further provides that ERCOM “is a separate agency of
the county and is authorized, following notice and hearing, to adopt reasonable rules and
procedures not inconsistent with the provisions of Ordinance 9646 [which enacted the
ERO] or any other county ordinance and which are necessary in the performance of its
duties under this chapter.” (Id., § 5.04.170.)
Under the ERO, “If [ERCOM] decides that the county has engaged in an unfair
employee relations practice or had otherwise violated this chapter or any rule or
regulation issued thereunder, the commission shall direct the county to take appropriate
corrective action. [¶] 1. Such order shall be binding on the county, unless it requires
action by the board of supervisors to make appropriations adjustments, transfers or
revisions as provided by Section 29000 et seq. of the Government Code, or the adoption
of a county ordinance by the board of supervisors. If the county fails to take action to
comply with a binding order of [ERCOM] within such reasonable time as [ERCOM] may
specify, an aggrieved party may petition the Superior Court for a writ of mandate to
enforce the order.” (ERO § 5.04.240, subd. E1.) If action by the board of supervisors is
required and the board of supervisors “does not take action within such reasonable time
as [ERCOM] may specify, [ERCOM] shall so notify the other parties. An aggrieved
18
party may then seek judicial relief from the Superior Court for enforcement of
[ERCOM]’s order to the extent that compliance with such order is required by state law,
or by this chapter or any valid rule or regulation issued thereunder. Notwithstanding the
failure of the board of supervisors to take such action, the Superior Court shall have
jurisdiction to exercise its independent judgment on the evidence in light of the whole
record and in its discretion to take additional evidence and to issue a writ of mandamus
enforcing [ERCOM]’s order on a finding by the Superior Court that the county has
committed an unfair employee relations practice in violation of state law, or this chapter.”
(Id., subd. E2.)
3. Rules of Statutory Construction To Interpret Section 3509.5
In determining whether section 3509.5 applies to decisions by ERCOM “‘[w]e
begin with the fundamental rule that our primary task is to determine the lawmakers’
intent.’ [Citation.] ‘In construing statutes, we aim “to ascertain the intent of the enacting
legislative body so that we may adopt the construction that best effectuates the purpose of
the law.”’ [Citation.] California courts ‘have established a process of statutory
interpretation to determine legislative intent that may involve up to three steps.’
[Citation.] The ‘key to statutory interpretation is applying the rules of statutory
construction in their proper sequence . . . as follows: “we first look to the plain meaning
of the statutory language, then to its legislative history and finally to the reasonableness
of a proposed construction.”’ [Citation.]” (Mt. Hawley Ins. Co. v. Lopez (2013) 215
Cal.App.4th 1385, 1396-1397; accord, Busse v. United PanAm Financial Corp. (2014)
222 Cal.App.4th 1028, 1038.)
The first step in our inquiry is to examine the words of the statute themselves,
“‘because the statutory language is generally the most reliable indicator of legislative
intent.’” (Klein v. United States of America (2010) 50 Cal.4th 68, 77; Mt. Hawley Ins.
Co. v. Lopez, supra, 215 Cal.App.4th at p. 1397.) “‘If the interpretive question is not
resolved in the first step, we proceed to the second step of the inquiry. [Citation.] In this
step, courts may “turn to secondary rules of interpretation, such as maxims of
19
construction, ‘which serve as aids in the sense that they express familiar insights about
conventional language usage.’” [Citation.] We may also look to the legislative history.
[Citation.] “Both the legislative history of the statute and the wider historical
circumstances of its enactment may be considered in ascertaining the legislative intent.”
[Citation.] [¶] “If ambiguity remains after resort to secondary rules of construction and
to the statute’s legislative history, then we must cautiously take the third and final step in
the interpretive process. [Citation.] In this phase of the process, we apply ‘reason,
practicality, and common sense to the language at hand.’ [Citation.] Where an
uncertainty exists, we must consider the consequences that will flow from a particular
interpretation. [Citation.] Thus, ‘[i]n determining what the Legislature intended we are
bound to consider not only the words used, but also other matters, “such as context, the
object in view, the evils to be remedied, the history of the times and of legislation upon
the same subject, public policy and contemporaneous construction.” [Citation.]’
[Citation.] These ‘other matters’ can serve as important guides, because our search for
the statute’s meaning is not merely an abstract exercise in semantics. To the contrary,
courts seek to ascertain the intent of the Legislature for a reason—‘to effectuate the
purpose of the law.’”’ [Citations.]” (Mt. Hawley Ins. Co., supra, at p. 1397.)
