BOLING v. PUBLIC EMPLOYMENT RELATIONS BOARD

Respondent’s Reply to Answer to Petition for Review

Cal.June 19, 2017

Case No. 8242034 No Fee (Gov. Code, § 6103) IN THE SUPREME COURT STATE OF CALIFORNIA CATHERINEA. BOLING;T.J. ZANE; AND bey STEPHEN B. WILLIAMS, a 7 SUPREME COURT Petitioner, FILED v. JUN 19 2017 PUBLIC EMPLOYMENT RELATIONS BOARD, Jorge Navarrete Clerk Respondent, Deput CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES y ASSOCIATION; DEPUTY CITY ATTORNEYSASSOCIATION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127; AND SAN DIEGO CITY FIREFIGHTERS LOCAL145, Real Parties in Interest. After a Decision of the Court of Appeal Fourth Appellate District, Division One, 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) PERB’S COMBINED REPLY TO ANSWERSTO PETITION FOR REVIEW J. FELIX DE LA TORRE,General Counsel, Bar No. 204282 WENDIL. ROSS, Deputy General Counsel, Bar No. 141030 JOSEPH W. ECKHART,Board Counsel, Bar No. 284628 PUBLIC EMPLOYMENT RELATIONS BOARD 1031 18th Street Sacramento, California 95811-4124 Telephone: (916) 322-3198 Facsimile: (916) 327-6377 E-mail: PERBLitigation@perb.ca.gov Attorneysfor Respondent PUBLIC EMPLOYMENT RELATIONS BOARD PERB’s Reply Case No. 8242034 Case No. 8242034 No Fee (Gov. Code, § 6103) IN THE SUPREME COURT STATE OF CALIFORNIA CATHERINEA. BOLING;T.J. ZANE; AND STEPHEN B. WILLIAMS, Petitioner, Vv. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION; AMERICAN FEDERATION OF STATE, COUNTY AND | MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127; AND SAN DIEGO CITY FIREFIGHTERS LOCAL145, Real Parties in Interest. After a Decision of the Court of Appeal Fourth Appellate District, Division One, 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) PERB’S COMBINED REPLY TO ANSWERSTO PETITION FOR REVIEW . J. FELIX DE LA TORRE,General Counsel, Bar No. 204282 WENDI L. ROSS, Deputy General Counsel, Bar No. 141030 JOSEPH W. ECKHART,Board Counsel, Bar No. 284628 PUBLIC EMPLOYMENT RELATIONS BOARD 1031 18th Street Sacramento, California 95811-4124 Telephone: (916) 322-3198 Facsimile: (916) 327-6377 E-mail: PERBLitigation@perb.ca.gov Attorneysfor Respondent PUBLIC EMPLOYMENT RELATIONS BOARD PERB’s Reply Case No. 8242034 I. II. If. TABLE OF CONTENTS INTRODUCTION... ccccccscccsseseccesseeeesecseeeseeceaeeeesereessneesaseeeeaees 5 ARGUMENT.........:::cecee saceeeseseceesseeacueesssecueseeseesaeeceseseeaeeeensneeaees 7 A. Thereis no dispute that the Court of Appeal refused to defer to PERB’s interpretation of the MMBA.................. 7 1, Theclearly erroneous standard of review has been applied to the Board’s interpretation ofits ownstatutes regardless of what—or how many—otherlegal issues are presented in a CASE. vo ceccesescccessccessseceeceessees deceeececeessecaceeesessceseceseseseaees 8 2. The Court of Appeal did not distinguish this Case from Inglew00gd .......cccsccscsessseceeeeseeeesnetersneesens 10 3. The Court of Appeal’s use of the word “erroneous” does not meanthat it deferred to PERB’sinterpretation of the MMBA.................. 11 4, PERB hasconsistently maintained that the Board’s interpretation of the MMBAisentitled tO GEFETENCE. oo... eee ccecceeccessessecesccesecessceceseceeseesesaes 13 B. ~— The Court of Appeal’s sweeping conclusion that section 3504.5 limits the duty to meet and conferis not confined to the context of local initiatives or legislative ACtS. ......ceeccescccccccececeetseeeeeeeceeesanseceeseessaaeseraneees 14 CONCLUSIONuoccc iccccecccecesecscceccccceccesscseeccusnssceeutecssuenscesevecees 17 2 PERB’s Reply Case No. 8242034 TABLE OF AUTHORITIES CALIFORNIA CASE LAW Banning Teachers Assn. v. Public Employment Relations Bad. (1988) 44 Cal.3d 799icccscecesssnneeceeceeecneerseeeeesaeeessaseesesseseaeenss 7,8 Bodinson Mfg. Co. v. California Employment Com. (1941) 17 Cal.2d 321oceesesseneeeeeeseeteeeeseeeeesueeeeseesnsesseeenseesaees 13 City ofPalo Alto v. Public Employment Relations Bad. (2016) 5 Cal.App.5Sth 1271 oo. ccccccecccesesseseneceneeeeeseeeseseeeseesseesneeeeaeees 9 