PERB Rules City of San Diego Violated Duty to Bargain over Proposition B

In a recent decision, City of San Diego, the Public Employment Relations Board (PERB) decided that the City of San Diego (City) violated the duty to meet and confer under the Meyers-Milias-Brown Act (MMBA) by refusing to bargain over the pension reform measure which became Proposition B (2012).  Generally, an employer must negotiate upon request over proposed legislation that would change terms and conditions of employment, such as pension benefits.  The City conceded that its labor relations representatives refused the involved labor Unions’ requests to meet and confer, but the City contended that the Mayor and other City officials who conceived and supported the measure supposedly did not act in their capacity as City officials, but as private citizens instead.  PERB disagreed.

PERB found that the Mayor acted as the agent of the City in announcing and supporting the initiative while refusing to bargain with the labor Unions.  In San Diego’s government structure, the Mayor acts as the City’s chief executive officer and lead negotiator in collective bargaining.  He has authority to recommend legislation to the Council as he may deem necessary.

In November 2010, the Mayor published material bearing the City seal and participated in a press conference along with the City Council President and the City Attorney, in which the Mayor announced his plan for the pension reform initiative.  The Mayor raised money, negotiated with City officials and special interest groups over the language of the initiative, and endorsed the efforts to gather signatures.  He discussed his plans for the initiative during his official State of the City address in a January 2011 City Council meeting.  He and other City officials used the City’s website and City email to publicize the initiative and solicit support for it.  Meanwhile, the City Council was aware that the Mayor refused the Unions’ requests to meet and confer over the initiative.  The City Council never repudiated the Mayor’s actions, and accepted the benefits of Proposition B.  Therefore, the facts demonstrated that the Mayor and other officials were acting as City agents, and the City had the duty to meet and confer with the Unions.

As remedies, PERB ordered the City to cease and desist from refusing to meet and confer with the Unions before adopting ballot measures affecting employee pension benefits and other negotiable subjects; post notice of PERB’s decision; make employees whole for the value of lost compensation, including pension benefits, plus interest; and upon request by the Unions, join in and/or reimburse the Unions’ reasonable attorneys’ fees and costs for litigation to rescind Proposition B and restore the prior status quo.

It is possible that the City may decide to file an appeal of the decision.  Nevertheless, this decision should give pause to employers who would misuse the ballot initiative process to avoid bargaining.

Prior to the litigation leading to this decision, the PERB Board had directed its Office of General Counsel to seek an injunction to block implementation of Proposition B.  Extensive litigation ensued.  The employer community has harshly criticized PERB’s strong advocacy in this case.

For more information, please contact your public sector labor law counsel.

By Anne Yen | January 8, 2016

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