LOS ANGELES COUNTY CIVIL SERVICE COMMISSION v. LOS ANGELES COUNTY EMPLOYEES UNION LOCAL 434 AFL CIO 535 AFL CIO 660 AFL CIO

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Court of Appeal, Second District, Division 5, California.

LOS ANGELES COUNTY CIVIL SERVICE COMMISSION, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY EMPLOYEES UNION, LOCAL 434, Service Employees International Union, AFL-CIO, Social Service Union, Local 535, Service Employees International Union, AFL-CIO, Los Angeles County Employees Association, Local 660, Service Employees International Union, AFL-CIO, Real Parties in Interest.

Civ. 49450.

Decided: October 06, 1977

John H. Larson, County Counsel, William F. Stewart, Acting Div. Chief, Joe Ben Hudgens, Principal Deputy County Counsel, Steven L. Houston, Deputy County Counsel, Los Angeles, for petitioner. Geffner & Satzman, Los Angeles, for real parties in interest.

The issue in this writ proceeding is whether petitioner, the Los Angeles County Civil Service Commission, has the power to adopt or amend civil service rules without first complying with the “meet and confer” provisions of the Meyers-Milias-Brown Act. (Gov.Code, s 3500, et seq.; hereafter “MMB”.) The respondent court issued a peremptory writ commanding such compliance. This opinion reviews the correctness of that decision.

FACTS

The facts are undisputed. Article IX of the Los Angeles County Charter provides for the civil service. Section 30 creates the Civil Service Commission (“commission”). Section 34 mandates the commission to make and amend rules for the classified civil service “which shall have the force and effect of law, . . .” Such rules must provide for “layoffs or for mandatory reductions in lieu of layoff . . . for reasons of economy or lack of work.” (Section 30(18).) Further, the rules must provide “for reinstatement within one year of persons who without fault or delinquency on their part are separated from the service or reduced; . . .” (Rule 34(10).) Finally, the charter directs the Civil Service Commission to make rules for “the adoption and amendment of rules only after public notice and hearing.” (Section 34(16).) Pursuant to this mandate, the commission adopted its rule 27 to the effect that civil service rules could be amended only “after giving at least seven business days' notice . . . and after holding a public hearing thereon . . . .”

In February and March 1976, the commission held public hearings to consider amendments to certain of its rules.[FN1] Written notice of these public hearings was duly sent to each of the real parties in interest several employees' union locals (“unions”) who attended the hearings under protest, claiming that MMB entitled them to “meet and confer” with the commission concerning the proposed amendments. Without waiving this asserted right, they expressed their views at the public hearings. At the close of the March 3, 1976, hearing, the commission adopted amendments to its rules. On April 16, 1976, the unions petitioned the respondent court for a writ of mandate, to compel the commission to set aside the amendments and to meet and confer with them before readopting any rules relating to lay-offs or mandatory reductions in lieu of lay-offs. On June 7, 1976, the respondent court issued its writ to that effect. On the commission's representation that lay-offs for reasons of economy were imminent and that the remedy by appeal was, therefore, inadequate, we, in turn, granted the commission's petition for an alternative writ of mandate. (Duran v. Cassidy (1972) 28 Cal.App.3d 574, 579, 104 Cal.Rptr. 793, and cases cited.)[FN2]

DISCUSSION

Government Code section 3505 FN3 requires that public agencies affected by MMB or their designated representatives “confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of . . . recognized employee organizations, . . .” If this negotiating process is successful, it results in a non-binding memorandum of understanding (s 3505.1). It is clear that the right to meet and confer is more than just the right to be heard. It involves negotiation, a “serious attempt to resolve differences and reach a common ground.” (Placentia Fire Fighters v. City of Placentia (1976) 57 Cal.App.3d 9, 25, 129 Cal.Rptr. 126, 138.) To be blunt, it leads to a bargaining session.

The commission asserts that it was not required to meet and confer concerning the civil service rules in issue because: (1) the statutory requirement to meet and confer is irreconcilable with the charter requirement that the rules be adopted “only after public notice and hearing.” On this premise the commission argues that certain home rule provisions of the California Constitution applicable only to charter counties make section 3505 inapplicable to Los Angeles County; (2) the commission asserts that, in any event, the statutory language of MMB does not compel it to meet and confer concerning civil service rule changes.