Finally, even if the meaning of the words in a statute is clear, it may be necessary
to engage in the second and third steps of the inquiry where the context of the statute
reveals a latent ambiguity. “A latent ambiguity exists when a literal interpretation of a
statute would frustrate the purpose of the statute. [Citation.] When faced with a latent
ambiguity, we must determine which interpretation of the statute is most consistent with
the legislative intent. We infer that the Legislature intended an interpretation producing
practical, workable results, not one producing mischief or absurdity. [Citation.]” (People
v. Childs (2013) 220 Cal.App.4th 1079, 1101.) We may then “‘look to a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied,
the legislative history, public policy, contemporaneous administrative construction, and
the statutory scheme of which the statute is a part’” in order to determine its meaning.
(People v. Leiva (2013) 56 Cal.4th 498, 510.)
20
4. Analysis
As noted, section 3509.5, subdivision (a), provides that any party “aggrieved by a
final decision or order of the board in an unfair practice case . . . may petition for a writ
of extraordinary relief from that decision or order.” Both subdivision (b) of that section,
which requires the aggrieved party to file the petition in the Court of Appeal, and
subdivision (c) of that section, which governs enforcement of final decisions and orders,
also refer to the “board.” Section 3501, subdivision (f), specifies that, as used in the
MMBA, “‘[b]oard’ means the Public Employment Relations Board established pursuant
to Section 3541.” This language is clear and unambiguous: the references to the “board”
in section 3509.5 are to PERB, not to ERCOM.
ADDA’s argument, in essence, is that the reference to ERCOM in section 3509
creates a latent ambiguity in section 3509.5. Section 3509, subdivision (d), provides
ERCOM “shall have the power and responsibility to take actions on recognition, unit
determinations, elections, and all unfair practices, and to issue determinations and orders
as the employee relations commissions deem necessary, consistent with and pursuant to
the policies of this chapter.” (Italics added.) ADDA argues that the italicized portion of
this section means that ERCOM is bound by the provisions of section 3509.5.
In support of its argument, ADDA relies on Singletary v. International
Brotherhood of Electrical Workers, Local 18 (2012) 212 Cal.App.4th 34. In Singletary,
the superior court dismissed an action under the MMBA, finding that under Government
Code section 3509, subdivision (d), the Employee Relations Board of the City of Los
Angeles (ERB)3 had exclusive jurisdiction over the labor dispute. (Singletary, supra, at
p. 37.) The Court of Appeal explained, “In 2000, the Legislature extended PERB’s
jurisdiction to cover matters arising under the MMBA through enactment of section
3509, which became effective July 1, 2001. (Stats. 2000, ch. 901, § 8, p. 6607.)
Section 3509, subdivision (b) now provides in relevant part that ‘The initial
3 The exceptions to PERB jurisdiction in subdivision (d) of section 3509 include
both ERCOM and ERB.
21
determination as to whether the charge of unfair practice is justified and, if so, the
appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter
within the exclusive jurisdiction of [PERB] . . . .’ The legislature recognized that the
MMBA had ‘no effective enforcement procedures except for court action, which is time-
consuming and expensive. One of the basic principles of an effective collective
bargaining law should be to provide for enforcement by an administrative agency with
expertise in labor relations. The appropriate role for the courts is to serve as an appellate
body.’ (Assem. Com. on Appropriations Analysis of Sen. Bill No. 739 (1999–2000 Reg.
Sess.) as amended June 6, 2000, p. 2.) These changes had the effect of removing from
the courts their initial jurisdiction over MMBA unfair practice charges. [Citation.]
“As a result, section 3509, subdivision (b) provides, ‘[a] complaint alleging any
violation of [the MMBA] . . . shall be processed as an unfair practice charge by [PERB].
The initial determination as to whether the charge of unfair practice is justified and, if so,
the appropriate remedy necessary to effectuate the purposes of this chapter, shall be a
matter within the exclusive jurisdiction of [PERB] . . . .’ This enactment removed ‘from
the courts their initial jurisdiction over MMBA unfair practice charges’ and vested such
jurisdiction in PERB. [Citation.] [¶] Thus, PERB has exclusive initial jurisdiction to
determine an unfair practice charge. [Citation.]” (Singletary v. International
Brotherhood of Electrical Workers, Local 18, supra, 212 Cal.App.4th at pp. 42-43.)
