Int'l Ass'n of Fire Fighters, Local 188, AFL-CIO v. Pub. Emp't Relations Bd.

• Decision Date: 24 January 2011
• Docket Number: No. S172377.,S172377.
• Parties: INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 188, AFL-CIO, Plaintiff and Appellant, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Defendant and Respondent; City of Richmond, Real Party in Interest and Respondent.
• Court: California Supreme Court

120 Cal.Rptr.3d 117

51 Cal.4th 259

245 P.3d 845

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 188, AFL-CIO, Plaintiff and Appellant,

v. PUBLIC EMPLOYMENT RELATIONS BOARD, Defendant and Respondent;City of Richmond, Real Party in Interest and Respondent.

No. S172377.

Supreme Court of California

Jan. 24, 2011.

Davis & Reno, Duane W. Reno and Alan C. Davis, San Francisco, 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, San Francisco, for California Professional Firefighters as Amicus Curiae on behalf of Plaintiff and Appellant.

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

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

Goldfarb & Lipman, James T. Diamond, Jr., and Xochitl Carrion, Oakland, 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, Cerritos, Cathie L. Fields, Irvine, and Barbara J. Ginsberg, Cerritos, 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.

KENNARD, Acting C.J.

[51 Cal.4th 264, 245 P.3d 847]

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.

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 andconfer 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 beingeliminated. 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.

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.

[51 Cal.4th 266, 245 P.3d 848]

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.

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 writpetition. 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, 147 Cal.Rptr. 165, 580 P.2d 665 ( Belridge Farms ). That decision construed the judicial review provisions of 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, 116 Cal.Rptr. 507, 526 P.2d 971 ( 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 theagent "concludes that the charge or...