Central Contra Costa Transit Authority (PERB 2263M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMALGAMATED TRANSIT UNION,
LOCAL 1605,
Charging Party, 	Case No. SF-CE-711-M
v . 	PERB Decision No. 2263-M
May 8, 2012	CENTRAL CONTRA COSTA TRANSIT
AUTHORITY,
Respondent.
Appearances: Neyhart, Anderson, Flynn & Grosboll by William J. Flynn and Eileen M.
Bissen, Attorneys, for Amalgamated Transit Union, Local 1605; Hanson Bridgett by
Patrick M. Glenn, Attorney, for Central Contra Costa Transit Authority.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Amalgamated Transit Union, Local 1605 (ATU) from a
Board agent's dismissal of its unfair practice charge. The charge alleged that the Central
Contra Costa Transit Authority (Authority) violated the Meyers-Milias-Brown Act (MMBA)
by issuing a written warning to the union president for conduct that occurred during a meeting
with management to discuss a personnel matter involving another union member. The charge
alleged that the action taken by the Authority against the union president constituted violations
of MMBA sections 3503, 3505 and 3506, PERB Regulation 32603(a)," and local rules.
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMALGAMATED TRANSIT UNION,
LOCAL 1605,
Charging Party,
V.
CENTRAL CONTRA COSTA TRANSIT
AUTHORITY,
Respondent.
Case No. SF-CE-711-M
PERB Decision No. 2263-M
May 8, 2012
Appearances: Neyhart, Anderson, Flynn & Grosboll by William J. Flynn and Eileen M.
Bissen, Attorneys, for Amalgamated Transit Union, Local 1605; Hanson Bridgett by
Patrick M. Glenn, Attorney, for Central Contra Costa Transit Authority.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Amalgamated Transit Union, Local 1605 (A TU) from a
Board agent's dismissal of its unfair practice charge. The charge alleged that the Central
Contra Costa Transit Authority (Authority) violated the Meyers-Milias-Brown Act (MMBA)1
by issuing a written warning to the union president for conduct that occurred during a meeting
with management to discuss a personnel matter involving another union member. The charge
alleged that the action taken by the Authority against the union president constituted violations
of MMBA sections 3503, 3505 and 3506, PERB Regulation 32603(a),2 and local rules.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 3 l 001 et seq.

The Office of the General Counsel determined that the Authority, a joint powers
agency, is not a "public agency" within the meaning of subdivision (c) of MMBA section 3501
and that PERB was without jurisdiction to entertain the charge. As jurisdiction is a threshold
matter, the Office of the General Counsel had no cause to determine whether a complaint
should issue on the underlying charge allegations.
The Board has reviewed the appeal, the response thereto, the warning and dismissal
letters and the entire record in this matter. Based on the Board's review of the record and
application of the relevant law, the Board finds that the Authority is a public agency within the
meaning of MMBA section 3501, subdivision (c). Having established the Board's jurisdiction
and authority to proceed, the Board hereby grants the appeal and remands this matter to the
Office of the General Counsel to investigate the underlying charge allegations.
BACKGROUND
The issue presented on appeal involves a question of jurisdiction and while the issue is
ultimately a legal one, its resolution is predicated on the existence of certain foundational facts.
Because this matter has never gone beyond the charge processing stage, we rely on ATU's
factual allegations and supporting documentation for the narrative that follows. Such
assertions are deemed to be true for purposes of our review. (See Amador Valley Joint Union
High School District (1978) PERB Decision No. 74.) Where not in conflict, assertions made
by the Authority in written submissions to the Office of the General Counsel during the charge
processing stage provide additional factual context. (See Chula Vista Elementary School
003) PERB Decision No. 1557.)
The ATU is recognized by the Authority as the exclusive representative for bus
operators employed by the Authority. The Authority and the ATU entered into its most recent
memorandum of understanding for the term of February 1, 2007 through January 31, 201 1
(MOU).
2
The Office of the General Counsel determined that the Authority, a joint powers
agency, is not a "public agency" within the meaning of subdivision (c) ofMMBA section 3501
and that PERB was without jurisdiction to entertain the charge. As jurisdiction is a threshold
matter, the Office of the General Counsel had no cause to determine whether a complaint
should issue on the underlying charge allegations.
The Board has reviewed the appeal, the response thereto, the warning and dismissal
letters and the entire record in this matter. Based on the Board's review of the record and
application of the relevant law, the Board finds that the Authority is a public agency within the
meaning ofMMBA section 3501, subdivision (c). Having established the Board's jurisdiction
and authority to proceed, the Board hereby grants the appeal and remands this matter to the
Office of the General Counsel to investigate the underlying charge allegations.
BACKGROUND
The issue presented on appeal involves a question of jurisdiction and while the issue is
ultimately a legal one, its resolution is predicated on the existence of certain foundational facts.
Because this matter has never gone beyond the charge processing stage, we rely on ATU' s
factual allegations and supporting documentation for the narrative that follows. 	Such
assertions are deemed to be true for purposes of our review. (See Amador Valley Joint Union
High School District (1978) PERB Decision No. 74.) Where not in conflict, assertions made
by the Authority in written submissions to 	Office of the General Counsel during 	charge
processing stage provide additional factual context. (See Chula Vista Elementary School
District (2(2003) PERB 	No. 1557.)
The A TU is recognized by the Authority as the exclusive representative for bus
operators employed by the Authority. The Authority and the ATU entered into its most recent
memorandum of understanding for the term of February 1, 2007 through January 31, 2011
(MOU).
2

The MOU
The MOU was prepared in accordance with the requirements of the MMBA. The
MOU sets forth the parties' agreement regarding, among other things, health and welfare
benefits including employee medical benefits available through the Authority's participation in
the Public Employees' Medical and Hospital Care Act (PEMHCA), and retirement benefits and
retiree medical benefits from the California Public Employees' Retirement System (CalPERS).
Local Rules
Regarding employer-employee relations, the Authority operates under local rules
contained in the Employer-Employee Organization Relations Resolution, revised June 20,
1985 (EEORR). The EEORR's "Statement of Purpose" states that the EEORR implements the
MMBA by providing orderly procedures for the administration of employer-employee
relations between the Authority and its employee organizations.
The Authority
The Authority is a joint powers agency of 1 1 local jurisdictions including the cities of
Clayton, Concord, Danville, Lafayette, Martinez, Moraga, Orinda, Pleasant Hill, San Ramon
and Walnut Creek, and Contra Costa County (County). The Authority provides the central
County with both fixed-route bus and paratransit transportation services.
The Authority operates under the Joint Exercise of Powers Agreement (Agreement) as a
reement acknowledges
the need for public transportation services and the desire of the member jurisdictions to "secure
the efficiencies of joint operation and service that are available through a unified, cooperative
effort."
Section 1.01 of article 1 of the MOU states: "This Memorandum of Understanding
('MOU') has been prepared to meet the requirements of the California Government Code
Section 3500, et seq."
3
The MOU
The MOU was prepared in accordance with the requirements
of
the MMBA.3
The
MOU sets forth the parties' agreement regarding, among other things, health and welfare
benefits including employee medical benefits available through the Authority's participation in
the Public Employees' Medical and Hospital Care Act (PEMHCA), and retirement benefits and
retiree medical benefits from the California Public Employees' Retirement System (CalPERS).
Local Rules
Regarding employer-employee relations, the Authority operates under local rules
contained in the Employer-Employee Organization Relations Resolution, revised June 20,
1985 (EEO RR). The EEORR's "Statement
of
Purpose" states that the EEO RR implements the
MMBA by providing orderly procedures for the administration
of
employer-employee
relations between the Authority and its employee organizations.
The Authority
The Authority is a joint powers agency
of
11
local jurisdictions including the cities
of
Clayton, Concord, Danville, Lafayette, Martinez, Moraga, Orinda, Pleasant Hill, San Ramon
and Walnut Creek, and Contra Costa County (County). The Authority provides the central
County with both fixed-route bus and paratransit transportation services.
3
The Authority operates under the Joint Exercise
of
Powers Agreement (Agreement) as a
"public entity separate and distinct from member jurisdictions." The AgAgreement acknowledges
the need for public transportation services and the desire
of
the member jurisdictions to "secure
the efficiencies of joint operation and service that are available through a unified, cooperative
effort."
Section 1.01 of article 1 of the MOU states: "This Memorandum of Understanding
('MOU') has been prepared to meet the requirements of the California Government Code
Section 3500, et seq."

The Agreement enumerates the powers of the Authority including, among other things,
the power to own, develop, operate, maintain and administer a public transportation system; to
enter into contracts; to apply for, receive and expend monies from public transportation
funding sources; to hire agents and employees; to sue and be sued; to acquire, hold or dispose
of real and personal property; and to incur debt, liabilities and obligations. The member
jurisdictions are not liable for the debts, liabilities or obligations of the Authority. The
Treasurer of the County serves as the depository for the Authority and maintains custody of the
Authority's funds from whatever source.
The Authority is governed by a Board of Directors. Each member jurisdiction appoints
one regular representative to the board and one alternate. According to the Bylaws adopted by
the Authority, the governing body of each member jurisdiction appoints a Director to represent
that jurisdiction for a two-year term of office. A Director may be an elected or other public
official, or a private person. The Directors serve without compensation. A Director may be
replaced by the appointing member jurisdiction. In that event, the Director being replaced
ceases to represent the appointing member jurisdiction and the appointing member jurisdiction
is required to appoint a new Director to serve the unexpired balance of the outgoing Director's
term of office. Regular meetings of the Board of Directors are subject to the open meeting and
notice requirements of the Ralph M. Brown Act, section 54950 et seq.
The Bylaws set forth the Basic Level of Service to be provided by the Authority under
the Agreement. The Authority may request that member jurisdictions contribute to the
Authority from their 	nds or other locally-controlled funds as necessary to support the
Authority's budget. No member jurisdiction is required to make such contributions except
upon the approval of the member jurisdiction's governing body. If a member jurisdiction fails
to contribute as requested, the Authority may equitably reduce the public transportation
services provided in that jurisdiction as necessary to compensate for the budgetary shortfall,
The Agreement enumerates the powers of the Authority including, among other things,
the power to own, develop, operate, maintain and administer a public transportation system; to
enter into contracts; to apply for, receive and expend monies from public transportation
funding sources; to hire agents and employees; to sue and be sued; to acquire, hold or dispose
of real and personal property; and to incur debt, liabilities and obligations. The member
jurisdictions are not liable for the debts, liabilities or obligations of the Authority. The
Treasurer of the County serves as the depository for the Authority and maintains custody of the
Authority's funds from whatever source.
The Authority is governed by a Board of Directors. Each member jurisdiction appoints
one regular representative to the board and one alternate. According to the Bylaws adopted by
the Authority, the governing body of each member jurisdiction appoints a Director to represent
that jurisdiction for a two-year term of office. A Director may be an elected or other public
official, or a private person. The Directors serve without compensation. A Director may be
replaced by the appointing member jurisdiction. In that event, the Director being replaced
ceases to represent the appointing member jurisdiction and the appointing member jurisdiction
is required to appoint a new Director to serve the unexpired balance of the outgoing Director's
term of office. Regular meetings of the Board of Directors are subject to the open meeting and
notice requirements of the Ralph M. Brown Act, section 54950 et seq.
The Bylaws set forth the Basic Level of Service to be provided by the Authority under
the Agreement. The Authority may request that member jurisdictions contribute to the
Authority from theirgeneral fu unds or other locally-controlled funds as necessary to support
Authority's budget. No member jurisdiction is required to make such contributions except
upon the approval of the member jurisdiction's governing body. If a member jurisdiction fails
to contribute as requested, the Authority may equitably reduce the public transportation
services provided in that jurisdiction as necessary to compensate for the budgetary shortfall,
f
4

