Litigation & Case Law Update

• Publication year: 2018
• Author: by Katherine Cook, Morin Jacob, Leslie Lopez, and Clarisa Sudarma

Litigation & Case Law Update

by Katherine Cook, Morin Jacob, Leslie Lopez, and Clarisa Sudarma

Katherine Cook is Of Counsel at Meyers Nave. Morin Jacob is the Managing Partner of the San Francisco office of Liebert Cassidy Whitmore. Leslie Lopez is the Deputy Director and Chief Counsel at the Department of General Services. Clarisa Sudarma is Deputy County Counsel for the County of Solano.

LABOR & EMPLOYMENT

San Francisco Police Officers' Ass'n v. San Francisco Police Comm'n (2018) 27 Cal.App.5th 676 (filed Sept. 26, 2018)

The First District Court of Appeal held that the City and County of San Francisco was well within its rights — under the Police Power provision of the California Constitution, collective bargaining law, and its Memorandum of Understanding ("MOU") with its Police Officers' Association — to adopt and implement a revised use of force policy for the police department without following meet and confer requirements. The appellate court also held that it was proper for the trial court, rather than an arbitrator, to determine whether the Association's grievance over the matter was subject to arbitration.

In San Francisco Police Officers' Ass'n, the appellate court upheld the trial court's order denying the Association's petition to compel arbitration brought against the San Francisco Police Commission, the City and County of San Francisco ("City"), and the interim Chief of Police. Prior to the Association's filing, the City rejected its grievance challenging the City's refusal to engage in further meet and confer on the adoption of a revised use of force policy for the Police Department.

The appellate court relied heavily on a 1978 decision from the First District, San Jose Peace Officer's Ass'n v. City of San Jose (1978) 78 Cal.App.3d 935, which held that a city was not required to meet and confer with a police union before changing the city's use of force policy because such changes were "managerial" decisions to be made by the city. In San Francisco Police Officers'Ass'n, the appellate court found that the City's adoption of the policy was "a fundamental managerial and policy decision" outside the scope of representation permitting the association to meet and confer with the City under the Meyers-Milias-Brown Act ("MMBA"). The implementation of the policy also did not fall under the MMBA's scope of representation because the burden on the City to meet and confer about "such fundamental decisions clearly outweighs the benefits to employer-employee relations that bargaining would provide."

The City had sought input from the Association on the policy after declaring that while the "formation of the policy is a managerial right outside the scope of bargaining, we welcome the [Association's] participation as a stakeholder in this preliminary process." The City then met with the Association and even negotiated several sections of the policy, including those related to training and discipline. Upon adoption of the policy by the Commission, the Association objected to two of its provisions, i.e., prohibitions on using a carotid restraint and shooting at moving motor vehicles.

The appellate court held that the policy did not come under the MMBA's definition of "scope of representation" found in Government Code section 3504: "all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment.'" (emphasis in original.) This definition does not include "consideration of the merits, necessity, or organization of any service or activity provided by law or executive order." (emphasis in original.) Such "fundamental managerial decisions" have previously been held by the California Supreme Court to be outside the scope of representation and therefore are not subject to the MMBA's meet and confer requirements. Although a use of force policy "may impinge on a condition of employment, it impinges only indirectly," the creation and implementation of a use of force policy primarily involve matters of public safety, police officer safety, and the general preservation of human life. Accordingly, the appellate court cited San Jose in finding that this "delicate judgment is best exercised by the appropriate legislative and executive officers."

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Boling v. Public Employment Relations Board (City of San Diego) (2018) 5 Cal.5th 898 (filed Aug. 2, 2018)

The California Supreme Court dealt a potentially fatal blow to the City of San Diego's Proposition B, a 2012 voter-approved ballot measure designed to save the City's weakening pension system. The Court found that it was actually the City that caused the changes to employee pension benefits, and that the City did so without first negotiating with labor unions. The fate of those pension reforms is uncertain until the Fourth District Court of Appeal issues its remedy.

Under San Diego's "Strong Mayor" form of government, the mayor acts as the City's chief executive officer whose responsibilities include recommending measures and ordinances to the City Council and conducting labor negotiations with the City's unions. In 2010, San Diego's former Mayor, Jerry Sanders, was outspoken on the need for pension reform due to mounting unfunded liabilities that strained the City's budget. Reforming the City's pension plan required an amendment to the City's Charter, which could be achieved by placing a ballot initiative before voters either by the City Council's own motion or a citizens' initiative. Mayor Sanders decided to champion a citizens' initiative to eliminate traditionally defined benefit pensions for all newly-hired City employees, except for peace officers, and replace them with defined contribution plans.

Between November 2010 and March 2011, the Mayor actively pursued the citizens' initiative by issuing press releases with the City seal that publicized his intent to put forward a citizens' ballot initiative, and by declaring his intent during his State of the City address. The Mayor also promoted the initiative and solicited signatures in interviews, in media statements, at speaking appearances, and in a "message from the mayor" circulated to the local chamber of commerce. When 15% of voters approved the ballot measure, the Mayor wrote an argument in favor of the initiative that appeared on the ballot.

Meanwhile, beginning in July 2011, the San Diego Municipal Employees Association and other employee organizations sought to negotiate the terms of any ballot measure on pension reform. The unions argued the Mayor was acting in his official capacity to promote the initiative and, in so doing, made a policy determination related to mandatory subjects of bargaining. City officials believed that a voters' initiative that had a rightful place on the ballot and could not be subject to mandatory bargaining within the meaning of the Meyers-Milias Brown Act ("MMBA").

Prior to the election, employee labor organizations filed unfair practice charges with the Public Employment Relations Board ("PERB") over the City's failure to meet and confer on the pension changes in the initiative. The unions also filed a petition for an injunction in the superior court, and it was denied. In June 2012, Proposition B won approval by the City's voters. In December 2015, after an administrative hearing, PERB held that the City violated the MMBA by placing the initiative on the ballot before exhausting the meet and confer process. PERB found the Mayor was acting as the City's agent and was not privileged as a private citizen to pursue changes in the terms and conditions of employment for the City's represented employees.

The City challenged PERB's decision by filing a petition for a writ of extraordinary relief in the Fourth District Court of Appeal. The appellate court annulled PERB's decision and found that placing the citizens' initiative measure on the ballot...