BAXTER, J., Concurring and Dissenting. The substantive issue in this case is whether the City of Richmond’s decision to lay off 18 of its firefighters for fiscal reasons in 2003 is a matter subject to collective bargaining under the Meyers-Milias-Brown Act. (Gov. Code, § 3500 et seq.; MMBA.)1 The trial court and Court of Appeal concluded it is not. The majority likewise concludes it is not and affirms the judgment. I fully concur in that holding. In finding the city was not obligated to bargain with the International Association of Fire Fighters, Local 188, AFL-CIO (Local 188) over the layoff decision itself, as opposed to meeting and conferring over the effects or impact of the layoffs, we merely reaffirm the holding to that effect reached by this court 36 years ago in Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr. 507, 526 P.2d 971] {Vallejo). Vallejo made clear that although a public employer must bargain with its employees about the timing of layoffs and the number and identity of the employees affected, it need not bargain over the layoff decision itself. (Vallejo, at p. 621; see maj. opn., ante, at pp. 276-277.) As the majority observes, “[t]his interpretation of Vallejo, supra, 12 Cal.3d 608, has since been consistently recognized.” (Maj. opn., ante, at p. 276.)
[278]The majority also reaches and decides an important procedural issue of first impression under the MMBA: Is a decision of the Public Employment Relations Board (PERB) not to issue a complaint on an aggrieved party’s unfair labor practice charge, although unreviewable by extraordinary writ in the Courts of Appeal (see § 3509.5, subd. (a)),2 nevertheless subject to equitable judicial review under the superior courts’ traditional mandamus jurisdiction? Invoking this court’s holding in Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551 [147 Cal.Rptr. 165, 580 P.2d 665] (Belridge Farms), the majority concludes that it is. I respectfully dissent from that conclusion. The majority misconstrues the nature and scope of the holding in Belridge Farms as well as the authorities relied on therein. Under the majority’s holding, PERB’s routine exercise of discretion in determining which matters coming before it warrant the issuance of a complaint, and which do not, could be unduly impacted.
In Belridge Farms, this court construed the judicial review provisions of the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975 (Lab. Code, § 1140 et seq.; ALRA). We looked to relevant federal court decisions construing the National Labor Relations Act (29 U.S.C. § 151 et seq. (NLRA)) because it contains a judicial review provision “substantively identical” (Belridge Farms, supra, 21 Cal.3d at p. 556) to the judicial review provision found in the state ALRA. Acknowledging that those federal decisions establish that a refusal to issue a complaint under the NLRA is generally not judicially reviewable, we nonetheless went on to observe that “federal courts have exercised their equitable powers to review such determinations when the complaining party raises a colorable claim that the decision violates [a] constitutional right [citations] or exceeds a specific grant of authority [citations].” (Belridge Farms, at pp. 556-557.) We then added, “Refusal to issue a complaint based on an erroneous construction of an applicable statute also has been held reviewable under the court’s general equitable power. (Southern California Dist. Coun. of Lab., Loc. 1184 v. Ordman (C.D.Cal. 1970) 318 F.Supp. 633.)” (Belridge Farms, at p. 557.)
There is no allegation here that PERB’s refusal to issue a complaint on behalf of Local 188 under the MMBA violated the constitutional rights of union members or exceeded a specific grant of authority under which the agency operates. Rather, the majority concludes it is the third prong of the [279]Belridge Farms test that should be applied here. The majority reasons that “although PERB’s refusal to issue a complaint is generally not subject to judicial review, this general rule has narrow exceptions. One of these exceptions applies when, as the union alleges here, PERB’s refusal is based on a clearly erroneous statutory construction.” (Maj. opn., ante, at p. 264.) The majority reasons further that applying the third prong of the Belridge Farms test to the particular facts before us will “allow[] courts to correct a clearly erroneous construction of the MMBA by PERB when that erroneous construction potentially affects a large class of cases and threatens to frustrate an important policy that the MMBA was enacted to further.” (Maj. opn., ante, at pp. 269-270.)
