City of Palo Alto * * * SUPERSEDED by City of Palo Alto (2017) PERB Decision No. 2388a-M (PERB 2388M)

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SUPERCEDED by City of Palo Alto (2017) PERB Decision No. 2388a-M

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL 1319, AFL-CIO,
Charging Party, Case No. SF-CE-869-M
v. PERB Decision No. 2388-M
CITY OF PALO ALTO, August 6, 2014
Respondent.

Appearances: Davis & Reno by Duane W. Reno, Attorney, for International Association of
Firefighters, Local 1319, AFL-CIO; Renne, Sloan, Holtzman & Sakai by Charles D. Sakai,
Attorney, for City of Palo Alto.
Before Huguenin, Winslow and Banks, Members.
DECISION

HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by the International Association of Firefighters, Local 1319,
AFL-CIO (Local 1319) and cross exceptions by the City of Palo Alto (City), to the proposed
decision (attached) of an administrative law judge (ALJ) pursuant to an unfair practice charge
filed on July 28, 2011 by Local 1319 against the City under the Meyer-Milias-Brown Act
(MMBA). |

The complaint, issued by PERB's Office of the General Counsel on September 7, 2011,
alleged that without prior consultation in good faith with Local 1319, the City took action on

July 18,2011, to adopt rules for the administration of employer-employee relations, when it:

(1) adopted a motion to submit to the voters a ballot measure to repeal from the City Charter

"The MMBA is codified at Government Code section 3500 et seq. All statutory
references are to the Government Code unless otherwise indicated.

procedures for binding interest arbitration of collective bargaining impasses with police and
firefighter employee organizations; and (2) held a "first reading" to approve an ordinance
requiring instead non-binding mediation over such impasses. By this conduct, alleged the
complaint, the City violated MMBA sections 3503, 3506, 3507 and 3509(b), as well as PERB
Regulation 32603(a), (b), and (f).2
Following an evidentiary hearing held in late September 2011, the ALJ issued his
proposed decision (PD). The ALJ concluded that: (1) PERB has jurisdiction over the alleged
violations of MMBA section 3507; (2) the section 3507 duty to consult in good faith is
indistinguishable from section 3505 duty to meet and confer in good faith; (3) section 3507's
consultation obligation imposes on public agencies, duties akin to those established by
section 3505, viz., to provide recognized employee organizations reasonable notice of the
agency's intention to adopt or alter the agency rules and regulations for the administration of
employer employee relations, including rules for resolution of collective bargaining impasses,
and upon request of a recognized employee organization, to consult in good faith prior to
taking action to adopt or alter rules and regulations for administration of employer employee
relations; (4) the City provided Local 1319 reasonable notice of its intention to adopt or alter
rules and regulations; and (5) Local 1319 failed to timely request that the City consult in good
faith, and by its inaction waived its MMBA consultation rights.
The Board has reviewed the hearing record, the proposed decision, and the parties'
respective exceptions and responses. Based on this review, we conclude that the ALJ's
findings of fact are supported by the record, and except as specifically indicated below we
adopt the ALJ's findings as the findings of the Board itself. The ALJ's conclusions oflaw
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

concerning PERB's jurisdiction and the parties' respective duties under MMBA section 3507,
are in accordance with applicable law, and we adopt these conclusions as the conclusions of
the Board itself.
However, we reach different conclusions than did the ALJ on the ultimate issues, viz.,
whether Local 1319 requested consultation with the City over the City's proposed repeal or
modification of interest arbitration procedures in the City Charter, and whether the City failed
or refused to consult. We explain.
In mid-July 2010 representatives of Local 1319 demanded to meet and confer with the
City over a then-recently-announced City proposal to repeal interest arbitration procedures in
the City Charter applicable to police and firefighter employees. Commencing in late-
July 2010, and continuing in June and July 2011, the City took the position with Local 1319
that: (1) interest arbitration was a permissive, and not a mandatory, subject for meeting and
conferring; and (2) the City would not meet with Local 1319 representatives, but instead would
listen to Local 1319 representatives' concerns, along with those of the public generally, during
public comment periods at its regular public meetings. The City did not offer to meet with
Local 1319's representatives to clarify the parties' positions regarding: 	(1) whether the City's
proposed repeal of interest arbitration procedures was a mandatory or permissive subject for
meeting and conferring, or (2) whether the City's statutory consultation obligation required the
City to engage in direct discussions with representatives of Local 1319 rather than hearing
Local 1319's representatives during public comment periods at regular public meetings of the
Council or its committees.
We conclude.that by refusing to meet with Local 1319's representatives, the City failed
and refused to consult in good faith. Thus, the City acted in derogation of its duty to consult
with Local 1319 in good faith, up to and including July 18, 2011, when the City approved a
3

measure to repeal interest arbitration procedures. We tum now to the procedural history, a
factual summary, our review of the proposed decision, the contentions of the parties, and our
discussion and disposition of the legal issues.
PROCEDURAL HISTORY
On July 28, 2011, Local 1319 filed an unfair practice charge, alleging that on July 18,
2011, without prior consultation in good faith with Local 1319, the City approved changes to
its rules for administration of employer-employee relations, including a ballot measure to
repeal binding interest arbitration from the City Charter (Charter) and an ordinance requiring
non-binding mediation of disputes arising from bargaining impasses. On August 1, 2011,
Local 1319 requested that PERB seek injunctive relief.
On August 4, 2011, the parties met informally with a Board agent to discuss the charge
and. Local 1319's request for injunctive relief. No settlement was reached.3
On September 7, 2011, PERB's Office of the General Counsel issued an unfair practice
complaint alleging that on July 18, 2011, the City Council (Council) approved a ballot measure
to repeal Article V of the Charter which provided for binding interest arbitration, and held a
"first reading" to approve an ordinance requiring non-binding mediation over bargaining
disputes resulting from bargaining impasse without consulting in good faith with Local 1319.
On the same day, PERB noticed an expedited hearing on the complaint for September 26
and 30, 2011.
3 On August 5, 2011, Local 1319 withdrew without prejudice its request for injunctive
relief and requested that its charge be placed in abeyance pending a second infonnal meeting
scheduled for September 13, 2011. On September 7, 2011, Local 1319 renewed its request for
injunctive relief, and the charge was removed from abeyance. On September 12, 2011, the
City filed a supplemental opposition to injunctive relief. Thereafter, on September 15, 2011,
PERB' s Office of the General Counsel notified the parties that the injunctive relief request had
been denied without prejudice.
4

On September 26 and 30, 2011, after disposing of several pre-hearing motions, PERB's
ALJ conducted a formal hearing on the complaint. (PD, pp. 2-3.)
On September 30, 2011, the City requested that the ALJ postpone ruling in the case
until after November 8, 2011, the date of the election on the City's ballot measure repealing
interest arbitration.4 Also on September 30, 2011, the City requested an additional day of
hearing in order to obtain testimony of expert witnesses, and the ALJ's approval for an
interlocutory appeal of the ALJ' s denial of its pre-hearing motion to dismiss.5
On November 15, 2011, the ALJ issued his proposed decision. Thereafter, on
December 5, 2011, Local 1319 filed exceptions. On January 9, 2011, the City responded to
Local 1319's exceptions, and interposed its own cross-exceptions. On January 26, 2012,
Local 1319 responded to the City's cross exceptions.
FACTUAL SUMMARY
We refer the reader to the ALJ' s findings, which are set forth in detail at pages 7
through 21 of the attached proposed decision. We highlight here those of greatest moment to
our conclusions below.
Prior to July 2010, Article V of the City's Charter established binding interest
arbitration as the mechanism for resolving an impasse in negotiations with organizations
representing police and fire personnel over wages, hours or terms and conditions of
employment. (PD, pp. 7-8.)
On July 19, 2010, the Council directed staff to prepare a measure to be placed on the
November 2010 ballot to repeal Article V of the Charter. Immediately thereafter,
4 The ALJ took the requested postponement under submission, and on October 13,
2011, issued his decision to grant the requested delay in issuing his decision. (PD, p. 4.)
5 Both these requests were denied. (PD, pp. 5-6.)
5

representatives of organizations representing the City's police and firefighter employees,
including Local 1319, sent letters to the City's Human Resources (HR) Director, requesting to
confer with the City over the proposed change and citing legal authority. Within a few days
the City HR Director responded in writing, claiming that interest arbitration provisions were
permissive, not mandatory, subjects of bargaining, citing legal authority, and declaring that
meet and confer was not required. In his response to Local 1319, the City HR Director
suggested as well that if Local 1319 representatives had questions or comments about the
repeal proposal, they could contact him, or attend the upcoming Council meetings.
Concurrently, the City Attorney advised the Council that the City had no meet and confer
obligation to Local 1319 on the repeal of Article V from the Charter. Shortly thereafter, at a
meeting in early August 2010, the Council considered, but failed to pass, the proposal to seek
voter authorization for repeal of Article V. A subsequent motion at the same meeting passed,
directing City staff to return the following year with a timeline for considering the repeal of
Article V. (PD, pp. 9-11.)
Nine months later, in early May 3, 2011, the City's Interim HR Director Sandra Blanch
(Blanch) sent an e-mail to Local 1319's President Anthony Spitaleri (Spitaleri) informing him
that on May 10, 2011 the Council's Policy and Services Standing Committee (PSS Committee)
would meet to discuss a ballot measure to modify or repeal the Charter's binding interest
arbitration provision. The e-mail stated, "Ifyou wish to meet and discuss regarding this issue
please contact [Assistant Director] Marcie Scott in Human Resources." Spitaleri responded by
e-mail to Marci Scott (Scott) inquiring whether her e-mail to him was a request to meet and
confer, and by voice mail to Blanch inquiring whether the City was seeking to meet and confer.
Neither Scott nor Blanch responded to Spitaleri. (PD, pp. 11-12.)
6

Spitleri did not attend the May 10, 2011 meeting of the PSS Committee, having a
conflict. But at least one other representative of Local 1319 did attend. During the PSS
Committee meeting the City attorney advised the PSS Committee that meeting and conferring
with employee organization representatives was required, citing Seal Beach,6 and that the time
needed to do so would depend on availability of the parties. The PSS Committee reached no
conclusion on May 10, 2011, as whether to recommend repeal or modification of the interest
arbitration provision in the Charter. The PSS Committee directed staff to return at a
subsequent PSS Committee meeting with more options regarding interest arbitration and more
background information. (PD, p.13.)
On June 3, 2011, Scott sent Spitaleri an agenda packet for next PSS Committee meeting
to be held on June 7, 2011. The packet again indicated consideration of the interest arbitration
question. Scott invited Spitaleri to contact her if he "had any questions." (PD, p. 14.)
Spitleri did not attend the June 7, 2011 meeting of the PSS Committee, again having a
conflict. But at least two other representatives of Local 1319 did attend. The PSS Committee
reached no consensus and opted to refer to the full Council any decision on whether to repeal·
or modify the interest arbitration provision in the Charter, and when to do so. 	(PD, p. 14.)
On June 18, 2011, the Scott notified Spitaleri by e-mail that the agenda for the June 20,
2011 Council meeting contained an item regarding the interest arbitration issue, and again
asked Spitaleri to contact her "with any questions." (PD, p. 15.)
On June 20, 2011, City staff provided the Council a written report regarding the PSS
PSS Committee's deliberations on the possible changes under consideration to the Charter
provision for interest arbitration, and on the lack of a PSS Committee consensus on
6 The People ex rel. Seal Beach Police Officers Association et al., v. City of Seal Beach
et al. (1984) 36 Cal.3d 591 (Seal Beach ).
7

modification vs. repeal. This report contained, inter alia, an opinion from the City Attorney
that meeting and conferring with employee organization representatives was not required,
because interest arbitration was not a mandatory subject.7 (PD, p. 18.) During the public
comment period which followed the staff report, Spitaleri and another Local 1319
representative addressed the Council, urging that rather than act that day on a measure to
repeal Article V, that the Council should refer the topic again to the PSS Committee where all
affected employee organizations could participate in the deliberations to update the interest
arbitration provisions and provide recommendations to the Council. Spitaleri opined that
denying the organizations an opportunity to express their ideas and assist in formation of an
improved policy could damage employee relations. (PD, pp. 15-16.)
The Council did refer the matter back to the PSS Committee, with directions to
consider the matter further and to provide the Council at the Council's July 25, 2011 meeting,
with the following: a draft of significant modifications to the interest arbitration provision, a
draft of language to repeal interest arbitration, and a recommendation for the date on which to
submit the matter to the City's voters. At that point Council Member Kleiri, who also served
on the PSS Committee, stated that he understood labor representatives wanted to negotiate
modifications to the interest arbitration provision, but that he opposed negotiating with them.
He stated that instead the Council should receive input from both employee organizations and
the public. (PD, pp. 15-16.)
On June 28, 2011 the PSS Committee met again. Again, Spitleri did not attend but
another Local 1319 representative did. The PSS Committee directed staff to draft language for
repeal of interest arbitration as well as for substantial modifications thereof, and in addition to
7 This opinion was a reversal of the position taken by the City Attorney in comments to
the PSS Committee at its May 10, 2011 meeting, but consistent with the position of the City
Attorney in late July 2010.
8

draft language for an ordinance requiring mediation of collective bargaining impasses. (PD,
p. 17.)
On July 11, 2011, Scott e-me:iiled Spitaleri that the PSS Committee would meet again on
July 12, 2011. The e-mail transmitted several documents including a draft resolution for a
ballot measure to repeal interest arbitration, draft language to modify substantially the existing
interest arbitration provision, and a draft ordinance requiring mediation of collective
bargaining impasses. Again, Scott invited Spitaleri to "contact her" if he "had any questions."
(PD, p. 17.)
Spitleri did not attend the July 12, 2011 meeting of the PSS Committee, again having a
conflict. But at least one other representative of Local 1319 did attend. The PSS Committee
determined to forward to the Council the language for an ordinance on mediation of collective
bargaining impasses, approved the draft repeal resolution to go to the Council for action, and
approved as well sending to the Council some proposed modifications of the existing Charter
provision on interest arbitration. (PD, p. 17.)
On July 17, 2011, Scott again e-mailed Spitaleri, notifying him that at its meeting the
next day the Council would consider the interest arbitration issue. The e-mail provided
Spitaleri a hypertext link to the Council's agenda packet, which contained, inter alia, a report
from the City Attorney to the Council transmitting the recommendations of the PSS
Committee, which report opined that the City had no obligation to meet and confer over its
decision to seek modification or repeal of Article V. Scott's e-mail invited Spitaleri to
"contact her" if he "had any questions." (PD, p. 18.).
On July 18, 2011, the Council met. It considered the report from the City Attorney's
office transmitting the PSS Committee's recommendations. 	As did the report to the June 20,
2011 meeting of the Council, the City Attorney's reporfto the July 18, 2011 meeting opined
9

that meeting and conferring over interest arbitration was a permissive, and not a mandatory,
subject of meeting and conferring, and thus the City was not obliged to meet and confer. The
report also stated that staff had provided to organizations representing police and fire
employees the opportunity for "informal discussion and comment" by "informing them of the
dates that the PSS Committee reviewed the item and providing copies of the reports."
However, stated the report, no "oral or written comment" was received from "those
organizations" at the meetings. 	(PD, p. 18.)
During the public comment period which followed the City Attorney's report, Spitaleri
requested that the Council adhere to California Government Code 3507 which he described as
''part of the Meyers-Milias-Brown Act stating that a public agency must consult in good faith
with representatives of a recognized employee organization before adopting procedures for the
resolution of disputes involving wages, hours and other terms or conditions of employment."
(PD, p. 18, emphasis in original.) Following the public comment period, the Council
considered but failed to approve a motion to submit to voters, a measure to modify Article V.
It then approved a different motion to submit to voters a measure to repeal Article V and also
approved on "first reading," an ordinance requiring non-binding mediation of collective
bargaining impasses. (PD, p. 19.)
On July 18, 2011, immediately after the Council meeting, Spitaleri approached the
City's negotiator, Dell Murray (Murray), and requested that Murray respond for the City to
Spitaleri's request made during the public comment session to the Council, that the City
consult in good faith with Local 1319 over the proposal to repeal interest arbitration. Murray
demurred, telling Spitaleri to submit his request via e-mail. (PD, p. 19.)
On July 19, 2011, Spitaleri e-mailed Murray as follows:
10

I am requesting the city abide by California [Government] Code
3500-3511 as required in sections 3504.5 (a) and 3507 (a). As
you know I made the same request at the city council meeting of
July 18[,J 2011.
(Local 1319, Exh. 22.) Murray did not respond to Spitaleri's e-mail.
The City's deadline to submit the ballot measure to the registrar's office for placement
on the November 8, 2011 election was August 12, 2011, although Scott had been informed in
June 2011 by the City clerk that the deadline for submission of a ballot measure to the registrar
was August 1, 2011, and in tum Scott had so informed the PSS Committee and Spitaleri. The
Council was scheduled to meet next on July 25 and thereafter on August 1, 2011, although the
Council had been notified in advance that at these meetings only eight of the nine Council
members would attend. (PD, p. 19.)
On July 27, 2011, Spitaleri e-mailed Murray again, as follows:
Am I to assume that since I haven't heard from you concerning
my request, the city wishes not to meet and consult on the repeal
of Binding Interest Arbitration as required by the California
[Government] Code 3500-3511.
(Local 1319, Exh. 23.) Murray responded to Spitaleri that he (Murray) had asked Scott to send
Spitaleri the staff report from July 18, 2011 which set forth the City's position, to wit, that
interest arbitration was a permissive, and not a mandatory, subject of meeting and conferring,
and therefore the City was not obliged to meet with Local 1319 over the issue. (PD, p. 20.)
On July 28, 2011, Local 1319 filed the instant charge.
On August 1, 2011, City Attorney Molly Stump (Stump) responded to Local 1319's
counsel, asserting that the City's action of July 18, 2011, on the mediation ordinance was not
final Council action. Stump cited a provision of the City's Municipal Code calling for a
"second reading" of ordinances. Concurrently, Scott provided essentially the same information
to Spitaleri. (PD, pp. 20-21.)
11

On August 15, 2011 the parties met to discuss the mediation ordinance. As of the date
of the hearing, the City had taken no further action on the mediation ordinance. (PD, p. 21.)
On November 8, 2011, a majority of voters approved the repeal of the interest
arbitration provision from the Charter. (PD, p. 21.)
PROPOSED DECISION
Ruling first on the City's claim that MMBA section 3509(e)8 vested jurisdiction in the
courts, not PERB, the ALJ reasoned that a superior court rather than PERB would have
jurisdiction pursuant to section 3509(e) only where there was an "action" involving interest
arbitration as governed by Code of Civil Procedure (CCP) section 1280 et seq. Here, noted the
ALJ, there was no "action" pending pursuant to CCP section 1280 et seq., and thus
section 3509(e) was inapplicable. Pursuant to section 3509(b), PERB therefore retained
jurisdiction over allegations that the City violated the MMBA by failing to consult in good
faith with Local 1319 pursuant to MMBA section 3507. (PD, pp. 23-24.)
Ruling next on the City's claim that PERB itself 9 had deemed interest arbitration a
permissive, not a mandatory, subject of meeting and conferring, the ALJ reasoned that these
PERB decisions concerned the scope of meeting and conferring under MMBA section 3505,
not the scope of consultation under section 3507. Thus, they were not controlling. (PD, p. 24.)
8 MMBA section 3509(e) provides, in pertinent part:
Notwithstanding subdivisions (a) to (c), inclusive, consistent
with, and pursuant to, the provisions of Sections 3500 and
3505.4, superior courts shall have exclusive jurisdiction over
actions involving interest arbitration, as governed by Title 9
(commencing with Section 1280) of Part 3 of the Code of Civil
Procedure, when the action involves an employee organization
that represents firefighters, as defined in Section 3251.
9 County of Santa Clara (2010) PERB Decision No. 2114-M; County of Santa Clara
(2010) PERB Decision No. 2120-M.
12

Relying on several court decisions antedating PERB jurisdiction over MMBA, the ALJ
construed the duty to consult in good faith under section 3507 as akin to the meet and confer
duty under MMBA section 3505. Thus, concluded the ALJ, except for the scope of
consultation which section 3507 itself states with particularity, the consultation process under
section 3507 is otherwise indistinguishable from the meet and confer process under
section 3505. In both settings, the parties must: (1) meet and confer promptly upon request by
either party, (2) continue for a reasonable period of time in order to exchange freely
information, opinions and proposals, and (3) endeavor to reach an agreement. (PD, pp. 24-25.)
As for the scope of consultation, the ALJ noted that section 3507 articulated nine
matters for consultation, including "additional procedures for the resolution of disputes
involving wages, hours and other terms and conditions of employment." (MMBA,
§ 3507(a)(5).) The ALJ concluded that this language contemplated consultation over
procedures for interest arbitration as well as for non-binding mediation. (PD, p. 25, fn. 16.)
Finally, relying on Seal Beach, supra, 36 Cal.3d 591, the ALJ concluded that when
adopting a rule or regulation involved amending a city charter, consultation required by
section 3507, like meeting and conferring required by section 3505, should occur and conclude
before the public agency acts to submit the matter to the voters. (PD, p. 26.)
Applying these principles, the ALJ reasoned that: (1) as of June 20, 2011, the City had
afforded Local 1319 reasonable notice of the City's intention to amend its existing Charter
provision for interest arbitration; (2) Local 1319 did not request consultation until July 18,
2011, thereby waiving by inaction its right to consult; and (3) thus, the Council did not violate
section 3507 when on July 18, 2011, it approved the ballot measure to repeal interest
arbitration. (PD, pp. 26-28.)
13

