Opinion
B317439
07-02-2024
COUNTY OF LOS ANGELES, Petitioner and Respondent, v. LOS ANGELES COUNTY EMPLOYEE RELATION COMMISSION, Respondent; ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS, Real Party in Interest and Appellant.
Rains Lucia Stern St. Phalle & Silver, Brian P. Ross and Jacob A. Kalinski for Real Party in Interest and Appellant. Miller Barondess, Mira Hashmall, Eleanor Ruth and Lauren M. Brody for Petitioner and Respondent. No appearance for Respondent Los Angeles County Employee Relation Commission.
NOT TO BE PUBLISHED
Order Filed Date 7/8/24
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20STCP03034 James C. Chalfant, Judge. Affirmed.
Rains Lucia Stern St. Phalle & Silver, Brian P. Ross and Jacob A. Kalinski for Real Party in Interest and Appellant.
Miller Barondess, Mira Hashmall, Eleanor Ruth and Lauren M. Brody for Petitioner and Respondent.
No appearance for Respondent Los Angeles County Employee Relation Commission.
ORDER MODIFYING OPINION NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on July 2, 2024, be modified as follows:
1. On page 1, the Los Angeles Superior Court Case No. is corrected to: 20STCP03034.
There is no change in judgment.
CHANEY, J.
The Los Angeles Sheriff's Department (LASD or the Department), a department within the County of Los Angeles (County), made changes to its disciplinary guidelines in 2013 and 2016. The Association for Los Angeles Deputy Sheriffs (ALADS) objected to the changes and filed complaints with the Los Angeles County Employee Relation Commission (ERCOM). ERCOM ordered LASD to rescind the changes and roll back any discipline imposed under them. The County petitioned the superior court for a writ of mandate directing ERCOM to vacate its decision.
The trial court denied the petition in part and granted it in part. It concluded LASD must rescind the 2013 and 2016 changes but directed only a partial rollback of the discipline imposed under them. The County and ALADS cross-appeal from the resulting judgment.
We conclude ERCOM properly ordered that the 2013 and 2016 changes be rescinded, but its complete rollback of the discipline imposed under them was overbroad. Therefore, we affirm the judgment.
BACKGROUND
I. Policymaking Oversight
LASD policymaking is subject to input and oversight from a deputies' union, a citizen's commission, administrative agencies, and the courts, as follows.
A. Statutory Scheme
In California, the Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et seq., obligates a public employer to meet and confer with recognized employee representative organizations (unions) regarding wages, hours, and other terms and conditions of employment. (Gov. Code, § 3505.)
Pursuant to the MMBA's express authority, the County promulgated the Employee Relations Ordinance (Ordinance or ERO) to govern employer-employee relations. (L.A. County Code, tit. 5, ch. 5.04, § 5.04.010 et seq.; see Gov. Code, § 3507.) Negotiation is not required on matters concerning "employer rights." (L.A. County Code, §§ 5.04.090, subd. (C), 5.04.080.)
B. Union Input: ALADS
ALADS is a recognized employee representative organization, representing approximately 7,900 LASD deputies. Between 2005 and 2008, ALADS and the Department were parties to a memorandum of understanding (MOU) which through a series of extensions remained in effect in 2013. The parties executed a new MOU in 2015 that remained in effect through 2018.
C. Citizen Commission Input: 2013 LASD Guidelines Revisions
LASD operations are governed by its Manual of Policies and Procedures (Manual). The Manual contains both a Code of Conduct, which describes disciplinary offenses, and a Guidelines for Discipline Handbook (Guidelines), which establishes disciplinary procedures and substantive standards for discipline, and contains what is colloquially known as a "Bail Schedule" covering punishment ranges for various offenses.
In 2011, in response to public concern regarding deputy violence in County jails, the County Board of Supervisors (Board of Supervisors) created the Citizens' Commission on Jail Violence (Citizens' Commission) to review inappropriate deputy use of force in the jails, and to recommend corrective action as necessary. In September 2012, the Citizens' Commission recommended policy changes to rectify an inadequate disciplinary structure addressing dishonesty and violence.