County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905 oo... cccccccneseesseesseeeeseeeeesseeseseaeeesseesaeeees 9 Cumerov, Public Employment Relations Bd. (1989) 49 Cal.3d 575oeeccecceceeeeceeceseneesseeeseeesesesesessssseessesenseensenees 9 Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services Dist. (1975) 45 Cal.App.3d 116 wees 14 Inglewood Teachers Association v. Public Employment Relations Bd. (1991) 227 CalApp.3d 767 .....cccccccscessceseesesesneeereteessseeseeeeneees 7,10 Larkin v. W.C.A.B. (2015) 62 Cal.4th 152...cccssssececeeeeseeeeeeseeecesseeeeseecseseseesaeeaes 12 Los Angeles County Employees Assn., Local 660 v. County ofLos Angeles (1973) 33 Cal.App.3d Lite cecceceesecsseessseessssssseeseresseensee 15 Los Angeles Unified School Dist. v. Public Employment Relations Bd. (1986) 191 Cal.App.3d S51... cccccccsesscsesesseeseeseeeseseneeeeessenes 11 Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974...ccccscccssteceeeeeecneessreesesseessssecsesesseeeseesaee 12 McFarlandv. Pico (1857) 8 Cal. 626.0... ee eecececnneeeeereseeeceesseesneeeeseesensaeecessesseseseneeaneaes 12 MorenoValley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191...eeeseeeaeeaeeeaensIl Riley v. Thompson (1924) 193 Cal. 773 ..ecceccecccsccsssseeceessnseeseeseeeseesaeeeesseeeseaeseteseeesnseenae 12 3 PERB’s Reply Case No. 8242034 ~ CALIFORNIA STATUTES Gov. Code, § 3500 et SCG. .ccecceccscscccssecssesscssssssssseecscsssessestecseseeseseecsstenseseaes 5 Gov. Code, § 3504.5 .....ccccecscccsssccccccecsseeceesssecesesssceceeeesssseeeeeseoeeaees 8, 15, 16 Gov. Code, § 3504.5, subd. (8) ..........ceeeeeeeeeesaaeesaceceeecssceeeeeceseseneseesseeeenens 15 Gov. Code, § 3505 0... ...cccccecscccessececccceesccccecsecenseeesneneeeessaeeeeeeeeseaeees 8,9, 15 Gov. Code, § 3540 et SOQ. ..ceecccccccceeseeeeeeeseesseessnaeeeesesseeeeeseseseseuesesaeaeaeaas 8 RULES OF COURT Cal. Rules of Court, rule 8.500(D)(1) .....eeeese seeeeteeeseseseeteeteessrerees 6 4 PERB’s Reply Case No. 8242034 To the Honorable Chief Justice and Associate Justices of the Supreme Court of California: In support of its Petition for Review (Petition), Respondent Public Employment Relations Board (PERB or Board) respectfully submits this combined Reply to the Answersfiled by the City of San Diego (City) and Catherine A. Boling, T.J. Zane, and Stephen B. Williams (the Ballot Proponents). I. INTRODUCTION The import of this case cannot be overstated: the Court of Appeal, Fourth Appellate District in Boling v. Public Employment Relations Board (April 11, 2017, D069626 & D069630) 5 Cal.App.5th 853, altered the long-accepted standard of review offinal adjudicatory decisions issued by the Board and severely limited a public agency’s obligation to bargain in good faith under the Meyers-Milias-Brown Act (MMBA)(Gov. Code,§ 3500 et seq.)' to those situations when the agency’s governing body proposesto act. If left to stand, this decision will have serious and detrimental impacts on public sector laborrelations in the State of California. In their respective Answers, the City and the Ballot Proponentsfail to address the significant ramifications of the Court of Appeal’s decision. ' All further statutory references are to the Government Code, unless otherwise noted. PERB’s Reply _ Case No. 8242034 Instead, they skirt the issues raised in PERB’s Petition and argue the merits of the underlying case. Since PERB hasasked this Court to resolve important questions of law and secure uniformity of decision (Cal. Rules _ of Court, rule 8.500(b)(1)), this Reply is limited to those few points in the Answers bearing on the specific issues raised by PERB’s Petition, rather than the merits. To the extent the Answers are responsive to the issues raised in the Petition, they are an effort to minimize or downplay the importanceofthis case and the conflict of authority created by the Court of Appeal’s decision below. In particular, the City and the Ballot Proponents argue that this case is distinguishable from the authority cited in