The court noted that ERB was created “before PERB, and thus the MMBA carved
out an exception for ERB” under section 3509, subdivision (d). (Singletary v.
International Brotherhood of Electrical Workers, Local 18, supra, 212 Cal.App.4th at
p. 43.) Section 3507, subdivision (a), authorized the City of Los Angeles to adopt rules
and regulations implementing the MMBA, and the City did so. The City’s ERO
expressly granted ERB the power to resolve labor issues such as the one involved in
Singletary. (Singletary, supra, at p. 44.)
The Singletary court found that the plaintiffs’ interpretation of section 3509,
subdivision (d), that an unfair labor practice charge can be filed in the superior court in
the first instance, “would nullify the stated legislative purpose of providing primary
22
jurisdiction in personnel boards for review of violations of the MMBA. Given that the
City’s ERB was created in 1971, before the establishment of PERB in 1975, when the
Legislature acted in 2000 to expressly specify the means of review of decisions of PERB,
the Legislature did not want to appear to nullify the powers of ERB. Consistent with this
purpose, the word ‘[n]otwithstanding’ that prefaces subdivision (d) of section 3509 does
not operate to exempt ERB from the review provisions of section 3509, but is merely a
recognition of ERB’s continued autonomy as an employee relations board. This fact is
recognized in the closing clause of subdivision (d), which states that ERB has the power
to ‘issue determinations and orders as the employee relations commissions deem
necessary, consistent with and pursuant to the policies of this chapter.’ (§ 3509, subd.
(d) (italics added).) Thus, the provisions of section 3509, subdivisions (a) through (c), to
the extent they delimit the jurisdiction of the courts vis-à-vis review of the actions of
employee relations boards, apply equally to ERB except that those sections do nothing in
derogation of ERB’s powers.” (Singletary v. International Brotherhood of Electrical
Workers, Local 18, supra, 212 Cal.App.4th at p. 46.)
The Singletary court then added, “For this reason, even if plaintiffs had exhausted
their administrative remedies by pursuing their claims before ERB, plaintiffs could not
have commenced their action in superior court to challenge ERB’s ruling. Instead,
pursuant to section 3509.5, subdivisions (b) and (c), they were required to commence a
writ petition in the Court of Appeal within 30 days of the adverse decision. As a result,
the trial court did not err in dismissing the action for lack of jurisdiction.” (Singletary v.
International Brotherhood of Electrical Workers, Local 18, supra, 212 Cal.App.4th at
p. 46, fn. omitted.)
In Singletary, the primary issue was whether ERB had exclusive initial jurisdiction
over the labor relations issue involved. It does not appear that the parties questioned the
applicability of section 3509.5, and thus the court did not analyze the issue. The only
case cited by the court on the issue, International Assn. of Fire Fighters, Local 188, AFL-
CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 271, involved PERB,
which clearly is subject to section 3509.5. The Singletary court’s assumption that section
23
3509.5 applied to ERB—and by analogy to ERCOM—was unnecessary to its decision
and, in our opinion, not entirely correct.
In other cases, parties have raised challenges to decisions by ERB first in the
superior court, both before and after the enactment of section 3509.5. (See, e.g., County
of Los Angeles v. Los Angeles County Employee Relations Com., supra, 56 Cal.4th at
p. 914; Mariscal v. Los Angeles City Employee Relations Bd. (2010) 187 Cal.App.4th
164, 169, 173; Los Angeles Police Protective League v. City of Los Angeles (1986) 188
Cal.App.3d 1, 5-6.) “‘The Legislature, of course, is deemed to be aware of statutes and
judicial decisions already in existence, and to have enacted or amended a statute in light
thereof.’ [Citation.]” (In re Pedro T. (1994) 8 Cal.4th 1041, 1056; see Busse v. United
PanAm Financial Corp., supra, 222 Cal.App.4th at p. 1038 [“the Legislature is
‘presumed to know about existing case law when it enacts or amends a statute’”]; Borikas
v. Alameda Unified School Dist. (2013) 214 Cal.App.4th 135, 150 [“the Legislature is
deemed to be aware of existing law”].) As Singletary recognizes, the Legislature was
aware of the existence of ERB when it “carved out an exception for ERB” under section
3509, subdivision (d). (Singletary v. International Brotherhood of Electrical Workers,
Local 18, supra, 212 Cal.App.4th at p. 43.)