In response to the recommendations, the Citizens' Commission proposed changes to the Guidelines relating to failure to report use of force; violations of the force prevention policy; false statements; false statements during internal investigations; falsification of official records; and violating inmate retaliation policies. The changes incrementally modified some of the Guidelines' disciplinary ranges for particular violations; for example, changing the range of discipline for failure to report use of force from 5 to 25 days to 5 to 30 days. They also identified and carved out specific violations that were previously under a more general umbrella; for example, the changes articulated a "lying to a supervisor about force" category from what was previously characterized as a violation for "lying to a supervisor." And, in response to recent litigation, the changes specifically prohibited particular behaviors such as retaliating against an inmate, with a recommended range of a five-day suspension to discharge, and off-duty driving under the influence of alcohol, with a recommended range of a 20-25-day suspension.
On January 14, 2013, LASD notified ALADS that it intended to make ten changes in the Guidelines in the near future. Attached to the notification was a chart summarizing the changes, all of which would have increased the minimum and/or the maximum punishment for violations of the Code of Conduct related to use of force, false statements and reports, retaliation against inmates, and professional misconduct. It invited ALADS to discuss the changes, but ALADS did not accept the invitation.
On February 11, 2013, the Department notified ALADS of two revisions to its anticipated changes to the Guidelines and informed ALADS that it intended to publish the changes. ALADS responded with a "Notice of Demand" that the Department cease and desist from implementing the changes to the Bail Schedule until the parties had the opportunity to meet and confer. The Department responded on February 13, 2013, that changes to the Bail Schedule were a management right and that it intended to publish or implement the changes on February 17, 2013. It invited ALADS to discuss the changes, but the parties did not do so until August 2013.
On February 20, 2013, LASD published the revised Guidelines (2013 Guidelines).
On March 14, 2013, ALADS filed Unfair Practice Charge (UFC) No. 010-13 with ERCOM, alleging the County was required to meet and confer with ALADS before changing the Guidelines.
D. Court Oversight: Rosas v. Baca
Meanwhile, in 2012, two inmates in County jails brought a class action lawsuit, Rosas v. Baca, Case No. 2:12-cv-00428-DDP-MRW (C.D. Cal. 2012) (Rosas), alleging the LASD was too lenient in the way it disciplined deputies who engaged in excessive force, which led to a pervasive culture of deputy violence against inmates. ALADS moved to intervene in the litigation, which the district court denied.
In September 2014, the Rosas parties entered into a court-enforceable, monitored settlement agreement, pursuant to which the court appointed a panel of three experts to develop a plan to address and remedy the alleged pattern of excessive force (Implementation Plan). The panel finalized its Implementation Plan in October 2014, recommending more than 100 specific provisions that LASD agreed to adopt as soon as reasonably practicable.
On April 21, 2015, the district court issued an order approving the settlement agreement and retaining jurisdiction to enforce its terms.
E. Court Oversight: DOJ litigation
In August 2015, the Department of Justice (DOJ) filed a complaint against the County and LASD alleging a pattern and practice of excessive force against prisoners, a systematic failure to implement and enforce policies, procedures and practices regarding use of force, and a failure to adequately discipline deputies who engaged in misconduct.
The DOJ, County, and LASD executed a settlement agreement, pursuant to which the County and LASD agreed to implement all of the provisions of the Rosas settlement agreement. The County also agreed to notify the DOJ if any term of the settlement agreement became the subject of a collective bargaining consultation.
F. 2016 LASD Guidelines Revisions
In 2016, the LASD convened a committee of 11 or 12 lieutenants and one captain to revise the Guidelines to address alcohol-related conduct and dishonesty.
On September 8, 2016, the Department notified ALADS that it intended to publish revisions to the Guidelines in the near future. LASD consulted with employee unions about the revised Guidelines, made further revisions to the Guidelines based on those discussions, and offered to schedule an impact bargaining session with ALADS to discuss the revisions.
On September 13, 2016, ALADS sent the Department a letter demanding to negotiate the changes to the Guidelines and insisting that the Department cease and desist from publishing the changes. The parties met to consult on the changes, but the Department stated it was unwilling to negotiate on them because they were matters of nonnegotiable management rights.
On January 1, 2017, the Department published the changes, which (1) mandated more serious levels of discipline and less progressive discipline; (2) prohibited unacceptable off-the-job conduct that would impact the Department's "reputation"; (3) limited the type and number of cases eligible for Predisposition Settlement Agreements (PDSA), an alternative to a full investigation; (4) limited Education Based Discipline (EBD) to suspensions of ten days or less; (5) prohibited EBD for second and subsequent violations; (6) added the concept of "Aggravating and Mitigating Factors" to the disciplinary rules; and (7) made 45 changes to the Bail Schedule, which increased the punishment for ALADS' members by adjusting punishment ranges or mandating discharge.
