City of Monterey (PERB 1766M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LABORERS LOCAL NO. 270,
Charging Party,
v.
CITY OF MONTEREY,
Respondent.
Case No. SF-CE-128-M
PERB Decision No. 1766-M
May 	20, 	2005
Appearances: 	Weinberg, Roger & Rosenfeld, by Alan G. Crowley, Attorney, for Laborers
Local No. 270; William B. Conners, City Attorney, for City of Monterey.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the City of Monterey (City) to an administrative law
judge's (ALJ) proposed decision (attached). 	The unfair practice charge and complaint alleged
that the City violated the Meyers-Milias-Brown Act (MMBA)1 by denying the Laborers Local
No. 270 (Local 270) and a bargaining unit employee's representational rights at a disciplinary
hearing, conduct which constitutes a violation of MMBA section 3509(a) and PERB
Regulation 32603(a).2
The Board has reviewed the entire record in this matter, including the unfair practice
charge and supporting letters, the City's responses, the complaint, the answer, the parties' post-
MMBA is codified at Government Code section 3500, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.

hearing briefs, the ALJ's proposed decision, the City's exceptions and Local 270's response to
the City's exceptions. In light of this review, the Board finds that the ALJ's proposed decision
is free of prejudicial error and that the ALJ has adequately addressed the issues raised by the
City on appeal. The Board therefore adopts the ALJ's proposed decision as a decision of the
Board itself.
ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
case, it is found that the City of Monterey (City) violated Government Code sections 3502,
3503, 3506 and 3509, provisions of the Meyers-Milias-Brown Act (MMBA), and Public
Employment Relations Board (PERB) Regulation 35603(a) and (b). (Cal. Code Regs., tit. 8,
sec. 31001, et seq.) The City violated the MMBA by interfering with the right of an employee
to designate an employee organization representative for the purpose of representation on a
matter of employer-employee relations, and by interfering with the right of a recognized
employee organization to represent a member in his employment relations with the City.
Pursuant to section 3509(a) of the Government Code, it is hereby ORDERED that the
City, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with the right of employees to designate an employee
organization representative for the purpose of representation on a matter of employer-
employee relations.
2. 	Interfering with the right of a recognized employee organization,
Laborers Local No. 270 (Local 270), to represent a member in his employment relations with
the City.
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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to bargaining unit employees
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of the City, indicating that the City will comply with the
terms of this Order. 	Such posting shall be maintained for a period of thirty (30) consecutive
workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced in size,
altered, defaced or covered with any other material.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The City shall
provide reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on Local 270.
Chairman Duncan and Member Shek joined in this Decision.
3
3

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-128-M, Laborers Local No. 270 v.
City of Monterey, in which all parties had the right to participate, it has been found that the
City of Monterey (City) violated the Meyers-Milias-Brown Act (MMBA), Government Code
sections 3502, 3503, 3506 and 3509, and Public Employment Relations Board Regulation
35603(a) and (b). (Cal. Code Regs., tit. 8, sec. 31001, et seq.) The City violated the MMBA
when it interfered with the right of an employee to designate Laborers Local No. 270 (Local
270) as his representative in a matter of employer-employee relations, a termination hearing
before the City Council. 	In addition, the City violated the MMBA when it interfered with the
union's right to represent a member in an employment related matter, a termination hearing
before the City Council.
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1. 	Interfering with the right of employees to designate an employee organization
representative for the purpose of representation on a matter of employer-employee relations.
2. 	Interfering with the right of a recognized employee organization, Local 270, to
represent a member in his employment relations with the City.
Dated: 	CITY OF MONTEREY
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
LABORERS LOCAL NO. 270,
Charging Party,
v.
CITY OF MONTEREY,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-128-M
PROPOSED DECISION
(6/21/04)
Appearances: Weinberg, Roger and Rosenfeld, by Alan G. Crowley, Attorney, for Laborers
Local No. 270, LIUNA, AFL-CIO; William B. Conners, Assistant City Attorney, for City of
Monterey.
Before Fred D'Orazio, Administrative Law Judge.
PROCEDURAL HISTORY
This action was initiated on August 6, 2003, when Laborers Local No. 270 (Union or
Local 270) filed an unfair practice charge against the City of Monterey (City) alleging that the
City denied the Union and a bargaining unit employee representational rights at a disciplinary
hearing. The general counsel of the Public Employment Relations Board (PERB or Board) on
November 20, 2003, issued a complaint against the City. The complaint alleges that at a
termination hearing for a bargaining unit employee the City, through its agent the City
Council, ordered the employee's designated Union representative to leave the hearing room
because the City intended to call him as a witness. By this conduct, the complaint alleges, the
City interfered with employee rights guaranteed by the Meyers-Milias-Brown Act (MMBA)
section 3506 and committed an unfair practice under section 3509(a) and PERB Regulation
32603(a).1 The complaint also alleges that the City, by its conduct, denied the Union the right
1 The MMBA is codified at Government Code, section 3500, et seq. Unless otherwise
indicated, all subsequent references are to the Government Code. 	Section 3506 provides that:

