BOLING v. PUBLIC EMPLOYMENT RELATIONS BOARD

Amicus Curiae Brief of Orange County Attorneys Association

Cal.December 29, 2017

SUPREME COURT FILE IN THE SUPREME COURT _ STATE OF CALIFORNIA DEC 2 9 2017 Case No. S242034 Jorge Navarrete Clerk Court of Appeal Consolidated Case No.: D069626 Deputy CATHERINEA. BOLING,ET AL. and CITY OF SAN DIEGO, Petitioners, V. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION, DEPUTY CITY ATTORNEYS ASSOCIATION, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127, SAN DIEGO CITY FIREFIGHTERS, LOCAL 145, IAFF, AFL-CIO, Real Parties in Interest. After a Decision by the Court of Appeal, Fourth Appellate District, Division One, Consolidated Case Nos. D069626 and D069630, PERB Decision No. 2464-M (PERB Case Nos. LA-CE-746-M, LA-CE- 752-M, LA-CE-755-M, and LA-CE-758-M) BRIEF OF AMICUS CURIAE ORANGE COUNTY ATTORNEYS ASSOCIATION IN SUPPORT OF UNION REAL PARTIES IN INTEREST AND RESPONDENT MARIANNE REINHOLD(CSB 106568) (marianner@rac-law.com) LAURENCES. ZAKSON(CSB 119435) (laurencez@rac-law.com) WILLIAM Y. SHEH (CSB 221275) (williams@rac-law.com) REICH, ADELL & CVITAN,a Professional Law Corporation 3550 Wilshire Blvd., Suite 2000, Los Angeles, California 90010 Telephone: (213) 386-3860; Facsimile: (213) 386-5583 Attorneys for Amicus Curiae Orange County Attorneys Association IN THE SUPREME COURT STATE OF CALIFORNIA Case No. 8242034 Court of Appeal Consolidated Case No.: D069626 CATHERINEA. BOLING,ET AL. and CITY OF SAN DIEGO, Petitioners, V. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION, DEPUTY CITY ATTORNEYSASSOCIATION, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127, SAN DIEGO CITY FIREFIGHTERS, LOCAL 145, IAFF, AFL-CIO, Real Parties in Interest. ' After a Decision by the Court of Appeal, Fourth Appellate District, Division One, Consolidated Case Nos. D069626 and D069630, PERB Decision No. 2464-M (PERB Case Nos. LA-CE-746-M, LA-CE- 752-M, LA-CE-755-M, and LA-CE-758-M) BRIEF OF AMICUS CURIAE ORANGE COUNTY ATTORNEYS ASSOCIATION IN SUPPORT OF UNION REAL PARTIESIN INTEREST AND RESPONDENT MARIANNE REINHOLD(CSB 106568) (marianner@rac-law.com) LAURENCES. ZAKSON (CSB 119435) (laurencez@rac-law.com) WILLIAM Y. SHEH (CSB 221275) (williams@rac-law.com) REICH, ADELL & CVITAN,a Professional Law Corporation 3550 Wilshire Blvd., Suite 2000, Los Angeles, California 90010 Telephone: (213) 386-3860; Facsimile: (213) 386-5583 Attorneys for Amicus Curiae Orange County Attorneys Association TABLE OF CONTENTS Page STATEMENTOF THEISSUES.....cecsessecesesecseceteessesasesesseteneessesssessees 6 I. INTRODUCTION 0...cecesssssceectseeeseeeseesaseeseseneaaeeeenaeeesseesseesenees 6 Il. STATEMENT OF THECASE1.0...ccceecesceeessectsecsesssssseeteeeses 8 TH. ARGUMENT1cceceescseceensseeteeeeerenenesseeenecseseatensseeseaeseasanees 11 A. The Court ofAppeal Applied the Improper Standard of Review, Which Caused That Court Erroneously to Overturn PERB’s Well-Founded Findingsthat the Mayor WasActing as the City’s Agent...eeeeeeeees 11 B. By Improperly Failing to Defer to PERB’s Construction of the Meet and Confer Duty under Government Code Section 3505, the Court ofAppeal Usurped a Responsibility to Construe the MMBADelegated by the Legislature to PERB, Improperly Circumscribed the Scopeofthe Duty to Meet and Confer, and Failed to Appreciate the Importance of the Possibility ofPlacing an Alternative Measure on the Ballot to the Disposition Of This Case oi...ee ccsssecseesccseesseecseessnsteresneseeseeesenesseceeees 16 TV. CONCLUSION ou.ccccsssseccesenerseeseeeecsessneeesenssnesesssencessseasenes 18 CERTIFICATE OF COMPLIANCE..........cccccsesesscesesetsetseeseseetersseessessenes 19 TABLE OF AUTHORITIES Page(s) Federal Cases Charles D. Bonanno Linen Service, Inc. v. National Labor Relations Board (1982) 454 U.S. 404 [102 S.Ct. 720] weeecesseesscereesessssssssseseees 12 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 ULS. 837 [104 S.Ct. 2778]eeeccssescsssecessessesscsssescesnees 16 Dowdv. International Longshoremen’s Assn. (11th Cir. 1992) 975 F.2d 779 oo.cecccccssesseseesssesseesscssseessesecssesasseseaeeees 13 Fall River Dyeing & Finishing Corp. v. National Labor Relations Board (1987) 482 U.S. 27 [107 S.Ct. 2225] weececesseeseseceecssessseneseeees 12 Local 1814, International Longshoremen’s Assn. v. National Labor Relations Board (D.C. Cir. 1984) 735 F.2d 1384 occessescescessssesssessessessessseeseeaees 12, 14 Mesa Verde Construction Co. v. Northern California District Council of Laborers (9th Cir. 1990) 861 F.2d 1124 ciccccccccstcessessssseecesecssecesseesessenes 17 National Labor