PERB Holds Oral Argument in City of Lompoc Case

City of Lompoc v. Lompoc Police Officers Association; Lompoc Police Officers Association v. City of Lompoc (PERB Case Nos. LA-CO-100-M; LA-CE-555-M; LA-CE-564-M; LA-CE-585-M)

Today, PERB held its first oral argument in a case since 2004.  All four Board members were in attendance.  The issue before the Board was whether PERB has authority to issue a remedial order in a case involving a “mixed” bargaining unit that includes non-peace officers and peace officers.  Arguing for the union was Michael Morguess of Lackie, Dammeier, McGill, & Ethir.  Arguing for the City was Adrianna Guzman of Liebert Cassidy Whitmore.

Each side was allotted 30 minutes to argue, which included time for questions by Board Members.  The union, as the party bringing exceptions to a proposed decision, was given the opportunity to reserve some of the 30 minutes for rebuttal.

Mr. Morguess argued for an “all or nothing” approach; namely, that everyone in a mixed unit should be subject to PERB’s jurisdiction.  Such an approach would prevent forum-shopping, according to Mr. Morguess since peace officers would also be required to go to PERB.  After his presentation, the Board members quickly jumped in with questions.  Chairwoman Martinez noted that both the Claremont and Rialto court cases involved mixed units.  She asked why those cases proceeded in court if the entire mixed unit is subject to PERB’s jurisdiction.  Board Member Winslow chimed in and noted that the situation in Claremont and Rialto suggested that forum shopping was possible.  Member Banks asked about situations where individual peace officers might have a claim.  He questioned whether peace officer employees could go to court even if the “bargaining unit” went to PERB.  Mr. Morguess admitted that situation could occur.  Member Huguenin asked both parties how prevalent are mixed units under the MMBA.  Both the union and city stated that such units are “not uncommon” (I agree) but didn’t have specifics.  Finally, Member Winslow asked why couldn’t the peace officers just go to court while the non-peace officers went to PERB.  Mr. Morguess responded that such a system would be costly for both unions and employers and lead to potentially conflicting results.  Ms. Winslow noted that that might be the natural result of the crave-out created by Government Code 3511 which exempts peace officers from PERB.

Ms. Guzman similarly laid out the City’s position quickly and left plenty of room for questions by the Board.  She argued that while PERB has jurisdiction over unfair charges brought by the union in a mixed-unit, PERB could not order a remedy for the peace officers in that unit.  Member Winslow noted that such a holding would allow PERB jurisdiction over liability, but not the remedy, to which Ms. Guzman agreed.  However, Board Members questioned whether a bright line really exists between liability and remedy.  Member Huguenin pressed this point by asking if PERB could just order a remedy for the union (for example, a lump sum of money to be distributed as the union sees fit), instead of ordering individual remedies.  Ms. Guzman stated that PERB could not do that if the remedy to the union was based on individual calculations.  Ms. Guzman also agreed with Member Winslow that the Government Code section 3511 only states that “persons” who are peace officers are excluded and does not use the term “employee organizations.”  Member Banks made the point that if the rules for peace officers and non-peace officers are different, there may be no benefit to being in a mixed-unit.  Member Banks also pressed home the point that it’s not always easy to distinguish between an “individual” claim versus a “union claim” since some individual claims involve the entire unit.

The oral argument began at 2:00 pm and ended at 2:55 pm.

Comments:

As a PERB “junkie” I truly enjoyed watching the oral argument.  I was also there when PERB last held an oral argument in 2004.  My hope is that this Board will schedule more cases for oral argument in the future and make the practice much more common.  If they do, here are some observations for anyone arguing before the Board:

  1. Leave time for questions.  The Board provided each side 30 minutes to argue.  Both the union and city wisely chose to use only about half that time to argue and leave the rest for questions.
  2. Be prepared for tough questions.  All the Board members were extremely prepared and engaged.  The thing that stood out to me was that every Board member participated in the oral argument.  Each had tough questions to ask.  Remember, this is a Board where all the members have a background in labor relations.  So be prepared for tough questions.
  3. Don’t be afraid to make policy arguments.  This was a case where there just wasn’t much law or legislative history.  So both sides made a point to raise public policy considerations.  The Board clearly is concerned about the labor relations framework in California and takes its responsibilities seriously.  My feeling is that PERB is only going to grant oral argument in cases where there are policy ramifications.  So I think it was wise for both sides to have addressed policy matters.
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