to represent employees in violation of section 3503 and committed an unfair practice under
PERB Regulation 32603(b).2
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under Section
3502.
Section 3509(b) provides that:
A complaint alleging any violation of this chapter or of any rules
and regulations adopted by a public agency pursuant to Section
3507 or 3507.5 shall be processed as an unfair practice charge by
the board. 	The initial determination as to whether the charge of
unfair practice is justified and, if so, the appropriate remedy
necessary to effectuate the purposes of this chapter, shall be a
matter within the exclusive jurisdiction of the board. The board
shall apply and interpret unfair labor practices consistent with
existing judicial interpretations of this chapter.
PERB regulations are codified at California Code of Regulations, title 8, section 31001,
et seq. 	Regulation 32603(a) provides that it shall be an unfair practice for a public agency to
Interfere with, intimidate, restrain, coerce or discriminate against
public employees because of their exercise of rights guaranteed
by Government Code section 3502 or by any local rule adopted
pursuant to Government Code section 3507.
2 Section 3503 provides that:
Recognized employee organizations shall have the right to
represent their members in their employment relations with
public agencies. Employee organizations may establish
reasonable restrictions regarding who may join and may make
reasonable provisions for the dismissal of individuals from
membership. Nothing in this section shall prohibit any employee
from appearing in his own behalf in his employment relations
with the public agency.
PERB Regulation 32603(b) provides that it shall be an unfair practice for a public
agency to:
Deny to employee organizations rights guaranteed to them by
Government Code section 3503, 3504.5, 3505.1, 3505.3, 3507.1,
2

3508(d) or 3508.5 or by any local rule adopted pursuant to
Government Code section 3507.
The City filed an answer to the complaint on December 9, 2003, generally denying all
allegations and asserting a number of affirmative defenses. 	Denials and defenses will be
addressed below, as necessary.
A settlement conference was conducted by a Board agent on or about January 13, 2004,
but the matter was not resolved. The undersigned conducted a hearing in Oakland on March 3,
2004. With the receipt of the final brief on April 15, 2004, the matter was submitted for
decision.
FINDINGS OF FACT
The City is a public agency within the meaning of section 3501(c). 	The Union is an
employee organization within the meaning of section 3501 (a), a recognized employee
organization within the meaning of section 3501(b) and an exclusive representative within the
meaning of PERB Regulation 32016(b) of an appropriate unit of the City's employees. At all
relevant times, Marcus Trujillo was a public employee within the meaning of section 350l(d)
and a member of the unit represented by the Union.
In or about December 2002, City representatives suspected Trujillo, a custodian, of
being intoxicated while on the job. 	Police were called to the work site for an investigation.
Trujillo was released to his supervisor, Judi Hare, and her supervisor, George Helms. 	They
informed Trujillo that he would be tested for drugs, and he allegedly requested Union field
representative Tim McCormick represent him in the process. 	The request allegedly was denied
and a drug test was administered to Trujillo.
At no time was McCormick involved in the incident leading up to the decision to test
Trujillo. He was not a witness to Trujillo's behavior or movements on the day in question.
3

And he did not speak to Trujillo at that time regarding a request for representation. 	Trujillo
called McCormick after the interrogation and drug test to inform him of the results of the test
and that his request for representation had been denied. 	McCormick testified in this
proceeding that Trujillo told him during the telephone call that Hare and Helms refused his
(Trujillo's) request to contact him (McCormick) during the interrogation. 	McCormick said,
"[a]ccording to what [Trujillo] told me, he asked to call me before they said anything about
testing him for alcohol. 	They were interrogating him, and he wanted me to be present." As
more fully discussed below, Trujillo eventually was terminated and there was a dispute in his
subsequent appeal about whether he asked Helms and Hare for Union representation at the
time he was subjected to the drug test. 	Hare and Helms did not testify in this proceeding.
A few days after Trujillo was tested, he was called to another meeting with Hare and
Helms. 	Trujillo contacted McCormick for representation and McCormick did so from that
point forward. 	According to McCormick, Trujillo was upset at the meeting because he was
told that he would be terminated pending an investigation. 	The test had revealed that Trujillo's
blood alcohol content was borderline, and McCormick attempted to negotiate a settlement.
During the meeting, Trujillo was asked if he had been drinking on the job, and he responded
that he had been drinking the previous night. No settlement was reached at the meeting.
Trujillo next received a notice of intent to dismiss him and a Skelly3 hearing was
scheduled. 	Once again, McCormick represented Trujillo at the Skelly hearing. 	Approximately
one week later, Trujillo received a notice of termination.
After the notice of termination was issued, McCormick in February 2003 appealed to
City Manager Fred Meurer, the next formal step in the City's appeal procedure covering
disciplinary matters. In the appeal, McCormick wrote,
3 Skelly v. State Personnel Board (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14] (Skellv).
4