I. THE CONSTITUTIONAL ARGUMENT

Article XI of the California Constitution, as revised at the June 2, 1970, election, contains two separate home rule clauses affecting charter counties. When applicable, they nullify state laws inconsistent with a county charter.[FN4] Although neither clause has been extensively interpreted, it is clear that charter county home rule is not limited to “municipal affairs” a meaningless concept in the context of county government. The “municipal affair statewide concern” dichotomy being irrelevant, real parties' argument to the effect that MMB deals with a matter of statewide concern (Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 294-295, 32 Cal.Rptr. 830, 384 P.2d 158) is therefore off the mark. Nevertheless, application of either of the two home rule clauses to parts of MMB inconsistent with county charters presents certain difficulties.[FN5] Since, however, we have concluded that a charter requirement for a public hearing and a statutory command to meet and confer can peacefully coexist, we need not attempt to solve them.

If the commission, in adopting civil service rules, acted in a judicial capacity, we might have some difficulty in explaining how the Legislature can command the “judges” to negotiate an agreement with one of the litigants before taking the “bench” at a public hearing.[FN6] Although the commission undoubtedly has judicial functions particularly in connection with disciplinary matters affecting individual employees its rule making powers are not judicial but legislative. Section 34 of the Los Angeles County Charter starts as follows: “The Commission shall prescribe, amend and enforce rules for the classified service, which shall have the force and effect of law, . . .” Unlike a court which, ideally, knows nothing about a controversy until the parties seek its aid, and which has no interest in the outcome of the litigation, a legislative body creates controversy, often by self-generated proposals to enact, adopt, amend or repeal laws. The fact that such a body may or, as in the case of the commission, must give notice of what it proposes to do and afford interested parties or groups a chance to be heard, does not mean that it must or even should approach the public hearing without at least a tentative view of what it will do after everyone has had his say. Further, it is commonly accepted practice, not at all incompatible with the concept of a public hearing, for agencies such as the commission to receive staff recommendations before the hearing. These recommendations often, if not usually, become the ultimate action of the agency. The complexity of matters before legislative bodies simply does not permit them to act only on input received at the hearing. (California Optometric Assn. v. Lackner (1976) 60 Cal.App.3d 500, 508, 131 Cal.Rptr. 744.) Realistically, a public hearing by a legislative body is often nothing but an order to show cause why tentatively predetermined action should not be taken. Viewed in that light, we can see no irreconcilable conflict between a tentative understanding reached after a bargaining session with affected unions and the charter mandated public hearing.[FN7]

Another consideration is relevant: MMB deals with the bargaining rights of public employees. Although our Supreme Court keeps implying that the issue is not yet settled, the Courts of Appeal keep holding that such employees do not have the right to strike. (See City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 912-913, 120 Cal.Rptr. 707, 534 P.2d 403; In re Berry (1968) 68 Cal.2d 137, 151, 65 Cal.Rptr. 273, 436 P.2d 273; City and County of San Francisco v. Evankovich (1977) 69 Cal.App.3d 41, 47-48, 137 Cal.Rptr. 883.) At a minimum a strike by public employees demands a willingness to take certain legal risks which private employees need not fear. The ability to sit down with an agency which represents the employer under the auspices of MMB appears a reasonable trade-off for the apparent inability of public employees to wield the ultimate weapon of a labor stoppage.

II. THE STATUTORY ARGUMENT

The commission claims that it is exempt from complying with section 3505 because of the admittedly puzzling language in section 3500 stating that MMB shall not “be deemed to supersede the provisions of existing state law and the charters, ordinances, and rules of local public agencies which establish and regulate a merit or civil service system or which provide for other methods of administering employer-employee relations . . . .” It has been noted that a literal reading of that language would make MMB inapplicable to any local government which wants to go to the trouble of passing an ordinance that covers the same ground as MMB, even if it does so in a manner less beneficial to public employees. (Grodin, Public Employee Bargaining in California: The Meyers-Milias-Brown Act in the Courts, 23 Hastings L.J., pp. 719, 724.) Any doubts concerning the meaning of this language were, however, resolved in Huntington Beach Police Officers' Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 502-503, 129 Cal.Rptr. 893. Rather, local law cannot undermine the provisions of MMB which guarantees minimum safeguards and rights to public employees. (Los Angeles County Firefighters Local 1014 v. City of Monrovia (1972) 24 Cal.App.3d 289, 294-295, 101 Cal.Rptr. 78.)[FN8]

