Supreme Court of California Justia
Citation 51 Cal. 4th 259, 245 P.3d 845, 120 Cal. Rptr. 3d 117

International Assn. of Fire Fighters v. Public Employment Relations Bd.; City of Richmond

Filed 1/24/11

IN THE SUPREME COURT OF CALIFORNIA

INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL 188, AFL-CIO, )

Plaintiff and Appellant,
S172377
v.
Ct.App. 1/3 A114959
PUBLIC EMPLOYMENT RELATIONS
BOARD,
Contra Costa County
Defendant and Respondent;
Super. Ct. No. N05-0232
CITY OF RICHMOND,
Real Party in Interest and
Respondent.
____________________________________)

Facing a budget crisis, the City of Richmond decided to lay off 18 of its
firefighter employees. The firefighters‟ union tried to negotiate with the city to
avert the layoffs, but the city refused to bargain over its layoff decision. The
union turned to the Public Employment Relations Board (PERB), the state agency
charged with enforcing state labor laws affecting local government employees.
PERB would not issue a complaint, however, because it concluded that the city‟s
refusal to bargain had not violated state law. The union then brought an action in
superior court, but that court agreed with PERB that no unfair labor practice had
occurred. On the union‟s appeal, the Court of Appeal affirmed the superior
court‟s judgment.

1


Here, we address two issues: (1) If, after receiving an unfair labor practice
charge, PERB decides not to issue a complaint, is that decision ever subject to
judicial review? (2) Is a city‟s decision to lay off firefighters for fiscal reasons a
matter that is subject to collective bargaining?
On the first question, we agree with the Court of Appeal that although
PERB‟s refusal to issue a complaint is generally not subject to judicial review, this
general rule has narrow exceptions. One of these exception applies when, as the
union alleges here, PERB‟s refusal is based on a clearly erroneous statutory
construction.
On the second question, we conclude, as did the Court of Appeal, that when
a city, faced with a budget deficit, decides that some firefighters must be laid off
as a cost-saving measure, the city is not required to meet and confer with the
firefighters‟ authorized employee representative before making that initial
decision. In this situation, the city‟s duty to bargain with the employee
representative extends only to the implementation and effects of the layoff
decision, including the number and identity of the employees to be laid off, and
the timing of the layoffs.
I
To reduce labor costs in response to a budget shortfall, the City of
Richmond in late 2003 decided to lay off 18 of its 90 firefighters, effective
December 31 of that year. The city sent layoff notices to the firefighters whose
positions were being eliminated. During November and December 2003, the city
on three occasions met with its firefighters‟ authorized representative,
International Association of Fire Fighters, Local 188, AFL-CIO, to discuss the
effects of the layoffs on the remaining firefighters. Local 188 sought to avert the
layoffs by arguing that other cost-saving measures were available that would make
the layoffs unnecessary, but the city rejected that argument.
2
In January 2004, Local 188 filed an unfair labor practice charge with
PERB, alleging that the city had violated California‟s Meyers-Milias-Brown Act
(Gov. Code, § 3500 et seq.; MMBA) by, among other things, failing to meet and
confer with it over the city‟s layoff decision. PERB‟s agent, Regional Attorney
Kristin L. Rosi, declined to issue a complaint, explaining her reasons in a “partial
warning letter” to Local 188. The letter stated that Local 188‟s unfair practice
allegations failed to state a prima facie case for relief because a decision to lay off
employees, including firefighters, is not subject to collective bargaining and
because, although the effects of a layoff decision are subject to bargaining, Local
188 had made no proposals concerning the effects of the city‟s decision to lay off
firefighters and the city had not declined to bargain concerning them.
Local 188 filed an amended unfair practice claim that focused on the
purported safety consequences of the layoffs, alleging that reducing the number of
city-employed firefighters meant that at any given time fewer fire engines and fire
trucks could be deployed for fire suppression work, and this in turn would increase
the risk of injury to the remaining firefighters. The union admitted that it had
made no specific proposals to the city regarding firefighter workload and safety
issues under the newly reduced staffing levels.
In April 2004, PERB Regional Attorney Rosi declined to issue a complaint
on behalf of Local 188 on the charge that the city had committed an unfair labor
practice by failing to meet and confer over the layoff decision or its effects. Local
188 filed an administrative appeal of that ruling.
A panel of three PERB board members issued a decision affirming
Regional Attorney Rosi‟s ruling. The PERB panel concluded that a city‟s decision
to lay off some of its employees is not subject to collective bargaining and that
Local 188, by repeatedly seeking to bargain over the layoff decision itself rather
than its effects, had waived its rights to bargain over those effects.
3
In January 2005, Local 188 petitioned the Court of Appeal for a writ of
mandate. The Court of Appeal denied the petition “ „without prejudice to its being
refiled in the Contra Costa County Superior Court.‟ ” Local 188 then filed a
petition for writ of mandate in superior court, challenging PERB‟s conclusion that
a city‟s decision to lay off firefighters is not subject to collective bargaining even
though the effect of the decision is to increase the dangers faced by the remaining
firefighters while engaged in fire suppression.
After receiving opposition from PERB, and from the city, and holding a
hearing, the superior court denied Local 188‟s mandate petition. The superior
court concluded that it had jurisdiction to review PERB‟s decision not to issue a
complaint on Local 188‟s unfair labor practice charge, but the court agreed with
PERB that a city‟s layoff decision is not within the scope of representation under
the MMBA. Local 188 appealed the superior court‟s judgment denying the
mandate petition.
The Court of Appeal affirmed the trial court‟s judgment denying Local
188‟s writ petition. Regarding the availability of judicial review of a PERB
decision not to issue an unfair labor practice complaint, the Court of Appeal
agreed with PERB and the city that such decisions generally are not subject to
judicial review. It also concluded, however, that this general rule is subject to
three narrow exceptions under which judicial review is available, by petitioning
the superior court for a writ of mandate, to determine whether PERB‟s decision
not to issue a complaint (1) violates a constitutional right, (2) exceeds a specific
grant of authority, or (3) is based on an erroneous statutory construction. In
reaching that conclusion, the Court of Appeal relied heavily on this court‟s
decision in Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d
551 (Belridge Farms). That decision construed the judicial review provisions of
4
the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975
(Lab. Code, § 1140 et seq.; ALRA).
Regarding whether a city‟s decision to lay off firefighters for fiscal reasons
is subject to collective bargaining, the Court of Appeal concluded that this issue
was subject to judicial review to determine whether PERB‟s decision not to issue
an unfair labor practice complaint was based on an erroneous statutory
construction. On the merits, the Court of Appeal concluded that PERB had not
erred in its construction of Government Code section 3504, the MMBA provision
defining the scope of a local public entity‟s duty to meet and confer with employee
representatives. In reaching that conclusion, the Court of Appeal resolved a
dispute between the parties regarding the meaning and effect of our decision in
Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 (Vallejo). The Court
of Appeal read Vallejo as establishing or reaffirming a rule that under the MMBA,
a “decision to lay off firefighters is not subject to negotiation,” although “the
effects of that decision, including the workload and safety of the remaining
employees, are properly the subject of collective bargaining.”
II
When an employee or employee representative complains to PERB that a
local government employer has refused to meet and confer over a mandatory
subject of bargaining, PERB processes the complaint as an unfair labor practice
charge. (Gov. Code, § 3509, subd. (b).) The charge is assigned for processing to a
“Board agent.” (Cal. Code Regs., tit. 8, § 32620, subd. (a).) If the agent
“concludes that the charge or the evidence is insufficient to establish a prima facie
case,” the agent refuses to issue a complaint, an action that constitutes a dismissal
of the charge. (Id., § 32630.) The complaining party may appeal such a dismissal
to PERB‟s five-member board. (Id., § 32635, subd. (a).)
5
The MMBA provides for judicial review of PERB decisions in subdivision
(a) of Government Code section 3509.5, which states: “Any charging party,
respondent, or intervenor aggrieved by a final decision or order of the board in an
unfair practice case, except a decision of the board not to issue a complaint in such
a case, . . . may petition for a writ of extraordinary relief from that decision or
order.”1 (Italics added.) Subdivision (b) of that section states that the “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 Court of Appeal here agreed with PERB and the city that the plain
language of section 3509.5 establishes that a PERB decision not to issue a
complaint is not reviewable under that statute. But the Court of Appeal did not
agree that the Legislature, through this provision, has precluded superior courts
from exercising traditional mandate jurisdiction to consider challenges to such
decisions.
The Court of Appeal observed that many other labor relations statutes,
including the federal National Labor Relations Act (29 U.S.C. § 151 et seq.;
NLRA) and the state ALRA, contain provisions that are similar to section 3509.5
in that they specify a procedural mechanism for judicial review of agency
decisions but exclude from the decisions reviewable in that manner a decision not
to issue an unfair labor practice complaint. Because both the MMBA and the
ALRA were patterned after the federal NLRA, California courts seeking guidance