As for the Council's first reading on July 18, 2011, of the ordinance establishing non-
binding mediation, the ALJ credited the City's evidence that its governance procedures
mandated more than a first reading in order to affect adoption of an ordinance, and, on that
basis, ruled that the first reading alone could not constitute City action in derogation of MMBA
. section 3507. (PD, p. 28.)
POSITIONS OF THE PARTIES
Local 	1319's Exceptions
Local 1319 excepts on two bases to the ALJ' s conclusion that Local 1319 waived its
right to consult over the City's decision to repeal binding interest arbitration from the Charter
via a ballot measure. First, urges Local 1319, the City took a firm decision on June 20, 2011,
that it would not meet and confer with Local 1319 to discuss the City's decision to repeal
binding interest arbitration from the Charter, thus violating its duty under section 3507 and
rendering futile any request by Local 1319 thereafter for consultation. Second, and in any
event urges Local 1319, it made requests on June 20, 2011 and again on July 18, 2011 for
consultation, thereby asserting and preserving, not waiving by inaction, its consultation rights
under MMBA section 3507.
The City's Response
The City first urges an alternative theory supporting the result reach by the ALJ,
namely, that Local 1319's consultation rights were limited to commenting during PSS
Committee and Council meetings on the changes being considered by the City to its rules and
regulations, and Local 1319's failure to participate actively in the Council's PSS Committee
processes for changing the City's rules and regulations effectively abandoned Local 1319's
consultation rights under section 3507.
14

Responding to Local 1319's exceptions, the City urges that: (1) on June 20, 2011, the
City took no firm position opposing consultation; (2) Local 1319 did not request consultation
on either June 20 or July 18, 2011, and the City was not obliged to clarify whether
Local 1319's statements then made to the Council were consultation requests; and (3) in any
event, PERB lacks authority to require the City to restore the status quo ante.
The City's Exceptions
The City excepts to the ALJ's conclusions that: (1) MMBA section 3509(e) does not
divest PERB of jurisdiction; (2) recent PERB and judicial decisions regarding interest
arbitration do not remove interest arbitration from the scope of representation under
section 3507; and (3) the rationale of Seal Beach, supra, 36 Cal.3d 591 is applicable as well to
the City's action at issue here. Additionally, the City excepts to the ALJ' s denial of its request
for a continuance in the hearing to permit presentation of "expert witness testimony" in support
of the City's position.
Local 	1319's Response
Local 1319 responds as follows to the City's exceptions: (1) the instant dispute does
not concern an "action" within MMBA section 3509(e), which removes from PERB's
jurisdiction only those questions arising under an existing law or agreement providing for
binding interest arbitration, but does not implicate an employer's adoption of rules and
regulations pursuant to section 3507; (2) PERB's complaint alleged a prima facie violation of
section 3507, and the status of interest arbitration as a permissive subject under section 3505
does not control its status ;vis-a-vis section 3507; (3) Seal Beach, supra, 36 Cal.3d 591 is
applicable to the City's decision to submit to voters a ballot measure adopting or repealing
rules and regulations for the administration of employer-employee relations; and (4) the ALJ
15

properly exercised his discretion when he declined the City's proffer of "expert witness
testimony."
DISCUSSION
Introduction
This case presents an issue not previously addressed in depth10 by the Board, viz., the
nature and extent of a pubic agency's duty under MMBA section 3507 to consult in good faith
with recognized employee organization representatives prior to changing the agency's rules
and regulations for the administration of employer employee relations.
We first consider the role of consultation within the Legislature's MMBA policy design
for employer employee relations in public agencies.II A preeminent element of that design is a
10 County of Amador (2013) PERB Decision No. 2318-M, p. 12; County of Riverside
(2011) PERB Decision No. 2163-M, p. 5 (County of Riverside ). In County of Riverside, the
Board construed MMBA section 3507 to require consultation in good faith before modifying
the County's existing rule concerning unit modification. 	The County's rule was silent on proof
of support (POS), but the County had imputed a POS requirement, which was challenged by an
employee organization. 	Declining the County's invitation accept the County's imputation of a
POS requirement, or alternatively to apply PERB 's own POS rule, the Board explained that
section 3507(a) pennitted the County to amend its own rule to add a reasonable proof of
support requirement, subject to the County's duty, prior to changing its rule, to consult in good
faith with representatives of recognized employee organizations. (Ibid.)
11 The Legislature stated its purpose and intent in MMBA section 3500, as follows:
(a) 	It is the purpose of this chapter to promote full
communication between public employers and their employees
by providing a reasonable method of resolving disputes regarding
wages, hours, and other tenns and conditions of employment
between public employers and public employee organizations. It
is also the purpose of this chapter to promote the improvement of
personnel management and employer-employee relations within
the various public agencies in the State of California by providing
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. Nothing contained herein shall be deemed to supersede
the provisions of existing state law and the charters, ordinances,
16

public agency's discretion, as provided in MMBA section 3507, to adopt its own rules and
regulations for the administration of employer employee relations. In section 3507 the
Legislature accorded to employees, through their organizations, a voice in designing their
agency's rules and regulations, mandating that prior to adopting its rules and regulations a
public agency "consult in good faith" with employee organization representatives. 	Thus,
consistent with section 3500, the Legislature promoted the improvement of personnel
management and employer employee relations by assuring full communication between public
agencies and their employees over the rules and regulations for employer-employee relations
adopted by the public agency.
MMBA section 3507 provides, in pertinent part:
(a) 	A public agency may adopt reasonable rules and
regulations after consultation in good faith with representatives of
a recognized employee organization or organizations for the
administration of employer-employee relations under this
chapter. The rules and regulations may include provisions for all
of the following:
and rules of local public agencies that establish and regulate a
merit or civil service system or which provide for other methods
of administering employer-employee relations nor is it intended
that this chapter be binding upon those public agencies that
provide procedures for the administration of employer-employee
relations in accordance with the provisions of this chapter. This
chapter is intended, instead, to strengthen merit, civil service and
other methods of administering employer-employee relations
through the establishment of uniform and orderly methods of
communication between employees and the public agencies by
which they are employed.
(b) 	The Legislature finds and declares that the duties and
responsibilities oflocal agency employer representatives under
this chapter are substantially similar to the duties and
responsibilities required under existing collective bargaining
enforcement procedures and therefore the costs incurred by the
local agency employer representatives in perfonning those duties
and responsibilities under this chapter are not reimbursable as
state-mandated costs.
17

(1) 	Verifying that an organization does in fact represent
employees of the public agency.
(2) 	Verifying the official status of employee organization
officers and representatives.
(3) 	Recognition of employee organizations.
(4) 	Exclusive -recognition of employee organizations formally
recognized pursuant to a vote of the employees of the agency or
an appropriate unit thereof, subject to the right of an employee to
represent himself or herself as provided in Section 3502.
(5) 	Additional procedures for the resolution of disputes
involving wages, hours and other terms and conditions of
employment.
(6) 	Access of employee organization officers and
representatives to work locations.
{7) 	Use of official bulletin boards and other means of
communication by employee organizations.
(8) 	Furnishing nonconfidential information pertaining to
employment relations to employee organizations.
(9) 	Any other matters that are necessary to carry out the
purposes of this chapter.
(MMBA, § 3507.)
The Legislature did not prescribe with particularity the consultation process mandated
by MMBA section 3507. However, several courts of appeal have provided guidance,
concluding that consultation under section 3507 is "indistinguishable" from meeting and
18

conferring under section 3505.12 Relying on these decisions, 13 we conclude, with the ALJ, that
the consultation process mandated by section 3507 is very much like the meet and confer
process described in section 3505.14
12 MMBA section 3505 provides, in pertinent part:
"Meet and confer in good faith" means that a public agency, or
such representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request
by either party and continue for a reasonable period of time in
order to exchange freely information, opinions, and proposals,
and to endeavor to reach agreement on matters within the scope
of reprsentation prior to the adoption by the public agency of its
final budget for the ensuing year. The process should include
adequate time for the resolution of impasses where specific
procedures for such resolution are contained in local rule,
regulation, or ordinance, or when such procedures are utilized by
mutual consent.
13 In MMBA section 3509(b), the Legislature instructed us to "apply and interpret
unfair labor practices consistent with existing judicial interpretations of this chapter."
14 Judicial interpretations of MMBA section 3507, while not entirely uniform, construe
it to impose on a public agency a duty to consult that is "indistinguishable from" the duty to
"meet and confer" under section 3505. (Independent Union of Public Service Employees v.
County of Sacramento (1983) 147 Cal.App.3d 482, 488 [consultation duty of employer stated
in management rights provision of memorandum of understanding (MOU) construed to require
meet and confer, relying on prior decision construing section 3507 consultation duty as the
equivale.nt of section 3505 duty to meet and confer in good faith]; International Assn. of Fire
Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 976 ( City of Pleasanton ) [rule
adopted by city under section 3507.5 designating management and confidential employees held
subject to consultation under 3507; "consultation in good faith" under 3507 held
indistinguishable from "meet and confer in good faith" under 3505; city's refusal of union's
meet and confer demand held to invalidate subsequently-adopted rule]; Vernon Fire Fighters v.
City of Vernon (1980) 107 Cal.App.3d 802, 821 [anti-carwash rule imposed by county without
meeting and conferring under section 3505 deemed unlawful, but even if rule were subject to
section 3507 consultation rather section 3505 meeting and conferring, same result as "no basis
for distinguishing between the tenn consultation in good faith as used in section 3507 and meet
and confer in good faith process in section 3505," citing City of Pleasanton]; Reinbold v. City
of Santa Monica (1976) 63 Cal.App.3d 433, 442, 445 [city's rule placing police chief in
separate bargaining unit held invalid where city failed to demonstrate that it engaged in prior
good faith consultation per section 3507]; Organization of Deputy Sheriffs v. County of
San Mateo (1975) 48 Cal.App.3d 331, 338 [consultation between various county officers and
19

Thus, we conclude that a public agency's consultation obligations under MMBA
section 3507 arise sufficiently in advance of the agency's adoption of rules and regulations for
the administration of employer employee relations, to permit completion of consultation
discussions prior to such adoption. We conclude as well that pursuant MMBA section 3507 a
public agency must: (1) provide reasonable written 15 notice to each employee organization
affected by the rule or regulation proposed for adoption or modification by the agency; and
(2) afford each such organization a reasonable opportunity to meet and discuss the rule or
regulation prior to the agency's adoption. Finally, we conclude that section 3507 imposes on a
public agency and on recognized employee organizations, several mutual obligations in the
conduct of consultation, which are to: (1) meet and confer regarding consultation subjects
promptly upon the request by either party; (2) continue meeting and conferring for a
reasonable period of time in order to exchange freely information, opinions and proposals; and
(3) endeavor to reach an agreem.ent.16
As to the scope of consultation under MMBA section 3507, we conclude, with the ALJ,
that section 3507 prescribes a different scope of consultation from. that under section 3505,
because in section 3507 the Legislature stated with particularity those subjects for consultation.
We discuss the extent of these subjects in more detail below.
employees prior to the civil service com.mission hearing, and plus taking of evidence at
com.mission hearing, deemed sufficient to establish county com.plied with section 3507
consultation requirement prior to adopting rule establishing bargaining unit.].
15 Under the MMBA section 3405.5 employers provide written notice of matters subject
to the meet and confer obligation.
16 We leave for another day questions not presented here, for example, the extent to
which disagreements unresolved during the consultation process are properly the subject of any
dispute resolution processes established for treating collective bargaining disputes arising
under MMBA section 3505 over wages, hours and other tenns and conditions of employment.
20

We likewise conclude, with the ALJ, that an agency may raise affirmative defenses to a
complaint alleging that the agency violated the MMBA by failing or refusing to consult in
good faith, including the defense that the charging party waived its consultation right under
MMBA section 3507.
We turn now to the issues raised by the case before us.
Issues for Decision
The complaint alleged that the City breached MMBA section 3507 in July 2011 when,
after informing Local 1319 of its intention to modify its rules and regulations, but without
engaging in consultation discussions thereon with Local 1319's representatives, the City:
(1) adopted a ballot measure for submission to voters, which, if approved, would repeal from
the Charter an existing provision for mandatory binding interest arbitration of collective
bargaining impasses with police and firefighter employees; and (2) concurrently took the first
step to adopt an ordinance specifying an alternative process of non-binding mediation for
resolving such impasses. The complaint thus alleged a garden variety unilateral change
undertaken in derogation of a union's right to consult.
The ALJ concluded that the City had a duty to consult, but that in this instance
Local 1319 waived its consultation rights thereby excusing the City's failure.
Local 1319 excepts to the ALJ' s finding that Local 1319 failed to timely assert its
consultation right under MMBA section 3507, and to the ALJ' s conclusion that thereby
Local 1319 waived its consultation right.
The City raises jurisdictional and procedural defenses, and on the merits urges a narrow
reading of its MMBA section 3507 duty, limited to permitting employee organization
representatives to participate on the same basis as members of the public in the Council's
public deliberations, viz., by making comments during public meetings.
21

We take up the legal issues in the following order: first, we assess the City's claim on
appeal that the Board lacks jurisdiction over the City's conduct in this case; second, we assess
the City's claim on appeal that it had no duty to consult because advisory arbitration is a
"permissive," not a "mandatory," subject of consultation under MMBA section 3507; third, we
assess Local 1319's claim on appeal that its consultation demands were timely, along with the
City's affirmative defense, including that Local 1319 failed timely to request consultation;
fourth, we assess the City's claim on appeal that the ALJ wrongly refused the City's proffer of
expert opinion testimony; and finally, we assess the City's claim that our remedial authority
does not extend to overturning the City voters' approval of a ballot measure. We begin with
jurisdiction.
Jurisdiction
The City claims that: (1) MMBA section 3509(e) reserves to the superior court
jurisdiction over the City's conduct alleged here; and (2) by submitting to City voters the
ultimate decision on rules and regulations for administration of employer employee relations,
the City divested from itself both the ultimate decision over an amendment to the Charter and
any duty the City might have under MMBA to consult regarding the decision pursuant to
section 3507. We assess each contention.
1. 	MMBA Section 3509(e)
The City contends that in MMBA section 3509(e) the Legislature reserved to the courts
and denied to PERB jurisdiction over a public agency's adoption or modification of a local rule
which provides for interest arbitration of firefighter disputes. We are not persuaded.
PERB's jurisdiction arises under MMBA section 3509(b), which provides:
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
22

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, except
that in an action to recover damages due to an unlawful strike, the
board shall have no authority to award strike-preparation
expenses as damages, and shall have no authority to award
damages for costs, expenses, or revenue losses incurred during, or
as a consequence of, an unlawful strike. The board shall apply
and interpret unfair labor practices consistent with existing
judicial interpretations of this chapter.
(Emphasis added.) The instant unfair practice complaint alleges that the City violated the duty
of consultation established by section 3507, viz., "this chapter," when it adopted rules and
regulations for the administration of employer-employee relations by repealing its existing
procedure for binding interest arbitration and adopting in lieu thereof a procedure for non-
binding mediation. The complaint thus alleges a "violation of this chapter." (MMBA,
§ 3509(b).) It follows that "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 . . . ." (Ibid.)
With the ALJ, we construe MMBA section 3509(e) to reserve to the courts questions
arising in "actions involving interest arbitration, as governed by Title 9 (commencing with
Section 1280) of Part 3 of the [CCP], when the action involves an employee organization that
represents firefighters, as defined in Section 3251." (Emphasis added.) MMBA
section 3509(e) denies PERB jurisdiction over "actions" to enforce an existing interest
arbitration procedure, including questions regarding the extent or scope of the parties'
arbitration obligations. ( City of San Jose v. International Association of Firefighters,
Local 230 (2009) 178 Cal.App.4th 408 [in action brought under CCP 1280 et seq., superior
court, not PERB, has jurisdiction to construe extent of obligation created by interest arbitration
provision in city's charter].)
23

Here, however, Local 1319, a firefighter organization, seeks not to enforce an existing
interest arbitration procedure, nor to litigate the extent of disputes covered thereby, but rather
to enforce the MMBA requirement that a public agency consult in good faith prior to adopting
or changing its rules and regulations for administration of employer employee relations,
including "additional procedures for the resolution of disputes involving wages, hour and other
terms and conditions of employment." (MMBA, § 3507(a)(5).) Because we deem both
interest arbitration and mediation to be "additional procedures" within section 3507(a)(5) for
the resolution of disputes involving matters within the scope of representation; we conclude
that the adoption of rules and regulations concerning either interest arbitration or mediation or
both, falls squarely within the City's duty, established by section 3507, to consult in good
faith. Moreover, as noted by the ALJ, neither the complaint in this case, nor the record before
us, presents an "action" to enforce an interest arbitration procedure sounding under
CCP 1280 et seq.
Thus, we conclude, with the ALJ, that absent a factual predicate implicating MMBA
section 3509(e), viz., an "action" pursuant to CCP 1280 et seq., PERB retains exclusive initial
jurisdiction to construe and enforce a public agency's duty under section 3507 to consult in
good faith, even where, as here, the local rule proposed for adoption or modification by the
public agency concerns interest arbitration and even where, as here, the recognized employee
organization seeking to enforce its MMBA consultation rights represents firefighters.
2. 	A Ballot Measure for Voters
The City contends that because its conduct scrutinized here involved proposing to
voters a ballot measure to amend the City's Charter, to such extent its conduct is insulated
from a statutory duty under MMBA to consult by the City's allegedly supervening
constitutional right to propose charter amendments. Again, we are not persuaded.
24

In Seal Beach, supra, 36 Cal.3d 591, California's Supreme Court considered and
rejected a like contention that a charter city need not comply with an MMBA duty to meet and
confer prior to proposing charter amendments impacting matters as to which the MMBA
imposed on the city a duty to meet and confer. The Supreme Court ruled that duties imposed
by the MMBA on charter cities to meet and confer with employee organizations do not conflict
with the exercise by charter cities of their rights under California's Constitution to propose
charter amendments, and accordingly that charter cities must comply with their MMBA duties
as to matters subject thereto even where a charter amendment may be the ultimate form of the
charter city's action. We concede that Seal Beach dealt with the meet and confer duty imposed
by section 3505, and not the duty to consult in good faith imposed by section 3507. However,
we deem this distinction of no moment to our present task. We discern no conceptual or
constitutional impediment to extending the rationale of Seal _Beach to the MMBA's
consultation duty imposed by section 3507.
We hold that in MMBA section 3509(b) the Legislature has conferred on PERB
exclusive initial jurisdiction over allegations that a public agency, including without limitation
a charter city, has failed or refused to consult in good faith pursuant to section 3507, prior to
taking direct action on the matter or to acting indirectly by submitting a ballot measure to its
voters.
We tum next to the City's claim on appeal that the ALJ construed too broadly the scope
of the City's consultation duty.
The Scope of Consultation under MMBA Section 3507
The City contends that interest arbitration, a permissive, not a mandatory, subject for
meeting and conferring under section 3505, should likewise be deemed a pennissive subject
for consultation under section 3507. We are not persuaded.
25

In support of its position the City cites to PERB' s decisions in County of Santa Clara
(2010) PERB Decision No. 2114-M and County of Santa Clara (2010) PERB Decision
No. 2120-M (Santa Clara cases). The City relies as well on DiQuisto v. County of Santa Clara
(2010) 181 Cal.App.4th 236 (DiQuisto ) in which the court itselfrelied on City of Fresno v. the
People ex rel. Fresno Firefighters, IAFF Local 753, et al. (1999) 71 Cal.App.4th 82 (Fresno
Firefighters ). We review these authorities.
IJ.1. the Santa Clara·cases, the Board considered an employer's approval of a ballot
measure that modified a binding interest arbitration provision without first engaging in meet
and confer discussions under MMBA section 3505.17 The Board concluded, based on
DiQuisto, supra, 181 Cal.App.4th 236, that binding interest arbitration ·procedures were
permissive subjects of meeting and conferring and thus beyond the mandatory scope of
representation as defined in MMBA section 3504.18 In the Santa Clara cases, however, the
Board construed section 3504, not section 3507. Thus, the holding in the Santa Clara cases
did not contemplate the dispute here presented, to wit, whether the City failed to consult in
good faith in violation of MMBA section 3507 over the proposed repeal of an interest
arbitration provision from its charter.
Nor did DiQuisto, supra, 181 Cal.App.4th 236 or Fresno Firefighters, supra,
71 Cal.App.4th 82 construe MMBAsection 3507. In DiQuisto, the County of Santa Clara was
accused of improperly expending public funds to favor a partisan position in an election
campaign by bargaining with its employees' unions in an attempt to get the unions to abandon
17 County of Santa Clara, supra, PERB Decision No. 2120-M, p. 10; County of
Santa Clara, supra, PERB Decision No. 2114-M, p. 10.
18 DiQuisto, supra , 181 Cal.App.4th 236, 256.
26

the unions' own initiative measure to establish binding interest arbitration. 19 The unions urged
that the County's proposals, viz., that the unions abandon supporting their own interest
arbitration initiative measure, were unlawful. The DiQuisto court rejected the unions'
argument, concluding that an employer was permitted to discuss permissive subjects during
meet and confer sessions, and that the County did not offer the unions an improper inducement
or engage in campaign activity during meet and confer sessions, either of which might have
demonstrated a violation of campaign laws. Regarding the County's meet and confer
proposals, the DiQuisto court observed:
Under state law, although interest arbitration is not a mandatory
subject of contract negotiations, it is a permissive subject about
which the parties properly may meet and confer. (Fresno
[Firefighters], supra, 71 Cal.App.4th at pp. 96-97.) Likewise,
under federal law, binding interest arbitration "is not a mandatory
subject of bargaining, since its effect on terms and conditions of
employment during the contract period is at best remote."
(N L.R.B. v. Columbus Printing Pressmen and Assistants ' Union
No. 252 (5th Circ. 1976) 543 F.2d 1161, 1166.)
(Id. at p. 257.)
The DiQuisto, supra, 181 Cal.App.4th 236 court's analysis of binding interest
arbitration as a pennissive subject was limited to the duty to meet and confer under
MMBA section 3505 over items within the scope of representation defined in MMBA
section 3504.20 The DiQuisto court neither analyzed nor considered the issue before us here, to
wit, the duty under section 3507(a)(5) to consult in good faith prior to adopting "procedures for
the resolution of disputes involving wages, hours and other terms and conditions of
employment."
19 DiQuisto, supra , 181 Cal.App.4th 236, 242-243.
20 DiQuisto, supra , 181 Cal.App.4th 236, 256.
27