The majority’s reading of the third prong of the Belridge Farms test is far broader than the exception actually described and invoked by this court in that case. After setting forth the three categories of exceptions to the general rule of no judicial review recognized by federal courts in construing the NLRA, the Belridge Farms court stated, “As pointed out above, the [Agricultural Labor Relations Board] general counsel’s interpretation of statutes is reviewable.” (Belridge Farms, supra, 21 Cal.3d at p. 559.) The phrase “[a]s pointed out above” (ibid.) is a clear reference back to the third exception described at page 557 of the Belridge Farms decision. The court in the very next sentence then explained, “In California mandamus is available to compel an official to exercise his discretion when his refusal is based on an erroneous view of the power vested in him. [Citation].” (Belridge Farms, at p. 559). Thus, the reference in Belridge Farms to the third exception under federal NLRA cases for “an erroneous construction of an applicable statute,” found at page 557 of that decision, must be read together with this court’s further invocation of the California common law rule allowing for mandamus writ review of an agency official’s refusal to exercise statutory discretion “based on an erroneous view of the power vested in him ... [citation],” found at page 559 of the decision. Properly read and understood in its full context, the decision in Belridge Farms leads to but one conclusion. The third exception described and invoked in that case was intended to be limited to situations where an agency official refuses to exercise discretion “based on an erroneous view of the [statutory] power vested in him. [Citation.]” (Belridge Farms, at p. 559.)
This narrow reading of the third exception invoked in Belridge Farms is the only one supported by the holding of the single federal court NLRA decision relied on by this court in Belridge Farms in support of that exception: Southern California Dist. Council of Laborers, Local 1184 v. Ordman (C.D.Cal. 1970) 318 F.Supp. 633 (Local 1184).
[280]In Local 1184, “the Regional Director of the [National Labor Relations Board] dismissed plaintiffs’ [unfair labor practice] charges on the ground that they had not been filed and served within six months of the signing of the [collective bargaining] agreement and were, therefore, barred by Section 10(b) of the Act, 29 U.S.C. § 160(b). That section provides that \\ . . no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. . . .’ The Regional Director’s dismissal of plaintiffs’ charges was sustained by defendant [NLRB].” (Local 1184, supra, 318 F.Supp. at p. 634.) The plaintiffs then successfully brought an “action for a declaration that in the case of an agreement between an employer and a union, the six month period of § 10(b) does not commence until there are employees subject to said agreement. . . .” (Ibid.)
In other words, the regional director of the NLRB (National Labor Relations Board) in Local 1184 had erroneously construed section 10(b) of the NLRA as precluding his discretion to issue the complaint. In that narrow context, an exception to the general rule of no judicial review of refusals to issue complaints was available under the federal NLRA cases, permitting the federal district court, under that court’s general equitable powers, to review the NLRB’s refusal to exercise discretion to issue the complaint based on its ■ erroneous view that it had no power to do so under section 10(b).
The federal district court in Local 1184 acknowledged that, under the general rule, it had “ ‘no power to order the General Counsel to issue a complaint . . .’ [citation]” (Local 1184, supra, 318 F.Supp. at p. 636), and further acknowledged “[i]t is well established that the General Counsel has broad discretion in deciding whether a complaint should issue. [Citation.]” (Ibid.) The court took pains to describe the matter before it as one involving “peculiar facts,” making it “an extreme case which compels limited judicial action.” (Ibid.) The court ultimately determined it would “not direct the defendant [(NLRB)] to issue a complaint based on plaintiffs’ charges nor will the Court review the defendant’s day-to-day exercise of discretion with respect to determinations delegated to the latter’s expertise.” (Local 1184, at p. 636.) The court added, “If, after considering the merits of plaintiffs’ charges, defendant concludes that no complaint should issue, no judicial review of defendant’s determination may be had. See 29 U.S.C. § 159(d).” (Local 1184, at p. 636, italics added.) This final comment reflects the court’s view that it was the agency’s erroneous construction of the statute and its refusal to exercise discretion or even consider the merits of the plaintiffs’ claims as a result of that erroneous construction that warranted judicial [281]review of the agency’s interpretation of the statute. The comment further makes clear that once the statutory interpretation issue was settled, the court would not second-guess any subsequent exercise of discretion by the NLRB as to whether to issue or not issue a complaint in the matter. (Local 1184, at p. 636.)