We hereby file an appeal to the Notice of Action for Termination
of Employment of Marcus Trujillo on the grounds of denial of
Weingarten[4] rights and violations of state and federal laws, in
obtaining evidence without proper cause. 	The Rules and
Regulations of the City of Monterey cannot preclude an
employee's right to be represented during an investigation,
contrary to Mr. Reichmuth's theory. Neither does the City have a
right to arbitrarily demand an employee to submit to invasive
tests without strong, compelling and objective evidence. 	Such
judgment became moot when the sworn law enforcement officers
became involved and the decision fell within their purview. 	We
do request a copy of the tape recording made during the
investigation. Furthermore, we request the names of the
investigating officers from Monterey Police department and any
report that they may have [been] made by them regarding this
incident.
Trujillo's appeal to the City Manager was unsuccessful, and McCormick appealed to the next
level.
The final step of the appeal process involved a hearing before the City Council. The
issues litigated in the hearing were the same as those argued before the City Manager.
Specifically, McCormick testified in this unfair practice hearing that evidence surrounding the
Weingarten issue was presented to the City Council. He said, "Mr. Trujillo was being
interrogated by the personnel department and his superiors prior to the alcohol test being
ordered at which point he requested me to be there according to him, and was denied that
right."
At the hearing before the City Council, the City was represented by attorney William
Connors, the City Council was represented by separate counsel, and McCormick was
designated as Trujillo's representative. 	Attorney Alan Crowley represented Local 270 in the
proceeding. 	On or about May 6, 2003, about one week prior to the hearing before the City
4NLRB v. J. Weingarten. Inc. (1975) 420 U.S. 251 [88 LRRM 2689] (Weingarten)
holds that an employee has a right to a union representative during meetings with management
where the employee reasonably fears adverse action may result.
5

Council, McCormick was informed by Connors that he would be called as a witness. 	The
same notice indicated that Hare and Helms would be called as witnesses.
Also prior to the hearing, Connors sent McCormick a proposed stipulation of facts.
McCormick agreed with most and disagreed with others. 	He forwarded the proposal to
Crowley with his input. Crowley signed the stipulation of facts on behalf of the Union and
returned it to Connors at the start of the hearing.
At the outset of the hearing on May 13, 2003, Connors moved to sequester McCormick
as a potential witness. Connors cited a published opinion of the California Attorney General as
authority for the proposition that permitting McCormick to remain in the hearing would violate
the Ralph M. Brown Act (Brown Act).5 McCormick was surprised by the request to exclude
him. He testified that he has been a Union representative for some 29 years and has never been
excluded from a hearing. 	Crowley opposed the motion to sequester.
The City Council granted the motion and excluded McCormick from the hearing. 	He
waited outside the hearing room for three hours while the hearing was conducted. 	He was not
called as a witness. The parties stipulated that one of the defenses raised before the Council
was denial of Weingarten rights, and there was some questioning of witnesses regarding that
issue.
The parties also stipulated that Helms remained in the City Council hearing as a
designated representative of the City and testified in the proceeding. In reaching the
stipulation, Conners took the position in this proceeding that Helms was permitted to remain in
the hearing because he was a party and could not be excluded, "even though in a sense it does
present unfairness." 	Conners compared Helms' status with the status of Trujillo, who could
not be excluded from the room by virtue of his status as a party.
5 The Brown Act is codified at Government Code section 54950, et seq.
6

In this proceeding, McCormick testified that he was Trujillo's "chosen representative"
in the City Council hearing. 	He said that Crowley "was representing the union. He was
employed by the union, he was representing me as the union representative, not Mr. Trujillo,
correct." In his testimony, McCormick emphasized that Crowley advocated for Trujillo, but he
was not Trujillo's designated representative. 	According to McCormick, "you [Connors] were
raising procedural arguments, and I wanted an attorney who has passed the bar there to be able
to argue procedural arguments because you were trying to exclude the union and other issues
that you were raising, . . . and I wanted somebody there to argue the case for me." Asked by
counsel for the City if he recalled saying to the City Council that Crowley represented Trujillo
and the Union, McCormick responded, "[a]bsolutely not, he couldn't have said that because
Mr. Trujillo was not paying Mr. Crowley, Local 270 was paying Mr. Crowley. He represented
the union, only the union."
ISSUES
1. 	Did the City, by excluding McCormick from the hearing before the City
Council, interfere with Trujillo's right to representation by an employee organization under the
MMBA?
2. 	Did the City, by excluding McCormick from the hearing before the City
Council, interfere with the Union's right to represent its members under the MMBA?
CONCLUSIONS OF LAW
The rights at issue in this proceeding are found primarily in sections 3502 and 3503.
Section 3502 provides in relevant part that "public employees shall have the right to form, join,
and participate in the activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee relations." Section 3503
7

