City of Anaheim (PERB A321M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 47,
Charging Party,
v.
CITY OF ANAHEIM,
Respondent.
Case No. LA-CE-6-M
Interloctory Appeal
PERB Order No. Ad-321
April 9, 2003
Appearance: Carol J. Flynn, Attorney, for City of Anaheim.
Before Baker, Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on the City of Anaheim’s (City) appeal of a Board agent’s interlocutory
order refusing to dismiss a charge filed by the International Brotherhood of Electrical Workers,
Local 47 (IBEW) and the Board agent’s issuance of a complaint based on that charge. The
City also submitted a motion to stay further action on the complaint pending resolution of the
interlocutory appeal.1
1 The Board resolves both the appeal and the motion to stay in this decision.

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IBEW’s charge alleged that the City violated the Meyers-Milias-Brown Act (MMBA)2
by terminating a probationary employee because she had engaged in the protected activity of
filing a grievance. IBEW alleged that this conduct violated MMBA section 35063 and City of
Anaheim Employer-Employee Relations Resolution, Section 1.06.050.
BACKGROUND
According to the charge, Dahlia Guillen (Guillen) was employed by the City as a part-
time customer services representative from October 1996 to March 2000, at which time she
was hired as a full-time customer services representative. Both classifications are represented
by IBEW. The parties do not dispute that the City’s six-month probationary period for new
employees applied to Guillen’s new full-time position.
On August 22, 2000, Guillen filed a grievance with the City alleging that she was
harassed by her supervisor. No formal or informal meetings were held to address those
allegations. The employee was discharged on September 13, 2000. The City refused to accept
a grievance challenging the termination on grounds that Guillen was a probationary employee
and was not subject to the grievance provisions of the collective bargaining agreement between
the City and IBEW.
MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2
3 Section 3506 provides:
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under
Section 3502.
2

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IBEW filed a charge with PERB on August 3, 2001, approximately 11 months after the
discharge, alleging that the City discharged Guillen because she filed the grievance, in
violation of MMBA section 3506. The City requested that the charge be dismissed on grounds
that: (1) the charge was untimely because the six-month limitations period contained in
Educational Employment Relations Act (EERA) section 3541.5 governs MMBA charges
before PERB; (2) PERB lacked jurisdiction over the charge, because the Board’s jurisdiction
over MMBA charges began on July 1, 2001, and was not retroactive; (3) IBEW abandoned its
contractual remedies by failing to amend its grievance or file a judicial action to compel
arbitration; and (4) the charge failed to state a prima facie case.
4
The Board agent sent the City a letter indicating she was considering deferring the
discrimination allegations to arbitration and requesting waiver of procedural defenses to
arbitration, pursuant to the approach announced by the Board in State of California
(Department of Food and Agriculture) (2002) PERB Decision No. 1473-S. The City rejected
the request, indicating that it “does not believe that deferral of the above matter to arbitration is
appropriate and is not willing to submit this dispute to arbitration.”
The Board agent found the City’s arguments regarding statute of limitations and
retroactivity lacked merit and issued a complaint. The Board agent then joined the City’s
request for interlocutory review of her refusal to dismiss the charge. The City also requested
that processing of the complaint be stayed pending Board resolution of the interlocutory
appeal. No further action has been taken on the case while the instant appeal has been
pending.
4 EERA is codified at Government Code section 3540 et seq.
3

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CITY’S APPEAL
On appeal, the City reasserts and further develops its arguments presented to the Board
agent that a six-month statute of limitations applies to MMBA charges before PERB; PERB’s
jurisdiction over MMBA charges was not retroactive to events occurring prior to July 1, 2001;
and IBEW failed to exhaust its contractual remedies. The City also argues on appeal that the
charge should have been dismissed under the equitable doctrine of laches because IBEW
unreasonably delayed resolution of this case by failing to timely seek judicial compulsion of
arbitration.