PERB’s Petition. These arguments fail. First, they misleadingly suggestthat the Court ofAppeal drew these distinctions in its opinion. This is not the case. The Court of Appeal made sweeping conclusions onthe issues raised by PERB’s Petition, leading to direct conflicts with other precedent and creating significant legal uncertainty. Second, the arguments advanced by the City and the Ballot Proponents,at most, distinguish this case from some,but notall of the conflicting authority. Thus, substantial conflicts remain. In short, the Answers fail to rebut PERB’s argumentthat review is necessary to secure uniformity of decision and to settle important PERB’s Reply Case No. 8242034 questions of law regarding the appropriate standards of review ofthe Board’s final decisions and a public agency’s duty to bargain under the MMBA. PERB again respectfully requests that the Court grant review to addressthese vital issues for PERB andits constituents. I. ARGUMENT A. There is no dispute that the Court of Appeal refused to defer to PERB’s interpretation of the MMBA. The Board’s decision below addressed fundamental questions about the circumstances in which the MMBA’sduty to meet and conferarises, including when a public agency’s chief executive officer and chief labor negotiator can be considered an agent of the public agency. As explained in PERB’s Petition, this Court has long recognized that PERB is entitled to deference from the courts, because its “primary responsibility is to determine the scope of the statutory duty to bargain and resolve charges of unfair refusal to bargain.” (Banning Teachers Assn. v. Public EmploymentRelations Bd. (1988) 44 Cal.3d 799, 804 (Banning).) For nearly as long, the courts have held that the Board is also entitled to deferencein its treatment of questions of agency—whethertreated as questions of law or questions of fact. (Inglewood Teachers Associationv. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767, 776 (Inglewood).) PERB’s Reply Case No. $242034 The Ballot Proponents’ claim that “[t]he issues in this case are not labor law issues the Legislature delegated to PERB to interpret” (Ballot Proponents’ Answer, p. 19) cannot be taken seriously. Even the Court of Appealdid not assert that this case involved no labor law issues; instead it asserted that the Board’s decision “turned almostentirely” upon other legal principles. (PERB’s Petition for Review, Exhibit A., p. 43, emphasis added.) Yet even that claim was exaggerated. The Court of Appeal’s novel, sua sponte interpretation of MMBAsection 3504.5 is the linchpin ofits decision, underlying nearly every other issue addressed, including the court’s rejection of the Board’s interpretation of MMBA section 3505 and agencyprinciples. (See, e.g., Exh. A, pp. 34-35; 47, fn. 37; 51-52; 59, fn. 49; 61.) Therefore, there can be no serious dispute that the Court of Appeal refused to defer to PERB’s interpretation of the MMBA. 1. Theclearly erroneous standardof review has been applied to the Board’s interpretation of its own statutes regardless of what—or how many—otherlegalissues are presented in a case. The City arguesthat this case is distinguishable from Banning, supra, 44 Cal.3d 799, because the interpretation of the applicable collective bargaining statute, the Educational EmploymentRelations Act (§ 3540 et seq. [EERA]) was the only issue in that case. (City’s Answer, PERB’s Reply Case No. 8242034 p. 13.) The Court of Appeal, however,did not rely onthis distinction. But evenif it had,it still would have created a split of authority. Notably, this Court has applied the “clearly erroneous” standard of review to PERB’s interpretation of section 3505, even though the case also involved issues outside of PERB’s jurisdiction, such as the constitutional right to privacy. (County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 922.) This Court has also noted that while the Board may not determine that one of its statutes is unconstitutional, it may construe those statutes “in light of