Filed 1/12/15 County of Los Angeles v. Employee Relations Commission CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

COUNTY OF LOS ANGELES et al.,

Plaintiffs and Respondents,

v.

EMPLOYEE RELATIONS 

COMMISSION OF THE COUNTY OF 

LOS ANGELES,

Defendant;

ASSOCIATION OF DEPUTY DISTRICT 

ATTORNEYS,

Real Party in Interest and

 Appellant.

 B244307

 (Los Angeles County

 Super. Ct. No. BS132903)

APPEAL from a judgment of the Superior Court of Los Angeles County, Ann I. 

Jones, Judge. Affirmed.

Gree & Shinee and Richard A. Shinee for Real Party in Interest and Appellant.
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John F. Krattli, County Counsel, Joyce Aiello, Assistant County Counsel, Julie A. 

Silva, Principal Deputy County Counsel; Hausman & Sosa, Jeffrey M. Hausman, Larry 

D. Stratton; Ballard, Rosenberg, Golper & Savitt, Linda M. Savitt; Nassiri & Jung and 

John J. Manier for Plaintiffs and Respondents.

No appearance for Defendant.

__________________________

INTRODUCTION

Real party in interest Association of Deputy District Attorneys (ADDA) appeals 

from a judgment in favor of plaintiffs County of Los Angeles and the County’s Office of 

the District Attorney, Chief Executive Office, and Department of Human Resources. The 

court issued a peremptory writ of administrative mandate commanding defendant 

Employee Relations Commission of the County of Los Angeles (ERCOM) to set aside its 

order prohibiting the District Attorney’s Office (DAO) from making changes to the 

Deputy District Attorney (DDA) performance evaluation system, to enter a new order 

that the DAO and the County did not make the changes improperly, and to dismiss the 

ADDA’s unfair practice charge.

ADDA first challenges the judgment on the ground the trial court did not have 

jurisdiction to rule on the petition for writ of administrative mandate because the petition

was untimely under Government Code section 3509.5, subdivision (b). ADDA also

challenges the judgment on the merits, arguing that the DAO implemented the new 

performance evaluation system after ADDA was certified as the collective bargaining 

unit for DDAs. Therefore, ADDA contends, it was an unfair practice for the DAO to 

implement the new system outside the collective bargaining process, and ERCOM 

properly ordered the DAO not to implement the system.

We hold that the trial court had jurisdiction to rule on the petition for writ of 

mandate because the limitations period set forth in Government Code section 3509.5, 
3

subdivision (b), does not apply to judicial review of ERCOM decisions. We further hold 

that, because the DAO made the decision to implement the new performance evaluation 

system prior to ADDA’s certification as a bargaining unit, the DAO was not required to 

submit the new system to collective bargaining. We therefore affirm the trial court’s 

judgment ordering ERCOM to set aside its order prohibiting the DAO from 

implementing the new system.

FACTUAL AND PROCEDURAL BACKGROUND

A. ADDA’s Certification as a Bargaining Unit

On January 12, 2006 ADDA filed a petition for certification of a collective 

bargaining unit consisting of all non-supervisory DDAs. The County objected, and the 

matter was referred to ERCOM for a hearing.

ERCOM held hearings on March 29 and April 16, 2007. On August 7, 2007 the 

hearing officer recommended that ERCOM find “that the petitioned for unit of DDAs is 

an appropriate unit for collective bargaining.” The County filed a written statement of 

exceptions on August 23. ERCOM heard argument on the matter on September 24. On 

October 22 ERCOM adopted the hearing officer’s recommendation and ordered that 

ADDA was an appropriate unit for collective bargaining. On March 24, 2008, after 

ADDA had presented valid authorization cards from a majority of the members of the 

proposed unit, ERCOM certified ADDA “as the exclusive representative for purposes of 

collective bargaining of Unit No. 801.”

B. The Performance Evaluation System

For many years, the DAO, like other County departments, prepared performance 

evaluations using the County Human Resources Department’s “Report of Performance 

Evaluation” form. This was a paper form filled out by the reporting officers. It provided 

check-off boxes for ratings ranging from “outstanding” to “unsatisfactory” in the five 

performance categories of “professional skills,” “application to duties,” “adaptability,” 
4

“personal relations,” and “supervisory ability.” The form also provided space for 

comments. Supervisors reviewed employees annually, with the performance review 

period based on an employee’s anniversary date.

In 2002 the County Board of Supervisors began looking at “ways to enhance the 

quality and productivity of the County workforce by, among other things, looking at new 

web-based methods to improve employee work performance.” The Board adopted a 

County-Wide Strategic Plan, “an overall planning initiative” intended “to align the 

activities of all departments in one, overall county strategic direction.” The plan 

“consists of goals, . . . strategies, objectives that apply across the county.” Part of the 

County-Wide Strategic Plan was a performance evaluation system to accurately assess 

employee performance and tie performance to compensation. In the 2005 update to the 

Strategic Plan the Board set a strategy to reach the goal of workforce excellence: “By 

July 1, 2007 begin a phased implementation of the proposed countywide performance 

management system, designed to improve individual performance, and align employee 

job performance and work behaviors with County and/or departmental strategic 

objectives and values.” One of the objectives for fulfilling this goal was to develop “a 

plan for implementing an automated, enterprise-wide performance management system” 

by September 30, 2005.

In April 2006 Chief Deputy District Attorney John K. Spillane established a 

management working committee to assist the DAO in reaching Strategic Plan goals. He 

appointed Pamela Booth, Director of the Bureau of Branch and Area Operations, Region 

II, to head the committee. The goal was to have the new performance management 

system in place by the end of 2006.

DAO management concluded that the old performance evaluation forms did not 

provide a reliable indicator of attorney performance because most DDAs routinely 

received a rating of “outstanding,” which suggested that ratings were inflated. 

Management wanted more objective rating criteria in order “to honestly, fairly and 

correctly evaluate” DDAs’ performance.
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C. Implementation of the New Performance Evaluation System

According to Spillane, implementation of the new performance evaluation system 

began in January 2007. At that time “[t]he work plans . . . which had been already 

created . . . began to be given out to the district attorneys.” The performance evaluation 

tool was “substantially” in existence at that time. That same month Booth prepared a 

power point presentation that explained the new performance evaluation system to the 

raters and included the performance evaluation worksheet. Training sessions for the 

raters using the presentation were scheduled to begin in February 2007.1

On February 14, 2007 Spillane wrote to all DDAs regarding performance 

evaluations. He stated that “[a] new Performance Evaluation form for the 2007-2008 

rating period has been developed in order to assist supervisors using the performance 

evaluation system to effectively and accurately rate attorney staff.” After explaining the 

goals of the new system, he stated, “In order to make each of you aware of the 

performance expectations and new terminology used in the 2007-2008 Performance 

Evaluations, at the time the evaluation covering the 2006-2007 rating period is discussed 

with a deputy, each Rater will provide the deputy with a document entitled Performance 

Work Plan. . . . The Performance Work Plan provides guidelines of the objective 

behaviors a deputy should regularly manifest in order to meet the requirements and 

responsibilities for each assignment and for employment as a deputy district attorney. 

[¶] The office will continue to use the current Performance Evaluation form for all 

evaluations that will be issued in the 2007 calendar year. Beginning January 1, 2008, the 

office will employ the new Performance Evaluation document for all attorney staff to 

evaluate performance for the 2007-2008 rating period.”

Booth wrote in a February 16, 2007 email that “Mr. Spillane has approved the 

final version of the Work Plan and Acknowledgment form,” and attached copies so that 

the raters could create templates. The email again stated that the plan was for the raters 

 

1 According to Spillane, “we began training the raters on the new performance 

evaluation system in 2007, and it continued on into 2008.”
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to discuss the forms during the 2006-2007 performance evaluations. Lynn Vodden 

responded on February 21 that she would “create a template of the Work Plan and 

Acknowledgement [sic] Form and then distribute [it] electronically . . . . We do not have 

a system yet to pre-populate these forms with the employee’s information. In order to get 

this off the ground we’re going to have to implement as described above until a system is 

designed to produce the Work Plan as well as the new PE once it’s finalized.” On 

February 22 Booth asked when the form would be available, noting “our immediate 

concern is to meet Mr. Spillane’s time-table for getting the form out to the Raters by the 

end of this month . . . .”

