“and is empowered to reweigh the evidence and draw its own factual conclusions.” (California Teachers Assn. v. Public Employment Relations Bd. (2009) 169 Cal.App.4th 1076, 1086.) PERB is not bound by the ALJ’s determination of the weight to be accorded to each piece of evidence. “ ‘[PERB], not the hearing officer, is the ultimate fact finder, entitled to draw inferences from the available evidence.’ ” (Id. at p. 1087.) PERB’s determination on factual issues is upheld if supported by substantial evidence. (California State Employees’ Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 932-933 (California State).) “ ‘Under the substantial evidence standard, when a labor board chooses between two conflicting views, a reviewing court may not substitute its judgment for that of [PERB].’ ” (Id. at p. 933.) The reviewing court may not reweigh the evidence; if there is a plausible basis for PERB’s factual decisions “ ‘ “we are not concerned that contrary findings may seem to us equally reasonable, or even more so.” ’ ” (Ibid.) The City asserts that this court must review the entire record to determine whether substantial evidence supports PERB’s factual determinations. The City is correct; PERB’s factual findings must be “supported by substantial evidence on the record considered as a whole.” (§ 3564, subd. (c).) Nonetheless, “ ‘[a]s the United States Supreme Court has observed [in a similar context], “To be sure, the requirement for canvassing ‘the whole record’ in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board’s choice between two fairly conflicting views,
We are not persuaded by the City’s argument. Canons of statutory construction are meant to provide guidance in interpreting a statute. However, they “ ‘are “merely aids to ascertaining probable legislative intent.” [Citation.] No single canon of statutory construction is an infallible guide to correct interpretation in all circumstances.’ ‘[The canons] are tools to assist in interpretation, not the formula that always determines it.’ ” (Medical Board v. Superior Court (2001) 88 Cal.App.4th 1001, 1013, fn. omitted.) Aside from pointing out that the Legislature utilized different language in sections 3505 and 3507, the City does cite to actual evidence in the statutes’ legislative history that would indicate that the Legislature intended for them to have different meanings. Furthermore, PERB’s decision did not state the two duties were indistinguishable from each other. Rather, PERB held that the consultation in good faith requirement was very similar to the duty to meet and confer. PERB’s decision also conforms to its prior precedent. The City argues that in San Dieguito Union High School Dist. (1977) EERB Dec. No. 22E [1 PERC ¶ 369] (San Dieguito), PERB analyzed the employer’s duty to consult under the Educational Employment Relations Act (EERA) (§ 3540 et seq.) and interpreted this duty differently. We disagree. The City misreads PERB’s decision in San Dieguito, which found the duty to consult under the EERA was equivalent to the duty to “ ‘meet and confer’ ” as used under the now-repealed Winton Act. (San Dieguito, supra, EERB Dec. No. 22E at p. 12, fn. 11.) Under the Winton Act, “ ‘[m]eet and confer’ mean[t] that a public school employer, or such representatives as it may designate, and representatives of employee organizations shall have the mutual obligation to exchange freely information, opinions, and proposals; and to make and consider recommendations under orderly procedures in a conscientious effort to reach agreement by written resolution, regulation, or policy of the governing board effectuating such recommendations.” (Ibid.) The language of this
publicly noticed meeting is not an adequate “consultation” with the City. (See Organization of Deputy Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d 331, 338 [consultation with employees before commission hearings found sufficient consultation in good faith under § 3507].) Lastly, we are also not convinced by the City’s argument that a different definition should apply, because under PERB’s current interpretation if the parties reach an impasse on whether to proceed with the ballot measure repealing binding arbitration, the impasse would be submitted to binding arbitration. This hypothetical scenario is not before this court and was not before PERB. Constitutional Issues Next, we find that PERB’s interpretation of section 3507 does not violate the charter city home rule provisions of the California Constitution and the constitutional authority of the City Council to propose charter amendments to City voters. “The California Constitution sets forth the home rule doctrine, which gives the chartered cities the power to ‘ “make and enforce all ordinances and regulations in respect to municipal affairs, subject only to [the] restrictions and limitations provided in their several charters . . . .” (Cal. Const., art. XI, § 5, subd. (a).)’ ” (International Assn. of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1197.) Article XI, section 5, subdivision (b) of the California Constitution provides that city voters have the “plenary authority” to provide in their city charters “the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees.”