DISCUSSION
Statute of Limitations
The City argues that the six-month limitation period codified at EERA section 3541.55
should apply to MMBA charges because MMBA sections 35016 and 35097 incorporate the
5 EERA section 3541.5 provides, in relevant part:
(a) … the board shall not do … the following:
(1) Issue a complaint in respect of any charge based upon
an alleged unfair practice occurring more than six months
prior to the filing of the charge.
6 Section 3501 provides, in relevant part:
(f) ‘Board’ means the Public Employment Relations
Board established pursuant to Section 3541.
7 Section 3509 provides, in relevant part:
(a) The powers and duties of the board described in
Section 3541.3 shall also apply, as appropriate, to this
chapter and shall include the authority as set forth in
subdivisions (b) and (c).
4

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powers and duties of the Board as set forth in EERA section 3541.38.
The City reasons that, when the Legislature specified that PERB was to administer
MMBA using powers codified at EERA section 3541.3, it must have intended that the exercise
of such powers would be circumscribed by the limitations codified in section 3541.5, including
the six-month limitations period specified at Section 3541.5(a)(1). As support for this
argument, the City notes that MMBA section 3501(f) defines the “Board” as the “Public
Employment Relations Board established pursuant to Section 3541.” Moreover, notes the
City, the Legislature previously announced in Section 3540 its intent to incorporate other labor
relations statutes into “this Chapter,” meaning Government Code Chapter 10.7, which includes
Section 3541.5. Thus, reasons the City, by “referencing [in the MMBA amendments]
Sections 3541 and 3541.3 within Chapter 10.7 to define the Board and to describe its duties,”
Senate Bill (SB) 7399 “was consistent with the intent of the Legislature expressed in 1975 in
(b) A complaint alleging any violation of this chapter or
of any rules and regulations adopted by a public agency
pursuant to Section 3507 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.
EERA section 3541.3 sets forth the Board’s powers and duties with regard to, inter
alia, representation matters, the investigation and adjudication of unfair practice charges,
resolution of requests for injunctive relief, and promulgation of regulations implementing the
statutes PERB administers.
8
SB 739 (2001) amended the MMBA to, inter alia, transfer jurisdiction over MMBA
complaints from the Superior Courts to PERB.
9
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Section 3540 to incorporate legislation governing employer-employee relations into ‘this
chapter,’ to the extent possible.” The City argues that it “doesn’t make sense” and is
“inconceivable” that the Legislature would confer powers to administer MMBA “without
concomitent limitations applicable to other agencies under the same Chapter.”
The City also notes that MMBA section 3510(a) provides:
The provisions of this chapter shall be interpreted and applied by
the board in a manner consistent with and in accordance with
judicial interpretations of this chapter.
Citing similarities between MMBA section 3506 and National Labor Relations Act (NLRA)
section 8(a)(1), the City argues that the Board should look to federal precedent for relevant
case law to determine the appropriate statute of limitations for MMBA charges before PERB.
Citing Del Costello v. Steelworkers (1983) 462 U.S. 151 [76 L.Ed.2d 476] (which held that the
NLRA’s six-month statute of limitations for unfair labor practice charges should apply to so-
called “hybrid” Labor Management Relations Act Section 301 breach-of-contract and duty of
fair representation lawsuits in federal court), the City argues that, as in the private sector,
PERB should adopt the “most closely analogous” statute of limitations. Here, argues the City,
the most closely analogous statutes of limitations are the six-month periods codified in the
Ralph C. Dills Act (Dills Act), 	EERA, Higher Education Employer-Employee Relations Act
(HEERA),
10
the Federal Labor Relations Act, and the Agricultural Labor Relations Act. The
City contends that the correctness of this approach is corroborated by the fact that PERB’s
11
10 The Dills Act is codified at Government Code section 3512 et seq.
11 HEERA is codified at Government Code section 3560 et seq.
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jurisdiction was “expanded” by addition of MMBA to the statutes administered by PERB and
that the Legislature must have intended that expansion to be consistent with limitations placed
on its exercise under pre-SB 739 law.