To summarize, Belridge Farms’ s characterization of the third exception to the general rule of no judicial review of agency refusals to issue complaints under analogous federal court NLRA decisions establishes only that the exception was intended by this court to apply in ALRA cases in those limited situations where an agency official has refused to exercise discretion to issue a complaint based on an erroneous interpretation of an applicable statute, leading the official to conclude he or she has no discretion or power to act. (Belridge Farms, supra, 21 Cal.3d 551.)
The facts of this case are entirely inapposite. Here, PERB did not refuse to issue the complaint sought by Local 188 based on an erroneous interpretation of an applicable statute leading the board to conclude it had no discretion or power to act. Rather, PERB correctly interpreted long-standing settled case law establishing that, although a public employer must meet and confer with its employees about the effects of employee layoffs, it need not bargain over the layoff decision itself. (E.g., Vallejo, supra, 12 Cal.3d at pp. 614, 621.) PERB further properly exercised discretion pursuant to its statutory authority in refusing to issue the complaint. Section 3541.3, concerning the powers and duties of the board under the MMBA, provides that, “The board shall have all of the following powers and duties: [f] ... FID (b) To determine in disputed cases whether a particular item is within or without the scope of representation.” (§ 3541.3, subd. (b).) The substantive question here is whether bargaining over the layoff decision itself is or is not within the scope of representation. The law could not be more clear. It is not.
Furthermore, in exercising its statutory discretion not to issue a complaint, PERB took into consideration both the facts and legal merits of Local 188’s unfair labor practice charge against the city. PERB’s agent, Regional Attorney Kristin L. Rosi, informed Local 188 in writing why the board had declined to issue a complaint in response to the union’s original unfair practice claim. “The letter stated that Local 188’s unfair practice allegations failed to state a prima facie case for relief because a decision to lay off employees, including firefighters, is not subject to collective bargaining and because, although the effects of a layoff decision are subject to bargaining, Local 188 had made no proposals concerning the effects of the city’s decision to lay off firefighters and the city had not declined to bargain concerning them.” (Maj. opn., ante, at p. 265.) As noted above, in Local 1184, supra, 318 F.Supp. 633, the sole federal decision relied on in Belridge Farms for invoking the third exception, [282]the NLRB had failed to even consider the merits of the aggrieved plaintiffs’ unfair labor practice charge before erroneously concluding it had no discretion under the statute in question to issue a complaint. (Local 1184, at p. 636.)
The majority suggests the role of the courts in resolving this procedural issue of first impression is to “strikeQ an appropriate balance between the Legislature’s interest in giving [an agency like PERB] broad discretionary authority and the courts’ obligation to discharge their constitutional powers and responsibilities.” (Maj. opn., ante, at p. 269.) I fail to see how the majority’s holding on this issue strikes an appropriate balance. At oral argument in this matter, counsel for PERB represented to this court that a major component, if not the majority, of its workload involves making determinations as to whether to issue or not issue complaints on allegations of unfair labor practices under the MMBA. Under the majority’s broadly worded holding, an aggrieved party need only allege that PERB’s refusal to issue a complaint was based on “an erroneous statutory construction” (maj. opn., ante, at p. 271) of any of the MMBA’s provisions in order to secure equitable judicial writ review in the superior court of a PERB decision not to issue a complaint. The majority concludes this rule of equitable review will “further[] the Legislature’s purpose in creating the agency and defining the scope of its authority.” (Maj. opn., ante, at p. 270.) I disagree. If anything, the majority’s holding on this issue contradicts the Legislature’s plain intent to narrowly circumscribe judicial review of PERB decisions in section 3509.5, which statute expressly excepts from the availability of extraordinary writ relief in the Courts of Appeal “a decision of the board not to issue a complaint. . . .” (§ 3509.5, subd. (a).)