ALADS filed UFC No. 001-017 with ERCOM, alleging the LASD failed to negotiate with ALADS over the 2016 Guidelines revisions.
G. Administrative Oversight: ERCOM
In 1969, the County established ERCOM to regulate labor relations. (L.A. County Code, § 5.04.030, subd. (B).) ERCOM is an independent agency that administers and interprets the ERO. It acts on all allegations of unfair County labor practices and issues determinations and orders. (L.A. County Code, §§ 4.810, 5.04.020, subd. (C).) ERCOM is required to "adhere to the guiding principles of the Meyers-Milias-Brown Act, when enforcing the Employee Relations Ordinance." (Gov. Code, § 3509, subd. (d); County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 917.) ERCOM has investigative authority, including the power to subpoena documents and compel testimony. (See L.A. County Code, § 5.04.160, subds. (G), (H).)
II. ERCOM Proceedings
ERCOM consolidated ALADS' two UFCs (010-13 and 001017) and held a three-day hearing before Hearing Officer Sheri E. Ross. The LASD contended it had no obligation to negotiate with ALADS over the 2013 and 2016 Guidelines changes because they involved employer rights, and in any event ALADS waived its right to negotiate over the 2013 changes because it failed to pursue its first UFC.
A. Hearing Officer's Initial Report
The Hearing Officer concluded that ALADS did not waive its right to negotiate over the 2013 proposed changes, and the LASD violated ERCOM rules by unilaterally changing the Guidelines in both 2013 and 2016.
The Hearing Officer recommended that ERCOM order the LASD to (1) rescind the 2013 and 2016 Guidelines changes, (2) conform any discipline imposed under the changes to the maximum recommended discipline set forth in the 2012 Guidelines, (3) make affected employees whole, (4) change all employee electronic and paper records to reflect the corrected levels of discipline, and (5) post notices of ERCOM's decision including on the LASD email system.
B. Hearing Officer's Supplemental Report
ERCOM adopted the Hearing Officer's report but referred the matter back to the Hearing Officer to reconsider the remedies requiring the LASD to conform any discipline imposed under the 2013 and 2016 changed Guidelines to the maximum recommended discipline in the 2012 Guidelines, make affected employees whole, and change all employee electronic and paper records to reflect the corrected levels of discipline.
In supplemental proceedings, the LASD contended: (1) ERCOM lacked jurisdiction to order the proposed remedies; (2) the only remedy ERCOM could validly issue was extremely limited; and (3) the proposed remedies were unworkable and unduly burdensome.
The Hearing Officer held an additional hearing on May 6, 2019, after which she issued a supplemental report.
The Hearing Officer found ERCOM had jurisdiction to hear ALADS' UFCs, find the LASD violated ERCOM rules requiring negotiation of disciplinary policy changes, and direct corrective action. The officer found that review was not restricted to individuals currently employed by the Department or those who had not been party to administrative or judicial proceedings.
The officer found that corrective action was not limited to remedies imposed by administrative or judicial bodies in prior cases because any decisionmaker or employee involved in those cases would have considered the Guidelines on which Department relied in rendering a recommendation, making an administrative or judicial decision, or entering into a settlement agreement.
The Hearing Officer recommended that to conform discipline issued under the 2013 and 2016 penalty ranges to pre-2013 ranges, ERCOM order LASD to produce a spreadsheet containing the names, employee ID numbers and contact information for all deputies disciplined after 2012, the charges alleged and sustained, and the discipline imposed. If LASD claimed information necessary to create this spreadsheet was unavailable, the Hearing Officer recommended that ERCOM order the Department or County Department of Human Resources to produce to ALADS a list of all deputies employed after 2012 and their mailing or email addresses. ALADS would communicate with each identified deputy and a neutral third party would create the spreadsheet and recommend where changes in discipline were warranted.
LASD and ALADS would then indicate on the spreadsheet where they agreed with the neutral's recommendations. Where the parties agreed no change was warranted, ERCOM's Executive Director would communicate that fact to the impacted deputy.
Where the Department and ALADS agreed that the change recommended by the neutral party was warranted, (1) ERCOM's Executive Director would communicate to each impacted deputy the new discipline; (2) the Department would create a new document restating the agreed upon discipline and have it placed in the deputy's department and County personnel files; and (3) the Department would notify the Auditor-Controller's Countywide Payroll Division to issue payment for any back pay due.