One of the recipients of the emails, John Morris, wrote on April 17, 2007 that 

Spillane had “approved the Memorandum for Implementation of the Attorney Work Plan

. . . and the instructions for implementing it.” Morris stated that, before DAO 

management could send out these documents, he needed a list of attorneys whose 

performance evaluations were due for the period of January 1 through April 20, 2007, 

and he needed staff to set up computer icons and email them to the raters.

On April 19, 2007 Spillane sent a memorandum to the district attorney, assistant 

district attorneys, and bureau directors regarding implementation of the new system. He 

stated: “Effective January 1, 2007, the office implemented a new Performance 

Evaluation system for attorneys. This new program includes three new documents: A 

Work Plan; an accompanying form showing acknowledgment of receipt of the Work 

Plan . . . ; and a new Performance Evaluation rating instrument.” Spillane explained that, 

“[i]n order to facilitate implementation,” raters would complete and discuss the new 

forms with the attorneys during their 2006-2007 performance evaluations. The Systems 

Division would send the raters computer icons containing templates of the work plan and 

acknowledgment form.

DDA Frank Tavelman was Senior Vice-President of ADDA in 2007 and 2008. He 

stated that in June or July 2007 Booth met with the ADDA board of directors to explain 

the new performance evaluation system. He remembered “her talking about the 

performance work plan and how it was going to be implemented.” Tavelman 
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remembered Booth talking “about timing, that it hadn’t been implemented yet and it was 

a work in progress.” Tavelman said the meeting was somewhat “heated.” The board 

members “were expressing concerns about what was happening and the need for us to 

have some input because of the way that we believed this was going to affect D.A.’s

[sic], given the limited knowledge that we had.”

On June 21, 2007 the ADDA board voted to oppose the new performance 

evaluation system. On July 9, 2007 ADDA’s president, Steve Ipsen, sent a letter to 

Booth stating ADDA’s objections to the system. Tavelman sent Booth “more detailed 

concerns pertaining to the new Performance Work Plan (‘PWP’) and Performance 

Evaluation (‘PE’). These comments are based on a discussion with the Board as well as 

DDAs who are already being subject to these new forms (although we were under the 

impression that implementation would not take place as of yet).”

Booth responded to Ipsen on August 17, 2007, stating that “[a]fter reading your 

letter, I am very concerned that I failed to effectively communicate several key elements 

of the revised system.” She noted that “[t]he revised PE system is still in the process of 

being drafted. In fact, since the Board meeting, input has been solicited and received 

from a number of deputies, several of whom will be rated under the revised system, and 

significant changes have been made as a result of their comments.” She further noted 

that she expected the worksheet used for evaluations would undergo adjustments for the 

next several years.

Booth responded to Tavelman on August 21, 2007, stating that then-Assistant 

District Attorney Jackie Lacey would attend the ADDA board meeting that evening to 

address his concerns. Booth said Lacey would “have two documents in the final draft 

phase that we hope to promulgate within the next several weeks that address several of 

the concerns expressed by the ADDA Board as well as some of the issues you raise . . . .” 

Booth also told Tavelman the “PE Worksheet” he requested was “not yet ready for 

distribution,” but it would “be available to all deputies for review before the end of the 

year.”
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On November 12, 2007 Spillane wrote in his “View from the 18th Floor” 

newsletter that the DAO had announced in February 2007 “that significant revisions had 

been made to the Performance Evaluation (PE) system for attorney staff. Implementation 

of this revised PE will take effect in April of 2008. . . . Beginning in April of this year, 

the process was begun whereby each deputy will be provided a copy of the Performance 

Work Plan.” Spillane noted that, “[i]n response to a number of excellent suggestions 

from deputies, the Work Plan has recently been revised. . . . It is anticipated that the 

Worksheet will continue to undergo consequential adjustments for the next several years 

in an effort to achieve the goals of fair, accurate and meaningful evaluations of attorney 

performance.”

A series of emails between Booth and others in January and February 2008 shows 

that the DAO was still making revisions to the PE Work Plan. On February 26, 2008 

Booth sent Spillane “the latest electronic version of the Workplan.” She asked whether it 

was still going to debut in April, referring to problems with “the people in HR.” The 

following day Booth emailed staff members that she “just confirmed with Mr. Spillane 

that we [are] good for launch on April 1 – April Fool’s Day and all.” She added that she 

was “really looking forward to testing the stuff out next week,” and that work had started 

on the manual. On March 14, 2008 Booth explained, in response to a question about 

training, “Originally, the plan was to begin the new PE process in January of 2008. 

Because the Work Plan was not available until April, however, and the deputies who had 

PEs completed from January-March had not had a full year’s notice of the criteria set in 

the Work Plan, we delayed the implementation of the new PEs until April (this was 

announced in LADAnet in December of 2007).”

D. ADDA’s Challenge to Implementation of the New Performance

Evaluation System

On March 10, 2008 John Harrold, Chairman of ADDA’s Labor Committee, wrote 

to then-District Attorney Steve Cooley stating that on March 24 ERCOM would formally 

recognize ADDA as the certified bargaining unit for all Los Angeles DDAs. “It is the 
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position of the ADDA that this Administration’s decision to implement any significant 

alteration or modification of employee/employer relations during this time of 

unionization would constitute an unfair labor practice unless submitted to the bargaining 

unit for negotiation. Changing the status of employer/employee relations while clear 

efforts aimed at unionization are underway is considered inimical to constitutionally 

protected rights of association. It is our belief the new Performance Evaluation 

significantly alters employer/employee relations, and as such should not be implemented, 

if at all, until after your administration meets and confers with authorized representatives 

of the ADDA and an agreement is reached.”

On March 26, 2008 Spillane wrote a letter on behalf of Steve Cooley reminding 

Harrold that the new performance evaluation system had been announced on 

February 14, 2007, Booth had met with ADDA concerning the new plan, and the 

Performance Evaluation Revision Committee had accepted many of ADDA’s 

suggestions. Spillane recounted that “[t]he Implementation of the new forms was 

delayed from January 1, 2008 to April 1, 2008 to allow all Deputy District Attorneys to 

receive a Performance Work Plan well in advance of receiving the new performance 

evaluation.” Spillane told ADDA, “[t]he Department will be implementing the new 

performance evaluation forms on April 1, 2008.”

Harrold testified, however, that “[n]o one from the District Attorney’s Office . . .

ever responded to me.” The only response he received was from Donald L. Washington, 

Manager and CEO/Employee Relations with the County’s Chief Executive Office. 

Washington wrote on April 24, 2008 that “the Chief Executive Office/Employee 

Relations Division is responsible for conducting contract negotiations for newly 

established bargaining units . . . .” He invited Harrold to contact him “so that we can 

schedule a meeting to discuss the issues you raised regarding the ‘proposed new 

performance evaluation form.’” Washington also suggested that Harrold consult 

ADDA’s board of directors “regarding the commencement of formal negotiations for a 

new Memorandum of Understanding for Deputy District Attorneys.”
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On August 21, 2008 ADDA filed a formal unfair labor practices charge with 

ERCOM. ADDA filed amended charges on August 27 and September 24, 2008. ADDA 

alleged that it was certified as a bargaining unit on March 24, 2008. The DAO

subsequently “unilaterally modified the existing employer/employee relationship without 

properly meeting and conferring, as well as negotiating with the ADDA on the changes.” 

“The management of the District Attorney’s Office was aware of the ADDA’s efforts to 

certify for the past several years,” and those efforts “predate[d] the management’s 

commencement of it[s] modification of the existing performance evaluation . . . .”

ADDA alleged that the new performance evaluation system “was, by admission, 

not implemented until sometime after April 1, 2008, subsequent to the ERCOM 

declaration establishing the ADDA as a bargaining unit . . . .” The DAO’s “ongoing 

effort to alter or change the employer/employee relationship during the ADDA’s effort to 

certify and afterward is an unfair labor practice, and the County’s refusal to intervene,” 

despite ADDA’s requests that it do so, “is an ongoing offense.” ADDA requested that 

ERCOM order the DAO to cease and desist from implementing the new performance 

evaluation system and to rescind any evaluations made using the new system.

On February 26, 2009 ERCOM appointed a hearing officer to hear the matter. 