We must similarly deem the Legislature to have been aware of ERB and the
existence of challenges to its decisions in the superior court when it enacted section
3509.5,4 yet it made no mention of ERB in that section but referred only to PERB. We
also may presume that by omitting reference to ERB in section 3509.5, the Legislature
did not intend that section 3509.5 apply to ERB. (See Edgerly v. City of Oakland (2012)
211 Cal.App.4th 1191, 1201 [“[t]hat the Legislature chose to omit references to ‘local
laws’ when drafting [Labor Code] section 1102.5 is readily apparent from its inclusion of
‘local laws’ in the language of other whistleblower statutes”; this omission “is indicative
4 The legislative history of section 3509, which we discuss below, confirms the
Legislature’s awareness of challenges to ERB decisions in the superior and municipal
courts.
24
of legislative intent to exclude such laws from the purview of [Labor Code] section
1102.5”]; Levin v. United Airlines (2008) 158 Cal.App.4th 1002, 1022 [because the
Legislature omitted language from a statute that was similar to the same language used in
other statutes, the court cannot read that language into the statute]; see also Chalmers v.
Hirschkop (2013) 213 Cal.App.4th 289, 309 [“[w]e presume that the Legislature, when
omitting any language providing for modification of the denial of visitation under
[Family Code] section 3101, was aware that other statutes on visitation and custody
specifically granted the courts with discretion to modify these orders and therefore did
not intend for a stepparent to be able to request a modification of the denial of visitation
under [Family Code] section 3101”].) A statute “‘is to be interpreted by the language in
which it is written, and courts are no more at liberty to add provisions to what is therein
declared in definite language than they are to disregard any of its express provisions.’
[Citation.]” (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097; accord,
Von Nothdurft v. Steck (2014) 227 Cal.App.4th 524, 533-534; Chalmers, supra, at p. 309;
see also Code Civ. Proc., § 1858 [“[i]n the construction of a statute” a court “is simply to
ascertain and declare what is in terms or in substance contained therein, not to insert what
has been omitted, or to omit what has been inserted”].) The conclusion that section
3509.5 applies only to decisions by PERB is buttressed by the Legislature’s stated intent
in enacting the section, “to establish procedures for judicial review of determinations by
the Public Employment Relations Board.” (Stats. 2002, ch. 1137, § 1(c).)
The language of section 3509, subdivision (d), relied on by ADDA, does not
compel a different conclusion. That section refers to ERB’s power to take action
“consistent with and pursuant to the policies of this chapter.” It says nothing about
judicial power to review ERB’s decisions.
ADDA argues that, if section 3509.5 does not apply to decisions by ERB and
ERCOM, “the legislative intent with regard to [sections] 3509 and 3509.5 would be
frustrated. Rather than having a uniform system of labor relations governed by PERB
and the principles set forth in [the MMBA], local superior courts throughout the State of
California would be second guessing both PERB and institutions such as ERB and
25
ERCOM.” This argument overlooks the fact that section 3509.5 applies to all decisions
by PERB, throughout the state. The only exceptions to section 3509.5 are ERB and
ERCOM, the only two local labor relations commissions for public employees
recognized in section 3509, both located in Los Angeles County.
ADDA also relies on the principle, expressed in Coachella Valley Mosquito &
Vector Control Dist. v. California Public Employment Relations Bd., supra, 35 Cal.4th
1072, that “we do not construe statutes in isolation; rather, we construe every statute with
reference to the whole system of law of which it is a part, so that all may be harmonized
and anomalies avoided. [Citations.] The MMBA, which we construe here, is part of a
larger system of law for the regulation of public employment relations under the initial
jurisdiction of the PERB. The PERB suggests no way in which MMBA unfair practice
charges differ from unfair practice charges under the other six public employment
relations laws within the PERB’s jurisdiction . . . so as to justify a limitations period that
is six times longer than the six months allowed under each of these other laws. The
PERB suggests no rational ground upon which the Legislature could have decided to treat
MMBA unfair practices charges so differently in regard to the limitations period. We
find it reasonable to infer that the Legislature intended no such anomaly, and that it
intended, rather, a coherent and harmonious system of public employment relations laws
in which all unfair practice charges filed with the PERB are subject to the same six-
month limitations period.” (Id. at pp. 1089-1090.) From this general principle, ADDA
argues that all public employment relations laws “have identical language directing the
appeal be filed with the Court of Appeal,” and “[it] would not harmonize and it would be
anomalous to except from all seven statutory schemes ERCOM and ERB from the
method of appeal articulated by the Legislature.”