The commission also argues that section 3505 is inapplicable to it because it is not the “employer” of county employees. It is pointed out that under the county charter it is the director of personnel, rather than the commission, who makes recommendations on employee relations to the Board of Supervisors.[FN9]

The argument is irrelevant. Petitioner commission fits comfortably into the definition of a public agency contained in section 3501, subdivision (c). Assuming, for the moment, that amendments to civil service rules are subject to the meet and confer requirement of section 3505, it is no answer to argue that all other employee problems are negotiable with the board of supervisors, via the director of personnel. Los Angeles County may allocate jurisdiction in employee matters any way it pleases. It cannot, however, thereby avoid the impact of section 3505.[FN10]

Referring to the fact that section 3505 defines “meet and confer in good faith” as including an “endeavor to reach agreement on matters within the scope of representation prior to the adoption by the public agency of its final budget for the ensuing year . . .,” the commission argues that the proposed amendments to the civil service rules are not budget related and, therefore, not negotiable. That contention is completely answered in Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services Dist. (1975) 45 Cal.App.3d 116, 119, 119 Cal.Rptr. 182.

Finally, the commission argues that since it complied with section 3504.5, additional compliance with section 3505 was not required. We disagree.

Section 3504.5 provides, in relevant part: “(A) public agency, . . . shall give reasonable written notice to each recognized employee organization affected of any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body . . . and shall give such recognized employee organization the opportunity to meet with the governing body or such boards and commissions.”

The commission argues that the noticed public hearing at which the unions aired their views constituted adequate compliance with section 3504.5. We assume that it did, but what of it? Section 3504.5 and section 3505 are cumulative, not alternative. Section 3504.5 covers issues “directly relating to matters within the scope of representation” of recognized employee organizations. Section 3505 is narrower in that it only applies to “wages, hours, and other terms and conditions of employment . . . .” The “scope of representation” is defined in section 3504 as including “all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours and other terms and conditions of employment, . . .” (Italics added) The Legislature apparently assumed that there were matters relating to employment conditions and employer-employee relations other than wages, hours and other terms and conditions of employment. With respect to such matters, compliance with section 3504.5 is sufficient. When, however, the subject matter under consideration by the agency relates to wages, hours and other terms and conditions of employment, section 3505 provides an additional requirement. (International Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 966, 129 Cal.Rptr. 68, 73: “The first paragraph of section 3505 further required the City to ‘meet and confer in good faith’ . . . .” (Italics added.)) That civil service rules determining the priority of victims of personnel reduction due to economy-dictated lay-offs constitutes “a condition of employment,” cannot be seriously doubted. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 621-622, 116 Cal.Rptr. 507, 526 P.2d 971.)

Writ denied.

FOOTNOTES

1.  The rules involved were 18.05, 20.06, 20.07 and 20.08. The amendments affected rules designed to deal with a situation in which a number of employees are laid off or reduced in lieu of lay-offs. The substantive issue which divides petitioner and the real parties in interest is whether the victims of such economy measures should be determined solely on the basis of lack of seniority.

2.  As matters developed, an appeal would probably have been just as speedy a procedure. After oral argument in October 1976, we felt compelled to ask the parties for further briefing. When that was accomplished, the Los Angeles County Employee Relations Commission filed a “wild brief” in the form of a decision and order in connection with the very same civil service rule changes involved in this proceeding. Further briefing followed.

FN3. All statutory references unless otherwise indicated are to the Government Code..  FN3. All statutory references unless otherwise indicated are to the Government Code.

4.  The first is a sentence in article XI, section 3(a): “County charters adopted pursuant to this section shall supersede . . . all laws inconsistent therewith.”The other is article XI, section 4(g): “Whenever any county has framed and adopted a charter, and the same shall have been approved by the Legislature as herein provided, the general laws adopted by the Legislature in pursuance of Section 1(b) of this article, shall, as to such county, be superseded by said charter as to matters for which, under this section it is competent to make provision in such charter, and for which provision is made therein, except as herein otherwise expressly provided.”