The hearing officer conducted hearings in late 2009 and early 2010, and issued a report 

on August 19, 2010. The hearing officer concluded that the DAO, “through PERSA [the 

new Performance Evaluation Review Systems for Attorneys], made material changes to 

the existing DDA I-IV performance evaluation system set forth in [Civil Service Rule]

20.04 without notice to or opportunity for the Charging Party to bargain.” The hearing 

officer also found that “PERSA had not been fully implemented at the time the ADDA 

became certified and demanded to bargain.” The hearing officer concluded that the 

matter was “clearly negotiable as it implicates or relates to unit employees’ wages, hours, 

and working conditions within the scope of bargaining. The County thus has a duty to 

negotiate with Charging Party on the effects of P.E. Rule changes and its failure and 

refusal to do so violates [Employee Relations] Ordinance Sections 12(a)(1) and 12(a)(3). 

[¶] Once its duty to bargain arose, the County also failed to provide the ADDA with 
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relevant requested information necessary to meet and confer and thereby violated 

Sections 12(a)(1), 12(a)(3) and 15 of the Ordinance.” The hearing officer also found that 

the DAO’s actions were not motivated by anti-union animus.

The hearing officer recommended that ERCOM order the DAO to “[r]escind the 

PERSA system changes and restore the status quo ante to DDA I-IV employee 

performance evaluations as they existed prior to April 1, 2008.” He further 

recommended that ERCOM order the DAO not to make any changes to the performance 

evaluation system without first bargaining with ADDA.

The DAO filed exceptions to the hearing officer’s report. The DAO argued that

the hearing officer had no authority to rule on the DAO’s compliance with Civil Service 

Rules and, in any event, the change to the performance evaluation system did not violate 

Civil Service Rules. The DAO also argued that the change to the performance evaluation 

system did not have any adverse impact and thus did not violate the Employee Relations 

Ordinance. The DAO also asserted that the hearing officer’s recommendation that the 

DAO restore the status quo ante was ambiguous and would “unwind” the entire 

performance evaluation system. ADDA responded to the DAO’s exceptions, and the 

parties argued the matter before ERCOM.

ERCOM issued its decision adopting the hearing officer’s report and 

recommendations in their entirety. ERCOM ordered the DAO to “cease and desist from 

making changes to the DDA I-IV performance evaluation system and Civil Service Rules 

(“CSR”) pertaining thereto, including but not limited to CSR 20, without first negotiating 

with the ADDA.”

The County, the Chief Executive Office, and the Department of Human Resources 

filed a motion for reconsideration. ADDA filed an opposition arguing, among other 

things, that the County, the Chief Executive Office, and the Department of Human 

Resources were improperly seeking to intervene in the action. ERCOM denied the 

motion for reconsideration and affirmed its previous decision.
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E. Mandate Proceedings

On July 12, 2011 the County, the Chief Executive Office, the Department of 

Human Resources, and the DAO (collectively, the County) filed a petition for writ of 

administrative mandate (Code Civ. Proc., § 1094.5), writ of mandate (id., § 1085), and 

complaint for declaratory relief (id., § 526, subd. (a)). ADDA sought an order directing 

the DAO to comply with ERCOM’s final order in the absence of a stay, and the County

filed a cross-motion to stay enforcement of ERCOM’s order. In support of the County’s

motion to stay, Booth submitted a declaration explaining the difficulty and unfairness of 

undoing the ratings given under the new performance evaluation system and returning to 

the old system. The trial court granted the County’s motion for a stay, finding that a stay 

of the proceedings was in the public’s best interest, and it denied as moot ADDA’s 

request for an order requiring the DAO to comply immediately with ERCOM’s decision.

The trial court heard the matter on July 27, 2012 and issued a ruling on July 30. 

The court first addressed the issue whether the DAO was required to negotiate with 

ADDA. The court noted the DAO’s position “that the revised performance evaluation 

system was implemented no later than the beginning of the 2007-2008 rating period in 

April 2007,” although “the use of the new forms was delayed” until “April 1, 2008 so that 

all DDAs had received a Performance Work Plan by the time the new evaluations were 

given.” The court also noted ADDA’s position “that the lynchpin [sic] of the revised 

evaluation system was the PERSA Data Sheet—the computer interface used as a rating 

tool for the new performance evaluation system. Unless and until that form was 

completely settled and finalized, the Performance Evaluation System was not 

‘implemented.’” The court recognized that, according to ADDA, the new performance 

evaluation system was not implemented until after April 1, 2008.

In the trial court’s view, the fact that the DAO was still revising and disseminating 

certain aspects of the new performance evaluation system did not constitute substantial 

evidence that the DOA had not implemented the system. “The relevant inquiry is not 

whether there are rating documents and the computer interface documents that will be 

revised,” because such documents are always subject to revision. Rather, “the relevant 
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inquiry requires ERCOM to ask whether the revised personnel system was underway in a 

way and to a degree whereby there would have been no alteration to the system even if 

collectively bargained. The uncontroverted evidence in the record demonstrates that the 

system was in place, that deputy DAs were being evaluated using new work plans and 

new measures of performance and that there was nothing meaningful to discuss at the 

time the ADDA was certified. That rating forms required to generate data were 

incomplete does not constitute substantial, relevant evidence that the revised system was 

not fully [implemented] before March 24, 2008.”

The trial court found that “[i]mplementation of a revised personnel system occurs 

at the beginning of the rating period—when the new Work plan is issued to rated 

employees—not at the end when the PEs are finally issued.” Because this occurred 

before ADDA was certified as a bargaining unit, the DAO “did not have a statutory 

obligation to negotiate pursuant to LA County Code sections 5.04.030 and 5.04.240.” 

The court added that ERCOM had no jurisdiction over actions taken before ADDA’s 

certification. Therefore, ERCOM’s “decision finding an unfair employee relations

practice against [the DAO] for failing to bargain with . . . ADDA is an abuse of discretion 

because such a conclusion is not supported by substantial evidence . . . .”

The trial court also addressed the petitioners’ argument that ERCOM erred as a 

matter of law in concluding that the DAO had a duty to bargain under the balancing test 

in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, which 

sets forth the factors that an employer must consider in determining whether a 

management action is subject to collective bargaining. Under Claremont, the trial court 

stated, the question is “whether, as a matter of law, the revised personnel system had a 

‘significant and adverse effect on the . . . working conditions’ of represented district 

attorneys.” The court concluded that the revised system did have such an effect because, 

under the new system, far fewer DDAs received the highest rating. The new 

“performance evaluation system would have far-reaching consequences, affecting job 

security, specialty assignments, promotional opportunities, merit pay increases, step-
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salary increases; disciplinary consequences, and appraisal of promotion and layoff 

issues.”

The trial court noted, however, that Claremont “mandates two additional 

inquiries—neither of which appear[s] to have been considered by ERCOM. [¶] ERCOM 

failed to consider whether the significant and adverse effects associated with the revised 

PE system arose from the implementation of a fundamental managerial or policy 

decision. In addition, ERCOM failed to balance the employer’s need for unencumbered 

decision-making in managing its operations against the benefit to employer-employee 

relations of bargaining about the change to the performance evaluation system.” By 

failing to perform the entire Claremont analysis, the court concluded, ERCOM “failed to 

proceed in a manner required by law.” For that reason, ERCOM’s conclusion that the 

DAO’s failure to bargain constituted an unfair labor practice “was erroneous as a matter 

of law.”

The trial court entered judgment on August 13, 2012. The court issued a writ of 

administrative mandate commanding ERCOM to set aside its decision and to enter a new 

and different decision that the DAO did not violate the Employee Relations Ordinances 

or Civil Service Rules, and dismissing ADDA’s unfair labor practice charge with 

prejudice. ADDA timely appealed.

DISCUSSION

A. The Superior Court Had Subject Matter Jurisdiction

ADDA first contends that the superior court lacked subject matter jurisdiction over 

this case because under Government Code section 3509.5, subdivision (b),2the Court of 

Appeal has jurisdiction over a challenge to a decision by ERCOM, and the County failed 

to file the petition for writ of administrative mandate within the 30-day time limit 

 

2 Unless otherwise specified, all further section references are to the Government 

Code.
15

prescribed by section 3509.5, subdivision (b). The County argues that section 3509.5

does not apply to a writ petition challenging a decision by ERCOM. Whether section 

3509.5, subdivision (b), applies to decisions by ERCOM is a matter of statutory

interpretation involving several statutes and the contexts in which the Legislature enacted 

them.

1. The Meyers-Milias-Brown Act and Section 3509.5

“In 1961, the Legislature enacted the George Brown Act (Stats. 1961, ch. 1964, 

§ 1, pp. 4141-4143, adding Gov. Code, § 3500 et seq.), which granted public employees 

in California the right to organize and have their representatives ‘meet and confer’ with 

their employers over wages and working conditions [citation]. That right was expanded 

in 1968, when the Legislature enacted the [Meyers-Milias-Brown Act (MMBA)] (Gov. 

