INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 1245 et al., Plaintiffs and Appellants, v. CITY OF GRIDLEY et al., Defendants and Respondents.
Plaintiffs appeal from a judgment denying their combined petition for writ of mandate and complaint for injunctive relief. They sought mandate to compel defendant City of Gridley (City) to meet and confer with plaintiff International Brotherhood of Electrical Workers Union 1245 (Union) regarding wages, hours, and other terms and conditions of employment and an injunction requiring the City to reinstate Union Members (including plaintiff Knox) to employment until such time if at all as they are discharged for cause pursuant to adequate pretermination notice and hearing.
On January 21, 1974, the City enacted two resolutions (Nos. 2 and 3, 1974 series) setting forth procedural rules and regulations affecting relations with its employees. At the time there was no recognized employee organization representing city employees. Among its provisions, Resolution No. 2 excludes from the scope of representative bargaining the City's right to discipline employees, to maintain efficient governmental operation, and to take all necessary actions in emergencies. Resolution No. 3 expressly provides in part:
“Participation by any employee in a strike or work stoppage is unlawful and shall subject the employee to disciplinary action, up to and including discharge.
“No employee organization, its representatives, or members shall engage in, cause, instigate, encourage, or condone a strike or work stoppage of any kind.
“If a recognized employee organization, its representatives or members engage in, cause, instigate, encourage, or condone a strike or a work stoppage of any kind, in addition to any other lawful remedies or disciplinary actions, the Municipal Employee Relations Officer may suspend or revoke the recognition granted to such employee organization, ...”
Copies of the two resolutions were mailed to the Union. Thereafter, on March 13, 1974, the City's employees elected the Union as their bargaining representative. The City formally recognized the Union's representative status on April 1, 1974 (police, management, and confidential employees were excluded from the Union's representation).
Negotiations between the Union and the City followed shortly, culminating in a three-year agreement effective July 1, 1975. The agreement provided, inter alia, that the City “shall not, by reason of execution of this Agreement, abrogate or reduce the scope of any present plan or rule, which is not specifically covered by this Agreement.”
In March 1978, the parties commenced negotiations for a new agreement. At a meeting conducted by a state conciliator on August 22, 1978, an impasse was reached. At the Union's request and pursuant to Resolution No. 2, a meeting before the City Council was held on September 18, 1978, in an effort to conclude an agreement. A further meeting before the Council was scheduled for October 2, 1978. But on the morning of September 22, 1978, without warning, eighteen union member employees of the City went on strike.1 The strikers picketed City facilities carrying “on strike” signs. A Union representative also actively participated. As a result, none of the City's Public Works, Fire, and Finance Department employees reported to work that day, and only the directors of these departments were present for duty. At 8 a. m., on September 22, the City advised the Union that the strike was illegal. By mid-afternoon, the City was aware that Public Works employees had disobeyed earlier orders to connect electricity by September 21 to a new convalescent hospital.
At approximately 4 p. m. on September 22, the City's employee relations officer mailed a demand to each striking employee to return to work at his next regular shift assignment or be discharged. The next regular workday for most of the striking employees would have been Monday, September 25. At the same time, the officer mailed notice to the Union that its recognition as the majority bargaining representative was revoked pursuant to Resolution No. 3.
In the morning of September 22 a meeting of the City Council was duly noticed (Gov.Code, s 54956)2 for the next day. The meeting was convened at 10 a. m. on September 23 (earlier that morning the one standby Public Works employee assigned to work that day, Saturday, had failed to report for duty), and the City Council, which alone had power to do so, decided to discharge all 18 striking employees. Notice to each was served that day, stating the ground for discharge (participation in the strike) and that the demand of the 22nd was superseded. Later on the 23rd the Union notified the City that the employees would return to work when “good faith negotiations” were resumed.