Where the Department and ALADS did not agree either to maintain the discipline as is or to change it in accordance with the neutral's recommendation, the Hearing Officer would decide what change was warranted, if any.
C. ERCOM's Decision
On June 23, 2020, ERCOM issued the decision adopting the Hearing Officer's Supplemental Report. ERCOM found: (1) LASD owed a duty to negotiate over proposed changes to the terms and conditions under which it imposed discipline on deputies because disciplinary policy is a term and condition of employment; (2) the Department breached that duty when it unilaterally changed the Guidelines in 2013 and 2016; and (3) the Hearing Officer's recommended remedy was appropriate.
ERCOM ordered LASD to: (1) rescind the changes to the 2013 and 2016 Guidelines; (2) meet and confer with ALADS over the 2013 and 2016 proposed changes to the Guidelines without limit to the practical consequences of such changes; (3) comply with the remedy process outlined in the Hearing Officer's supplemental report; (4) conform any discipline imposed under the 2013 and 2016 Guidelines to the maximum recommended discipline set forth in the 2012 Guidelines and make the affected employees whole; (5) change the electronic and paper records of all affected employees to reflect the corrected levels of discipline; and (6) post appropriate notices, including to its email system, memorializing ERCOM's decision.
III. Writ Proceedings
The County petitioned the superior court for a writ of mandate compelling ERCOM to set aside its decision.
The court granted the petition in part. It found that the County breached its duty to negotiate with ALADS prior to adopting and implementing changes to the Guidelines, ERCOM had the general authority to order a remedy of a return to the status quo ante. The County appeals this ruling.
However, the court found the scope of ERCOM's remedy was overbroad. ERCOM had no authority to (a) return retired employees to the status quo ante, (b) overturn final Civil Service Commission decisions or final court decisions reviewing Civil Service Commission decisions, (c) overturn discipline agreed to by a deputy in a valid settlement agreement, or (d) order a remedy process in which a neutral Hearing Officer or the Executive Director of ERCOM makes the final decision on application of the 2012 Guidelines. ERCOM could only direct the Department to make a new disciplinary decision using the 2012 Guidelines. ALADS cross-appeals this ruling.
DISCUSSION
The County contends it need only consult with ALADS, not negotiate, before revising its disciplinary Guidelines because policymaking is a managerial right. It contends reversal of the judgment on this ground will render ALADS' appeal as to the remedial portion of the judgment moot, but in any event the court's judgment limiting the scope of ERCOM's remedy was correct because ERCOM cannot (1) undo disciplinary decisions confirmed by the Civil Service Commission or a superior court, (2) rewrite or set aside a settlement agreement resolving disciplinary matters, direct the Department how to exercise its disciplinary discretion, or (3) offer redress to deputies who are no longer County employees or represented by ALADS.
ALADS contends the trial court correctly found the County had an obligation to negotiate with ALADS prior to revising the Guidelines, but the court erred by limiting the remedy.
A. Standard of Review
ERCOM's unfair practices decisions are reviewed by the superior court pursuant to the administrative mandate statute, section 1094.5 of the Code of Civil Procedure. (City of Los Angeles v. City of Los Angeles Employee Relations Bd. (2016) 7 Cal.App.5th 150, 163-167 (City of Los Angeles).) In such an inquiry, the trial court determines "whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (§ 1094.5, subd. (b).)
Undesignated statutory references will be to the Code of Civil Procedure.
ERCOM's factual findings are reviewed for substantial evidence in the light of the whole record. (County of San Joaquin v. Public Employment Relations Bd. (2022) 82 Cal.App.5th 1053, 1073 (San Joaquin).)
ERCOM has broad powers to remedy a violation of the MMBA. (San Joaquin, supra, 82 Cal.App.5th at p. 1086.) The trial court thus reviews ERCOM's remedial orders for abuse of discretion. (Boling v. Public Employment Relations Bd. (2019) 33 Cal.App.5th 376, 387.) Such remedies may include cease and desist orders and orders to restore parties to the prior status quo. (Id. at pp. 387-388.) Generally, a "remedial order 'should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the [Meyers-Milias-Brown] Act.' " (Carian v. Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654, 674.)
