Transcription
Case No.12069626CA'TgYEI2INE A. BOEING; T.J. ZANE; ANDSTEPHEN . WI .LIAMS,Petitioner,v.' i Real Parties in Interest.Petition For Writ OfExtraordinary Relief From PublicEmployment Relations Board Decision No. 2464-M (Case Nos.LA-CE-746-M,LA-CE-752-M,LA-CE-755-M, and LA-CE-758-1Vn .,, 1 .l. ,,.Ann M. Smith, Esq, SBN 120733Smith, Steiner, Vanderpool & WaY401 West A Street, Suite 320San Diego, CA 92101Telephone: (619)239-7200Email: asmith@ssvwlaw.comAttorneys for Real Party in InterestSan Diego Municipal Employees Association
Fern M. Steiner, Esq,SBN 118588Smith, Steiner, Vanderpool &Wax401 West A Street, Suite 320San Diego, CA 92101Telephone:(619} 239-7200Email: fsteiner@ssvwlaw.comAttorneys for Real Parry in InterestSan Diego City Firefighters Local 145Ellen Greenstone, Esq.Connie Hsiao, Esq.Rottener, Segall and Greenstone510 South Marengo AvenuePasadena, CA. mail: eareenstone a rs labor.com:chsiao(u rselabor.comAttorneys for Real Party in InterestAFCSME Local 127James J. Cunningham, Esq.Law Offices of James J. Cunningham9455 Ridgehaven Ct., #110San Diego, CA 92123Telephone:(858) 565-2281Email:jimcunninghamlaw@gmail.comAttorneys for Real Party in InterestDeputy City Attorneys Association of San Diego2
tl 1.71111 T 711YiDC 7 i YYl:7Df.IfY I i .Y 77»1:7. 7 7 FThis Certificate is being submitted on behalf ofReal Parties in InterestSan Diego Municipal Employees Association, Deputy City AttorneysAssociation,American Federation ofState,County and Municipal Employees,AFL-CIO,Locall27,and San Diego Ciry Firefighters,Local 145,IAFF,AFLCIO.Pursuant to California Rules of Court, Rule 8.208, I certify that thereare no interested entities or persons that must be listed in this certificate underrule 8.208.Dated:, 0 SMITH, STEINER, VANDERPOOL &WAXANR M. SMIT 'Attorneys for R al Party in InterestSan Diego Municipal EmployeesAssociation
TABLE OF CONTENTSPaeeINTRODUCTION .9ADOPTIONS BY REFERENCE . 11ADDITIONAL ARGUMENT . 12I.Unions Do Not Object to Boling Petitioners BeingHeard Before This Court So That Complete ReliefIs Attainable Without Further Protracted, CostlyProceedings .:.12II.This Court Determined in 2012 That, Despite theConstitutional Issues Which May Be Implicated,PERB Has Exclusive Initial Jurisdiction To AdjudicateUnions' Unfair Practice Charges Related to theComprehensivePension Reform Intiative/Prop B ,. 13III.Despite Their On-Going Litigation Efforts Before theSuperior and Appellate Courts in 2012,the BolingPetitioners Never Sought Party Or Intervenor StatusBefore PERK . 17IV.Boling Petitioners' Quo Warranto JurisdictionalArgument Lacks Merit Because Unions WereObligated By Government Code Section 3509 toEstablish City's Violation of MMBA In ConnectionWith CPRI In Proceedings Before PERB . 20V.Boling Petitioners Are Boand By the Same Standardof Review Applicable to the City . 21VI.The Boling Petition Presents No Colorable Basis ForThis Court to Determine That PERB Erred WhenConcluding That the Ciry Violated the MIVIBAand That Traditional Restorative and CompensatoryRemedies Within the Limits ofPERB's Quasi-JudicialPower Are Appropriate . 220
VII.The Boling Petitioners Overstate The Case For theExercise of Local Initiative Powers When A Matter ofStatewide Interest Is Adversely Impacted . 23VIII. This Record Presents Compelling Grounds For AFinding of MMBA Preemption Over This LocalInitiative Because the City Used IC As An MMBAOpt-Out Scheme .27CERTIFICATE OF COMPLIANCE PURSUANT TO CALIFORNIARULES OF COURT,RULE 8.204(c) . 335