1
All further statutory references are to the Government Code unless
otherwise indicated. PERB‟s jurisdiction under the MMBA covers labor relations
for most employees of cities and other local public agencies, but not peace
officers, management employees, the City of Los Angeles, or the County of Los
Angeles. (§§ 3509, subds. (d)-(f), 3511.)
6


for interpreting these state labor relations laws have consulted decisions
interpreting parallel provisions of the NLRA. (See Vallejo, supra, 12 Cal.3d 608,
616-617; City of El Cajon v. El Cajon Police Officers’ Assn. (1996) 49
Cal.App.4th 64, 72, fn. 3.)
In Belridge Farms, supra, 21 Cal.3d 551, this court, after considering
decisions under the federal NLRA, held that a refusal to issue a complaint under
the state ALRA is judicially reviewable only in limited circumstances. (Belridge
Farms, at p. 557.) Because the ALRA was derived from the NLRA and contains a
judicial review provision (Lab. Code, § 1160.8) that is, with one exception not
relevant here, “identical” (Belridge Farms, at p. 556) to the NLRA‟s judicial
review provision (29 U.S.C. § 160(f)), this court in Belridge Farms considered
federal court decisions under the NLRA. Federal courts have held that a refusal to
issue a complaint under the NLRA is generally not judicially reviewable, but also
that federal courts will exercise equitable powers to review such refusals “when
the complaining party raises a colorable claim that the decision violates [a]
constitutional right [citations] or exceeds a specific grant of authority [citation]” or
is “based on an erroneous construction of an applicable statute.” (Belridge Farms,
supra, at pp. 556-557; see Annot. (1984) 69 A.L.R.Fed. 870 [collecting NLRA
cases].) This court concluded that our state Legislature “intended to adopt the
federal rule limiting review” to these situations. (Belridge Farms, at p. 557.)
As PERB and the city strenuously insist, and as the Court of Appeal
acknowledged, the MMBA‟s judicial review provision uses language that differs
from the language in the judicial review provisions of the federal NLRA and the
state ALRA. Unlike the MMBA, neither the NLRA nor the ALRA expressly
excludes from its judicial review provision an agency decision not to issue a
complaint. Instead, those federal and state labor relations laws both limit the
judicial review provision to final decisions of the administrative agency‟s
7
governing board. (29 U.S.C. § 160(f); Lab. Code, § 1160.8.) Under those laws,
the agency‟s general counsel has authority to refuse to issue a complaint, and such
a refusal is not appealable to the agency‟s governing board. (29 U.S.C. § 153(d);
Lab. Code, § 1149.) Because a refusal to issue a complaint is never a final
decision of the governing board, it does not fall within the judicial review
provisions of the NLRA and the ALRA. (Belridge Farms, supra, 21 Cal.3d 551,
556-557; see Associated Builders, etc. v. Irving (4th Cir. 1979) 610 F.2d 1221,
1224-1226.)
We agree with the Court of Appeal, however, that the difference in wording
between, on the one hand, the judicial review provisions of the federal NLRA and
the state ALRA and, on the other hand, the judicial review provision of
California‟s MMBA, is not significant on the issue we consider here. The
MMBA‟s judicial review provision is worded differently because under the
MMBA the governing board, and not the agency‟s general counsel, has final
agency authority to decide whether to issue an unfair labor practice complaint.
(Cal. Code Regs., tit. 8, § 32635.) Had the Legislature made the MMBA‟s judicial
review provision similar in language to the judicial review provisions of the
federal NLRA and the state ALRA by permitting judicial review of any final
decision of the board, therefore, all board decisions refusing to issue complaints
would have been subject to full judicial review. To ensure that a decision by
PERB under the MMBA refusing to issue a complaint, like similar decisions under
the NLRA and the ALRA, would not routinely be subjected to full judicial review,
the state Legislature needed to use language making that intent clear, as it did in
section 3509.5, subdivision (a). That provision does not, however, expressly bar
superior courts from exercising their traditional mandate jurisdiction to determine
whether PERB‟s refusal to issue a complaint is invalid on one or more of the
narrow grounds under which similar decisions may be challenged under the
8
NLRA and the ALRA, as recognized by this court in Belridge Farms, supra, 21
Cal.3d 551, 556-557.
Limiting judicial review of an agency decision not to issue an unfair labor
practice to the three grounds articulated in Belridge Farms, supra, 21 Cal.3d 551,
strikes an appropriate balance between the Legislature‟s interest in giving such
agencies broad discretionary authority and the courts‟ obligation to discharge their
constitutional powers and responsibilities. The first of these grounds — that the
agency decision violates a constitutional right — merely respects and protects the
state Constitution‟s hierarchical authority over statutory law, while the second
ground — that the agency has exceeded its statutory powers — is necessary to
ensure that administrative agencies do not purport to exercise powers beyond
those actually delegated to them by the Legislature. The third ground — that the
agency action is based on an erroneous statutory construction — allows courts to
correct a clearly erroneous construction of the MMBA by PERB when that
erroneous construction potentially affects a large class of cases and threatens to
frustrate an important policy that the MMBA was enacted to further. Judicial
review under this ground furthers the Legislature‟s purpose in creating the agency
and defining the scope of its authority.
As both this court and the United States Supreme Court have explained,
eliminating all forms of judicial review of an administrative agency‟s decisions
could raise serious constitutional issues. In particular, when a federal
administrative action is challenged on the ground that it violates a constitutional
right, “the availability of judicial review is presumed,” and statutory provisions
will not be construed as foreclosing such review “unless Congress‟ intent to do so
is manifested by „ “clear and convincing” ‟ evidence.” (Califano v. Sanders
(1977) 430 U.S. 99, 109; see also INS v. St. Cyr (2001) 533 U.S. 289, 298 [“strong
presumption in favor of judicial review of administrative action”]; Bowen v. Mich.
9
Academy of Family Physicians (1986) 476 U.S. 667, 670 [“strong presumption
that Congress intends judicial review of administrative action”].) A similar
presumption operates when it is claimed that a federal administrative agency‟s
action is in excess of its delegated powers and contrary to a specific statutory
prohibition. (Leedom v. Kyne (1958) 358 U.S. 184, 188; see also Staacke v. U.S.
Secretary of Labor (9th Cir. 1988) 841 F.2d 278, 281.)
The California Constitution gives rise to a presumption in favor of at least
limited judicial review of state administrative agency actions. It does so through
section 10 of article VI, which, as relevant here, gives superior courts “original
jurisdiction in proceedings for extraordinary relief in the nature of mandamus,
certiorari, and prohibition.” Traditional mandamus review is available “to compel
the performance of an act which the law specially enjoins, as a duty resulting from
an office, trust, or station.” (Code Civ. Proc., § 1085, subd. (a).) Recognizing that
“[t]he power of superior courts to perform mandamus review of administrative
decisions derives in part” from this constitutional provision, this court has said that
“ „[t]he jurisdiction thus vested may not lightly be deemed to have been
destroyed.‟ ” (County of San Diego v. State of California (1997) 15 Cal.4th 68,
87; see also In re Jessup (1889) 81 Cal. 408, 470 [the Legislature may not
“ „substantially impair the constitutional powers of the courts, or practically defeat
their exercise‟ ” (italics omitted)].) This court will not infer a legislative intent to
entirely deprive the superior courts of judicial authority in a particular area; the
Legislature must have expressly so provided or otherwise clearly indicated such an
intent. (Garrison v. Rourke (1948) 32 Cal.2d 430, 435-436; accord, County of San
Diego v. State of California, supra, at p. 87.)
In section 3509.5, the Legislature has not expressly provided or otherwise
clearly indicated that under California‟s MMBA superior courts are prohibited in
all circumstances from exercising traditional mandamus jurisdiction to review a
10
PERB decision refusing to issue a complaint. In particular, the Legislature has not
explicitly barred superior court traditional mandamus review in the limited
circumstances in which such review is available for similar agency decisions
under the federal NLRA and the state ALRA. Accordingly, we agree with the
Court of Appeal here that when PERB refuses to issue a complaint under the
MMBA, a superior court may exercise mandamus jurisdiction to determine
whether PERB‟s decision violates a constitutional right, exceeds a specific grant
of authority, or is based on an erroneous statutory construction. We stress,
however, that it remains true that a refusal by PERB to issue a complaint under the
MMBA is not subject to judicial review for ordinary error, including insufficiency
of the evidence to support the agency‟s factual findings and misapplication of the
law to the facts, or for abuse of discretion. Also, to avoid undue interference with
the discretion that the Legislature has intended PERB to exercise, courts must
narrowly construe and cautiously apply the exceptions we here recognize. (See
Thomas S. Castle Farms, Inc. v. Agricultural Labor Relations Bd. (1983) 140
Cal.App.3d 668, 675 [narrow construction of exceptions to judicial review
limitation under the state ALRA]; Cadiz v. Agricultural Labor Relations Bd.
(1979) 92 Cal.App.3d 365, 381-383 [same]; Nishikawa Farms, Inc. v. Mahony
(1977) 66 Cal.App.3d 781, 789-790 [same]; Baker v. Intern. Alliance of Theatrical
Stage Emp. (9th Cir. 1982) 691 F.2d 1291, 1294-1297 [narrow construction of