according to guidelines set forth in the Bylaws, provided that no reduction in the Basic Level
of Service results.
The Authority is identified as a public agency on the Roster of Public Agencies
maintained by the Office of the Secretary of State of the State of California.*
DECISION OF THE OFFICE OF THE GENERAL COUNSEL
The Office of the General Counsel dismissed the charge for lack of jurisdiction on the
basis that the Authority does not fall within the definition of "public agency" in MMBA
section 3501, subdivision (c). In National Labor Relations Board v. Natural Gas Utility
District of Hawkins County, Tennessee (1971) 402 U.S. 600 (Hawkins County), the United
States Supreme Court developed a test under the National Labor Relations Act (NLRA) for
determining whether an entity comes within the NLRA's exemption for a "State or political
subdivision thereof." Using that test, the Office of the General Counsel determined that the
Authority did not appear to be a "governmental subdivision" of the State of California within
the meaning of MMBA section 3501, subdivision (c). It was also determined that the
Authority did not appear to be a public or quasi-public corporation or a public service
corporation within the meaning of MMBA section 3501, subdivision (c), or a public agency by
virtue of a single employer, joint employer or alter ego theory of employment.
# After having provided the parties to this case with notice and opportunity to be heard
by letter of the Board's Appeals Assistant dated February 3, 2010, and having received no
response from either party, the Board takes notice of the updated Statement of Facts/Roster of
Public Agencies Filing of the Authority (Filing), filed in the Office of the Secretary of State of
the State of California by an agent of the Authority on September 9, 2011. Pursuant to
section 53051, the Secretary of State is required to establish and maintain an indexed Roster of
Public Agencies of which the Authority's Filing is a part. This material is subject to judicial
notice as an official act of the executive department of the State of California. (See Evid.
Code, $ 452, subd. (c).)
The NLRA is codified at 29 U.S.C. section 151 et seq.
5
according to guidelines set forth in the Bylaws, provided that no reduction in the Basic Level
of
Service results.
The Authority is identified as a public agency on the Roster
of
Public Agencies
maintained by the Office
of
the Secretary
of
State
of
the State
of
California. 4
DECISION OF THE OFFICE OF THE GENERAL COUNSEL
The Office
of
the General Counsel dismissed the charge for lack
of
jurisdiction
on
the
basis that the Authority does not fall within the definition
of
"public agency" in MMBA
section 3501, subdivision (c). In National Labor Relations Board
v.
Natural Gas Utility
District
of
Hawkins County, Tennessee (1971) 402 U.S. 600 (Hawkins County), the United
States Supreme Court developed a test under the National Labor Relations Act (NLRA)5 for
determining whether an entity comes within the NLRA's exemption for a "State or political
subdivision thereof." Using that test, the Office
of
the General Counsel determined that the
Authority did not appear to be a "governmental subdivision"
of
the State
of
California within
the meaning
of
MMBA section 3501, subdivision (c). It was also determined that the
Authority did not appear to be a public or quasi-public corporation or a public service
corporation within the meaning
of
MMBA section 3501, subdivision (c), or a public agency by
virtue
of
a single employer, joint employer or alter ego theory
of
employment.
4 After having provided the parties to this case with notice and opportunity to be heard
by letter of the Board's Appeals Assistant dated February 3, 2010, and having received no
response from either party, the Board takes notice of 	updated Statement of Facts/Roster of
Public Agencies Filing of the Authority (Filing), filed in the Office of the Secretary of State of
the State of California by an agent of the Authority on September 9, 2011. Pursuant to
section 53051, the Secretary of State is required to establish and maintain an indexed Roster of
Public Agencies of which the Authority's Filing is a part. This material is subject to judicial
notice as an official act of the executive department of the State of California. (See Evid.
Code, § 452, subd. (c).)
5 The NLRA is codified at 29 U.S.C. section 151 et seq.
5

DISCUSSION
Background
The sole issue on appeal is whether PERB has jurisdiction over the Authority, which
turns on whether the Authority, a joint powers agency, is a public agency within the meaning
of MMBA section 3501, subdivision (c). As observed in the dismissal letter, a party's
invocation of PERB's jurisdiction by the filing of an unfair practice charge does not confer
jurisdiction on PERB. (Public Employment Relations Bd. v. Modesto City Schools Dist. (1982)
136 Cal.App.3d 881.) PERB has only such jurisdiction and powers as have been conferred on
it by statute. (North Orange County Regional Occupational Program (1990) PERB Decision
No. 857 (North Orange County).) Where PERB is without jurisdiction, it cannot acquire
jurisdiction by the parties' consent, agreement, stipulation or acquiescence, or by waiver or
estoppel. (Ibid.) And, finally, the absence of jurisdiction cannot be overcome by the
established practices or customs of this Board. (Ibid.)
As the ATU points out, the MOU and the EEORR reflect the parties' longtime mutual
understanding that their conduct in the area of labor relations is governed by the MMBA, and
where permitted, by the Authority's local rules. As the ATU also points out, the Board has on
prior occasion decided cases under the MMBA where the public employer was a joint powers
agency. (See, e.g., Omnitrans (2010) PERB No. 2121-M [involving a dispute between an
employee organization representing a bargaining unit of coach operators and a public employer
formed as a joint powers agency to provide public bus service in San Bernardino County].)
"The substantive holding in North Orange County that a regional occupational center
operated by a joint powers agency was not a public school employer within the meaning of the
Educational Employment Relations Act (EERA) (codified at $ 3540, et seq.) was superceded
by legislative enactment, which is discussed on pages 7-9, post. The Board's discussion in
North Orange County of foundational jurisdictional principles, however, remains Board
precedent.
6
DISCUSSION
Background
The sole issue on appeal is whether PERB has jurisdiction over the Authority, which
turns on whether the Authority, a joint powers agency, is a public agency within the meaning
of MMBA section 3501, subdivision (c). As observed in the dismissal letter, a party's
invocation of PERB' s jurisdiction by the filing of an unfair practice charge does not confer
jurisdiction on PERB. (Public Employment Relations Bd. v. Modesto City Schools Dist. (1982)
136 Cal.App.3d 881.) PERB has only such jurisdiction and powers as have been conferred on
it by statute. (North Orange County Regional Occupational Program (1990) PERB Decision
No. 857 (North Orange County).) Where PERB is without jurisdiction, it cannot acquire
jurisdiction by the parties' consent, agreement, stipulation or acquiescence, or by waiver or
estoppel. (Ibid.) And, finally, the absence of jurisdiction cannot be overcome by the
established practices or customs of this Board. (Ibid. )6
As the ATU points out, the MOU and the EEORR reflect the parties' longtime mutual
understanding that their conduct in the area of labor relations is governed by the MMBA, and
where permitted, by the Authority's local rules. As the ATU also points out, the Board has on
prior occasion decided cases under the MMBA where the public employer was a joint powers
agency. (See, e.g., Omnitrans (2010) PERB No. 2121-M [involving a dispute between an
employee organization representing a bargaining unit of coach operators 	a public employer
formed as a joint powers agency to provide public bus service in San Bernardino County].)
The substantive holding in North Orange County that a regional occupational center
operated by a joint powers agency was not a public school employer within the meaning of the
Educational Employment Relations Act (EERA) (codified at§ 3540, et seq.) was superceded
by legislative enactment, which is discussed on pages 7-9, post. The Board's discussion in
North Orange County of foundational jurisdictional principles, however, remains Board
precedent.
6

As the dismissal letter rightly points out, neither the parties' mutual understanding nor
the Board's past practice have the effect of conferring jurisdiction on the Board where none
exits. These facts are perhaps only illustrative of a different proposition. A court will reject a
construction of a statute that would lead to absurd results. (Baker v. Workers' Comp. Appeals
Bd. (2011) 52 Cal.4" 434, 442.) With the rare benefit of hindsight, we can see no signs of
absurd results either at the Board level or in the relationship between the parties from an
interpretation that recognizes a joint powers agency to be a public agency for purposes of
administering the MMBA.
Before we examine the statutory text at issue, it should be noted that the issue of
whether a joint powers agency is a public employer within PERB's jurisdiction was raised and
extensively debated in the context of EERA. The Board's decision in Joint Powers Board of
Directors, Tulare County Organization for Vocational Education, Regional Occupational
Center and Program (1978) PERB Decision No. 57 (Tulare County) involved an entity
established through a joint powers agreement among nine school districts in Tulare County to
provide vocational training at regional occupational centers. The entity was found to be a
public school employer or employer subject to the Board's jurisdiction under EERA
section 3540.1, subdivision (k). The Board's majority observed that the employees of the
entity performed the same duties for the same purpose as employees in traditional school
districts. The Board noted that each member district was itself a public school employer
The parties have been operati 	he MMB 	at least 15 years,
successfully having resolved at least one strike and negotiated successive memoranda of
understanding. See discussion of Local 1605 Amalgamated Transit Union, AFL-CIO et al. v.
Central Contra Costa County Transit Authority (N.D. Cal. 1999) 73 F.Supp.2d 1117
(Local 1605) in footnote 13, post.
"Public school employer" or "employer" was then defined under EERA
section 3540.1, subdivision (k) as "the governing board of a school district, a school district, a
county board of education, or a county superintendent of schools."
7
As the dismissal letter rightly points out, neither the parties' mutual understanding nor
the Board's past practice have the effect
of
conferring jurisdiction on the Board where none
exits. These facts are perhaps only illustrative
of
a different proposition. A court will reject a
construction
of
a statute that would lead to absurd results. (Baker
v.
Workers' Comp. Appeals
Bd. (2011) 52 Cal.4
th
434, 442.) With the rare benefit
of
hindsight, we can see no signs
of
absurd results either at the Board level or in the relationship between the parties7 from an
interpretation that recognizes a joint powers agency to be a public agency for purposes
of
administering the MMBA.
Before we examine the statutory text at issue, it should be noted that the issue
of
whether a joint powers agency is a public employer within PERB'sjurisdiction was raised and
extensively debated in the context
of
EERA. The Board's decision in Joint Powers Board
of
Directors, Tulare County Organization/or Vocational Education, Regional Occupational
Center and Program (1978) PERB Decision No. 57 (Tulare County) involved an entity
established through a joint powers agreement among nine school districts in Tulare County to
provide vocational training at regional occupational centers. The entity was found to be a
public school employer or employer8 subject to the Board's jurisdiction under EERA
section 3540.1, subdivision (k). The Board's majority observed that the employees
of
the
entity performed the same duties for the same purpose as employees in traditional school
districts. The Board noted that each member district was itself a public school employer
7 The parties have been operating	ng under tthe MMBA	A framework forfor at least
15
years,
successfully having resolved at least one strike and negotiated successive memoranda
of
understanding. See discussion of Local 1605 Amalgamated Transit Union, AFL-CIO et al.
v.
Central Contra Costa County Transit Authority (N.D. Cal. 1999) 73 F.Supp.2d 1117
(Local 1605) in footnote 13, post.
8 "Public school employer" or "employer" was then defined under EERA
section 3540.1, subdivision (k) as "the governing board of a school district, a school district, a
county board of education, or a county superintendent of schools."
7