i11CasesPaEeBradley v. PerNOdin (2003) 1006 Ca1.App.4th 1153 . . . 27Citizensfor Responsible Government v. City ofAlbany(1997)56 Ca1.App.4th 1199 .30City ofSan Jose v. Operating Engineers Local Union No. 3(2010)49 Ca1.4th 597 .14Cumero v. PERB(1989)49 Ca13d 575 . 22Galvin v. Board ofSupervisor(1925) 195 Cal. 686 . 26Howard Jarvis Taxpayers Assn. v. City ofSan Diego(4 h DCA,Div. 1, 2004) 120 Ca1.App.4th 374 .21, 24Huntington Beach Police Officers' Assn. v. City ofHuntington.Beach (1976) 58 Cal.App.3d 492.,.,.,.,.,. 24PERB v. Superior Court(1983) 13 Cat.App.4th 1816 . 22Professional Fire Fighters, Inc. v. City ofLos Angeles(1963)60 Ca1.2d 276 .24Regents ofthe t7niversity ofCalifornia v. PERK (1986)41 Ca13d 601 . 21San Diego Adult Educators v. PERB(1990)223 Ca1.App.3d 1124 . 28San Diego Housing Commission v. PERB (SEIULocal 221)(2016)246 Ca1.App.4th 1 .22San Diego Municipal Employees Association v. Superior Court(City ofSan Diego)(2012)206 Ca1.App.4th 1447 . 14-L6San Leandro Police Officers Assn. v. City ofSan Leandro(1976)55 Ca1.App3d 553 .24San Mateo City School Dist. v. PERB(1983)33 Ca13d 850 . 22D
Federal CasesChula Vista Citizensfor .lobs and Fair Competition v. Norris(2015)782 F. 3d 520 . 30California Administrative DecisionsFolsom-Cordova Unified School District(2004)PERB Decision No. 1712 . 28Pajaro Valley Unified School District(1978)PERB Decision No. 51, p. 5 . 27StatutesGov. Code§ 810 .20Gov. Code § 3500 et seq. 14, 20Gov. Code §3509 .14,20Gov. Code §3509,subd.(b) .14Gov. Code § 3509.5, subd.(b} . 21Gov. Code §3511 . .14,20RegulationsCal. Code Regs., tit. 8, § 32164, subd.(d) . 18
ConstitutionsCal. Const., Art. VI, §10 . 15Cal. Const., Art. XI, § 5(a). 240
Real Parties in Interest San Diego Municipal Employees Association,Deputy City Attorneys Association,American Federation ofState, County andMunicipal Employees, AFL-CFO, Local 127, and the San Diego CiryFirefighters Local 145 (collectively "Unions"), submit this joint responsivebrief in support ofPERB's Decision No. 2464-M,in opposition to the BolingPetitioners' Petition for Writ of Extraordinary Relief, and in support of thisCourt's exercise ofits power on the record before it, and in furtherance oftheMMBA's objectives,to declare Proposition B invalid as applied to representedCity employees covered by PERB's Decision.This case puts at issue whether a local public agency has the power toopt-out of the obligations imposed by the State's Meyers-Milias-Brown Act("MMBA") by allowing its Strong Mayor, who serves as Chief ExecutiveOfficer and Chie Labor Negotiator,to co-legislate as a "private citizen" withofficial proponents of the "Comprehensive Pension Reform Initiative"("CPRI") for the purpose of fundamentally changing pensions andcompensation while avoiding the good faith meet and confer process the Actrequires. The City set this MNIBA-versus-local-initiative contest in motion bypermitting its Mayor to defy the Charter-mandated "shared governance" rolesassigned to its Mayor and Ciry Council in order to defeat the representationalrights of City employees and Unions guaranteed under State law,9
As the expert state labor relations agency entrusted with the duty andthe responsibility to enforce the MNIBA in a manner which is both uniformacross the State and consistent with its legislative purpose,PERB is correct toreject the City's MMBA opt-out scheme whereby the City, as public employer,seeks to enjoy Che benefit of these enduring unilateral changes related tofundamental pension and compensation issues.Nor does PERB's enforcement ofthe MMBA in this case in furtheranceofits important statewide objectives pose a threat to First Amendment speechor petition rights or "core political speech." This case turns on City's conductin violation of the MMBA. The act of circulating an initiative petitioninvolves protected speech but the initiative process itself is a method ofenacting legislation. There is no First Amendment right to place an initiativeon the ballot. The act of proposing an initiative is not an exercise ofthe rightto petition the government and it is not core political speech. It is the first stepin an act oflaw-making. In fact, those who sign an initiative petition or votefor the proposed law are not involved in speech or petitioning; they are lawmaking.While there is no question that initiaCive rights are impartant, the lawis clear that these rights are not absolute. As co-legislators with MayorSanders,official proponents' local initiative efforC to impose changes in termsand conditions of City employment must be tested against the state's interest10