In Fresno Firefighters, supra , 71 Cal.App.4th 82 relied upon by the court in DiQuisto,
supra , 181 Cal.App.4th 236, the court similarly construed the scope of representation under
MMBA sections 3505 and 3504, not section 3507. Relying on federal decisions interpreting
the National Labor Relations Board (NLRA), the Fresno Firefighters court concluded that
interest arbitration is a permissive subject of meeting and conferring.21 We note, however, that
although federal decisions under the NLRA afford guidance in construing the scope of
representation under sections 3505 and 3504, the NLRA contains no provision analogous to
section 3507.22 Thus, the Fresno Firefighters court's analysis of sections 3505 and 3504,
based on provisions of the NLRA, is inapposite to our analysis of section3507. It follows that
neither PERB's Santa Clara cases, nor the courts' decisions in DiQuisto or Fresno
Firefighters, provide guidance for our construction of section 3507.
In MMBA section 3507, the Legislature stated with particularity those matters a public
agency may include in its rules and regulations for administration of employer employee
relations, and over which it must consult. We deem these matters to be "mandatory subjects"
for consultation pursuant to section 3507(a). They are distinct, both conceptually and by their
very terms, from mandatory subjects for meeting and conferring pursuant to sections 3505 and
3504,23 which are limited to wages, hours and terms and conditions of employment of
21 Fresno Firefighters, supra , 71 Cal.App.4th at 91-92, 96-97.
22 While cases decided under the NLRA are generally instructive, they are not
controlling, particularly where PERB is interpreting dissimilar provisions .of California's labor
relations statutes. (See, e.g., Los Angeles Unified School District (1998) PERB Decision
No. 1267.)
23 MMBA section 3504 provides:
The scope of representation shall include all matters relating to
employment conditions and employer-employee relations,
including, but not limited to, wages, hours, and other terms and
28

employees. By contrast, the mandatory subjects for consultation specified in section 3507
concern the very system of collective representation established by the MMBA, and not
·employee wages? hours and terms and conditions of employment.
Of particular interest here are subdivisions (a) (5) and (a) (9) to MMBA section 3507.
Subdivision (a) (5) prescribes "[a]dditional procedures for the resolution of disputes involving
wages, hours and other terms and conditions of employment," and subdivision (a) (9)
prescribes "[a]ny other matters that are necessary to carry out the purposes of this chapter."
We deem each sufficient to implicate the subject here at issue, viz., the City's rules and
regulations for resolution by binding interest arbitration of collective bargaining disputes over
terms and conditions of employment of firefighter employees.
We therefore conclude with the ALJ, that a public agency's decision to modify or
repeal interest arbitration procedures contained in its rules and regulations for administration of
employer employee relations, is subject to the public agency's consultation duty pursuant to
MMBA section 3507, even though a public agency may decline lawfully to meet and confer
under section 3505 over a proposal to include an interest arbitration provision in an MOU
governing wages, hours and other terms and conditions of employment of agency employees.
We next take up the City's claims on appeal that: (1) Local 1319 failed to request
consultation, and (2) in any event the City was not obliged to clarify whether Local 1319 was
seeking to consult. We also consider Local 1319's claim on appeal that the City failed to
prove up any affinnative defense, including waiver.
conditions of employment, except, however, that the scope of
representation shall not include consideration of the merits,
necessity, or organization of any service or activity provided by
law or executive order.
29

Consultation and Clarification
The City contends that Local 1319 failed to request consultation, thus waiving any
consultation right it may have had, and that the City was not obliged to seek clarification of
Local 1319's requests. Local 1319 counters that it actively sought discussions, which the City
refused. We first look to our precedents,24 and then at the parties' conduct.
Under our precedents, a party seeking to meet and confer initiates the process by
making a request therefor. The request need not be stated in particular terms, but must place
the responding party on notice of the subject over which discussions are sought. (Newman-
Crows Landing Unified School District (1982) PERB Decision No. 223 (Newman-Crows _
Landing), citing, inter alia, NLRB v. Columbian Enameling and Shaping Co. (1939)
306 U.S. 292 and Schreiber Freight Lines (1973) 204 NLRB 1162 (Schreiber Freight
Lines).)25 In Schreiber Freight Lines, the National Labor Relations Board (NLRB) affirmed its
ALJ's decision, which reasoned that the requirement of a request to bargain was a low
threshold, designed not for gamesmanship but merely to assure that an employer would not be
found in violation of its statutory duty to negotiate in the absence of notice that its employees
through their representatives desired to bargain. The ALJ' s decision, affirmed by the NLRB,
stated:
24 We proceed by analogy to our meet and confer precedents, since we have no
precedent directly concerning the "indistinguishable" duty to consult under MMBA
section 3507. We conclude that a party seeking consultation may couch its request as one to
meet and confer, since the MMBA duty to consult in good faith has been construed as the
· equivalent of the MMBA duty to meet and confer, and since both processes literally involve
meeting as well as conferring.
25 When construing MMBA and other California public sector labor relations statutes,
California courts and PERB rely on NLRB and judicial decisions construing similar language
in the NLRA. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983)
33 Cal.3d 850; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
30 .

Examination of one of the early Supreme Court decisions reveals
the essential elements of a valid [bargaining] demand. Thus, in
N L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S. 292
(1939), the Court in establishing that a request to bargain is
necessary to an 8(a)(5) violation further indicated that "To put the
employer in default . . . the employees must at least have
signified to respondent their desire to negotiate." [Fn. omitted.]
From a reading of that decision it is apparent that the test of
whether a proper request has been made was not designed to
invite meaningless "game playing," but merely to avoid a finding
of a refusal to bargain against an employer "without some
indication given to him by [employees] or their representatives of
their desire or willingness to bargain." [Fn. omitted.] In sum
where the employer is aware, through direct or indirect means, of
an intention to bargain by the employee representative, the
inquiry is ended.
(Schreiber Freight Lines, supra, 204 NLRB 1162, 1168, emphasis added.)
We concur that it is ultimately the employer's awareness of an employee organization's
desire to bargain which is crucial. While typically we infer such awareness, or lack thereof,
from the words used in the employee organization's negotiating demand, such awareness may
exist apart from the employee organization's demand. In such a case it is appropriate to
enforce the employer's duty to negotiate notwithstanding the words chosen by the
organization. (Ibid.) Thus, we have long held that whether an employer is aware of an
employee organization's desire to bargain is to be determined from the facts on a case-by-case
basis. (Delano Joint Union High School District (1983) PERB Decision No. 307 (Delano ),
citing Newman-Crows Landing, supra, PERB Decision No. 223 and authorities cited therein.)
Where an employer believes that the subject over which an employee organization
desires to meet and confer exceeds the employer's duty to meet and confer, or an employer is
otherwise in doubt as to its meet and confer obligation, the employer must seek clarification.
(Healdsburg Union High School District and Healdsburg Union School District/San Mateo
City School District (1984) PERB Decision No. 375, pp. 9-10 (Healdsburg School
31

District/San Mateo School District) [party objecting that proposal is beyond scope of
representation must make good faith effort at clarification by voicing its specific reasons for
believing proposal is outside the scope of representation and entering into negotiations on
those aspects of proposal which, after clarification, it views as negotiable; failure to seek
clarification in itself violates the duty to negotiate in good faith and will result in an order
requiring the objecting party to return to the negotiating table to seek clarification]; City of
San Jose (2013) PERB J?ecision No. 2341-M, p. 44 (City of San Jose); County of Santa Clara
(2013) PERB Decision No. 2321-M, pp. 31-32 (County of Santa Clara); Rio Hondo
Community College District (2013) PERB Decision No. 2313, pp. 9-13; Jefferson School
District (1980) PERB Decision No. 133, p. 11 (Jefferson ); see also Kern Community College
District (1983) PERB Decision No. 337, p. 4, citing Delano, supra, PERB Decision No. 307.)
We conclude that such clarification should occur within the meet and confer process, not
merely by the exchange of legal positions through correspondence or in comments between
party representatives at public meetings of the governing authority of the agency.26
With these precepts in mind, we review Local 1319's requests to meet and the City's
responses, and the City's awareness of Local 1319's wish to meet.
1. 	In July 2010,27 the City proposed to repeal its interest arbitration procedures.
Local 1319 immediately requested in writing to meet and confer. The City promptly refused,
26 Los Angeles County Civil Service Commission v. Superior Court (1978)
23 Cal.3d 55, 61 (Los Angeles County v. Superior Court) [MMBA duty to meet and confer
includes, inter alia, the exchange of proposals; this duty is not met by a public agency's
pennitting employee organization representatives to comment on matters at a public meeting].
27 We discuss events occurring during 2010, as did the ALJ, to provide a full picture of
the parties' communications regarding these issues. (See County of Riverside (2013) PERB
Decision No. 2307-M; Service Employees International Union, Local 1021 (Sahle) (2012)
PERB Decision No. 2261-M; Local Lodge No. 1424, International Association of Machinists,
AFL-CIO v. National Labor Relations Board (1960) 362 U.S. 411, 416 [events occurring prior
32

claiming in its written response that meeting and conferring over its interest arbitration
· procedures was permissive, not mandatory. The City did not offer to meet with Local 1319,
either to seek clarification of Local 1319's demand or to discuss the City's position that
changes to its interest arbitration procedures were beyond the scope of representation.
Proponents of the repeal failed to garner sufficient Council member votes, but the Council
instructed its staff to bring the matter back for re-consideration in the ensuing election cycle.
2. 	In the Spring of 2011, the Council resumed consideration of repealing its
interest arbitration procedures, this time initially through a standing committee of the Council.
An early May 2011 e-mail to Local 1319 announced that the Council's PSS Committee would
consider repeal or modification of the interest arbitration procedures. The e-mail invited
Local 1319 to contact the City's HR office regarding "meet and discuss." Local 1319
responded by e-mail and voice mail, seeking clarification. Due to problems with the City's
e-mail and voice mail communication systems, Local 1319's clarification requests apparently
failed to reach City officials. In all subsequent communications, City staff routinely
encouraged Local 1319 to contact City officials with "questions," but did not offer to meet.
3. 	On June 20, 2011, the Council met and received from City staff a report
concerning deliberations of the PSS Committee. The staff report indicated the PSS Committee
had reached no consensus on what changes to make to the interest arbitration procedures, and
opined that such changes were permissive, not mandatory, subjects for meeting and conferring.
During this meeting, a Council member declared to the assembled Council and others in
attendance, his understanding that Local 1319 desired to "negotiate" with the City over
changes to the interest arbitration procedures. This Council member also declared that instead
to the limitations period may be utilized to shed light on the true character of matters occurring
within the limitations period].)
33

of negotiating the City should limit Local 1319's participation to that afforded to the public
generally, viz., addressing the Council during public comment periods of public meetings.
4. 	On July 18, 2011, the Council met again. It again received a staff report
concerning deliberations of the PSS Committee, including recommendations for Council
action. The staff report again opined that changes to interest arbitration procedures were
permissive, not mandatory, subjects for meeting and negotiating. The staff report indicated
that Local 1319had provided neither oral nor written comments to the Council's PSS
Committee about changes to the interest arbitration procedures. In the public comment period
following presentation of the staff report, Local 1319's representative requested that the City
meet with Local 1319representatives pursuant to the MMBA to consult on the proposed
changes to the interest arbitration procedures. Thereafter, despite Local 1319'srequest, the
Council adopted some of the changes recommended by the PSS Committee, including aballot
measure to repeal interest arbitration procedures from the Charter.
5. 	On July 18, 2011, immediately after the Council meeting, Local 1319's
representative approached the City's negotiator and reiterated the request made moments
before to the Council, to meet with the City pursuant to the MMBA to discuss the proposed
changes to the interest arbitration procedures. The negotiator demurred, and requested
Local 1319 to put the request in writing. The next day Local 1319 put its request in writing via
an e-mail to the City's negotiator. 	On July 27, 2011, the City's negotiator responded,
reiterating the position taken by the City in July 2010, and in June and July 2011, that the City
would not meet because it deemed its interest arbitration procedures to be permissive, not
mandatory, subjects.
We find that: (1) as early as July 2010, Local 1319 had requested in writing to discuss
(meet and confer) with City representatives the changes proposed by the City to the interest
34

arbitration procedures in its charter; (2) as of the Council meeting on June 20, 2011 and
thereafter, the City was aware that Local 1319 still wished to discuss with City representatives
the changes proposed by the City to the interest arbitration procedures in its charter; and (3) the
City consistently refused to meet with Local 1319, either for clarification or to discuss the
subject of the interest arbitration procedures. Instead, the City consistently claimed that it had
no duty to meet on the repeal or modification of interest arbitration procedures in its rules and
regulations, and that Local 1319's representatives, like members of the public, were to make
their presentations to the Council or its committee during their public sessions.
Based on these findings, we conclude that the City was aware that Local 1319 sought to
meet with City representatives to discuss the City's proposed changes to the interest arbitration
procedures in the City's rules and regulations for the administration of employer employee
relations. That being so, we conclude further that the City was obliged to meet with
representatives of Local 1319, either to discuss and exchange proposals regarding the City's
proposed changes to the interest arbitration procedures or to clarify the City's position that the
proposed changes to its interest arbitration procedures were a permissive subject of meeting
and conferring. This, the City refused to do, on June 20, 2011 and again on July 18, 2011.
Therefore, we conclude that the City failed and refused to meet with representatives of
Local 1319 in violation of its duty under MMBA section 3507.
We turn now to the issues of waiver and other defenses urged by the City and or
discussed by the ALJ.
Waiver
We first review our precedents regarding an employee organization's waiver of the
right to meet and confer or to consult. We then address the ALJ's findings and conclusions on
waiver and other defenses.
35

As noted by the ALJ, an exclusive representative may waive its right to bargain over a
matter within the scope of representation. (San Mateo County Community College District
(1979) PERB Decision No. 94.) However, waiver is an affirmative defense, is disfavored and
must be clear and unmistakable. ( San Francisco Community College District (1979) PERB
Decision No. 105 ( San Francisco); Los Angeles Community College District (1982) PERB
Decision No. 252 (Los Angeles ).) An employer raising a waiver defense must establish that:
(1) it provided the employee organization clear and unequivocal notice that it would act on a
matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished
its right to meet and confer in good faith. (County of Santa Clara, supra, PERB Decision
No. 2321-M; San Francisco; Los Angeles. )
The facts, which we summarized above at pp. 32-35, do not support a conclusion that
Local 1319 waived its MMBA right to consult in good faith with the City over modification or
repeal of the interest arbitration provisions in the City's rules and regulations for the
administration of employer employee relations. We explain.
Local 1319 first requested discussions with the City on this issue in July 2010. The
City promptly acknowledged and denied Local 1319's request. In June 2011 the City publicly
acknowledged awareness of Local 1319's desire to discuss the issue with the City, but the City
confined discussion to participation in public meetings. On July 18, 2011, Local 1319 again
requested to meet with the City, but, with more than three weeks remaining until the City's
August 12, 2011, deadline to submit the measure to the registrar's office, the City acted
unilaterally and thereafter continued to refuse to meet with Local 1319 on the issue. These
facts do not reflect waiver by Local 1319 of its MMBA right to consult.
Rather, upon receiving Local 1319's request or becoming aware of Local 1319's wish
to meet, the City's obligation was to offer to meet and discuss the City's position that the issue
36

on which Local 1319 sought to meet was beyond the scope of representation. 	( City of
San Jose, supra, PERB Decision No. 2341-M; County of Santa Clara, supra, PERB Decision
No. 2321-M; Healdsburg School District/San Mateo School District, supra, PERB Decision
No. 375; Jefferson, supra, PERB Decision No. 133.) By failing to offer to meet with
Local 1319's representatives, the City violated its consultation duty under section 3507.
Nor did the City satisfy its duty to meet by permitting Local 1319's representatives to
address the Council, or the Council's PSS Committee, during public meetings. We conclude,
with the ALJ, that like the City's duty to meet and confer in good faith under MMBA
section 3505, its duty to consult in good faith under section 3507 is not satisfied merely by
permitting organizational representatives to exercise rights accorded to members of the public
to address the Council, or its PSS Committee, in a public session. (Los Angeles County v.
Superior Court, supra, 23 Cal.3d 55.)
We consider now other possible defenses supporting the City's failure to consult with
Local 1319 on the issue of repeal of the interest arbitration procedures from the City's Charter.
Other Defenses
Our precedents establish that a party subject to the duty to meet and confer in good
faith must fulfill its duty to meet and confer in good faith before changing a matter within the
scope of representation. 	(Santa Clara, supra , PERB Decision No. 2321-M, pp. 13-14, citing
Calexico Unified School District (1983) PERB Decision No. 357 ( Calexico).) 	Likewise, a
party subject to this duty may not resort to "self-help" until after exhausting its meet and
confer duty. 	(Santa Clara, p. 15, citingPalo Verde Unified School District (1987) PERB
Decision No. 642.) We conclude therefore that absenta valid defense, a party subject to the
good faith duty to consult pursuant to MMBA section 3507 must defer action on matters
subject to its consultation duty pending exhaustion thereof.
37

Here, the City acted unilaterally and engaged in "self-help" on July 18, 2011, when,
without having consulted to agreement or impasse, it approved a ballot measure to repeal the
interest arbitration procedures in its Charter. The ALJ concluded this action was justified by
two conditions, viz., minimal (five to four) support of the Council for the interest arbitration
ballot measure, and less-than-full attendance of Council members expected at meetings on
July 25, 2011 and August 1; 2011. We are not persuaded.
Two theories which might excuse the City's conduct are inapposite. We discuss each.
In Compton Community College District (1989) PERB Decision No. 720 ( Compton),
the Board held that an employer may implement a change prior to completion of bargaining on
the effects of a non-negotiable decision but only where: (1) the implementation date was not
arbitrary but based on an immutable externally-established deadline, or on an important
managerial interest such that delay beyond the chosen date would undermine the employer's
right to make the decision at all; (2) the employer gave the union notice of the decision and
implementation date sufficiently in advance of the implementation date to allow for
meaningful meeting and conferring prior to the implementation; and (3) the employer met and
negotiated in good faith on implementation and effects prior to the implementation, and
thereafter as to those subjects not resolved by virtue of the implementation.
We deem Compton, supra, PERB Decision No. 720 inapposite for several reasons.
First, Compton concerned the effects of an otherwise non-negotiable matter, while here the
City was acting not on a negotiable effect of a non-negotiable decision but rather on a subject
which itself falls clearly within the City's consultation duty pursuant to MMBA section 3507.
Thus, like matters within the scope of representation for meeting and conferring, the proposed
repeal of interest arbitration procedures was within the scope of representation for consultation.
For this reason alone, Compton is inapposite. Second, even if it were apposite, Compton
38

would be unavailing. 	Despite its awareness on and after June 20, 2011 of Local 1319's desire
to meet, the City: (1) failed to meet or consult in good faith prior to the action on July 18,
2011, and (2) failed to establish that action was required on July 18, 2011, because failing to
act then would undermine the City's right to make the decision at all. The evidence does not
establish that the City's right to act was ever in question, rather merely its ability to secure
sufficient votes at a public meeting of the Council, which it had failed to do in July 2010,
thereby requiring it to consider the matter in a subsequent election cycle. No evidence
suggests that if the City were unable to act in time for the November 2011 election, viz., by
August 12, 2011, that it could not again defer action to the next election cycle. Indeed, the
Council and its PSS Committee had considered various possible dates for submission of the
ballot measure to voters, including those dates after November 2011.
For all these reasons we conclude that Compton, supra, PERB Decision No. 720 affords
the City no justification for its action on July 18, 2011.
In Calexico, supra, PERB Decision No. 357, the Board held that a compelling
operational necessity may justify an employer acting unilaterally before completing its
bargaining obligation. The employer must demonstrate "an actual financial emergency which
leaves no real alternative to the action taken and allows no time for meaningful negotiations
before taking action." (Oakland Unified School District (1994) PERB Decision No. 1045.)
We likewise deem Calexico, supra , PERB Decision No. 357 inapposite. The City
failed to establish either the existence of an actual financial emergency or that there w·as no
time for meaningful consultation. The City first considered repeal of interest arbitration
procedures from its Charter in July 2010, based on its belief that eliminating interest arbitration
procedures could curtail future costs for salaries and benefits of police and firefighter
employees. The City did not establish a financial emergency, but merely its belief that
39

eliminating interest arbitration would, over time, produce less costly salaries and benefits.
Moreover, and in any event, on and after June 20, 2011, and even as late as July 18, 2011,
there was ample time for meaningful consultation with Local 1319 prior to the City's
August 12, 2011 deadline to submit a measure to the Registrar's Office for the November 8,
2011 ballot. We thus conclude that like Compton, supra, PERB Decision No. 720, Calexico
affords the City no justification for its action on July 18, 2011.
In sum, we conclude that the City's action of July 18, 2011 was neither justified nor
excused.
We tum now to the final issue, to wit, the City's claim on appeal that the ALJ abused
his discretion by declining the City's request for additional hearing time to present expert
testimony.
Expert Witness Testimony
PERB regulations clothe anALJ with the power and duty to: "inquire fully into all
issues and obtain a complete record upon which the decision can be rendered;" (PERB
Reg. 32170 (a).) "regulate the course and conduct of the hearing;" (PERB Reg. 32170(d)) "rule
on objections, motions and question of procedure;" (PERB Reg. 32170(f)) and "take evidence
and rules on the admissibility of evidence." (PERB Reg. 32170(h).) Moreover, in unfair
practice cases, "immaterial, irrelevant, or unduly repetitious evidence may be excluded."
(PERB Reg. 32176.)
We conclude, with the ALJ, that neither Evidence Code section 801 nor PERB
regulations support the City's proffer of, and request for a continuance to adduce, expert
witness testimony. We explain.
Evidence Code section 801 provides, in pertinent part:
40

