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BUILDING MATERIALS AND CONSTRUCTION TEAMSTERS UNION LOCAL 216 v. FARRELL

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Court of Appeal, First District, Division 3, California.

BUILDING MATERIALS AND CONSTRUCTION TEAMSTERS' UNION LOCAL 216, Plaintiff and Appellant, v. John C. FARRELL, as Controller of the City and County of San Francisco, et al., Defendants and Respondents.

AO24616.

Decided: April 29, 1985

George Agnost, City Atty., Stephanie M. Chang, Deputy City Atty., San Francisco, for plaintiff and appellant. Davis & Reno by Vincent J. Courtney, Jr., San Francisco, for defendants and respondents.

Plaintiff and appellant, Building Materials and Construction Teamsters' Union Local 216, appeals from the judgment of the Superior Court of San Francisco County, entered after the trial court, on August 4, 1983, denied appellant's petition for writ of mandate.

Appellant contends on appeal that (1) the Meyers-Milias-Brown Act required respondents to give notice to and meet and confer with appellant, prior to reorganizing and reclassifying one and one-half positions at Laguna Honda Hospital;  and (2) appellant's request for relief was appropriate and timely.

The facts concerning the reorganization and reclassification of the positions in issue are undisputed.   One vacant, full-time, Class 7355 “Truck Driver” position and one filled, part-time Class 7355 truck driver position were unilaterally deleted from the Laguna Honda Hospital budget for fiscal year 1980–1981 by the San Francisco Department of Public Health.   At the same time, three new full-time positions at lower pay, in Class 7524, “Institutional Utility Worker,” were added to the Laguna Honda Hospital budget.

On September 8, 1980, the San Francisco Civil Service Commission approved the Public Health Department's recommended reorganization and reclassification of the duties and responsibilities of the Class 7355 positions to the Class 7524 positions.   Appellant union was first notified on September 8, 1980, of the recommended and then-approved reorganization.

Class 7355 positions were within appellant's bargaining unit.   Class 7524 positions were not within appellant's bargaining unit.

Sometime in July 1980, part-time Class 7355 employee and appellant's member Antone Metaxas was notified that effective July 17, 1980, he would be reassigned from Laguna Honda Hospital to a permanent, full-time position in Class 7355 at San Francisco General Hospital.   Metaxas was granted a personal leave from employment from July 16, 1980 through October 4, 1982.   Thereafter, Metaxas failed to report for duty at San Francisco General.   Pursuant to Civil Service rules, he was deemed automatically resigned, by abandonment, of his position effective December 15, 1982.   Metaxas did not appeal his automatic resignation to the Civil Service Commission.   On December 31, 1982, he lost his status as a truck driver and is barred from future employment with the Department of Public Health.

Appellant's attempts, through the established grievance procedure, to regain the one-half position at Laguna Honda Hospital for its member, Antone Metaxas, were not successful.

On November 25, 1981, appellant requested that the Civil Service Commission reconsider the position reclassification.   The Civil Service Commission again reviewed the duties and responsibilities of the position and confirmed its original approval of the reorganization.

A hearing on the matter was then held before the Civil Service Commission on January 18, 1982.   Appellant raised its “meet and confer” claim and the Civil Service Commission ordered that the matter be continued so that a meeting between the Public Health Department and appellant could be held prior to the Commission's final action.   After the meeting with appellant, the Commission, on March 1, 1982, denied appellant's appeal.

On April 13, 1983, appellant filed this action, seeking issuance of a writ of mandate compelling respondents to restore the one and one-half 7355 Truck Driver positions at Laguna Honda Hospital and to reinstate Metaxas with back pay to his former assignment there.   The trial court denied appellant's request on the grounds that the reclassification of the positions at Laguna Honda Hospital was not subject to meet and confer requirements and on the further grounds that appellant's request for relief was not timely.

The Meyers-Milias-Brown Act (MMBA) (Gov.Code, §§ 3500–3510) provides local government employees the right to organize collectively and be represented by an employee union on “all matters of employer-employee relations” with public agencies.  (Gov.Code, § 3502.)   This right to representation “encompasses ‘but [is] not limited to wages, hours, and other terms and conditions of employment’ (Gov.Code, § 3504).”  (Social Workers' Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 388, 113 Cal.Rptr. 461, 521 P.2d 453.)

Government Code section 3504.5 provides in part:  “Except in cases of emergency as provided in this section, the governing body of a public agency, and boards and commissions designated by law or by such governing body, 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 or such boards and commissions and shall give such recognized employee organization the opportunity to meet with the governing body or such boards and commissions.”  (Emphasis added.)  Government Code section 3505 provides in part:  “The governing body of a public agency, or such boards, commissions, administrative officers or other representatives as may be properly designated by law or by such governing body, shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations, as defined in subdivision (b) of Section 3501, and shall 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.”  (Emphasis added.)