in having a uniform public sector collective bargaining law which conferssubstantive rights on public employees and imposes substantive duties onpublic employers. The largely undisputed record before this Court for reviewdemonstrates that official proponents' exercise of their local initiative rightsmust yield in this case because the City abused the initiative power by allowingits Mayor to co-legislate as a "private citizen" ina manner inimical to theMMBA's principle goal of fostering communication, dispute resolution andagreements between public employers and their employees.This Court should deny the Petition, affirm PERB's Decision and theremedies ordered, and, on the basis ofthis record, with the Boling Petitionersnow before it, exercise its jurisdiction to declare Prop B invalid as applied tocurrent and future City employees represented by Unions who are parties to theDecision. By such a declaration, this Court will provide a full measure ofrelief for the Ciry's persistent failure and refusal to meet and confer despiteUnions' repeated efforts to gain the City's timely compliance.ADOPTIONS Y REF RIENCE[CRC rule 8.200(a)(5)]To spare this Court additional reading, Unions oppose the BolingPetition and respond to the Boling Petitioners' Opening Brief, by joining inand adopting by reference the enrirery of Unions' Brief in Opposition to theCity's Petition for Writ of Extraordinary Relief in Case No. D069630. Infurther response to the Boling Petition, Unions also join in Respondent11
Ciry'sPERB's Briefs in response to both the Boling Petition (D069626) and theI.Petition(D069630}.Unions Do Not Objec4 to Boling Petitioners Being Heard beforeThis Court So That Complete ReliefIs Attainable Without FurtherProtracted, Costly ProceedingsUnionsjoin in and acknowledge the correctness ofPERB's argumentsthat the Boling Petitioners do not have standing to petilion for a writ ofextraordinary relieffrom PERB'sDecision No.2464-M under the controllingMMBA statutory scheme.However,since this Court has deferred the standing issue to be decidedwith the merits ofthe BolingPetitiom-afterfullbriefing by all parties,Llaionsprefer Chatthis Court hear and resolve Boling Petitioners' defense oftheir localinitiative rights in the context ofChe MMBA and this record. Unions refer thisCourt to their Argument, Section V,in their BriefOpposing the City's Petition(69630) which they adopt here by reference.PERB's Order does not invalidate Prop B in whole or in part. PERBspecifically defers to the power of a court to address invalidation of thismunicipal election result.(XI-1863023.) However,the Boling Petition treatsPERB's Decision No. 2464-M asifit does invalidate the PropB/Comprehensive Pension Reform Initiative("CPRI"), though the BolingPetition erroneously entitles it"Citizens'Pension Reform Initiative."(BOB 9.)12