The City also cites to cases where courts have been reluctant to invalidate votes of the electorate based on procedural irregularities. (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 242-244 [finding that although initiative measure’s title and summary were technically imprecise, they substantially complied with the law]; Assembly v. Deukmejian (1982) 30 Cal.3d 638.) PERB’s decision, however, specifically clarified that its remedial authority did not extend to invalidating the results of the municipal election. That remedy lies exclusively with the courts in an action in quo warranto. (International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687, 698 [quo warranto writ is the exclusive method for appellants to attack amendments to the city charter based on city’s failure to comply with the MMBA].) Based on the foregoing, we see no reason why PERB’s decision should not be applied to the City under these circumstances. PERB’s Decision on Defenses Not Raised by the City In its decision, PERB held that absent a valid defense, a party subject to the MMBA’s requirement to consult in good faith must defer action on matters subject to the consultation duty until the duty has been exhausted. Accordingly, the decision went on to consider—and reject—several possible defenses to the City’s actions. The City argues that PERB should resolve, not find, issues; therefore, its additional analysis into these possible defenses, which were not briefed by either the City or the IAFF, was erroneous and deprived the City of due process and fairness as it was unable to prove these defenses before the ALJ and PERB. First, we note that the City does not provide analysis or citations to legal authority for its assertion that PERB’s decision on these defenses violates due process and the fundamental rules of fairness, aside to a lone citation to a PERB decision that states: “[t]he province of the board is to resolve, not to find, issues.” (Tahoe-Truckee Unified
The other decisions cited by PERB are similar. (Kern Community College Dist. (1983) PERB Dec. No. 337E at p. 6 [7 PERC ¶ 14229] [“if the District was unsure as to the object of the Association’s requests, the duty to bargain in good faith behooved it as a minimum to seek clarification of the Association’s position”]; Jefferson School Dist. (1980) PERB Dec. No. 133E at p. 11 [4 PERC ¶ 11117] [“the hearing officer’s instruction requires the employer receiving a proposal to make a good-faith effort to seek clarification of questionable terms and proposals, to voice its reasons for believing that a proposal is outside scope, and to enter into negotiations on those aspects of proposals which it finally views as covered . . .”].) Recent PERB decisions have also summarized the same principle set forth by PERB in its present decision. In County of Santa Clara (2013) PERB Dec. No. 2321M, PERB cited to Healdsburg and noted that a “party objecting that a proposal is beyond scope of representation must make good faith effort at clarification by voicing its specific reasons for believing proposal is outside the scope of representation and entering into negotiations on those aspects of proposal which, after clarification, it views as negotiable.” (Id. at pp. 31-32.) Based on the foregoing, we do not believe PERB failed to follow its own precedents when coming to its conclusion here. As in Rio Hondo, where the district believed the union sought to negotiate over a non-negotiable subject, here the City had a duty, as explained in Healdsburg and the other cases cited above, to voice reasons for why it believed binding arbitration was outside the scope of representation. As articulated in Healdsburg, the objecting party need not “wrestle to a fall with every ambiguity, or search out every negotiable or objectionable word or phrase.” (Healdsburg, supra, PERB Dec. No. 375 at p. 10.) And as stated in Rio Hondo, the employer may ultimately refuse to negotiate following clarification. It may also avoid