provides that "recognized employee organizations shall have the right to represent their
members in their employment relations with public agencies."
The MMBA prohibits a public agency from interfering with employee representational
rights. 	Specifically, section 3506 provides in relevant part that "public agencies . . . shall not
interfere with, intimidate, restrain, coerce or discriminate against public employees because of
their exercise of their rights under Section 3502." And PERB Regulation 32603(b) provides
that it is an unfair practice for a public agency to interfere with the rights of an employee
organization granted by section 3503.
The test for whether the City has interfered with rights guaranteed by the MMBA does
not require that unlawful motive be established; it requires only that at least slight harm to
employee rights results from the conduct. 	The courts have described the standard as follows:
All [a charging party] must prove to establish an interference
violation of section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise of those activities, and (3) that employer's conduct was
not justified by legitimate business reasons. 	[Public Employees
Association of Tulare County, Inc. v. Board of Supervisors of
Tulare County (1985) 167 Cal.App.3d 797, 807 [213 Cal.Rptr.
491] (Tulare).]
McCormick's unrebutted testimony is that Trujillo designated him as his "chosen
representative" in the termination hearing before the City Council, and he (McCormick)
attempted to represent Trujillo. 	McCormick also testified without rebuttal that Crowley
"absolutely" was not Trujillo's designated representative; Crowley was present to represent
"the union, only the union." Therefore, it cannot be disputed that Trujillo participated in
protected conduct under section 3502 when he designated McCormick as his representative
during his termination hearing before the City Council. 	It similarly cannot be disputed that
McCormick engaged in protected conduct under section 3503 when he attempted to act as
8

Trujillo's representative in his capacity as a representative of a recognized employee
organization. The exercise of these rights is protected under the MMBA. (Civil Service
Association v. City and County of San Francisco (1978) 22 Cal.3d 552, 565-568 [150 Cal.Rptr.
129] (City and County of San Francisco).)
McCormick had represented Trujillo throughout the disciplinary process and was the
person most familiar with the facts of the case and the issues raised at the various levels of the
appeal process. These included, for example, Trujillo's blood-alcohol content, the extent of his
consumption of alcohol on the day in question, and the settlement discussions pursued by
McCormick. McCormick also had heard Trujillo's version of the Weingarten defense, the
claim that the City had obtained evidence improperly and the assertion that the City had acted
improperly when law enforcement officers entered the picture. 	Indeed, Conners' proposed
stipulation of facts was first presented to McCormick, not Crowley. And Crowley entered into
the stipulation only after McCormick reviewed it for accuracy. 	It is, therefore, reasonable to
conclude that McCormick was designated as Trujillo's representative precisely because he had
the kind of knowledge about the case that would be most helpful at the hearing. The exclusion
of McCormick from the hearing interfered with the Union's and Trujillo's rights and impacted
Trujillo's defense in a practical way.
The City contends that because Crowley was present to serve as an advocate for
Trujillo in the termination hearing, the City Council did not abuse its discretion; in other
words, the City takes the position that the decision to exclude McCormick was reasonable
under the circumstances. 	This claim fails to recognize the specific rights at issue here.
Granted, Crowley was present at the hearing and served as the attorney on the case to
represent the Union in presenting the case for Trujillo. 	However, it bears repeating that
Crowley was not the representative designated by Trujillo under section 3502, nor was he the
9

designated Union representative under section 3503. 	Crowley was McCormick's attorney,
hired by the Union to advise McCormick and represent certain Union interests at the hearing,
as well as to serve as an advocate for Trujillo. 	McCormick convincingly testified that he
requested Crowley's presence to represent the Union because Connors had raised procedural
arguments and he wanted an attorney to argue on his behalf.
As the Union correctly argues, adoption of the argument advanced by the City would,
in effect, permit the City to determine the particular individual who is to serve as an employee
or union representative under a standard of reasonableness, as determined by the City. This
would run counter to the well established principle that an employee organization has the right
to designate its own representatives in dealing with the employer. 	(See e.g., San Ramon
Valley Unified School District (1982) PERB Decision No. 230, p. 16, parties have a right to
determine their representatives during negotiations and neither party may dictate selection of
representatives.) By excluding McCormick from the hearing under the rationale that
Crowley's presence satisfied all MMBA rights, the City interfered with the Union's right to
designate a representative to represent a member in an employment-related matter, as well as
with Trujillo's right to designate a representative of his choice.
The remaining question is whether the City's conduct in excluding McCormick from
the hearing was justified as a legitimate business reason under the Tulare test. 	At Trujillo's
hearing, the City moved to exclude McCormick for two primary reasons. 	First, the City argued
that McCormick's presence in the hearing would violate the Brown Act. 	As support for this
argument, the City relied on 46 Ops.Cal.Atty.Gen. 34 (1965). 	Second, the City argued,
McCormick should be sequestered as a potential witness who would testify about Trujillo's
Weingarten defense. 	For the following reasons, I conclude that the City's arguments in
10