Appellant contends that the Department of Public Health's reorganization and reclassification of the Class 7355 Truck Driver positions at Laguna Honda Hospital is a “matter within the scope of representation” of the MMBA, when the duties formerly performed by employees within the bargaining unit are still performed, but by nonbargaining unit employees.   Thus, appellant contends that pursuant to Government Code section 3504.5 and section 3505, the city was obligated to notify appellant and to meet and confer with appellant prior to deleting the Truck Driver positions from the 1980–1981 budget and prior to reorganizing and reclassifying the duties of those positions to Institutional Utility Worker, Class 7524.

Section 3504 defines the scope of representation under the MMBA as follows:  “The scope of representation shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.”  (Emphasis added.)

Respondents argue that the budget deletion and reclassification actions at issue relate to the “merits, necessity, or organization” of the health “service” provided by respondents at Laguna Honda Hospital.  (Gov.Code, § 3504.)   There was then no notification or meet and confer obligation on respondents' part as to appellant because respondents' actions were within the express “management prerogatives” exception to coverage by the MMBA.  (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 616, 116 Cal.Rptr. 507, 526 P.2d 971.)

The cases have consistently set a high standard in determining the existence of a “managerial prerogative” under the MMBA.  (Solano County Employees' Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 263, 186 Cal.Rptr. 147.)   The Supreme Court has stated that to promote peaceful adjudication of disputes, “[w]e ․ must be careful not to restrict unduly the scope of the arbitration by an overbroad definition of ‘merits, necessity or organization.’ ”  (Fire Fighters Union v. City of Vallejo, supra, 12 Cal.3d at 615, 116 Cal.Rptr. 507, 526 P.2d 971, emphasis in original.)

The court in San Jose Peace Officers Assn. v. City of San Jose (1978) 78 Cal.App.3d 935, 948, 144 Cal.Rptr. 638, determined that the San Jose Police Department's decision concerning the correct use of force by its police officers was not a term or condition of employment, but a managerial policy decision within the “exception delineated in Section 3504.”   Thus, a change in the police department's regulations was not subject to the meet and confer requirement under the MMBA.

The San Jose court correctly considered the decisions in Fibreboard Corp. v. Labor Board (1964) 379 U.S. 203, 223, 85 S.Ct. 398, 409, 13 L.Ed.2d 233 (conc. opn. of Stewart, J.), and Fire Fighters Union v. City of Vallejo, supra, 12 Cal.3d at pages 616–617, 620–621, 116 Cal.Rptr. 507, 526 P.2d 971, which stated that decisions which are clearly within the realm of managerial discretion and which “impinge only indirectly,” or do not “primarily involve,” the terms or conditions of employment are not subject to meet and confer requirements.   The court further noted that the court in Westinghouse Electric Corporation v. N.L.R.B. (4th Cir.1967) 387 F.2d 542, 548, required that managerial decisions have a “significant or material” relationship to working conditions in order to be subject to meet and confer requirements.   The San Jose court stated at 78 Cal.App.3d 945, 144 Cal.Rptr. 638:  “Requiring that the decision have a ‘significant or material’ relationship to working conditions (Westinghouse, supra) is substantially the same as requiring that the decision ‘primarily’ involve working conditions.  (Fire Fighters, supra.)   This is also consistent with Mr. Justice Stewart's opinion in Fibreboard Corp., supra, that decisions ‘which impinge only indirectly’ upon a subject of bargaining are not the subject of collective bargaining.”

The San Jose court also looked at whether the decision at issue was “inextricably interwoven with important policy considerations,” to determine that the correct use of police force was a managerial decision not subject to meet and confer.  (San Jose Peace Officers Assn., supra, 78 Cal.App.3d 935, 946, 144 Cal.Rptr. 638.)

Similarly, the court in Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 937, 143 Cal.Rptr. 255, considered whether meeting and conferring on the issue in that case “would place an intolerable burden upon fair and efficient administration of state and local government.”   If so, “[s]uch decisions [could] not and should not be within the ‘scope of representation’ by public employee associations.”

 Applying these tests to the instant case, we hold that respondents made a managerial budgetary decision, within the section 3504 exception to coverage by the MMBA.   Respondents made a “primarily” economic policy decision to delete the one and one-half Truck Driver positions from the 1980–1981 budget, in order to promote more efficient administration at Laguna Honda Hospital.   The effects of that managerial decision on the terms and working conditions of appellant and appellant's members were “indirect.”   The one worker affected by the deletion was offered a permanent, full-time position in his same job classification at San Francisco General Hospital.   The decision was not within the scope of representation under the MMBA and so was not subject to notification and meet and confer requirements.

 We also hold that respondents' actions of reorganization and reclassification of the duties formerly performed at Laguna Honda Hospital by Class 7355 Truck Drivers to Class 7524 Institutional Utility Workers were not subject to notification and meet and confer requirements under the MMBA.

Government Code section 3500 provides in part:  “․ Nothing contained herein shall 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 nor is it intended that this chapter be binding upon those public agencies which provide procedures for the administration of employer-employee relations in accordance with the provisions of this chapter.”