constitutional standards” (Cumero v. Public EmploymentRelations Bad. (1989) 49 Cal.3d 575, 583), in which case that construction is reviewed under the “clearly erroneous” standard(id. at pp. 586-587). Likewise, the Sixth Appellate District recently applied the “clearly erroneous” standard in a case that—like this one—includedelection law andconstitutional issues, in addition to issues of MMBAinterpretation. (City ofPalo Alto v. Public EmploymentRelations Bd. (2016) 5 Cal.App.5th 1271, 1287- 1288.) Thus, the Court of Appeal created a plain conflict of authority when it concludedthat the “clearly erroneous” standard of review does not apply if a case presents other legal issues aside from the interpretation of the MMBA. PERB’s Reply Case No. 8242034 2. The Court of Appeal did not distinguish this case from Inglewood. As explained in PERB’s Petition, Inglewood, supra, 227 Cal.App.3d 767, held that the Board’s “interpretation of agency principles is subject to the clearly erroneous standard of review”(id. at p. 776), while its factual findings on agency—like all of the Board’s findings of fact—are conclusive if supported by substantial evidence(id. at p. 781). _ The Ballot Proponents argue that this case is unlike Inglewood: “This is not a case where PERB has determined whether a school principalis acting as an agentofa district while on duty on school grounds by applying ‘agency’ principles, under NLRB case law.” (Ballot Proponents’ Answer,pp. 21-22.) The Court of Appeal did not distinguish Inglewoodon these narrow factual grounds. Instead, it concluded that agency was a question of law in this case because it was based on undisputed material facts (Exh. A,p. 44, fn. 34), and that it was amongthoseareas of law outside of the Board’s expertise (id. at p. 43). Thus, the Court of Appeal created two direct conflicts: first, with Inglewood’s holding that agency, as a question of law, is within the Board’s administrative expertise; and second, with appellate authority holding that PERB’s factual findings are owed deference under the substantial evidence standard, regardless of whether 10 . PERB’s Reply Case No. 8242034 the facts are in dispute. (Moreno Valley Unified School Dist.v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191, 196.) 3. The Court of Appeal’s use of the word “erroneous” does not mean that it deferred to PERB’s interpretation of the MMBA. Despite arguing at length that the Court of Appeal wascorrect to review the Board’s interpretation of the MMBAde novo,both the City and the Ballot Proponents also argue that the Court of Appeal did, in fact, review the Board’s decision underthe “clearly erroneous” standard. (City’s Answer, pp. 15-16; Ballot Proponents’ Answer, p. 18.) The basis for this argumentis not that the Court of Appeal said it was considering the Board’s decision under both standards of review. It did not. (Exh. A., pp. 43-44.) Rather, the City and the Ballot Proponents simply assert that whenthe Court of Appeal described the Board’s conclusionsas “erroneous,” it was actually applying the “clearly erroneous” standard of * The Ballot Proponents also briefly refer to the Court of Appeal’s reliance on Los Angeles Unified School District. v. Public Employment Relations Board (1986) 191 Cal.App.3d 551 (Los Angeles USD). (Ballot Proponents’ Answer, pp. 20-21.) The Court of Appealcited this case for the supposed proposition that courts have “declined to accord any deference when the PERB decision does not adequately evaluate and apply commonlawprinciples.” (Exh. A, p. 26,fn. 21 .) To dispel any notion that there was conflicting authority onthis point before the Court of Appeal weighed in, Los Angeles USD did not “decline[] to accord any deference” to PERB. It correctly acknowledged that it was required to defer to PERB’s interpretation of the EERA unless that interpretation was “clearly erroneous.” (Los Angeles USD, supra, at p. 556.) . 