Code, §§ 3500-3510) authorizing public entities and labor representatives not only to 

confer but also to reach binding agreements on wages, hours, and working conditions. 

[Citations.]” (City of San Jose v. Operating Engineers Local Union No.3 (2010) 49 

Cal.4th 597, 603; see Coachella Valley Mosquito & Vector Control Dist. v. California 

Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077, 1084.)

The history of the Public Employment Relations Board (PERB) began “in 1975, 

when the Legislature enacted the Educational Employment Relations Act (EERA) 

(. . . §§ 3540-3549.3). That law established the Educational Employment Relations 

Board (EERB), which in 1977 was renamed the Public Employment Relations Board.” 

(City of San Jose v. Operating Engineers Local Union No.3, supra, 49 Cal.4th at pp. 603-

604, citing Coachella Valley Mosquito & Vector Control Dist. v. California Public 

Employment Relations Bd., supra, 35 Cal.4th at p. 1085.) Section 3541.5 gave PERB 

jurisdiction over charges of unfair labor practices. (City of San Jose, supra, at p. 604.)

“In 2000, the Legislature extended PERB’s jurisdiction to cover matters arising 

under the MMBA—this was done through enactment of . . . section 3509, which became 

effective July 1, 2001. (Stats. 2000, ch. 901, § 8.)” (City of San Jose v. Operating 

Engineers Local Union No.3, supra, 49 Cal.4th at p. 605.) Section 3509, subdivision (a),
16

provides: “The powers and duties of the board described in Section 3541.3 [of the 

EERA] shall also apply, as appropriate, to this chapter . . . .” Section 3501, 

subdivision (f), specifies that, as used in the MMBA, “‘[b]oard means the Public 

Employment Relations Board established pursuant to Section 3541.”

With respect to local agencies, the MMBA provides in section 3507, 

subdivision (a), that “[a] public agency may adopt reasonable rules and regulations after 

consultation in good faith with representatives of a recognized employee organization or 

organizations for the administration of employer-employee relations under this chapter.” 

Subdivision (d) of section 3507 provides: “Employees and employee organizations shall 

be able to challenge a rule or regulation of a public agency as a violation of this chapter. 

This subdivision shall not be construed to restrict or expand the board’s jurisdiction or 

authority as set forth in subdivisions (a) to (c), inclusive, of Section 3509.” 

Subdivisions (a) to (c) of section 3509 provide that PERB’s powers and duties extend to 

the MMBA, “[a] complaint alleging any violation of this chapter or of any rules and 

regulations adopted by a public agency pursuant to Section 3507 or 3507.5 shall be 

processed as an unfair practice charge by the board,” and “[t]he board shall enforce and 

apply rules adopted by a public agency concerning unit determinations, representation, 

recognition, and elections.” Subdivision (d) of section 3509 provides: “Notwithstanding 

subdivisions (a) to (c), inclusive, the employee relations commissions established by, and 

in effect for, the County of Los Angeles and the City of Los Angeles pursuant to 

Section 3507 shall have the power and responsibility to take actions on recognition, unit 

determinations, elections, and all unfair practices, and to issue determinations and orders 

as the employee relations commissions deem necessary, consistent with and pursuant to 

the policies of this chapter.”

The Legislature enacted Section 3509.5 in 2002 “to establish procedures for 

judicial review of determinations by the Public Employment Relations Board.” (Stats. 

2002, ch. 1137, § 1(c).) Subdivision (a) of section 3509.5 provides that any party 

“aggrieved by a final decision or order of the board in an unfair practice case . . . may 

petition for a writ of extraordinary relief from that decision or order.” Subdivision (b) of 
17

that section provides that “[a] petition for a writ of extraordinary relief shall be filed in 

the district court of appeal having jurisdiction over the county where the events giving 

rise to the decision or order occurred. The petition shall be filed within 30 days from the 

date of the issuance of the board’s final decision or order, or order denying 

reconsideration, as applicable. . . .”

2. ERCOM

“In the same year the MMBA was enacted, the County passed its own ordinance 

conforming to the legislative policies expressed in the MMBA. [Citation.] The 

ordinance created ERCOM to administer its provisions. [Citations.] In giving PERB 

jurisdiction over MMBA disputes, the Legislature made an express exception for 

ERCOM. Section 3509, subdivision (d) states that, notwithstanding PERB’s jurisdiction 

to administer the MMBA, ERCOM retains the power to consider and resolve 

employment relations matters ‘consistent with and pursuant to the policies of this 

chapter.’ Allegations of unfair labor practices by the County must be brought to 

ERCOM, not PERB. In essence, ERCOM is a separate agency empowered to resolve 

public employment labor disputes in Los Angeles County just as PERB does for all other 

counties in California. [¶] ERCOM must exercise its authority in a manner ‘consistent 

with and pursuant to’ the policies of the MMBA as interpreted and administered by 

PERB. [Citation.]” (County of Los Angeles v. Los Angeles County Employee Relations 

Com. (2013) 56 Cal.4th 905, 916-917.)

ERCOM is governed by chapter 5.04 of title 5 of the Los Angeles County Code of 

Ordinances, “known as the ‘employee relations ordinance of the county of Los Angeles’”

(ERO). (ERO § 5.04.010.) The purpose of the ERO was to establish public policy with 

respect to labor relations, including “A. Recognizing and defining the rights of 

employees to join organizations of their own choosing for the purpose of representation

on matters affecting employee relations or to represent themselves individually in dealing 

with the county; [¶] B. Establishing formal rules and procedures to provide for the 

orderly and systematic presentation, consideration and resolution of employee relations 
18

matters; and [¶] C. Creating an independent employee relations commission to ensure 

that all county employees and their representatives are fairly treated, that their rights are 

maintained, and that their requests are fairly heard, considered and resolved.” (ERO 

§ 5.04.020.) The provisions of the ERO were “not intended to conflict with the 

provisions of Chapter 10, Division 4, Title 1 of the Government Code of the state of 

California (Sections 3500 et seq.) as amended in 1968 [i.e., the MMBA].” (ERO 

§ 5.04.040, subd. E.)

The ERO provided for the continued existence of ERCOM to “implement and 

administer the provisions of this chapter.” (ERO § 5.04.100, subd. A.) Among the 

powers the ERO granted to ERCOM is the power “[t]o investigate charges of unfair 

employee relations practices or violations of this chapter, and to take such action as the 

commission deems necessary to effectuate the policies of this chapter . . . .” (Id., 

§ 5.04.160, subd. E.) The ERO further provides that ERCOM “is a separate agency of 

the county and is authorized, following notice and hearing, to adopt reasonable rules and 

procedures not inconsistent with the provisions of Ordinance 9646 [which enacted the 

ERO] or any other county ordinance and which are necessary in the performance of its 

duties under this chapter.” (Id., § 5.04.170.)

Under the ERO, “If [ERCOM] decides that the county has engaged in an unfair 

employee relations practice or had otherwise violated this chapter or any rule or 

regulation issued thereunder, the commission shall direct the county to take appropriate 

corrective action. [¶] 1. Such order shall be binding on the county, unless it requires 

action by the board of supervisors to make appropriations adjustments, transfers or 

revisions as provided by Section 29000 et seq. of the Government Code, or the adoption 

of a county ordinance by the board of supervisors. If the county fails to take action to 

comply with a binding order of [ERCOM] within such reasonable time as [ERCOM] may 

specify, an aggrieved party may petition the Superior Court for a writ of mandate to 

enforce the order.” (ERO § 5.04.240, subd. E1.) If action by the board of supervisors is 

required and the board of supervisors “does not take action within such reasonable time 

as [ERCOM] may specify, [ERCOM] shall so notify the other parties. An aggrieved 
19

party may then seek judicial relief from the Superior Court for enforcement of 

[ERCOM]’s order to the extent that compliance with such order is required by state law, 

or by this chapter or any valid rule or regulation issued thereunder. Notwithstanding the 

failure of the board of supervisors to take such action, the Superior Court shall have 

jurisdiction to exercise its independent judgment on the evidence in light of the whole 

record and in its discretion to take additional evidence and to issue a writ of mandamus 

enforcing [ERCOM]’s order on a finding by the Superior Court that the county has 

committed an unfair employee relations practice in violation of state law, or this chapter.” 

(Id., subd. E2.)

