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Boling v. Public Employment Relations Board (2017) · DecisionDepot

30 The court explained the legislative procedures for county referenda are set forth in the Elections Code. Those statutes provide that all county ordinances, with certain enumerated exceptions, "shall become effective 30 days from and after the date of final passage" by the board of supervisors (Elec. Code, § 9141, subd. (b)), and Elections Code section 9144 provides that between the date of the adoption of the ordinance and the date the ordinance becomes finally effective 30 days later, a petition signed by the requisite number of voters will suspend the ordinance and compel the board of supervisors to reconsider it. If the board of supervisors fails to "entirely repeal" the ordinance, it must be submitted to a countywide referendum. (Id., § 9145.) However, Elections Code section 9141 excepts certain types of county ordinances from the 30-day effective date rule, providing instead that these ordinances go into effect immediately, including ordinances "specifically required by law to take immediate effect." (Id., subd. (a)(2).) These provisions, when read together, "make[] clear that when the Legislature desired to denominate certain types of ordinances that were not subject to county referendum procedures, it did so not by specifically declaring these ordinances ineligible for referendum, but rather by providing that they go into effect immediately." (Voters, supra, 8 Cal.4th at p. 777.) The court then noted section 25123 (which parallels Elec. Code, § 9141 et seq. in providing all county ordinances shall become effective 30 days from final passage except for certain classes of ordinances, which are to go into effect immediately), specifically provides at subdivision (e) that ordinances related to the adoption or implementation of MOU's with employee organizations are to take effect immediately. This statutory scheme convinced the court that, by designating MOU ordinances as a class of ordinances specifically required by law to take effect immediately, the Legislature evinced an unmistakable intent to exempt such ordinances from the referendum procedures. (Voters, supra.)

34 PERB, citing Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 965, argues on appeal that because the existence of an agency relationship is a question of fact, we must defer to PERB's determination on appeal as long as it is supported by substantial evidence. Certainly, the existence of an agency relationship can present a question of fact. However, when the material facts are undisputed, the question of the existence of a principal-agent relationship is a matter of law for the courts (see, e.g., Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 745), of which PERB has no specialized expertise. Indeed, because we will conclude the relevant inquiry is not whether Sanders was an agent for City (at least in some capacities), but instead whether he was the actual or ostensible agent for the governing body when he helped draft and campaign for the CPRI, we will examine whether PERB correctly concluded Sanders's actions can be charged to a governing body under common law principles. For example, under common law principles, unless a party (the putative principal) has the legal right to control the action of the other person (the putative agent), the former ordinarily cannot be held vicariously liable for the other person's acts on an agency theory. (See generally Edwards v. Freeman (1949) 34 Cal.2d 589, 592 [absent right of control, no true agency and therefore no imputation of wrongdoer's negligence]; Kaplan, at p. 746 ["Absent a showing that Coldwell Banker controlled or had the right to control the day-to-day operations of Marsh's office, it was not liable for Marsh's acts or omissions as a real estate broker on a true agency- respondeat superior theory."].) Thus, even if the appropriate inquiry was under a "substantial evidence" rubric, there is no evidence the City Council had the right to control Sanders's actions here, and hence there would be no substantial evidence to support the conclusion Sanders was the agent of the City Council in promulgating and promoting the CPRI.

49 PERB's brief in this writ proceeding also asserts it was appropriate for the PERB decision to charge the City Council with Sanders's actions because he "acted within the scope of his authority as lead labor negotiator" in supporting the CPRI, which can be sufficient under NLRA precedent (see H. J. Heinz Co. v. NLRB (1941) 311 U.S. 514, 520-521; International Assn. of Machinists v. NLRB (1940) 311 U.S. 72, 80) to charge an employer with the wrongful conduct of its supervisory personnel. However, the court in Inglewood recognized NLRA precedent is of limited value in the Education Employment Relations Act (EERA) arena because "there are significant differences between the two statutes" and "at times, PERB has even stated that not only is NLRA precedent not controlling, it may not even be instructive." (Inglewood, supra, 227 Cal.App.3d at p. 777.) We note that, under the NLRA, an employer is specifically defined to include "any person acting as an agent of an employer, directly or indirectly" (29 U.S.C. § 152(2)), and explicitly states that "[i]n determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." (29 U.S.C. § 152(13).) In light of that statutory scheme, the Heinz court explained "[t]he question is not one of legal liability of the employer in damages or for penalties on principles of agency or respondeat superior, but only whether the [NLRA] condemns such activities as unfair labor practices so far as the employer may gain from them any advantage in the bargaining process of a kind which the Act proscribes." (Heinz, at p. 521.) Although NLRA precedent can be relevant in some circumstances (see, e.g., International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272), it is too distinct from the issue presented here: whether the MMBA was designed to permit the governing body to be charged with the unapproved conduct of its agents (cf. Inglewood, at p. 778 [rejecting union argument that agent should be included in definition of employer under EERA, because "[s]ince the Legislature is deemed to be aware of the content of its own statutory enactments, it is a reasonable inference that the Legislature would have included the term agent in the definition of employer under the EERA if it wanted school districts perpetually exposed to liability for any unfair labor practice committed by an agent of a school district"]), particularly when the specific conduct—compliance with the meet-and- confer mandate of section 3504.5—is triggered only when there is some action "proposed 58

Boling v. Public Employment Relations Board

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PUBLIC EMPLOYMENT RELATIONS BOARD,

CITY OF SAN DIEGO, D069630

PUBLIC EMPLOYMENT RELATIONS BOARD,

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OVERVIEW

FACTUAL AND PROCEDURAL BACKGROUND

C. DeMaio's Competing Pension Reform Initiative

STANDARDS OF REVIEW

ANALYSIS

MMBA.

C. PERB's Determination That City Was Obligated by the MMBA to Meet and

MMBA.

DISPOSITION

HUFFMAN, J.

NARES, J.

AI Brief