Tuesday, January 3, 2017
DWP Pay-for-No-Work Case Returns to S.C.
C.A. Holds Trial Court, Not It, Has Jurisdiction Over Writ Petition Challenging Action of City Employee Relations Board
By a MetNews Staff Writer
The Court of Appeal for this district on Friday ordered the Los Angeles Superior Court to rule on a writ petition filed by the City of Los Angeles contesting a board’s finding that it committed an unfair practice by cutting off overtime payments to certain Department of Water and Power supervisors for weekends when they were on stand-by status but were not called.
The arrangement was brought about through what the court called a 1994 “handshake agreement” between DWP Transmission and Distribution District Supervisor Dennis Barr and Transmission and Distribution Manager Robert Spease, both members of the Management Employees Association (“MEA”), a certified bargaining representative.
When DWP’s executive management learned about the arrangement in June 2012, it terminated it. The MEA filed a grievance with the Employee Relations Board (“ERB”), which held that the city was without the right to cut off an established practice without giving the MEA notice and an opportunity to meet and confer.
The city challenged that finding in a writ petition, arguing that the practice had not been incorporated into a memorandum of understanding, and was not of binding effect.
Los Angeles Superior Court Judge James C. Chalfant sustained a demurrer with leave to amend; the city did not amend; a judgment of dismissal ensued.
Chalfant’s basis was that under Singletary v. International Brotherhood of Electrical Workers, Local 18 (2012) 212 Cal.App.4th 34, review of ERB decisions is governed by Government Code §3509.5. That section which requires that a petition for a writ of mandate in an unfair practices case “be filed in the district court of appeal…within 30 days from the date of the issuance of the board’s final decision or order, or order denying reconsideration.”
Reversal came in an opinion by Justice Richard Aldrich of Div. Three.
He pointed out that the section defines “board” as “the Public Employment Relations Board,” a state agency, and that “nowhere does section 3509.5 mention the ERB.” This omission, Aldrich said, “suggests the Legislature did not intend its provisions to apply” to ERB.
Aldrich noted that Chalfant reached the conclusion “that section 3509.5 did not apply to ERB decisions, but understandably felt constrained by contrary language in Singletary,” handed down by this district’s Div. One.
The city argued that the cited language was mere dictum. Aldrich said:
“Whether dicta or not, in light of the plain language of section 3509.5 and the legislative history…, we respectfully part company with Singletary insofar as it concluded that a party challenging an ERB decision must commence a writ petition in the Court of Appeal within 30 days of the decision pursuant to section 3509.5.”
The case is City of Los Angeles v. City of Los Angeles Employee Relations Board, B261246.
Deputy City Attorney Wendy K. Genz represented the city and Adam Stern and D. Smith of the Myers Law Group, acted for the employees’ association.
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