11 PERB’s Reply Case No. 8242034 review. (See, e.g., City’s Answer, pp. 15-16 [“[W]hethera legal conclusion is classified as ‘erroneous’ or‘clearly erroneous’ is a distinction without a difference”],) Needless to say, neither Answercites any authority for the proposition that “erroneous” and “clearly erroneous” mean the samething. This argument assumesthat this Court has not meant what it said whenit repeatedly affirmed the “clearly erroneous”standard—notjust in the cases involving PERB (cited at page 33, footnote 5 ofthe Petition)—butalsoin those cases involving other administrative agencies. (See, e.g., Larkin v. W.C.A.B. (2015) 62 Cal.4th 152, 158; Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 988.) In fact, this Court has used the phrase “clearly erroneous”in various contexts virtually since its inception. (See, e.g., McFarland v. Pico (1857) 8 Cal. 626, 631 [“We would not disregard a decision ofthis Court, deliberately made, unless satisfied that it was clearly erroneous”].) The concept madeits way into this Court’s jurisprudence regarding the weight to be given an executive branch interpretation of a statute nearly a century ago. (Riley v. Thompson (1924) 193 Cal. 773, 778 [““A contemporaneousconstruction by the officers upon whom was imposed the duty of executing those statutesis entitled to great weight; and sinceit is not clear that that construction was erroneous, it ought not now to be 12 PERB’s Reply Case No. S242034 overturned’”’].) And the specific term entered the Court’s case law concerning review of administrative agency interpretations when this Court stated: “It is likewise true that the administrative interpretation of a statute will be accorded great respect by the courts andwill be followed if not clearly erroneous.” (Bodinson Mfg. Co. v. California Employment Com. (1941) 17 Cal.2d 321, 325.) As a result, the claim that the Court of Appeal below actually applied the “clearly erroneous” standard of review is meritless. 4. PERB hasconsistently maintained that the Board’s interpretation of the MMBAis entitled to deference. The City claims that the Board “invited” de novo review when,in the course of its administrative decision, it determined that certain issues were beyondits own jurisdiction but ultimately not implicated by the facts of the case. (City’s Answer, p. 15.) To the extent the City suggests that the Board has agreed that de novo wasthe proper standard of review of the Board’s interpretation of the MMBA,that suggestion is unfounded. In the portion of the Board’s decision cited by the City, the Board acknowledgedthat its own authority is limited to interpreting and enforcing the MMBA. (AR:X1:3006.) The Board noted, however,thatit “is not automatically divested of these powers and duties simply because matters of external law, including constitutional questions, are implicated in a labor dispute.” (AR:XI:3006-3007.) Consistent with this view, 13 PERB’s Reply Case No. 8242034 PERB’sbriefing to the Court of Appeal recognized that the Board’s interpretation of external law was not subject to deference. (See PERB’s Respondent’s Brief, p. 46.)° But, to be perfectly clear, the Board has never deviated from its position that the interpretation of the MMBAis subject to the clearly erroneous standard of review. (Jd. at pp. 44-45.) Because nothing cited by the City even suggests otherwise, the claim that the Board “invited” de novo reviewisfalse. B. The Court of Appeal’s sweeping conclusion that section 3504.5 limits the duty to meet and confer is not confined to the context of local initiatives or legislative acts. Both the City and the Ballot Proponents argue thatthis case is distinguishable from those cited in PERB’s Petition in which a public agency was foundto haveviolatedits duty to meet and confer without any formal action by its governing body. (See PERB’s Petition, p. 42, fn. 5.) As a threshold matter, these arguments do not address the conflict between the Court of Appeal’s opinion below and Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services District (1975) 45 Cal.App.3d 116, 118 and Los Angeles County Employees Association, > No party argued before the Court of Appeal that PERB’s conclusions regarding agency were notentitled to deference because they were based on undisputed fact and were matters of external law; the Court of Appeal reached these issues sua sponte. (Exh. A, pp. 43-44.) However, PERB pointed out in its Petition for Rehearing that even if agency is viewed as a question of law, the Boardis still entitled to deference underthe “clearly erroneous” standard. (PERB’s Petition for Rehearing, pp. 7, 11-12.) 