Ifa witness is testifying as an expert, his testimony in the form of
an opinion is limited to such an opinion as is:
(a) 	Related to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of
fact; and
(b) 	Based on matter (including his special knowledge, skill,
experience, training, and education) perceived by or personally
known to the witness or made known to him at or before the
hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in fanning an opinion
upon the subject to which his testimony relates, unless an expert
is precluded by law from using such matter as a basis for his
opm10n.
The ALJ concluded that the issues before him involved construing a statute, viz., MMBA
section 3507, and not customs or practices of the City or of other public employers subject to
the MMBA, regarding their means and methods for obtaining the input of an exclusive
representative organization concerning ballot measures to be submitted to City voters. (PD,
p. 5.) Thus, ruled the ALJ, the proffered expert testimony was not appropriate under Evidence
Code section 801 (a). We concur. We note also that the question before the ALJ was the
statutory construction of section 3507, as to which the City's proffered expert testimony was
neither "material" nor "relevant" within PERB Regulation 32176, thus affording the ALJ an
additional basis for refusing the City's request. Accordingly, we conclude that ALJ properly
excluded the proffered expert testimony and did not abuse his discretion thereby.
CONCLUSION
We conclude that the City violated the MMBA as alleged in the PERB complaint,
when, on July 18, 2011, without engaging in consultation in good faith with Local 1319 as
required by section 3507, the City approved submission to voters of a ballot measure to
authorize repeal Article V of the Charter, which provided for interest arbitration of collective
bargaining disputes concerning the City's police and firefighter employees. We conclude that
41

this conduct likewise violated MMBA sections 3503, 3506, 3507 and 3509(b), as well as
PERB Regulation 32603(a), (b), and (f).
REMEDY
The City contends that the Board's remedial authority, which arises under MMBA, may
not control the City's exercise of its home-rule authority under Article XI of the California
Constitution to amend the Charter. California's Supreme Court addressed a like claim in Seal
Beach, supra , 36 Cal.3d 591, concluding that in MMBA the Legislature established a policy of
statewide concern applicable to charter cities notwithstanding their constitutional home-rule
rights. We review the Board's remedial authority, and then address the issue of remedy for the
violations discussed above.
PERB' s Authority
In 1975, the Legislature enacted the Educational Employment Relations Act (EERA),28
thereby creating and vesting EERB29 with broad jurisdiction and remedial authority.
EERA section 3541.3 provides, in pertinent part:
The board shall have all of the following powers and duties:
(i) 	To investigate unfair practice charges or alleged violations
of this chapter, and take any action and make any detenninations
in respect of these charges or alleged violations as the board
deems necessary to effectuate the policies of this chapter, except
that in an action to recover damages due to an ulawful strike, the
board shall have no authority to award strike-preparation
expenses as damages, and shall have no authority to award
damages for costs, expenses, or revenue losses incurred during, or
as a consequence of, an unlawful strike.
(j) 	To bring an action in a court of competent jurisdiction to
enforce any of its orders, decisions, or rulings, or to enforce the
28 BERA is codified at Government Code sections 3540 et seq.
29 Prior to 1978 PERB was known as the Educational Employment Relations Board or
EERB.
42

refusal to obey a subpoena. Upon issuance of a complaint
charging that any person has engaged in or is engaging in an
unfair practice, the board may petition the court for appropriate
temporary relief or restraining order.
(n) 	To take any other action as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the
purposes of this chapter.
EERA section 3541.5 provides, in pertinent part:
The initial determination as to whether the charges of unfair
practices are justified, and, if so, what remedy is necessary to
effectuate the purposes of this chapter, shall be a matter within
the exclusive jurisdiction of the board. Procedures for
investigating, hearing, and deciding these cases shall be devised
and promulgated by the board and shall include all of the
following:
(c) 	The board shall have the power to issue a decision and
order directing an offending party to cease and desist from the
unfair practice and to take such affirmative action, including but
not limited to the reinstatement of employees with or without
back pay, as will effectuate the policies of this chapter.
(EERA, §§ 3541.3 and 3541.5, emphasis added.)
In 1995, the California Court of Appeal affirmed PERB 's broad authority in a case
involving a city charter. (Local 21, International Federation of Professional and Technical
Engineers, AFL-CIO v. Thornton C. Bunch, Jr. (1995) 40 Cal.App.4th 670 (Professional and
Technical Engineers ).)30 We first summarize the facts, and then the holding.
In 1991, San Francisco voters approved a charter amendment authorizing collective
bargaining between the City and County of San Francisco and representatives of its employees.
The city was empowered by the charter amendment to serve as sole negotiator for collective
bargaining with employees in all city departments. Under the charter, the San Francisco
30 See also, United Public Employees v. Public Employment Relations Bd. (1989)
213 Cal.App.3d 1119; Sonoma County Bd. of Education v. Public Employment Relations Bd.
(1980) 102 Cal.App.3d 689.
43

Unified School District (SFUSD) was deemed a city department. The union representing
SFUSD accountants commenced labor negotiations with the city, but could not reach
agreement. An arbitration board was convened pursuant to the 1991 charter amendment, and
rendered an arbitration award. After SFUSD refused to implement the arbitrator's award, the
union petitioned for a writ of mandate. SFUSD contended that the court lacked jurisdiction,
urging that PERB, not the court, had exclusive initial jurisdiction to decide whether the EERA
required that labor negotiations for SFUSD employees be conducted by school district
representative.
After agreeing that PERB had jurisdiction, the trial court nonetheless reached the
merits, ruling that under the EERA the SFUSD was entitled to its own representative in the
negotiations with the union. The Court of Appeal reversed and remanded, with directions to
dismiss the action for failure of the union to exhaust its administrative remedies before PERB.
Regarding PERB 's remedial authority, the appellate court observed:
PERB possess "broad" remedial powers enabling it "to take
action and make determinations as are necessary to effectuate the
policies of ' the statutes it administers. 	(Mt. San Antonio
Community College District v. Public Employment Relations Bd.
(1989) 210 Cal.App.3d 178, 189-190.) This case presents no
distinct or unusual remedial issues. Nor is this a matter of purely
local concern involving issues "neither of jurisdictional interest to
PERB nor within its area of expertise." (Pittsburg Unified School
Dist. v. California School Employees Assn. (1985) 166
Cal.App.3d 875, 888.) As already noted, PERB has issued
rulings in similar disputes before judicial review was sought.
(See United Public Employees v. Public Employment Relations
Bd. (1989) 213 Cal.App.3d 1119 [whether certain employees of
the San Francisco Community College District were also
employees of the city subject to the charter]; Sonoma County Bd.
of Education v. Public Employment Relations Bd. (1980) 102
Cal.App.3d 689 [whether system for employee relations
established by a civil service system conflicted with the EERA].)
(Professional and Technical Engineers, supra , 40 Cal.App.4th 670, 679.)
44

Regarding PERB's authority and competence to adjudicate in the first instance an issue
implicating the extent of its own jurisdiction vis-a-vis that of a charter city, the appellate court observed:
We agree with the trial court that the issues presented in this case-
especially the extent to which local regulation of employment
matters as prescribed by the [City and County of San Francisco]
charter might be superseded by matters of statewide concern as set
out in the EERA-is a matter properly decided, in the first instance,
by PERB . . . Y1J [Professional and Technical Engineers, supra,
40 Cal.App.4th 670, 676.]
In 2000, five years after the court's decision in Professional and Technical Engineers,
supra, 40 Cal.App.4th 670, the Legislature vested in PERB jurisdiction and remedial authority over
the MMBA. (MMBA, § 3509(b); Coachella Valley Mosquito and Vector Control District v. Public
Employment Relations Board (2005) 35 Cal.4th 1072.) The Legislature wrote, in pertinent part:
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 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, except
31 The Court noted in footnote 6 of the opinion:
. . . [T]his controversy does not ask PERB to remedy a pure violation
of the Education Code, but instead asks for a determination of
whether certain collective bargaining activities, as granted by the
Education Code and prescribed by the charter, are arguably
prohibited under the EERA. As already noted, PERB is solely
empowered with the "exclusive initial jurisdiction" to determine
controversies involving activities "arguably protected or prohibited"
under the EERA. (El Rancho Unified School Dist. v. National
Education Assn. [1983] 33 Cal.3d 946, 960-961.) [Professional and
Technical Engineers, supra, 40 Cal.App.4th 670, 678.]
45

that in an action to recover damages due to an unlawful strike, the
board shall have no authority to award strike-preparation
expenses as damages, and shall have no authority to award
damages for costs, expenses, or revenue losses incurred during, or
as a consequence of, an unlawful strike. The board shall apply
and interpret unfair labor practices consistent with existing
judicial interpretations of this chapter.
(c) 	The board shall enforce and apply rules adopted by a
public agency concerning unit determinations, representation,
recognition, and elections.
(MMBA, § 3509; emphasis added.) The Legislature thus accorded PERB authority to
determine in the first instance whether local regulation of employment matters in a charter city
is superseded by the MMBA's policies of statewide concern and to prescribe the appropriate
remedy. (EERA, § 3541.3(i); MMBA 3509(b); Professional and Technical Engineers, supra,
40 Cal.App.4th 670.)
The Appropriate Remedy
We concluded above that the City violated the MMBA by: (1) failing or refusing to
perform its duty under section 3507 to consult in good faith over rules and regulations for the
administration of employer employee relations, in particular, interest arbitration procedures for
the resolution of collective bargaining disputes, and (2) having failed to consult in good faith
beforehand, placing on the ballot an amendment to the Charter to repeal Article V thereof. Our
traditional remedy in a unilateral change case is a cease and desist order, coupled with
affirmative relief consisting of an order to restore the prior status quo and an order to meet and
confer upon request. (County of Sacramento (2009) PERB Decision No. 2044-M; County of
Sacramento (2008) PERB Decision No. 1943-M.) A policy change subject to the duty to meet
and confer and implemented without meeting and conferring, is a fait accompli, which, if left
in place, would compel the union to "bargain back" to the status quo (Desert Sands Unified
School District (2004) PERB Decision No. 1682a, p. 5; San Mateo County Community College
46

District (1979) PERB Decision No. 94, p. 15.) and make impossible the give and take that are
the essence of good faith consultation. ( Vernon Fire Fighters v. City of Vernon (1980)
107 Cal.App.3d 802 (City of Vernon).) Because the MMBA duty to consult in good faith
under section 3507 is indistinguishable from the MMBA duty to meet and confer, we conclude
that the appropriate remedy for a violation of the duty to consult is akin to the remedy for a
violation of the duty to meet and confer, viz., a cease and desist order, coupled with affirmative
relief consisting of an order to restore the status quo and an order to consult in good faith upon
request.
The City objects to such relief. We consider the objections.
First, objects the City, home-rule provisions of the California Constitution, in particular
Article XI, Section 3(a),32 accord charter cities the right to propose charter amendments to the
electorate without prior consultation thereon pursuant to MMBA section 3507. We disagree.
In Seal Beach, supra, 36 Cal.3d 591, the Supreme Court held that the MMBA duty to
meet and confer in good faith is a matter of statewide concern and as such prevails over local
enactments of a charter city concerning matters that might otherwise be deemed a strictly
municipal affair. (Seal Beach, p. 600, citing Professional Fire Fighters, Inc. v. the City of
Los Angeles (1963) 60 Cal.2d 276, 292; see also Younger v. Board of Supervisors (1979)
32 Article XI, section 3(a) provides:
For its own government, a county or city may adopt a charter by
majority vote of its electors voting on the question. The charter is
effective when filed with the Secretary of State. A charter may
be amended, revised, or repealed in the same manner. A charter,
amendment, revision, or repeal thereof shall be published in the
official state statutes. County charters adopted pursuant to this
section shall supersede any existing charter and all laws
inconsistent therewith. The provisions of a charter are the law of
the State and have the force and effect of legislative enactments.
47

93 Cal.App.3d 864, 870 [denying enforcement of charter amendments passed by initiative
measure but in conflict with superior state law]; Votersfor Responsible Retirement v. Bd. of
Supervisors (1994) 8 Cal.4th 765 [a charter city or county does not expand its powers to affect
matters of statewide concern simply because it acts through the mechanism of local initiative
rather than by traditional legislative means.].) The Seal Beach court reasoned that a charter
city employer could not avoid its MMBA meet and confer obligations by exercise of its right to
propose charter amendments. (Seal Beach, p. 602.) Rather, a charter city, like the City here,
must comply with its MMBA obligation before referring to voters for approval of a ballot
measure on a subject over which the charter city was obliged by MMBA to meet and confer.
(Ibid.)
The City urges that it is excused from consultation over a City-proposed change to City
"rules and regulations for the administration of employer employee relations" contained in the
Charter, because placement of the particular rule or regulations in the Charter means that only
the City's voters, and not the City itself, could "adopt" the particular rule or regulation. We
conclude this is the same argument advanced to and rejected by the court in Seal Beach, supra,
36 Cal.3d 591. As in Seal Beach, the City here seeks to avoid its MMBA obligation to consult
by claiming that the City's voters, not the City itself, is the ultimate actor, and that City voters
are not subject to an MMBA duty to consult. However, here it is the City's action to refer to
the voters a ballot measure to amend the Charter by repealing the provision for interest
arbitration, which was undertaken without compliance with the City's MMBA obligation to
consult and which is here challenged. Thus, here the City itself is the "offending party" and
well within our remedial jurisdiction.
Relying on Seal Beach, supra , 36 Cal.3d 591 and Professional and Technical
Engineers, supra, 40 Cal.App.4th 670, we hold that where a charter city without prior good
48

faith consultation acts unilaterally to adopt or amend its rules and regulations for the
administration of employer employee relations, whether the unilateral action is direct by
adoption of an ordinance or indirect by referring a .charter amendment for voter approval, the
unilateral action violates MMBA section 3507 and gives rise under section 3509 to the Board's
authority as described in EERA section 3541.5, viz., to 3541.5, "to issue a decision and order
directing an offending party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement of employees with or without
back pay, as will effectuate the policies of this chapter." (EERA, § 3541.5 (c).) Here the
"offending party" is the City, not the City's voters as the City suggests when it argues that the
voters, not the City itself, amended the Charter and are beyond PERB's remedial authority.
Next, objects the City, having referred to City voters a measure to repeal Article V of
the Charter, the City's constitutional homerule privileges insulate it from a PERB remedial
order to rescind the referral and to consult in good faith upon request with Loca1 1319. We
disagree.
As noted in Professional and Technical Engineers, supra, 40 Cal.App.4th 670, 676,
"the extent to which local regulation of employment matters as prescribed by the charter might
be superseded by matters of statewide concern as set out in the [MMBA]-is a matter properly
decided in the first instance, by PERB." (Ibid.) Exercising this authority, we decide that our
precedents compel the result we reach, viz., that in addition to cease and desist orders,
affirmative relief is also appropriate, including an order directed to the City itself to rescind the
City's action of July 18, 2011, referring to voters of a measure to repeal Article V of the
Charter, coupled with an order directed to the City itself to consult in good faith upon request.
We do not believe our remedial authority extends to ordering the results of an
effective municipal election to be overturned. Such remedy lies with the courts. (Pala Band of
49

Mission Indians v. Board of Supervisors (1997) 54 Cal.App.4th 565, 574, 583; IAFF v. City of
Oakland (1985) 174 Cal.App.3d 687, 698 [quo warranto writ is the exclusive remedy to attack
procedural regularity by which charter amendments are put before electorate]; City of
Coronado v. Sexton (1964) 227 Cal.App.2d 444, 453.). Based on the remedial authority which
we do exercise under the MMBA, to wit, finding the City violated the MMBA and directing
the City itself to rescind its July 18, 2011 resolution referring to voters the ballot measure,
other persons, including the charging party here, may choose to seek such quo warranto
relief.33
As a result of the above-described violation, the City has also interfered with the right
of employees to participate in an employee organization of their own choosing, in violation of
MMBA section 3506 and PERB Regulation 32603(a), and has denied the Local 1319 its right
to represent employees in their employment relations in violation of MMBA section 3503 and
PERB Regulation 32603(b). The appropriate remedy is to cease and desist from such unlawful
conduct. (Rio Hondo Community College District (1983) PERB Decision No. 292.)
Finally, it is the ordinary remedy in unfair practice cases that the party found to have
committed a violation of the law is ordered to post a notice incorporating the terms of the order
at all work locations where notices to unit employees are customarily posted. Thus, the City is
ordered to do so in this case. Posting of such a notice, signed by an authorized agent of the
City, provides employees with notice that the City acted in an unlawful manner, must cease
and desist from its illegal action, and will comply with the order. It effectuates the purposes of
33 We are aware of no impediment to our consideration of a request for injunctive relief
prior to a proposed charter amendment being voted upon by the electorate, if a charging party
has alleged a prima facie violation of MMBA or another of our statutes and injunctive relief is
appropriate to preserve the status quo and PERB 's ability to order a remedy upon completion
of our administrative process. (Public Employment Relations Board v. Modesto City Schools
District (1982) 136 Cal.App.3d 881, 895-896.)
50

the MMBA to inform employees of the resolution of the case. (Omnitrans (2010) PERB
Decision No. 2143-M.)
ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record in this
case, it has been found that the City of Palo Alto (City) violated the Meyers-Milias-Brown Act
(MMBA), Government Code section 3500 et seq. The City breached its duty of consultation in
good faith with the International Association of Firefighters Local 1319, AFL-CIO
(Local 1319) in violation of Government Code section 3507 and 3509(b), and Public
Employment Relations Board (PERB or Board) Regulation 32603(c) (Cal. Code of Regs, tit. 8,
§ 31001 et seq.) when it failed and refused to meet and consult with the Local 1319 over the
City's proposed ballot measure to repeal Article V of the Charter. By this conduct, the City
also interfered with the right of unit employees to participate in the activities of an employee
organization of their own choosing, in violation of Government Code section 3506 and PERB
Regultion 32603(a), and denied the Local 1319 the right to represent employees in their
employment relations with a public agency in violation of Government Code section 3503 and·
PERB Regulation 32603(b).
Pursuant to MMBA section 3509(a) of the Government Code, it is hereby ORDERED
that the City, its governing board and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and consult with Local 1319 prior to adopting ballot
measures to voters to establish or modify rules or regulations for the administration of
employer employee relations, including without limitation procedures for the resolution of
collective bargaining disputes.
51

2. 	Interfering with the right of bargaining unit employees to be represented
by an employee organization of their own choosing.
3. 	Denying Local 1319 their right to represent employees in their
employment relations with the City.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the action of July 18, 2011, referring to City voters a measure to
repeal Article V of the City Charter.
2. 	Upon request, meet and consult with representatives of Local 1319 over
modification or repeal of rules or regulations for the administration of employer employee
relations, including without limitation procedures for the resolution of collective bargaining
disputes.
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations in the City, 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 this Notice is not reduced in size, altered, defaced or covered
with any other material. In addition to physical posting of paper notices, the Notice shall be
, posted by electroriic message, intranet, internet site, and other electronic means customarily
used by the City to communicate with its employees in the bargaining unit represented by
Local 1319. ( City of Sacramento (2013) PERB Decision No. 2351-M.)
4. 	Within thirty (30) workdays of service of a final decision in this matter,
notify the General Counsel of PERB, or his or her designee, in writing of the steps taken to
52

comply with the terms of this Order. Continue to report in writing to the General Counsel, or
his or her designee, periodically thereafter as directed. All reports regarding compliance with
this Order shall be served concurrently on Local 1319.
Members Winslow and Banks joined in this Decision.
53

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-869-M, International Association of
Firefighters, Local 1319, AFL-CIO v. City of Palo Alto, in which all parties had the right to
participate, it has been found that the City of Palo Alto (City) violated the Meyers-Milias-
Brown Act (MMBA), Government Code section 3500 et seq., and the Public Employment
Relations Board regulations by breaching its duty of consultation in good faith with the
International Association of Firefighters Local 1319, AFL-CIO (Local 1319) when it failed and
refused to meet and consult with Local 1319 over the City's proposed ballot measure to repeal
Article V of the City Charter. This conduct also interfered with the right of unit employees to
participate in the activities of an employee organization of their own choosing and denied
Local 1319 the right to represent employees in their employment relations with a public
agency.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and consult with Local 1319 prior to adopting ballot
measures to voters to establish or modify rules or regulations for the administration of
employer employee relations, including without limitation procedures for the resolution of
collective bargaining disputes.
2. 	. Interfering with the right of bargaining unit employees to be represented
by an employee organization of their own choosing.
3. 	Denying Local 1319 their right to represent employees in their
employment relations with the City.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the action of July 18, 2011, referring to City voters a measure to
repeal Article V of the City Charter.