3. Rules of Statutory Construction To Interpret Section 3509.5

In determining whether section 3509.5 applies to decisions by ERCOM “‘[w]e 

begin with the fundamental rule that our primary task is to determine the lawmakers’

intent.’ [Citation.] ‘In construing statutes, we aim “to ascertain the intent of the enacting 

legislative body so that we may adopt the construction that best effectuates the purpose of 

the law.”’ [Citation.] California courts ‘have established a process of statutory 

interpretation to determine legislative intent that may involve up to three steps.’ 

[Citation.] The ‘key to statutory interpretation is applying the rules of statutory 

construction in their proper sequence . . . as follows: “we first look to the plain meaning 

of the statutory language, then to its legislative history and finally to the reasonableness 

of a proposed construction.”’ [Citation.]” (Mt. Hawley Ins. Co. v. Lopez (2013) 215 

Cal.App.4th 1385, 1396-1397; accord, Busse v. United PanAm Financial Corp. (2014) 

222 Cal.App.4th 1028, 1038.)

The first step in our inquiry is to examine the words of the statute themselves, 

“‘because the statutory language is generally the most reliable indicator of legislative 

intent.’” (Klein v. United States of America (2010) 50 Cal.4th 68, 77; Mt. Hawley Ins.

Co. v. Lopez, supra, 215 Cal.App.4th at p. 1397.) “‘If the interpretive question is not 

resolved in the first step, we proceed to the second step of the inquiry. [Citation.] In this 

step, courts may “turn to secondary rules of interpretation, such as maxims of 
20

construction, ‘which serve as aids in the sense that they express familiar insights about 

conventional language usage.’” [Citation.] We may also look to the legislative history.

[Citation.] “Both the legislative history of the statute and the wider historical 

circumstances of its enactment may be considered in ascertaining the legislative intent.” 

[Citation.] [¶] “If ambiguity remains after resort to secondary rules of construction and 

to the statute’s legislative history, then we must cautiously take the third and final step in 

the interpretive process. [Citation.] In this phase of the process, we apply ‘reason, 

practicality, and common sense to the language at hand.’ [Citation.] Where an 

uncertainty exists, we must consider the consequences that will flow from a particular 

interpretation. [Citation.] Thus, ‘[i]n determining what the Legislature intended we are 

bound to consider not only the words used, but also other matters, “such as context, the 

object in view, the evils to be remedied, the history of the times and of legislation upon 

the same subject, public policy and contemporaneous construction.” [Citation.]’ 

[Citation.] These ‘other matters’ can serve as important guides, because our search for 

the statute’s meaning is not merely an abstract exercise in semantics. To the contrary, 

courts seek to ascertain the intent of the Legislature for a reason—‘to effectuate the 

purpose of the law.’”’ [Citations.]” (Mt. Hawley Ins. Co., supra, at p. 1397.)

Finally, even if the meaning of the words in a statute is clear, it may be necessary 

to engage in the second and third steps of the inquiry where the context of the statute 

reveals a latent ambiguity. “A latent ambiguity exists when a literal interpretation of a 

statute would frustrate the purpose of the statute. [Citation.] When faced with a latent 

ambiguity, we must determine which interpretation of the statute is most consistent with 

the legislative intent. We infer that the Legislature intended an interpretation producing 

practical, workable results, not one producing mischief or absurdity. [Citation.]” (People 

v. Childs (2013) 220 Cal.App.4th 1079, 1101.) We may then “‘look to a variety of 

extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, 

the legislative history, public policy, contemporaneous administrative construction, and 

the statutory scheme of which the statute is a part’” in order to determine its meaning. 

(People v. Leiva (2013) 56 Cal.4th 498, 510.)
21

4. Analysis

As noted, section 3509.5, subdivision (a), provides that any party “aggrieved by a 

final decision or order of the board in an unfair practice case . . . may petition for a writ 

of extraordinary relief from that decision or order.” Both subdivision (b) of that section, 

which requires the aggrieved party to file the petition in the Court of Appeal, and 

subdivision (c) of that section, which governs enforcement of final decisions and orders, 

also refer to the “board.” Section 3501, subdivision (f), specifies that, as used in the 

MMBA, “‘[b]oard’ means the Public Employment Relations Board established pursuant 

to Section 3541.” This language is clear and unambiguous: the references to the “board” 

in section 3509.5 are to PERB, not to ERCOM.

ADDA’s argument, in essence, is that the reference to ERCOM in section 3509 

creates a latent ambiguity in section 3509.5. Section 3509, subdivision (d), provides 

ERCOM “shall have the power and responsibility to take actions on recognition, unit 

determinations, elections, and all unfair practices, and to issue determinations and orders 

as the employee relations commissions deem necessary, consistent with and pursuant to 

the policies of this chapter.” (Italics added.) ADDA argues that the italicized portion of 

this section means that ERCOM is bound by the provisions of section 3509.5.

In support of its argument, ADDA relies on Singletary v. International 

Brotherhood of Electrical Workers, Local 18 (2012) 212 Cal.App.4th 34. In Singletary, 

the superior court dismissed an action under the MMBA, finding that under Government 

Code section 3509, subdivision (d), the Employee Relations Board of the City of Los 

Angeles (ERB)3 had exclusive jurisdiction over the labor dispute. (Singletary, supra, at 

p. 37.) The Court of Appeal explained, “In 2000, the Legislature extended PERB’s 

jurisdiction to cover matters arising under the MMBA through enactment of section 

3509, which became effective July 1, 2001. (Stats. 2000, ch. 901, § 8, p. 6607.) 

Section 3509, subdivision (b) now provides in relevant part that ‘The initial 

 

3 The exceptions to PERB jurisdiction in subdivision (d) of section 3509 include 

both ERCOM and ERB.
22

determination as to whether the charge of unfair practice is justified and, if so, the 

appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter 

within the exclusive jurisdiction of [PERB] . . . .’ The legislature recognized that the 

MMBA had ‘no effective enforcement procedures except for court action, which is timeconsuming and expensive. One of the basic principles of an effective collective 

bargaining law should be to provide for enforcement by an administrative agency with 

expertise in labor relations. The appropriate role for the courts is to serve as an appellate 

body.’ (Assem. Com. on Appropriations Analysis of Sen. Bill No. 739 (1999–2000 Reg. 

Sess.) as amended June 6, 2000, p. 2.) These changes had the effect of removing from 

the courts their initial jurisdiction over MMBA unfair practice charges. [Citation.]

“As a result, section 3509, subdivision (b) provides, ‘[a] complaint alleging any 

violation of [the MMBA] . . . shall be processed as an unfair practice charge by [PERB]. 

The initial determination as to whether the charge of unfair practice is justified and, if so, 

the appropriate remedy necessary to effectuate the purposes of this chapter, shall be a 

matter within the exclusive jurisdiction of [PERB] . . . .’ This enactment removed ‘from 

the courts their initial jurisdiction over MMBA unfair practice charges’ and vested such 

jurisdiction in PERB. [Citation.] [¶] Thus, PERB has exclusive initial jurisdiction to 

determine an unfair practice charge. [Citation.]” (Singletary v. International 

Brotherhood of Electrical Workers, Local 18, supra, 212 Cal.App.4th at pp. 42-43.)

The court noted that ERB was created “before PERB, and thus the MMBA carved 

out an exception for ERB” under section 3509, subdivision (d). (Singletary v. 

International Brotherhood of Electrical Workers, Local 18, supra, 212 Cal.App.4th at 

p. 43.) Section 3507, subdivision (a), authorized the City of Los Angeles to adopt rules 

and regulations implementing the MMBA, and the City did so. The City’s ERO 

expressly granted ERB the power to resolve labor issues such as the one involved in 

Singletary. (Singletary, supra, at p. 44.)

The Singletary court found that the plaintiffs’ interpretation of section 3509, 

subdivision (d), that an unfair labor practice charge can be filed in the superior court in 

the first instance, “would nullify the stated legislative purpose of providing primary 
23

jurisdiction in personnel boards for review of violations of the MMBA. Given that the 

City’s ERB was created in 1971, before the establishment of PERB in 1975, when the 

Legislature acted in 2000 to expressly specify the means of review of decisions of PERB, 

the Legislature did not want to appear to nullify the powers of ERB. Consistent with this 

purpose, the word ‘[n]otwithstanding’ that prefaces subdivision (d) of section 3509 does 

not operate to exempt ERB from the review provisions of section 3509, but is merely a 

recognition of ERB’s continued autonomy as an employee relations board. This fact is 

recognized in the closing clause of subdivision (d), which states that ERB has the power 

to ‘issue determinations and orders as the employee relations commissions deem 

necessary, consistent with and pursuant to the policies of this chapter.’ (§ 3509, subd. 