14 PERB’sReply Case No. 8242034 Local 660 v. County ofLos Angeles (1973) 33 Cal.App.3d 1, 5. These cases held that a recognized employee organization canitself trigger the duty to meet and confer, by demanding to bargain over a negotiable subject. Thus, neither the City nor the Ballot Proponents claim that the Court of Appeal’s decision below wasconsistent with those cases. Moreover, the present case cannotbe distinguished from the other cases cited by PERB on the groundsthat those cases did not involve purportedly non-delegable legislative conduct (City’s Answer, p. 19), or citizens’ initiatives, which are not subject to the governing body’sdirect control (Ballot Proponents’ Answer, p. 24-25). These minordistinctions _ ignore the sweeping nature of the Court of Appeal’s conclusion that section 3504.5 specifies “when meet-and-confer obligations are triggered,” while section 3505 only “describes how that process should be accomplished, including who ... shall participate on behalf of the governing body.” (Exh. A, p. 47, fn. 37, emphasis in original.) As the Court of Appeal further pronounced: [C]ompliance with the meet-and-confer mandate of section 3504.5 [ Jis triggered only whenthere is someaction “proposedto be adopted by the governing body”(§ 3504.5, subd. (a)) rather than some action proposed by a putative agent of the governing body. (Id. at p. 59, fn. 49.) Further, the Court of Appeal rejected (without directly addressing) the Board’s conclusion that there could be a duty to 15 PERB’s Reply Case No. 8242034 bargain over a competingoralternative ballot measure, which would be under the control of the governing body. (AR:XI:3034 & fn. 23.) Any doubt on this point is removed by the Court of Appeal’s distinction between unfair practice allegations involving interference with employee rights under the MMBAandthose involving the refusal or failure to meet and confer. (Exh A., pp. 50-51.) According to the Court of Appeal, common law agencyprinciples may applyto find liability for “unapproved”conduct by a manager, supervisoror other putative agent of the public employer, where that conduct interferes with employeerights, but not when it might constitute a failure to bargain. (/bid.) Thus, by foreclosing any reliance on agencyprinciples to find a duty to meet and confer, the Court of Appeal’s conclusion leaves no openingto establish a duty to bargain based on a delegation of the governing body’s authority, or the fact that the governing bodyretains “control.” In addition, as PERB acknowledgedinits Petition, the interpretation of section 3504.5 was notat issue in the cases cited by PERB. Because the Court of Appeal’s far-reaching conclusion stands as — the only direct authority on this point, it creates substantial uncertainty regarding the duty to bargain in all future cases regarding this issue. The possibility that a future appellate court might distinguish the Court of Appeal’s opinion on the grounds advancedby the City or the Ballot 16 PERB’s Reply Case No. 8242034 Proponents offers no guidanceto the thousands of public agencies and employee organizations whose ongoing bargainingrelationships are governed by the MMBA.Therefore, even if the distinctions raised by the City and the Ballot Proponents were valid, this would not reduce the need for this Court to definitively resolve the issue. Iii. CONCLUSION If allowed to stand, the Court of Appeal’s opinion will have a profound destabilizing effect on public sector labor relations in California. Therefore, PERB