support of the decision to exclude McCormick from the City Council hearing cannot be
justifie . d as a legitimate reason under the statutory scheme of the MMBA.
The MOU between the parties provides in section 34 that
Personnel Rules and Regulations in effect at the time of
ratification of this agreement shall prevail unless superseded
specifically by this Memorandum of Understanding or by mutual
agreement between the City and the Union. 	This section does not
subject those Personnel Rules and Regulations which would
otherwise be excluded from the meet and confer process to any
need to meet and confer.
The Code of the City of Monterey, section 25-15.01, contains the procedure to be
followed during a disciplinary hearing before the City Council. 	It provides in relevant part
that
The City Council hearing shall be closed, unless requested to be
open by the employee, formal rules of evidence shall not apply,
and principles of due process will be applied. Provisions of the
Ralph M. Brown Act, the City Charter, and the City Code shall
apply to all such hearings.
The City's claim that the Brown Act applies and expressly gives the City Council the
authority to exclude witnesses such as McCormick from a termination proceeding is
unconvincing. It is true that section 54957(b)(l) of the Brown Act gives the City Council the
authority to hold a closed session to consider dismissal of an employee. 	In relevant part, that
section provides
(b) (1) Subject to paragraph (2), nothing contained in this chapter
shall be construed to prevent the legislative body of a local
agency from holding closed sessions during a regular or special
meeting to consider the . . . dismissal of a public employee or to
hear complaints or charges brought against the employee by
another person or employee unless the employee requests a public
session.
Section 54957(b)(3) gives the City Council the general authority to exclude witnesses from a
dismissal proceeding. 	It provides
11

(3) The legislative body also may exclude from the public or
closed meeting, during the examination of witnesses, any or all
other witnesses in the matter being investigated by the legislative
body.
While it is true that section 25-15.01 provides that the Brown Act is applicable to City
Council hearings and section 54957(b)(3) gives the City Council the discretion to sequester
witnesses, it does not necessarily follow that the general discretion to do so automatically
trumps specific MMBA rights. 	The City Council's authority is permissive; it is not mandatory
and thus need not be exercised in every single instance. As the plain language of the statute
indicates, the City Council "may exclude" witnesses. Permissive authority such as is included
in section 54957(b)(3) may not be exercised in a manner that violates the rights of employees
or employee organizations under the MMBA. 	(cf. McFarland Unified School District v. Public
Employment Relations Board (1991) 228 Cal.App.3d 166 [11 Cal.Rptr.2d 405], even though
school district has complete authority under Education Code not to reelect probationary
teacher, it may not exercise its authority in manner that violates the Educational Employment
Relations Act (EERA).6)
The City insists, nevertheless, that excluding McCormick from the hearing before the
City Council was a reasonable exercise of discretion that is not uncommon in administrative
hearings. 	The City asserts that even PERB has the authority to exclude witnesses from
hearings under PERB Regulation 32170(d), which gives a Board agent the general authority to
"regulate the course and conduct of the hearing, including the power to exclude a witness from
the hearing room." As noted above, however, that authority may not be exercised in a manner
that interferes with the right to representation under the various collective bargaining statutes
administered by the Board. 	Although evidence about the application of PERB Regulation
6 EERA is codified at section 3540, et seq.
12

32170(d) in Board hearings is not in the record and therefore is not determinative of the issues
raised here, the City's reliance on the regulation warrants a comment. 	Under the general
practice in PERB hearings conducted by administrative law judges, each party is permitted to
designate a representative to assist counsel. Designated representatives who are witnesses are
permitted to remain in the hearing room during the hearing, even if a motion to sequester
witnesses is granted at the outset.
More importantly, the MMBA itself specifically precludes the kind of Brown Act
restriction imposed by the City Council on the right to representation. 	The California Supreme
Court, in a slightly different context, has observed that section 3508 provides "the right of
employees to form, join and participate in the activities of employee organizations shall not be
restricted by a public agency on any grounds other than those set forth in this section." (Italics
added; Social Workers' Union. Local 535 v. Alameda County Welfare Department (1974) 11
Cal.3d 382, 387 [113 Cal.Rptr. 461], right to representation attaches to employer-conducted
interview which an employee reasonably fears may ultimately lead to disciplinary action
because of such union-related conduct.) By excluding McCormick from the hearing room, the
City Council exercised its authority in a manner that interfered with guaranteed rights under
the MMBA.7
The City Council's decision was unreasonable for another reason. 	In dealing with a
motion to sequester witnesses, it is not uncommon for the trier of fact to require a witness to
testify first, and permit the witness to remain in the hearing room thereafter, even if it results in
calling a particular witness out of order. Also, sequestration of witnesses is not always
required. 	In situations where a union representative is not sequestered and testifies after
hearing the testimony of other witnesses, the City Council may consider that fact in weighing
testimony prior to reaching its ultimate conclusion. 	There is no evidence that the City Council
considered these or other options prior to excluding McCormick from the hearing. 	Instead, the
City Council excluded McCormick for the entire hearing and thus exercised its discretion
under the Brown Act in a manner that interfered with MMBA rights.
13