As the Boling Petition sees it, "the outcome imposed by PERB wasnullification ofProposiCion B."(BOB 48.) Because the BolingPetitionersreadPERB's Decision as essentially "undoing"the effects ofProp B in its entirety(not only as applied to represented employees and Unions),they ask this Courtto vacate and set aside PERB's Decision and Order.For the reasons stated in Unions' Opposition Brief to City's Petition(D069630),Phis Court has the power —confirmed by established precedents inpost-election proceedings — to declare the invalidity of Prop B as applied torepresented employees covered by the PERB Decision and should do so on thisrecord. With the City, PERB and all Real Parties In Interest now before it,.,including the .Boling "official proponents," this Court's exercise of itsjurisdiction to provide a declaration of Prop B's invalidity "as applied" tocurrent and future represented employees covered by PERB's Decision 2464M,will provide full reliefin furtherance ofthe MMBA's statewide objectiveswhile sparing all parties additional costly litigation —only to return here onreview or appeal.II.'phis Court Determined in 2012 That, Despite the ConstitutionalIssues Which May e Implicated, PERB F as Exclusive InitialJurisdiction 'To Adjudicate Unions' iTnfair Practice ChargesRelated to the Comprehensive Pension Reform Initiatflve/Prop BThe California Legislature created a comprehensive labor relationsscheme for local agencies(cities, counties and special districts) and employee!//13
organizations when it enacted the Meyers-Milias-Brown Act(MMBA) in1968. The MMBA is codified at Government Code section 3500 et seq.In 2000,the Legislature brought the MMBA withinPERB'sjurisdictionby adding section 3509 to give PERK exclusive initial jurisdiction overcomplaints alleging unfair labor practices under the MMBA. (§ 3509; CityofSan Jose v. Operating Engineers Local Union No. 3(2010)49 Ca1.4th 597,605.)"A complaint alleging any violation ofthis chapter . shad be processedas an unfair practice charge by the board," with "the initial determination asto whether the charge of unfair practice is justified and, ifso,the appropriateremedy necessary to effectuate the purposes of this chapter, shall be a matterwithin the exclusivejurisdiction ofthe board.".(Gov. Code § 3509,subd.(b).)Boling Petitioners assert that"PERB had nojurisdiction to conduct thehearing, which it so badly mismanaged to the exclusion of Proponents," andthat this Court erred when it concluded otherwise in San Diego MunicipalEmployees Association v. Superior Court (Cityof San Diego)(2012) 206Ca1.App.4th 1447. (Boling Petitioners' Opening Brief["BOB"] at 23.)However, the issue of PERB's initial exclusive jurisdiction has been fullylitigated and finally decided.///PERB's expanded jurisdicCion to cover local government agencies does not applyto persons employed as peace officers. (Gov. Code § 3511,"Peace offccerexemption.")14
After this Court issued its Order to Show Cause and set oral argumenton the petition for writ of mandate (D061724) leading to the publisheddecision in San Diego Municipal Employees Association, the City filed a newWrit Petition (D062090), invoking this Court's original jurisdiction (Cal.Const., arC. VI, §10), naming the Boling Petitioners as real parties in interestand seeking a stay of all CPRI-related proceedings before PERB or in thesuperior court on the basis of the identical jurisdictional and constitutionalissues being addressed in the City's opposition to SDMEA's pending writ.After oral argumentin the San Diego MunicipalEmployees Associationwrit case on June 13, 2012, this Court issued a summary denial ofthe City'snew Writ PetiEiog(D062090),and on 7us e 19,2012,filed a 25-page publishedopinion in San Diego Municipal Employees Association v. Superior Court(City of San Diego)(2012) 206 Ca1.App.4th 1447, granting MEA's Writ,upholding PERB's initial exclusivejurisdiction, and directing the respondentsuperior court to enter a new order denying the City's motion to stay the PERBproceedings. In pertinent part, this Court concluded:The mere fact that constitutional rights may be implicated orhave some bearing on this dispute is not in and of itselfsufficient to divest PERB ofits exclusive initial jurisdiction toconsider [the union's] allegations that City's conduct violatedthe MMBA.[.][T]he issues here do involve mixed questionsoflaw and fact, and therefore judicial intervention at this stagewould deny us the benefit ofPERB's administrative expertise.Moreover,on the core legal questions, we have not received thebenefit ofPERB's views on the issues through its briefs in thiscourt, because PERB's briefs in this proceeding have been15