(d) (italics added).) Thus, the provisions of section 3509, subdivisions (a) through (c), to 

the extent they delimit the jurisdiction of the courts vis-à-vis review of the actions of 

employee relations boards, apply equally to ERB except that those sections do nothing in 

derogation of ERB’s powers.” (Singletary v. International Brotherhood of Electrical 

Workers, Local 18, supra, 212 Cal.App.4th at p. 46.)

The Singletary court then added, “For this reason, even if plaintiffs had exhausted 

their administrative remedies by pursuing their claims before ERB, plaintiffs could not 

have commenced their action in superior court to challenge ERB’s ruling. Instead, 

pursuant to section 3509.5, subdivisions (b) and (c), they were required to commence a 

writ petition in the Court of Appeal within 30 days of the adverse decision. As a result, 

the trial court did not err in dismissing the action for lack of jurisdiction.” (Singletary v. 

International Brotherhood of Electrical Workers, Local 18, supra, 212 Cal.App.4th at 

p. 46, fn. omitted.)

In Singletary, the primary issue was whether ERB had exclusive initial jurisdiction 

over the labor relations issue involved. It does not appear that the parties questioned the 

applicability of section 3509.5, and thus the court did not analyze the issue. The only 

case cited by the court on the issue, International Assn. of Fire Fighters, Local 188, AFLCIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 271, involved PERB, 

which clearly is subject to section 3509.5. The Singletary court’s assumption that section 
24

3509.5 applied to ERB—and by analogy to ERCOM—was unnecessary to its decision 

and, in our opinion, not entirely correct.

In other cases, parties have raised challenges to decisions by ERB first in the 

superior court, both before and after the enactment of section 3509.5. (See, e.g., County 

of Los Angeles v. Los Angeles County Employee Relations Com., supra, 56 Cal.4th at 

p. 914; Mariscal v. Los Angeles City Employee Relations Bd. (2010) 187 Cal.App.4th 

164, 169, 173; Los Angeles Police Protective League v. City of Los Angeles (1986) 188 

Cal.App.3d 1, 5-6.) “‘The Legislature, of course, is deemed to be aware of statutes and 

judicial decisions already in existence, and to have enacted or amended a statute in light 

thereof.’ [Citation.]” (In re Pedro T. (1994) 8 Cal.4th 1041, 1056; see Busse v. United 

PanAm Financial Corp., supra, 222 Cal.App.4th at p. 1038 [“the Legislature is 

‘presumed to know about existing case law when it enacts or amends a statute’”]; Borikas 

v. Alameda Unified School Dist. (2013) 214 Cal.App.4th 135, 150 [“the Legislature is 

deemed to be aware of existing law”].) As Singletary recognizes, the Legislature was 

aware of the existence of ERB when it “carved out an exception for ERB” under section 

3509, subdivision (d). (Singletary v. International Brotherhood of Electrical Workers, 

Local 18, supra, 212 Cal.App.4th at p. 43.)

We must similarly deem the Legislature to have been aware of ERB and the 

existence of challenges to its decisions in the superior court when it enacted section 

3509.5,4 yet it made no mention of ERB in that section but referred only to PERB. We 

also may presume that by omitting reference to ERB in section 3509.5, the Legislature 

did not intend that section 3509.5 apply to ERB. (See Edgerly v. City of Oakland (2012) 

211 Cal.App.4th 1191, 1201 [“[t]hat the Legislature chose to omit references to ‘local 

laws’ when drafting [Labor Code] section 1102.5 is readily apparent from its inclusion of 

‘local laws’ in the language of other whistleblower statutes”; this omission “is indicative 

 

4 The legislative history of section 3509, which we discuss below, confirms the 

Legislature’s awareness of challenges to ERB decisions in the superior and municipal 

courts.
25

of legislative intent to exclude such laws from the purview of [Labor Code] section 

1102.5”]; Levin v. United Airlines (2008) 158 Cal.App.4th 1002, 1022 [because the 

Legislature omitted language from a statute that was similar to the same language used in 

other statutes, the court cannot read that language into the statute]; see also Chalmers v. 

Hirschkop (2013) 213 Cal.App.4th 289, 309 [“[w]e presume that the Legislature, when 

omitting any language providing for modification of the denial of visitation under 

[Family Code] section 3101, was aware that other statutes on visitation and custody 

specifically granted the courts with discretion to modify these orders and therefore did 

not intend for a stepparent to be able to request a modification of the denial of visitation 

under [Family Code] section 3101”].) A statute “‘is to be interpreted by the language in 

which it is written, and courts are no more at liberty to add provisions to what is therein 

declared in definite language than they are to disregard any of its express provisions.’ 

[Citation.]” (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097; accord, 

Von Nothdurft v. Steck (2014) 227 Cal.App.4th 524, 533-534; Chalmers, supra, at p. 309; 

see also Code Civ. Proc., § 1858 [“[i]n the construction of a statute” a court “is simply to 

ascertain and declare what is in terms or in substance contained therein, not to insert what 

has been omitted, or to omit what has been inserted”].) The conclusion that section 

3509.5 applies only to decisions by PERB is buttressed by the Legislature’s stated intent 

in enacting the section, “to establish procedures for judicial review of determinations by 

the Public Employment Relations Board.” (Stats. 2002, ch. 1137, § 1(c).)

The language of section 3509, subdivision (d), relied on by ADDA, does not 

compel a different conclusion. That section refers to ERB’s power to take action 

“consistent with and pursuant to the policies of this chapter.” It says nothing about 

judicial power to review ERB’s decisions.

ADDA argues that, if section 3509.5 does not apply to decisions by ERB and 

ERCOM, “the legislative intent with regard to [sections] 3509 and 3509.5 would be 

frustrated. Rather than having a uniform system of labor relations governed by PERB 

and the principles set forth in [the MMBA], local superior courts throughout the State of 

California would be second guessing both PERB and institutions such as ERB and 
26

ERCOM.” This argument overlooks the fact that section 3509.5 applies to all decisions 

by PERB, throughout the state. The only exceptions to section 3509.5 are ERB and 

ERCOM, the only two local labor relations commissions for public employees 

recognized in section 3509, both located in Los Angeles County.

ADDA also relies on the principle, expressed in Coachella Valley Mosquito &

Vector Control Dist. v. California Public Employment Relations Bd., supra, 35 Cal.4th 

1072, that “we do not construe statutes in isolation; rather, we construe every statute with 

reference to the whole system of law of which it is a part, so that all may be harmonized 

and anomalies avoided. [Citations.] The MMBA, which we construe here, is part of a 

larger system of law for the regulation of public employment relations under the initial 

jurisdiction of the PERB. The PERB suggests no way in which MMBA unfair practice 

charges differ from unfair practice charges under the other six public employment 

relations laws within the PERB’s jurisdiction . . . so as to justify a limitations period that 

is six times longer than the six months allowed under each of these other laws. The 

PERB suggests no rational ground upon which the Legislature could have decided to treat 

MMBA unfair practices charges so differently in regard to the limitations period. We 

find it reasonable to infer that the Legislature intended no such anomaly, and that it 

intended, rather, a coherent and harmonious system of public employment relations laws 

in which all unfair practice charges filed with the PERB are subject to the same sixmonth limitations period.” (Id. at pp. 1089-1090.) From this general principle, ADDA 

argues that all public employment relations laws “have identical language directing the 

appeal be filed with the Court of Appeal,” and “[it] would not harmonize and it would be 

anomalous to except from all seven statutory schemes ERCOM and ERB from the 

method of appeal articulated by the Legislature.”

Coachella Valley Mosquito & Vector Control Dist. v. California Public 

Employment Relations Bd., supra, 35 Cal.4th 1072 addressed “a larger system of law for 

the regulation of public employment relations under the initial jurisdiction of the PERB.” 

(Id. at p. 1089, italics added.) Cases before ERB and ERCOM are not “under the initial 

jurisdiction of the PERB.” The statutes cited by ADDA that direct parties to file appeals
27

of the decisions regarding public employment relations with the Court of Appeal refer to 

decisions by the “board,” which those statutes define as PERB. (See §§ 3540.1, subd. 

(a), 3562, subd. (b), 71639.1, subd. (a), 71825, subd. (a); Pub. Util. Code, § 99560.1, 

subd. (b)).