respectfully asksthe Court to grant review. Dated: June 16, 2017 Respectfully submitted, J. FELIX DE LA TORRE, General Counsel WENDIL. ROSS, Deputy General Counsel By LFF LAEckhart, Board Counsel Attorneys for Respondent PUBLIC EMPLOYMENTRELATIONS BOARD 17 PERB’s Reply Case No. 8242034 COUNSEL’S CERTIFICATE OF COMPLIANCE WITH CALIFORNIA RULES OF COURT8.504(d)(1) Counsel of Record herebycertifies that pursuant to rule 8.504(d)(1) of the California Rules of Court, the enclosedbrief of Respondent Public EmploymentRelations Board is produced using 13-point Roman-type font and contains, including footnotes, 2,878 words, whichis less than the maximum—4,200 words—permitted by this rule. Counselrelies on the word count of the computer program usedto prepare this brief. Wheral WENDI L. ROSS Declarant PUBLIC EMPLOYMENT RELATIONS BOARD Dated: June 16, 2017 18 PERB’s Reply Case No. 8242034 PROOF OF SERVICE C.C.P. 1013a COURT NAME: Inthe Supreme Court for the State of California CASE NUMBER: Supreme Court: 8242034 Appellate Court: 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 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 Sacramento, State of California. I am overthe age of 18 and not a party to the within entitled cause. I am an employee of the Public Employment _ Relations Board, 1031 18th Street, Sacramento, California 95811. On June 16, 2017, I served the Public EmploymentRelations Board’s Combined Reply to Answersto Petition for Review regarding the above-referenced case onthe partieslisted below. Attorneyfor Petitioner: Kenneth H. Lounsbery James P. Lough Alena Shamos Lounsbery Ferguson Altona & Peak, LLP 960 Canterbury Place, Suite 300 Escondido, CA 92025-3836 Telephone: (760) 743-1226 E-mail: khl@lfap.com E-mail: jpl@lfap.com E-mail: aso@Ilfap.com 19 PERB’s Reply Case No. 8242034 Attorneys for Real Parties in Interest: Ann M.Smith Smith, Steiner Vanderpool & Wax 401 West A.Street, Ste. 320 San Diego, CA 92101 Telephone: (619) 239-7200 E-mail: asmith@ssvwlaw.com Attorneyfor Real Party in Interest San Diego Municipal Employees Association Fern M.Steiner Smith Steiner Vanderpool & Wax 401 West A Street, Ste. 320 San Diego, CA 92101 Telephone: (619) 239-7200. E-mail: FSteiner@ssvwlaw.com Attorneyfor Real Party in Interest San Diego City Firefighters, Local 145 Mara W.Elliott, City Attorney GeorgeSchaefer, Assistant City Attorney M.Travis Phelps, Deputy City Attorney City of San Diego 1200 Third Avenue,Ste. 1100 San Diego, CA 92101 Telephone: (619) 533-5800 E-mail: cityattorney@sandiego.gov gschaefer@sandiego.gov mphelps@sandiego.gov Attorneysfor Real Party in Interest City ofSan Diego James Cunningham Law Offices of James J. Cunningham 9455 Ridgehaven Court, #110 San Diego, CA 92123 Telephone: (858) 565-2281 E-mail: jimcunninghamlaw@gmail.com Attorneyfor Real Party in Interest Deputy City Attorneys Association ofSan Diego 20 PERB’s Reply Case No. 8242034 Ellen Greenstone Rothner, Segal & Greenstone 510 S. Marengo Avenue Pasadena, CA 91101 Telephone: (626) 796-7555 E-mail: egreenstone@rsglabor.com Courtof Appeal: Clerk of the Court Fourth District Court of Appeal, Division One Via TrueFiling [X] [X] (BY UNITED STATES MAIL) I 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 correspondencefor mailing. On the same day that correspondence is 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 placed in the mail at Sacramento, California. | (BY ELECTRONIC SERVICE (E-MAIL)) I served a copy of the above-listed document(s) by transmitting via electronic mail (e- mail) to the electronic service address(es) listed above on the date indicated. I did not receive within a reasonable period of time after the transmission any electronic messageor other indication that the transmission was unsuccessful. I declare under penalty of perjury of the State of California that the foregoing is true and correct and that this declaration was executed on June 16, 2017, at Sacramento, California. S. Taylor AYUMI (Type or print name) (Signature) 21 PERB’s Reply Case No. 8242034