The Board finds the City’s arguments unpersuasive. In City of Huntington Park (2002)
PERB Decision No. 1485-M, the Board affirmed a Board agent’s determination that a three-
year statute of limitations applies to MMBA charges before PERB. Affirmance of Board
agents’ decisions constitute binding PERB precedent, 	so the City’s argument is technically
foreclosed by recent Board case law. Nevertheless, to promote the purposes of the MMBA and
dispose of the issues presented in this case, the Board will respond to each of the City’s
arguments.
12
As correctly noted by the City, MMBA section 3510(a) requires the Board to interpret
and apply MMBA “in a manner consistent with and in accordance with judicial interpretations
of this chapter.” However, the Board finds it unnecessary and inappropriate to turn to federal
case law interpreting the NLRA when the issue presented herein has been more directly
resolved by the courts under California state law.
In Giffin v. United Transportation Union (1987) 190 Cal.App.3d 1359 [236 Cal.Rptr. 6]
(Giffin), a transit district worker filed a duty of fair representation complaint against his
exclusive bargaining representative, the United Transportation Union. Transit districts and the
employee organizations representing transit employees are governed by the Public Utilities
Code which, like MMBA, is silent with regard to the statute of limitations. In rejecting the
union’s argument for a six-month statute of limitations, the Court noted that “the applicable
See PERB Regulation 32320(c). (PERB regs. are codified at Cal. Code Regs., tit. 8,
sec. 31001 et seq.)
12
7

state statute of limitations is three years for a liability created by statute.” (Id. at p. 1365.) In
so holding, the Court specifically concluded that where public sector labor relations statutes
create liability but fail to state a statute of limitations, California Code of Civil Procedure,
section 338(a) will apply. (Ibid.)
-
In Key v. Housing Authority of the City of Oakland (N.D. Cal. March 8, 1994, C 93-
1880 BAC) 1994 WL 90182 (Key), which involved a duty of fair representation claim arising
under the MMBA, the U.S. District Court for the Northern District of California found that the
rationale in the Giffin decision applied equally to cases arising under the MMBA. (Ruling
approved in final order in Key v. Housing Authority of City of Oakland (N.D. Cal. 1994, C-93-
1880-VRW) 1994 WL 704882 [7 A.D.D. 792, 6 NDLR P 147]; affirmed by Key v. Oakland
Housing Authority (9th Cir. 1996) 89 F.3d 845 [nonpub. table decision]; cert. denied, Key v.
Oakland Housing Authority (1996) 519 U.S. 1043 [136 L.Ed.2d 539].) Citing Giffin, the
Northern District Court stated in Key:
Plaintiff’s claim against the Union [under the MMBA] for breach
of the duty of fair representation is subject to a three (3) year
statute of limitations.
Thus, both California and federal courts are in accord that the applicable statute of
limitations for claims arising under the MMBA is three years. 	The City does not dispute that a
three-year limitations period applied to MMBA cases under established practice and precedent
at the time SB 739 was enacted. The City’s invitation to the Board to rule in conflict with the
foregoing judicial interpretations by announcing a new rule based on a case interpreting federal
law would violate the Board’s clear legislative mandate to construe MMBA in conformity with
the treatment it has received in state and federal court.
8

Moreover, as a general principle, it is assumed that in modifying a statute, the
Legislature acts with full knowledge of contemporaneous judicial interpretations of that statute
and of related statutes. (Williams v. Garcetti (1993) 5 Cal.4 th 561, 572 [20 Cal.Rptr.2d 341];
American Federation of State Etc. Employees v. County of San Diego (1992) 11 Cal.App.4th
506 [14 Cal.Rptr.2d 51] (AFSCME v. San Diego).) It is a well-recognized principal of
statutory construction that when the Legislature modifies a law without substantive change
after its authoritative construction by the judiciary, as is the case with changes to MMBA
effected by SB 739, the Legislature is presumed to have intended the statute to be given the
same construction. (See, e.g., People v. Masbruch (1996) 13 Cal.4th 1001, 1007 [55
Cal.Rptr.2d 760]; Guardianship of Stephen G. (1995) 40 Cal.App.4th 1418, 1425 [47
Cal.Rptr.2d 409]; Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 235
[5 Cal.Rptr.2d 782]; AFSCME v. San Diego.) Not only did the Legislature decline to rebut
that presumption through addition of a limitations period in SB 739, it expressly mandated that
PERB is to construe MMBA “in a manner consistent with and in accordance with judicial
interpretations of this chapter.” (MMBA sec. 3510(a).) As discussed above, those judicial
interpretations included and continue to include a three-year limitations period.