Coachella Valley Mosquito & Vector Control Dist. v. California Public
Employment Relations Bd., supra, 35 Cal.4th 1072 addressed “a larger system of law for
the regulation of public employment relations under the initial jurisdiction of the PERB.”
(Id. at p. 1089, italics added.) Cases before ERB and ERCOM are not “under the initial
jurisdiction of the PERB.” The statutes cited by ADDA that direct parties to file appeals
26
of the decisions regarding public employment relations with the Court of Appeal refer to
decisions by the “board,” which those statutes define as PERB. (See §§ 3540.1, subd.
(a), 3562, subd. (b), 71639.1, subd. (a), 71825, subd. (a); Pub. Util. Code, § 99560.1,
subd. (b)).
The legislative history of section 3509 is consistent with the conclusion that
section 3509.5 applies only to PERB. The County points out that Senate Bill No. 739,
which ultimately became section 3509, at one point provided in subdivision (d) that
“[a]ny judicial review applicable to a superior court or municipal court shall be filed
directly with the Court of Appeal.” (Assem. Amend. to Sen. Bill No. 739 (1999-2000
Reg. Sess.) Aug. 16, 1999.) The Legislature subsequently omitted this language.
(Assem. Amend. to Sen. Bill No. 739 (1999-2000 Reg. Sess.) June 6, 2000.) Legislative
history showing that the Legislature considered and rejected language requiring judicial
review of ERB and ERCOM decisions in the Court of Appeal “‘preclud[es] judicial
construction to the contrary.’” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th
106, 126; see O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568,
590-591 [“‘Legislature’s rejection of specific language constitutes persuasive evidence a
statute should not be interpreted to include the omitted language’”].)
The Legislature evidenced its intent to allow continued judicial review of ERB and
ERCOM decisions by the superior court when it enacted section 3509. We may presume
this remained the intent of the Legislature when it failed to include ERB and ERCOM in
section 3509.5 when it limited judicial review of PERB decisions. (See Little Co. of
Mary Hospital v. Superior Court (2008) 162 Cal.App.4th 261, 269-270 [effect of
omission of limiting language in new statute]; Hall v. Hall (1990) 222 Cal.App.3d 578,
587, fn. 2 [we “‘assume[] that the legislature, in enacting or amending a statute, knew of
existing laws, that it was familiar with the common-law rules and the acts of previous
legislatures, that it had knowledge of existing judicial decisions construing the same or
related statutes and enacted new statutes and amendments or reenacted statutes in the
light thereof, and that its intent was to maintain a consistent body of rules’”].) “Thus, the
27
legislative history supports our conclusion based on the plain language of the statutes.”
(Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1122.)
We conclude that section 3509.5 applies to decisions by PERB only, not to
decisions by ERB or ERCOM. Therefore the superior court had jurisdiction to review
ERCOM’s decision in this case.
B. ERCOM’s Decision Was Erroneous as a Matter of Law
1. Standard of Review
“Code of Civil Procedure section 1094.5 governs judicial review of a . . . decision
by an administrative agency if the law required a hearing, the taking of evidence, and the
discretionary determination of facts by the agency. (Id., subd. (a).) The petitioner must
show that the agency acted without or in excess of jurisdiction, did not afford a fair trial,
or prejudicially abused its discretion. (Id., subd. (b).) An abuse of discretion is shown if
the agency did not proceed in the manner required by law, the decision is not supported
by the findings, or the findings are not supported by the evidence. (Ibid.)” (Pedro v. City
of Los Angeles (2014) 229 Cal.App.4th 87, 98-99.)
Where, as here, a fundamental vested right is not involved, we review the
administrative agency’s decision, not the trial court’s decision. (Eskeland v. City of Del
Mar (2014) 224 Cal.App.4th 936, 941-942; accord, Ogundare v. Department of
Industrial Relations (2013) 214 Cal.App.4th 822, 828-829.) We apply the substantial
evidence standard, “‘resolving all conflicts in the evidence and drawing all inferences in
support of’” the agency’s findings. (Ogundare, supra, at p. 829.) However, “[w]ith
respect to questions of law, ‘we are not bound by any legal interpretation made by the
[administrative agency] or the trial court. Instead, we make an independent review of any
questions of law necessary to the resolution of this matter on appeal.’ [Citation.]”
