San Diego Firefighters Score Victory In Pension Battle

‘The City breached its duty to meet and confer in good faith with the … San Diego City Firefighters Association, Local 145… when it failed and refused to meet and confer over the Mayor’s proposal for pension reform. By this conduct, the City also interfered with the right of City employees to participate in the activities of an employee organization of their own choosing and denied the [union] their right to represent employees in their employment relations with a public agency…’

With those words, a hearing officer for the California Public Employment Relations Board (PERB) found that the City of San Diego committed unfair labor practices by blatantly orchestrating a voter initiative that purported to implement major changes to the employees pension benefits without negotiations. Administrative Law Judge Donn Ginoza issued the ruling last Monday.

The action was the result of unfair labor practices filed by four San Diego public employee unions: San Diego Municipal Employees Association; Deputy City Attorneys Association of San Diego, American Federation of State, County and Municipal Employees AFL-CIO, Local 127; and San Diego City Firefighters Local 145 seeking to block the passage of so-called Proposition B. That law was adopted by the voters in June 2012.

The 58 page decision is a difficult read for anyone interested, but one of the key questions in the case is whether a mayor, who serves as the “lead negotiator” for the city with labor unions, can aggressively pursue a pension reform voter referendum as a “private individual” and still bargain in good faith?

Here are some of the highlights from the ruling:

The Mayor’s statements to the press that he was pursuing pension reform as a private citizen are insufficient to overcome the reasonable conclusion … drawn from his actions undertaken for the benefit of the City. …

PERB has explained that the duty to bargain includes the “concomitant obligation to meet and negotiate with no others, including the employees themselves [and) actions of a[n] employer which are in derogation of the authority of the exclusive representative are evidence of a refusal to negotiate in good faith.” …

Bypassing occurs when the offending party’s intent is to achieve bargaining objectives while circumventing the negotiations process. It takes the form of conduct seeking to influence a party not involved in the negotiations, typically either the governing board of the employer or rank-and-file employees in the exclusive representative’s bargaining unit. …

The Mayor’s choice of a citizens’ initiative as a vehicle to implement his policy determination is not privileged because it amounts to bypassing of the unions. The absence of case precedent holding that a duty to meet and confer attaches to a citizens’ initiative does not constitute an affirmative license for the Mayor to deprive a union of its right to meet and confer. Though he characterized his initiative campaign as the activity of a private citizen, the Mayor pursued pension reform in his capacity as an elected official, and could not disown his statutory obligation to comply with the MMBA. …


The Mayor under the color of his elected office, supported by two City Councilmembers and the City Attorney, undertook to launch a pension reform initiative campaign, raised money in support of the campaign, helped craft the language and content of the initiative, and gave his weighty endorsement to it, all while denying the unions an opportunity to meet and confer over his policy determination in the form of a ballot proposal. By this conduct the Mayor took concrete actions toward implementation of the reform initiative, the consequence of which was a unilateral change in terms and conditions of employment for represented employees to the City’s considerable financial benefit. Seal Beach requires negotiations when a public agency, acting through its governing body, makes a policy determination that it proposes for adoption by the electorate. By virtue of the Mayor’s status as a statutorily defined agent of the public agency and common law principles of agency, the same obligation to meet and confer applies to the City because it has ratified the policy decision resu1ting in the unilateral change, and because the Mayor was not legally privileged to pursue implementation of that change as a private citizen. These conclusions make it unnecessary to address any other contentions urged by the unions. …

The City will be ordered to cease and desist from its unilateral action, restore the status quo that existed at the time of the unlawful conduct, and make employees whole for any losses suffered as a result of the unlawful conduct… [including an] order that the City rescind the provisions of Proposition B now adopted…

The ruling must be adopted by the full PERB. Parties have twenty days to file objections from February 11, 2013. If no objections are filed, the ruling will become effective automatically.

Here is the full case… happy reading…. San Diego Pension Ruling PERB

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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