On Sunday, September 24, the City was notified by the Union that all employees would return to work the next day. The City refused to accept them. On Monday, September 25, 1978, plaintiffs filed these proceedings in Superior Court. Before judgment, both the Union and Knox had exhausted their administrative remedies pursuant to the City's procedural rules.
The trial court found the City's 1974 resolutions were validly enacted and were not superseded by the July 1974 agreement or the subsequent adoption by the City of personnel rules. The court further found the strike by City employees and the Union's conduct in inducing it unlawful under the 1974 resolutions. Since City employment was not under civil service but was governed by rules and regulations enacted by the City and by the July 1974 agreement (see s 36506)3 the employees had no right to continued employment upon striking; the City had good cause to discharge them and had properly exercised its discretion in so doing. In addition, the trial court found the City had complied with its duty to meet and confer in good faith prior to revocation of Union recognition, and the revocation pursuant to Resolution No. 3 was reasonable and not an abuse of discretion. The trial court concluded the employees were not entitled to reinstatement and the City had no continuing duty to meet and confer as of September 22, 1978.
In Stationary Engineers v. San Juan Suburban Water District (1979) 90 Cal.App.3d 796, 801, 153 Cal.Rptr. 666, and Almond v. County of Sacramento (1969) 276 Cal.App.2d 32, 80 Cal.Rptr. 518, we held that public employees do not have the right to strike in the absence of legislative authorization and thus no right to reinstatement upon discharge for so striking. (See also Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 687, 8 Cal.Rptr. 1, 355 P.2d 905; Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100, 105-107, 140 Cal.Rptr. 41; City and County of San Francisco v. Evankovich (1977) 69 Cal.App.3d 41, 52, 137 Cal.Rptr. 883; City of San Diego v. American Federation of State etc. Employees (1970) 8 Cal.App.3d 308, 310-313, 87 Cal.Rptr. 258, discussing policy reasons.) The Supreme Court's holding in San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 7, 154 Cal.Rptr. 893, 593 P.2d 838, does not affect the present litigation where all parties have exhausted their administrative remedies.
The Meyers-Milias-Brown Act (s 3500-3510) does not confer upon local public employees a right to strike. (s 3509.) To the contrary, the City's 1974 Resolution No. 3 expressly prohibits such action by its municipal employees. It is in this context of an illegal strike that plaintiffs' claim a constitutional right, denied them here, to notice and hearing prior to employment termination. They rely primarily on Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215, 124 Cal.Rptr. 14, 539 P.2d 774, and Chang v. City of Palos Verdes Estates (1979) 98 Cal.App.3d 557, 159 Cal.Rptr. 630, in contending that preremoval safeguards must include at a minimum “notice of the proposed action, the reasons therefor, a copy of the charges and material upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing the discipline.”
Plaintiffs' reliance is misplaced. Skelly and Chang pertain to due process rights of permanent civil service employees whose interest in continued employment is akin to a property interest. (Skelly v. State Personnel Bd., supra, 15 Cal.3d at pp. 206-208, 124 Cal.Rptr. 14, 539 P.2d 774.) The City of Gridley is not a civil service governmental entity. It is a general law city whose public employees serve at the pleasure of the appointing authority (s 36506), in conformity with the City's rules and regulations, and by the contractual agreement with the Union and the City.
Although all the terminated employees were full-time and permanent, they had no vested interest in or “legitimate claim of entitlement” to continued employment either under applicable City laws or by contract after engaging in an illegal strike (See Board of Regents v. Roth (1972) 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 560.) A public employee serving at the pleasure of the appointing power may be terminated without cause, notice, or a hearing so long as the reason for removal does not impinge on the exercise of a constitutional right. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 783, 97 Cal.Rptr. 657, 489 P.2d 537, cert. den., (1972) 405 U.S. 1030, 92 S.Ct. 1301, 31 L.Ed.2d 488; Williams v. County of Los Angeles (1978) 22 Cal.3d 731, 736, 150 Cal.Rptr. 475, 586 P.2d 956; Kimura v. Roberts (1979) 89 Cal.App.3d 871, 874, 152 Cal.Rptr. 569.) Since public employee strikes are illegal it goes without saying that there is no constitutional right to strike. Although the City may be criticized for a certain amount of vacillation during the crucial period, it did not act unlawfully in its final decisive action.