Our review is the same as the trial court's. We determine whether ERCOM's findings were supported by substantial evidence (San Diego County Water Authority v. Metropolitan Water Dist. of Southern California (2017) 12 Cal.App.5th 1124, 1145) but independently review questions of law, including interpreting relevant statutes and their application to undisputed facts (California Public Records Research, Inc. v. County of Stanislaus (2016) 246 Cal.App.4th 1432, 1443). We review a remedy determination for abuse of discretion. (County of Santa Cruz v. Civil Service Commission of Santa Cruz (2009) 171 Cal.App.4th 1577, 1581.)
B. Governing Law
Public employees in California have no right to bargain collectively absent enabling legislation. (City of Los Angeles, supra, 7 Cal.App.5th at p. 159.)
In California, labor relations between local governments and their employees are governed by the MMBA, Government Code section 3500 et seq. Under that act, a public employer and a recognized employee representative organization (union) have a mutual obligation to meet and confer and endeavor to reach agreement about "wages, hours, and other terms and conditions of employment," and must "consider fully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action." (Gov. Code, § 3505.)
In 1971, the County promulgated the ERO, Los Angeles County Code section 5.04. Pursuant to this ordinance, it is an unfair employee relations practice for the County to refuse to negotiate with representatives of certified employee organizations on negotiable matters. (L.A. County Code, § 5.04.240, subd. (A)(3).)
The Los Angeles County Code defines which matters are negotiable. As pertinent here, negotiation is not required on matters concerning "employer rights" as defined in County Code section 5.04.080. (L.A. County Code, § 5.04.090, subd. (C).)
"Employer rights" under section 5.04.080 of the Los Angeles County Code include individual disciplinary actions. That section provides, "[I]t is the exclusive right of the county to determine the mission of each of its constituent departments, boards and commissions, set standards of services to be offered to the public, and exercise control and direction over its organization and operations. It is also the exclusive right of the county to direct its employees, take disciplinary action for proper cause, relieve its employees from duty because of lack of work or for other legitimate reasons, and determine the methods, means, and personnel by which the county's operations are to be conducted ...." (Italics added.)
However, County employees are not precluded from negotiating about the "practical consequences that decisions on these matters may have on wages, hours, and other terms and conditions of employment." (L.A. County Code, § 5.04.080, italics added.)
Courts have interpreted the phrase "wages, hours, and other terms and conditions of employment," which is not statutorily defined, to include, for example, the adoption of an employee disciplinary rule. (See Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 631 (Claremont.)
We apply a three-part inquiry to determine whether an agency is required to bargain over a management action. "First, we ask whether the management action has 'a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees.' [Citation.] If not, there is no duty to meet and confer. [Citations.] Second, we ask whether the significant and adverse effect arises from the implementation of a fundamental managerial or policy decision. If not, then . . . the meet-and-confer requirement applies. [Citation.] Third, if both factors are present-if an action taken to implement a fundamental managerial or policy decision has a significant and adverse effect on the wages, hours, or working conditions of the employees-we apply a balancing test. The action 'is within the scope of representation only if the employer's need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.'" (Claremont, supra, 39 Cal.4th at p. 638.)
Changes to disciplinary guidelines have been subject to mandatory negotiation. (See, e.g., Long Beach Police Officer Assn. v. City of Long Beach (1984) 156 Cal.App.3d 996, 1011; Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 815-820; San Bernardino City Unified School District (1982) PERB Decision No. 0255E, pp. 11-12; City of Davis (2016) PERB Decision No. 2494-M, pp. 29-31; CSEA v. Rio Hondo Community College District (2013) PERB Decision No. 2313E, pp. 14-15.)
ERCOM must exercise its authority in a manner "consistent with and pursuant to" the policies of the MMBA as interpreted and administered by PERB. (Gov. Code, § 3509, subd. (d).) Accordingly, the decisions from the Public Employment Relations Board (PERB) interpreting the MMBA are highly persuasive. (County of Los Angeles v. Los Angeles County Employee Relations Com., supra, 56 Cal.4th at p. 917.)
C. Application
1. The County was Obligated to Negotiate Guidelines Changes
It is "the exclusive right of the county to . . . take disciplinary action for proper cause" against any deputy. (L.A. County Code, § 5.04.080.)
But the 2013 and 2016 Guidelines revisions changed disciplinary policy, not any particular disciplinary action taken for proper cause.