Relations Board v. Action Automotive, Inc. (1985) 469 U.S. 490 [105 S.Ct. 984] ooeeccseetceeccsessenssessscasees 17 National Labor Relations Board v. Curtin Matheson Scientific, Inc. (1990) 494 U.S. 775 [110 S.Ct. 1542]eeeecessseseseessseescsseeesesseess 12 National Labor Relations Board v. Iron Workers (1978) 434 U.S. 335 [98 S.Ct. O51] ceceeecsessesseseeecesscssecssessecsneees 12 National Labor Relations Board v. J. Weingarten, Inc. (1975) 420 U.S. 251 [95 S.Ct. 959] oocceessteessscceeeeessesseseecsseseesseesesenssas 12 Republic Aviation Corp. v. National Labor Relations Board (1945) 324 U.S. 793 [65 S.Ct. 982] ooeecsseesesessessecsessceesseseecesees 12 Skidmore v. Swift & Co. (1944) 323 US. 134 [65 S.Ct. 161] weecceccseeesseeseeseeesnseeees 13 United States v. Shimer (1961) 367 U.S. 374 [81 S.Ct. 1554] ucecsesseseeeesessscsecssesteeeees 16 Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474 [95 L.Ed 456, 71 S.Ct. 456] occeeeecsceesseeees 11 State Cases Banning Teachers Association v. Public Employment Relations Board (1988) 44 Cal.3d 799 [244 Cal.Rptr. 671] occeee6, 7, 11, 12 Bodison Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321 [109 P.2d 935] occscssssseccsseessssestsceseees 11 Boling v. Public Employment Relations Board (2017) 10 Cal-App.5th 853 [216 Cal.Rptr.3d 757] w...ccccescesseeeee 9,17 City ofPalo Alto v. Public Employment Relations Board (2016) 5 Cal.App.5th 1271 [211 Cal.Rptr.3d 287] 00.0... 10, 11, 14 Inglewood Teachers Assn. v. Public Employment Relations Board (1991) 227 Cal.App.3d 767 [278 Cal.Rptr. 228] ..cccececssseseeeeeeees 12 JR. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1 [160 Cal.Rptr. 710, 603 P.2d 1306] ............. 11,12 Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658 [150 Cal.Rptr. 250] occ. ceceecseseeseseseeees 11, 12 Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1012 [175 Cal.Rptr. 105] wc. 11 San Mateo City School Dist. v. Public Employment Relations Board (1983) 33 Cal.3d 850 [191 Cal.Rptr. 800] ou... cecssesssssesesseeeees 14 Votersfor Responsible Retirement v. Board ofSupervisors (1994) 8 Cal.4th 765 [35 Cal.Rptr.2d 814] cccesesssesssesssscsrereeeee 6 Yamaha Corp. ofAmerica v. State Board ofEqualization (1998) 19 Cal.4th 1 [78 CalRptr.2d 1] oo.ceesesesecesssesssseassees 13 TABLE OF AUTHORITIES(con’t) PERB Cases County ofSan Luis Obispo (2015) PERB Dec. No. 2427-M [2015 Cal. PERB LEXIS 22, *38-*45] ... 9-10 County ofSanta Clara (2013) PERB Dec.No. 2321-M [2013 Cal. PERB LEXIS24, *28]............. 16 Healdsburg Union High School District, (2014) PERB Dec. No. 132 [1984 Cal. PERB LEXIS 14, *8-*10] ........0..... 10 Omnitrans (2009) PERB Dec. No. 2030-M [2009 Cal. PERB LEXIS 34, *47] ........... 16 Regents ofthe University ofCalifornia (2010) PERB Dec. No. 2094-H [2010 Cal. PERB LEXIS4, *33] ............... 10 Rio Hondo Community College District (2013) PERB Dec.No. 2313-E [2013 Cal. PERB LEXIS 12, *6-*7].......... 10 Willits Unified School District (1991) PERB Dec. No. 912-E [1991 Cal. PERB LEXIS 52, *30-*31] .. 16-17 Government Codes § 3505 vcccceccsccssccssecscsssseccessssssessssssecessuccessssvesessecsssssssees 7,9, 14, 16, 17, 18 § 3504.5 vecccscccssescssuseccsssssessessssesecsssccerssuecsssesssssssseesssssssecessess 6, 7, 16, 17 § 3506 cceccccccssccssseccsrsescecsssscsessssssececsesecesssseessesssssssevecsessssasesssvecsssseesesenen 17 §3509.5(D) ceeccsccccsccssecesessssceccssssssceseseessseseesecsersssssvsseessssuesessucssssasscesssssees 6 §3543.5(a) cceccccsesccscsesccssssccecscsssseccesuccesssesecsesesssssscsceceessssesessecsssssecsesesen 17 STATEMENTOF THE ISSUES 1. Did the Court of Appeal err in rejecting the well-settled principle that in a writ challenging a final decision of the Public Employment Relations Board (PERB) pursuant to Section 3509.5(b) of the Meyers-Milias-Brown Act (MMBA), PERB’s legal conclusions and findings of fact are entitled to deference and, finding, instead, that they are subject to de novo review? 