limited to defending its exclusive initial jurisdiction over thedispute, and have not contained PERB's view on the merits ofwhether the CPItF constituted an unfair labor practice. (SanDiego MunicipalEmployeesAssn. v. Superior Court(2012)206Ca1.App.4th 1447, 1458, 1463.)In response, the Boling Petitioners and the City worked as a legal tagteam to stop PERB's proceedings. On June 22, 2012, the Boling Petitionersfiled a Petition for Review (5203478) of this Court's summary denial of theCity's Writ Petition D062090, which named the Boling Petitioners as realparties in interest. However, the Boling Petitioners never mentioned thisCourt's Opinion in San Diego MunicipalEmployees Association; nor did theyinclude a copy in their Petition. They told the Supreme Court that this Court"had summarily --dismissed -the City's- Writ Petition.D062090 withoutanswering basic jurisdictional questions before PERB holds hearings."On June 28, 2012, the Ciry filed a petition for rehearing in San DiegoMunicipal Employees Association which this Court denied on July 3, 2012.On June 25, 2012, the Supreme Court requested Answers.from PERKand Unions in response to the Boling Petition(5203478) which were filed onJuly 3,2012. The Boling Petitioners filed a Reply on July 9,2012,and on July11, 2012, the court denied the petition and application for stay of PERB'sadministrative proceedings scheduled to begin on July 17, 2012.The same day as this denial issued-6 days before the scheduled PERBhearing - the City filed a new PetiCion for Extraordinary Relief, Including16
Writ of Mandate and Request for Immediate Stay of PERB's Proceedings,Case No. 5203952. On July 13, 2012, the Supreme Court denied the City'spetition and application for stay.On July 27,2012,the City filed a Petition for Review(5204306)in SanDiego MunicipalEmployees Association, which the Supreme Court denied onAugust 29, 2012.Boling Petitioners' re-assertion in their Petition of the samejurisdictional argument already decided by this Court in San Diego MunicipalEmployees Association, is frivolous.III.Despite 'heir On-Going Litigation Efforts Before the Superior andAppellate Courts in 2012, the doling Petitioners Never SoughtParty Or Intervenor Status Before P R Boling Petitioners assert that "PERB excluded Proponents from thehearing, except to allow limited testimony by their attorney,"(BOB 15), andthat"PERB denied Proponents any role in the active adversarial process, theonly exception being through the City calling one ofProponents' attorneys asa witness."(BOB 44) In support of both assertions, Petitioners cite only AR15:192:3994, line 1-X4007, line L6, which is the testimony of their attorneyLounsbery, called as a witness by the City. There is no record citation tosupport the assertion of"exclusion" or "denial." Nor did PERB in fact orderthem excluded as parties, intervenors or witnesses. The three individualBoling Petitioners (Catherine April Boling, T. J. Zane and Stephen B.17
Williams)never applied to intervene in the PERB proceedings under PERB'sjoinder regulation as individuals with an interest relating to the subject oftheUPC action. (Cal. Code Regs., tit. 8, § 32164, subd.(d).) Nor did the Citya
San Diego, CA 92101 Telephone: (619) 239-7200 Email: asmith@ssvwlaw.com Attorneys for Real Party in Interest San Diego Municipal Employees Association. Fern M. Steiner, Esq,SBN 118588 Smith, Steiner, Vanderpool &Wax