Dated: -----~---
--------------
2. 	Upon request, meet and consult with representatives of Local 1319 over
modification or repeal of rules or regulations for the administration of employer employee
relations, including without limitation procedures for the resolution of collective bargaining
disputes.
CITY OF PALO ALTO	Dated:
By:	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.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL 1319, AFL-CIO,
Charging Party,
v.
CITY OF PALO ALTO,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-869-M
PROPOSED DECISION
(November 15, 2011)
Appearances: Davis Reno, by Alan C. Davis and Duane W. Reno, Attorneys, for International
Association of Firefighters, Local 1319, AFL-CIO; Renne Sloan Holtzman Sakai, LLP, by
Charles D. Sakai, Attorney, and Molly S. Stump, City Attorney, for City of Palo Alto.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges a public employer's approval of a ballot measure to repeal interest
arbitration from its City Charter and holding a "first reading" to approve an ordinance
requiring non-binding mediation over bargaining disputes without consultation in good faith
with the exclusive representative. The public employer denies any violation of the Meyers-
Milias-Brown Act (MMBA) 1 and contends that the Public Employment Relations.Board
(PERB) does not have jurisdiction over the dispute pursuant to MMBA section 3509(e).
Filing of Unfair Practice Charge and Request for Injunctive Relief
On June 28, 2011, the International Association of Firefighter, Local 1319 (Local 1319)
filed an unfair practice charge (charge) against the City of Palo Alto (City).
On August 1, 2011, Local 1319 filed with PERB a request for temporary restraining
order and injunctive relief (Injunctive Relief Request No. 601). On August 4, 2011, the City
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated all statutory references are to the Government Code.

filed.its opposition. On August 4, 2011, the parties met informally with a PERB Board agent
to discuss the issues of the charge. On August 5, 2011, Local 1319 withdrew its request for
injunctive relief without prejudice and requested that the charge be placed in abeyance pending
a second scheduled informal meeting on September 13, 2011. On September 7, 2011,
Local 1319 renewed its request for injunctive relief (Injunctive Relief Request No. 605) and
the charge was removed from abeyance.
On September 7, 2011, the PERB Office of General Counsel issued an unfair practice
complaint (complaint) alleging that on July 18, 2011, the City Council approved a ballot
measure (Measure D) to repeal Article V of the City Charter (binding interest arbitration) and
held a "first reading" to approve an ordinance requiring non-binding mediation over bargaining
disputes resulting from bargaining 'impasse without consulting in good faith with Local 1319.
Such actions were alleged to have violated MMBA sections 3503, 3506, 3507, and 3509(b) and
PERB Regulation 32603(a), (b), and ,(f).2 On the same day, a PERB formal hearing was set for
September 26 arid 30, 2011.
On September 12, 2011, the City filed its supplemental opposition to Injunctive Relief
Request No. 605. On September 15, 2011, the PERB Offi.ce of General Counsel notified the
parties that the injunctive relief request was denied without prejudice.
Request for Continuance due to Recently Retained Outside Counsel
On September 9, 2011, the City requested a continuance of the hearing dates to the
week of November 14, 2011, after the scheduled election of Measure D, on November 8, 2011,
as it had just added outside counsel from Renne Sloan Holtzman Sakai to represent it.
Local 1319 opposed the request. Absent from the request, was a representation that Measure D
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

could not be removed from the November 8, 2011 election at the request of the City. The
Chief Administrative Law Judge (CALJ) would not continue the case to a later date, but would
consider earlier dates. Renne Sloan Holtzman Sakai reassigned the case to another partner and
the formal hearing proceeded on September 26 and 30, 2011.
Motion to Dismiss
On September 23, 2011, the City faxed a motion to dismiss the complaint based on the
assertion that PERB lacked jurisdiction pursuant to MMBA section 3509(e); PERB
precedential decisions on judicial appeal, County of Santa Clara (2010) PERB Decision
No. 2114-M3 and County of Santa Clara (2010) PERB Decision No. 2120-M,4 decided the
same issue; the City never "adopted" a reasonable rule and regulation pursuant to MMBA
section 3507; and PERB could not award· a remedy to prohibit the election as ballots had been·
printed and voting would begin shortly. On September 26, 2011, Local 1319 submitted its
opposition to the motion at the hearing and the CALJ deferred ruling on the motion until he
had an opportunity to independently research the arguments. On September 29, 2011, the
CALJ deni.ed the motion to dismiss and denied the request to issue the proposed decision after
· the election.
On September 26, 2011, the City answered the complaint denying that it violated the
MMBA or PERB Regulations. The City also contended that the complaint was inconsistent
with PERB.precedential decisions; Local 1319 waived its right to consult in good in faith;
3 Santa Clara County Correctional Peace Officers' Assn. v. PERB and County of Santa
Clara v. PERB (Sixth Appellant District Case Nos. H035786 and H035791, cases fully
briefed).
4 Registered Nurses Professional Assn. v. PERB and County of Santa Clara v. PERB
(Sixth Appellant District Case Nos. H035804 and H035846, cases fully briefed).
3

PERB lacked jurisdiction over the dispute pursuant to MMBA section 3509(e); and PERB
lacked jurisdiction to grant any relief.
Subsequent Request that CALJ Defer Issuing Proposed Decision Until After Election
On September 30, 2011, the parties met for the second day of formal hearing. The City
protested that the matter had been expedited ever since the charge had been filed with PERB
and expressed its concerns concerning procedural irregularities with the PERB General
Counsel Office's handling of the case. A declaration from County of Santa Clara (County)
Election Division Coordinator Leslie A. Smith (Smith) provided that the deadline for
jurisdictions to file ballot measures with the County Registrar of Voters Office was
August 12, 2011. She declared that 60-day ballots had already been prepared and mailed on
September 9, 2011 to domestic and overseas military and civilians eligible to vote; and, as of
September 28, 2011, ten overseas ballots had been received. In short, the voting had already
begun. Both parties agreed that the election was going to go forward and could not be
reversed.
The City requested that the CALJ issue his proposed decision after the
November 8, 2011 election as the CALJ could not stop the·election from going forward and
PERB had the same remedies before the November 8, 2011 election as afterward. The CALJ
agreed to reconsider the City's request to issue the proposed decision after the
November 8, 2011 election, and requested the parties include briefing on the matter in its post-
hearing briefs.
On October 13, 2011, the CALJ issued his ruling deciding to postpone issuing the
proposed decision until after the eledion.
4

Request for Cntinuance to Obtain Expert Testimony
On September 30, 2011, the City also requested ctn additional day of hearing so that it
could call two expert witnesses: Daniel Cassidy (Cassidy) and Professor Corey Cook
(Prof. Cook). The City asserted that these expert witnesses were not available for the
September 30 hearing because of the expedited nature in which the hearing was set (19 days
from the hearing notice for the September 26 hearing and 23 days from the hearing notice for
the September 30 hearing), but they were available October 17, 18, 24 or 25, 2011. The City
set forth an offer of proof that Cassidy, a founding partner of a California public sector labor
law firm, had extensive familiarity with a public· employer's consultation in good faith
obligation and could explain the practical differences between consultation in good faith
pursuant to MMBA section 3507 and meet and confer in good faith pursuant to MMBA
section 3505. · Prof. Cook, an Associate Professor of Political Science at the University
San Francisco, could testify as to the formation of political consensus and the importance of
timing in the political and electoral process, including the impact of engaging labor unions at
the local political level. He would further testify as to what point in time a union should be
involved with a municipality which desires to propose an amendment to a City Charter.
Local 1319 objected to these experts as "consultation in good faith" was to be defined by legal
precedent and the timing of the political process was already governed by existing precedential
· decisions concerning the waiver of bargaining rights.
Evidence .Code section 801(a) provides that an expert can be called if the testimony
would be "[r]elated to a subject that is sufficiently beyond common experience" and the
opinion would "assist the trier of fact." The determination of the meaning· of "consultation in
good faith" (MMBA, § 3507) is not to be determined by practice, but by law. Additionally,
while Prof. Cook's testimony may be appropriate for a legislative hearing which sought to
5

clarify the process by amending the MMBA, it is inappropriate to use for determining the
interpretation of a statute as to the social/political appropriateness of the timing of an exclusive
representative's input into a municipality's vote to place a proposed amendment (or repeal) of
a City Charter on the ballot. The City was certainly free to argue the impact of any election
codes upon the MMBA. For these reasons, the experts would not assist the trier of fact in
resolving the disputes before him and were denied.
Many times during the hearing and after the hearing, the City renewed its request to call
these expert witnesses. The requests were all denied.
Request for Interlocutory Appeal
Also during the September 30, 2011 hearing, the City submitted a request for
interlocutory appeal of the CALJ' s denial of the City's motion to dismiss pursuant to PERB
Regulation 32200. On October 5, 2011, Local 1319 filed its opposition to the request as it
would not "materially advance the resolution of the case." (PERB Reg. 32200(c).) On
October 6, 2011, the CALJ refused to join in the City's request for interlocutory appeal as it
would not "materially advance the resolution of the case" if the proposed decision would be
issued immediately after the election and the motion did not have sufficient merit.
Post-hearing Briefing and Request for Official Notice
At the end of the September 30, 2011 hearing, post-hearing briefs were set to be
submitted by October 10, 2011. As the transcripts would not be ready by that time, the CALJ
provided the parties with a compact disc (CD) of the audio recordings of the September 26 and
30, 2011 formal hearings. On October 13, 2011, the CALJ allowed the parties to file reply
briefs with the aid of the transcripts by October 24, 2011. Both parties elected to do so.
6

On November 3, 2011, the CALJ wrote the representatives asking them if they objected
to the CALJ taking official notice of the November 8, 2011 election results of Measure D.
Neither party objected. Official notice is hereby taken of the results.
FINDINGS OF FACT .
Jurisdiction
The City is a public agency under MMBA section 3501(c) and PERB
Regulation 32016(a). Under PERB Regulation 32016(b), Local 1319 is the exclusive
employee organization of an appropriate unit of employees within the City.
Background
In August 2010, the City Council of Palo Alto consisted of nine members including
Councilmembers Sid Espinosa (Espinosa), Patrick Burt (Burt), Karen Holman (Holman), Gail
Price (Price), Yiaway Yeh (Yeh), Larry Klein (Klein), Nancy Shepherd (Shepherd), Gregory
Scharff (Scharff) and Greg Schmid (Schmid). James Keene (Keene) was the City Manager and
Gary Baum (Baum) was the City Attorney. After Baum left City employment, Molly Stump
(Stump) became the City Attorney. Marcie Scott (Scott) was the Assistant Director of Human
Resources responsible for labor relations and bargaining, and Darrell Murray (Murray) was a
professional negotiator retained by the City to negotiate successor agreements. .
Anthony Spitaleri (Spitaleri) has been Local 1319's President for the past 33 years5 and
Barry Marchisio (Marchisio) has been Local 1319 Secretary for the past 20 years.
City Charter
Article V, of the City Charter "Compulsory Arbitration for Fire and Police Department
Employee Disputes," added in July 1978, provides in pertinent part:
5 Interestingly, Spitaleri is also a City Councilmember with the City of Sunnyvale.
7

Section 4. 	Impasse resolution procedures.
All disputes or controversies pertaining to wages, hours, or terms
and conditions of employment which remain unrsolved after
good faith negotiations between the city and either the fire or
police department employee organization shall be submitted to a
three-member board of arbitrators upon the declaration of an
· impasse by the city or by the recognized employee organization
involved in the dispute.
At the conclusion of the arbitration hearings, the arbitration
board shall direct each of the parties to submit, within such time
limit as the board may establish, a last offer of settlement on
each of the issues in dispute. The arbitration board shall decide ·
each issue by majority vote by selecting whichever last offer of
settlement on that issue it finds most nearly conforms with those
factors traditionally taken into consideration in the determination
of wages, hours, and other terms and conditions of public and
private employment, including, but not limited to, changes in the
average consumer price index for goods and services, the wages,
hours, and other terms and conditions of employment of other
employees performing similar services, and the financial
condition of the city and its ability to meet the cost of the award.
Council's 2010 Vote to Repeal Article V
On April 12, 2010, Keene issued a "Preview of the City Manager's Proposed Budget
for Fiscal Year 2011" which forecasted a $8..3 million budget shortfall for the City. The report .
included proposals for service reductions, cost recovery, revenue generation and position
elimination. On May 13, 2010, the County Civil Grand Jury issued a report, "Cities Must Rein
in Unsustainable Employee Costs." The report set forth the problem that personnel costs of
municipalities within the County were outpacing the revenues collected and proposed ways in
which they could better manage this problem. The report recommended that the San Jose City
Council prepare a ballot measure asking voters to repeal the City Charter secton addressing
binding interest arbitration. That same month, the City and Local 1319 began to bargain over a
successor Memorandum of Agreement as the prior agreement was set to expire on June 30,
2010.
8

On July 19, 2010, the Council met and directed City staff to prepare a measure to be
placed on the November 2010 ballot which would repeal Article V of the City Charter, which
would be discussed at the July 26, 2010 Council meeting.
On July 22, 2010, Attorney Alan Davis (Davis) sent a letter to Keene and City Human
Resources Director Russell Carlsen (Carlsen) on behalf of the Palo Alto Police Managers
Association (PMA) regarding the Council's interest in repealing Article V, which provided in
pertinent part:
In the City Attorney's attachment to Agenda Item No. 4, he _
neglects to advise the City Council that it is the City's obligation
. to comply with the meet and confer requirements of the Meyers-
Milias-Brown Act prior to any action on a proposed Charter
measure to repeal binding arbitration. See The People ex rel.
Seal Beach Police Officers Association et al., v. City of Seal
Beach et al. (1984) 36 Cal.3rd 591. Respectfully, and in behalf of
the Police Managers Association, I must insist that the City
comply with the State law meet and confer requirements
confirmed by the California Supreme Court in Seal Beach. Even
the City of Vallejo, which narrowly repealed its Charter
Arbitration provisions in June, complied with these meet and
confer (they call them "meet and consult" ) requirements prior to
voting to submit the issue to the voters . . . .
·
(Emphasis in original.)
On July 23, 2010, Spitaleri sent a letter to Keene and Carlsen regarding the repeal of
Article V:
I join in the statements made by Mr. Davis on behalf of [the
Police Managers Association] in insisting that the City must
comply with the State law nieet and confer "requirements
confirmed by the California Supreme Court in The People ex rel.
Seal Beach Police Officers Association et al., v. City of Seal
Beach et al. (1984) 36 Cal.3rd 591, prior to any action to place
the repeal of binding arbitration on the ballot for a vote. I urge
you to consult with an experienced labor lawyer on this matter.
As Mr. Davis observed in the Palo Alto Police Managers
Association letter, even the City of Vallejo complied with the
9

Seal Beach meet and confer requirements before deciding to
place a repeal measure on the [November] 2010 ballot.
·Interest Arbitration measures have unfairly become a whipping
boy because of concerns of the City of Palo Alto and other
municipalities have over financial constraints imposed by the
ongoing recession. I urge you to step back, take a deep breath
and, if you believe it is important to review the Article V
requirements, begin a dialogue with us and with other labor
organizations which would be affected by any effort to remove
or modify the Article V requirements.
(Emphasis added.)
On July 26, 2010, Carlsen responded to Spitaleri's letter stating:
The Council will discuss this issue[, repealing binding interest
arbitration,] further at the July 26, 2010 meeting and will
consider placing the proposed measure on the ballot at its
August 2, 2010 meeting.
Interest arbitration provisions are a permissive, not mandatory,
subject of bargaining (see DiQuisto v. County of Santa Clara
(2010) 181 Cal.App.4th 236, 255-57[61; City of Fresno v. Fresno
Firefighters, IAFF Local 753 (1999) 71 Cal.App.4th 82, 96-97).
As such, meet and confer is not required. However, if you have
any questions or comments about the Council's proposal you
may contact me or attend the Council meetings on July 26 and
August.
(Emphasis added.)
On July 26, 2010, City Attorney Baum sent a letter, which was also sent to Keene and
Carlsen, advising the Council about the proposed ballot measure to repeal Article V. After
citing the same cases cited by Carlsen, he opined that the City did not have a meet and confer
requirement with Local 1319 and that The People ex rel. Seal Beach Police Officers
Association et al., v. City of Seal Beach et al. (1984) 36 Cal.3d 591 (Seal Beach) did not apply
6 DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236, was decided on
January 22, 2010. Petition for review to the California Supreme Court was denied on
May 17, 2010.
10

as it only applied to a proposed ballot measure which fell within the scope of bargaining,
which did not include a permissive subject qf bargaining such as repealing interest arbitration.
The letter was silent as to the consultation in good faith requirement under MMBA
section 3507.
On August 2, 2010, the Council met to discuss the repealing of binding interest
arbitration. When a motion was made to place the repeal of Article V on the ballot, it failed.7
Subsequent to this motion failing, another motion was made to direct City staff to return the
next fall with a timeline for considering the repeal of Article V.
May 10, 2011 Committee Meeting
On May 3, 2011, the City's Interim Human Resource Director Sandra Blanch (Blanch)
sent a letter via email to Spita1eri informing him that:
This letter is to inform you that on May 10, 2011 at 7 pm the
Policy and Services Standing Committee[ 8 ] of the City Council
will begin discussion on a potential measure to be placed on a
future ballot for City voters to decide whether to amend or repeal
Article V of the City Charter (binding interest arbitration). Ifyou
wish to meet and discuss regarding this issue please contact
Marcie Scott in Human Resources . . . .
(Emphasis added.)
7 Four members, Burt, Holman, Scharff and Schmid voted for it and Price, Klein,
Shepherd, Yeh and Espinoza voted against it.
8 The Policy and Services Committee (Committee) consists of four of its City
Councilmembers: Chairperson Price, Burt, Klein and Holman. According to Palo Alto
Municipal Code section 2.04.220 "Committee on policy and services:"
It shall be the duty of the committee on policy and services to
consider and make recommendations on matters referred to it by
the council relating to parliamentary and administrative
procedures· and policy matters pertaining to intergovernmental
relations, personnel policies, planning and zoning, traffic and
parking, public works, and community and human services.
11

On that same day, Spitaleri sent an email to Scott informing her that he had received the
letter and inquired whether this was a request to meet and confer with Local 1319 prior to
May 10. The email was not delivered to Scott as her email box was full. Spitaleri also left a
voice-mail message with Blanch whether they would be meeting, but her voice-mail was busy.
Spitaleri did not attempt to follow-up in any other manner.
On May 3, 2011, PMA Representative Police Lieutenant Ron Watson (Lt. Watson)
received the same letter from Blanch as Spitaleri. Lt. Watson asked to "meet and discuss" with
the City once it appeared more certain what decision the Committee would make, but he
reserved the option to "meet and confer" at a later time. On May 9, 2011 Scott responded that
the City could meet with him whenever he wanted, but viewed the meeting as a meet and
discuss and not a meet and confer. She invited Lt. Watson to speak to her about those issues
also.
City staff prepared a Staff Report for the May 10, 2011 Committee meeting. The Staff
Report discussed that if the Committee was not satisfied with Article V, it could either repeal
or modify it. The report also provided:
Within Santa Clara County, only 3 of 15 cities provide binding
interest arbitration: Gilroy, Palo Alto and San Jose. There is a
recent trend toward eliminating interest arbitration as a method
for resolving impasse with public safety units among cities that
currently have arbitration as a requirement. . . . In addition, the
May 20 Santa Clara County Civil Grand Jury Report also
recommended repealing binding interest arbitration provision to
provide cities with greater control over employee costs.
The Staff Report, although acknowledging there was not a set timeline for Council
· action, specified that it had deadlines for Council approval of ballot language if it wanted to
get the measure on the ballot. Specifically, if the Council wanted to get the measure on the
November 8, 2011 ballot, it needed to be approved by the Council by August 1, 2011. The
subsequent election dates were April 10, 2012; June 5, 2012 and November 6, 2012, but they
12

were substantially more costly to the City than the November 8, 2011 election date.9 The
report also mentioned that the City of San Jose had recently modified its City Charter interest
arbitration language.
On May 10, 2011, the Committee met. City Attorney Stump advised the Committee
that the City would have to meet and confer with the impacted employee organizations if the
Council were to place an initiative of the repeal of the interest arbitration provision on the
ballot based upon Seal Beach. When asked how long it would take to meet and confer with the
employee organization, Stump replied that it depended upon the availability of the parties and
what they could achieve. Burt replied that the time it took to meet and confer could impact the
Council's decision. At the close of the meeting, the Committee directed staff to return with
more options (modifying versus repealing interest arbitration) and provide detailed information
from cities outside the County and California. Local 1319 Representative Marchisio and
Local 1319 attorney Davis attended the Committee meeting. Marchisio did not address the
Committee.10
Post-Impasse Negotiations over Successor Agreement
Impasse was declared by the City over successor agreement negotiations in
February 2011. However, Local 1319 and the City met to continue negotiations for a
successor agreement on May 23, mid-June and July 1, 2011. At no time during the
negotiations did Local 1319 or the City discuss or offer proposals concerning Article V of the
City Charter.
9 Specifically, the estimated cost to the City for the November 8, 2011 election was
$50,000; for the April 10, 2012 election - $550,000; for the June 6, 2012 election - $550,000;
and for the November 6, 2012 election - $250,000.
10 Spitaleri does not attend the Committee meetings because they were scheduled on
· Tuesdays, which is the same day that the City of Sunnyvale City Council meets.
13

June 7, 2011 Comittee Meeting
On June 3, 2011, Scott sent an agenda packet to Spitaleri for the June 7, 2011
Committee meeting regarding Article V. She invited him to contact her if he had any
questions. On June 5, 2011, Lt. Watson responded stating that he wished to meet and confer
once the City had set a course on the direction it was going to proceed.
On June 7, 2011, the Committee met again to discuss changes to Article V. The
Committee was to report to the Council whether it recommended to take no action, repeal or
modify Article V. The Committee also disussed the timing of its actions based on the
upcoming November 8, 2011 election and the deadlines for submission and associated costs
depending on the date of election chosen, including waiting until November 2012. The
conversations among the Committee members ranged between repeal and modification. Klein
mentioned that the City should review San Jose's Charter modifications and prepare draft
language for the November 2012 election. The Committee finally passed a motion to refer the
matter to the full Council for decision whether to place on the ballot repealing or substantially
. 	.
modifying Article V; refer back to the Committee if the Council's decided to modify Article V;
and provide guidance as to when the measure should go on the ballot.. Spitaleri asked that
.Local 1319's attorney, Davis, attend the meeting on behalf of Local 1319. Additionally,
Marchisio attended the meeting, but did not address the Committee. Spitaleri became aware
that the matter was referred to the Council.
On June 16, 2011, PMA Representative Lt. Watson again requested to meet and confer
over changes to Article V. Lt. Watson asked for a proposal from the City stating which
direction they wanted to proceed. 	Scott replied that she did not know what direction the
Council was taking, but once they did know, Scott would contact Watson. Spitaleri did not
make a similar request.
14

June 20, 2011 Council Meeting
On June 18, 2011, Scott notified Spitaleri of the Council's agenda for June 20, 2011.
Scott highlighted an agenda item regarding the Committee's referral to the Council to take
action on Article V. Scott closed the email by inviting Spitaleri to contact her with any
questions.
On June 20, 2011, the Council met to discuss the repeal or modification of Article V.
Scott discussed several modification options including changes to the format of the arbitration
(the arbitrator also serving as a mediator); requiring mediation prior to the interest arbitration,
reducing the scope of the matters to arbitrate, amending the factors tq be considered by the
arbitrator, increasing public access to the arbitration, imposing timelines, and providing for
judicial review. Price stated that the Committee was evenly split as to repealing or modifying
Article V.
Spitaleri addresse the Council as the Local 1319 President. 	Spitaleri opposed the
repeal of the provision, but admitted that Article V may need review and modification. He
requested the matter be returned to the Committee where all affected labor organizations could
participate in deliberations to update the provision and provide recommendations to the
Council and that "denying the labor organizations an opportunity to express their ideas and
assist in formation of an improved policy could damage employee relations." Marchisio also
spoke as a member of Local 1319 and urged the Council to return the matter to the Committee
"where a committee of stakeholders could be established" and those most affected by the
changes could have an opportunity to design the necessary modifications. Klein noted the
absence of Councilmember Shepherd and because of the split vote of the previous year, it
would be difficult for the Council to come to a decision at this meeting.
15