We do not suggest that the City's employees serve at the totally unbridled pleasure of the appointing authority. According to personnel rules adopted by City in 1974, a permanent employee may be discharged only for a stated cause. In addition, the City must give written notice of the disciplinary action before or simultaneous to the effective date of the action. Discharged employees also have a post-termination right of appeal to the Council. All these rights were accorded the dismissed employees here; they had neither a vested interest in nor a reasonable expectation of greater procedural safeguards.4
We now address the question of the City's power to revoke the Union's recognition. We begin with the basic premise that under the Meyers-Milias-Brown Act public employees have the basic right to choose their own bargaining representative. (s 3502.) Once a union is elected, the public employer cannot “unreasonably withhold recognition” of it. (s 3507.) And once formally recognized, the public employer has a duty to “meet and confer in good faith” with it. (ss 3505, 3501, subd. (b).) On the other hand, the Act was not intended to be binding on public employers who provide “procedures for the administration of employer-employee relations” in accordance with its provisions. (s 3500.) Pursuant to section 3507, the public employer may adopt “reasonable rules and regulations after consultation in good faith with representatives of an employee organization or organizations for the administration of employer-employee relations ....”
With these considerations in mind, we conclude that the City was justified in revoking the Union's recognition because of its active participation in the strike. Procedurally, the resolutions enacted prior to any demand for recognition by the Union were valid and binding on it. The City substantially complied with the requirements of section 3507 since there was no employee organization in existence with which to consult prior to the Union's demand. By comparison, the case relied on by plaintiffs involved a city which invalidly adopted resolutions affecting conditions of employment without consultation in good faith with an already recognized union. (International Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 129 Cal.Rptr. 68.) Additionally, the Union acquiesced in the resolution's provisions; not only was it supplied copies of the resolution upon which it relied in reaching the agreement with the City but the agreement itself expressly provided that City rules not specifically covered by the agreement remained in effect.
Plaintiffs alternatively contend that the City had no power to withdraw recognition because such recognition is purely a ministerial act once municipal employees have chosen the Union as their bargaining representative thereafter only a later act of the same employees can bring this result about. Plaintiffs cite for authority Covina-Azusa Fire Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48, 58-61, 146 Cal.Rptr. 155. We disagree. Covina-Azusa dealt with a city's failure to consult in good faith with a union regarding employee unit determination; the court's limited holding was that a city's duty to recognize a union is ministerial, with exceptions, once the city concedes the union's status as the representative of at least some of the employees. (Id., at p. 59, 146 Cal.Rptr. 155.) The holding is consistent with the “reasonableness” standard for withholding recognition set forth in section 3507. Here the City was reasonably justified in countering the union's illegal participation in the strike by a revocation of recognition. Not only did the Union violate the City's resolution but the strike was an act of bad faith, absolving the City of a continuing duty to meet and confer. On this basis we affirm the trial court judgment denying mandate to compel the City to meet and confer with the Union.
We need not and do not reach the Union's claim that because the revocation of its recognition purports on its face to be permanent it is invalid because violative of sections 3500 et seq. It suffices for our purposes to hold that the City's specific act of revocation was justified and valid. It does not follow that the Union may never again represent the City's employees. On the contrary, if the statutory procedures are followed, it obviously may. The 1974 resolution should be given the reasonable construction, consistent with section 3507, that the City's power of revocation is not absolute; rather the City must in the future act reasonably vis a vis with Union to recognize any validly obtained status as collective bargaining representative of its municipal employees. Otherwise such employees could be forever precluded from exercising their basic statutory right to choose their bargaining representative (s 3502).