exceptions to judicial review limitation under the federal NLRA].)
III
We now consider whether layoffs are a mandatory subject of collective
bargaining under California‟s MMBA. Under that law, “[t]he duty to meet and
confer in good faith is limited to matters within the „scope of representation‟: the
public employer and recognized employee organization have a „mutual obligation
personally to meet and confer promptly upon request by either party . . . and to
11
endeavor to reach agreement on matters within the scope of representation prior to
the adoption by the public agency of its final budget for the ensuing year.‟ ”
(Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 630
(Claremont Police), quoting § 3505.) The obligation to bargain “in good faith”
means that the parties must genuinely seek to reach agreement, but the MMBA
does not require that an agreement actually result in every instance, and it
recognizes that a public employer has the ultimate power to reject employee
proposals on any particular issue. (Claremont Police, at p. 630.)
Under the MMBA, the scope of representation covers “all matters relating
to employment conditions and employer-employee relations, including, but not
limited to, wages, hours, and other terms and conditions of employment, except,
however, that the scope of representation shall not include consideration of the
merits, necessity, or organization of any service or activity provided by law or
executive order.” (§ 3504.) This court has remarked that this definition of the
scope of representation employs “two vague, seemingly overlapping phrases.”
(Vallejo, supra, 12 Cal.3d 608, 615; accord, Claremont Police, supra, 39 Cal.4th
623, 631.) The first phrase — “wages, hours, and other terms and conditions of
employment” — if broadly read “could encompass practically any conceivable
bargaining proposal,” while the second phrase — “merits, necessity, or
organization of any service” — could, if expansively interpreted, “swallow the
whole provision for collective negotiation and relegate determination of all labor
issues to the city‟s discretion.” (Vallejo, supra, at p. 615.)
To resolve ambiguities and uncertainties inherent in the MMBA‟s
definition of the scope of representation, this court has looked to federal
precedents. This court has noted that the first key phrase in the MMBA‟s
definition of the scope of representation — “wages, hours, and other terms and
conditions of employment” (§ 3504) — was copied verbatim from the federal
12
NLRA (see 29 U.S.C. § 158(d)), while the other key phrase — “merits, necessity,
or organization of any service” (§ 3504) — was intended to incorporate the
“ „general managerial policy‟ ” exception developed by federal courts to determine
the scope of representation under the NLRA. (Building Material & Construction
Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 658, 663 (Building Material);
Vallejo, supra, 12 Cal.3d 608, 616-617.)
In relation to mandatory subjects of bargaining under the federal NLRA,
the United States Supreme Court has identified three categories of management
decisions. (First National Maintenance Corp. v. NLRB (1981) 452 U.S. 666, 676-
680.) In the first category are decisions that “have only an indirect and attenuated
impact on the employment relationship” and thus are not mandatory subjects of
bargaining. (Id. at p. 677.) Examples of decisions in this category are “choice of
advertising and promotion, product type and design, and financing arrangements.”
(Id. at pp. 676-677.)
In the second category are decisions directly defining the employment
relationship, such as wages, workplace rules, and the order of succession of
layoffs and recalls. Decisions in this second category are always mandatory
subjects of bargaining. (First National Maintenance Corp. v. NLRB, supra, 452
U.S. 666, 677.)
In the third category are management decisions that directly affect
employment, such as eliminating jobs, but nonetheless may not be mandatory
subjects of bargaining because they involve “a change in the scope and direction
of the enterprise” or, in other words, the employer‟s “retained freedom to manage
its affairs unrelated to employment.” (First National Maintenance Corp. v. NLRB,
supra, 452 U.S. 666, 677, fn. omitted.) Bargaining is not required for decisions in
this category if they do not raise an issue that is “amenable to resolution through
the bargaining process” (id. at p. 678), although the employer is normally required
13
to bargain about the results or effects of such decisions (id. at p. 677, fn. 15). To
determine whether a particular decision in this third category is within the scope of
representation, the high court prescribed a balancing test, under which “in view of
an employer‟s need for unencumbered decisionmaking, bargaining over
management decisions that have a substantial impact on the continued availability
of employment should be required only if the benefit, for labor-management
relations and the collective-bargaining process, outweighs the burden placed on
the conduct of the business.” (Id. at p. 679.)
Applying this balancing test to layoff decisions, federal courts have held
that bargaining is required when the layoffs result from an employer‟s decision to
reassign bargaining unit work to independent contractors or to managers. (First
National Maintenance Corp. v. NLRB, supra, 452 U.S. 666, 679-680; Regal
Cinemas, Inc. v. N.L.R.B (D.C. Cir. 2003) 317 F.3d 300, 310-312.) On the other
hand, federal courts do not require bargaining when layoffs result from
profitability considerations that are independent of labor costs (First National
Maintenance Corp. v. NLRB, at pp. 682-686), or from a management decision to
shut down all or part of a business (N.L.R.B. v. 1199, Nat. U. of Hosp. & Health
Care Emp. (4th Cir. 1987) 824 F.2d 318, 321-322). When layoffs are motivated
primarily by a desire to reduce labor cost, but are not the result of a decision to
change the nature or scope of the enterprise, and do not involve reassigning
bargaining unit work to non-bargaining-unit workers, federal courts require
bargaining over the timing of the layoffs and the number and identity of the
affected employees, but not necessarily over the layoff decision itself. (See Pan
American Grain Co., Inc. v. N.L.R.B. (1st Cir. 2009) 558 F.3d 22, 27 [employees
must be given the “opportunity to negotiate concessions that reduce overall costs
and thus spare jobs”]; N.L.R.B. v. 1199, Nat. U. of Hosp. & Health Care Emp.,
supra, at p. 321 [stating that “a reduction of labor costs must be pursued through
14
the collective bargaining process”].) The United States Supreme Court has said
that a conflict resulting from an employer‟s desire to reduce labor costs is
“peculiarly suitable for resolution within the collective bargaining framework”
under the NLRA. (Fibreboard Corp. v. Labor Board (1964) 379 U.S. 203, 214.)
These federal decisions interpreting the federal NLRA have generally been
followed by California courts construing California‟s MMBA. (See Vallejo,
supra, 12 Cal.3d 608, 616-617.) Under the MMBA, the scope of a public
employer‟s duty to bargain in regard to a layoff decision is generally determined
by application of a balancing test that requires a local public entity employer to
meet and confer “only if the employer‟s need for unencumbered decisionmaking
in managing its operations is outweighed by the benefit to employer-employee
relations of bargaining about the action in question.” (Building Material, supra,
41 Cal.3d 651, 660.) Applying that test, California courts have determined that,
under California‟s MMBA as under the federal NLRA, an employer‟s decision to
eliminate bargaining unit jobs by reassigning the work to nonunit employees is a
matter within the scope of representation and thus a mandatory subject of
bargaining. (Building Material, supra, at p. 668; Rialto Police Benefit Assn. v.
City of Rialto (2007) 155 Cal.App.4th 1295, 1309.)
Here, the parties disagree generally about the proper result under the
MMBA when the balancing test is applied to a layoff decision that does not
involve transferring work outside the bargaining unit but is primarily motivated by
a desire or need to reduce labor costs. More particularly, they disagree as to the
significance of this court‟s decision in Vallejo, supra, 12 Cal.3d 608.
Accordingly, we examine Vallejo in some detail.
In Vallejo, a city negotiated with the union representing its firefighter
employees over the terms of a new contract, but the parties failed to agree on 28
issues. (Vallejo, supra, 12 Cal.3d 608, 611.) The city regarded four of those
15
issues as being outside the scope of representation, and on that basis it refused to
submit them to binding arbitration, while agreeing to arbitrate the other 24 issues.2
(Vallejo, at p. 611.) Among the four disputed issues was one labeled “Constant
Manning Procedure” and another labeled “Personnel Reduction.” (Ibid.)
The “Constant Manning Procedure” issue arose from a union proposal “to
add one engine company and to increase the personnel assigned to the existing
engine companies.” (Vallejo, supra, 12 Cal.3d 608, 618.) The union abandoned
that position, however, and asked only for continuation of the existing “manning
schedule.” (Id. at p. 619.) The city contended, however, that the decision whether
to continue the existing “manpower level in the fire department” was outside the
scope of representation. (Ibid.)
The “Personnel Reduction” issue arose from a union proposal that would
have required the city to bargain “with respect to any decision to reduce the
number of fire fighters.” (Vallejo, supra, 12 Cal.3d at p. 621.) The city contended
that “a decision to reduce personnel” was “not negotiable because it involve[d] the
merits, necessity or organization of the fire fighting service.” (Ibid.)
After the city refused to submit the four disputed issues to binding
arbitration under the terms of the city charter, the union petitioned the superior
court for a writ of mandate to compel the city to arbitrate those issues.3 (Vallejo,
supra, 12 Cal.3d 608, 611-612.) Agreeing with the union that the four disputed