The Council finally passed a motion to refer the matter back to the Committee and draft
a significant modification to Article V, provide language for repeal and a recommendation as
to when the election should be scheduled. The Committee was to return on July 25, 2011 with
recommendations for full Council consideration. The motion passed unanimously. Klein
stated he understood labor representatives wanted to negotiate modifications to Article V and
opposed meeting to negotiate with them, but specified that input should be received both from
the employee organizations and the public.11
Not one Councilmember spoke in favor of maint.aining the existing Article V. Price
wondered whether the time frame was too short to provide meaningful discussions with all
stakeholders. Holman was not sure whether to place it on the ballot for 2011 or 2012. Scharff
supported a repeal of interest arbitration and moved to repeal Article V, but later withdrew that
motion. Keene expressed his desire to work with the Committee to formulate ideas as soon as
possible. Marchisio attended the meeting, but did not address the Committee.
Spitaleri testified that Local 1319 did not put forth a proposal because he was not
invited or requested to do so; Local 1319 was still not aware of the direction the Council was
proceeding (repeal or modification); and he was instructed by Klein to address their issues
during the public comment period with the rest of the public who have to limit their
comments/input to three ·minutes, which did not afford Local 1319 the ability to dialogue with
the Council as to the issue.12
1 The City Council Procedures Handbook states that oral communications shall be
limited to three minutes per speaker and thirty minutes for all speakers combined.
Spokespersons who are representing a group of five or more people. may be allowed to speak
for ten minutes.
12 Spitaleri admitted that in the past he has provided a letter to the Council or a
Committee to advocate on behalf of Local 1319.
16

June 28, 2011 Committee Meeting
On June 28, 2011, the Committee met to discuss the repeal or modification of the
Article V. City staff provided a packet which included draft language repealing Article V and
extensive options on how Article V could be modified. For the first time, Burt brought up the
idea of substituting mediation for interest arbitration. Stump stated they could place mediation
in the Charter or pass it as an Ordinance. The discussion of the various options was extensive
and draft language was requested of staff for the repeal of interest arbitration; an ordinance
requiring mediation at impasse and a substantial modification to Article V. Marchisio attended
the Committee meeting, but did not provide any input at the Committee meeting.
July 12, 2011 Committee Meeting
On July 11, 2011, Scott sent an email to Spitaleri notifying him that the Committee was
meeting the next day to continue the discussion on Article V. The documents attached to the
email included a draft resolution for a ballot measure to repeal Article V, a draft ordinance
requiring labor impasse mediation, and draft language to substantially modify Article V. Scott ·
invited Spitaleri to contact her if he had any questions
At the July 12, 2011 meeting, City staff presented the draft documents to the
Committee. The.Committee passed a motion to forward the proposed language with
mandatory mediation effective upon the repealing of Article V. The Committee also passed a
draft resolution to repeal Article V to go to the Council for action. The Committee had
extensive discussions regarding substantial modifications to Article V. Finally, the Committee
passed the draft resolution of some Article V modifications to be forwarded to the Council.
Marchisio attended the Committee meeting, but did not provide any input.
17

July 18,20i1CouncilMeeting
On July 17, 2011, Scott sent an email to Spitaleri stating the Council would be
considering "binding interest arbitration at their meeting" and provided a link to the agenda
packet. Scott again invited Spitaleri to contact her if he had any questions.
A report from the City Attorney's office included the Committee's recommendations
and draft resolutions/language. 	The report also stated that the City Clerk and the Santa Clara
County Registrar of Voters estimated the total cost to the City to put one measure on the ballot
was $121,800. Included in that report was a section "Consultations with Labor" which
provided:
As discussed in the June 20 staff report, meet and confer over a
charter change on binding interest arbitration is not required
because interest arbitration is a permissive, not mandatory 	·
subject of bargaining. DiQuisto v. County of Santa Clara (2010)
181 Cal.App.4th 236. However, staff provided the fire and
police organizations the opportunity for informal discussion and
comment. by informing them of the dates the Policy & Services
Committee reviewed the item and providing copies of the
reports. No oral or written comment was received from those
organizations at the meetingsY3l
On July 18, 2011, the Council held a meeting to discuss the Committee's
recommendations. After Stump gave an overall description of the recommendations, Spitaleri
made a statement, 14 which was reflected in the minutes:
Tony Spitaleri requested the Council·adhere to the California
Government Code. Government Code [section] 3507 which was
a part of the Meyers-Milias-Brown Act·stating that a public
agency must consult in good faith with representatives of a
recognized employee organization before adopting procedures
for the resolution of disputes involving wages, hours, and other
terms of condition o.f employment. He noted Government Code
13 The report was silent as to any obligation of the City to consult in good faith with the
affected employee organizations pursuant to MMBA section 3507.
14 Spitaleri also testified that the minutes accurately reflected what he said.
18

[section] 3507[(a)] and other sections under 3500 deemed any
public agency needed to provide reasonable written notice to
each recognized employee organization [a]ffected of any
Ordinance, Resolution, rule or regulation directly relating to the
matter of scope of representation proposed of being adopted by
the governing body, the designated Board or Commission, and
shall give the recognized employee organization the opportunity
to meet with the party of the Boards or Commission.
(Emphasis added.)
After other public comment, Klein made a motion to place on the November 8, 2011
ballot the modified Article V language, however, it did not receive a second and another
motion was made to repeal Article V along with passing a companion ordinance to require
non-binding mediation for impasses in labor negotiations. After extensive discussion by the
Council, the motion was passed five to four.
Immediately after the meeting, Spitaleri saw City Negotiator Murray in the hallway
outside Council chambers. Spitaleri asked Murray to respond to his request to meet and confer
over the proposed repeal of Article V. Murray asked Spitaleri to send the request to him via
email.
The Council had two other Council meeting dates before the August 12, 2011 deadline
to submit the measure to the Registrar's Office for the November 8, 2011 ballot: July 25 and
August 1, 2011. Scott was told b the City Clerk that the deadline for submitting the measure
. to the registrar was August 1. One Comicilmember was going to be absent from the
July 25, 2011.meeting and another Councilmember would be absent from the August 1, 2011
meeting, which would not allow the full Council to vote on it.
Post July 28, 2011 Events
On July 19, 2011, Spitaleri emailed Murray:
I am requesting the city [to] abide by California [Goveriiment]
Code [section] 3500-3511 as required in sections 3504.5(a) and
19

3507(a). As you know I made the same request at the city
council meeting of July 18[,] 2011.
(Emphasis added.)
On July 27, 2011, Spitaleri sent another email to Murray stating:
Am I to assume that since I haven't heard from you concerning
my request, the city wishes not to meet and consult on the repeal
of Binding Interest Arbitration as required by the California
[Government] Code [section] 3500-3511.
Murray replied that he asked Scott to send a staff report which set out the City's
position. This was the same staff report which stated that the City's position was it did not
have to meet and confer over the issue because interest arbitration was a permissiv·e subject of
bargaining.
On July 28, 2011, Local 1319 filed its charge with PERB.
On August 1, 2011, Stump faxed a letter to Local 1319's attorney explaining that it
appeared from the charge that Local 1319 wanted to meet over the proposed mediation
ordinance. Stump further explained:
The mediation ordinance has not been finally adopted by the
Council. An ordinance is adopted only after two readings at least
10 days apart. (Palo Alto Municipal Code section 2.04.270[151.)
The mediation ordinance had been placed on tonight's Council
agenda for a second reading and final adoption. To provide an
15 P.alo Alto Municipal Code section 204.270(b) "Introducing ordinances and
resolutions for passage and approval" provides:
Second Reading of Ordinance. With the sole exception of
ordinances which take effect upon adoption, no ordinance shall
be passed by the council on the day of its introduction nor within
ten days thereafter, nor at any other time than at a regular or
special meeting. ·Ordinances presented to the council for second
reading shall be agendized as consent items and may be removed
for debate and discussion only upon a majority vote of the
council members present and voting. This section shall not
prevent council members from making short comments on
consent items.
20

additional opportunity for a meaningful exchange with IAFF and
any other labor group that wishes to provide further input, staff
has removed the mediation ordinance from tonight's agenda.
On the same day, Scott provided Spitaleri with the proposed ordinance on mediation
and a similar letter as provided to Local 1319's attorney. On August 15, 2011, the parties met
over the proposed mediation ordinance but have not yet concluded such meetings. A second
reading of the ordinance has not occurred.
Local 1319 and the City began interest arbitration over a successor agreement on
September 20, 2011.
On November 8, 2011, an election was held regarding the repealing of the Article V.
The majority of voters cast their votes to repeal Article V.
ISSUES
1. 	Does MMBA section 3509(e) divest PERB of jurisdiction over the allegations
that the Council's action of submitting the repeal of Article V to the voters without consulting
·in good faith with Local 1319?
2. 	Are PERB Decisions County of Santa Clara (2010) PERB Decision No. 2114-M
and County of Santa Clara (2010) PERB Decision No. 2120-M dispositive of the failure to
consult in good faith a
I
llegations regarding Article V?
3. 	Did the City violate MMBA section 3507 by failing to consult in good faith with
Local 1319 before adopting a motion to submit to the voters a ballot measure repealing
Article V?
4 	Did the City violate MMBA section 3507 by holding a "first reading" to
approve a proposed ordinance to require non.;.binding mediation over bargaining disputes after
impasse?
21

CONCLUSIONS 	OF LAW
MMBA sections 3500, 3504.5(a), 3505, 3507 and 3509(b) and (e) provide in pertinent
part:
3500(a) It is the purpose of this chapter to promote full
communication between public employers and their employees Q.y
providing a reasonable method of resolving disputes regarding
wages, hours; and other terms and conditions of employment
between public employers and public employee organizations.
3504.5(a) Except in cases of emergency as provided in this
section, the governing body of a public agency, and boards and
commissions designated by law or by the governing body of a
public agency, shall give reas.onable written notice to each
recognized employee organization affected of any ordinance, rule,
resolution, or regulation directly relating to matters within the
scope of representation proposed to be adopted by the governing
body or the designated boards and commissions and shall give the
recognized employee organization the opportunity to meet with
the governing body or the boards and commissions.
3505 The governing body of a public agency, or such boards,
commissions, administrative officers or other representatives as
may be properly designated by law or by such governing body,·
shall meet and confer in good faith regarding wages·, hours, and
other terms and conditions of employment with representatives 	of
such recognized 	employee organizations, as defined in subdivision
(b) of Section 3501, and shall consider fully such presentations as
are made by the employee organization on behalf of its members
prior to arriving at a determination of policy or course of action.
"Meet and confer in good faith" means that a public agency, or
such representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request
by either party and continue for a reasonable period of time in
order to exchange freely information, opinions, and proposals, and
to endeavor to reach agreement on matters within the scope of
representation prior to the adoption by the public agency of its
final budget for the ensuing year. 	. . .
3507(a) A public agency may adopt reas.onable rules and
regulations after consultation in good faith with representatives
of a recognized 	employee organization or organizations for the
administration of employer-employee relations under this chapter.
22

The rules and regulations may include provisions for all of the
following:
(5) Additional procedures for the resolution of disputes
involving wages, hours and other terms and conditions of
employment.
3509(b) A complaint alleg1ng any violation of this 	hapter or of
any rules and regulations adopted by a public agency pursuant to
Sec. tion 3507 or 350. 7.5 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.
(e) Notwithstanding subdivisions (a) to (c), inclusive, consistent
with, and pursuant to, the provisions of Sections 3500 and 3505.4,
superior courts shall have exclusive jurisdiction over actions
involving interest arbitration, as governed by Title 9 (commencing
with Section 1280) of Part 3 of the Code of Civil Procedure, when
the action involves an employee organization that represents
firefighters, as defined in Section 3251.
(Emphasis added.)
MMBA Section
3509(e)
As set forth earlier, MMBA section 3509(e) vests the superior courts with exclusive
jurisdiction over "actions" involving interest arbitration as governed by Code of Civil
Procedure section 1280 et seq, when that action involves firefighter employee organizations.
Civil Procedure section 1280 sets forth the various aspects of arbitration used in the State of
California, the conduct of those proceedings, petitions to compel arbitration and confirmation
of arbitration awards.
In City of San Jose v. International Association of Firefighters, Local 230 (2009)
178 Cal.App.4th 408, the only case interpreting such section, the Court of Appeal found that
the Superior Court had jurisdiction over determining whether the proposals put forth by the
employee organization during collective bargaining were outside the scope of bargaining in an
23

interest arbitration and therefore could not arbitrated. PERB asserted it had exclusive initial
jurisdiction. 	The employee organization notified the Court of Appeal of a recent amendment
to MMBA section 3509(e). The .court of Appeal applied this amendment to the pending action
and found that the Superior Court had exclusive jurisdiction over a petition to compel
arbitration. Since the action filed involved interest arbitration it was considered the exclusive
jurisdiction of the Superior Court.
In the instant case, an interest arbitration action was never filed. Iilstead, the issue was
the passing of a motion to place on the ballot, the repealing of interest arbitration as an impasse
resolution "process" from the City Charter without consulting in good faith with an affected
exclusive representative. As this case does not involve an individual interest arbitration action,
PERB has exclusive initial jurisdiction over this matter. (MMBA, § 3509(b).)
· County of Santa Clara cases
In County of Santa Clara, supra, PERB Decision Nos. 2114-M and 2120-M, PERB held
that the County did not violate MMBA section 3505 by approving a ballot ipeasure modifying a
binding interest arbitration measure previously placed on the ballot. The decisions were both
analyzed under MMBA section 3505 and not section 3507. No violation of section 3505 was
found as interest arbitration was deemed to be a permissive subject of bargaining by the courts and
therefore outside the·scope of representation. As the decisions do not discuss or analyze whether
MMBA section 3507 was violated, both cases are not dispositive of the instant case.
Repeal of Article V of the City Charter and MMBA Section 3507
The complaint alleges in part:
3. On or about July 18, 2011, Respondent, through its City
Council adopted a motion to submit to the voters a ballot
measure which would completely repeal Article V of the City
Charter, which provides, in part, for binding interest arbitrations
over bargaining disputes where there is an impasse in bargaining.
24

5. Respondent engaged in the conduct as described in
paragraph 3 [] without first consulting in good faith with
Charging Party and, as such, violated Government Code section
3507 and committed an unfair practice under Government Code
section 3509(b) and PERB Regulation 32603(±).
MMBA section 3507(a)(5) requires that a public agency adopt reasonable rules
regarding additional procedures for the resolution of disputes regarding matters within the
scope of representation after "consultation in good faith" with representatives of recognized
employee organizations. This section stands apart from MMBA section 3504.5, 3505 which
requires the public agency to meet in confer in good faith regarding wages, hours, and other
terms and conditions of employment with representatives of recognized employee
organizations. However, the "consultation in good faith" obligation has been found to be no
different that the "meet and confer" process in MMBA section 3505. (Independent Union of
Public Service Employees v. County of Sacramento (1983) 147 Cal.App.3d 482, 488; Vernon
Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 821; and International Assn. of
Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 976.)
Applying the meet and confer process therefore to the instant case,16 the public agency
had an obligation to provide reasonable written notice to each employee organization affected
by a proposed rule along with an opportunity for the recognized employee organization to meet
with the public agency. (MMBA, § 3504.5.) The parties shall have the mutual obligation to:
(1) meet and confer promptly upon request by either party, (2) continue for a reasonable period
16 MMBA section 3507(a) sets forth a consultation in good faith obligation over
reasonable rules and regulations covering the administering of employer-employee relations in
nine enumerated areas. The statute does not list a qualifier of "wages, hours, and other terms
and conditions of employment" (scope of representation) in order to trigger the consultation in
good faith obligation, but rather whether the regulation or rule falls within one of the nine
enumerated areas. Therefore, in applying the meet and confer process to MMBA
section 3507(a) cases, scope of representation will not be included as a required element.
25

of time in order to exchange freely information, opinions, and proposals, 17 and (3) endeavor to
reach an agreement. (MMBA, § 3505.) Since this case involves proposing an amendment to a
City Charter, the meet and confer should conclude before the Council votes on the amendment.
(Seal Beach, supra, 36 Cal.3d 591, 602.)
An initial inquiry is whether the City provided reasonable written notice to Local 1319
allowing for an opportunity to meet with the City and conclude within a reasonable period of
time. Blanch/Scott had been providing notices to Spitaleri regarding Council and Committee
meetings on May 3, June 3, 18, 28, July 11, and 17, 2011 about a change that was going to be
discussed regarding Article V. On the May 3, 2011, Blanch emailed Spitaleri and he was
offered to "meet and discuss" the issue. While the Council may not have been certain as to its
direction prior to June 20, 2011, after June 20, the City was going to propose a change to
Article V (repeal or modification). Indeed, on June 20, 2011, Scharff moved to repeal
Article V, but had to withdraw the motion. Spitaleri' s awareness that a change was going to
occur was confirmed by his plea to have the matter remanded back to the Committee where all
labor organizations could have an opportunity to participate in deliberations and provide
recommendations. The earliest Council meeting after these Committee meetings was
July 18, 2011. By June 20, 2011, the City had provided written and/or actual notice 18 that a
17 This exchange is not satisfied by a legislative's body public hearing where an
employe is allowed to comment on a matter. (Los Angeles County Civil Service Commission
v. Superior Court (1978) 23 Cal.3d 55, 61.)
18 As stated in San Diego Adult Educators, Local 4289 v. Public Employment Relations
· Board (1990) 223 Cal.App.3d 1124, 1136:
Notice need not, however, be formal to be effective. When a union
official with authority to act has actual notice of the intended
change, together with adequate time to decide whether to demand
negotiation before a final decision is made the union will be deemed
to have received adequate notice.
26

change was going to be proposed to Article V and as well as a reasonable time to negotiate
such a change.
After receiving reasonable written notice, the burden shifts to Local 1319 to
demonstrate that they requested to consult in good faith. 	(Stockton Police Officers' Assn. v.
City of Stockton (1988) 206 Cal.App.3d 62, 65 (Stockton).) 	The public agency does not have
an obligation to invite the recognized employee organization to bargain. 	(Ibid., pp. 65-66;
Metropolitan Water District of Southern California (2009) PERB Decision No. 2055-M, p. 5.)
Additionally, the party demanding negotiations bears the burden of clearly communicating that
request to the other party. 	(El Centro School District ( 1996) PERB Decision No. 1154.)
However, Local 1319 does not demonstrate that it ever requested to consult in good faith with
the City. 	The closest it came to such a request was on July 18, 2011, when Spitaleri requested
that the City "adhere" to the "California Government Code" and that MMBA 3507(a) stated
that the City consult in good faith with a recognized employee organization before it adopted
such a procedure. 	However, this was not a demand to bargain, but a "request to adhere." 	Any
verbal request to Murray to meet and confer after July 18, 2011 was after Local 1319 had
received reasonable written notice and after the Council acted on the proposed amendment to
the Charter. 	Such a request is therefore untimely. 	(Stockton, supra, 206 Cal.App.3d 62 and
Seal Beach, supra, 36 Cal.3d 591.)
However, even if Spitaleri' s statement at the July 18, 2011 Council meeting is
considered a demand to meet and consult, it is still untimely. A public agency's obligation to
provide reasonable written notice coupled with its obligation to allow a reasonable period of
time to meet over the matter (MMBA, § 3505) includes a mutual obligation on behalf of the
recognized employee organization to timely demand to meet and consult over the matter within
a reasonable period of time to conclude such negotiations, especially when a reasonable
27

deadline loomed; The cost of a November 8, 2011 election was substantially less than those
elections after November 8, 2011, and Council meetings after July 18, 2011 would not be fully
attended by nine Councilmembers.
By June 20, 2011, Spitaleri was aware of the approaching August 1,2011 deadline for
the Council to propose the City Charter amendment for the November 8, 2011 ballot. Two
committee meetings scheduled for June 28 and July 12, 2011 came and passed without a
demand to bargain. Not until the last minute, during the Council meeting as the Council was
preparing to vote on the proposed amendment did Spitaleri request that the City adhere to
Government Codes. Such a last minute request is tantamount to a waiver by inaction to
consult in good faith with the agency and, as such, it is not found that the City adopted a
motion to submit to the voters a ballot measure which would completely repeal Article V
witho.ut fulfilling its obligation to consult in good faith with Local 1319 and this ·allegation is
dismissed.
Mediation Ordinance and MMBA Section 3507
The City argues that it never adopted the mediation ordinance as an employer-employee
relations rule as it only adopted a first reading and Palo Alto Municipal Code
section 2.04.270(b) requires a second reading to take effect. A second reading has never taken
place as the matter was pulled off the August 1, 2011 Council agenda and the City engaged in
negotiations with Local 1319 over the matter. The City's argument is persuasive and is
buttressed by its municipal code and subsequent action(s). As such, the allegation that the City
violated MMBA section 3507 by adopting a first reading of the mediation ordinance is
dismissed.
28

PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SF-CE-869-M,
International Association of Firefighters, Local 1319, AFL-CIO v. City of Palo Alto, are
hereby DISMISSED.
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
Public Employment Relations Board (PERB or 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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, § 32300.) ·
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
subdivision (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, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
29

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, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Shawn P. Cloughesy
Chief Administrative Law Judge
30

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL 1319, AFL-CIO,
Charging Party,
v.
CITY OF PALO ALTO,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-869-M
PROPOSED DECISION
(November 15, 2011)
Appearances: Davis Reno, by Alan C. Davis and Duane W. Reno, Attorneys, for International
Association of Firefighters, Local 1319, AFL-CIO; Renne Sloan Holtzman Sakai, LLP, by
Charles D. Sakai, Attorney, and Molly S. Stump, City Attorney, for City of Palo Alto.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges a public employer’s approval of a ballot measure to repeal interest
arbitration from its City Charter and holding a “first reading” to approve an ordinance
requiring non-binding mediation over bargaining disputes without consultation in good faith
with the exclusive representative. The public employer denies any violation of the Meyers-
Milias-Brown Act (MMBA)1 and contends that the Public Employment Relations Board
(PERB) does not have jurisdiction over the dispute pursuant to MMBA section 3509(e).
Filing of Unfair Practice Charge and Request for Injunctive Relief
On June 28, 2011, the International Association of Firefighter, Local 1319 (Local 1319)
filed an unfair practice charge (charge) against the City of Palo Alto (City).
On August 1, 2011, Local 1319 filed with PERB a request for temporary restraining
order and injunctive relief (Injunctive Relief Request No. 601). On August 4, 2011, the City
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated all statutory references are to the Government Code.