2. Is PERB’sinterpretation of a public agency’s duty to “meet and confer” under MMBASection 3505 reasonable or should Section 3505 be limited only to those situations when a public agency’s governing body proposesto take formal action affecting wages, hours and/or other terms and conditions of employment pursuant to MMBASection 3504.5? I. INTRODUCTION The cornerstone of public sector labor relations under the MMBAis the requirementthat local public agencies meet and confer in good faith with the chosen representative of their employees with respect to such employees’ wages, hours and other terms and conditions of employment. (Votersfor Responsible Retirement v. Board ofSupervisors (1994) 8 Cal.4th 765, 780 [35 Cal.Rptr.2d 814, 823].) Here, PERB foundthat the City of San Diego (City), through its Mayor, sought to circumventits meet and confer obligation by seeking to change City employees’ pension benefits by meansofa ballot measure behested and supported by the Mayor and, then, rejecting the meet and confer requests of the unions representing City employees on the spurious groundsthat the City Council didn’t author the measure and, so, there was nothingto talk about. Rather than affording PERB’sfindings and legal conclusions the deference to which they are entitled under Banning Teachers Association v. Public Employment Relations Board (1988) 44 Cal.3d 799 [244 Cal.Rptr. 671] (Banning) and MMBASection 3509.5(b), the Court of Appeal took an absolutist view ofthe initiative power and, substituting its own judgment for that of PERB, determinedthat the City’s actions were outside the regulatory scope ofthe MMBA.In so doing, the Court of Appeal ran roughshod over the longstanding principles of deference to which legal and factual conclusions in adjudicated administrative decisions are entitled. Indeed,if left undisturbed, the standard of review announced by Court of Appeal here will affect not only the parties to this case, but amicus curiae Orange County Attorneys Association (Amicus OCAA)andothersimilarly situated unions. The non-deferential standard of review announced and applied by the Court ofAppeal is inconsistent with this Court’s decision in Banning, supra, 44 Cal.3d 799 [244 Cal.Rptr. 671], and reverses a decades- long understanding that PERB’s legal conclusions on matters within its jurisdiction, including the issue of agency, are reviewed underthe “clearly erroneous” standard. This is vitally important to local public agency unions and the employees they represent because it undercuts the effectiveness of resort to PERB for vindication of employee rights inasmuchas a second bite at the apple in which the reviewing court can essentially decide the matter de novo will encourage requests for judicial review in all but the narrow bandofcases involving the application of settled law to virtually uncontested facts. This will make resort to PERB more time-consuming than it already is and, by prolonging the process, makeit harder for the more economically challenged party (frequently, the local public agency employee organization) to persist in its efforts to vindicate its statutory rights. Further, by reading Government Code section 3504.5 to constrict the scope ofthe duty to meet and confer to governing body decisions, the Court ofAppeal’s construction of Government Code section 3505 has the potential to take outside the scope of bargaining many decisions heretofore regarded as subject to the duty to meet and confer. Being able to represent members of its bargaining unit with respect to any and all terms and conditions of their employment, whether established by a County officer (such as a District Attorney or Public Defender) or the County Board of Supervisorsitself, is critical to Amicus OCAA’sability to act as such employees’ exclusive representative on mattersthat vitally affect their employment. As we show below,where, as here, a local agency employer consciously uses the initiative process to bypass its employees’ statutory bargaining representatives and to circumventits meet and confer obligations under the MMBA--whetherdirectly or through an agent--PERB properly can find, asit did here, that the employer local agency violated the MMBAandorderthat local agency to make its employees andtheir representatives whole.! Il. STATEMENT OF THE CASE The factual and procedural summary in the OpeningBriefs of the Public Employment Relations Board (pp. 19-36) and of Real Parties in Interest San Diego Municipal Employees Association (pp. 16-36) are sufficiently complete that no useful purpose would be served by Amicus OCAA separately setting forth those matters herein. However, three facts are of particular import. First, the City’s Mayorand ChiefNegotiator (see AR: XI: 2983) decided to use the initiative process with the express intent of circumventing the duty to bargain. Thus, the Mayorstated in a taped-recorded interview, “[W]hen you go out and signature gather . . . [and expend the time, money and other resources that takes,] you do that so ' Specifically, the Board ordered the City to make the affected employees whole by paying the difference in value between the defined benefit plan and the 