City of Phoenix v. Phoenix Employment Relations Board

86 P.3d 917, 207 Ariz. 337, 422 Ariz. Adv. Rep. 36, 174 L.R.R.M. (BNA) 2959, 2004 Ariz. App. LEXIS 36
CourtCourt of Appeals of Arizona
DecidedMarch 25, 2004
DocketNo. 1 CA-CV 02-0810
StatusPublished
Cited by17 cases

This text of 86 P.3d 917 (City of Phoenix v. Phoenix Employment Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Phoenix v. Phoenix Employment Relations Board, 86 P.3d 917, 207 Ariz. 337, 422 Ariz. Adv. Rep. 36, 174 L.R.R.M. (BNA) 2959, 2004 Ariz. App. LEXIS 36 (Ark. Ct. App. 2004).

Opinion

OPINION

IRVINE, Judge.

¶ 1 The Phoenix Employment Relations Board (“PERB”), American Federation of State, County and Municipal Employees, AFL-CIO, Local 2384 (“Union”), Trade Lowe and Patrick Brown (collectively “appellants”) appeal from the special action judgment of the superior court directing PERB to dismiss the appellants’ unfair labor practice charges. We conclude that PERB, under the City of Phoenix’s Meet and Confer Ordinance (“Ordinance”), had jurisdiction to consider appellants’ unfair labor practice charges. Therefore, we reverse and remand to the trial court for entry of judgment in favor of appellants.

FACTS AND PROCEDURAL HISTORY

¶ 2 As the result of two unrelated investigations by the City of Phoenix (“City”), Patrick Brown was suspended for two days without pay for an unexplained absence from work and Trade Lowe was terminated from her employment for misuse of City property. Each sought review of the discipline with the Phoenix Civil Service Board.1 Thereafter, Brown, Lowe and the Union filed unfair labor practice charges with PERB pursuant to applicable provisions of the Ordinance. See Phoenix City Code (“PCC”) §§ 2-209 through -222.

¶3 Brown and Lowe based their unfair labor practice charges on allegations that their supervisors obtained information from an investigatory interview without first in[339]*339forming them of their right to union representation. They asserted that the failure to inform them of their rights violated the 2000-2002 Memorandum of Understanding between the City and the Union and the Ordinance, specifically, PCC § 2-220.

¶4 The City moved to dismiss Brown’s unfair labor practice charge contending that PERB had no jurisdiction when a timely appeal had been filed with the Civfi Service Board. The Union and Brown responded that the Ordinance gave PERB exclusive jurisdiction to consider unfair labor practices.

¶ 5 The City similarly moved to dismiss Lowe’s unfair labor practice charge alleging that pursuant to PCC § 2-211(H)(3), (9), and PERB Rule 1.4, PERB did not have jurisdiction to entertain allegations of unfair labor practices in cases in which appeals had been timely filed before the Civil Service Board. Additionally, the City argued that Lowe still had a remedy through the Memorandum of Understanding grievance-arbitration process.

¶ 6 PERB denied the City’s motions to dismiss and exercised jurisdiction to determine the unfair labor practice charges filed by Brown, Lowe and the Union. PERB stated that its remedy would be limited to a Cease and Desist and a Posting Order if it found an unfair labor practice. PERB consolidated the cases and ordered them set for hearing. Before that hearing commenced the City filed its special action complaint in superior court.

¶ 7 After briefing and argument, the superior court entered judgment in favor of the City (1) vacating the August 31, 2001 order of PERB setting the unfair labor practice charges hearing and (2) directing PERB to dismiss the unfair labor practice charges. The superior court reasoned that PERB does not have jurisdiction to hear an unfair labor practice charge on the same case in which the Civil Service Board is hearing a disciplinary appeal.

DISCUSSION

¶ 8 The central dispute in this appeal is the correct interpretation of the terms of the Ordinance defining the authority of PERB. These provisions include subsections (3), (6), (8) and (9) of section 2-211(H) of the Phoenix City Code, which state:

(H) Powers and duties of the Board.
(3) The Board shall have the authority to adjudicate a charge for which no appeal has been taken to the City of Phoenix Civil Service Board.
(6) Hold hearings, administer oaths, compel attendance of and examine witnesses, compel production of and examine documents, and provide for informal hearing procedures.
If the Board determines that a party has engaged, or is engaging, in conduct in violation of this ordinance, it may issue an order requiring the party to cease and desist from such conduct. If the violation involves the demotion, suspension or termination of an employee, the Board may order the reinstatement of such employee with or without back pay. The order may further require the party to make reports from time to time showing the extent to which the party has complied with the order.
(8) The Board shall have exclusive authority to determine the existence of an unfair labor practice. The Board shall have the power to order reinstatement and/or back pay for demoted, suspended or terminated employees in cases which involve unfair labor practices. It may order the City to cease and desist any unfair labor practice; except for the authority to order the parties to bargain in good faith, it shall have no power to order affirmative action that would in any way diminish the Charter powers of the City Council, City Manager, Personnel Official, or the Phoenix Civil Service Board. The Board may, however, make an advisory recommendation to the appropriate authority.
(9) The Board shall have no jurisdiction over any cases involving discipline where [340]*340timely filed under the City’s civil service system.

Subsection (K) adds:

The authority and jurisdiction granted under the Charter to the Phoenix Civil Service Board and to the Personnel Official shall not be diminished by the operation of this ordinance.

PCC § 2-211(K). PERB has also adopted Rules and Regulations, with the approval of the City Council, one of which addresses its authority.

1.4 Authority of the Board

The Board shall be responsible for the enforcement of the ordinance and these Rules and Regulations. The Board shall have exclusive authority to determine the existence of an unfair labor practice. Written claims of violation of Phoenix City Code, section 2-220, shall be adjudicated by the Board. The Board, however, shall have no jurisdiction over any cases involving discipline where timely filed under the City’s Civil Service System.

PERB Rules and Regulations (2000).

¶ 9 The underlying dispute between the parties is the scope of an employee’s right to be informed that he or she has a right to have a union representative present during an investigatory interview. In National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975), the United States Supreme Court “upheld the National Labor Relations Board’s conclusion that an employer’s denial of an employee’s request to have a union representative present at an investigatory interview, which the employee reasonably believed might result in disciplinary action, was an unfair labor practice.” NASA v. Fed. Labor Relations Auth., 527 U.S. 229, 251, 119 S.Ct. 1979, 144 L.Ed.2d 258 (1999). In its brief, the City acknowledges that the right to union representation if requested by an employee, known as a Weingarten right, is conferred by the Ordinance because of the holding in Weingarten. Before PERB, the issue to be decided is the scope of Weingar-ten

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Bluebook (online)
86 P.3d 917, 207 Ariz. 337, 422 Ariz. Adv. Rep. 36, 174 L.R.R.M. (BNA) 2959, 2004 Ariz. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-phoenix-v-phoenix-employment-relations-board-arizctapp-2004.