________________________
filed its opposition. On August 4, 2011, the parties met informally with a PERB Board agent
to discuss the issues of the charge. On August 5, 2011, Local 1319 withdrew its request for
injunctive relief without prejudice and requested that the charge be placed in abeyance pending
a second scheduled informal meeting on September 13, 2011. On September 7, 2011,
Local 1319 renewed its request for injunctive relief (Injunctive Relief Request No. 605) and
the charge was removed from abeyance.
On September 7, 2011, the PERB Office of General Counsel issued an unfair practice
complaint (complaint) alleging that on July 18, 2011, the City Council approved a ballot
measure (Measure D) to repeal Article V of the City Charter (binding interest arbitration) and
held a “first reading” to approve an ordinance requiring non-binding mediation over bargaining
disputes resulting from bargaining impasse without consulting in good faith with Local 1319.
Such actions were alleged to have violated MMBA sections 3503, 3506, 3507, and 3509(b) and
PERB Regulation 32603(a), (b), and (f).2 On the same day, a PERB formal hearing was set for
September 26 and 30, 2011.
On September 12, 2011, the City filed its supplemental opposition to Injunctive Relief
Request No. 605. On September 15, 2011, the PERB Office of General Counsel notified the
parties that the injunctive relief request was denied without prejudice.
Request for Continuance due to Recently Retained Outside Counsel
On September 9, 2011, the City requested a continuance of the hearing dates to the
week of November 14, 2011, after the scheduled election of Measure D, on November 8, 2011,
as it had just added outside counsel from Renne Sloan Holtzman Sakai to represent it.
Local 1319 opposed the request. Absent from the request, was a representation that Measure D
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

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could not be removed from the November 8, 2011 election at the request of the City. The
Chief Administrative Law Judge (CALJ) would not continue the case to a later date, but would
consider earlier dates. Renne Sloan Holtzman Sakai reassigned the case to another partner and
the formal hearing proceeded on September 26 and 30, 2011.
Motion to Dismiss
On September 23, 2011, the City faxed a motion to dismiss the complaint based on the
assertion that PERB lacked jurisdiction pursuant to MMBA section 3509(e); PERB
precedential decisions on judicial appeal, County of Santa Clara (2010) PERB Decision
No. 2114-M3 and County of Santa Clara (2010) PERB Decision No. 2120-M,4 decided the
same issue; the City never “adopted” a reasonable rule and regulation pursuant to MMBA
section 3507; and PERB could not award a remedy to prohibit the election as ballots had been
printed and voting would begin shortly. On September 26, 2011, Local 1319 submitted its
opposition to the motion at the hearing and the CALJ deferred ruling on the motion until he
had an opportunity to independently research the arguments. On September 29, 2011, the
CALJ denied the motion to dismiss and denied the request to issue the proposed decision after
the election.
On September 26, 2011, the City answered the complaint denying that it violated the
MMBA or PERB Regulations. The City also contended that the complaint was inconsistent
with PERB precedential decisions; Local 1319 waived its right to consult in good in faith;
3 Santa Clara County Correctional Peace Officers’Assn. v. PERB and County of Santa
Clara v. PERB (Sixth Appellant District Case Nos. H035786 and H035791, cases fully
briefed).
4 Registered Nurses Professional Assn. v. PERB and County of Santa Clara v. PERB
(Sixth Appellant District Case Nos. H035804 and H035846, cases fully briefed).
3

PERB lacked jurisdiction over the dispute pursuant to MMBA section 3509(e); and PERB
lacked jurisdiction to grant any relief.
Subsequent Request that CALJ Defer Issuing Proposed Decision Until After Election
On September 30, 2011, the parties met for the second day of formal hearing. The City
protested that the matter had been expedited ever since the charge had been filed with PERB
and expressed its concerns concerning procedural irregularities with the PERB General
Counsel Office’s handling of the case. A declaration from County of Santa Clara (County)
Election Division Coordinator Leslie A. Smith (Smith) provided that the deadline for
jurisdictions to file ballot measures with the County Registrar of Voters Office was
August 12, 2011. She declared that 60-day ballots had already been prepared and mailed on
September 9, 2011 to domestic and overseas military and civilians eligible to vote; and, as of
September 28, 2011, ten overseas ballots had been received. In short, the voting had already
begun. Both parties agreed that the election was going to go forward and could not be
reversed.
The City requested that the CALJ issue his proposed decision after the
November 8, 2011 election as the CALJ could not stop the election from going forward and
PERB had the same remedies before the November 8, 2011 election as afterward. The CALJ
agreed to reconsider the City’s request to issue the proposed decision after the
November 8, 2011 election, and requested the parties include briefing on the matter in its post-
hearing briefs.
On October 13, 2011, the CALJ issued his ruling deciding to postpone issuing the
proposed decision until after the election.
4

Request for Continuance to Obtain Expert Testimony
On September 30, 2011, the City also requested an additional day of hearing so that it
could call two expert witnesses: Daniel Cassidy (Cassidy) and Professor Corey Cook
(Prof. Cook). The City asserted that these expert witnesses were not available for the
September 30 hearing because of the expedited nature in which the hearing was set (19 days
from the hearing notice for the September 26 hearing and 23 days from the hearing notice for
the September 30 hearing), but they were available October 17, 18, 24 or 25, 2011. The City
set forth an offer of proof that Cassidy, a founding partner of a California public sector labor
law firm, had extensive familiarity with a public employer’s consultation in good faith
obligation and could explain the practical differences between consultation in good faith
pursuant to MMBA section 3507 and meet and confer in good faith pursuant to MMBA
section 3505. Prof. Cook, an Associate Professor of Political Science at the University
San Francisco, could testify as to the formation of political consensus and the importance of
timing in the political and electoral process, including the impact of engaging labor unions at
the local political level. He would further testify as to what point in time a union should be
involved with a municipality which desires to propose an amendment to a City Charter.
Local 1319 objected to these experts as “consultation in good faith” was to be defined by legal
precedent and the timing of the political process was already governed by existing precedential
decisions concerning the waiver of bargaining rights.
Evidence Code section 801(a) provides that an expert can be called if the testimony
would be “[r]elated to a subject that is sufficiently beyond common experience” and the
opinion would “assist the trier of fact.” The determination of the meaning of “consultation in
good faith” (MMBA, § 3507) is not to be determined by practice, but by law. Additionally,
while Prof. Cook’s testimony may be appropriate for a legislative hearing which sought to
5

clarify the process by amending the MMBA, it is inappropriate to use for determining the
interpretation of a statute as to the social/political appropriateness of the timing of an exclusive
representative’s input into a municipality’s vote to place a proposed amendment (or repeal) of
a City Charter on the ballot. The City was certainly free to argue the impact of any election
codes upon the MMBA. For these reasons, the experts would not assist the trier of fact in
resolving the disputes before him and were denied.
Many times during the hearing and after the hearing, the City renewed its request to call
these expert witnesses. The requests were all denied.
Request for Interlocutory Appeal
Also during the September 30, 2011 hearing, the City submitted a request for
interlocutory appeal of the CALJ’s denial of the City’s motion to dismiss pursuant to PERB
Regulation 32200. On October 5, 2011, Local 1319 filed its opposition to the request as it
would not “materially advance the resolution of the case.” (PERB Reg. 32200(c).) On
October 6, 2011, the CALJ refused to join in the City’s request for interlocutory appeal as it
would not “materially advance the resolution of the case” if the proposed decision would be
issued immediately after the election and the motion did not have sufficient merit.
Post-hearing Briefing and Request for Official Notice
At the end of the September 30, 2011 hearing, post-hearing briefs were set to be
submitted by October 10, 2011. As the transcripts would not be ready by that time, the CALJ
provided the parties with a compact disc (CD) of the audio recordings of the September 26 and
30, 2011 formal hearings. On October 13, 2011, the CALJ allowed the parties to file reply
briefs with the aid of the transcripts by October 24, 2011. Both parties elected to do so.
6

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On November 3, 2011, the CALJ wrote the representatives asking them if they objected
to the CALJ taking official notice of the November 8, 2011 election results of Measure D.
Neither party objected. Official notice is hereby taken of the results.
FINDINGS OF FACT
Jurisdiction
The City is a public agency under MMBA section 3501(c) and PERB
Regulation 32016(a). Under PERB Regulation 32016(b), Local 1319 is the exclusive
employee organization of an appropriate unit of employees within the City.
Background
In August 2010, the City Council of Palo Alto consisted of nine members including
Councilmembers Sid Espinosa (Espinosa), Patrick Burt (Burt), Karen Holman (Holman), Gail
Price (Price), Yiaway Yeh (Yeh), Larry Klein (Klein), Nancy Shepherd (Shepherd), Gregory
Scharff (Scharff) and Greg Schmid (Schmid). James Keene (Keene) was the City Manager and
Gary Baum (Baum) was the City Attorney. After Baum left City employment, Molly Stump
(Stump) became the City Attorney. Marcie Scott (Scott) was the Assistant Director of Human
Resources responsible for labor relations and bargaining, and Darrell Murray (Murray) was a
professional negotiator retained by the City to negotiate successor agreements.
Anthony Spitaleri (Spitaleri) has been Local 1319’s President for the past 33 years5 and
Barry Marchisio (Marchisio) has been Local 1319 Secretary for the past 20 years.
City Charter
Article V, of the City Charter “Compulsory Arbitration for Fire and Police Department
Employee Disputes,” added in July 1978, provides in pertinent part:
5 Interestingly, Spitaleri is also a City Councilmember with the City of Sunnyvale.
7

Section 4. 	Impasse resolution procedures.
All disputes or controversies pertaining to wages, hours, or terms
and conditions of employment which remain unresolved after
good faith negotiations between the city and either the fire or
police department employee organization shall be submitted to a
three-member board of arbitrators upon the declaration of an
impasse by the city or by the recognized employee organization
involved in the dispute.
At the conclusion of the arbitration hearings, the arbitration
board shall direct each of the parties to submit, within such time
limit as the board may establish, a last offer of settlement on
each of the issues in dispute. The arbitration board shall decide
each issue by majority vote by selecting whichever last offer of
settlement on that issue it finds most nearly conforms with those
factors traditionally taken into consideration in the determination
of wages, hours, and other terms and conditions of public and
private employment, including, but not limited to, changes in the
average consumer price index for goods and services, the wages,
hours, and other terms and conditions of employment of other
employees performing similar services, and the financial
condition of the city and its ability to meet the cost of the award.
Council’s 2010 Vote to Repeal Article V
On April 12, 2010, Keene issued a “Preview of the City Manager’s Proposed Budget
for Fiscal Year 2011” which forecasted a $8.3 million budget shortfall for the City. The report
included proposals for service reductions, cost recovery, revenue generation and position
elimination. On May 13, 2010, the County Civil Grand Jury issued a report, “Cities Must Rein
in Unsustainable Employee Costs.” The report set forth the problem that personnel costs of
municipalities within the County were outpacing the revenues collected and proposed ways in
which they could better manage this problem. The report recommended that the San Jose City
Council prepare a ballot measure asking voters to repeal the City Charter section addressing
binding interest arbitration. That same month, the City and Local 1319 began to bargain over a
successor Memorandum of Agreement as the prior agreement was set to expire on June 30,
2010.
8

On July 19, 2010, the Council met and directed City staff to prepare a measure to be
placed on the November 2010 ballot which would repeal Article V of the City Charter, which
would be discussed at the July 26, 2010 Council meeting.
On July 22, 2010, Attorney Alan Davis (Davis) sent a letter to Keene and City Human
Resources Director Russell Carlsen (Carlsen) on behalf of the Palo Alto Police Managers
Association (PMA) regarding the Council’s interest in repealing Article V, which provided in
pertinent part:
In the City Attorney’s attachment to Agenda Item No. 4, he
neglects to advise the City Council that it is the City’s obligation
to comply with the meet and confer requirements of the Meyers-
Milias-Brown Act prior to any action on a proposed Charter
measure to repeal binding arbitration. See The People ex rel.
Seal Beach Police Officers Association et al., v. City of Seal
Beach et al. (1984) 36 Cal.3rd 591. Respectfully, and in behalf of
the Police Managers Association, I must insist that the City
comply with the State law meet and confer requirements
confirmed by the California Supreme Court in Seal Beach. Even
the City of Vallejo, which narrowly repealed its Charter
Arbitration provisions in June, complied with these meet and
confer (they call them “meet and consult”) requirements prior to
voting to submit the issue to the voters. . . .
(Emphasis in original.)
On July 23, 2010, Spitaleri sent a letter to Keene and Carlsen regarding the repeal of
Article V:
I join in the statements made by Mr. Davis on behalf of [the
Police Managers Association] in insisting that the City must
comply with the State law meet and confer requirements
confirmed by the California Supreme Court in The People ex rel.
Seal Beach Police Officers Association et al., v. City of Seal
Beach et al. (1984) 36 Cal.3rd 591, prior to any action to place
the repeal of binding arbitration on the ballot for a vote. I urge
you to consult with an experienced labor lawyer on this matter.
As Mr. Davis observed in the Palo Alto Police Managers
Association letter, even the City of Vallejo complied with the
9

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Seal Beach meet and confer requirements before deciding to
place a repeal measure on the [November] 2010 ballot.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interest Arbitration measures have unfairly become a whipping
boy because of concerns of the City of Palo Alto and other
municipalities have over financial constraints imposed by the
ongoing recession. I urge you to step back, take a deep breath
and, if you believe it is important to review the Article V
requirements, begin a dialogue with us and with other labor
organizations which would be affected by any effort to remove
or modify the Article V requirements.
(Emphasis added.)
On July 26, 2010, Carlsen responded to Spitaleri’s letter stating:
The Council will discuss this issue[, repealing binding interest
arbitration,] further at the July 26, 2010 meeting and will
consider placing the proposed measure on the ballot at its
August 2, 2010 meeting.
Interest arbitration provisions are a permissive, not mandatory,
subject of bargaining (see DiQuisto v. County of Santa Clara
(2010) 181 Cal.App.4th 236, 255-57[6]; City of Fresno v. Fresno
Firefighters, IAFF Local 753 (1999) 71 Cal.App.4th 82, 96-97).
As such, meet and confer is not required. However, if you have
any questions or comments about the Council’s proposal you
may contact me or attend the Council meetings on July 26 and
August.
(Emphasis added.)
On July 26, 2010, City Attorney Baum sent a letter, which was also sent to Keene and
Carlsen, advising the Council about the proposed ballot measure to repeal Article V. After
citing the same cases cited by Carlsen, he opined that the City did not have a meet and confer
requirement with Local 1319 and that The People ex rel. Seal Beach Police Officers
Association et al., v. City of Seal Beach et al. (1984) 36 Cal.3d 591 (Seal Beach) did not apply
6 DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236, was decided on
January 22, 2010. Petition for review to the California Supreme Court was denied on
May 17, 2010.
10

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as it only applied to a proposed ballot measure which fell within the scope of bargaining,
which did not include a permissive subject of bargaining such as repealing interest arbitration.
The letter was silent as to the consultation in good faith requirement under MMBA
section 3507.
On August 2, 2010, the Council met to discuss the repealing of binding interest
arbitration. When a motion was made to place the repeal of Article V on the ballot, it failed.7
Subsequent to this motion failing, another motion was made to direct City staff to return the
next fall with a timeline for considering the repeal of Article V.
May 10, 2011 Committee Meeting
On May 3, 2011, the City’s Interim Human Resource Director Sandra Blanch (Blanch)
sent a letter via email to Spitaleri informing him that:
This letter is to inform you that on May 10, 2011 at 7 pm the
Policy and Services Standing Committee[8] of the City Council
will begin discussion on a potential measure to be placed on a
future ballot for City voters to decide whether to amend or repeal
Article V of the City Charter (binding interest arbitration). If you
wish to meet and discuss regarding this issue please contact
Marcie Scott in Human Resources . . . .
(Emphasis added.)
7 Four members, Burt, Holman, Scharff and Schmid voted for it and Price, Klein,
Shepherd, Yeh and Espinoza voted against it.
8 The Policy and Services Committee (Committee) consists of four of its City
Councilmembers: Chairperson Price, Burt, Klein and Holman. According to Palo Alto
Municipal Code section 2.04.220 “Committee on policy and services:”
It shall be the duty of the committee on policy and services to
consider and make recommendations on matters referred to it by
the council relating to parliamentary and administrative
procedures and policy matters pertaining to intergovernmental
relations, personnel policies, planning and zoning, traffic and
parking, public works, and community and human services.
11

On that same day, Spitaleri sent an email to Scott informing her that he had received the
letter and inquired whether this was a request to meet and confer with Local 1319 prior to
May 10. The email was not delivered to Scott as her email box was full. Spitaleri also left a
voice-mail message with Blanch whether they would be meeting, but her voice-mail was busy.
Spitaleri did not attempt to follow-up in any other manner.
On May 3, 2011, PMA Representative Police Lieutenant Ron Watson (Lt. Watson)
received the same letter from Blanch as Spitaleri. Lt. Watson asked to “meet and discuss” with
the City once it appeared more certain what decision the Committee would make, but he
reserved the option to “meet and confer” at a later time. On May 9, 2011, Scott responded that
the City could meet with him whenever he wanted, but viewed the meeting as a meet and
discuss and not a meet and confer. She invited Lt. Watson to speak to her about those issues
also.
City staff prepared a Staff Report for the May 10, 2011 Committee meeting. The Staff
Report discussed that if the Committee was not satisfied with Article V, it could either repeal
or modify it. The report also provided:
Within Santa Clara County, only 3 of 15 cities provide binding
interest arbitration: Gilroy, Palo Alto and San Jose. There is a
recent trend toward eliminating interest arbitration as a method
for resolving impasse with public safety units among cities that
currently have arbitration as a requirement. . . . In addition, the
May 20 Santa Clara County Civil Grand Jury Report also
recommended repealing binding interest arbitration provision to
provide cities with greater control over employee costs.
The Staff Report, although acknowledging there was not a set timeline for Council
action, specified that it had deadlines for Council approval of ballot language if it wanted to
get the measure on the ballot. Specifically, if the Council wanted to get the measure on the
November 8, 2011 ballot, it needed to be approved by the Council by August 1, 2011. The
subsequent election dates were April 10, 2012; June 5, 2012 and November 6, 2012, but they
12

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were substantially more costly to the City than the November 8, 2011 election date.9 The
report also mentioned that the City of San Jose had recently modified its City Charter interest
arbitration language.
On May 10, 2011, the Committee met. City Attorney Stump advised the Committee
that the City would have to meet and confer with the impacted employee organizations if the
Council were to place an initiative of the repeal of the interest arbitration provision on the
ballot based upon Seal Beach. When asked how long it would take to meet and confer with the
employee organization, Stump replied that it depended upon the availability of the parties and
what they could achieve. Burt replied that the time it took to meet and confer could impact the
Council’s decision. At the close of the meeting, the Committee directed staff to return with
more options (modifying versus repealing interest arbitration) and provide detailed information
from cities outside the County and California. Local 1319 Representative Marchisio and
Local 1319 attorney Davis attended the Committee meeting. Marchisio did not address the
Committee.10
Post-Impasse Negotiations over Successor Agreement
Impasse was declared by the City over successor agreement negotiations in
February 2011. However, Local 1319 and the City met to continue negotiations for a
successor agreement on May 23, mid-June and July 1, 2011. At no time during the
negotiations did Local 1319 or the City discuss or offer proposals concerning Article V of the
City Charter.
9 Specifically, the estimated cost to the City for the November 8, 2011 election was
$50,000; for the April 10, 2012 election - $550,000; for the June 6, 2012 election - $550,000;
and for the November 6, 2012 election - $250,000.
10 Spitaleri does not attend the Committee meetings because they were scheduled on
Tuesdays, which is the same day that the City of Sunnyvale City Council meets.
13

June 7, 2011 Committee Meeting
On June 3, 2011, Scott sent an agenda packet to Spitaleri for the June 7, 2011
Committee meeting regarding Article V. She invited him to contact her if he had any
questions. On June 5, 2011, Lt. Watson responded stating that he wished to meet and confer
once the City had set a course on the direction it was going to proceed.
On June 7, 2011, the Committee met again to discuss changes to Article V. The
Committee was to report to the Council whether it recommended to take no action, repeal or
modify Article V. The Committee also discussed the timing of its actions based on the
upcoming November 8, 2011 election and the deadlines for submission and associated costs
depending on the date of election chosen, including waiting until November 2012. The
conversations among the Committee members ranged between repeal and modification. Klein
mentioned that the City should review San Jose’s Charter modifications and prepare draft
language for the November 2012 election. The Committee finally passed a motion to refer the
matter to the full Council for decision whether to place on the ballot repealing or substantially
modifying Article V; refer back to the Committee if the Council’s decided to modify Article V;
and provide guidance as to when the measure should go on the ballot. Spitaleri asked that
Local 1319’s attorney, Davis, attend the meeting on behalf of Local 1319. Additionally,
Marchisio attended the meeting, but did not address the Committee. Spitaleri became aware
that the matter was referred to the Council.
On June 16, 2011, PMA Representative Lt. Watson again requested to meet and confer
over changes to Article V. Lt. Watson asked for a proposal from the City stating which
direction they wanted to proceed. Scott replied that she did not know what direction the
Council was taking, but once they did know, Scott would contact Watson. Spitaleri did not
make a similar request.
14