401(k)-style benefit enacted by Proposition B. The Board also ordered the City to pay certain union attorneys’ fees if these unions undertook legal action to rescind Proposition B. [AR: XI: 3023-3025.] that you get the ballot initiative on that you actually want. [A]nd that’s what we did. Otherwise, we’d have gone through the meet and confer [process] and you don’t know what’s going to go onat that point.” (Boling v. Public Employment Relations Board (2017) 10 Cal.App.5th 853, 859, fn. 2 [216 Cal.Rptr.3d 757, 764, fn. 2].) Second, the Mayor’s efforts to develop and publicize a pension reform initiative--both before the initiative was written and qualified, and afterwards--were frequently effectuated by paid City employees (both inside and outside the Mayor’soffice) on City time, including the Mayor’s Chief of Staff, the City’s Chief Operating Officer and Director of Communications, and the independently elected City Attorney. This includes review andanalysis ofthe text by the City’s Chief Operating Officer and the City Attorney as well as a fiscal impact analysis facilitated by the City’s Chief Operating Officer who accessed City actuarial data not available to “someoneoffthe street” [AR XI: 3067; XIV: 3545-3549]. Third, the City, acting through the City Attorney, summarily declined to meet and confer with the Real Parties in Interest unions (RPI Unions) on the grounds that there was nothing to talk about because the City could not “modify the [initiative], if it qualifies for the ballot.” [AR XX: 5155]. This conduct was based on a fundamental misapprehension of the bargaining obligation. The meet and confer obligation requires the parties to meet upon request, to exchange information freely and to endeavorin goodfaith to reach an agreement, where possible, within the scope of representation. (Gov. Code, § 3505.) A local public agency like the City summarily rejects a request to meet and conferatits peril. A party’s refusal to even discuss a proposalbased solely on a belief that the proposal concerns a matter outside of the scope of representation can be a per se violation of the duty to bargain. (County ofSan Luis Obispo (2015) PERB Dec. No. 2427-M [2015 Cal. PERB LEXIS 22, *38-*45] (refusal to bargain found based on union’s refusal to bargain over employer’s proposal to change employees’ pension contribution amount because union believed the subject wasoutside the scope of representation); Regents ofthe University ofCalifornia (2010) PERB Dec. No. 2094-H [2010 Cal. PERB LEXIS 4, *33].) Because the obligation to meet and confer promptly upon request regarding mandatory subjects of bargaining is absolute, there is no “good-faith doubt,” “mistake of law”or similar defense available when a party has refused outright to meet or negotiate becauseit denies or entertains doubt as to the negotiability of a proposal. (County ofSan Luis Obispo, supra, PERB Dec. No. 2427-M [2015 Cal. PERB LEXIS 22, *38- *39].) The request need not meet any formal requirements and need do no more than indicate a desire to meet to discuss matters within the scope of representation. (City ofPalo Alto v. Public Employment Relations Board (2016) 5 Cal.App.Sth 1271, 1307 [211 Cal.Rptr.3d 287, 316] (“words chosen by the labor organization are not important, so long asit is effectively conveyed to the responding party that the organization desires to negotiate”); Rio Hondo Community College District (2013) PERB Dec. No. 2313-E [2013 Cal. PERB LEXIS12, *6-*7].) Upon receiving a bargaining demand, the public agency must attempt to clarify through discussions with the union(s) seeking bargaining any uncertainty as to whatis proposed for bargaining and whether what they seek to discuss falls within the scope of representation. This requires the use of “give and take”ofthe bargaining processitself to seek clarification of any uncertainties about whetherthe demand encompassesproposals within the scope of representation. (Healdsburg Union High SchoolDistrict, supra, PERB Dec. No. 132 [1984 Cal. PERB LEXIS 14, *8-*10].) Here, as PERB found,the City andits unions could negotiate over, at least, an alternative (or competing) measure to be put on the ballot. In refusing to meet, and at least hear out whatthe 10 RPI Unionshadto say and ask, the City acted in derogation of its statutory bargaining obligations. Hl. ARGUMENT A. The Court of Appeal Applied the Improper Standard of Review, Which Caused That Court Erroneously to Overturn PERB’s Well-Founded Findings that the Mayor WasActing as the City’s Agent. Prior to 2001, enforcement of the MMBArequiredthefiling of a lawsuit in superior court. In 2000, the Legislature decided that enforcement of the MMBAshould be entrusted to California’s public employee labor relations agency, the Public Employment Relations Board. In so deciding, the Legislature opted for administrative expertise in the administration of the statute. (See, e.g., City ofPalo Alto, supra, 5 Cal.App.5th at 1287-88.) Asthis Court explained in Banning, supra, 44 Cal.3d at 804: “PERB is ‘one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.’ (Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 488 [95 L.Ed 456, 467, 71 S.Ct. 456]). “[T]he relationship of a reviewing court to an agency such as PERB, whose primary responsibility is to determine the scope of the statutory duty to bargain and resolve charges of unfair refusal to bargain, is generally one of deference’ (Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1012 [175 Cal.Rptr. 105]), and PERB’s interpretation will generally be followed unless it is clearly erroneous. (JR. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 29 [160 Cal.Rptr. 710, 603 P.2d 1306]; Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668 [150 Cal.Rptr. 250, 586, P.2d 564], quoting Bodison Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321, 325 [109 P.2d 935].)” Throughits quotation from and citation of Universal Camera Corp.v. Labor Bd., supra, 340 U.S. at 488, this Court invoked a deference to 11 administratively adjudicated decisionmaking which had long roots in federal law--a standard under which federal courts afforded “considerable deference”to adjudicated statutory construction and interpretations of the National Labor Relations Board for similar reasons. (National Labor Relations Board v. Curtin Matheson Scientific, Inc. (1990) 494 U.S. 775, 786-787 [110 S.Ct. 1542, 1549], citing Fall River Dyeing & Finishing Corp. v. National Labor Relations Board (1987) 482 U.S. 27, 42 [107 S.Ct. 2225, 2235]; National Labor Relations Board v. Iron Workers (1978) 434 U.S. 335, 350 [98 S.Ct. 651, 660]; National Labor Relations Boardv. J. Weingarten, Inc. (1975) 420 U.S. 251, 265-266 [95 S.Ct. 959, 967-968].)” In its decision in Inglewood Teachers Assn. v. Public Employment Relations Board (1991) 227 Cal.App.3d 767, 776 [278 Cal.Rptr. 228], the Second Appellate District--in a holding never questioned until this case-- held that “PERB’s interpretation of agency principles is subject to the clearly erroneous standard of review.” (/d.) In so holding, the Second Appellate District followed federal precedents that held that “{t]ransplantation of ordinary agency law, whicharises out of ordinary contract and tort disputes into the . . . [labor law] context necessarily requires sensitivity to particular circumstancesofindustrial labor relations.” (Local 1814, International Longshoremen’s Assn. v. National Labor Relations Board (D.C.Cir. 1984) 735 F.2d 1384, 1394, cert. denied, 469 * Indeed, the “considerable deference”afforded rules announced as the result of an adjudication in an adversary proceeding, especially in the labor- managementcontext, has a long pedigree in both federal and California state law. In the federal context, in addition to the cases cited in the text, see, e.g., Charles D. Bonanno Linen Service, Inc. v. National Labor Relations Board (1982) 454 U.S. 404, 413 [102 S.Ct. 720, 725]; Republic Aviation Corp. v. National Labor Relations Board (1945) 324 U.S. 793, 798 [65 S.Ct. 982, 985]. In the California context, in addition to Banning, supra, see, ¢.g., .R. Norton Co., supra, 26 Cal.3d at 29; Judson Steel Corp., supra, 22 Cal.3d at 668-669. 12 U.S. 1972 (1984). Accord, Dowdv. International Longshoremen’s Assn. (11th Cir. 1992) 975 F.2d 779, 784.) Here, the Court of Appeal found that the principles of deference in Banning were inapplicable and, instead, choseto apply a sliding scale of “consideration” of an agencyinterpretation as a factor in the court’s exercise of its independent judgmentarticulated in Yamaha Corp. of America v. State Board ofEqualization (1998) 19 Cal.4th 1 [78 Cal.Rptr.2d 1] (Yamaha). However, Yamaha wasdealing not with a decision of an expert agency in an adjudicatory context, but with a Board of Equalization annotation in a Business Taxes Law Guide--a subregulatory administrative interpretation of a statute or regulation. Andthe decision in Yamaharelies heavily on the “valuable judicial account of the process by which courts reckon the weight of agencyinterpretations” provided by the U.S. Supreme Court in Skidmore v. Swift & Co. (1944) 323 U.S. 134 [65 S.Ct. 