The foregoing is further corroborated by the fact that the Dills Act, EERA, and HEERA
each expressly contain a six-month limitations period and none of those statutes relies on or
refers to the others for its limitations period. (EERA sec. 3541.5(a)(1), HEERA sec. 3563.2(a),
and Dills Act sec. 3514.5(a).) In contrast, the Legislature did not specify a statute of
limitations when it amended the MMBA. While the Legislative history specifically references
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and applies PERB’s powers and duties under EERA section 3541.3 	to the MMBA, nothing in
that section or any other provision references or applies the EERA’s statute of limitations to
the MMBA. EERA’s statute of limitations provision is found in EERA section 3541.5, not
section 3541.3. Nothing in the Legislative history of SB 739 refers to EERA section 3541.5,
nor is there any reference to the statutory limitations period for either the Dills Act or HEERA.
13
Accordingly, the limitations period applicable to MMBA cases is three years and the
allegations at issue in this case were timely.
Retroactivity
The City argues that PERB’s jurisdiction is not retroactive to before July 1, 2001,
because new statutes are presumed to operate prospectively “absent an express declaration of
retrospectivity [sic] or a clear indication that the Legislature intended otherwise.” The City
asserts that the Legislature evinced no such intent with SB 739 but, rather, evinced a contrary
intent by amending the bill late in the process of its development to specify the July 2001
effective date and to make the change of jurisdiction contingent on appropriation of funds.
The City also contends that SB 739 was more than a procedural statute but that it
affects the parties’ substantive rights as well by, for example, granting PERB the authority to
review arbitrators’ awards, as well as investigate, issue complaints regarding, and decide unfair
practice charges under the MMBA. This “constitutes a significant change in the way charges
of unfair practice are to be handled within entities covered by the MMBA,” argues the City,
enabling the Board “to affect the substantive rights of the parties by imposing remedies,
determining the matter on the merits, and deciding whether or not an unfair practice charge
MMBA section 3509(a) states “[t]he 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).”
13
10

may be filed.” Thus, argues the City, SB 739 allows the Board to intrude itself into the parties’
relationship and permits the union to “resurrect” an abandoned grievance which would
otherwise be barred by contractual timelines.
The Board rejects the City’s argument because: (1) SB 739 effected a transfer of forum
for adjudication of disputes arising under the MMBA, not a change in substantive rights
conferred by that statute; and, (2) adoption of the City’s argument would leave parties with
unfiled MMBA claims based on conduct occurring between July 1, 1998 and July 1, 2001
without any remedy.
In Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4 th 828, 839 [123 Cal.Rptr.2d
40] (Myers), the Court provided the following definition of retroactive application:
[A] retroactive or retrospective law “is one which affects rights,
obligations, acts, transactions and conditions which are
performed or exist prior to the adoption of the statute.”
(Citations.) Similarly, the United States Supreme Court has
stated: “[E]very statute, which takes away or impairs vested
rights acquired under existing laws, or creates a new obligation,
imposes a new duty, or attaches a new disability, in respect to
transactions or considerations already past, must be deemed
retrospective.” (Citing Landgraf v. USI Film Products (1994) 511
U.S. 244, 269.)
Phrased another way, a statute that operates to “increase a party’s liability for past
conduct” is retroactive. (Id. at p. 280; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188,
1206 [246 Cal.Rptr. 629].) As PERB’s assumption of jurisdiction over violations of the
MMBA neither impairs parties’ vested rights nor increases a party’s liability for past conduct,
the statute is not being applied retroactively.