2
The MMBA does not require the use of binding arbitration; it was required
in Vallejo only because the city‟s charter so provided. (Vallejo, supra, 12 Cal.3d
608, 613.)
3
The union initially sought relief from the superior court, rather than from
PERB, because the labor dispute at issue in Vallejo arose many years before PERB
acquired jurisdiction in MMBA matters, which occurred in 2001. (See § 3509,
added by Stats. 2000, ch. 901, § 8, pp. 6607-6608, operative July 1, 2001.)
16


matters were within the scope of representation, the superior court granted a
peremptory writ of mandate, and the city appealed. (Ibid.)
In Vallejo, this court agreed with the city that insofar as the “Constant
Manning Procedure” proposal was “directed to the question of maintaining a
particular standard of fire prevention within the community,” it was a matter
“solely within the province of management” and thus not a mandatory subject of
bargaining. (Vallejo, supra, 12 Cal.3d at p. 619.) But this court agreed with the
union that insofar as the proposal was related to “questions of employee workload
and safety,” it was within the scope of representation. (Ibid.) In particular, this
court found at least potential merit in the union‟s argument that “the number of
persons manning the fire truck or comprising the engine company fixes and
determines the amount of work each fire fighter must perform” while “the number
of persons available to fight the fire directly affects the safety of each fire fighter.”
(Ibid., original italics.) Having found potential merit in the positions of both the
city and the union, this court affirmed the superior court‟s judgment requiring the
city to arbitrate. During arbitration, the parties would be able to develop a factual
record from which the arbitrator could determine “whether the manpower issue
primarily involves the workload and safety of the men („wages, hours and working
conditions‟) or the policy of fire prevention of the city („merits, necessity or
organization of any governmental service‟),” and thus whether it was within the
scope of representation. (Id. at pp. 620-621.)
Regarding the “Personnel Reduction” issue, this court in Vallejo similarly
found some merit in each party‟s position. The city was correct that “[a] reduction
of the entire fire fighting force based on the city‟s decision that as a matter of
policy of fire prevention the force was too large” would not be within the scope of
representation. (Vallejo, supra, 12 Cal.3d at p. 621.) The city‟s position was
supported by federal decisions under the NLRA that “indicate that an employer
17
has the right unilaterally to decide that a layoff is necessary.” (Vallejo, at p. 621.)
The same federal decisions also recognized, however, that an employer “must
bargain about such matters as the timing of layoffs and the number and identity of
the employees affected.” (Ibid., italics omitted.)
Here, PERB argues that under this court‟s decision in Vallejo, supra, 12
Cal.3d 608, “an employer does not have an obligation to negotiate the decision to
lay off employees, but it must bargain any negotiable effects of the layoff
decision.” Local 188 argues, on the other hand, that under Vallejo a public
employer must negotiate over a decision to lay off firefighters if the layoffs will
affect the workload and safety of the remaining firefighters. The source of the
disagreement is Vallejo‟s statement that “[t]o the extent . . . that the decision to lay
off some employees affects the workload and safety of the remaining workers, it is
subject to bargaining . . . for the same reasons indicated in the prior discussion of
the manning proposal.” (Id. at p. 622, italics added.) Local 188 insists that the
italicized word “it” refers to the layoff decision, whereas PERB and the city argue
that it refers merely to the effects of that decision on the workload and safety of
the remaining employees.
We agree with PERB and the city. Viewed strictly as a matter of grammar,
without considering the rest of the opinion, Local 188‟s interpretation of the
disputed sentence in Vallejo, supra, 12 Cal.3d 608, 622, appears plausible. But
when the sentence is viewed in the context of the entire opinion, Local 188‟s
interpretation is not supportable. After stressing that the MMBA generally is to be
construed in harmony with federal decisions interpreting the NLRA, Vallejo cited
a federal decision for the proposition that “under the NLRA . . . an employer has
the right unilaterally to decide that a layoff is necessary, although it must bargain
about such matters as the timing of layoffs and the number and identity of the
employees affected.” (Vallejo, supra, at p. 621, italics omitted, citing N.L.R.B. v.
18
United Nuclear Corporation (10th Cir. 1967) 381 F.2d 972.) Thus, the rule
adopted in Vallejo is that under the MMBA a local public entity may unilaterally
decide that financial necessity requires some employee layoffs, although the entity
must bargain over the implementation of that decision and its effects on the
remaining employees.
This interpretation of Vallejo, supra, 12 Cal.3d 608, has since been
consistently recognized. We have stated, for example, that, under California‟s
MMBA, “though an employer has the right unilaterally to decide that a layoff is
necessary, he must bargain about such matters as the timing of the layoffs and the
number and identity of employees affected.” (Los Angeles County Civil Service
Com. v. Superior Court (1978) 23 Cal.3d 55, 64.) And a Court of Appeal cited
and quoted extensively from Vallejo in support of its conclusion that a state
agency could unilaterally decide to make some staffing reductions by means of
employee layoffs, so long as it provided an opportunity for bargaining over the
implementation of that decision. (State Assn. of Real Property Agents v. State
Personnel Bd. (1978) 83 Cal.App.3d 206, 211-213.) This court then cited that
Court of Appeal‟s decision approvingly for the same proposition. (Building
Material, supra, 41 Cal.3d 651, 663.)
We now reaffirm this rule. Under the MMBA, a local public entity that is
faced with a decline in revenues or other financial adversity may unilaterally
decide to lay off some of its employees to reduce its labor costs. In this situation,
a public employer must, however, give its employees an opportunity to bargain
over the implementation of the decision, including the number of employees to be
laid off, and the timing of the layoffs, as well as the effects of the layoffs on the
workload and safety of the remaining employees. Here, Local 188 has not shown
that PERB‟s refusal to issue a complaint was based on a misunderstanding of this
rule, and thus it has not shown that it was based on an erroneous construction of
19
the MMBA. Consequently, as the Court of Appeal concluded, the superior court
properly denied Local 188‟s petition for writ of mandate.
The Court of Appeal‟s judgment is affirmed.
KENNARD, ACTING C. J.
WE CONCUR:

WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
GEORGE, J.*

*
Retired Chief Justice of California, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
20



CONCURRING & DISSENTING OPINION BY BAXTER, J.
The substantive issue in this case is whether the City of Richmond‟s
decision to lay off 18 of its firefighters for fiscal reasons in 2003 is a matter
subject to collective bargaining under the Meyers-Milias-Brown Act. (Gov. Code,
§ 3500 et seq. (MMBA).)1 The trial court and Court of Appeal concluded it is not.
The majority likewise concludes it is not and affirms the judgment. I fully concur
in that holding. In finding the city was not obligated to bargain with the
International Association of Fire Fighters, Local 188, AFL-CIO (Local 188) over
the layoff decision itself, as opposed to meeting and conferring over the effects or
impact of the layoffs, we merely reaffirm the holding to that effect reached by this
court 36 years ago in Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608
(Vallejo). Vallejo made clear that although a public employer must bargain with
its employees about the timing of layoffs and the number and identity of the
employees affected, it need not bargain over the layoff decision itself. (Vallejo, at
p. 621; maj. opn., ante, at pp. 18-19.) As the majority observes, “[t]his
interpretation of Vallejo, supra, 12 Cal.3d 608, has since been consistently
recognized.” (Maj. opn., ante, at p. 19.)

1
All further statutory references are to the Government Code unless
otherwise indicated.
1


The majority also reaches and decides an important procedural issue of first
impression under the MMBA: Is a decision of the Public Employment Relations
Board (PERB) not to issue a complaint on an aggrieved party‟s unfair labor
practice charge, although unreviewable by extraordinary writ in the Courts of
Appeal (see § 3509.5, subd. (a)),2 nevertheless subject to equitable judicial review
under the superior courts‟ traditional mandamus jurisdiction? Invoking this
court‟s holding in Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21
Cal.3d 551 (Belridge Farms), the majority concludes that it is. I respectfully
dissent from that conclusion. The majority misconstrues the nature and scope of
the holding in Belridge Farms as well as the authorities relied on therein. Under
the majority‟s holding, PERB‟s routine exercise of discretion in determining
which matters coming before it warrant the issuance of a complaint, and which do
not, could be unduly impacted.
In Belridge Farms, this court construed the judicial review provisions of the
Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975
(Lab. Code, § 1140 et seq.) (ALRA). We looked to relevant federal court
decisions construing the National Labor Relations Act (29 U.S.C. § 151 et seq.
(NLRA)) because it contains a judicial review provision “substantially identical”
(Belridge Farms, supra, 21 Cal.3d at p. 556) to the judicial review provision found

2
The MMBA expressly provides for judicial review of PERB decisions in
subdivision (a) of section 3509.5, which states: “Any charging party, respondent,
or intervenor aggrieved by a final decision or order of the board in an unfair
practice case, except a decision of the board not to issue a complaint in such a
case
, . . . may petition for a writ of extraordinary relief from that decision or
order.” (Italics added.) Subdivision (b) of section 3509.5 in turn provides that
such a petition for a writ of extraordinary relief shall be filed in the Court of
Appeal. The parties, the Court of Appeal below, and the majority all agree that
under the plain language of section 3509.5, PERB‟s decision not to issue a
complaint is not reviewable under that statute.
2