The legislative history of section 3509 is consistent with the conclusion that 

section 3509.5 applies only to PERB. The County points out that Senate Bill No. 739,

which ultimately became section 3509, at one point provided in subdivision (d) that 

“[a]ny judicial review applicable to a superior court or municipal court shall be filed 

directly with the Court of Appeal.” (Assem. Amend. to Sen. Bill No. 739 (1999-2000 

Reg. Sess.) Aug. 16, 1999.) The Legislature subsequently omitted this language. 

(Assem. Amend. to Sen. Bill No. 739 (1999-2000 Reg. Sess.) June 6, 2000.) Legislative 

history showing that the Legislature considered and rejected language requiring judicial 

review of ERB and ERCOM decisions in the Court of Appeal “‘preclud[es] judicial 

construction to the contrary.’” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 

106, 126; see O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568, 

590-591 [“‘Legislature’s rejection of specific language constitutes persuasive evidence a 

statute should not be interpreted to include the omitted language’”].)

The Legislature evidenced its intent to allow continued judicial review of ERB and 

ERCOM decisions by the superior court when it enacted section 3509. We may presume 

this remained the intent of the Legislature when it failed to include ERB and ERCOM in 

section 3509.5 when it limited judicial review of PERB decisions. (See Little Co. of 

Mary Hospital v. Superior Court (2008) 162 Cal.App.4th 261, 269-270 [effect of 

omission of limiting language in new statute]; Hall v. Hall (1990) 222 Cal.App.3d 578, 

587, fn. 2 [we “‘assume[] that the legislature, in enacting or amending a statute, knew of 

existing laws, that it was familiar with the common-law rules and the acts of previous 

legislatures, that it had knowledge of existing judicial decisions construing the same or 

related statutes and enacted new statutes and amendments or reenacted statutes in the 

light thereof, and that its intent was to maintain a consistent body of rules’”].) “Thus, the 
28

legislative history supports our conclusion based on the plain language of the statutes.” 

(Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1122.)

We conclude that section 3509.5 applies to decisions by PERB only, not to 

decisions by ERB or ERCOM. Therefore the superior court had jurisdiction to review 

ERCOM’s decision in this case.

B. ERCOM’s Decision Was Erroneous as a Matter of Law

1. Standard of Review

“Code of Civil Procedure section 1094.5 governs judicial review of a . . . decision 

by an administrative agency if the law required a hearing, the taking of evidence, and the 

discretionary determination of facts by the agency. (Id., subd. (a).) The petitioner must 

show that the agency acted without or in excess of jurisdiction, did not afford a fair trial, 

or prejudicially abused its discretion. (Id., subd. (b).) An abuse of discretion is shown if 

the agency did not proceed in the manner required by law, the decision is not supported 

by the findings, or the findings are not supported by the evidence. (Ibid.)” (Pedro v. City 

of Los Angeles (2014) 229 Cal.App.4th 87, 98-99.)

Where, as here, a fundamental vested right is not involved, we review the 

administrative agency’s decision, not the trial court’s decision. (Eskeland v. City of Del 

Mar (2014) 224 Cal.App.4th 936, 941-942; accord, Ogundare v. Department of 

Industrial Relations (2013) 214 Cal.App.4th 822, 828-829.) We apply the substantial 

evidence standard, “‘resolving all conflicts in the evidence and drawing all inferences in 

support of’” the agency’s findings. (Ogundare, supra, at p. 829.) However, “[w]ith 

respect to questions of law, ‘we are not bound by any legal interpretation made by the 

[administrative agency] or the trial court. Instead, we make an independent review of any 

questions of law necessary to the resolution of this matter on appeal.’ [Citation.]” 

(Eskeland, supra, at p. 942.)
29

2. ERCOM Erred in Basing Its Decision on When the Implementation

of the New Performance Evaluation System Occurred

ADDA contends that substantial evidence supports ERCOM’s decision that the 

new performance evaluation system was not implemented until after ERCOM certified 

ADDA. In support of its contention, ADDA reviews the factual chronology of the case 

but cites no authority on the issue of when a change in working conditions is 

implemented for the purpose of determining whether collective bargaining is required 

under the MMBA. We conclude that the focus by ADDA—as well as ERCOM—on 

whether the new performance evaluation system was “fully implemented” is misplaced.

The MMBA requires “‘an employer to negotiate with employees before 

implementing decisions that are properly the subject of bargaining.’” (Department of 

Personnel Administration v. Superior Court (1992) 5 Cal.App.4th 155, 188, quoting San 

Joaquin County Employees Assn. v. City of Stockton (1984) 161 Cal.App.3d 813, 819.) 

Implementation follows decision. The question is whether the proper subject of 

collective bargaining is the decision or the implementation of the decision. We conclude

it is the decision.

Implementation is the carrying out or fulfillment of a decision already made. (See 

Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 213 [corporation’s 

dissolution plan gave officers the power “to do any and all acts and things necessary or 

desirable, to carry out, perform, implement and consummate the [p]lan”]; Poliak v. Board 

of Psychology (1997) 55 Cal.App.4th 342, 350, fn. 4 [proposed “decisions commence the 

proceedings, and the necessary implementing steps, such as ordering the transcripts or 

returning the case documents to the ALJ, are merely administrative acts to carry out those 

commencing decisions”].) Cases from other jurisdictions have held that it is the decision, 

or the impacts of the decision, that are the subject of collective bargaining. For example, 

in Kitsap County v. Kitsap County Correctional Officers’ Guild (2014) 179 Wash.App. 

987 [320 P.3d 70] the court stated that the issue was “whether the County had a 

mandatory duty to bargain the decision to implement layoffs.” (Id. at p. 994.) In Three 

Rivers Educ. Assn. v. Three Rivers School Dist. (2013) 254 Or.App. 570 [294 P.3d 547] 
30

the court noted that the Employment Relations Board had explained that under the 

applicable law, “‘[a]n employer must bargain about its decision to change a mandatory 

subject for bargaining before making the decision. While the employer need not bargain 

a decision to change a permissive subject, it is obligated to bargain about the impacts of 

its decision before it implements the change. [Citations.]’” (Id. at p. 575.) Similarly, in 

School Dist. of Indian River County v. Florida Public Employees Relations Com’n

(Fla.App. 2011) 64 So.3d 723 the court noted “that impact bargaining is not required if 

the public employer is simply enforcing its existing laws, rules, and regulations rather 

than implementing a new management decision. [Citation.] However, . . . ‘[a]lthough an 

employer may act unilaterally on these issues, a public employer may not implement its 

management decision in a manner that affects wages, hours, or terms and conditions of 

employment without giving the union notice and an opportunity to bargain over the 

impact of the decision.’ [Citation.]” (Id. at p. 729; accord, Board of Educ. of Region 16 

v. State Bd. of Labor Relations (2010) 299 Conn. 63, 75, fn. 9 [7 A.3d 371]; Oak Hills 

Educ. Assn. v. Oak Hills Local School Dist. Bd. of Educ. (2004) 158 Ohio App.3d 662, 

664 [821 N.E.2d 616].)

Perhaps the closest case is L.W.D., Inc. v. N.L.R.B. (6th Cir. 2003) 76 Fed.Appx. 

73,

5 where the employer claimed “it was not required to bargain over the use of forced 

ranking” because “it made the decision to switch to a forced ranking system prior to the 

union election.” (Id. at p. 76.) The L.W.D. court noted that the “NLRA does not 

explicitly state when the duty to bargain attaches. In Consolidated Printers, Inc. [(1992)]

305 NLRB 1061 . . . , the Board ruled that there was no duty to bargain over layoffs 

where the decision to lay off employees had been made prior to the election. The Board

[National Labor Relations Board], adopting the opinion of the administrative law judge, 

held as follows: [¶] The timing of a decision to lay off a particular group of employees 

 

5 Cases interpreting the National Labor Relations Act (NLRA) provide guidance in 

interpreting the MMBA. (County of Los Angeles v. Los Angeles County Employee 

Relations Com., supra, 56 Cal.4th at p. 924.)
31

at a particular time is critical to determining if the employer was obligated to notify and 

bargain about the decision or its effects. . . . The Board in Embossing Printers, 268 

NLRB 710, 1984 WL 36015 (1984), dismissed a unilateral change 8(a)(5) allegation that 

an employer had unilaterally canceled employees’ Christmas bonus after a union had 

been certified as representative of employees. The Board decision turned on its finding 

that the employer’s decision to cancel the Christmas bonus was made before it became 

obligated to bargain with the union, i.e., before the Board-conducted election.” (L.W.D., 

Inc., supra, at p. 76.) The court in L.W.D. noted that the Board in Consolidated Printers, 

Inc., following Embossing Printers, found that the employer “‘had determined well 

before the election to work unit employees through the election irrespective of actual 

work requirements and then to effect substantial and long term as opposed to short term 

or shortened week layoffs to bring staffing levels in the bindery into conformity with 

production needs . . . . On this record, given the close timing of the end of the balloting 

and the announcements of the layoffs to the employees as well as the burden of proof the 

General Counsel bears on each aspect of his prima facie case, it cannot be said that these 

decisions were made at a time when [the employer] was obligated to bargain with the 

Union. Accordingly, [the Board found] that the layoffs initiated the week of the election 

were decided on by [the employer] before it was obligated to bargain with the Union 

even though the employees were told of the layoffs and even though the layoffs did not 

actually begin until after the election.’ ([Consolidated Printers, Inc., supra,] at 

[p.] 1067.)” (L.W.D., Inc., supra, at p. 76.)