(Eskeland, supra, at p. 942.)
28
2. ERCOM Erred in Basing Its Decision on When the Implementation
of the New Performance Evaluation System Occurred
ADDA contends that substantial evidence supports ERCOM’s decision that the
new performance evaluation system was not implemented until after ERCOM certified
ADDA. In support of its contention, ADDA reviews the factual chronology of the case
but cites no authority on the issue of when a change in working conditions is
implemented for the purpose of determining whether collective bargaining is required
under the MMBA. We conclude that the focus by ADDA—as well as ERCOM—on
whether the new performance evaluation system was “fully implemented” is misplaced.
The MMBA requires “‘an employer to negotiate with employees before
implementing decisions that are properly the subject of bargaining.’” (Department of
Personnel Administration v. Superior Court (1992) 5 Cal.App.4th 155, 188, quoting San
Joaquin County Employees Assn. v. City of Stockton (1984) 161 Cal.App.3d 813, 819.)
Implementation follows decision. The question is whether the proper subject of
collective bargaining is the decision or the implementation of the decision. We conclude
it is the decision.
Implementation is the carrying out or fulfillment of a decision already made. (See
Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 213 [corporation’s
dissolution plan gave officers the power “to do any and all acts and things necessary or
desirable, to carry out, perform, implement and consummate the [p]lan”]; Poliak v. Board
of Psychology (1997) 55 Cal.App.4th 342, 350, fn. 4 [proposed “decisions commence the
proceedings, and the necessary implementing steps, such as ordering the transcripts or
returning the case documents to the ALJ, are merely administrative acts to carry out those
commencing decisions”].) Cases from other jurisdictions have held that it is the decision,
or the impacts of the decision, that are the subject of collective bargaining. For example,
in Kitsap County v. Kitsap County Correctional Officers’ Guild (2014) 179 Wash.App.
987 [320 P.3d 70] the court stated that the issue was “whether the County had a
mandatory duty to bargain the decision to implement layoffs.” (Id. at p. 994.) In Three
Rivers Educ. Assn. v. Three Rivers School Dist. (2013) 254 Or.App. 570 [294 P.3d 547]
29
the court noted that the Employment Relations Board had explained that under the
applicable law, “‘[a]n employer must bargain about its decision to change a mandatory
subject for bargaining before making the decision. While the employer need not bargain
a decision to change a permissive subject, it is obligated to bargain about the impacts of
its decision before it implements the change. [Citations.]’” (Id. at p. 575.) Similarly, in
School Dist. of Indian River County v. Florida Public Employees Relations Com’n
(Fla.App. 2011) 64 So.3d 723 the court noted “that impact bargaining is not required if
the public employer is simply enforcing its existing laws, rules, and regulations rather
than implementing a new management decision. [Citation.] However, . . . ‘[a]lthough an
employer may act unilaterally on these issues, a public employer may not implement its
management decision in a manner that affects wages, hours, or terms and conditions of
employment without giving the union notice and an opportunity to bargain over the
impact of the decision.’ [Citation.]” (Id. at p. 729; accord, Board of Educ. of Region 16
v. State Bd. of Labor Relations (2010) 299 Conn. 63, 75, fn. 9 [7 A.3d 371]; Oak Hills
Educ. Assn. v. Oak Hills Local School Dist. Bd. of Educ. (2004) 158 Ohio App.3d 662,
664 [821 N.E.2d 616].)
Perhaps the closest case is L.W.D., Inc. v. N.L.R.B. (6th Cir. 2003) 76 Fed.Appx.
73,5 where the employer claimed “it was not required to bargain over the use of forced
ranking” because “it made the decision to switch to a forced ranking system prior to the
union election.” (Id. at p. 76.) The L.W.D. court noted that the “NLRA does not
explicitly state when the duty to bargain attaches. In Consolidated Printers, Inc. [(1992)]
305 NLRB 1061 . . . , the Board ruled that there was no duty to bargain over layoffs
where the decision to lay off employees had been made prior to the election. The Board
[National Labor Relations Board], adopting the opinion of the administrative law judge,
held as follows: [¶] The timing of a decision to lay off a particular group of employees
5 Cases interpreting the National Labor Relations Act (NLRA) provide guidance in
interpreting the MMBA. (County of Los Angeles v. Los Angeles County Employee
Relations Com., supra, 56 Cal.4th at p. 924.)