in the state ALRA. Acknowledging that those federal decisions establish that a
refusal to issue a complaint under the NLRA is generally not judicially
reviewable, we nonetheless went on to observe that “federal courts have exercised
their equitable powers to review such determinations when the complaining party
raises a colorable claim that the decision violates [a] constitutional right [citations]
or exceeds a specific grant of authority [citations].” (Belridge Farms, at pp. 556-
557.) We then added, “Refusal to issue a complaint based on an erroneous
construction of an applicable statute also has been held reviewable under the
court‟s general equitable power. (Southern California Dist. Coun. of Lab., Loc.
1184 v. Ordman (C.D. Cal. 1970) 318 F.Supp. 633.)” (Belridge Farms, at p. 557.)
There is no allegation here that PERB‟s refusal to issue a complaint on
behalf of Local 188 under the MMBA violated the constitutional rights of union
members or exceeded a specific grant of authority under which the agency
operates. Rather, the majority concludes it is the third prong of the Belridge
Farms test that should be applied here. The majority reasons that “although
PERB‟s refusal to issue a complaint is generally not subject to judicial review, this
general rule has narrow exceptions. One of these exception[s] applies when, as
the union alleges here, PERB‟s refusal is based on a clearly erroneous statutory
construction.” (Maj. opn., ante, at p. 2.) The majority reasons further that
applying the third prong of the Belridge Farms test to the particular facts before us
will “allow[] courts to correct a clearly erroneous construction of the MMBA by
PERB when that erroneous construction potentially affects a large class of cases
and threatens to frustrate an important policy that the MMBA was enacted to
further.” (Maj. opn., ante, at p. 9.)
The majority‟s reading of the third prong of the Belridge Farms test is far
broader than the exception actually described and invoked by this court in that
case. After setting forth the three categories of exceptions to the general rule of no
3
judicial review recognized by federal courts in construing the NLRA, the Belridge
Farms court stated, “As pointed out above, the [ALRA] general counsel‟s
interpretation of statutes is reviewable.” (Belridge Farms, supra, 21 Cal.3d at
p. 559.) The phrase “[a]s pointed out above” (ibid.) is a clear reference back to the
third exception described at page 557 of the Belridge Farms decision. The court
in the very next sentence then explained, “In California mandamus is available to
compel an official to exercise his discretion when his refusal is based on an
erroneous view of the power vested in him. [Citation].” (Belridge Farms, at
p. 559). Thus, the reference in Belridge Farms to the third exception under federal
NLRA cases for “an erroneous construction of an applicable statute,” found at
page 557 of that decision, must be read together with this court‟s further
invocation of the California common law rule allowing for mandamus writ review
of an agency official‟s refusal to exercise statutory discretion “based on an
erroneous view of the power vested in him [citation],” found at page 559 of the
decision. Properly read and understood in its full context, the decision in Belridge
Farms leads to but one conclusion. The third exception described and invoked in
that case was intended to be limited to situations where an agency official refuses
to exercise discretion “based on an erroneous view of the [statutory] power vested
in him [citation].” (Belridge Farms, at p. 559.)
This narrow reading of the third exception invoked in Belridge Farms is the
only one supported by the holding of the single federal court NLRA decision
relied on by this court in Belridge Farms in support of that exception: Southern
California Dist. Coun. of Lab., Loc. 1184 v. Ordman (C.D. Cal. 1970) 318 F.Supp.
633 (Local 1184).
In Local 1184, “the Regional Director of the [NLRB] dismissed plaintiffs‟
[unfair labor practice] charges on the ground that they had not been filed and
served within six months of the signing of the [collective bargaining] agreement
4
and were, therefore, barred by Section 10(b) of the Act, 29 U.S.C. § 160(b). That
section provides that „. . . no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such charge
is made . . . .‟ The Regional Director‟s dismissal of plaintiffs‟ charges was
sustained by defendant [NLRB].” (Local 1184, supra, 318 F.Supp. at p. 634.)
The plaintiffs then successfully brought an “action for a declaration that in the
case of an agreement between an employer and a union, the six month period of
§ 10(b) does not commence until there are employees subject to said agreement
. . . .” (Ibid.)
In other words, the Regional Director of the NLRB in Local 1184 had
erroneously construed section 10(b) of the NLRA as precluding his discretion to
issue the complaint. In that narrow context, an exception to the general rule of no
judicial review of refusals to issue complaints was available under the federal
NLRA cases, permitting the federal district court, under that court‟s general
equitable powers, to review the NLRB‟s refusal to exercise discretion to issue the
complaint based on its erroneous view that it had no power to do so under section
10(b).
The federal district court in Local 1184 acknowledged that, under the
general rule, it had “ „no power to order the General Counsel to issue a
complaint . . .‟ [citation]” (Local 1184, supra, 318 F.Supp. at p. 636), and further
acknowledged “[i]t is well established that the General Counsel has broad
discretion in deciding whether a complaint should issue. [Citation.]” (Ibid.) The
court took pains to describe the matter before it as one involving “peculiar facts,”
making it “an extreme case which compels limited judicial action.” (Ibid.) The
court ultimately determined it would “not direct the defendant [NLRB] to issue a
complaint based on plaintiffs‟ charges nor will the Court review the defendant‟s
5
day-to-day exercise of discretion with respect to determinations delegated to the
latter's expertise.” (Local 1184, at p. 636.) The court added, “If, after considering
the merits of plaintiffs’ charges, defendant concludes that no complaint should
issue, no judicial review of defendant‟s determination may be had. See 29 U.S.C.
§ 159(d).” (Local 1184, at p. 636, italics added.) This final comment reflects the
court‟s view that it was the agency‟s erroneous construction of the statute and its
refusal to exercise discretion or even consider the merits of plaintiffs‟ claims as a
result of that erroneous construction that warranted judicial review of the agency‟s
interpretation of the statute. The comment further makes clear that once the
statutory interpretation issue was settled, the court would not second guess any
subsequent exercise of discretion by the NLRB as to whether to issue or not issue
a complaint in the matter. (Local 1184, at p. 636.)
To summarize, Belridge Farms‟s characterization of the third exception to
the general rule of no judicial review of agency refusals to issue complaints under
analogous federal court NLRA decisions establishes only that the exception was
intended by this court to apply in ALRA cases in those limited situations where an
agency official has refused to exercise discretion to issue a complaint based on an
erroneous interpretation of an applicable statute, leading the official to conclude he
or she has no discretion or power to act. (Belridge Farms, supra, 21 Cal.3d 551.)
The facts of this case are entirely inapposite. Here, PERB did not refuse to
issue the complaint sought by Local 188 based on an erroneous interpretation of
an applicable statute leading the board to conclude it had no discretion or power to
act. Rather, PERB correctly interpreted long-standing settled case law
establishing that, although a public employer must meet and confer with its
employees about the effects of employee layoffs, it need not bargain over the
layoff decision itself. (E.g., Vallejo, supra, 12 Cal.3d at pp. 614, 621.) PERB
further properly exercised discretion pursuant to its statutory authority in refusing
6
to issue the complaint. Section 3541.3, concerning the powers and duties of the
board under the MMBA, provides that, “The board shall have all of the following
powers and duties: [¶] . . . [¶] (b) To determine in disputed cases whether a
particular item is within or without the scope of representation.” (§3541.3,
subd. (b).) The substantive question here is whether bargaining over the layoff
decision itself is or is not within the scope of representation. The law could not be
more clear. It is not.
Furthermore, in exercising its statutory discretion not to issue a complaint,
PERB took into consideration both the facts and legal merits of Local 188‟s unfair
labor practice charge against the city. PERB‟s agent, Regional Attorney Kristin L.
Rosi, informed Local 188 in writing why the board had declined to issue a
complaint in response to the union‟s original unfair practice claim. “The letter
stated that Local 188‟s unfair practice allegations failed to state a prima facie case
for relief because a decision to lay off employees, including firefighters, is not
subject to collective bargaining and because, although the effects of a layoff
decision are subject to bargaining, Local 188 had made no proposals concerning
the effects of the city‟s decision to lay off firefighters and the city had not declined
to bargain concerning them.” (Maj. opn., ante, at p. 3.) As noted above, in Local
1184, supra, 318 F.Supp. 633, the sole federal decision relied on in Belridge
Farms for invoking the third exception, the NLRB had failed to even consider the
merits of the aggrieved plaintiffs‟ unfair labor practice charge before erroneously
concluding it had no discretion under the statute in question to issue a complaint.
(Local 1184, at p. 636.)
The majority suggests the role of the courts in resolving this procedural
issue of first impression is to “strike[] an appropriate balance between the
Legislature‟s interest in giving [an agency like PERB] broad discretionary
authority and the courts‟ obligation to discharge their constitutional powers and
7
responsibilities.” (Maj. opn., ante, at p. 9.) I fail to see how the majority‟s
holding on this issue strikes an appropriate balance. At oral argument in this
matter, counsel for PERB represented to this court that a major component, if not
the majority, of its workload involves making determinations as to whether to
issue or not issue complaints on allegations of unfair labor practices under the
MMBA. Under the majority‟s broadly worded holding, an aggrieved party need
only allege that PERB‟s refusal to issue a complaint was based on “an erroneous
statutory construction” (maj. opn., ante, at p. 11) of any of the MMBA‟s
provisions in order to secure equitable judicial writ review in the superior court of
a PERB decision not to issue a complaint. The majority concludes this rule of
equitable review will “further[] the Legislature‟s purpose in creating the agency
and defining the scope of its authority.” (Id. at p. 9.) I disagree. If anything, the
majority‟s holding on this issue contradicts the Legislature‟s plain intent to
narrowly circumscribe judicial review of PERB decisions in section 3509.5, which
statute expressly excepts from the availability of extraordinary writ relief in the
Courts of Appeal “a decision of the board not to issue a complaint . . . .”
(§ 3509.5, subd. (a).)
I further fail to see how, even under the majority‟s broad reading of
Belridge Farms, the third exception to the general rule of no judicial review could
possibly be satisfied on the factual record before us. We are, after all, today
reaffirming as a substantive point of law that a city‟s decision to lay off some of its
employees for fiscal reasons is not a matter subject to collective bargaining under
the MMBA. We have observed that this has been the settled law ever since
Vallejo, supra, 12 Cal.3d 608, was decided many years ago. (Maj. opn., ante, at
p. 19.) PERB unquestionably acted within the scope of its statutory authority
when it exercised its discretion and determined not to issue a complaint below.
(See § 3541.3, subd. (b).) That being the case, how can the majority conclude, on
8
the one hand, that Local 188‟s substantive law claim is unmeritorious in light of
long-standing settled law, and then find, on the other hand, that the union did raise
a “colorable claim” (Belridge Farms, supra, 21 Cal.3d at p. 556) that PERB‟s
refusal to issue the complaint was “based on an erroneous statutory construction.”
(Maj. opn., ante, at p. 11.) If this PERB decision not to issue a complaint is
subject to equitable judicial review in the superior court based on the agency‟s
erroneous interpretation of an applicable statute, it is hard to envision one that
would not be.
The majority observes that both the United States Supreme Court and this
court have explained that “eliminating all forms of judicial review of an
administrative agency‟s decisions could raise serious constitutional issues.” (Maj.
opn., ante, at p. 9.) The majority further observes that “[t] he California
Constitution [in § 10 of art. VI] gives rise to a presumption in favor of at least
limited judicial review of state administrative agency actions.” (Maj. opn., ante, at
p. 10.) I do not disagree with these observations. But, as noted, in California,
“[a]ny charging party, respondent, or intervenor aggrieved by a final decision or
order of the board in an unfair practice case, except a decision of the board not to
issue a complaint in such a case, . . . may petition for a writ of extraordinary relief
from that decision or order.” (§ 3509.5, subd. (a), italics added.)
If it was alleged here that PERB‟s refusal to issue a complaint somehow
exceeded the board‟s statutory powers or violated the union members‟
constitutional rights, I would not hesitate to find that the superior court‟s equitable
mandamus jurisdiction could rightfully be invoked to review such a determination,
nor would I think it necessary to invoke the specific holding in Belridge Farms to
support that conclusion. Moreover, if PERB had erroneously interpreted a statutory
provision as precluding its discretion or power to act and issue a complaint on
9