within the meaning of the EERA, and that to treat the employees of the subject entity as falling
outside the protections of the EERA would be to undermine the EERA's stated legislative
purpose of affording a uniform system of employer-employee relations in the public school
system. The Board's dissent emphasized that the definition of public school employer in the
EERA was clear on its face and did not include the type of entity involved.
The Board's dissent in Tulare County was adopted by the Board's majority in
North Orange County." The Board's majority explicitly overruled Tulare County, finding that
a regional occupational center operated by a joint powers agency was not a public school
employer or employer within the meaning of the EERA. The Board's dissent viewed the
majority's interpretation of the statute as leading to an absurd result. The Legislature appears
to have agreed, and amended EERA section 3540.1, subdivision (k), to include a joint powers
agency within the definition of public school employer or employer under the EERA where
certain conditions are met. (Stats. 2011, ch. 674, $ 1 (AB 501).)'
"In San Jose/Evergreen Community College District (2007) PERB Decision No. 1928
(Evergreen), the most recent Board decision to touch on this issue, the Board found that a joint
powers agency and a public school district were not in a joint employment relationship and
therefore employees of the joint powers agency were not entitled to bring an unfair practice
charge under the EERA. The Board's decision in Evergreen was based implicitly on the
holding in North Orange County that PERB had no jurisdiction under the EERA where the
public school employer or employer is a joint powers agency.
Th 	ssent finds support for its position in the history of the Board's decision-
making leading up to the EERA amendment, stating that the amendment was enacted in direct
response to the Board's decision in North Orange County. The argument is that in the absence
of a similar amendment to the MMBA, a local public employer operating as a joint powers
agency falls outside PERB's jurisdiction. As discussed in footnote 10, ante, the Board's
decision in Evergreen applied the Board's holding in North Orange County that a regional
occupational center operated by a joint powers agency was not a public school employer or
employer within the meaning of EERA. The legislative history of the EERA amendment sheds
some light on the significance of the Board's decision-making in discerning the intent of the
Legislature in enacting the amendment. The Senate Rules Committee's Office of Senate Floor
Analysis, Third Reading, states:
According to the author: "This bill stems from two erroneous
Public Employment Relations Board (PERB) decisions that
8
within the meaning of the EERA, and that to treat the employees of the subject entity as falling
outside the protections of the EERA would be to undermine the EERA's stated legislative
purpose of affording a uniform system of employer-employee relations in the public school
system. The Board's dissent emphasized that the definition of public school employer in the
EERA was clear on its face and did not include the type of entity involved.
The Board's dissent in Tulare County was adopted by the Board's majority in
North Orange County.9 The Board's majority explicitly overruled Tulare County, finding that
a regional occupational center operated by a joint powers agency was not a public school
employer or employer within the meaning of the EERA. The Board's dissent viewed the
majority's interpretation of the statute as leading to an absurd result. The Legislature appears
to have agreed, and amended EERA section 3540.1, subdivision (k), to include a joint powers
agency within the definition of public school employer or employer under the EERA where
certain conditions are met. (Stats. 2011, ch. 674, § 1 (AB 501).)10
In San Jose/Evergreen Community College District (2007) PERB Decision No. 1928
(Evergreen), the most recent Board decision to touch on this issue, the Board found that a joint
powers agency and a public school district were not in a joint employment relationship and
therefore employees of the joint powers agency were not entitled to bring an unfair practice
charge under the EERA. The Board's decision in Evergreen was based implicitly on the
holding in North Orange County that PERB had no jurisdiction under the EERA where the
public school employer or employer is a joint powers agency.
IO
e di dissent finds support for its position in the history of the Board's decision-
making leading up to the EERA amendment, stating that the amendment was enacted in direct
response to the Board's decision in North Orange County. The argument is that 	the absence
of a similar amendment to the MMBA, a local public employer operating as a joint powers
agency falls outside PERB'sjurisdiction. As discussed in footnote 10, ante, the Board's
decision in Evergreen applied the Board's holding 	North Orange County that a regional
occupational center operated by a joint powers agency was not a public school employer or
employer within the meaning of EERA. The legislative history of the EERA amendment sheds
some light on the significance of the Board's decision-making in discerning the intent of the
Legislature in enacting the amendment. The Senate Rules Committee's Office of Senate Floor
Analysis, Third Reading, states:
According to the author: "This bill stems from two erroneous
Public Employment Relations Board (PERB) decisions that
8

The legislative reaction to the evolution of the Board's decisions in the EERA cases
does not, however, lead to the conclusion that the absence of an explicit reference to a joint
powers agency within the definition of public agency in MMBA section 3501, subdivision (c)
requires the Board to find that it is without jurisdiction in this case. The various arguments
concerning PERB's jurisdiction under the MMBA in cases involving a joint powers agency are
similar to the arguments made in the EERA cases. The primary focus of any statutory
construction analysis, however, is the language of the statute itself. With that focus in place, it
can be seen that the statutory text defining a public agency under the MMBA bears no
prevented . . . the organization of employees of a JPA comprised
of public school entities. . .." The author also points out that in
[Evergreen], the PERB ruled that employees of a JPA consisting
of public schools were not eligible for organization. Here, school
employees were considered "public school employees" for
purposes of the EERA until the JPA was created, although they
continued to perform the same work. This decision allowed
districts to circumvent the EERA and deny their employees union
representation.
Finally, the author notes that "This bill would clarify [existing
law] to reflect the intention of the Legislature that public school
employees have a right to join [a] representative organization of
their own choice, and that any person employed by a JPA that is
composed of one or more public school employers is a public
school employee."
(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 501
(2011-2012 Reg. Sess.) as amended April 6, 2011, pp. 4-5; see, Evid. Code, $ 452, subd. (c)
[official acts of the Legislature subject to judicial notice].)
It does not appear to be the case that the intent of the Legislature in enacting the
amendment to EERA was to sanction either the Board's interpretation of the then-existing
statutory scheme as it concerned PERB's authority to assert jurisdiction over a joint powers
agency under EERA or the Board's deferral to the Legislature on this issue. It is more likely
the case that the Legislature viewed the amendment process as a way to correct what it
considered to be an "erroneous" interpretation of EERA by the Board. (Kaufman & Broad
Community, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4" 26, 39 [legislative
history documents communicated to the Legislature as a whole constitute evidence of
legislative intent]; Guillermin v. Stein (2002) 104 Cal.App.4" 156, 166 [Senate Rules
Committee reports and analyses noticed as cognizable legislative history]; Pacific Gas &
Electric Co. v 	Water Resources (2003) 112 Cal.App.4" 477, 497 [Office of the
Senate Floor analyses noticed as cognizable legislative history].)
9
The legislative reaction to the evolution of the Board's decisions in the EERA cases
does not, however, lead to the conclusion that the absence of an explicit reference to a joint
powers agency within the definition of public agency in MMBA section 3501, subdivision (c)
requires the Board to find that it is without jurisdiction in this case. The various arguments
concerning PERB' s jurisdiction under the MMBA in cases involving a joint powers agency are
similar to the arguments made in the EERA cases. The primary focus of any statutory
construction analysis, however, is the language of the statute itself. With that focus in place, it
can be seen that the statutory text defining a public agency under the MMBA bears no
prevented ... the organization of employees of a JP A comprised
of public school entities .... " The author also points out that in
[Evergreen], the PERB ruled that employees of a JPA consisting
of public schools were not eligible for organization. Here, school
employees were considered "public school employees" for
purposes of the EERA until the JP A was created, although they
continued to perform the same work. This decision allowed
districts to circumvent the EERA and deny their employees union
representation.
Finally, the author notes that "This bill would clarify [existing
law] to reflect the intention of the Legislature that public school
employees have a right to join [a] representative organization of
their own choice, and that any person employed by a JP A that is
composed of one or more public school employers is a public
school employee."
(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 501
(2011-2012 Reg. Sess.) as amended April 6, 2011, pp. 4-5; see, Evid. Code,§ 452, subd. (c)
[official acts of the Legislature subject to judicial notice].)
It does not appear to be the case that the intent of the Legislature in enacting the
amendment to EERA was to sanction either the Board's interpretation of the then-existing
statutory scheme as it concerned PERB' s authority to assert jurisdiction over a joint powers
agency under EERA or the Board's deferral to the Legislature on this issue. It is more likely
the case that the Legislature viewed the amendment process as a way to correct what it
considered to be an "erroneous" interpretation of EERA by the Board. (Kaufman & Broad
Community, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4 th 26, 39 [legislative
history documents communicated to the Legislature as a whole constitute evidence of
legislative intent]; Guillermin v: Stein (2002) 104 Cal.App.4 	156, 166 [Senate Rules
Committee reports and analyses noticed as cognizable legislative history]; Pacific Gas &
Electric Co. v.. Department of	of Water Resources (2003) 112 Cal.App.4 	477,497 [Office of the
Senate Floor analyses noticed as cognizable legislative history].)
th
Department th
9

resemblance in content or scope to the statutory text defining a public school employer or
employer under the EERA. Without commenting on whether the amendment to the definition
of public school employer or employer in the EERA occasioned by the passage of Assembly
Bill 501 was a clarification of existing law or an expansion, for the reasons described below,
we conclude that the current definition of a public agency under the MMBA is broad enough to
encompass the Authority, a joint powers agency.
Public Transit Districts
The court in Rae v. Bay Area Rapid Transit Supervisory and Professional Association
(1980) 114 Cal.App.3d 147, 150 (Rae) recognized that when the George M. Brown Act
(predecessor to the MMBA) was enacted, other legislation already existed concerning labor
relations for certain public employees, among them the employees of various transit districts.
Relying on MMBA section 3500," the court found that the MMBA was not intended to
"supplant such existing legislation." (Id. at p. 151.) Consequently, transit districts with their
own "statutorily prescribed method of administering employer-employee relations" do not fall
within PERB's jurisdiction under the MMBA. (See, e.g., San Francisco Bay Area Rapid
Transit Dist. v. Superior Court (1979) 97 Cal.App.3d 153, 161, fn. 5 (SF BART) [court found
MMBA not applicable to BART given its own statutorily prescribed method of administering
employer-employee relations under the Public Utilities Code].)
These statutorily prescribed schemes for administering employer-employee relations in
transit districts are generally found in the Public Utilities Code. (See, 	ub. Util. Code,
"Specifically, the court relied on the following language in the MMBA:
Nothing contained herein shall be deemed to supersede the
provisions of existing state law . . . that establish and regulate a
merit or civil service system or which provide for other methods
of administering employer-employee relations.
(MMBA, $ 3500, subd. (a).)
10
resemblance in content or scope to the statutory text defining a public school employer or
employer under the EERA. Without commenting on whether the amendment to the definition
of public school employer or employer in the EERA occasioned by the passage of Assembly
Bill 501 was a clarification of existing law or an expansion, for the reasons described below,
we conclude that the current definition of a public agency under the MMBA is broad enough to
encompass the Authority, a joint powers agency.
Public Transit Districts
The court in Rae v. Bay Area Rapid Transit Supervisory and Professional Association
(1980) 114 Cal.App.3d 147, 150 (Rae) recognized that when the George M. Brown Act
(predecessor to the MMBA) was enacted, other legislation already existed concerning labor
relations for certain public employees, among them the employees of various transit districts.
Relying on MMBA section 3 5 00, 11 the court found that the MMBA was not intended to
"supplant such existing legislation." (Id. at p. 151.) Consequently, transit districts with their
own "statutorily prescribed method of administering employer-employee relations" do not fall
within PERB's jurisdiction under the MMBA. (See, e.g., San Francisco Bay Area Rapid
Transit Dist. v. Superior Court (1979) 97 Cal.App.3d 153, 161, fn. 5 (SF BART) [court found
MMBA not applicable to BART given its own statutorily prescribed method of administering
employer-employee relations under the Public Utilities Code].)
These statutorily prescribed schemes for administering employer-employee relations
transit districts are generally found in the Public Utilities Code. (See,e.g., PPub. Util. Code,
1 Specifically, the court relied on the following language in the MMBA:
Nothing contained herein shall be deemed to supersede the
provisions of existing state law ... that establish and regulate a
merit or civil service system or which provide for other methods
of administering employer-employee relations.
(MMBA, § 3500, subd. (a).)
10