30
at a particular time is critical to determining if the employer was obligated to notify and
bargain about the decision or its effects. . . . The Board in Embossing Printers, 268
NLRB 710, 1984 WL 36015 (1984), dismissed a unilateral change 8(a)(5) allegation that
an employer had unilaterally canceled employees’ Christmas bonus after a union had
been certified as representative of employees. The Board decision turned on its finding
that the employer’s decision to cancel the Christmas bonus was made before it became
obligated to bargain with the union, i.e., before the Board-conducted election.” (L.W.D.,
Inc., supra, at p. 76.) The court in L.W.D. noted that the Board in Consolidated Printers,
Inc., following Embossing Printers, found that the employer “‘had determined well
before the election to work unit employees through the election irrespective of actual
work requirements and then to effect substantial and long term as opposed to short term
or shortened week layoffs to bring staffing levels in the bindery into conformity with
production needs . . . . On this record, given the close timing of the end of the balloting
and the announcements of the layoffs to the employees as well as the burden of proof the
General Counsel bears on each aspect of his prima facie case, it cannot be said that these
decisions were made at a time when [the employer] was obligated to bargain with the
Union. Accordingly, [the Board found] that the layoffs initiated the week of the election
were decided on by [the employer] before it was obligated to bargain with the Union
even though the employees were told of the layoffs and even though the layoffs did not
actually begin until after the election.’ ([Consolidated Printers, Inc., supra,] at
[p.] 1067.)” (L.W.D., Inc., supra, at p. 76.)
The court in L.W.D. noted that the Board cited “no case law that suggests that
Consolidated Printers and the case cited therein, Embossing Printers, are no longer valid.
Instead, the Board has relied on the facts, arguing that they were insufficient to show that
[the employer’s] decision to lay off employees by forced ranking took place prior to the
union election.” (L.W.D. v. N.L.R.B., supra, 76 Fed.Appx. at p. 76, fn. omitted.) The
L.W.D. court, however, found evidence supporting the conclusion that the decision was
made prior to the union election. (Id. at pp. 76-77.) The court concluded: “While we are
concerned about the short time span between the decision to institute the forced ranking
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system, the election and the implementation of the forced ranking system, we decline to
alter or distinguish the Board’s precedent when no party has asked us to do so. We
therefore hold that there was insufficient evidence in the record to support the Board’s
conclusion that the forced ranking system constituted an unlawful unilateral change in
employment conditions. Thus, there was no duty to bargain over the use of the forced
ranking system in the December 1997 and March 1998 layoffs.” (Ibid.)
In addition to this case law, PERB decisions involving the statute of limitations
support the conclusion that it is the decision, not its implementation, that is subject to
collective bargaining. In South Placer Fire Administrative Officers Association v. South
Placer Fire Protection District (2008) PERB Dec. No. 1944-M [2008 Cal. PERB LEXIS
6, pp. 5-6], addressing the statute of limitations for an unfair competition charge, PERB
stated: “In a unilateral change case, the statute of limitations begins to run on the date the
charging party has actual or constructive notice of the respondent’s intent to implement a
change in policy. [Citation.] Here, the Association argues that the statute of limitations
began running when it received notice of the District’s actual implementation of the
change. However, the Board has long rejected arguments that a unilateral change does
not occur until it is implemented. (Folsom-Cordova Unified School District (2004)
PERB Decision No. 1712; Clovis Unified School District (2002) PERB Decision No.
1504.) Thus, a charging party that rests on its rights until actual implementation of the
change bears the risk of running afoul of the statute of limitations.” (See SEIU Local 721
v. County of Riverside (2010) PERB Dec. No. 2132-M [2010 Cal. PERB LEXIS 51, pp.
11-12] [“‘[i]n a unilateral change case, the statute of limitations begins to run on the date
the charging party has actual or constructive notice of the respondent’s intent to
implement a change in policy’”].)
Here, the DAO indisputably made the decision to implement the new performance
evaluation system, and ADDA had actual or constructive notice of the DAO’s decision,
before ADDA was certified. It was at that time any duty to bargain over the decision or
the impacts of the decision attached. It was not, as the hearing officer concluded, during
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the implementation of the prior decision to replace the old paper evaluation form with a
new performance evaluation system.