The City's reliance on 46 Ops.Cal.Atty.Gen. 34, cited by Conners at the hearing as
authority to exclude McCormick, is misplaced. 	The issue addressed in that opinion was
framed by the Attorney General as follows:
Under the Ralph M. Brown Act, if the legislative body of a local
agency properly holds an executive session to consider certain
personnel matters, may one member of the press be admitted and
all others excluded from such a session?
The Attorney General concluded that "neither members of the press nor any other individuals
who are not witnesses in the matter being investigated may be admitted to an executive session
held by a local agency pursuant to Government Code section 54957. 	The Ralph M. Brown Act
does not permit exceptions to be made for one or more members of the press or for any other
member of the public." (46 Ops.Cal.Atty.Gen. 34, p. 34.) Pointing to considerations of
"secrecy, confidentiality, and absence of publicity," the Attorney General reasoned that "the
entire purpose of the provisions of section 54957, insofar as they authorize executive sessions,
would be rendered nugatory by permitting individuals, other than members of the agency, to
attend such so-called 'executive' sessions." The Attorney General observed, moreover, that
members of the press are in the same position as members of the public. (46
Ops.Cal.Atty.Gen. 34, p. 35.)
The Attorney General's opinion has little application here. First, the opinion predated
the Legislature's decision to establish the MMBA rights at issue in this proceeding. For this
reason alone, the Attorney General could not have considered the right of employees and
employee organizations under the MMBA and therefore the opinion adds little to the resolution
of this dispute. Second, the opinion addresses the right of one member of the press to attend an
executive session at the exclusion of others. 	The Attorney General concluded that "neither
members of the press nor any other individuals who are not witnesses in the matter being
14

investigated may be admitted to an executive session" under section 54957. 	In this case,
McCormick was not scheduled to be a mere spectator, a member of the public or a member of
the press. Not only was he designated as the representative of Trujillo and the Union,
McCormick was to be a witness. Thus, even under the plain language of the Attorney
General's opinion, it was improper to exclude McCormick.
It is important to note, moreover, that opinions of the Attorney General are not binding.
One court has observed that "Attorney General opinions are not binding authority, but are
persuasive authority since we presume the Legislature is aware of the Attorney General's
construction and would take corrective action if they believed the legislative intent had been
misstated." (Southern Pacific Pipe Lines. Inc. v. State Board of Equalization et al. (1993) 14
Cal.App.4 th 42, 54 [17 Cal.Rptr.2d 345], citing Aguimatang v. California State Lottery (1991)
234 Cal.App.4 th 769, 791 [286 Cal.Rptr.2d 57].) While the Legislature's enactment of the
MMBA may not have been in direct response to 46 Ops.Cal.Atty.Gen. 34, it is worth repeating
that the MMBA was enacted after that opinion was issued and plainly provided the right of
employees to participate in the activities of an employee organization for the purpose of
representation in matters of employer-employee relations (sec. 3502), and the right of
employee organizations to represent their members in their employment relations. 	(Sec. 3503.)
It is also noteworthy that the Attorney General is not charged with interpreting the
MMBA in the first instance. 	It is well established that PERB has jurisdiction over conduct that
is arguably protected or prohibited by the MMBA. 	(Sec. 3509;8 see also El Rancho Unified
Section 3509 provides
(a) The powers and duties of the board described in Section
3541.3 shall also apply, as appropriate, to this chapter and shall
include the authority as set forth in subdivisions (b) and (c).
Included among the appropriate powers of the board are the
15

School District v. National Education Association (1983) 33 Cal.3d 946, 953-960 [192
Cal.Rptr. 123]: San Diego Teachers Association v. Superior Court (1979) 24 Cal.3d 1 [154
Cal.Rptr. 893].) It is the Board, moreover, that has broad authority to "investigate unfair
practice charges or alleged violations of [the EERA], and to take such action and make such
determinations in respect of such charges or alleged violations as the board deems necessary to
effectuate the policies of [the EERA]." (Leek v. Washington Unified School District (1981)
124 Cal.App.3d 43, 48-49 [177 Cal.Rptr. 196].) Under section 3509, PERB has the same
authority with respect to unfair practice charges alleging violations of the MMBA. It is the
Board who is the final arbiter regarding disputes under the MMBA, not the Attorney General.
Accordingly, while opinions of the Attorney General may be afforded some weight as a
general rule, it would be improper to rely on an opinion of the Attorney General that pre-dated
the enactment of the MMBA to resolve this dispute.9
power to order elections, to conduct any election the board
orders, and to adopt rules to apply in areas where a public agency
has no rule.
(b) A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a public agency pursuant to
Section 3507 or 3507.5 shall be processed as an unfair practice
charge by the board. The initial determination as to whether the
charge of unfair practice is justified and, if so, the appropriate
remedy necessary to effectuate the purposes of this chapter, shall
be a matter within the exclusive jurisdiction of the board. The
board shall apply and interpret unfair labor practices consistent
with existing judicial interpretations of this chapter.
9 Other opinions of the Attorney General cited by the City in its closing argument
similarly involve unrelated issues and thus provide little support for its position. 	In 82
Ops.Cal.Atty.Gen. 29 the Attorney General concluded that an alternate member of a Local
Agency Formation Commission, when not serving in place of a regular member, may
participate in public hearings and deliberations of the commission, but may not attend closed
sessions of the commission. In 83 Ops.Cal.Atty.Gen. 221 the Attorney General concluded that
the mayor of a charter city, who is designated as the executive head of the city by the city
charter, may not attend a closed session of the city's redevelopment agency when the purpose
16