161] (Skidmore). (Yamaha, supra, 19 Cal.4th at 13.) In describing the standard of review applicable to the kind of “administrator’s interpretive bulletins and informal rulings”at issue in both Yamaha and Skidmore,thevery first thing that the Yamaha court noted wasthat such rulings “were ‘not reached as a result of . .. adversary proceedings’” and,thus, are substantively different from post-adjudication decisions in terms of the deference they demand. (Yamaha, supra, 19 Cal.4th at 14, quoting Skidmore, supra, 323 USS. at 139 (which made the samedistinction); see, also, id., 323 U.S.at 140 (that “the Administrator’s policies and standards are not reached by trial in [an] adversary form[at] does not meanthatthey are notentitled” to any deference or “respect”).) Thus, as the foregoing makesclear, in contrasting the sliding scale it instructed courts to employ when dealing with informal advice, such asinterpretive bulletins, to the considerable deference owed a rule announcedin the adjudication of an adversary 13 proceeding, Yamahadid nothing to undercut the longstanding judicial understanding of the considerable deference to administrative decisions announcedin a decision resolving the issues raised in an adversary proceeding reflected in Banning’s “clearly erroneous” standard--and, indeed, the holdings in Yamahaare entirely consistent with courts affording such deference. Because PERB’s decision here arose in the context of PERB’s adjudication of an actual dispute in an adversary proceeding, the Court of Appeal’s reliance on Yamaharather than Banning was manifestly erroneousanda serious departure from this Court’s decisions. The Court ofAppeal attempted to distinguish the situation here from cases in which courts accord deference to administrative decisions by stating that, in this case, laws other than the MMBAwereimplicated. However, as discussed in Part III.B, below, a construction of the relationship between Government Codesections 3504.5 and 3505is precisely the type of interpretation of statutory provisions within PERB’s legislatively designated field of expertise to which courts are to give deference unless clearly erroneous. (San Mateo City School Dist. v. Public Employment Relations Board (1983) 33 Cal.3d 850, 856 [191 Cal.Rptr. 800, 803-804]. Accord City ofPalo Alto, supra, 5 Cal.App.5th at 1287-88.) And, as discussed above, issues of agency in the labor-management relations realm require the presumptive knowledge of, and sensitivity to, the unique dynamics and circumstancespresent in that context possessed by an expert agency, like PERB,and, thus, warrant the application of the deferential clearly erroneous standard. (See, e.g., Local 1814, International Longshoremen’s Assn. v. National Labor Relations Board (D.C. Cir. 1984) 735 F.2d 1384, 1394, cert. denied 469 U.S. 1972 (1984). As PERB andthe RPI Unions urge [PERB OpeningBriefat pp. 59- 73; Real Party in Interest San Diego Municipal Employees Union Opening 14 Brief at pp. 50-62], once the deferential standard of review is applied,it is clear that the City is properly charged with the Mayor’s conduct in purposely circumventing the City’s meet and confer obligations by behesting and supporting Proposition B while simultaneously refusing to meet with the RPI Unionsto bargain about mandatory subjects of bargaining, including an alternative ballot measure. The City and ballot proponents/petitioners Catherine A. Boling, T.J. Zane and Stephen B. Williams [City Answer Brief at pp. 33-50; Petitioners AnswerBrief at pp. 20-27], as well as the Court of Appeals [Boling, supra, 10 Cal.App.5th at 872-875], fundamentally misapprehend the importance of state elections law and the First Amendmentrights of the Mayorto this case. The issue here is not whether the MMBAimposesa duty to bargain about the substance ofa ballot measure to be placed on the ballot as a result of signature gatheringorthe right of an electedofficial, acting in his personal capacity, to endorse that measure--issues that might involve the interaction of the MMBAwith other laws. Indeed, PERB’s decision assumesthat the City had an obligation to place Proposition B on the ballot without in any way affecting its substance and also assumesthat, in the absenceofevidence that he was acting as an agent ofthe City, the Mayor could be as involved in Proposition B as he wished. Rather, the issue here is whether the City failed to dischargeits duty to meet and confer with the unions representing its employees whenits Mayorused City resources, including insider information andhisstatus as chief labor negotiator, to shape and advocate for the qualification and passageofa ballot measure and,then, the City, acting throughits City Attorney, summarily refused to meet with its employees’ exclusive bargaining representatives to explore whether, as a result of this conduct, there were any issues within the scope of representation to discuss. 