$ 70120 et seq. governing the Marin County Transit District.) Here, the Authority is not a
transit district, let alone a transit district with its own statutorily prescribed method of
administering employer-employee relations. Accordingly, the Authority is not exempt from
coverage under the MMBA on this basis alone.
In response to the unfair practice charge, the Authority filed a position statement in
which it seemingly agreed with this conclusion. The Authority stated:
[The Authority] is a joint powers authority formed pursuant to the
Joint Exercise of Powers Act. Gov. Code $6500 et seq. Transit
operators with their own statutorily prescribed method of
administering employer-employee relations are not subject to the
MMBA. See Rae v. Bay Area Rapid Transit Supervisory Etc.
Assn. (1980) 114 Cal. App. 3d 147, 150-151, 170 Cal. Rptr. 448.
As a joint powers agency, however, [the Authority] does not have
an enabling statute or any statutorily prescribed method of
addressing employer-employee relations. Contra Costa County
and the cities that created [the Authority] all are subject to the
MMBA's jurisdiction.
On appeal, the very opposite is urged." The Authority argues that it is a public transit
district with its own statutory framework for administering labor relations. By statutory
As reported in Local 1605, supra, 73 F.Supp.2d 1117, ATU and individual members
of its negotiating committee sued the Authority 14 years ago in federal district court seeking
compensation for time spent in collective bargaining negotiations during a lawful strike, which
ensued upon the expiration of the parties' 1995-1998 memorandum of understanding and their
failure to reach agreement on new terms. The Authority had compensated plaintiffs for pre-
expiration negotiations conducted during time periods they would not otherwise have been on
duty, but refused to compensate them for negotiations conducted during the strike. During an
approximately two-week long strike, the bus operators refused to report to work and the
Authority cancelled all regularly scheduled public transportation. The parties' negotiations
during the strike resulted in a new three-year agreement and a return to work by the bus
operators. In the litigation, ATU brought two claims against the Authority for unpaid wages in
federal district court, a federal claim under the Fair Labor Standards Act, 29 U.S.C.S. $ 201 et
seq., and a claim under the MMBA pursuant to the court's supplemental jurisdiction over state
law claims. Regarding the latter, the court found that the Authority violated the meet and
confer requirements under MMBA section 3505 by unilaterally changing its policy regarding
compensation for negotiating activity. Observing that the "MMBA governs labor relations for
local public employers throughout California, including [the Authority]," the court proceeded
to discuss, and then reject, the Authority's arguments that it had not violated the MMBA.
(Id. at p. 1 125.) Notably, the Authority argued that compensation for negotiating activities was
a statutory requirement under MMBA section 3505.3 rather than a matter of policy. (Ibid.)
11
§ 70120 et seq. governing the Marin County Transit District.) Here, the Authority is not a
transit district, let alone a transit district with its own statutorily prescribed method of
administering employer-employee relations. Accordingly, the Authority is not exempt from
coverage under the MMBA on this basis alone.
In response to the unfair practice charge, the Authority filed a position statement in
which it seemingly agreed with this conclusion. The Authority stated:
[The Authority] is a joint powers authority formed pursuant to the
Joint Exercise of Powers Act. Gov. Code §6500 et seq. Transit
operators with their own statutorily prescribed method of
administering employer-employee relations are not subject to the
MMBA. See Rae v. Bay Area Rapid Transit Supervisory Etc.
Assn. (1980) 114 Cal. App. 3d 147, 150-151, 170 Cal. Rptr. 448.
As a joint powers agency, however, [the Authority] does not have
an enabling statute or any statutorily prescribed method of
addressing employer-employee relations. 	Contra Costa County
and the cities that created [the Authority] all are subject to the
MMBA's jurisdiction.
On appeal, the very opposite is urged. 12 The Authority argues that it is a public transit
district with its own statutory framework for administering labor relations. By statutory
12As reported in Local 1605, supra, 73 F.Supp.2d 1117, ATU and individual members
of its negotiating committee sued the Authority 14 years ago in federal district court seeking
compensation for time spent in collective bargaining negotiations during a lawful strike, which
ensued upon the expiration of the parties' 1995-1998 memorandum of understanding and their
failure to reach agreement on new terms. The Authority had compensated plaintiffs for pre-
expiration negotiations conducted during time periods they would not otherwise have been on
duty, but refused to compensate them for negotiations conducted during the strike. 	During an
approximately two-week long strike, the bus operators refused to report to work and the
Authority cancelled all regularly scheduled public transportation. The parties' negotiations
during the strike resulted in a new three-year agreement and a return to work by the bus
operators. In the litigation, ATU brought two claims against the Authority for unpaid wages in
federal district court, a federal claim under the Fair Labor Standards Act, 29 U.S.C.S. § 201 et
seq., and a claim under the MMBA pursuant to the court's supplemental jurisdiction over state
law claims. Regarding the latter, the court found that the Authority violated the meet and
confer requirements under MMBA section 3505 by unilaterally changing its policy regarding
compensation for negotiating activity. Observing that the "MMBA governs labor relations for
local public employers throughout California, including [the Authority]," the court proceeded
to discuss, and then reject, the Authority's arguments that it had not violated the MMBA.
(Id. at p. 1125.) Notably, the Authority argued that compensation for negotiating activities was
a statutory requirement under MMBA section 3505.3 rather than a matter of policy. (Ibid.)
11

framework, the Authority is referring to its own EEORR. The Authority's argument is
misplaced for three reasons.
First, "statutory framework" as used by the Authority or "statutorily prescribed
method" as used by the courts, necessarily refers to a framework or method based in statute.
"Statute" is defined as an "act adopted by the Legislature of this State or by the Congress of
the United States, or a statewide initiative act." ($ 811.8.) The Government Code
distinguishes a statute from an enactment, which is defined as "a constitutional provision,
statute, charter provision, ordinance or regulation." ($ 810.6.) While the EEORR may be a
legislative enactment of a local agency, it is not by definition a statute and therefore does not
constitute a statutory framework or statutorily prescribed method for administering labor
relations.
Second, the cases discussed above, Rae and SF BART, are premised on the notion that,
prior to passage of the George M. Brown Act, other legislation already existed governing labor
relations for certain public employees, most notably transit district employees. The import of
these cases was to clarify that the MMBA was not intended to supplant this existing
legislation. Instead, the MMBA and the existing legislation were intended to co-exist as
parallel and independent statutory schemes. As the Authority originally pointed out in its
position statement, the Authority is not a transit district, nor was it created under an enabling
statute of t 	fore, the exemption from coverage
under the MMBA enjoyed by transit districts operating under a statutory scheme that provides
for the administration of labor relations is not available to the Authority.
Absent from the court's discussion of the Authority's arguments was any indication that the
Authority had taken the position that it was not a public agency within the scope of MMBA
coverage, as it does in this matter on appeal. (Id. at pp. 1124-1126.)
12
framework, the Authority is referring to its own EEORR. The Authority's argument is
misplaced for three reasons.
First, "statutory framework" as used by the Authority or "statutorily prescribed
method" as used by the courts, necessarily refers to a framework or method based in statute.
"Statute" is defined as an "act adopted by the Legislature
of
this State or by the Congress
of
the United States, or a statewide initiative act."
(§
811.8.) The Government Code
distinguishes a statute from an enactment, which is defined as
"a
constitutional provision,
statute, charter provision, ordinance or regulation." (§ 810. 6.) While the EEO RR may be a
legislative enactment
of
a local agency, it is not by definition a statute and therefore does not
constitute a statutory framework or statutorily prescribed method for administering labor
relations.
Second, the cases discussed above, Rae and
SF
BART, are premised on the notion that,
prior to passage
of
the George M. Brown Act, other legislation already existed governing labor
relations for certain public employees, most notably transit district employees. The import
of
these cases was to clarify that the MMBA was not intended to supplant this existing
legislation. Instead, the MMBA and the existing legislation were intended to co-exist as
parallel and independent statutory schemes. As the Authority originally pointed out in its
position statement, the Authority is not a transit district, nor was it created under an enabling
statute 	the type found in the Public Utilities Code. 	the exemption from coverage	he type found in the Public Utilities Code. There
under the MMBA enjoyed by transit districts operating under a statutory scheme that provides
for the administration
of
labor relations is not available to the Authority.
Absent from the court's discussion of the Authority's arguments was any indication that the
Authority had taken the position that it was not a public agency within the scope of MMBA
coverage, as it does in this matter on appeal. (Id. at pp. 1124-1126.)
12

Third, the logical extension of the Authority's position on appeal is that any local
agency providing transportation services is necessarily a transit district that automatically
enjoys a blanket exemption from coverage under the MMBA so long as it enacts a set of rules
governing labor relations in its jurisdiction. Neither the MMBA nor the cases interpreting it
support the Authority's current view of labor relations.
The MMBA was enacted 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." ($ 3500; emphasis supplied.) The MMBA makes no
distinction between public agencies that provide transportation services and public agencies
that serve some other function. The stated statutory emphasis is on uniformity. While public
agencies may adopt reasonable rules and regulations for the administration of employee-
employer relations ($ 3507), such local control is permitted only as contemplated by the
MMBA itself and is not a factor in the analysis of jurisdiction.
Therefore, the Authority does not come within the rule that exempts transit districts
with their own statutorily prescribed method for the administration of labor relations from
coverage under the MMBA. As there is nothing to preclude coverage under the MMBA based
on the Authority's status as a provider of transportation services," we now turn to the next
question, which is whether the Authority is a public agency within the meaning of MMBA
section 3501, subdivision (c).
See, e.g., Inlandboatman Union of the Pacific (2007) PERB Decision No. 1919-M
(status of the Golden Gate Bridge, Highway & Transportation District as a provider of
transportation services not a factor in the analysis of whether it is a public agency within the
meaning of the MMBA for purposes of establishing the Board's jurisdiction).
13
Third, the logical extension of the Authority's position on appeal is that any local
agency providing transportation services is necessarily a transit district that automatically
enjoys a blanket exemption from coverage under the MMBA so long as it enacts a set of rules
governing labor relations in its jurisdiction. Neither the MMBA nor the cases interpreting it
support the Authority's current view oflabor relations.
The MMBA was enacted 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." (§ 3500; emphasis supplied.) The MMBA makes no
distinction between public agencies that provide transportation services and public agencies
that serve some other function. The stated statutory emphasis is on uniformity. 	While public
agencies may adopt reasonable rules and regulations for the administration of employee-
employer relations (§ 3507), such local control is permitted only as contemplated by the
MMBA itself and is not a factor in the analysis of jurisdiction.
Therefore, the Authority does not come within the rule that exempts transit districts
with their own statutorily prescribed method for the administration of labor relations from
coverage under the MMBA. As there is nothing to preclude coverage under the MMBA based
on the Authority's status as a provider of transportation services, 13 we now turn to the next
question, which is whether the Authority is a public agency within the meaning of MMBA
section 3501, subdivision (c).
See, e.g., Inlandboatman Union of the Pacific (2007) PERB Decision No. 1919-M
(status of the Golden Gate Bridge, Highway & Transportation District as a provider of
transportation services not a factor in the analysis of whether it is a public agency within the
meaning of the MMBA for purposes of establishing the Board's jurisdiction).
13