-
With the enactment of SB 739, PERB was granted exclusive jurisdiction over a public
sector labor relations statute that had been in existence for over thirty years. SB 739 changed
the forum in which claims of unfair practices were to be adjudicated, not the substantive law
11

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governing such claims. 	The bill did not increase a party’s liability under the MMBA, nor did
it impose any new obligations on the employers or employee organizations.
14
SB 739 did not render the City potentially liable for actions that were lawful prior to
July 1, 2001. The City argues that, “the Board has the authority to affect the substantive rights
of the parties by imposing remedies, determining the matter on the merits, and deciding
whether or not an unfair practice charge may be filed.” However, as noted above, PERB is
required to interpret and enforce the MMBA in accordance with existing judicial
interpretations of the statute. Thus, SB 739 did not effect a change in substantive rights, it
effected a change in the venue within which those substantive rights are adjudicated.
Moreover, were the City’s argument against retroactivity accepted, the purposes of
MMBA would be thwarted because violations of the statute would go unremedied. PERB was
granted exclusive jurisdiction over MMBA charges effective July 1, 2001. Thus, beginning on
July 1, 2001, parties no longer had the option of filing MMBA claims in court. The results of
the City’s argument would potentially be extreme. For example, parties who suffered a
violation of rights under the MMBA on June 30, 2001, would, under settled law, have had
three years to file a complaint. 	On the City’s theory, were such parties to have waited until
the following day, July 1, 2001, to file their complaints, their rights would have been forfeited.
SB 739 gave PERB exclusive jurisdiction over MMBA charges beginning July 1, 2001, so
parties would no longer have been able to pursue a complaint in court. If PERB had no
jurisdiction over MMBA claims based on events occurring before July 1, 2001, then the parties
The Legislature also modified the MMBA’s agency fee provisions. However, as
these sections created a new legal obligation, they have been applied only prospectively, and
are not at issue in this case.
14
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would have been unable to file a charge with PERB and, consequently, would be left without a
forum to pursue their rights under the MMBA.
The Board cannot endorse such a retroactive repeal of the substantive rights and duties
established by the MMBA. (See AFSCME v. San Diego, at p. 514, “there is a presumption
against repeals by implication.”) There is nothing in the text of SB 739 to suggest the
Legislature intended such a severe abolishment of settled rights and obligations. To the
contrary, unambiguous statutory text requires PERB to apply the MMBA in accordance with
existing judicial interpretations. PERB’s jurisdiction over MMBA claims arising prior to
July 1, 2001, is required in order to avoid harm to the rights and expectations of parties subject
to MMBA jurisdiction. The Board would be derelict in its responsibility to effectuate the
purposes of the MMBA were it to find that it had no present ability to adjudicate charges based
on alleged conduct occurring prior to July 1, 2001.
Finally, the Board finds no merit in the City’s assertion that addition “late in the
process” of subsections (f) and (g) to Section 3509 	“strengthens the argument that the
Legislature intended that the legislation not be retroactively applied.” The text of the bill and
its interpretation by the Legislative Counsel
15
) show
that the amendments were designed to ensure there was adequate funding in the 2001-2002
16 (as well as the City’s argument itself17
Subsections (f) and (g), which were added by SB 739, were deleted through
enactment of A.B. 2908 in September 2002 and a new subsection (f) was simultaneously
enacted on a different subject. (Chap. 1137, Stats. of 2002.) However, that change does not
affect the Board’s analysis.
15
It is reasonable to presume the Legislature acted with the intent and meaning
expressed in the Legislative Counsel’s Digest. (People v. Van Buren (2001) 93 Cal.App.4 th 875
[113 Cal.Rptr.2d 510].)
16
The City asserts that the amendments “were inserted in the wake of concerns
expressed regarding the cost of implementing Senate Bill 739.”