15 B. By Improperly Failing to Defer to PERB’s Construction of the Meet and Confer Duty under Government Code Section 3505, the Court of Appeal Usurped a Responsibility to Construe the MMBADelegated by the Legislature to PERB, Improperly Circumscribed the Scopeof the Duty to Meet and Confer, and Failed to Appreciate the Importanceof the Possibility of Placing an Alternative Measure on the Ballot to the Disposition of This Case. PERB’s construction of the interaction of sections 3504.5 and Section 3505 manifestly does not involve any law external to the MMBA. Rather, it involves solely a question ofhow the constituent parts of the MMBAinteract with one another. In such circumstances, “considerable weight should be given” to an agency’s “construction of a statutory scheme it is entrusted to administer.” (Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837, 844 [104 S.Ct. 2778, 2782].) This is especially true whenever “a full understanding ofthe force of the statutory policy in the given situation has depended upon morethan ordinary knowledge respecting the matters subjected to agency regulations.” (/d., quoting United States v. Shimer (1961) 367 U.S. 374, 382 [81 S.Ct. 1554, 1560].) Here, the constriction of situations in which the duty to meet and confer attaches to those in which the governing body acts would take outside the scope of bargainingall sorts of changes in policy and administration, by agency headsandothers, that PERB hasheretofore found cannot be undertaken unilaterally. (See, e.g., County ofSanta Clara (2013) PERB Dec. No. 2321-M [2013 Cal. PERB LEXIS 24, *28] (Sheriff's office unilaterally imposed mandatory, background check process for current correctional officers); Omnitrans (2009) PERB Dec. No. 2030- M [2009 Cal. PERB LEXIS 34, *47] (managers ofjoint powers agency unilaterally implemented new union accesspolicy); Willits Unified School 16 District (1991) PERB Dec. No. 912-E [1991 Cal. PERB LEXIS 52, *30- *31] (schoolprincipal unilaterally changed past practice on released time for negotiations).) Indeed, the breadth of subjects taken outside the scope of bargaining by the Court of Appeal’s construction of the interaction of Government Code sections 3504.5 and 3505 is illustrated in its statement that it was “unpersuaded”by cases where “unfair labor practices claims against governmental entities for conduct bytheir agents . . . undertaken without approval by the governing body”are applicable to refusal to bargain cases unless the “unapprovedactions” also constituted an interference with,restraint or coercion of employees “in violation of section 3506... or in violation of section 3543.5, subdivision (a).” (Boling, supra, 10 Cal.App.5th at 885.) Thus, under the Court of Appeal’s reading of the statute, except in those instances wherethe action is taken by the governing bodyitself, any unilateral change or proposed unilateral change that was not independently a violation ofMMBAsection 3506 (as Government Codesection 3543.5 is part of the Educational Employment Relations Act, sections 3540 et seq.) does not trigger a duty to bargain and, thus, can be made without providing the affected employees’ union with notice and an opportunity to bargain. A decision that so radically circumscribes the scope of the meet and confer obligation is the type of decision that calls upon the expertise of PERB with the matters under its jurisdiction, and PERB’s construction of the bargaining obligation underthe statutory scheme to encompassactions by a public agency’s agents, and notjust its governing board,is the type of decision which shouldbeat the core ofjudicial deference. (National Labor Relations Board v. Action Automotive, Inc. (1985) 469 U.S. 490, 496 [105 S.Ct. 984, 988]; Chevron, supra, 467 U.S. at 842-845; Mesa Verde Construction Co. v. Northern California District Council ofLaborers (9th Cir. 1990) 861 F.2d 1124, 1135.) PERB’s construction ofthe MMBAto 17 prohibit the City from acting in disregardofits obligation to bargain to agreement or impasse where the proposed action is undertaken by a City agent rather than just its governing bodyis a reflection of PERB’s presumptively expert knowledge ofthe matters subject to agency regulation; and the application of