Public Agency Under the MMBA
To establish jurisdiction, the Authority must qualify as any one of the enumerated
entities included within the definition of "public agency" in MMBA section 3501,
subdivision (c). It provides:
Except as otherwise provided in this subdivision, "public agency"
means every governmental subdivision, every district, every
public and quasi-public corporation, every public agency and
public service corporation and every town, city, county, city and
county and municipal corporation, whether incorporated or not
and whether chartered or not. As used in this chapter, "public
agency" does not mean a school district or a county board of
education or a county superintendent of schools or a personnel
commission in a school district having a merit system as provided
in Chapter 5 (commencing with Section 45100) of Part 25 and
Chapter 4 (commencing with Section 88000) of Part 51 of the
Education Code or the State of California.
The Authority is a joint powers agency. A joint powers agency is not listed in the above
definition of "public agency" under the MMBA. The question presented is whether the
absence of a specific reference to a joint powers agency in the enumerated list of covered
public entities precludes assertion of the Board's jurisdiction in this matter.
The term "public agency" is used in the definition in two ways. It is first used
generically within quotation marks to refer to all of the individual public entities such as cities
and counties that fall within PERB's MMBA jurisdiction. It is then used again in a more
specific way to capture a certain category of public entities, i.e., "every public agency." The
issue here is whether the Authority is a public agency, referring to the latter usage, within the
broader definition of "public agency."
We are guided in o 	l rule of statutory construction that a
court should ascertain the intent of the Legislature to effectuate the purpose of the law; and if
the language of a statute is clear and unambiguous, then the intent of the Legislature is
14
Public Agency Under the MMBA
To establish jurisdiction, the Authority must qualify as any one of the enumerated
entities included within the definition of "public agency" in MMBA section 3501,
subdivision (c). It provides:
14
Except as otherwise provided in this subdivision, "public agency"
means every governmental subdivision, every district, every
public and quasi-public corporation, every public agency and
public service corporation and every town, city, county, city and
county and municipal corporation, whether incorporated or not
and whether chartered or not. As used in this chapter, "public
agency" does not mean a school district or a county board of
education or a county superintendent of schools or a personnel
commission in a school district having a merit system as provided
in Chapter 5 (commencing with Section 45100) of Part 25 and
Chapter 4 (commencing with Section 88000) of Part 51 of the
Education Code or the State of California.
The Authority is a joint powers agency. A joint powers agency is not listed in the above
definition of "public agency" under the MMBA. The question presented is whether the
absence of a specific reference to a joint powers agency in the enumerated list of covered
public entities precludes assertion of the Board's jurisdiction in this matter.
The term "public agency" is used in the definition in two ways. It is first used
generically within quotation marks to refer to all of the individual public entities such as cities
and counties that fall within PERB's MMBAjurisdiction. It is then used again in a more
specific way to capture a certain category of public entities, i.e., "every public agency." 	The
issue here is whether the Authority is a public agency, referring to the latter usage, within the
broader definition of "public agency."
We are guided 	our	ur analysis by the fundamenta	analysis by 	fundamental rule of statutory construction that a
court should ascertain the intent of the Legislature to effectuate the purpose of the law; and if
the language of a statute is clear and unambiguous, then the intent of the Legislature is

reflected in the plain meaning of the statute. (Reid v. Google (2010) 50 Cal.4 512, 527.) As
the Supreme Court explained,
"Under settled canons of statutory construction, in construing a
statute we ascertain the Legislature's intent in order to effectuate
the law's purpose. [Citation.] We must look to the statute's
words and given them "their usual and ordinary meaning.
[Citation.] 'The statute's plain meaning controls the court's
interpretation unless its words are ambiguous.' [Citations.] 'If
the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute's purpose, legislative history, and public policy.
[Citation.]" (Imperial Merchant Services, Inc. v. Hunt (2009)
47 Cal.4" 381, 387-388 [97 Cal.Rptr.3d 464, 212 P.3d 736.].)
(Ibid.)
The purpose and intent of the MMBA is set forth as follows: (1) to promote full
communication between public employers and their employees by providing a method of
dispute resolution regarding wages, hours and other terms and conditions of employment
between public employers and public employee organizations; (2) to promote the improvement
of personnel management and employer-employee relations within the various public agencies
in the State of California; and (3) to provide a uniform basis for recognizing the right of pubic
employees to organize and be represented in their employment relationships with public
agencies. ($ 3500, subd. (a).)
The sweeping nature of the definition of public agency is consistent with the
Legislature's declaration of purpose and intent to provide public employees and public
employers in the State of California with a uniform system for collective bargaining and
mechanism for dispute resolution. As the Board has previously stated, "[on its face, the
MMBA's definition of 'public agency' is a broad one." (Public Transportation Services
Corporation (2004) PERB Decision No. 1637-M.)
In determining whether the definition of public agency in the MMBA is broad enough
to cover a joint powers agency, it is instructive to consider how the status of a joint powers
15
reflected in the plain meaning of the statute. (Reid v. Google (2010) 50 Cal.4 th 512, 527.) As
the Supreme Court explained,
"Under settled canons of statutory construction, in construing a
statute we ascertain the Legislature's intent in order to effectuate
the law's purpose. 	[Citation.] 	We must look to the statute's
words and given them 'their usual and ordinary meaning.'
[Citation.] 	'The statute's plain meaning controls the court's
interpretation unless its words are ambiguous.' 	[Citations.] 	'If
the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute's purpose, legislative history, and public policy.'
[Citation.]" (Imperial Merchant Services, Inc. v. Hunt (2009)
47 Cal.4 th 381, 387-388 [97 Cal.Rptr.3d 464,212 P.3d 736.].)
(Ibid.)
The purpose and intent of the MMBA is set forth as follows: 	(1) to promote full
communication between public employers and their employees by providing a method of
dispute resolution regarding wages, hours and other terms and conditions of employment
between public employers and public employee organizations; (2) to promote the improvement
of personnel management and employer-employee relations within the various public agencies
in the State of California; and (3) to provide a uniform basis for recognizing the right of pubic
employees to organize and be represented in their employment relationships with public
agencies. (§ 3500, subd. (a).)
The sweeping nature of the definition of public agency is consistent with the
Legislature's declaration of purpose and 	to provide public employees and public
employers in the State of California with a uniform system for collective bargaining and
mechanism for dispute resolution. 	the Board has previously stated, "[ o )nits face,
MMBA's definition of 'public agency' is a broad one." (Public Transportation Services
Corporation (2004) PERB Decision No. 1637-M.)
In determining whether the definition of public agency in the MMBA is broad enough
to cover a joint powers agency, it is instructive to consider how the status of a joint powers
15

agency is treated under state law. Questions regarding the organization of government and the
status of local agencies are addressed, as might be expected, in the Government Code. Under
title 5 (Local Agencies) of division 2 (Cities, Counties and Other Agencies) of the Government
Code, section 53050 defines "public agency" as "district, public authority, public agency, and
any other political subdivision or public corporation in the state, but does not include the state
or a county, city and county, or city."
Section 53051 requires the governing body of every public agency to file with the
Secretary of State a "statement of public agency." The Secretary of State is required to
maintain this information in an indexed Roster of Public Agencies. As mentioned in
footnote 4, ante, the Authority is identified as a public agency in the Secretary of State's
Roster of Public Agencies. That the Authority is treated by the Secretary of State as a public
agency in terms of its basic organizational structure lends further support to the notion that the
Authority is a public agency for purposes of establishing jurisdiction under the MMBA.
Like the definition of public agency in MMBA section 3501, subdivision (c),
section 53050 uses the term public agency in both a generic and a specific fashion. Similarly,
despite the absence of the term joint powers agency in section 53050, joint powers agencies are
not relieved from their duty to file a statement of public agency with the Secretary of State
under section 53051, as demonstrated by the Authority's compliance with the roster
procedures. By including the term public agency as a specific category within the umbrella of
public agencies captured in both definitions, that category must be seen as including an entity,
regardless of whatever other designation it 	have, w 	has achieved the status of a public
agency whether by constitutional provision or statute, case law or administrative precedent, or
analysis into the public nature of its operations and characteristics unless to do so would
violate the letter, purpose or spirit of the law.
16
agency is treated under state law. Questions regarding the organization of government and the
status of local agencies are addressed, as might be expected, in the Government Code. 	Under
title 5 (Local Agencies) of division 2 (Cities, Counties and Other Agencies) of the Government
Code, section 53050 defines "public agency" as "district, public authority, public agency, and
any other political subdivision or public corporation in the state, but does not include the state
or a county, city and county, or city."
Section 53051 requires the governing body of every public agency to file with the
Secretary of State a "statement of public agency." The Secretary of State is required to
maintain this information in an indexed Roster of Public Agencies. As mentioned in
footnote 4, ante, the Authority is identified as a public agency in the Secretary of State's
Roster of Public Agencies. That the Authority is treated by the Secretary of State as a public
agency in terms of its basic organizational structure lends further support to the notion that the
Authority is a public agency for purposes of establishing jurisdiction under the MMBA.
Like the definition of public agency in MMBA section 3501, subdivision (c ),
section 53050 uses the term public agency in both a generic and a specific fashion. 	Similarly,
despite the absence of the term joint powers agency in section 53050, joint powers agencies are
not relieved from their duty to file a statement of public agency with the Secretary of State
under section 53051, as demonstrated by the Authority's compliance with the roster
procedures. 	By including the term public agency as a specific category within the umbrella of
public agencies captured in both definitions, that category must be seen as including an entity,
regardless of whatever other designation it 	have, 	has achieved the status of a public	may 	hich
agency whether by constitutional provision or statute, case law or administrative precedent, or
analysis into the public nature of its operations and characteristics unless to do so would
violate the letter, purpose or spirit of the law.
16

The dissent takes issue with the majority's reliance on the Authority's Filing in the
Secretary of State's Roster of Public Agencies, arguing that nothing in the history of
section 53051 indicates that an agency's inclusion on the roster means that the agency falls
within the definition of public agency for all purposes. The dissent suggests that the purpose
of section 53051 is limited to determining the applicable claims procedure under the California
Tort Claims Act, relying on the California Supreme Court opinion in Tubbs v. Southern
California Rapid Transit Dist. (1967) 67 Cal.2d 671 (Tubbs). As the dissent points out, the
Court in Tubbs stated that the purpose of Section 53051 is to "provide a means for identifying
public agencies and the names and addresses of designated officers needed to enable or assist a
person to comply with any applicable claims procedure."
Ten years after Tubbs, the California Supreme Court decided Wilson v. San Francisco
Redevelopment Agency (1977) 19 Cal.3d 555 (Wilson), which discussed the quote from Tubbs
relied on by the dissent. The Court held:
Our identification, in Tubbs, of the purpose of section 53051, has
been criticized on the basis that "The dominant purpose of the
roster procedure is to provide reliable information about local
public agencies and thus facilitate service of process on them.
[Citation.] Relieving plaintiffs of the claims presentation
requirements may thus be viewed chiefly as an incentive by
public entities to comply with the roster filing provisions, rather
than a protection solely for those who failed to present timely
claims. By diluting the incentive, Tubbs appears to have watered
down the purpose of the roster device as well." (Van Alstyne,
Cal. Government Tort Liability (Cont.Ed. Bar Supp. 1969, supra,
p. 94.) Accepting, as we may, the proposition that the purposes
of section 53051 may be multiple, we nonetheless find Tubbs
clearly distinguishable . . . .
(Id. at p. 562.)
Based on the above, we disagree with the dissent that Section 53051 has no purpose
outside the context of the California Tort Claims Act. As the Supreme Court stated in Wilson,
the roster procedure under Section 53051 has multiple purposes, the dominant of which is to
17
The dissent takes issue with the majority's reliance on the Authority's Filing in the
Secretary of State's Roster of Public Agencies, arguing that nothing in the history of
section 53051 indicates that an agency's inclusion on the roster means that the agency falls
within the definition of public agency for all purposes. The dissent suggests that the purpose
of section 53051 is limited to determining the applicable claims procedure under the California
Tort Claims Act, relying on the California Supreme Court opinion in Tubbs v. Southern
California Rapid Transit Dist. (1967) 67 Cal.2d 671 (Tubbs). 	As the dissent points out, the
Court in Tubbs stated that the purpose of Section 53051 is to "provide a means for identifying
public agencies and the names and addresses of designated officers needed to enable or assist a
person to comply with any applicable claims procedure."
Ten years after Tubbs, the California Supreme Court decided Wilson v. San Francisco
Redevelopment Agency (1977) 19 Cal.3d 555 (Wilson), which discussed the quote from Tubbs
relied on by the dissent. The Court held:
(Id at p. 562.)
Our identification, in Tubbs, of the purpose of section 53051, has
been criticized on the basis that "The dominant purpose of the
roster procedure is to provide reliable information about local
public agencies and thus facilitate service of process on them.
[Citation.] Relieving plaintiffs of the claims presentation
requirements may thus be viewed chiefly as an incentive by
public entities to comply with the roster filing provisions, rather
than a protection solely for those who failed to present timely
claims. By diluting the incentive, Tubbs appears to have watered
down the purpose of the roster device as well." (Van Alstyne,
Cal. Government Tort Liability (Cont.Ed.Bar Supp. 1969, supra,
p. 94.) Accepting, as we may, the proposition that the purposes
of section 53051 may be multiple, we nonetheless find Tubbs
clearly distinguishable ....
Based on the above, we disagree with the dissent that Section 53051 has no purpose
outside the context of the California Tort Claims Act. 	As the Supreme Court stated in Wilson,
the roster procedure under Section 53051 has multiple purposes, the dominant of which is to
17