Local 188‟s unfair labor practice charge, I would join the majority in finding that
our decision in Belridge Farms is sufficiently analogous to support a conclusion
that the superior court‟s traditional mandamus jurisdiction may be invoked to
review the board‟s legal determinations in that regard. But, here, the substantive
point of law underlying the union‟s unfair labor practice charge has long been
settled in favor of the city‟s actions, and PERB, rather than acting
unconstitutionally, or in excess of its statutory powers, or through a mistaken belief
that it had no authority to act, simply applied settled law to these particular facts
and found no legal or factual basis to issue a complaint. Accordingly, I conclude
the Court of Appeal erred in finding our decision in Belridge Farms sufficiently
analogous to establish a basis for extraordinary writ review in the superior court of
the board‟s decision not to issue a complaint on these facts.
I therefore join the majority in affirming the Court of Appeal‟s judgment to
the extent that judgment holds that the city‟s decision to lay off 18 of its firefighters
was not subject to collective bargaining under the MMBA. Unlike the majority,
however, I would further conclude that the Court of Appeal erred in determining
that the holding in Belridge Farms, supra, 21 Cal.3d 551, could serve as a proper
basis for equitable judicial review of Local 188‟s claim in the superior court. When
the Court of Appeal first dismissed Local 188‟s petition for extraordinary writ
review, recognizing it was without jurisdiction to act by virtue of the express
provisions of section 3509.5, subdivision (a), that dismissal should have been with
prejudice.
BAXTER, J.
10
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion International Association of Fire Fighters v. Public Employment Relations Board
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 172 Cal.App.4th 265
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S172377
Date Filed: January 24, 2011
__________________________________________________________________________________

Court:

Superior
County: Contra Costa
Judge: Steven K. Austin

__________________________________________________________________________________

Attorneys:

Davis & Reno, Duane W. Reno and Alan C. Davis for Plaintiff and Appellant.

Woodley & McGillivary, Thomas A. Woodley, Kurt Rumsfeld and Baldwin Robertson for International
Association of Fire Fighters as Amicus Curiae on behalf of Plaintiff and Appellant.

Davis, Cowell & Bowe, W. David Holsberry and Paul L. More for California Professional Firefighters as
Amicus Curiae on behalf of Plaintiff and Appellant.

Tami R. Bogert, Wendi L. Ross, Alicia A. Clement and Kristin L. Rosi for Defendant and Respondent.

Renne Sloan Holtzman Sakai, Jeffrey Sloan, Charles D. Sakai, Randy Riddle, Steve Cikes, K. Scott Dickey
and Meryln Goeschl for Real Party in Interest and Respondent.

Goldfarb & Lipman, James T. Diamond, Jr., and Xochitl Carrion for League of California Cities and
California State Association of Counties as Amici Curiae on behalf of Real Party in Interest and Respondent.

Atkinson, Andelson, Loya, Ruud & Romo, Warren S. Kinsler, Cathie L. Fields and Barbara J. Ginsberg for
Education Legal Alliance of the California School Boards Association and the Inland Personnel Council as
Amici Curiae on behalf of Real Party in Interest and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Alan C. Davis
Davis & Reno
22 Battery Street, Suite 1000
San Francisco, CA 94111
(415) 274-8700

Wendi L. Ross
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-3198

Jeffrey Sloan
Renne Sloan Holtzman Sakai
350 Sansome Street, Suite 300
San Francisco, CA 94104
(415) 678-3800


Petition for review after the Court of Appeal affirmed the judgment in an action for writ of administrative mandate. This case presents the following issues:

  1. Is the decision by the Public Employee Relations Board (PERB) not to issue an unfair labor practices complaint under the Meyers-Milias-Brown Act (Gov. Code, section 3500 et seq.) subject to judicial review?
  2. Is a decision to lay off firefighters for fiscal reasons a matter that is subject to collective bargaining under the Act?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 01/24/201151 Cal. 4th 259, 245 P.3d 845, 120 Cal. Rptr. 3d 117S172377Review - Civil Appealsubmitted/opinion due

Parties
1International Association of Fire Fighters Local 188 (Plaintiff and Appellant)
Represented by Alan C. Davis
Davis & Reno
22 Battery Street, Suite 1000
San Francisco, CA

2International Association of Fire Fighters Local 188 (Plaintiff and Appellant)
Represented by Duane Westlee Reno
Davis & Reno
22 Battery Street, Suite 1000
San Francisco, CA

3Public Employment Relations Board (Respondent)
Represented by Tami Rose Bogert
California Public Employment Relations Board
1031 Eighteenth Street
Sacramento, CA

4Public Employment Relations Board (Respondent)
Represented by Wendi Lynn Ross
California Public Employment Relations Board
1031 Eighteenth Street
Sacramento, CA

5Public Employment Relations Board (Respondent)
Represented by Alicia Ann Clement
California Public Employment Relations Board
1031 Eighteenth Street
Sacramento, CA

6City of Richmond (Real Party in Interest and Respondent)
Represented by Jeffrey Sloan
Renne Sloan Holtzman & Sakai, LLP
350 Sansome Street, Suite 300
San Francisco, CA

7California Professional Firefighters (Amicus curiae)
Represented by W. David Holsberry
Davis Cowell & Bowe LLP
595 Market Street, Suite 1400
San Francisco, CA

8California State Association of Counties (Amicus curiae)
Represented by James Thomas Diamond
Goldfarb & Lipman, LLP
1300 Clay Street, 9th Floor
Oakland, CA

9Education Legal Alliance of California School Boards Assn. (Amicus curiae)
Represented by Warren S. Kinsler
Atkinson Andelson Loya Ruud & Romo
12800 Center Court Drive, Suite 300
Cerritos, CA

10Inland Personnel Council (Amicus curiae)
Represented by Warren S. Kinsler
Atkinson Andelson Loya Ruud & Romo
12800 Center Court Drive, Suite 300
Cerritos, CA

11International Association of Fire Fighters (Amicus curiae)
Represented by Baldwin Robertson
Woodley & McGillivary
1101 Vermont Avenue N.W., Suite 1000
Washington, DC

12League of California Cities (Amicus curiae)
Represented by Xochitl Carrion
Goldfarb & Lipman, LLP
1300 Clay Street, 9th Floor
Oakland, CA

13League of California Cities (Amicus curiae)
Represented by James Thomas Diamond
Goldfarb & Lipman, LLP
1300 Clay Street, 9th Floor
Oakland, CA