The judgment is affirmed.
The majority opinion sanctions the revocation of union recognition as a punitive retaliation for the union's participation in a one-day strike1 in violation of the city's employees' fundamental rights to representation under the Meyers-Milias-Brown (MMB) Act. The opinion also rejects the right of employees who agreed to return to work on the first working day following the strike to a pretermination hearing on the issues of their involvement in the strike and whether their particular conduct justified dismissal.
The majority opinion justifies the city's revocation of union representation by characterizing the city's Resolution No. 3 as a valid exercise of its authority to adopt “reasonable rules” (Gov.Code, s 3507) for the establishment of “procedures for the administration of employer-employee relations.” (Gov.Code, s 3500.) The opinion concludes, on the basis of a cursory citation of the provisions of the MMB Act, that revocation of recognition may be accomplished solely because of the participation by the union in a strike.
The majority have stood the MMB Act on its head. They read an act designed to resolve labor management disputes as authorizing the destruction of the means by which resolution is to be accomplished. Government Code section 3500 manifestly does not authorize “procedures for the (destruction) of employer-employee relations.”
The scope of local government rulemaking power under Government Code section 3507 is limited by the policies and purposes of the MMB Act. “Although the Legislature did not intend to preempt all aspects of labor relations in the public sector, we cannot attribute to it an intention to permit local entities to adopt regulations which would frustrate the declared policies and purposes of the MMB Act. Were we to uphold the city's regulation in question, local entities would, as Professor (now Justice) Grodin observed, be ‘free to adopt rules ... to undercut the very purposes which the act purports to serve. Such an interpretation is inconsistent with the general objectives of the statute as declared in the preamble and with the mandatory language which appears in many of the sections.’ (Grodin, Public Employee Bargaining in California: The Meyers-Milias-Brown Act in the Courts (1972) 23 Hastings L.J. 719, 724-725.) In the words of Professor Grodin, the power reserved to local agencies to adopt rules and regulations was intended to permit supplementary local regulations which are ‘consistent with, and effectuate the declared purposes of, the statute as a whole.’ (Grodin, supra, at p. 725.)” (Huntington Beach Police Officers' Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 501-502, 129 Cal.Rptr. 893, see also Public Employees of Riverside County, Inc. v. County of Riverside (1977) 75 Cal.App.3d 882, 890, 142 Cal.Rptr. 521; San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 557, 127 Cal.Rptr. 856; Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 289-295, 32 Cal.Rptr. 830, 384 P.2d 158.)
The purpose of the MMB Act, as set forth in Government Code section 3500, is “to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations. It is also the purpose of (the act) to promote the improvement of personnel management and employer-employee relations ... by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice and be represented by such organizations in their employment relationships with public agencies.”
Government Code section 35022 gives public employees the right to belong to an employee organization of their own choosing for the purpose of representation on all matters of employer-employee relations. Section 35073 allows public employers to adopt reasonable rules and regulations for administration of employer-employee relations, including procedures for recognition of employee organizations, but section 35064 prohibits interference by a public agency with public employees' exercise of their rights under section 3502.
Thus, procedures for the recognition and revocation of recognition adopted by the city cannot interfere with the employees' right to be represented by the employee organization of their choice in employment relationships with city government. Grodin, in his discussion of recognition under the MMB Act, noted that “the statutory right of employees to be represented by organizations ‘of their own choosing’ would seem to rule out criteria other than employee choice as a basis for selective recognition.” (Emphasis added.) (Grodin, supra, at p. 736.)
The provision in Resolution No. 3 which allows revocation of recognition of a union for its association with strike activity uses criteria other than employee choice and thus interferes with employees' rights under Government Code section 3502. It destroys the line of communication between the public employer and the employees' chosen representative at the time of its greatest importance. It violates the fundamental purpose of the MMB Act to provide “full communication between public employees and their employer.” Since it is in conflict with state law, Resolution No. 3 is invalid.