5.  Anyone not fascinated by the intricacies of charter county home rule should ignore this footnote. Those who care may be interested to learn what some of these difficulties are:(1) The leading California case which declares that valid county charter provisions “shall control over general laws on the subject,” Pearson v. County of Los Angeles (1957) 49 Cal.2d 523, 536, 319 P.2d 624, 632, nevertheless does so only after noting that the conflicting statute does not set forth a principle “of statewide concern.” (Id. at p. 535, 319 P.2d 624.) While we are fairly certain that the court did not mean to add inferentially “and therefore relates to a municipal affair,” the language needs some explaining.(2) The significance of the quoted sentence from section 3(a) is quite mystifying. Section 13 of article XI informs us, in effect, that section 3(a) together with other designated parts of article XI “relating to matters affecting the distribution of powers between the Legislature and cities and counties, including matters affecting supersession, shall be construed as a restatement of all related provisions of the Constitution in effect immediately prior to the effective date of this amendment, and as making no substantive change.” The difficulty is that before June 2, 1970, article XI contained no counterpart to section 3(a). Similar language was found in former section 81/2, subsection 4, but that language did not apply to counties, but only to cities or “consolidated” cities and counties, i. e., San Francisco.(3) The problem with the home rule provision of section 4(g) is that it only applies where a charter provision conflicts with a general law adopted “in pursuance of Section 1(b) . . .” Section 1(b) mandates the Legislature to “provide for county powers . . .” The commission wants us to hold that by purporting to deprive Los Angeles County of its power to amend civil service rules without first bargaining with the unions, MMB is a general law which “provides” for county powers in a negative sense by taking them away. That may be a tall order.

6.  In Saks & Co. v. City of Beverly Hills (1951) 107 Cal.App.2d 260, 265, 237 P.2d 32, 36, disapproved on other grounds in City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 781-782, 122 Cal.Rptr. 543, 537 P.2d 375, a public hearing was defined as a proceeding which “contemplates a fair and impartial hearing at which competent evidence may be presented before a fair and impartial tribunal.” On the other hand in Silver B. Co. v. State Bd. of Education (1940) 36 Cal.App.2d 714, 718, 98 P.2d 533, 536, the court said: “The term ‘public hearing’ has been defined in various ways and its meaning no doubt varies depending upon the subject of the hearing, the nature of the board or person holding the hearing and nature of the board or person to be heard.” In that case a statutory mandate for a public hearing was held satisfied when the complaining party was permitted to present a written report and recommendation to the State Board of Education which promptly rejected it.

7.  It has been held that good faith requires the public agency involved to implement the non-binding agreement (Goleta Educators Assn. v. Dall'Armi (1977) 68 Cal.App.3d 830, 834, 137 Cal.Rptr. 324; San Joaquin County Employees' Assn., Inc. v. County of San Joaquin (1974) 39 Cal.App.3d 83, 89, 113 Cal.Rptr. 912.) We do not, however, interpret MMB to require such implementation if information received at the public hearing persuades the agency involved that the tentative understanding was unwise.

8.  Properly understood, American Federation of State, etc., Employees v. County of Los Angeles (1975) 49 Cal.App.3d 356, 360, 122 Cal.Rptr. 591, is not to the contrary. That case much relied on by petitioner is merely an interpretation of Los Angeles County's Employees Relations Ordinance and holds that under the terms of that ordinance certain matters preempted by the county charter to the civil service commission were not subject to negotiation. The correctness of the decision as an interpretation of the ordinance is not in issue here.

9.  Under the Los Angeles County Charter, the director of personnel wears two hats. Under Article XI, section 31 he administers the civil service system under the direction of the commission. Nevertheless, under section 223/4 he performs duties for the board of supervisors. That section reads, in relevant part, as follows:“To enable a consolidation of personnel functions of the County, other than personnel functions which are the responsibility of other appointing authorities pursuant to the provisions of this Charter, the Board of Supervisors may prescribe that the Director of Personnel exercise general supervision over and enforce all or any portion of the rules and procedures of the County's personnel system including but not being limited thereto, the making of reports and recommendations to the Board of Supervisors with respect to the compensation of County employees and the administration of rules and procedures to be followed in the County's employer-employee relationships. All duties performed by the Director of Personnel, other than those performed pursuant to Article IX hereof, shall be under the direction of the Board of Supervisors.”

10.  In this connection, the commission also argues that since all other employee problems are in the domain of the board of supervisors, it has few bargaining chips in the give-and-take of the meet and confer process. While this may be a reason for reallocating local governmental functions, it does not excuse noncompliance with section 3505.

KAUS, Presiding Justice.

ASHBY and HASTINGS, JJ., concur.

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