respectfully disagree with its holding. Additionally, it is important to note that the writ of mandate contemplated in Glendale did not—as specifically stated by the Glendale court—force legislative action. Rather, Glendale expressly stated that it was upholding the appellate court’s judgment, because it considered the calculation of salaries in accordance with the memorandum of understanding to be a ministerial act, not a legislative one. PERB cites to City Council v. Superior Court [(Santa Barbara County)] (1960) 179 Cal.App.2d 389 (Santa Barbara County), which we do not believe is dispositive. There, the appellate court concluded that it could not compel the city to raise rates for trash collection, which was a legislative act. (Id. at pp. 391, 394395.) The court noted that most cases which upheld interfering with legislative acts are “directed toward the right to undo what the legislative or quasi legislative body has done, not toward directing it to perform an act which is prospective in operation.” (Id. at p. 394.) Santa Barbara County, however, did not explain what it meant by the “right to undo” what the legislative body has done. (Ibid.) The court did not expressly state that the right to undo what the legislative body has done somehow encompasses the right to direct the legislative body to take legislative action to rescind or vacate its prior act. Additionally, “undoing” the erroneously passed legislation can be accomplished by means that are not offensive to the separation of powers doctrine. (See City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 916 [“in the absence of some overriding constitutional, statutory or charter proscription, the judiciary has no authority to invalidate duly enacted legislation”].) For example, a judicial body could declare legislation void and invalidate it, as was done in El Dorado, supra, 244 Cal.App.4th at page 963. Similar action was taken in Bowles v. Antonetti (1966) 241 Cal.App.2d 283, where the appellate court considered whether a writ of mandate could compel the city council to annul its resolution vacating a street, which was a legislative act. In Bowles,
the appellate court cited to Santa Barbara County, supra, 179 Cal.App.2d at page 394 for the proposition that if a city council takes action that is fraudulent, or unreasonable and arbitrary so as to constitute an abuse of discretion, courts may interfere with legislative action. (Bowles v. Antonetti, supra, at pp. 286-287.) The court held that “[u]ndoing what the legislative body has done may be accomplished by a judgment declaring the legislative act void.” (Id. at p. 286.) In contrast, issuing a mandate compelling the city council to annul its resolution required the city council to perform legislative passing a resolution annulling its previous resolution. Therefore, if issued, the writ of mandate would compel the city council to perform legislative acts, which it cannot do. (Ibid.) We note that multiple other courts have, in the past, declared legislatively passed ordinances or acts to be void due to procedural defects. (El Dorado, supra, 244 Cal.App.4th at p. 963 [invalidating county’s act that violated local rule]; Vernon, supra, 107 Cal.App.3d 802 [rule that was unilaterally adopted without prior notice to or meeting and conferring with labor organization was void for its procedural violation of § 3505]; see Williams v. City of San Bruno (1963) 217 Cal.App.2d 480 [affirming trial court’s decision that zoning ordinance was void due to the city’s failure to comply with former Gov. Code, § 65653]; Schofield v. City of Los Angeles (1932) 120 Cal.App. 240 [ordinance passed without submission to city planning commissioners declared void].) We believe that such a remedy may be proper in circumstances similar to the ones presented here. Lastly, PERB’s reliance on its prior decisions ordering cities and city councils to rescind rules found to be in conflict with the MMBA is also unavailing. For example, in its supplemental brief, PERB cites to County of Imperial (2007) PERB Dec. No. 1916M [31 PERC ¶ 120], where it considered the validity of a county’s employer-employee relations policy that was adopted as a local rule by the county’s board of supervisors.
Trial Court: Superior Court Public Employment Relations Board Decision No. 2388-M Case No. SF-CE-869-M Trial Judge: NOT APPLICABLE Counsel for Petitioner: City of Palo Alto RENNE SLOAN HOLTZMAN SAKAI Jonathan Holtzman Charles D. Sakai Randy Riddle Erich W. Shiners Counsel for Respondent: Public Employment Relations Board J. Felix De La Torre General Counsel Wendi L. Ross Deputy General Counsel Miles E. Locker Senior Regional Attorney Counsel for Real Party in Interest: International Association of Firefighters, Local 1319, AFL-CIO MASTAGNI HOLSTEDT David E. Mastagni Isaac S. Stevens Jeffrey R.A. Edwards Erich A. Knorr John A. Melis Counsel for Amicus Curiae: League of California Cities Supporting The City of Palo Alto MEYERS, NAVE, RIBACK, SILVER & WILSON Arthur A. Hartinger Linda M. Ross Jasleen Ahuja City of Palo Alto v. Public Employment Relations Board H041407