17
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budget for the expansion of PERB’s adjudicatory and administrative responsibilities. MMBA
section 3509(f) and (g) states that implementation of the amendments to the MMBA regarding
PERB were subject to the appropriation of funds in the annual Budget Act. The Legislative
Counsel’s Digest of those subsections states that the Legislature intended to “provide that
implementation of this provision is subject to the appropriation of funds for this purpose in the
annual Budget Act and that the provision becomes operative on July 1, 2001.” 	On their faces
and as authoritatively explained by the Legislative Counsel, subsections (f) and (g) were
designed to allow the Governor adequate time to appropriately modify PERB’s annual budget.
Such fiscal necessities do not evince an intent to disturb settled expectations by precluding
PERB from adjudicating disputes regarding conduct occurring prior to July 1, 2001.
18
Exhaustion of Contractual Remedies
The City’s argument that IBEW was required to exhaust contractual remedies, up to
and including filing a judicial action to compel arbitration, prior to filing an unfair practice
charge with PERB lacks merit. Neither the MMBA nor PERB’s regulations contain a
requirement that contractual remedies be exhausted before filing an MMBA charge with
PERB.
Moreover, the City’s argument that IBEW’s charge should be barred because PERB
cannot issue a complaint concerning conduct prohibited by the parties’ agreement is undercut
by the fact that the City stated in writing to the Board agent “that the City does not believe that
deferral of the above matter to arbitration is appropriate and is not willing to submit this
dispute to arbitration.” The City asserted consistently that IBEW’s grievance was not
18 The Legislative Counsel’s Digest of SB 739 (Sec. 2.)
14

arbitrable. The City will not now be heard to claim that IBEW’s charge is barred by failure to
exhaust the very grievance machinery the City refused to allow IBEW to invoke.
Laches
Laches is an equitable doctrine that bars unreasonable delay in the assertion of a right,
causing prejudice to the party against whom the right is asserted. (In Re Marriage of Plescia
(1997) 59 Cal.App.4 th 252, 256 [69 Cal.Rptr.2d 120].) Passage of time alone is insufficient to
establish that a claim is barred by the doctrine of laches. (Ibid.) The party invoking the
defense must prove both that the passage of time was unreasonable and that it caused prejudice
to the party invoking the defense. (Id.; In Re Marriage of Dancy (2000) 82 Cal.App.4 th 1142,
1159 [98 Cal.Rptr.2d 775]; Wells Fargo Bank v. Bank of America (1995) 32 Cal.App.4th 424,
438 [38 Cal.Rptr.2d 521].)
The City’s laches argument is based on the claim that IBEW unreasonably delayed
resolution of this case by failing to timely amend its grievance or file a judicial action to
compel arbitration.
As IBEW was not required to exhaust administrative remedies before filing an MMBA
charge, the City unequivocally communicated its belief that the charge was not grievable, and
given that a three-year statute of limitations applies to MMBA charges before PERB, there is
nothing in the record to support a claim that the approximately 11-month time period between
the discharge and filing of the charge in the instant case was unreasonable or caused prejudice
to the City. Accordingly, there is no basis for dismissal of IBEW’s charge under the equitable
doctrine of laches.
15

CONCLUSION
The Board rejects the City’s argument that a six-month limitations period applies to
MMBA charges before PERB. The Board also rejects the City’s contention that PERB lacks
jurisdiction over MMBA charges based on events occurring prior to July 1, 2001, because (1)
SB 739 effected a change of forum, not substantive rights; and, (2) the City’s approach would
divest parties of judicially settled rights and expectations, in direct conflict with express
legislative mandate. The Board finds that the City’s remaining arguments lack merit. Based
on the foregoing, the Board denies both the interlocutory appeal and the motion for stay and
remands the matter for further processing of the complaint.
ORDER
Based on the foregoing discussion, the Board denies the City of Anaheim’s (City)
appeal of the Board agent’s interlocutory order refusing to dismiss the charge filed by the
International Brotherhood of Electrical Workers, Local 47 and the Board agent’s issuance of
the complaint on November 30, 2001. The City’s motion to stay processing of the complaint is
denied.
It is hereby Ordered that Case No. LA-CE-6-M be REMANDED to the Board agent for
further processing of the complaint.
Members Baker and Whitehead joined in this Decision.
16