Opinion Authors
OpinionJustice Joyce L. Kennard
DissentJustice Marvin R. Baxter

Dockets
Apr 24 2009Petition for review filed
Respondent: Public Employment Relations BoardAttorney: Alicia Ann Clement  
Apr 27 20092nd petition for review filed
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Apr 28 2009Received Court of Appeal record
  one file folder/briefs/one accordian folder
May 8 2009Answer to petition for review filed
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
May 18 2009Answer to petition for review filed
Real Party in Interest and Respondent: City of RichmondAttorney: Jeffrey Sloan  
May 15 2009Request for depublication (petition for review pending)
  by the respondent,Public Employment Relations Board, by Alicia A. Clement, Counsel
May 21 2009Received:
  Response to Request for Depublication by Duane W. Reno, counsel for petitioner and appellant International Association of Fire Fighters, Local 188.
Jun 18 2009Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including July 24, 2009, or the date upon which review is either granted or denied.
Jul 8 2009Petition for review granted
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jul 8 2009Letter sent to:
  counsel w/Certification of Interested Entities and Persons form. Should be returned to the court within 15 days.
Jul 13 2009Certification of interested entities or persons filed
  submitted by Duane W. Reno counsel for petitioners International Association of Fire Fighters
Jul 16 2009Certification of interested entities or persons filed
  submitted by Jeffrey Sloan counsel for City of Richmond, RPI and Respondent
Jul 14 2009Certification of interested entities or persons filed
  submitted by Wendy Ross counsel for Public Employment Relations Board, respondent.
Jul 15 2009Request for extension of time filed
  by Alicia A. Clement counsel for respondent, Public Employment Relations Board requesting to September 8, 2009 to file its opening brief on the merits (to court for permission)
Jul 22 2009Extension of time granted
  On application of respondent Public Employment Relations Board and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 8, 2009.
Jul 23 2009Request for extension of time filed
  by Duane W. Reno counsel for petitioner International Association of Fire Fighters, Local 188 requesting to September 8, 2009, to file its opening brief on the merits (to court for permission)
Jul 28 2009Extension of time granted
  On application of International Association of Fire Fighters, Local 188 and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 8, 2009.
Sep 8 2009Opening brief on the merits filed
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Sep 8 2009Opening brief on the merits filed
Respondent: Public Employment Relations BoardAttorney: Alicia Ann Clement  
Sep 23 2009Request for extension of time filed
  City of Richmond, requests until November 9, 2009, to file consolidated answer brief on the merits, by Steve Cikes, Counsel.
Sep 24 2009Request for extension of time filed
  International Association of Fire Fighters (IAFF Local 188) requests an extension of time untile November 9, 2009, to file a consolidated answer brief on the merits, by Duane W. Reno, counsel.
Sep 28 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the consolidated answer brief on the merits is extended to and including November 9, 2009.
Sep 28 2009Extension of time granted
  On application of City of Richmond and good cause appearing, it is ordered that the time to serve and file the consolidated answer brief on the merits is extended to and including November 9, 2009.
Oct 8 2009Note: Mail returned and re-sent
  copy of order dated 9/28/09 sent to Wendi Ross at PERB
Oct 8 2009Answer brief on the merits filed
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Oct 8 2009Answer brief on the merits filed
Respondent: Public Employment Relations BoardAttorney: Alicia Ann Clement  
Oct 28 2009Reply brief filed (case not yet fully briefed)
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Oct 30 2009Reply brief filed (case not yet fully briefed)
Respondent: Public Employment Relations BoardAttorney: Tami Rose Bogert  
Nov 9 2009Answer brief on the merits filed
Real Party in Interest and Respondent: City of RichmondAttorney: Jeffrey Sloan  
Nov 30 2009Reply brief filed (case fully briefed)
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Dec 24 2009Application to file amicus curiae brief filed
  filed by Education Legal Alliance of the California School Boards Association and the Inland Personnel Council in support of Real Partyin Interest and Respondent City of Richmond.
Dec 30 2009Application to file amicus curiae brief filed
  League of California Cities and California State Association of Counties in support of real party in interest, by James T. Diamond, counsel.
Jan 6 2010Permission to file amicus curiae brief granted
  The application of Education Legal Alliance of the California School Boards Association and the Inland Personnel Council for permission to file an amicus curiae brief in support of Real Party in Interest, City of Richmond is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Jan 6 2010Amicus curiae brief filed
Amicus curiae: Education Legal Alliance of California School Boards Assn.Attorney: Warren S. Kinsler  
Jan 6 2010Permission to file amicus curiae brief granted
  The application of League of California Cities and California State Association of Counties for permission to file an amicus curiae brief in support of real party in interest is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Jan 6 2010Amicus curiae brief filed
Amicus curiae: League of California CitiesAttorney: James Thomas Diamond Amicus curiae: California State Association of CountiesAttorney: James Thomas Diamond  
Dec 30 2009Application to file amicus curiae brief filed
  California Professional Firefighters in support of Appellant. by W. David Hoslberry, counsel
Jan 6 2010Application to appear as counsel pro hac vice (granted case)
  Attorney Baldwin Robertson, of the law firm of Woodley, & McGillivary, requests permission to appear as counsel pro hac vice for amicus International Association of Fire Fighters (to court for permission)
Jan 5 2010Application to file amicus curiae brief filed
  International Association of Fire Fighters, amicus Baldwin Robertson, counsel
Jan 8 2010Permission to file amicus curiae brief granted
  The application of California Professional Firefighters for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Jan 8 2010Amicus curiae brief filed
Amicus curiae: California Professional FirefightersAttorney: W. David Holsberry  
Jan 12 2010Application to appear as counsel pro hac vice granted
  The application of Baldwin Robertson for admission pro hac vice to appear on behalf of International Association of Fire Fighters is hereby granted. (See Cal. Rules of Court, rule 9.40.)
Jan 12 2010Permission to file amicus curiae brief granted
  The application of International Association of Fire Fighters for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Jan 12 2010Amicus curiae brief filed
Amicus curiae: International Association of Fire FightersAttorney: Baldwin Robertson  
Jan 26 2010Response to amicus curiae brief filed
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Oct 5 2010Case ordered on calendar
  to be argued on Wednesday, November 3, 2010, at 9:00 a.m., in San Francisco
Oct 6 2010Order filed
  For purposes of oral argument, the appellant will argue first and may reserve time for rebuttal; respondents will argue second.
Oct 14 2010Application filed
  Application to divide oral argument time filed by Wendi L. Ross and Jeffrey Sloan, counsel for respondents, requesting to divide time between resopndents Public Employment Relations Board and City of Richmond.
Oct 20 2010Order filed
  The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to Public Employment Relations Board 18 minutes and City of Richmond 12 minutes of respondents' 30-minute allotted time for oral argument is granted.
Nov 3 2010Cause argued and submitted
 
Jan 3 2011Justice pro tempore assigned
  George, C.J. (retired), appointed as justice pro tempore to this case.

Briefs
Sep 8 2009Opening brief on the merits filed
Respondent: Public Employment Relations BoardAttorney: Alicia Ann Clement  
Sep 8 2009Opening brief on the merits filed
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Oct 8 2009Answer brief on the merits filed
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Oct 30 2009Reply brief filed (case not yet fully briefed)
Respondent: Public Employment Relations BoardAttorney: Tami Rose Bogert  
Oct 28 2009Reply brief filed (case not yet fully briefed)
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Nov 9 2009Answer brief on the merits filed
Real Party in Interest and Respondent: City of RichmondAttorney: Jeffrey Sloan  
Nov 30 2009Reply brief filed (case fully briefed)
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Jan 6 2010Amicus curiae brief filed
Amicus curiae: Education Legal Alliance of California School Boards Assn.Attorney: Warren S. Kinsler  
Jan 6 2010Amicus curiae brief filed
Amicus curiae: League of California CitiesAttorney: James Thomas Diamond Amicus curiae: California State Association of CountiesAttorney: James Thomas Diamond  
Jan 8 2010Amicus curiae brief filed
Amicus curiae: California Professional FirefightersAttorney: W. David Holsberry  
Jan 12 2010Amicus curiae brief filed
Amicus curiae: International Association of Fire FightersAttorney: Baldwin Robertson  
Jan 26 2010Response to amicus curiae brief filed
Plaintiff and Appellant: International Association of Fire Fighters Local 188Attorney: Duane Westlee Reno  
Oct 8 2009Answer brief on the merits filed
Respondent: Public Employment Relations BoardAttorney: Alicia Ann Clement  
Brief Downloads
application/pdf icon
s172377-1-respondents-petition-for-review.pdf (438700 bytes) - Respondent's Petition for Review
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s172377-2-appellants-petitiion-for-review.pdf (596621 bytes) - Appellant's Petition for Review
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s172377-3-appellants-answer-to-petitiion-for-review.pdf (134707 bytes) - Appellant's Answer to Petition for Review
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s172377-4-real-party-in-interest-and-respondents-answer-to-petition-for-review.pdf (212280 bytes) - Real Party in Interest and Respondent's Answer to Petition for Review
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s172377-5-appellants-opening-brief-of-the-merits.pdf (511774 bytes) - Appellant's Opening Brief of the Merits
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s172377-6-respondents-opening-brief-on-the-merits.pdf (360254 bytes) - Respondent's Opening Brief on the Merits
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s172377-7-appellants-answer-brief-on-the-merits.pdf (266219 bytes) - Appellant's Answer Brief on the Merits
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s172377-8-respondents-answer-brief-on-the-merits.pdf (230173 bytes) - Respondent's Answer Brief on the Merits
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s172377-9-appellants-reply-brief-on-the-merits.pdf (223676 bytes) - Appellant's Reply Brief on the Merits
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s172377-10-respondents-reply-brief-on-the-merits.pdf (178980 bytes) - Respondent's Reply Brief on the Merits
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s172377-11-real-party-in-interest-and-respondents-consolidated-answer-brief-on-the-merits.pdf (368989 bytes) - Real Party in Interest and Respondent's Consolidated Answer Brief on the Merits
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s172377-12-appellant-reply-brief-response-realparty-consolidated-answer.pdf (258163 bytes) - Appellant's Reply Brief Response Reponse; Real Party in Interest's Consolidated Answer
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 22, 2011
Annotated by samuel roberge

Parties:

  • Plaintiff: International Association of Fire Fighters, Local 188, AFL-CIO
  • Defendants: Public Employment Relations Board & City of Richmond

Facts:

This is a case about a cash-strapped city, 18 laid-off city firefighters, and the legal battle that ensued after the firefighters attempted to get their jobs back. In late 2003, the City of Richmond (the “City”) sent layoff notices to the 18 firefighters. During the months leading up the layoffs, the City had met with the firefighters’ union, the International Association of Fire Fighters, Local 188, AFL-CIO (“Local 188”). However, the City would not discuss its layoff decision during these meetings. Instead, the City and Local 188 only discussed the effects of the layoffs on the remaining firefighters.

Because the City did not consult with Local 188 about the layoff decision, the union took legal action. In January of 2004, Local 188 filed an unfair labor practice charge with the Public Employment Relations Board (“PERB”), the administrative body tasked with enforcing state labor laws affecting local government employees. The charge alleged, among other things, that under the Meyers-Milians-Brown Act (“MMBA”) (linked below), the City had a duty to collectively bargain with Local 188 before laying off local government employees.

