County of Orange (2019) PERB Decision No. 2657-M (Issued on 7/15/19)
The saga continues. In this most recent case PERB provides its most comprehensive explanation yet for why it believes it has jurisdiction over “employee organizations” comprised of Penal Code 830.1 peace officers under the Meyers-Milias-Brown Act (MMBA). There is a very long history to this issue. (Click here for one of my prior post). The dispute essentially involves the interpretation of MMBA section 3511 which states: “The changes made to Sections 3501, 3507.1, and 3509 of the Government Code by legislation enacted during the 1999–2000 Regular Session of the Legislature shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code.” For years, I believe everyone understood that this meant Penal Code 830.1 peace officers were not under PERB’s jurisdiction. Period. There was no distinction between peace officers as individuals versus the unions representing peace officers.
Then in 2015, PERB issued its decision in County of Santa Clara (2015) PERB Decision No. 2431-M, in which it held that PERB has jurisdiction over “mixed” units containing both peace officers and non-peace officers. From that decision, PERB’s jurisprudence has morphed into its current position that PERB has jurisdiction over unions representing bargaining units comprised entirely of peace officers. If you have read my prior posts on this issue you know I think PERB is absolutely wrong.
In the recent County of Orange case, PERB addressed a lot of different arguments on this issue. But there was one argument that really stood out to me. The County had cited to some court cases involving peace officer unions as evidence that the courts, and not PERB, have jurisdiction over such cases. PERB replied that, “We put little weight on the fact that courts have heard disputes brought by employee organizations that represent peace officers, where no party briefed jurisdictional issues and the courts did not address jurisdiction. It is axiomatic that cases are not authority for propositions not considered.” PERB is correct that cases are not authority for issues that were not raised or litigated. But here’s the rub. If you go back to the original County of Santa Clara decision, PERB cited two cases—County of Calaveras (2012) PERB Decision No. 2252-M and County of Yolo (2013) PERB Decision No. 2316-M—for the notion that PERB previously took jurisdiction over units involving peace officers. However, the issue of jurisdiction over peace officers was never raised or even discussed in both those cases. Thus, under PERB’s reasoning in County of Orange it should not have relied on the two cases cited in County of Santa Clara.
In any event, for me it all comes down to this: from the day PERB took over jurisdiction of the MMBA on July 1, 2001 until—at earliest—the County of Santa Clara decision in 2015 no one asserted that there was a distinction between peace officers as individuals and peace officer unions under MMBA section 3511. This means that for about 14 years none of the labor attorneys in California were able to figure out what PERB now says is the clear intent of the Legislature. Obviously, I don’t buy it.
Unfortunately, because the County of Orange prevailed on the merits of this case it has no reason to appeal. However, this doesn’t mean that another MMBA employer can’t challenge PERB’s position in the future. It’s my hope that someone out there will do just that…