of the closed session is to conduct a conference with the agency's real property negotiators
who are negotiating the disposition and development of certain properties. Neither of these
opinions involve MMBA rights and thus will be given no weight here.
The City's argument that the City Council had the authority under California Evidence
Code section 777 to exclude McCormick is unconvincing because it overlooks the clear intent
of the City Code that the formal rules of evidence not apply in such hearings.10 The plain
language of a local rule will be accepted where it is clear and unambiguous. 	(Westlands Water
District (2004) PERB Decision No. 1622-M, p. 7.) Section 25-15.01 of the City Code states in
mandatory terms that "formal rules of evidence shall not apply." 	Therefore, it would be
contrary to the plain terms of the City Code for the City Council to rely on a formal rule of
evidence as a basis to exclude McCormick from the hearing. 	A more reasonable interpretation
of section 25-15.01 is that the City Council is required to exercise its discretion in conducting a
fair hearing while guided by the "principles of due process." The City Council did not do so in
Trujillo's hearing for at least two reasons. 	First, as discussed above, it exercised its authority
in a manner that interfered with MMBA rights. 	Second, it excluded McCormick from the
hearing while permitting Helms to remain in the hearing room as a witness and a City
representative.
10 Evidence Code section 777 provides as follows:
(a) Subject to subdivisions (b) and (c), the court may exclude
from the courtroom any witness not at the time under
examination so that such witness cannot hear the testimony of
other witnesses.
(b) A party to the action cannot be excluded under this section.
(c) If a person other than a natural person is a party to the action,
an officer or employee designated by its attorney is entitled to be
present.
17

At the unfair practice hearing, the City conceded that Helms, who had been involved in
Trujillo's case from the beginning, testified in the City Council hearing and was permitted to
remain in the hearing room throughout the proceeding as a representative of the City. 	In
advancing this argument, the City equated Helms' status with that of Trujillo and asserted at
the unfair practice hearing that Helms "can't be excluded, even though in a sense it does
present unfairness. 	The same way Mr. Trujillo was not excluded from the room so he couldn't
hear the witnesses either because he is a party, and this was the party." However, even if
McCormick did not have the right to be present as a party under the Evidence Code, he had a
right under the MMBA to participate in the proceeding on equal footing as Helms by virtue of
his status as the representative of the recognized employee organization that negotiated the
MOU insuring an appeal procedure would be available for bargaining unit employees, as well
as his status as Trujillo's designated representative. As Connors noted at the hearing in this
matter, excluding McCormick while permitting Helms to remain in the hearing room did
"present unfairness."
In addition, the issues raised here are distinguishable from those in Uplands Police
Officers Association et al. v. City of Upland (2003) 111 Cal. App.4 th 1294 [4 Cal.Rptr.3d 629]
(Uplands), a case relied on by the City. In Uplands, the city attempted to interrogate a police
officer who was also president of the association about matters that could lead to adverse
action. 	The officer requested representation by an association attorney. 	After rescheduling the
meeting twice, the attorney informed the department that circumstances still prevented him
from attending. 	The department informed the officer that he could select another
representative. 	The officer claimed he was entitled to his chosen representative, but the
department proceeded with the interrogation. 	The police officer and his association later
18

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sought an injunction to stop the city from conducting interrogations if the chosen
representative of the officer was unavailable.
The court held that the right to representation under the Public Safety Officers
Procedural Bill of Rights11 is to be determined under a standard of reasonableness, and it was
reasonable for the department to refuse to postpone the interrogation under the circumstances
presented to the court. 	The court reasoned that the association's position could lead to an
absurd result; that is, "an officer could prevent any interrogation by simply choosing a
representative who would never be available." (Uplands, at p. 1305.) Although the
Legislature intended to give police officers procedural rights during interrogations, the court
continued, it did not intend to allow the officers to dictate, by their choice of representative,
whether an interrogation would occur at all. 	The court concluded that the officer "must select
a representative who is reasonably available to represent the officer, and who is physically able
to represent the officer at the reasonably scheduled interrogation." (Uplands, at p. 1306.)
I find that Uplands is not controlling here. 	First, the central concern described by the
court in Uplands ~ that adoption of the association's position would lead to absurd results ~ is
not present here. 	The court was concerned that an officer could prevent an interrogation
simply by choosing a representative who would never be available, thus thwarting the
legislative purpose in enacting a provision that balances the idea of fundamental fairness for
officers against the need for efficient internal affairs investigations. 	(Uplands, at p. 1302.) In
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this case, there could have been no realistic concern that the presence of McCormick in the
City Council hearing would thwart any legislative purpose. 	As noted earlier, exclusion of
McCormick was not mandatory under the Brown Act. 	McCormick did not seek to postpone
The Public Safety Officers Procedural Bill of Rights is codified at section 3300, et
seq.
19