provide the public with reliable identifying information about "local public agencies." (Ibid.)
While we agree with the dissent that the roster procedure serves no express purpose under the
MMBA, we see no conflict or cross-purposes in considering the Authority's inclusion on the
Roster of Public Agencies in our overall analysis of whether the Authority is a local public
agency under the MMBA.
The dissent also relies on Alcala v. City of Corcoran (2007) 147 Cal. App.4th 666
(Alcala) to support the argument that the definition of public agency for purposes of the roster
procedure is limited to the article in the Government Code in which it appears. The dissent
correctly states that the court in Alcala held that the exclusion of cities from the definition of
public agency under Section 53050 did not preclude a finding that a city is a public agency
under the Vehicle Code. The dissent relies on the following quote from Alcala:
"[Section 53050] does not pretend to define the term for use in all statutes." (Id. at p. 670.)
Alcala is distinguishable. In Alcala, the appellant relied on the definition of public agency in
Section 53050 to argue that a city was not a "public entity" entitled to immunity under Vehicle
Code section 17004.7. The court rejected that argument, finding that the terms public entity
and public agency were used interchangeably in the governing Vehicle Code statutory scheme;
that the current and former definitions of public agency and public entity in Vehicle Code
section 1700 included cities; and, that these definitions had always been designated as applying
to the entire 	re was no reason to look to the more
restrictive definition of public agency found in Section 53050 when there were broader
definitions found within the controlling statutory scheme. The court held that "applying this
restrictive definition . . . would undermine the expressed intent of the Legislature" to increase
the immunity from liability for suspect-caused accidents and resulting lawsuits, which is
afforded public entities who employ law enforcement officers. (Id. at pp. 672-673.)
18
provide the public with reliable identifying information about "local public agencies." (Ibid.)
While we agree with the dissent that the roster procedure serves no express purpose under the
MMBA, we see no conflict or cross-purposes in considering the Authority's inclusion on the
Roster of Public Agencies in our overall analysis of whether the Authority is a local public
agency under the MMBA.
The dissent also relies on Alcala v. City of Corcoran (2007) 147 Cal.App.4 th 666
(Alcala) to support the argument that the definition of public agency for purposes of the roster
procedure is limited to the article in the Government Code in which it appears. The dissent
correctly states that the court in Alcala held that the exclusion of cities from the definition of
public agency under Section 53050 did not preclude a finding that a city is a public agency
under the Vehicle Code. The dissent relies on the following quote from Alcala:
"[Section 53050] does not pretend to define the term for use in all statutes." (Id. at p. 670.)
Alcala is distinguishable. In Alcala, the appellant relied on the definition of public agency in
Section 53050 to argue that a city was not a "public entity" entitled to immunity under Vehicle
Code section 17004.7. The court rejected that argument, finding that the terms publicentity
and public agency were used interchangeably in the governing Vehicle Code statutory scheme;
that the current and former definitions of public agency and public entity in Vehicle Code
section 1700 included cities; and, that these definitions had always been designated as applying
to the 	chapter. The court concluded 	was no reason to look to the more	chapter. The court concluded that the
restrictive definition of public agency found in Section 53050 when there were broader
definitions found within the controlling statutory scheme. The court held that "applying
restrictive definition ... would undermine the expressed intent of the Legislature" to increase
the immunity from liability for suspect-caused accidents and resulting lawsuits, which is
afforded public entities who employ law enforcement officers. (Id. at pp. 672-673.)
18

Here, by contrast, the MMBA does not provide definitions for the individual types of
public entities enumerated within the broader definition of "public agency" contained in
MMBA section 3501, subdivision (c). In determining whether a local public entity falls within
the sub-category of "every public agency" within the broader definition of "public agency" in
the MMBA, there is nothing that precludes this Board from considering the roster procedure
under Section 53051, or any other relevant fact or legal principle, as an interpretative tool.
Applying the underlying rationale in Alcala, the expressed intent of the Legislature in enacting
the MMBA would be further served, not undermined, in asserting jurisdiction over the
Authority in this matter. There is no reason discerned from the MMBA for treating the
Authority, a joint powers agency, differently for labor relations purposes than other local
public entities.
As a joint powers agency, the Authority operates pursuant to the Joint Exercise of
Powers Act (JEPA)." JEPA "provides a means by which governmental agencies may join
together to accomplish goals that they could not accomplish alone, or that they might more
efficiently and more effectively accomplish together." (Robings v. Santa Monica Mountains
Conservancy (2010) 188 Cal.App.4 952, 962 (Robings).)
Under JEPA, two or more "public agencies," when authorized by their governing
bodies, may enter into an agreement to exercise jointly any power common to them. ($ 6502.)
An administering agency provided for by a joint powers agreement to jointly exercise these
common powers is a "public entity separate from the parties to the agreement." ($ 6507.)
Under the common powers 	he powers that may be exercised by a joint powers agency
can be no greater than the powers shared by each of the agency's constituent members."
T The JEPA is codified at section 6500 et seq.
19
Here, by contrast, the MMBA does not provide definitions for the individual types
of
public entities enumerated within the broader definition
of
"public agency" contained
in
MMBA section 3501, subdivision (c). In determining whether a local public entity falls within
the sub-category
of
"every public agency" within the broader definition
of
"public agency" in
the MMBA, there is nothing that precludes this Board from considering the roster procedure
under Section 53051, or any other relevant fact or legal principle, as an interpretative tool.
Applying the underlying rationale in Alcala, the expressed intent
of
the Legislature in enacting
the MMBA would be further served, not undermined, in asserting jurisdiction over the
Authority in this matter. 	There is no reason discerned from the MMBA for treating the
Authority, a joint powers agency, differently for labor relations purposes than other local
public entities.
As a joint powers agency, the Authority operates pursuant to the Joint Exercise
of
Powers Act (JEPA).14
JEPA "provides a means by which governmental agencies may
join
together to accomplish goals that they could not accomplish alone, or that they might
more
efficiently and more effectively accomplish together." (Robings
v.
Santa Monica Mountains
Conservancy (2010) 188 Cal.App.4
th
952, 962 (Robings).)
Under JEP A, two or more "public agencies," when authorized by their governing
bodies, may enter into an agreement to exercise jointly any power common to them. (§ 6502.)
An administering agency provided for by a joint powers agreement to jointly exercise these
common powers is a "public entity separate from the parties to the agreement." (§ 6507.)
Under the common powers rule, "t"the powers that may be exercised by a joint powers agency
can be no greater than the powers shared by each
of
the agency's constituent members."
14
The JEP A is codified at section 6500 et seq.
19

20
(Robings.) Any joint powers authority formed pursuant to a joint powers agreement, such as
the Authority, is deemed to be a "public agency" in its own right. 	(§ 6500.)
The primary common power exercised by the Authority under the Agreement is the
power to contract for and/or operate a public transportation system. 	The Authority also
exercises the common power to claim, receive and expend all forms of regionally-allocated
state or federal grants or sources of revenue available to member jurisdictions for the purpose
of providing public transportation within their service area. While the powers exercised by the
Authority are no different than the powers common to the individual member jurisdictions, the
Agreement allows these powers to be exercised jointly in order to provide the central County
with one regional public transportation system, rather than 11 smaller ones. 	Presumably, this
is done to achieve certain operational efficiencies and economies of scale.
The Authority takes issue with ATU' s argument that because the signatories to the
Agreement are themselves public agencies as defined by MMBA section 3501, subdivision (c),
then, by extension, so too should the Authority be deemed a public agency. 	The Authority is
correct to point out that the entity created by a joint powers agreement to administer the
agreement is considered an entity separate from the parties to the agreement under
section 6507 of the JEPA. 	With its reliance on the JEPA, however, the Authority must then
grant that the entity so created is, in its own right, a "public agency" under Section 6500.
While it is true that the Authority is a separate entity from the signatories to the
Agreement, the fact that the signatories are cities and a county and therefore all fall within the
of public agency 	MMBA section 3501, subdivision (c), is significant for a
different point. Under the legal maxim of noscitur a sociis, which means "it is known from
its associates,"15 courts will treat a list or catalogue of items in a statute as referring to
15 81 Ops.Cal.Atty.Gen. 213,215 (1998).
20

"items similar in nature and scope." (Moore v. California State Bd. Of Accountancy (1992)
2 Cal.4th 999, 1011-1012.)
Because the Authority is empowered only to exercise powers common to the
Authority's constituent members, the Authority is similar to the constituent members in terms
of the nature and scope of its governmental powers. The constituent members are subject to
the MMBA because they fall within a list of covered public agencies. To the extent the list is
intended to refer to "items similar in nature and scope," finding the Authority to also fall
within the list is consistent with the legal maxim, noscitur a sociis.
The Authority also argues that because the JEPA was enacted in 1949 prior to
enactment of the MMBA, the Legislature could have expressly included joint powers agencies
within the definition of public agency in MMBA section 3501, subdivision (c), but chose not to
do so. The Authority relies on the rule of statutory construction that provides that had the
Legislature so intended, the Legislature would have so stated. (Ventura County Retired
Employees' Assn. v. County of Ventura (1991) 228 Cal.App.3d 1594, 1598.) In enacting the
MMBA, however, it was unnecessary for the Legislature to have so stated because
Section 6500 of the JEPA had already statutorily designated a joint powers authority to be a
public agency.6
Based on the foregoing, we conclude that the Authority is a public agency within the
broader definition of public agencies encompassed by MMBA section 3501, subdivision (c),
and therefore the Board may assert its jurisdiction over the Authority in this matter. 	so
t also bears mention that according to 	uthority's argument, the Legislature also
could have expressly exempted joint powers agencies from the operation of the MMBA, as it
did with school districts, boards, superintendents and personnel commissions and the state in
MMBA section 3501, subdivision (c), and with superior courts in MMBA section 3501.5. It
could be argued that the failure of the Legislature to exempt joint powers agencies from the
operation of the MMBA, as it did with these other entities, meant that the Legislature intended
to include them. Exceptions in a statute are to be narrowly construed. (Club Members for an
Honest Election v. Sierra Club (2008) 45 Cal.4 309, 316.)
21
"items similar in nature and scope." (Moore v. California State Bd. Of Accountancy (1992)
2 Cal.4 th 999, 1011-1012.)
Because the Authority is empowered only to exercise powers common to the
Authority's constituent members, the Authority is similar to the constituent members in terms
of the nature and scope of its governmental powers. 	The constituent members are subject to
the MMBA because they fall within a list of covered public agencies. To the extent the list is
intended to refer to "items similar in nature and scope," finding the Authority to also fall
within the list is consistent with the legal maxim, noscitur a sociis.
The Authority also argues that because the JEP A was enacted in 1949 prior to
enactment of the MMBA, the Legislature could have expressly included joint powers agencies
within the definition of public agency in MMBA section 3501, subdivision (c), but chose not to
do so. The Authority relies on the rule of statutory construction that provides that had the
Legislature so intended, the Legislature would have so stated. (Ventura County Retired
Employees' Assn. v. County of Ventura (1991) 228 Cal.App.3d 1594, 1598.) In enacting the
MMBA, however, it was unnecessary for the Legislature to have so stated because
Section 6500 of the JEPA had already statutorily designated a joint powers authority to be a
public agency. 16
Based on the foregoing, we conclude that the Authority is a public agency within the
broader definition of public agencies encompassed by MMBA section 3501, subdivision (c),
and therefore the Board may assert its jurisdiction over the Authority in this matter. In so
1 IIt also bears mention that according to the A	Authority's argument, the Legislature also
could have expressly exempted joint powers agencies from the operation of the MMBA, as it
did with school districts, boards, superintendents and personnel commissions and the state in
MMBA section 3501, subdivision (c), and with superior courts in MMBA section 3501.5. It
could be argued that the failure of the Legislature to exempt joint powers agencies from the
operation of the MMBA, as it did with these other entities, meant that the Legislature intended
to include them. Exceptions in a statute are to be narrowly construed. (Club Members for an
Honest Election v. Sierra Club (2008) 45 Cal.4 th 309, 316.)
21