I further fail to see how, even under the majority’s broad reading of Belridge Farms, the third exception to the general rule of no judicial review could possibly be satisfied on the factual record before us. We are, after all, today reaffirming as a substantive point of law that a city’s decision to lay off some of its employees for fiscal reasons is not a matter subject to collective bargaining under the MMBA. We have observed that this has been the settled law ever since Vallejo, supra, 12 Cal.3d 608, was decided many years ago. (Maj. opn., ante, at p. 276.) PERB unquestionably acted within the scope of its statutory authority when it exercised its discretion and determined not to issue a complaint below. (See § 3541.3, subd. (b).) That being the case, how can the majority conclude, on the one hand, that Local 188’s substantive law claim is unmeritorious in light of long-standing settled law, and then find, on the other hand, that the union did raise a “colorable claim” (Belridge Farms, supra, 21 Cal.3d at p. 556) that PERB’s refusal to issue the complaint was “based on an erroneous statutory construction.” (Maj. opn., ante, at p. 271.) If this PERB decision not to issue a complaint is subject to equitable judicial [283]review in the superior court based on the agency’s erroneous interpretation of an applicable statute, it is hard to envision one that would not be.
The majority observes that both the United States Supreme Court and this court have explained that “eliminating all forms of judicial review of an administrative agency’s decisions could raise serious constitutional issues.” (Maj. opn., ante, at p. 270.) The majority further observes that “[t]he California Constitution [(in § 10 of art. VI)] gives rise to a presumption in favor of at least limited judicial review of state administrative agency actions.” (Maj. opn., ante, at p. 270.) I do not disagree with these observations. But, as noted, in California, “[a]ny charging party, respondent, or intervenor aggrieved by a final decision or order of the board in an unfair practice case, except a decision of the board not to issue a complaint in such a case, . . . may petition for a writ of extraordinary relief from that decision or order.” (§ 3509.5, subd. (a), italics added.)
If it was alleged here that PERB’s refusal to issue a complaint somehow exceeded the board’s statutory powers or violated the union members’ constitutional rights, I would not hesitate to find that the superior court’s equitable mandamus jurisdiction could rightfully be invoked to review such a determination, nor would I think it necessary to invoke the specific holding in Belridge Farms to support that conclusion. Moreover, if PERB had erroneously interpreted a statutory provision as precluding its discretion or power to act and issue a complaint on Local 188’s unfair labor practice charge, I would join the majority in finding that our decision in Belridge Farms is sufficiently analogous to support a conclusion that the superior court’s traditional mandamus jurisdiction may be invoked to review the board’s legal determinations in that regard. But, here, the substantive point of law underlying the union’s unfair labor practice charge has long been settled in favor of the city’s actions, and PERB, rather than acting unconstitutionally, or in excess of its statutory powers, or through a mistaken belief that it had no authority to act, simply applied settled law to these particular facts and found no legal or factual basis to issue a complaint. Accordingly, I conclude the Court of Appeal erred in finding our decision in Belridge Farms sufficiently analogous to establish a basis for extraordinary writ review in the superior court of the board’s decision not to issue a complaint on these facts.
I therefore join the majority in affirming the Court of Appeal’s judgment to the extent that judgment holds that the city’s decision to lay off 18 of its firefighters was not subject to collective bargaining under the MMBA. Unlike the majority, however, I would further conclude that the Court of Appeal erred in determining that the holding in Belridge Farms, supra, 21 Cal.3d 551, could serve as a proper basis for equitable judicial review of Local 188’s [284]claim in the superior court. When the Court of Appeal first dismissed Local 188’s petition for extraordinary writ review, recognizing it was without jurisdiction to act by virtue of the express provisions of section 3509.5, subdivision (a), that dismissal should have been with prejudice.
All further statutory references are to the Government Code unless otherwise indicated.
The MMBA expressly provides for judicial review of PERB decisions in subdivision (a) of section 3509.5, which states: “Any charging party, respondent, or intervener aggrieved by a final decision or order of the board in an unfair practice case, except a decision of the board not to issue a complaint in such a case, . . . may petition for a writ of extraordinary relief from that decision or order.” (Italics added.) Subdivision (b) of section 3509.5 in turn provides that such a petition for a writ of extraordinary relief shall be filed in the Court of Appeal. The parties, the Court of Appeal below, and the majority all agree that under the plain language of section 3509.5, PERB’s decision not to issue a complaint is not reviewable under that statute.