June 20, 2011 Council Meeting
On June 18, 2011, Scott notified Spitaleri of the Council’s agenda for June 20, 2011.
Scott highlighted an agenda item regarding the Committee’s referral to the Council to take
action on Article V. Scott closed the email by inviting Spitaleri to contact her with any
questions.
On June 20, 2011, the Council met to discuss the repeal or modification of Article V.
Scott discussed several modification options including changes to the format of the arbitration
(the arbitrator also serving as a mediator); requiring mediation prior to the interest arbitration,
reducing the scope of the matters to arbitrate, amending the factors to be considered by the
arbitrator, increasing public access to the arbitration, imposing timelines, and providing for
judicial review. Price stated that the Committee was evenly split as to repealing or modifying
Article V.
Spitaleri addressed the Council as the Local 1319 President. Spitaleri opposed the
repeal of the provision, but admitted that Article V may need review and modification. He
requested the matter be returned to the Committee where all affected labor organizations could
participate in deliberations to update the provision and provide recommendations to the
Council and that “denying the labor organizations an opportunity to express their ideas and
assist in formation of an improved policy could damage employee relations.” Marchisio also
spoke as a member of Local 1319 and urged the Council to return the matter to the Committee
“where a committee of stakeholders could be established” and those most affected by the
changes could have an opportunity to design the necessary modifications. Klein noted the
absence of Councilmember Shepherd and because of the split vote of the previous year, it
would be difficult for the Council to come to a decision at this meeting.
15

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The Council finally passed a motion to refer the matter back to the Committee and draft
a significant modification to Article V, provide language for repeal and a recommendation as
to when the election should be scheduled. The Committee was to return on July 25, 2011 with
recommendations for full Council consideration. The motion passed unanimously. Klein
stated he understood labor representatives wanted to negotiate modifications to Article V and
opposed meeting to negotiate with them, but specified that input should be received both from
the employee organizations and the public.11
Not one Councilmember spoke in favor of maintaining the existing Article V. Price
wondered whether the time frame was too short to provide meaningful discussions with all
stakeholders. Holman was not sure whether to place it on the ballot for 2011 or 2012. Scharff
supported a repeal of interest arbitration and moved to repeal Article V, but later withdrew that
motion. Keene expressed his desire to work with the Committee to formulate ideas as soon as
possible. Marchisio attended the meeting, but did not address the Committee.
Spitaleri testified that Local 1319 did not put forth a proposal because he was not
invited or requested to do so; Local 1319 was still not aware of the direction the Council was
proceeding (repeal or modification); and he was instructed by Klein to address their issues
during the public comment period with the rest of the public who have to limit their
comments/input to three minutes, which did not afford Local 1319 the ability to dialogue with
the Council as to the issue.12
11 The City Council Procedures Handbook states that oral communications shall be
limited to three minutes per speaker and thirty minutes for all speakers combined.
Spokespersons who are representing a group of five or more people may be allowed to speak
for ten minutes.
12 Spitaleri admitted that in the past he has provided a letter to the Council or a
Committee to advocate on behalf of Local 1319.
16

June 28, 2011 Committee Meeting
On June 28, 2011, the Committee met to discuss the repeal or modification of the
Article V. City staff provided a packet which included draft language repealing Article V and
extensive options on how Article V could be modified. For the first time, Burt brought up the
idea of substituting mediation for interest arbitration. Stump stated they could place mediation
in the Charter or pass it as an Ordinance. The discussion of the various options was extensive
and draft language was requested of staff for the repeal of interest arbitration; an ordinance
requiring mediation at impasse and a substantial modification to Article V. Marchisio attended
the Committee meeting, but did not provide any input at the Committee meeting.
July 12, 2011 Committee Meeting
On July 11, 2011, Scott sent an email to Spitaleri notifying him that the Committee was
meeting the next day to continue the discussion on Article V. The documents attached to the
email included a draft resolution for a ballot measure to repeal Article V, a draft ordinance
requiring labor impasse mediation, and draft language to substantially modify Article V. Scott
invited Spitaleri to contact her if he had any questions.
At the July 12, 2011 meeting, City staff presented the draft documents to the
Committee. The Committee passed a motion to forward the proposed language with
mandatory mediation effective upon the repealing of Article V. The Committee also passed a
draft resolution to repeal Article V to go to the Council for action. The Committee had
extensive discussions regarding substantial modifications to Article V. Finally, the Committee
passed the draft resolution of some Article V modifications to be forwarded to the Council.
Marchisio attended the Committee meeting, but did not provide any input.
17

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July 18, 2011 Council Meeting
On July 17, 2011, Scott sent an email to Spitaleri stating the Council would be
considering “binding interest arbitration at their meeting” and provided a link to the agenda
packet. Scott again invited Spitaleri to contact her if he had any questions.
A report from the City Attorney’s office included the Committee’s recommendations
and draft resolutions/language. The report also stated that the City Clerk and the Santa Clara
County Registrar of Voters estimated the total cost to the City to put one measure on the ballot
was $121,800. Included in that report was a section “Consultations with Labor” which
provided:
As discussed in the June 20 staff report, meet and confer over a
charter change on binding interest arbitration is not required
because interest arbitration is a permissive, not mandatory
subject of bargaining. DiQuisto v. County of Santa Clara (2010)
181 Cal.App.4th 236. However, staff provided the fire and
police organizations the opportunity for informal discussion and
comment by informing them of the dates the Policy & Services
Committee reviewed the item and providing copies of the
reports. No oral or written comment was received from those
organizations at the meetings.[13]
On July 18, 2011, the Council held a meeting to discuss the Committee’s
recommendations. After Stump gave an overall description of the recommendations, Spitaleri
made a statement,14 which was reflected in the minutes:
Tony Spitaleri requested the Council adhere to the California
Government Code. Government Code [section] 3507 which was
a part of the Meyers-Milias-Brown Act stating that a public
agency must consult in good faith with representatives of a
recognized employee organization before adopting procedures
for the resolution of disputes involving wages, hours, and other
terms of condition of employment. He noted Government Code
13 The report was silent as to any obligation of the City to consult in good faith with the
affected employee organizations pursuant to MMBA section 3507.
14 Spitaleri also testified that the minutes accurately reflected what he said.
18

[section] 3507[(a)] and other sections under 3500 deemed any
public agency needed to provide reasonable written notice to
each recognized employee organization [a]ffected of any
Ordinance, Resolution, rule or regulation directly relating to the
matter of scope of representation proposed of being adopted by
the governing body, the designated Board or Commission, and
shall give the recognized employee organization the opportunity
to meet with the party of the Boards or Commission.
(Emphasis added.)
After other public comment, Klein made a motion to place on the November 8, 2011
ballot the modified Article V language, however, it did not receive a second and another
motion was made to repeal Article V along with passing a companion ordinance to require
non-binding mediation for impasses in labor negotiations. After extensive discussion by the
Council, the motion was passed five to four.
Immediately after the meeting, Spitaleri saw City Negotiator Murray in the hallway
outside Council chambers. Spitaleri asked Murray to respond to his request to meet and confer
over the proposed repeal of Article V. Murray asked Spitaleri to send the request to him via
email.
The Council had two other Council meeting dates before the August 12, 2011 deadline
to submit the measure to the Registrar’s Office for the November 8, 2011 ballot: July 25 and
August 1, 2011. Scott was told by the City Clerk that the deadline for submitting the measure
to the registrar was August 1. One Councilmember was going to be absent from the
July 25, 2011 meeting and another Councilmember would be absent from the August 1, 2011
meeting, which would not allow the full Council to vote on it.
Post July 28, 2011 Events
On July 19, 2011, Spitaleri emailed Murray:
I am requesting the city [to] abide by California [Government]
Code [section] 3500-3511 as required in sections 3504.5(a) and
19

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3507(a). As you know I made the same request at the city
council meeting of July 18[,] 2011.
(Emphasis added.)
On July 27, 2011, Spitaleri sent another email to Murray stating:
Am I to assume that since I haven’t heard from you concerning
my request, the city wishes not to meet and consult on the repeal
of Binding Interest Arbitration as required by the California
[Government] Code [section] 3500-3511.
Murray replied that he asked Scott to send a staff report which set out the City’s
position. This was the same staff report which stated that the City’s position was it did not
have to meet and confer over the issue because interest arbitration was a permissive subject of
bargaining.
On July 28, 2011, Local 1319 filed its charge with PERB.
On August 1, 2011, Stump faxed a letter to Local 1319’s attorney explaining that it
appeared from the charge that Local 1319 wanted to meet over the proposed mediation
ordinance. Stump further explained:
The mediation ordinance has not been finally adopted by the
Council. An ordinance is adopted only after two readings at least
10 days apart. (Palo Alto Municipal Code section 2.04.270[15].)
The mediation ordinance had been placed on tonight’s Council
agenda for a second reading and final adoption. To provide an
15 Palo Alto Municipal Code section 2.04.270(b) “Introducing ordinances and
resolutions for passage and approval” provides:
Second Reading of Ordinance. With the sole exception of
ordinances which take effect upon adoption, no ordinance shall
be passed by the council on the day of its introduction nor within
ten days thereafter, nor at any other time than at a regular or
special meeting. Ordinances presented to the council for second
reading shall be agendized as consent items and may be removed
for debate and discussion only upon a majority vote of the
council members present and voting. This section shall not
prevent council members from making short comments on
consent items.
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additional opportunity for a meaningful exchange with IAFF and
any other labor group that wishes to provide further input, staff
has removed the mediation ordinance from tonight’s agenda.
On the same day, Scott provided Spitaleri with the proposed ordinance on mediation
and a similar letter as provided to Local 1319’s attorney. On August 15, 2011, the parties met
over the proposed mediation ordinance but have not yet concluded such meetings. A second
reading of the ordinance has not occurred.
Local 1319 and the City began interest arbitration over a successor agreement on
September 20, 2011.
On November 8, 2011, an election was held regarding the repealing of the Article V.
The majority of voters cast their votes to repeal Article V.
ISSUES
1. 	Does MMBA section 3509(e) divest PERB of jurisdiction over the allegations
that the Council’s action of submitting the repeal of Article V to the voters without consulting
in good faith with Local 1319?
2. 	Are PERB Decisions County of Santa Clara (2010) PERB Decision No. 2114-M
and County of Santa Clara (2010) PERB Decision No. 2120-M dispositive of the failure to
consult in good faith allegations regarding Article V?
3. 	Did the City violate MMBA section 3507 by failing to consult in good faith with
Local 1319 before adopting a motion to submit to the voters a ballot measure repealing
Article V?
4. 	Did the City violate MMBA section 3507 by holding a “first reading” to
approve a proposed ordinance to require non-binding mediation over bargaining disputes after
impasse?
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CONCLUSIONS OF LAW
MMBA sections 3500, 3504.5(a), 3505, 3507 and 3509(b) and (e) provide in pertinent
part:
3500(a) It is the purpose of this chapter to promote full
communication between public employers and their employees by
providing a reasonable method of resolving disputes regarding
wages, hours, and other terms and conditions of employment
between public employers and public employee organizations. . . .
3504.5(a) Except in cases of emergency as provided in this
section, the governing body of a public agency, and boards and
commissions designated by law or by the governing body of a
public agency, shall give reasonable written notice to each
recognized employee organization affected of any ordinance, rule,
resolution, or regulation directly relating to matters within the
scope of representation proposed to be adopted by the governing
body or the designated boards and commissions and shall give the
recognized employee organization the opportunity to meet with
the governing body or the boards and commissions.
3505 The governing body of a public agency, or such boards,
commissions, administrative officers or other representatives as
may be properly designated by law or by such governing body,
shall meet and confer in good faith regarding wages, hours, and
other terms and conditions of employment with representatives of
such recognized employee organizations, as defined in subdivision
(b) of Section 3501, and shall consider fully such presentations as
are made by the employee organization on behalf of its members
prior to arriving at a determination of policy or course of action.
"Meet and confer in good faith" means that a public agency, or
such representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request
by either party and continue for a reasonable period of time in
order to exchange freely information, opinions, and proposals, and
to endeavor to reach agreement on matters within the scope of
representation prior to the adoption by the public agency of its
final budget for the ensuing year. . . .
3507(a) A public agency may adopt reasonable rules and
regulations after consultation in good faith with representatives of
a recognized employee organization or organizations for the
administration of employer-employee relations under this chapter.
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-

The rules and regulations may include provisions for all of the
following:
(5) Additional procedures for the resolution of disputes
involving wages, hours and other terms and conditions of
employment.
3509(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.
(e) Notwithstanding subdivisions (a) to (c), inclusive, consistent
with, and pursuant to, the provisions of Sections 3500 and 3505.4,
superior courts shall have exclusive jurisdiction over actions
involving interest arbitration, as governed by Title 9 (commencing
with Section 1280) of Part 3 of the Code of Civil Procedure, when
the action involves an employee organization that represents
firefighters, as defined in Section 3251.
(Emphasis added.)
MMBA Section 3509(e)
As set forth earlier, MMBA section 3509(e) vests the superior courts with exclusive
jurisdiction over “actions” involving interest arbitration as governed by Code of Civil
Procedure section 1280 et seq, when that action involves firefighter employee organizations.
Civil Procedure section 1280 sets forth the various aspects of arbitration used in the State of
California, the conduct of those proceedings, petitions to compel arbitration and confirmation
of arbitration awards.
In City of San Jose v. International Association of Firefighters, Local 230 (2009)
178 Cal.App.4th 408, the only case interpreting such section, the Court of Appeal found that
the Superior Court had jurisdiction over determining whether the proposals put forth by the
employee organization during collective bargaining were outside the scope of bargaining in an
23

interest arbitration and therefore could not arbitrated. PERB asserted it had exclusive initial
jurisdiction. The employee organization notified the Court of Appeal of a recent amendment
to MMBA section 3509(e). The Court of Appeal applied this amendment to the pending action
and found that the Superior Court had exclusive jurisdiction over a petition to compel
arbitration. Since the action filed involved interest arbitration it was considered the exclusive
jurisdiction of the Superior Court.
In the instant case, an interest arbitration action was never filed. Instead, the issue was
the passing of a motion to place on the ballot, the repealing of interest arbitration as an impasse
resolution “process” from the City Charter without consulting in good faith with an affected
exclusive representative. As this case does not involve an individual interest arbitration action,
PERB has exclusive initial jurisdiction over this matter. (MMBA, § 3509(b).)
County of Santa Clara cases
In County of Santa Clara, supra, PERB Decision Nos. 2114-M and 2120-M, PERB held
that the County did not violate MMBA section 3505 by approving a ballot measure modifying a
binding interest arbitration measure previously placed on the ballot. The decisions were both
analyzed under MMBA section 3505 and not section 3507. No violation of section 3505 was
found as interest arbitration was deemed to be a permissive subject of bargaining by the courts and
therefore outside the scope of representation. As the decisions do not discuss or analyze whether
MMBA section 3507 was violated, both cases are not dispositive of the instant case.
Repeal of Article V of the City Charter and MMBA Section 3507
The complaint alleges in part:
3. On or about July 18, 2011, Respondent, through its City
Council adopted a motion to submit to the voters a ballot
measure which would completely repeal Article V of the City
Charter, which provides, in part, for binding interest arbitrations
over bargaining disputes where there is an impasse in bargaining.
24

________________________
5. Respondent engaged in the conduct as described in
paragraph 3 [] without first consulting in good faith with
Charging Party and, as such, violated Government Code section
3507 and committed an unfair practice under Government Code
section 3509(b) and PERB Regulation 32603(f).
MMBA section 3507(a)(5) requires that a public agency adopt reasonable rules
regarding additional procedures for the resolution of disputes regarding matters within the
scope of representation after “consultation in good faith” with representatives of recognized
employee organizations. This section stands apart from MMBA section 3504.5, 3505 which
requires the public agency to meet in confer in good faith regarding wages, hours, and other
terms and conditions of employment with representatives of recognized employee
organizations. However, the “consultation in good faith” obligation has been found to be no
different that the “meet and confer” process in MMBA section 3505. (Independent Union of
Public Service Employees v. County of Sacramento (1983) 147 Cal.App.3d 482, 488; Vernon
Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 821; and International Assn. of
Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 976.)
Applying the meet and confer process therefore to the instant case,16 the public agency
had an obligation to provide reasonable written notice to each employee organization affected
by a proposed rule along with an opportunity for the recognized employee organization to meet
with the public agency. (MMBA, § 3504.5.) The parties shall have the mutual obligation to:
(1) meet and confer promptly upon request by either party, (2) continue for a reasonable period
16 MMBA section 3507(a) sets forth a consultation in good faith obligation over
reasonable rules and regulations covering the administering of employer-employee relations in
nine enumerated areas. The statute does not list a qualifier of “wages, hours, and other terms
and conditions of employment” (scope of representation) in order to trigger the consultation in
good faith obligation, but rather whether the regulation or rule falls within one of the nine
enumerated areas. Therefore, in applying the meet and confer process to MMBA
section 3507(a) cases, scope of representation will not be included as a required element.
25

________________________
of time in order to exchange freely information, opinions, and proposals,17 and (3) endeavor to
reach an agreement. (MMBA, § 3505.) Since this case involves proposing an amendment to a
City Charter, the meet and confer should conclude before the Council votes on the amendment.
(Seal Beach, supra, 36 Cal.3d 591, 602.)
An initial inquiry is whether the City provided reasonable written notice to Local 1319
allowing for an opportunity to meet with the City and conclude within a reasonable period of
time. Blanch/Scott had been providing notices to Spitaleri regarding Council and Committee
meetings on May 3, June 3, 18, 28, July 11, and 17, 2011 about a change that was going to be
discussed regarding Article V. On the May 3, 2011, Blanch emailed Spitaleri and he was
offered to “meet and discuss” the issue. While the Council may not have been certain as to its
direction prior to June 20, 2011, after June 20, the City was going to propose a change to
Article V (repeal or modification). Indeed, on June 20, 2011, Scharff moved to repeal
Article V, but had to withdraw the motion. Spitaleri’s awareness that a change was going to
occur was confirmed by his plea to have the matter remanded back to the Committee where all
labor organizations could have an opportunity to participate in deliberations and provide
recommendations. The earliest Council meeting after these Committee meetings was
July 18, 2011. By June 20, 2011, the City had provided written and/or actual notice18 that a
17 This exchange is not satisfied by a legislative’s body public hearing where an
employee is allowed to comment on a matter. (Los Angeles County Civil Service Commission
v. Superior Court (1978) 23 Cal.3d 55, 61.)
18 As stated in San Diego Adult Educators, Local 4289 v. Public Employment Relations
Board (1990) 223 Cal.App.3d 1124, 1136:
Notice need not, however, be formal to be effective. When a union
official with authority to act has actual notice of the intended
change, together with adequate time to decide whether to demand
negotiation before a final decision is made the union will be deemed
to have received adequate notice.
26

change was going to be proposed to Article V and as well as a reasonable time to negotiate
such a change.
After receiving reasonable written notice, the burden shifts to Local 1319 to
demonstrate that they requested to consult in good faith. (Stockton Police Officers’Assn. v.
City of Stockton (1988) 206 Cal.App.3d 62, 65 (Stockton).) The public agency does not have
an obligation to invite the recognized employee organization to bargain. (Ibid., pp. 65-66;
Metropolitan Water District of Southern California (2009) PERB Decision No. 2055-M, p. 5.)
Additionally, the party demanding negotiations bears the burden of clearly communicating that
request to the other party. (El Centro School District (1996) PERB Decision No. 1154.)
However, Local 1319 does not demonstrate that it ever requested to consult in good faith with
the City. The closest it came to such a request was on July 18, 2011, when Spitaleri requested
that the City “adhere” to the “California Government Code” and that MMBA 3507(a) stated
that the City consult in good faith with a recognized employee organization before it adopted
such a procedure. However, this was not a demand to bargain, but a “request to adhere.” Any
verbal request to Murray to meet and confer after July 18, 2011 was after Local 1319 had
received reasonable written notice and after the Council acted on the proposed amendment to
the Charter. Such a request is therefore untimely. (Stockton, supra, 206 Cal.App.3d 62 and
Seal Beach, supra, 36 Cal.3d 591.)
However, even if Spitaleri’s statement at the July 18, 2011 Council meeting is
considered a demand to meet and consult, it is still untimely. A public agency’s obligation to
provide reasonable written notice coupled with its obligation to allow a reasonable period of
time to meet over the matter (MMBA, § 3505) includes a mutual obligation on behalf of the
recognized employee organization to timely demand to meet and consult over the matter within
a reasonable period of time to conclude such negotiations, especially when a reasonable
27

deadline loomed. The cost of a November 8, 2011 election was substantially less than those
elections after November 8, 2011, and Council meetings after July 18, 2011 would not be fully
attended by nine Councilmembers.
By June 20, 2011, Spitaleri was aware of the approaching August 1, 2011 deadline for
the Council to propose the City Charter amendment for the November 8, 2011 ballot. Two
committee meetings scheduled for June 28 and July 12, 2011 came and passed without a
demand to bargain. Not until the last minute, during the Council meeting as the Council was
preparing to vote on the proposed amendment did Spitaleri request that the City adhere to
Government Codes. Such a last minute request is tantamount to a waiver by inaction to
consult in good faith with the agency and, as such, it is not found that the City adopted a
motion to submit to the voters a ballot measure which would completely repeal Article V
without fulfilling its obligation to consult in good faith with Local 1319 and this allegation is
dismissed.
Mediation Ordinance and MMBA Section 3507
The City argues that it never adopted the mediation ordinance as an employer-employee
relations rule as it only adopted a first reading and Palo Alto Municipal Code
section 2.04.270(b) requires a second reading to take effect. A second reading has never taken
place as the matter was pulled off the August 1, 2011 Council agenda and the City engaged in
negotiations with Local 1319 over the matter. The City’s argument is persuasive and is
buttressed by its municipal code and subsequent action(s). As such, the allegation that the City
violated MMBA section 3507 by adopting a first reading of the mediation ordinance is
dismissed.
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PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SF-CE-869-M,
International Association of Firefighters, Local 1319, AFL-CIO v. City of Palo Alto, are
hereby DISMISSED.
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
Public Employment Relations Board (PERB or 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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, § 32300.)
A document is considered “filed” when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered “filed” when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
subdivision (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, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
29

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, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Shawn P. Cloughesy
Chief Administrative Law Judge
30