The PERB agent refused to issue a complaint, a decision affirmed by the three member PERB review panel. Accordingly, Local 188 petitioned the California Court of Appeal for a writ of mandate, seeking to overturn the review panel’s decision. The Court of Appeal denied the writ, so Local 188 re-filed in the superior court.

Worth noting: in this opinion, the California Supreme Court uses the terms “writ of mandate” and “writ of mandamus” interchangeably. For clarity, this annotation uses “writ of mandate” exclusively.

Procedural History:

In attempting to reverse the PERB’s decision, Local 188 faced two obstacles: 1) the superior court had to first confer jurisdiction on itself to review the administrative decision, and 2) the superior court had to find in Local 188’s favor.

Local 188 passed the first obstacle, but was blocked by the second. The superior court, although concluding that it did have jurisdiction, agreed with the PERB’s refusal to issue the complaint. Echoing the PERB’s decision, the court noted that “a city’s layoff decision is not within the scope of representation under the MMBA.” 51 Cal. 4th 259, 265 (2011).

Local 188 appealed to the Court of Appeal, which affirmed the lower court. However, the Court of Appeal also clarified the legal standard for when PERB decisions would be subject to judicial review. Specifically, judicial review would be available whenever a PERB decision not to issue a complaint 1) violated a constitutional right, 2) exceeded a specific grant of authority, or 3) is based on an erroneous statutory interpretation. The Court of Appeal applied this standard to the firefighters’ unfair labor practices charge, evaluating whether the PERB’s decision was based on an erroneous statutory interpretation of the Meyers-Milians-Brown Act. In particular, the Court of Appeal concluded that the PERB had not erroneously interpreted the MMBA, because a previous California case, Fire Fighters Union v. City of Vallejo (linked below), had noted that under the MMBA, a decision to lay off firefighters is not subject to union negotiation, although the effects of the layoff decision may be.

Again, Local 188 appealed, raising the curtain on this California Supreme Court ruling.

Issues:

  1. If after receiving an unfair labor practice charge, the Public Employment Relations Board decides not to issue a complaint, is that decision subject to judicial review?
  2. Is a city’s decision to lay off firefighters for fiscal reasons a matter that is subject to collective bargaining?

Holding:

  1. A decision by the PERB not to issue a complain is subject to judicial review in the following limited circumstances: when its refusal to do so violates a constitutional right, exceeds a grant of authority, or is based on an erroneous statutory interpretation.
  2. A city’s decision to lay off public employees for fiscal reasons is not subject to collective bargaining, but the implementation of the decision may be.

Analysis:

Issue 1: Whether the PERB decision not to issue a complaint is subject to judicial review.

The starting point for the Court’s analysis of Issue 1 was the text of the MMBA, which provides that judicial review of PERB decisions is available to aggrieved public employees, except in cases of “decision[s] of the board not to issue a complaint . . . .” Cal. Gov. Code § 3509.5(a) (linked below). At first glance, this statutory language appears to clearly foreclose superior court review of a PERB decision.

But the Court did not see it that way. First, the Court turned to a previous labor decision, Belridge Farms (linked below), which construed the state equivalent to the federal National Labor Relations Act (“NLRA”). The Belridge Farms court looked to how federal courts interpreted the NLRA, and noted that while federal courts have held that administrative refusal to issue a complaint is generally not reviewable, they will use their equitable power when the failure to issue a decision violates a constitutional right, exceeds a statutory grant of authority, or is based on an erroneous interpretation of a statute. Accordingly, the Belridge Farms court imbued the state equivalent with the same interpretation as the federal NLRA. The Court in the instant case also noted that the federal NLRA and the state equivalent are very similar statutes to the MMBA.

Arguing against judicial jurisdiction, the City and the PERB noted that the MMBA, unlike the state and federal labor statutes discussed above, explicitly denies judicial review of a refusal to issue a complaint. However, the MMBA contains this limiting language, the Court reasoned, to ensure that PERB decisions would not routinely be subject to judicial review. In addition, this limiting language does not expressly bar California courts from issuing writs of mandate to review, in limited circumstances, PERB decisions. Because courts’ mandate jurisdiction is traditional and long-standing, the Legislature could have prevented judicial review entirely by explicitly barring mandate jurisdiction. Instead, the MMBA mentions nothing about mandate jurisdiction.

The Court then bolstered this argument by observing that the California Constitution specifically gives rise to a presumption in favor of limited judicial review of state administrative agency actions.

In sum, the Court analogized the MMBA to the federal NLRA and state equivalent, which permit judicial review of administrative refusals to issue complaints in limited circumstances. Even though the MMBA contains explicit language appearing to foreclose judicial review, the court interpreted that foreclosure as preventing general judicial review—and not traditional mandate jurisdiction on the narrow grounds discussed above.

Issue 2: Whether layoffs are subject to mandatory collective bargaining under the MMBA

Whether a city has a legal duty to meet with unions before firing public employees is, once again, ambiguous under the MMBA. The statute provides that the two parties shall meet and confer over “all matters relating to employment conditions and employer-employee relations.” But the statute also says that the city does not have to discuss “consideration of the merits, necessity, or organization of any service . . . provided by law . . . .” Accordingly, the Court needed to resolve whether the layoff decision is within the discretion of the City, or within the power to bargain collectively conferred on public unions.

To resolve this ambiguity, the court looked to the 1974 Vallejo case (linked below), which featured similar facts. Vallejo was also different in that the PERB did not yet have jurisdiction over MMBA matters, and the city and firefighters' union had an arbitration clause. However, the legal issues are the same. In Vallejo, the Court held that an employer does not have an obligation to negotiate the decision to lay off employees, but it must bargain any negotiable effects of the layoff decision. Yet the Court also noted that the decision to lay off firefighters affects the safety and workload of the remaining workers, and thus is subject to collective bargaining. So, in the instant case, both sides warred over the soul of Vallejo, drawing on its text to reach opposite conclusions.

The Court resolved the ambiguities in Vallejo in favor of the Defendants after looking at the balance of the Vallejo opinion , in which the Court stressed that the MMBA should be construed in harmony with federal labor decisions interpreting the NLRA. These federal labor decisions allow employers to make unfettered layoff decisions out of financial necessity. For example, see First Nat. Maintenance Corp. v. N.L.R.B. and Pan American Grain Co., v. N.L.R.B (linked below). Here, as in those federal cases, the City of Richmond sought to reduce pressure on its burdened budget. So, a City may fire workers for financial reasons, but it must bargain with the union over the effects of the layoffs, such as the timing and number of employees affected. Because Local 188 did not show that the PERB’s refusal was based on a misunderstanding of the MMBA, there was no erroneous construction, and thus the superior court properly denied Local 188’s writ.

To recap, in Issue 2, as in Issue 1, the Court resolved an ambiguity by looking to federal labor decisions, which generally allow fiscally weak employers to lay off employees without a union veto.

Dissent:

Justice Baxter concurs that the layoff decision was not subject to collective bargaining under the MMBA (Issue 2).

However, he dissents on Issue 1, arguing that the PERB refusal to issue a complaint is not subject to judicial review in this case. Put differently, Justice Baxter wants even more limited judicial review of PERB administrative decisions. In particular, he argues that the majority misconstrued Belridge Farms by holding that California courts can review PERB decisions based on erroneous statutory constructions. Instead, Belridge Farms allows judicial review only when the administrative official’s “refusal is based on an erroneous view of the power vested in him.” 21 Cal.3d 551, 559 (1978) (emphasis added). In other words, under Justice Baxter’s formulation of Belridge Farms , judicial review would only be available when the administrative official erroneously concludes that he or she has no power to act.

Specifically, while the majority concludes that courts can review administrative decisions that erroneously interpret the MMBA in general, Justice Baxter concludes that courts can only review PERB decisions to the extent that the PERB official interpreted the MMBA to say that he or she could not review the City of Richmond’s decision. For example, if the PERB official mistakenly believed that firefighters were not public employees and thus he or she had no power to review the City’s decision, only then courts could step in.

It should be noted that nothing in Justice Baxter’s dissent affects the ability of courts to review administrative decisions if the decision violates a constitutional right or the agency exceeded its grant of authority. He is solely concerned with the contours of the third aspect of judicial intervention under Belridge Farms.

Key Related Cases:

Belridge Farms v. Agricultural Labor Relations Bd., 21 Cal.3d 551 (1978) http://scholar.google.com/scholar_case?case=18389373429016443729&q=belri...

Fire Fighters Union v. City of Vallejo, 12 Cal.2d 608 (1974)
http://scholar.google.com/scholar_case?case=11725747279539852470&q=fire+...

Meyers-Milias-Brown Act (in particular, consult § 3509.5)
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=08661111045+12+0+0&...

First National Maintenance Corp. v. N.L.R.B., 452 U.S. 666 (1981)
http://scholar.google.com/scholar_case?case=6551846743751261679&q=first+...

Pan American Grain Co., Inc. v. N.L.R.B., 432 F.3d 69 (1st Cir. 2005)
http://scholar.google.com/scholar_case?case=7489098113096037456&q=pan+am...

Tags:

Richmond, Public Employee Relations Board, PERB, P.E.R.B., fire fighters, collective bargaining, layoff, writ of mandate, writ of mandamus, Meyer Milias Brown Act, MMBA, judicial review.