the hearing or interfere with the proceeding in any way. He attempted only to remain in the
hearing as a representative. It was the exclusion of McCormick, a designated Union
representative, from the disciplinary hearing that thwarted the fundamental purpose of the
MMBA, which is to provide a "uniform basis for recognizing the right of public employees to
join organizations of their own choice and be represented by those organizations in their
employment relationships with public agencies." (Sec. 3500.)
Second, even under a so-called reasonableness standard, the exclusion of McCormick
from the hearing does not withstand scrutiny. 	As discussed above, excluding McCormick from
the hearing room while permitting Helms to remain was unreasonable.
Regarding a related point, the City claims that the City Council acted reasonably out of
a concern that the Union's request for multiple representatives at a hearing may prove
disruptive. 	The City advances this concern in its prehearing brief as follows: "To thwart the
clear intent of the Brown Act that closed sessions not be open to any persons but those who
must be there, all the Union need do is appoint as many of its members as it wants to be
present in the hearing. So, all of the public could be excluded, yet 50 or 100 Union members
could be allowed to attend the confidential session by simply being designated as a
representative. 	This notion is key, since the Union discounts the fact the employee was
represented by a Union provided representative, his counsel." (Italics in original.)
The City's concern is, of course, highly exaggerated and need not be addressed here in
detail. 	Suffice it to say that if the Union designated "50 or 100" representatives we would have
a different case. 	But that is not what happened here. 	In this matter, the Union and Trujillo
designated only one representative, McCormick, and he was excluded from the hearing. 	The
concern that the Union may disrupt a disciplinary hearing with multiple representatives is not a
valid basis to interfere with protected representational rights.
20

The City next points out that it is the respondent in this matter, and the City Council
participated merely as a quasi-judicial body, "a neutral decider of cases." The City contends
that it did not interfere with McCormick's or Trujillo's representational rights; rather, the City
Council in its capacity as a neutral body took the complained of action. 	Therefore, the City
argues, it has taken no unlawful action. 	I find this argument unpersuasive for the following
reasons.
As the City concedes in its answer, the City attorney prosecuting the disciplinary action
against Trujillo initiated the arguments upon which the City Council relied in excluding
McCormick. 	And the City Council did not act as a totally independent entity in this matter.
The Council is a component of the City government and acts on behalf of the City under
authority of applicable laws and regulations. 	In this instance, its decisions in Trujillo's hearing
were binding on the City. Moreover, an agency relationship exists where the principal grants
an agent the express authority to perform a contested act or the alleged agent had the ostensible
authority to do so. 	(Inglewood Unified School District (1990) PERB Decision No. 792.)
Under this standard, it is fair to characterize the City Council as an agent of the City and to
hold the City responsible for its actions.
REMEDY
Pursuant to section 3509(a), the PERB under section 3541.3(i) is given the authority
To investigate unfair practice charges or alleged violations of this
chapter, and take any action and make any determinations in
respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter.
It has been found that the City interfered with Trujillo's right to designate a
representative of his choice to represent him in a dismissal hearing before the City Council, in
violation of section 3502. 	It has also been found that the City interfered with the Union's right
21

to represent a member in his employment relations with the City, in violation of section 3503.
By its conduct, the City has also violated section 3506. 	It is therefore appropriate to order the
City to cease and desist from interfering with protected rights under the MMBA.
It is further appropriate that the City be directed to post a notice incorporating the terms
of the order. Posting such a notice, signed by an authorized agent of the City, will provide
employees with notice the City has acted in an unlawful manner, is being required to cease and
desist from such activity, and will comply with order. 	It effectuates the purposes of the
MMBA that employees be informed of the resolution of this controversy and the City's
readiness to comply with the ordered remedy. 	(County of Sacramento (2004) PERB Decision
No. 1581-M.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
case, it is found that the City of Monterey (City) violated Government Code sections 3502,
3503, 3506 and 3509, provisions of the Meyers-Milias-Brown Act (MMBA), and Public
Employment Relations Board (PERB or Board) Regulations 35603(a) and 35603(b). 	(Cal.
Code Regs., tit. 8, sec. 31001 et seq.) The City violated the MMBA by interfering with the
right of an employee to designate an employee organization representative for the purpose of
representation on a matter of employer-employee relations, and by interfering with the right of
a recognized employee organization to represent a member in his employment relations with
the City.
Pursuant to sections 3509(a) and 3541.3(i) of the Government Code, it is hereby
ORDERED that the City, its governing board and its representatives shall:
22

A. 	CEASE AND DESIST FROM:
1. 	Interfering with the right of employees to designate an employee
organization representative for the purpose of representation on a matter of employer-
employee relations.
2. 	Interfering with the right of a recognized employee organization,
Laborers Local No. 270, to represent a member in his employment relations with the City.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE MMBA:
1. Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees customarily are posted, copies of the
Notice attached hereto as an Appendix. 	The Notice must be signed by an authorized agent of
the City, indicating that the City will comply with the terms of this Order. Such posting shall
be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
2. Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the San Francisco Regional Director of the Public
Employment Relations Board (PERB or Board) in accord with the director's instructions.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Board itself within 20 days of service of this Decision. 	The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
23

In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Fred D'Orazio
Administrative Law Judge
24
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