The court in L.W.D. noted that the Board cited “no case law that suggests that 

Consolidated Printers and the case cited therein, Embossing Printers, are no longer valid. 

Instead, the Board has relied on the facts, arguing that they were insufficient to show that 

[the employer’s] decision to lay off employees by forced ranking took place prior to the 

union election.” (L.W.D. v. N.L.R.B., supra, 76 Fed.Appx. at p. 76, fn. omitted.) The

L.W.D. court, however, found evidence supporting the conclusion that the decision was 

made prior to the union election. (Id. at pp. 76-77.) The court concluded: “While we are 

concerned about the short time span between the decision to institute the forced ranking 
32

system, the election and the implementation of the forced ranking system, we decline to 

alter or distinguish the Board’s precedent when no party has asked us to do so. We 

therefore hold that there was insufficient evidence in the record to support the Board’s 

conclusion that the forced ranking system constituted an unlawful unilateral change in 

employment conditions. Thus, there was no duty to bargain over the use of the forced 

ranking system in the December 1997 and March 1998 layoffs.” (Ibid.)

In addition to this case law, PERB decisions involving the statute of limitations 

support the conclusion that it is the decision, not its implementation, that is subject to 

collective bargaining. In South Placer Fire Administrative Officers Association v. South 

Placer Fire Protection District (2008) PERB Dec. No. 1944-M [2008 Cal. PERB LEXIS 

6, pp. 5-6], addressing the statute of limitations for an unfair competition charge, PERB 

stated: “In a unilateral change case, the statute of limitations begins to run on the date the 

charging party has actual or constructive notice of the respondent’s intent to implement a 

change in policy. [Citation.] Here, the Association argues that the statute of limitations 

began running when it received notice of the District’s actual implementation of the 

change. However, the Board has long rejected arguments that a unilateral change does 

not occur until it is implemented. (Folsom-Cordova Unified School District (2004) 

PERB Decision No. 1712; Clovis Unified School District (2002) PERB Decision No. 

1504.) Thus, a charging party that rests on its rights until actual implementation of the 

change bears the risk of running afoul of the statute of limitations.” (See SEIU Local 721 

v. County of Riverside (2010) PERB Dec. No. 2132-M [2010 Cal. PERB LEXIS 51, pp. 

11-12] [“‘[i]n a unilateral change case, the statute of limitations begins to run on the date 

the charging party has actual or constructive notice of the respondent’s intent to 

implement a change in policy’”].)

Here, the DAO indisputably made the decision to implement the new performance 

evaluation system, and ADDA had actual or constructive notice of the DAO’s decision,

before ADDA was certified. It was at that time any duty to bargain over the decision or 

the impacts of the decision attached. It was not, as the hearing officer concluded, during 
33

the implementation of the prior decision to replace the old paper evaluation form with a 

new performance evaluation system.

ADDA makes an argument based on the premises that it did not have to file an 

unfair labor practice charge until it had “clear and unequivocal notice of the violation,” 

which ADDA apparently believes occurs sometime after the Board of Supervisors 

approves the new performance evaluation system, and that the system violated the Civil 

Service Rules.6 The “‘clear and unequivocal notice’ of the violation” language appears 

in decisions addressing the issue of when the six-month limitation period for filing an 

unfair labor charge with the NLRB begins to run. (See In re Vallow Floor Coverings, 

Inc. (2001) 335 NLRB No. 7, p. 1.) These decisions state that the limitation period “does 

not begin to run until the charging party has ‘knowledge of the facts necessary to support 

a ripe unfair labor practice.’” (Alternative Services, Inc. and American Federation of 

State, County and Municipal Employees, AFL-CIO (2005) 344 NLRB No. 99, p. 2.) 

They are thus consistent with PERB decisions that “the statute of limitations begins to 

run on the date the charging party has actual or constructive notice of the respondent’s 

intent to implement a change in policy.” (South Placer Fire Administrative Officers 

Association v. South Placer Fire Protection District, supra, PERB Dec. No. 1944-M 

[2008 Cal. PERB LEXIS 6, pp. 5-6].)

Here, ADDA had knowledge of the facts giving rise to its unfair labor practices 

charge no later than February 2007, when Spillane sent the memorandum to all DDAs 

 

6 ADDA argues: “While the DAO did not have legal authority to change the 

performance evaluation in the manner in which it did, it had the actual authority to 

impose the changes on the bargaining members, by fiat, thereby giving ERCOM 

jurisdiction over the premises. . . . The unfair labor practice charge was not ripe until the 

DAO possessed legal authority for such change. The filing of an unfair labor practice 

charge does not have to occur until the facts necessary to support a ripe [unfair labor 

practice charge] are clear. . . . While, theoretically, [ADDA] could have waited until the 

Board of Supervisors acted, the alternative was to file the unfair charge after demand for 

bargaining was made and ignored by the DAO with regard to the implementation of the 

new performance evaluation on April 1, 2008.”
34

explaining the new performance evaluation system. Even if all the ramifications of the 

new system were not clear, ADDA had “clear and unequivocal notice of the violation” no 

later than June 21, 2007, when the ADDA board voted to oppose the new system. This 

occurred before ADDA was certified as a bargaining unit and before any duty to bargain 

had arisen.

It is true that “an interpretation put forth by an administrative agency charged with 

enforcement, implementation and interpretation of enactments is entitled to great weight

[citation].” (Microsoft Corp. v. Franchise Tax Bd. (2012) 212 Cal.App.4th 78, 93; see 

People v. Harrison (2013) 57 Cal.4th 1211, 1225 [“we ‘“must give great weight and 

respect to an administrative agency’s interpretation of a statute governing its powers and 

responsibilities”’”].) Ultimately, however, the interpretation of a statute or regulation is a 

legal question for the court. (Harrison, supra, at p. 1225; see Overaa Const. v. 

California Occupational Safety & Health Appeals Bd. (2007) 147 Cal.App.4th 235, 244.) 

The issue of whether a management decision gives rise to a duty to engage in collective 

bargaining at the time of the decision or the time of implementation is a legal question. 

(See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 329 [whether action violated the 

Fair Labor Standards Act was a legal issue]; Englund v. Chavez (1972) 8 Cal.3d 572, 583 

[whether employer’s action violated the Labor Code was a legal issue].)

Under the MMBA and the ERO, the duty to bargain attaches at the time the 

employer makes and announces a decision that affects wages, hours, and working 

conditions, not at the time the employer fully implements that decision. ERCOM’s 

decision that the County had a duty to bargain with ADDA over the new performance 

evaluation system because the new system “had not been fully implemented at the time 

the ADDA became certified and demanded to bargain” was erroneous as a matter of law. 

ERCOM’s decision therefore constituted an abuse of discretion (Code Civ. Proc., 
35

§ 1094.5, subd. (b); Pedro v. City of Los Angeles, supra, 229 Cal.App.4th at pp. 98-99), 

and the trial court properly set it aside.7

DISPOSITION

The judgment is affirmed. The County is to recover its costs on appeal.

SEGAL, J.*

We concur:

PERLUSS, P. J.

WOODS, J.

 

7

In light of our conclusion that the DAO did not have a duty to bargain with ADDA 

over the new performance evaluation system, we need not discuss the balancing test set 

forth in Claremont Police Officers Assn. v. City of Claremont, supra, 39 Cal.4th 623.

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.