Having sanctioned the removal of the employee's representative, the majority opinion next sanctions the employees' dismissal without a pretermination right to a hearing at which to deny the grounds of dismissal or argue for a lesser sanction. The opinion summarily upholds the dismissal of the city's employees because they were not permanent civil service employees constitutionally entitled to a pretermination hearing, citing to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774. Although recognizing that the employees, by city rule, could only be discharged for “cause,” the opinion concludes that they had an interest only in the post-termination procedure provided them by city rule. The opinion ignores persuasive authority to the contrary.
Although Skelly concerned the state civil service system, its application is not limited to such a system. It applies to the permanent employees of local governments. (Wilkerson v. City of Placentia (1981) 118 Cal.App.3d 435, 173 Cal.Rptr. 294; West v. City of Berkeley (1979) 96 Cal.App.3d 143, 157 Cal.Rptr. 764; see also Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 150 Cal.Rptr. 129, 586 P.2d 162; Pipkin v. Board of Supervisors (1978) 82 Cal.App.3d 652, 147 Cal.Rptr. 502.)
“In the development of this area of the law, it was first determined that a public entity employer cannot discharge a permanent employee without full substantive and procedural due process. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (124 Cal.Rptr. 14, 539 P.2d 774).) This (is) because the employee, by virtue of his employment, holds a recognized property interest which is protected by due process. (P) It has also been determined that in cases of imposition of discipline, in the nature of suspension for more than a ‘short term,’ permanent employees are likewise entitled to at least minimal due process in the nature of a procedure that would apprise the employee of the proposed action, the reasons therefor, provide them with a copy of the charges including materials on which the action was based, and the right to respond either orally or in writing to the authority imposing the discipline. (Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552 (150 Cal.Rptr. 129, 586 P.2d 162).) This, again, is because the employee has the expectancy of earning his salary free from arbitrary administrative action. ‘Suspension of a right or of a temporary right of enjoyment may amount to a ” taking“ for ”due process purposes.“ (Goss v. Lopez (1975) 419 U.S. 565, 572-576 (95 S.Ct. 729, 735-737, 42 L.Ed.2d 725, 733-736); Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803, 811 (132 Cal.Rptr. 477, 553 P.2d 637).)’ (Civil Service Assn. v. City and County of San Francisco, supra, 22 Cal.3d 552, 560, (150 Cal.Rptr. 129, 586 P.2d 162).)” (Wilkerson v. City of Placentia, supra, 118 Cal.App.3d at p. 441, 173 Cal.Rptr. 294.)
All of the employees terminated were full-time permanent employees. Under the applicable Government Code section,5 these employees served at the pleasure of the city. However, in 1974 the city adopted personnel rules which provided that a permanent employee could only be discharged for a stated cause, thus placing permanent employment beyond the reach of arbitrary termination by the city. (See Davis v. Gray (1938) 29 Cal.App.2d 403, 408, 84 P.2d 534.)
Pursuant to Resolution No. 3, the city council can discipline employees up to and including dismissal for participation in an illegal strike. Personnel rules require that the extent of disciplinary action must be commensurate with the offense. Illegal strike activity comes within several of the stated grounds for cause in the personnel rules. Considering the discretion of the council to institute disciplinary action short of dismissal, a pretermination proceeding which includes opportunity for the employees to explain their actions to the council is critical to ensuring that the council's decision is accurate and fair.
The procedure for termination used by the city council provides for notice of termination after the decision to terminate has been made. The notice states the grounds for termination and must be received either prior to or on the termination date. There is also a post-termination appeal procedure.
The private interest affected by this procedure is of great importance. This court addressed the importance of a right to continued employment in Pipkin v. Board of Supervisors (1978) 82 Cal.App.3d 652, 147 Cal.Rptr. 502, and concluded that “(i)t is beyond question that the right of continued employment is so important and so substantially affects the individual that it is a fundamental right.” (Id., at p. 661, 147 Cal.Rptr. 502.)