concluding, we reject the Authority's claim that the Board's assertion ofjurisdiction would
violate the rule of statutory construction, expressio unius est exclusio alterius, which provides
that where a statute enumerates things upon which it is to operate, it is to be construed as
excluding from its effect all those not expressly mentioned. (Capistrano Union High School
Dist. v. Capistrano Beach Acreage Co. (1961) 188 Cal.App.2d 612, 617.) This rule does not
apply because the statute's enumeration of entities subject to the MMBA expressly mentions
"every public agency" of which a joint powers agency is a type.
Similarly, the decision herein does not enlarge the Board's jurisdiction beyond that
which is contemplated by the statute, as also argued by the Authority. We simply rely on the
plain meaning rule to interpret "every public agency" as including the Authority. This
interpretation reflects the Legislature's intent, as expressed in MMBA section 3500, to provide
public employees and public employers in the State of California with a uniform framework
for collective bargaining and a mechanism for dispute resolution.
Hawkins County
The conclusion reached above relies on the "every public agency" part of the definition
of public agency in MMBA section 3501, subdivision (c), in finding that the Authority is
subject to the MMBA. The definition of public agency in MMBA section 3501,
subdivision (c), also includes "every governmental subdivision." Contrary to the conclusion
reached by the Office of 	General Counsel, we find that 	Authority is a governmental
subdivision, in addition to a public agency, as an alternate ground for establishing 	Board's
jurisdiction.
In determining whether an entity is a governmental subdivision and therefore subject to
theMMBA, 	has relied on an analysis developed under federal law for determining
whether an entity is exempt from the NLRA. The NLRA expressly excludes from coverage
"any State or political subdivision thereof." (29 U.S.C. § 152, subd. (2).) Under the test
22

developed by the National Labor Relations Board (NLRB) and endorsed by the Unites States
Supreme Court in Hawkins County, supra, 402 U.S. 600, 17 an entity will be found to be a
political subdivision of a state if it meets the following test: 	( 1) it is created directly by the
state, so as to constitute a department or administrative arm of the government; or (2) it is
administered by individuals who are responsible to public officials or to the general electorate.
The Hawkins County test is written in the disjunctive and therefore it would appear that an
entity need only meet one prong of the test in order to be found to be a public sector employer
exempt from coverage. Although the Court in Hawkins County found federal law controlling
in determining whether an entity is exempt from coverage, it agreed with the NLRB that state
statutory declarations and interpretations are to be given "careful consideration." (Id. at
pp. 602-603.) Broadly stated, the Hawkins County test is designed to distinguish private sector
employers covered under NLRA from exempt public sector employers.
Under the first prong of the Hawkins County test, the NLRB looks at the entity that acts
as the employer of the employees at issue and if the employing entity was established by
private parties rather than a public body, and without any state enabling action or intent, the
Board will deem the first prong to be unmet. (See, e.g., Research Foundation of the City
University of New York (2002) 337 NLRB 965, 968.) Here, the Authority was created by state
statute to be a public agency authorized to exercise public powers common to its constituent
public agency members. It was established through agreement by local public
providing a public transportation system for all the constituent member jurisdictions, the
17 In interpreting the MMBA, PERB may look to NLRA precedent to the extent it
relates to an analogous principle imbedded in the statute. (Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608, 616-617; see El Camino Hospital District (2009) PERB
Decision No. 2033-M [using the Hawkins County analysis as guidance, hospital found to be a
public entity subject to MMBA where five out of six hospital board members were public
officials]; see also Options For Youth-Victor Valley, Inc. (2004) PERB Decision No. 1701.)
23

Authority is carrying out a governmental function. 18 Accordingly, under the first prong of the
Hawkins County test, the Authority is an entity created directly by state law so as to constitute
an arm of government.
Under the second prong of the Hawkins County test, the NLRB examines various
factors of the entity's operations and characteristics bearing on the entity's relationship to the
state to determine whether the entity has the attributes commonly associated with public
bodies. (Hawkins County, supra, 402 U.S. 600, 604-605.) Here, the Authority is administered
by a governing Board of Directors. Each member jurisdiction appoints a Director to serve on
the board for a two year term of office to represent its member jurisdiction. A Director may be
replaced by the appointing member jurisdiction. In that event, the Director being replaced
ceases to represent the appointing member jurisdiction and the appointing member jurisdiction
must appoint a new Director to serve the unexpired balance of the outgoing Director's term of
office. 	Because Directors, even if they are private citizens, are appointed and subject to
removal by the city and county member jurisdictions that make up the Authority, the Authority
is administered by individuals who are responsible to public officials or to the general
electorate under the second prong of the Hawkins County test. (See Wheaton, supra, 559 F.3d
979, 985 [in case interpreting the Longshore and Harbor Workers' Compensation Act using the
Hawkins County analysis, court held that "[a]ppointment of the governing board by elected
officials favors the conclusion that the entity is a subdivision of the state"].)
Additionally, regular meetings of the Board of Directors are subject to the open
meeting and 	requirements of 	Ralph M. 	Act, section 54950 et seq.
participate in CalPERS, a state sponsored pension system, and obtain medical benefits through
18 	th
In Wheaton v. Golden Gate Bridge, Highway & Transportation Dist. (9 	Cir. 2009)
559 F.3d 979, 985 (Wheaton), for example, the court found: 	"The District manages a bridge,
including the highway that goes over it. It also manages public transportation by bus and ferry.
These are governmental functions."
24

PEMHCA. 19 Actions taken by the Authority are by way of legislative resolutions. 	(See, e.g.,
the EEORR.) The Authority can issue bonds in its own name to finance public capital
improvements(§ 6540 et seq.) and its status under state law is that of a "public agency."20
These characteristics lend further support to our conclusion regarding the second prong of the
Hawkins County test.
Accordingly, under the analysis set forth in Hawkins County, the Authority would be
considered "any State or political subdivision thereof" under the NLRA exemption and, by
logical extension, a governmental subdivision under the MMBA. Several federal courts that
have considered similar issues concerning the status of regional transportation authorities
under the NLRA exemption for political subdivisions have reached the same conclusion. 	(See,
e.g., Moir v. Greater Cleveland Regional Transit Authority (6 th Cir. 1990) 895 F.2d 266, 271
[in case involving an authority created by state statute authorizing local entities to create transit
authorities and specifically designating such authority to be a "political subdivision," the court
held"[ w]hile state law declarations of an entity's public purpose are not controlling, when
considered along with [the authority's] operations and administration, such a declaration
weighs heavily in favor of finding that [the authority] is a 'political subdivision"']; Crilly v.
Southeastern Pennsylvania Transportation Authority (3 rd Cir. 1976) 529 F.2d 1355 [authority
created by the Pennsylvania Legislature to exercise certain public powers and governed by a
board appointed by elected officials falls 	definition of political subdivision]; Jacobs v.
Ohio Valley Regional Transportation Authority (N.D. W. Va. 1986) 636 	Supp. 841 [public
19 The purpose of PEMHCA is, in part, to "[e]nable the state to attract and retain
qualified employees by providing health benefit plans similar to those commonly provided in
private industry."(§ 22751, subd. (b).).
20 The Authority may also be found responsible as a public entity for injury caused by a
dangerous condition of its property under the California Torts Claims Act's provisions
concerning government tort liability. (See Bonanno v. Central Contra Costa Transit Authority
(2003) 30 Cal.4 th 139.)
25

corporation created under the Urban Mass Transportation Authority Act managed by a board
appointed by governing bodies of participating governments falls within definition of political
sub di vision].)
CONCLUSION
We hereby conclude that the Authority, a joint powers agency, is not a transit district
ith its own statutorily prescribed method of administering labor relations and therefore it is
ot exempt from the application of the MMBA. The Authority is a "public agency" within the
eaning of MMBA section 3501, subdivision (c ), based on its status as a public entity falling
ithin the sub-category of "every public agency" and its status as a governmental subdivision
nder the Hawkins County test. Accordingly, the Board has jurisdiction over the Authority in
is matter, and the Office of the General Counsel i.uay proceed to process the charge.
w
n
m
w
u
th
ORDER
The Public Employment Relations Board hereby REMANDS this case to the Office of
the General Counsel for investigation of the underlying allegations in the unfair practice charge
in Case No. SF-CE-711-M.
Member Huguenin joined in this Decision.
Member Dowdin Calvillo's dissent begins on page 27.
26

DOWDIN CALVILLO, Member: I respectfully dissent. In my view, the majority
decision in this case represents an unwarranted expansion of the Public Employment Relations
Board's (PERB or Board) jurisdiction beyond that vested in it by the Legislature. As noted by
the majority, PERB has only such jurisdiction and powers as have been conferred on it by
statute. (North Orange County Regional Occupational Program (1990) PERB Decision No. 857
(North Orange County).) Applying this principle, in North Orange County, the Board held that,
under the Educational Employment Relations Act (EERA), it had no jurisdiction to rule on the
appropriateness of a proposed bargaining unit of employees of a regional occupational program
operated by a joint powers agreement between five school districts. In so doing, the Board
overruled its prior decision in Joint Powers Board of Directors, Tulare County Organization for
Vocational Education, Regional Occupational Center and Program (1978) PERB Decision
No. 57, in which it had found that a similar regional occupational center operated by a joint
powers agency (JPA) was a public school employer or an employer covered under EERA. Thus,
the Board held that it lacked the authority to resolve the dispute before it unless or until the
Legislature amended the governing statute to include programs operated by a JPA within the
definition of a public school employer. (North Orange County, citing Hacienda La Puente
Unified School District (1988) PERB Decision No. 685 [the Board is without power to expand
the scope of its own jurisdiction where the Legislature has failed to provide that authority].)
direct response to North Orange County, the Legislature amended EERA to expressly include
JPAs within the definition of "public school employer" or "employer" unde
section 3540.1 (k).
27
DOWD IN CALVILLO, Member: I respectfully dissent. In my view, the majority
decision in this case represents an unwarranted expansion
of
the Public Employment Relations
Board's (PERB or Board) jurisdiction beyond that vested in it by the Legislature. As noted by
the majority, PERB has only such jurisdiction and powers as have been conferred on it by
statute. (North Orange County Regional Occupational Program (1990) PERB Decision No. 857
(North Orange County).) Applying this principle, in North Orange County, the Board held that,
under the Educational Employment Relations Act (EERA), it had no jurisdiction to rule on the
appropriateness
of
a proposed bargaining unit
of
employees
of
a regional occupational program
operated by a joint powers agreement between five school districts. In so doing, the Board
overruled its prior decision in Joint Powers Board
of
Directors, Tulare County Organization for
Vocational Education, Regional Occupational Center and Program (1978) PERB Decision
No. 57, in which it had found that a similar regional occupational center operated by a joint
powers agency (JPA) was a public school employer or an employer covered under EERA. Thus,
the Board held that it lacked the authority to resolve the dispute before it unless or until the
Legislature amended the governing statute to include programs operated by a JP A within the
definition
of
a public school employer. (North Orange County, citing Hacienda La Puente
U11ified
School District (1988) PERB Decision No. 685 [the Board is without power to expand
the scope
of
its own jurisdiction where the Legislature has failed to provide that authority].) In
direct response to North Orange County, the Legislature amended EERA to expressly include
JP As within the definition of "public school employer" or "employer" under	r EERA
section 3540. l(k).
27