Applying the three-part Claremont test, we conclude that the 2013 and 2016 changes to LASD disciplinary policy, which increased most penalties for dishonesty and excessive violence, had "a significant and adverse effect on the . . . working conditions of the bargaining-unit employees." (Claremont, supra, 39 Cal.4th at p. 638.) For example, the 2013 changes raised a possible suspension from 25 to 30 days. An extra five-day suspension is a significant working condition.
We also conclude that LASD disciplinary policymaking is a "fundamental managerial or policy decision" (Claremont, supra, 39 Cal.4th at p. 638), which neither party disputes.
The pointed question is whether the LASD's "need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question." (Claremont, supra, 39 Cal.4th at p. 638.)
In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, the LASD instituted a policy prohibiting deputies, who had the right to consult legal counsel before answering questions about officer-involved shootings, from "huddling" with counsel collectively with other deputies. The court held that no evidence suggested the antihuddling policy would have a significant and adverse effect on employee working conditions, but the Department's interest in collecting accurate information about deputy-involved shootings in order to foster greater public trust in the investigatory process was substantial. The court held that the employer's need for unencumbered decisionmaking in managing its substantial interest was not outweighed by the benefit of bargaining over the deputies' tenuous working condition claim. (Id. at p. 1644.)
In Association of Orange County Deputy Sheriffs v. County of Orange (2013) 217 Cal.App.4th 29, the Orange County Sheriff issued an order prohibiting any deputy under investigation for misconduct from accessing the department's internal affairs investigative file before being interviewed by an internal affairs investigator. The court held that the order reflected a fundamental managerial decision which had no significant effect on conditions of employment. The court held that the sheriff need not negotiate with the deputies' union over the order because the department's interest in public accountability was not outweighed by the deputies' tenuous working conditions claim. (Id. at p. 32.)
Here, both the County and ALADS argue the third Claremont prong weighs in its favor, but aside from citing cases falling on the employer's and employees' sides, respectively, neither party explains why. In both Association for Los Angeles Deputy Sheriffs v. County of Los Angeles and Orange County Deputy Sheriffs, for example, the Claremont test weighed in favor of no bargaining requirement because the employees' working conditions claims were tenuous to nonexistent. Therefore, bargaining about managerial actions carried little benefit to employer-employee relations. Thus, the benefit of negotiation did not outweigh the agency's need for unencumbered decisionmaking.
In contrast here, some of the increased penalties for dishonesty and violence-for example an extra five-day suspension-are significant. And although LASD disciplinary policy obviously fosters important goals such as increasing public accountability and fostering greater public trust, the Department fails to explain its need for unilateral policymaking. On the contrary, in making changes to the Guidelines in 2013 and 2016, the Department accepted input from a Citizens' Commission, an internal committee, two plaintiffs, and two courts. Given that the deputies' working condition claims are significant and that the Department has identified no interest in excluding deputies from weighing in on its disciplinary policy, we conclude that LASD's need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.
2. LASD Failed to Negotiate
LASD argues it satisfied its obligation to consult with ALADS regarding the proposed Guidelines changes because it notified ALADS beforehand about the changes and invited discussion on them. We disagree.
The MMBA does not require the parties to reach agreement about policy changes; it only requires good faith bargaining in an "endeavor to reach [an] agreement." (Gov. Code, § 3505; Los Angeles County Employees Assn., Local 660 v. County of Los Angeles (1973) 33 Cal.App.3d 1, 8.) In National Labor Relations Bd. v. Highland Park Mfg. Co. (4th Cir. 1940) 110 F.2d 632, 637, the federal court construed similar language in the National Labor Relations Act, as follows: "The act, it is true, does not require that the parties agree; but it does require that they negotiate in good faith with the view of reaching an agreement if possible, and mere discussion with the representatives of employees, with a fixed resolve on the part of employer not to enter into an agreement with them, even as to matters as to which there is no disagreement, does not satisfy its provisions."
Here, LASD identifies nothing in the record suggesting it was open in good faith to any modifications ALADS might want to make to the 2013 and 2016 Guidelines changes.
3. Conclusion
ERCOM correctly concluded that the County had an obligation to negotiate with ALADS prior to adopting and implementing changes to the Guidelines. Because the County unilaterally decided not to negotiate, it violated Los Angeles County Code ordinance obligating it to do so.
D. ERCOM's Remedy was Overbroad
Los Angeles County Code section 5.04.240, subdivision (E) provides ERCOM with the authority to remedy breach of the duty to negotiate. It provides: "If the commission 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."