The liberty interest of the employees is adversely affected by the procedure. Their livelihood, a matter of fundamental importance, is at stake, yet they are given no opportunity prior to termination to provide an explanation for their actions. In fact, they were not informed of the proceeding until after it had taken place.
The procedures followed by the city council are violative of the due process rights of the employees. A pretermination hearing with notice of the planned action and the employee's right to be heard is constitutionally required. (Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, see also Pipkin v. Board of Supervisors, supra, 82 Cal.App.3d 652, 147 Cal.Rptr. 502.) “Skelly mandates pretermination procedural safeguards consisting, at minimum, of ‘notice of the proposed action, the reasons therefor, a copy of the charges ... and the right to respond, either orally or in writing, to the authority initially imposing discipline.’ ((15 Cal.3d) p. 215 (124 Cal.Rptr. 14, 539 P.2d 774).)” (West v. City of Berkeley, supra, 96 Cal.App.3d at p. 147, 157 Cal.Rptr. 764.)
Although the city's actions violated the employees' pretermination hearing rights, the remedy is not necessarily reinstatement (the remedy requested by the union). (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 134 Cal.Rptr. 206, 556 P.2d 306; Wilkerson v. City of Placentia, supra, 118 Cal.App.3d at p. 443, 173 Cal.Rptr. 294.)
I would reverse the judgment and remand the case for determination of the appropriate relief for the dismissed employees.
1. The Union's attorneys label it a “job action” rather than a strike. The euphemism does not alter the fact it was a concerted cessation of labor following a Union meeting at 5 p. m. on September 21, traditionally a “strike”.
2. All further references are to the Government Code.
3. Section 36506 provides: “By resolution or ordinance, the city council shall fix the compensation of all appointive officers and employees. Such officers and employees hold office during the pleasure of the city council.”
4. We note in passing that the remedy afforded a person unconstitutionally deprived of preremoval safeguards is restricted to an award of salary for the period from the effective date of dismissal until the date of a final decision after a fair hearing. (Pipkin v. Board of Supervisors (1978) 82 Cal.App.3d 652, 657, 147 Cal.Rptr. 502; Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 402-403, 134 Cal.Rptr. 206, 556 P.2d 306.) The record does not disclose when plaintiff Knox's administrative appeal of his dismissal occurred nor do plaintiffs allege he was denied a fair hearing on appeal. We know nothing concerning the appeals of the other 17 employees who were dismissed.
1. For purposes of this discussion I assume that there was an illegal work stoppage and that the union participated in it. “In re Berry ((1968) 68 Cal.2d 137, 151, 65 Cal.Rptr. 273, 436 P.2d 273) ... expressly reserved opinion on ‘the question whether strikes by public employees can be lawfully enjoined’ ....” (San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 7, 154 Cal.Rptr. 893, 593 P.2d 838.)
2. Government Code section 3502 provides: “Except as otherwise provided by the Legislature, public employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations. Public employees also shall have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the public agency.”
3. Government Code section 3507 provides in pertinent part: “A public agency may adopt reasonable rules and regulations after consultation in good faith with representatives of an employee organization or organizations for the administration of employer-employee relations under this chapter (commencing with Section 3500). (P) Such rules and regulations may include provisions for ... (c) recognition of employee organizations ....”
4. Government Code section 3506 provides: “Public agencies and employee organizations shall not interfere with, intimidate, restrain, coerce or discriminate against public employees because of their exercise of their rights under Section 3502.”
5. Government Code section 36506 provides: “By resolution or ordinance, the city council shall fix the compensation of all appointive officers and employees. Such officers and employees hold office during the pleasure of the city council.”
PARAS, Associate Justice.
PUGLIA, P. J., concurs.