I find this case legally indistinguishable.' In the absence of statutory language giving
PERB jurisdiction over JPAs, PERB has no authority to expand its jurisdiction over such
entities." Instead, I would find that if the Legislature intended to include JPAs within the scope
of the MMBA, it would have done so expressly, as it did with EERA following the issuance of
the Board's decision in North Orange County.
I further disagree with the majority's reliance on the fact that the Central Contra Costa
Transit Authority (Authority) is listed on the Secretary of State's Roster of Public Agencies
(Roster) in support of its finding that the Authority is a public agency for purposes of PERB's
jurisdiction under the Meyers-Milias-Brown Act (MMBA). The Roster was established in
conjunction with legislation governing the filing of claims with public entities as a prerequisite to
bringing suit under the California Tort Claims Act. (Tubbs v. Southern California Rapid Transit
Dist. (1967) 67 Cal.2d 671 (Tubbs).) Government Code section 53051 requires public agencies,
as defined in Section 53050, to file specified information with the Secretary of State and for the
Secretary of State and county clerks to maintain the Roster. The purpose of Section 53051 is to
"provide a means for identifying public agencies and the names and addresses of designated
officers needed to enable or assist a person to comply with any applicable claims procedure."
When interpreting the Meyers-Milias-Brown Act (MMBA), it is appropriate to take
guidance from cases interpreting the National Labor Relations Act and California labor relations
statutes with parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
2 The majority reads the legislative history of the EERA amendment as indicating that the
Legislature intended to correct what it considered to be the Board's erroneous interpretation of
s prior decisions. Notably, however, the Legislature did not make the same
"correction" to the MMBA. Therefore, pursuant to North Orange County, I continue to believe
that PERB lacks authority over JPAs under the MMBA.
I note that the Board has exercised jurisdiction over other transit agencies apparently
operating as JPAs. (See, e.g., Omnitrans (2010) PERB Decision No. 2121-M; Omnitrans (2009)
PERB Decision No. 2030-M.) In those cases, however, the issue of the Board's jurisdiction
under the MMBA was not raised and, therefore, they do not support the conclusion in this case
that the MMBA applies to JPAs. (See San Diego Gas & Electric Co. v. Superior Court (1996)
13 Cal.4th 893, 943 [cases are not authority, of course, for issues not raised and resolved].)
28
I find this case legally indistinguishable. 1 In the absence of statutory language giving
PERB jurisdiction over JP As, PERB has no authority to expand its jurisdiction over such
entities.2 Instead, I would find that if the Legislature intended to include JP As within the scope
of the MMBA, it would have done so expressly, as it did with EERA following the issuance of
the Board's decision in North Orange County. 3
I further disagree with the majority's reliance on the fact that the Central Contra Costa
Transit Authority (Authority) is listed on the Secretary of State's Roster of Public Agencies
(Roster) in support of its finding that the Authority is a public agency for purposes of PERB's
jurisdiction under the Meyers-Milias-Brown Act (MMBA). The Roster was established in
conjunction with legislation governing the filing of claims with public entities as a prerequisite to
bringing suit under the California Tort Claims Act. (Tubbs v. Southern California Rapid Transit
Dist. (1967) 67 Cal.2d 671 (Tubbs).) Government Code section 53051 requires public agencies,
as defined in Section 53050, to file specified information with the Secretary of State and for the
Secretary of State and county clerks to maintain the Roster. The purpose of Section 53051 is to
"provide a means for identifying public agencies and the names and addresses of designated
officers needed to enable or assist a person to comply with any applicable claims procedure."
1 When interpreting the Meyers-Milias-Brown Act (MMBA), it is appropriate to take
guidance from cases interpreting the National Labor Relations Act and California labor relations
statutes with parallel provisions. (Fire Fighters Union v. City a/Vallejo (1974) 12 Cal.3d 608.)
2 The majority reads the legislative history of the EERA amendment as indicating that the
Legislature intended to correct what it considered to be the Board's erroneous interpretation of
law in its prior decisions. Notably, however, the Legislature did not make the same	the law in it
"correction" to the MMBA. Therefore, pursuant to North Orange County, I continue to believe
that PERB lacks authority over JP As under the MMBA.
3 I note that the Board has exercised jurisdiction over other transit agencies apparently
operating as JPAs. (See, e.g., Omnitrans (2010) PERB Decision No. 2121-M; Omnitrans (2009)
PERB Decision No. 2030-M.) In those cases, however, the issue of the Board's jurisdiction
under the MMBA was not raised and, therefore, they do not support the conclusion in this case
that the MMBA applies to JPAs. (See San Diego Gas & Electric Co. v. Superior Court (1996)
13 Cal.4th 893, 943 [cases are not authority, of course, for issues not raised and resolved].)
28

(Tubbs at p. 675.) The failure of an agency to file the information required by Section 53051
relieves a claimant of the obligation to present the claim to the agency as a prerequisite to filing
suit. (Gov. Code, $ 946.4; Tubbs; see also Wilson v. San Francisco Redevelopment Agency
(1977) 19 Cal.3d 555, 560 (Wilson) [substantial noncompliance by the agency with the
requirements of Section 53051 unconditionally excuses the claimant from filing a claim]; Hetzer
v. North San Diego County Transit Dev. Bd. (1980) 112 Cal.App.3d 708 [agency's failure to file
information with the Secretary of State relives claimants from claim presentation requirement].)"
Nothing in the language or history of Section 53051 indicates that an agency's act of filing
information required under Section 53051 was intended to bring such agencies within the
definition of "public agency" for all purposes.
To the contrary, the definition of "public agency" for purposes of the Roster has been
found to be limited to the article in which it appears. (Alcala v. City of Corcoran (2007)
147 Cal.App.4" 666 (Alcala).) That article is found in Division 2, Part 1, Chapter 1, Article 3 of
the Government Code. Article 3, entitled Roster of Public Agencies, consists solely of
Sections 53050 and 53051. Thus, in Alcala, the court held that the exclusion of cities from the
definition of "public agency' under Section 53050 did not preclude a finding that a city was a
"public agency" under the Vehicle Code, stating: "Government Code section 53050's definition
is expressly limited to the article in which it appears by the language, 'as used in this article'; it
does not pretend to define the term for use in all statutes." (Alcala at p. 670.) Similarly,
I respectfully disagree with the majority's suggestion that, under Tubbs and Wilson, the
determination of PERB's MMBA jurisdiction is one of the "multiple purposes" served by
compliance with the Roster requirements of Section 53051. The language from Wilson quoted
by the majority expresses concern over "diluting" the incentive for public agencies to comply
with the roster filing provisions, rather than providing "protection solely for those who failed to
present timely claims." (Wilson at p. 562.) While protection for claimants may have been one of
the "multiple purposes" of Section 53051, nothing in the case law or the legislative history
among such purposes.
29
(Tubbs at p. 675.) The failure
of
an agency to file the information required by Section 53051
relieves a claimant
of
the obligation to present the claim to the agency as a prerequisite to filing
suit. (Gov. Code, § 946.4; Tubbs; see also Wilson
v.
San Francisco Redevelopment Agency
(1977)
19
Cal.3d 555,560 (Wilson) [substantial noncompliance by the agency with the
requirements
of
Section 53051 unconditionally excuses the claimant from filing a claim]; Hetzer
v.
North San Diego County Transit Dev. Bd. (1980) 112 Cal.App.3d 708 [agency's failure to file
information with the Secretary
of
State relives claimants from claim presentation requirement].
)4
Nothing in the language or history
of
Section 53051 indicates that an agency's act
of
filing
information required under Section 53051 was intended to bring such agencies within the
definition
of
"public agency" for all purposes.
To the contrary, the definition
of
"public agency" for purposes
of
the Roster has been
found to be limited to the article in which it appears. (Alcala
v.
City
of
Corcoran (2007)
147 Cal.App.4
th
666 (Alcala).) That article is found in Division 2, Part
1,
Chapter
1,
Article 3
of
the Government Code. Article 3, entitled Roster
of
Public Agencies, consists solely
of
Sections 53050 and 53051. Thus, in Alcala, the court held that the exclusion
of
cities from the
definition
of
"public agency' under Section 53050 did not preclude a finding that a city was a
"public agency" under the Vehicle Code, stating: "Government Code section 53050's definition
is expressly limited to the article in which it appears by the language, 'as used in this article'; it
does not pretend to define the term for use 	all statutes." (Alcala at p. 670.) 	Similarly,
4 I respectfully disagree with the majority's suggestion that, under Tubbs and Wilson, the
dete1mination of PERB 's MMBA jurisdiction is one of 	"multiple purposes" served by
compliance with the Roster requirements of Section 53051. The language from Wilson quoted
by the majority expresses concern over "diluting" the incentive for public agencies to comply
with the roster filing provisions, rather than providing "protection solely for those who failed to
present timely claims." (Wilson at p. 562.) While protection for claimants may have been one of
the "multiple purposes" of Section 53051, nothing in the case law or the legislative history
indicates that Section 53051 was intended to include the expansion of PERB' s jurisdiction
29
indicates that Section 53051 was intended to include the expansion of PERB's jurisdiction
among such purposes.

because the definition of public agency under Section 53050 is limited to the article in which it
appears governing the establishment of the Roster, and because the Roster serves an entirely
different purpose than the MMBA, I do not find it relevant to establishing coverage under the
MMBA.5
For the foregoing reasons, I would affirm the dismissal of the unfair practice charge in
this case.
In addition, I agree with the PERB Office o 	he General Counsel that the Authority is
not a "governmental subdivision" under the test set 	NLRB v. Natural Gas Utilities
District of Hawkins County (1971) 402 U.S. 600.
30
because the definition
of
public agency under Section 53050 is limited to the article in which it
appears governing the establishment
of
the Roster, and because the Roster serves an entirely
t 	than the MMBA, I do not find it relevant to establishing coverage under the
MMBA. 5
For the foregoing reasons, I would affirm the dismissal
of
the unfair practice charge in
this case.
differen purpose
forth in
5 In addition, I agree with the PERB Office f t	
of the General Counsel that the Authority is
not a "governmental subdivision" under the test set 	NLRB
v.
Natural Gas Utilities	forth in
District of Hawkins County (1971) 402 U.S. 600.
30