ADDA makes an argument based on the premises that it did not have to file an
unfair labor practice charge until it had “clear and unequivocal notice of the violation,”
which ADDA apparently believes occurs sometime after the Board of Supervisors
approves the new performance evaluation system, and that the system violated the Civil
Service Rules.6 The “‘clear and unequivocal notice’ of the violation” language appears
in decisions addressing the issue of when the six-month limitation period for filing an
unfair labor charge with the NLRB begins to run. (See In re Vallow Floor Coverings,
Inc. (2001) 335 NLRB No. 7, p. 1.) These decisions state that the limitation period “does
not begin to run until the charging party has ‘knowledge of the facts necessary to support
a ripe unfair labor practice.’” (Alternative Services, Inc. and American Federation of
State, County and Municipal Employees, AFL-CIO (2005) 344 NLRB No. 99, p. 2.)
They are thus consistent with PERB decisions that “the statute of limitations begins to
run on the date the charging party has actual or constructive notice of the respondent’s
intent to implement a change in policy.” (South Placer Fire Administrative Officers
Association v. South Placer Fire Protection District, supra, PERB Dec. No. 1944-M
[2008 Cal. PERB LEXIS 6, pp. 5-6].)
Here, ADDA had knowledge of the facts giving rise to its unfair labor practices
charge no later than February 2007, when Spillane sent the memorandum to all DDAs
6 ADDA argues: “While the DAO did not have legal authority to change the
performance evaluation in the manner in which it did, it had the actual authority to
impose the changes on the bargaining members, by fiat, thereby giving ERCOM
jurisdiction over the premises. . . . The unfair labor practice charge was not ripe until the
DAO possessed legal authority for such change. The filing of an unfair labor practice
charge does not have to occur until the facts necessary to support a ripe [unfair labor
practice charge] are clear. . . . While, theoretically, [ADDA] could have waited until the
Board of Supervisors acted, the alternative was to file the unfair charge after demand for
bargaining was made and ignored by the DAO with regard to the implementation of the
new performance evaluation on April 1, 2008.”
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explaining the new performance evaluation system. Even if all the ramifications of the
new system were not clear, ADDA had “clear and unequivocal notice of the violation” no
later than June 21, 2007, when the ADDA board voted to oppose the new system. This
occurred before ADDA was certified as a bargaining unit and before any duty to bargain
had arisen.
It is true that “an interpretation put forth by an administrative agency charged with
enforcement, implementation and interpretation of enactments is entitled to great weight
[citation].” (Microsoft Corp. v. Franchise Tax Bd. (2012) 212 Cal.App.4th 78, 93; see
People v. Harrison (2013) 57 Cal.4th 1211, 1225 [“we ‘“must give great weight and
respect to an administrative agency’s interpretation of a statute governing its powers and
responsibilities”’”].) Ultimately, however, the interpretation of a statute or regulation is a
legal question for the court. (Harrison, supra, at p. 1225; see Overaa Const. v.
California Occupational Safety & Health Appeals Bd. (2007) 147 Cal.App.4th 235, 244.)
The issue of whether a management decision gives rise to a duty to engage in collective
bargaining at the time of the decision or the time of implementation is a legal question.
(See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 329 [whether action violated the
Fair Labor Standards Act was a legal issue]; Englund v. Chavez (1972) 8 Cal.3d 572, 583
[whether employer’s action violated the Labor Code was a legal issue].)
Under the MMBA and the ERO, the duty to bargain attaches at the time the
employer makes and announces a decision that affects wages, hours, and working
conditions, not at the time the employer fully implements that decision. ERCOM’s
decision that the County had a duty to bargain with ADDA over the new performance
evaluation system because the new system “had not been fully implemented at the time
the ADDA became certified and demanded to bargain” was erroneous as a matter of law.
ERCOM’s decision therefore constituted an abuse of discretion (Code Civ. Proc.,
34
§ 1094.5, subd. (b); Pedro v. City of Los Angeles, supra, 229 Cal.App.4th at pp. 98-99),
and the trial court properly set it aside.7
DISPOSITION
The judgment is affirmed. The County is to recover its costs on appeal.
SEGAL, J.*
We concur:
PERLUSS, P. J.
WOODS, J.
7 In light of our conclusion that the DAO did not have a duty to bargain with ADDA
over the new performance evaluation system, we need not discuss the balancing test set
forth in Claremont Police Officers Assn. v. City of Claremont, supra, 39 Cal.4th 623.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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