theseprinciples to the situation here, where the circumvention is undertaken by the City’s chief negotiator using City resources andhis official status and is accompanied by a determination by the City to summarily reject any request by the affected unions to meet and confer is manifestly appropriate. IV. CONCLUSION For the foregoing reasons, Amicus OCAA respectfully submits that the Court of Appeals applied an insufficiently deferential standard of review. Applying, instead, the correct standard of review been applied, PERB’s finding that the City acted in derogation of its meet and confer obligations under Government Code section 3505 was manifestly supported by substantial evidence in the record as a whole and notclearly erroneous. Accordingly, the Court of Appeals decision should be reversed and the PERB decision should be upheldin toto. Dated: November (7, 2017 Respectfully submitted, REICH, ADELL & CVITAN A|Corporation MARIANNE REINHOLD LAURENCES. ZAKSON WILLIAM Y. SHEH Attorneys for Amicus Curiae Orange County Attorneys Association 18 CERTIFICATE OF COMPLIANCE Pursuantto rules 8.204(c) and 8.520(c) of the California Rules of Court, I herebycertify that this brief contains 3,991 words, including footnotes. In making this certification, I have relied on the word count of the computer program used to preparethebrief. Dated: November if 2017 Respectfully submitted, REICH, ADELL & CVITAN A Professional Law\Corporation G MARIANNE REINHOLD LAURENCES. ZAKSON WILLIAM Y. SHEH Attorneys for Amicus Curiae Orange County Attorneys Association 19 PROOF OF SERVICE C.C.P. 1013a COURT NAME: In the Supreme Court for the State of California CASE NUMBER: SupremeCourt: S242034 Appellate Court: D069626 (lead) and D069630 PERB DECISION NO.: 2464-M, PERB Case Nos. LA-CE-746-M, LA-CE-752-M, LA-CE-755-M, and LA-CE-758-M CASE NAME: City ofSan Diego v. Public Employment Relations Board; San Diego Municipal Employees Association; Deputy City Attorneys Association; American Federation ofState, County and Municipal Employees, AFL-CIO, Local 127; San Diego City Firefighters, Local 145, IAFF, AFL-CIO; Catherine A. Boling; T.J. Zane; and Stephen B. Williams I declare that I am a resident of or employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within entitled cause. My business address is 3550 Wilshire Blvd., Suite 2000, Los Angeles, CA 90010. On November20, 2017, I served the document described as BRIEF OF AMICUS CURIAE ORANGE COUNTY ATTORNEYSASSOCIATIONIN SUPPORT OF UNION REAL PARTIES IN INTEREST AND RESPONDENT regarding the above-referenced caseonthe parties listed below: Attorneys for Petitioners: Kenneth H. Lounsbery, Esq. James P. Lough, Esq. YanaL. Ridge, Esq. Alena Shamos,Esq. Lounsbery Ferguson Altona & Peak, LLP 960 Canterbury Place, Suite 300 Escondido, CA 92025-3836 Attorneysfor Petitioners Catherine A. Boling, T.J. Zane, and Stephen B. Williams Attorneys for Real Parties in Interest: Ann M.Smith, Esq. Smith Steiner Vanderpool & Wax 401 West A Street, Suite 320 San Diego, CA 92101 Attorneyfor Real Party in Interest San Diego Municipal Employees Association Fern M.Steiner, Esq. Smith Steiner Vanderpool & Wax 401 West A Street, Suite 320 San Diego, CA 92101 Attorneyfor Real Party in Interest San Diego City Firefighters Local 145 Michael Travis Phelps, Deputy City Attorney Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, CA 92101 Attorneysfor Real Party in Interest City ofSan Diego James Cunningham, Esq. Law Offices of James J. Cunningham 4141 Avenida De La Plata Oceanside, CA 92056 Attorneyfor Real Party in Interest Deputy City Attorneys Association Ellen Greenstone, Esq. Rothner Segal & Greenstone 510 S. Marengo Avenue Pasadena, CA 91101 Attorneyfor Real Party in Interest American Federation ofState, County and Municipal Employees, AFL-CIO, Local 127 Attorneys for Respondent PERB: Jose Felix DeLaTorre, Esq. Wendi Lynn Ross, Esq. Public Employment Relations Board 1031 18" Street Sacramento, CA 95811 Attorneysfor Respondent Public Employment Relations Board Court of Appeal Clerk, Court of Appeal Fourth District Court of Appeal, Division One 750 B Street, Suite 300 San Diego, CA 92101 [X] (BY UNITED STATESMAIL) enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the address(es) above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. The envelope or package was placedin the mail at Los Angeles, California. I declare under penalty ofperjury of the State of California thatthe foregoingis true and correct andthat this declaration was executed on November20, 2017, at Los Angeles, California. Cheryl Wiffborne