The ERO must be interpreted consistently with the MMBA, and the Legislature has granted PERB broad authority to remedy violations of the MMBA. (Criminal Justice Attorneys Association of Ventura County v. County of Ventura, PERB Decision No. 2758-M, p. 52.) A "properly designed remedial order seeks a restoration of the situation as nearly as possible to that which would have obtained by for the unfair labor practice." (Ibid.) An appropriate remedy therefore should make whole all injured persons or organizations for the full amount of their losses and should withhold from the wrongdoer the fruits of its violation. (Ibid.)
The normal remedy is to require the employer to rescind the unilateral change in working conditions/terms of employment and make affected employees whole while the parties complete the bargaining process. (California State Employees' Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 946.)
However, ERCOM's remedial power is limited to actions necessary to "effectuate the policies of this chapter"-i.e., regulating labor disputes according to the ERO. (L.A. County Code, § 5.04.160, subd. (M).)
Here, ERCOM ordered the Department to rescind changes to the 2013 and 2016 Guidelines and meet and confer with ALADS over the 2013 and 2016 proposed changes. It also ordered the Department to conform any discipline imposed under the 2013 and 2016 Guidelines to the maximum recommended discipline set forth in the 2012 Guidelines, and to make the affected employees whole.
The record contains no evidence concerning how many deputies were subject to ERCOM's remedy or whether any of them have retired, entered into settlement agreements, sought administrative relief from the Civil Service Commission, or sought judicial relief from the courts.
1. Former Employees
ERCOM has jurisdiction only over current County employees. (L.A. County Code, § 5.04.160.) Likewise, ALADS is the recognized bargaining unit only for current County employees. Therefore, ERCOM has no jurisdiction to address the interests of former County employees, and ALADS has no brief to represent them absent a separate agreement with a former employee.
We therefore conclude ERCOM's remedy was improper to the extent it seeks to return former County employees to the status quo ante.
2. Civil Service Commission Decisions
The County Charter and County Code exclusively authorize the Civil Service Commission to review and reverse the County's disciplinary decisions. (L.A. County Charter, art. IX, §§ 34, 35(6); County Civil Service Rules, rules 4.01, 4.14, 18.01-18.02; Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 1150, 1157 [Government Code section 31108 makes the Commission's findings binding on the county and "place[s] ultimate authority with respect to punitive action in the Commission"].)
A Civil Service Commission decision may be challenged only by a petition for writ of mandate. (L.A. County Civil Service Rules, rule 4.14.)
ALADS offers no authority, and we have discovered none, authorizing ERCOM to overturn final a Civil Service Commission decisions. Therefore, to the extent ERCOM's remedy purports to affect any disciplinary decision that has been adjudicated by the Civil Service Commission, ERCOM exceeded its jurisdiction.
Similarly, ERCOM has no jurisdiction to overturn a valid settlement agreement between the County and a disciplined employee in a case in which neither ERCOM nor ALADS was a party.
3. The County's Disciplinary Discretion
ERCOM's Decision orders LASD to "conform any discipline imposed under the 2013- and 2016 Guidelines for Discipline to the maximum recommended discipline set forth in the Guidelines in place prior to the 2013 changes." This will be achieved through a remedy process which requires the Department (or County) to produce a spreadsheet containing a list of all deputies disciplined subsequent to 2012, after which a neutral party designated by ERCOM will review the information and recommends a discipline at the upper end of the 2012 Guidelines range. The Department and ALADS must then either concur or disagree with the recommendation, with the Hearing Officer having the ultimate authority to decide whether a change in discipline is warranted.
The trial court found this process intrudes upon the County's discretion to impose discipline. We agree.
The County has authority to impose discipline by exercising its own reasonable discretion. (L.A. County Code, § 5.04.080.) It uses the Guidelines-which are not mandates-to do so. Both by ordering that the LASD retroactively limit its prior discipline to the "maximum recommended discipline" under the 2012 Guidelines, and by vesting the Hearing Officer, not LASD or the County ERCOM, with ultimate disciplinary authority, ERCOM exceeded its jurisdiction. The permissible remedy would be to direct the Department to make a new disciplinary decision for the deputy using the 2012 Guidelines.
DISPOSITION
The judgment is affirmed. Each side is to bear its own costs.
WE CONCUR: ROTHSCHILD, P. J., WEINGART, J.