Singletary v. Local 18, IBEW (Court of Appeal Case No. B231388) (filed 11/21/12, pub. ord. 12/18/12)
This case involves a fairly narrow and esoteric issue: whether an unfair practice charge involving employees of the City of Los Angles must be brought before the City’s Employee Relations Board (ERB), or can the employees go to PERB or directly to court. The court concluded that ERB has exclusive initial jurisdiction over unfair practice charges involving city employees, just like PERB has exclusive initial jurisdiction over unfair practice charges for (virtually) everyone else. What caught my attention was the court’s interpretation of the applicable MMBA provisions. In its decision, the appellate court stated that:
“ERB was created in 1971 …before PERB, and thus the MMBA carved out an exception for ERB. Pursuant to section 3509, subdivision (d), section 3509 does not apply to the City or County of Los Angeles.”
These two sentences leave out a lot of history. The MMBA was signed in 1968. EERA was signed in 1976 and established the Educational Employment Relations Board (EERB), which become PERB in 1978. So it’s true that the ERB was established before PERB, but that really has nothing to do with the exception carved out for the ERB in the MMBA. Indeed, the MMBA, as established, covered all local employees. It wasn’t until the MMBA came under PERB’s jurisdiction in 2001 that there was a carve-out for the City of Los Angeles. Even then, it’s more accurate to describe the carve-out as being a carve-out to PERB jurisdiction, as opposed to a carve-out to MMBA jurisdiction.
The appellate court goes on to state:
“Plaintiffs’ interpretation of the statute would nullify the stated legislative purpose of providing primary jurisdiction in personnel boards for review of violations of the MMBA. Given that the City’s ERB was created in 1971 before the establishment of PERB in 1975, when the legislature acted in 2000 to expressly specify the means of review of decisions of PERB, the legislature did not want to appear to nullify the powers of ERB.”
Again, a lot of history is missing. The decision says PERB was established in 1975. Well, sort-of. EERA was enacted by the legislature in 1975. It took effect on July 1, 1976, which is why most practitioners use 1976 as the establishment date for EERA. Again, EERA created the EERB in 1976; the name did not change to PERB until 1978 when state employees were added to PERB’s jurisdiction. However, all this largely misses the point as the MMBA was enacted in 1968 and was never subject to PERB’s jurisdiction until 2001. So this discussion about the early reach of EERB and PERB is really irrelevant.
Even when the MMBA came under PERB’s jurisdiction in 2001, I don’t think the legislative history supports the proposition that the City of Los Angeles and County of Los Angeles were exempted because they had ERB’s that pre-dated PERB. There are lots of local jurisdictions with personnel boards and civil service commissions that pre-date PERB. The carve-out for Los Angeles is more a testament to the political power of Los Angeles than anything else.
However, with all that said, as a management attorney for many local entities, I certainly like the appellate court’s statement that the Legislature intended to give primary jurisdiction for review of violations of the MMBA to personnel boards. There is certainly support for the proposition that the MMBA was not intended to supercede local merit or civil service systems. (See Gov. Code, §3500.) And with respect to the ERB’s for the City and County of Los Angeles, there is support for the court’s holding that those ERB’s also have primary jurisdiction over unfair practice charges. Whether this case might be used to expand the reach of personnel boards and civil service commissions in other jurisdictions remains to be seen.