We agree with the trial court and respondents that the holding in American Federation of State, etc. Employees v. County of Los Angeles (1975) 49 Cal.App.3d 356, 122 Cal.Rptr. 591 is applicable to the instant case.   In American Federation, the union sought a peremptory writ mandating the county to negotiate the reclassification of certain positions.   The court held that under the Los Angeles County Charter and the local employee relations ordinance, the job reclassification was “clearly excepted” from the meet and confer requirements set out in the MMBA and also set out in the local employee relations ordinance.  (American Federation, supra, at p. 363, 122 Cal.Rptr. 591.)

 The Los Angeles County employee relations ordinance at issue in American Federation is substantially similar to provisions adopted by the City and County of San Francisco.   The San Francisco Employees' Relation Ordinance is codified at San Francisco Administrative Code section 16.200, et seq.   Section 16.201 and section 16.215, subdivision (a) provide that nothing supersede the San Francisco Charter section 3.661, subdivision (a) authority of the Civil Service Commission to reclassify positions.   Likewise, the right and authority of the Civil Service Commission to reclassify positions is specifically reserved at section 16.206.   Under the holding in American Federation of State, etc. Employees v. County of Los Angeles, supra, 49 Cal.App.3d 356, 360, 122 Cal.Rptr. 591, the provisions of Administrative Code sections 16.201, 16.206 and 16.215, subdivision (a) and charter section 3.661, subdivision (a) reserve the subject of job classification determinations to the Civil Service Commission, and there is no obligation to meet and confer on determinations to reorganize by reclassification of positions.

Appellant argues that contentions analogous to those made in American Federation were made and rejected by the Supreme Court in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145.   However, we find that Seal Beach is distinguishable from the instant case.

In Seal Beach, the court held that the city council was required to meet and confer with the public employee unions before it proposed charter amendments which affected matters within the employees' scope of representation.   The MMBA required such action and the city council could not “avoid the [MMBA] requirement by use of its [Constitutional] right to propose charter amendments.”  (Seal Beach, supra, at p. 602, 205 Cal.Rptr. 794, 685 P.2d 1145.)

In the instant case, there is no issue as to any changes in existing rules.   Rather, all the actions complained of were undertaken pursuant to existing law.   We have also held earlier in this opinion that respondents' actions were not within the scope of MMBA representation.   Thus, the Seal Beach holding is inapplicable.

Appellant argues further that the deletion of the positions and the reorganization are subject to meet and confer requirements because those actions resulted in the loss of one and one-half positions in the union's bargaining unit.   We disagree with this contention.

 “[A] public agency must meet and consult with any recognized employee representative prior to adopting (or modifying) rules and regulations themselves, but it need not do so when determining whether an individual proposed bargaining unit is appropriate under rules previously adopted.”   (Service Employees Internat. Union v. City of Santa Barbara (1981) 125 Cal.App.3d 459, 469, 178 Cal.Rptr. 89.)   Under section 1 of the existing memorandum of understanding between the City and County of San Francisco and appellant, for fiscal year 1980–1981, the city was specifically not precluded from transferring a particular classification to another “more appropriate unit,” and there was no meet and confer requirement for such action.1  We find that under those existing rules, the city was also not required to meet and confer with appellant before reorganizing and reclassifying one and one-half positions within a particular classification simply because such action affected the size of appellant's bargaining unit.

We note that appellant also relies upon the holdings in Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 165 Cal.Rptr. 908, and Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 151 Cal.Rptr. 547, 588 P.2d 249.   As in the Seal Beach holding, both cases involved the issue of whether meet and confer was required prior to adopting amendments to existing rules.   As noted earlier in this opinion, there is no issue in this case as to any changes in existing rules.   Thus, both holdings can also be distinguished.

We therefore hold that respondents' decision to delete the one and one-half positions at Laguna Honda Hospital and the reorganization and reclassification of the positions were not within the scope of representation under the MMBA, and so were not subject to the notification and meet and confer requirements therein.  (Gov.Code, §§ 3504.5, 3505.)

Our conclusion makes it unnecessary to address appellant's contention that the request for relief was appropriate and timely.

The judgment is affirmed.

FOOTNOTES

1.   Section 1 of the memorandum of understanding between and for the City and County of San Francisco and appellant, for fiscal year 1980–1981, provided:  “The City acknowledges that the Union has been certified by the Municipal Employee Relations Panel or the Civil Service Commission as the recognized employee representative, pursuant to the provisions as set forth in the City's Employee Relations Ordinance for the following classification:  [¶] 7355 Truck Driver[.]  [¶] This Section is included in this [memorandum] for informational purposes only and shall not be interpreted to preclude the City from transferring a particular classification to a more appropriate unit, if circumstances so require.”

WHITE, Presiding Justice.

BARRY–DEAL and MERRILL, JJ., concur.

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