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

HUNTINGTON BEACH MUNICIPAL EMPLOYEES' ASSOCIATION et al., Plaintiffs and Appellants, v. Charles W. THOMPSON et al., Defendants and Respondents.

No. G002811.

Decided: March 27, 1987

James G. Harker, for plaintiffs and appellants. Gail Hutton, City Atty., William S. Amsbary, Asst. City Atty., and Arthur De La Loza, Deputy City Atty., for defendants and respondents.

The Huntington Beach Municipal Employees' Association and its members (Association) appeal from the denial of their petition for writ of mandate compelling the City of Huntington Beach (City) to vacate a memorandum of understanding (MOU) approved by the city council. The Association contends the city council's action in unilaterally modifying the terms of the MOU submitted to it for approval violates the “meet and confer in good faith” requirements of the Meyers–Milias–Brown Act (Gov.Code, § 3500 et seq.). We agree and reverse the judgment.

The Association is the recognized representative of a bargaining unit consisting of approximately 500 nonsafety employees of the City of Huntington Beach. In April 1984, the Association and the City began negotiations for a 1984–1985 MOU encompassing approximately 25 issues, including salary and benefits. Chief negotiator for the City was Charles Thompson and chief spokesperson was Robert Franz.

On June 21, 1984, the Association and the City reached an impasse in their negotiations and agreed to resolve the matter through advisory arbitration.1 An arbitrator was agreed upon and a hearing was held on all 25 issues. The arbitrator recommended a 5.5 percent total increase in wages and benefits. An MOU was drafted reflecting the arbitrator's recommendations on all issues and submitted to the City's personnel commission for review.

On September 27, an evidentiary hearing was held before the commission and both sides were given an opportunity to argue their positions. At the conclusion of the hearing, the commission voted unanimously to recommend approval of the MOU to the city council. Although the Association signed the MOU, Thompson and Franz refused to do so. Sometime later, Thompson and Franz wrote to the city council urging that the increase in benefits be limited to 5 percent.

On October 15, the commission submitted the MOU to the city council for approval. By resolution No. 5455, the city council purported to “unilaterally approve [ ], adopt [ ], and implement [ ]” the MOU, “[s]ubject to [certain] modifications” which reflected the original position urged by the City.2

The Association petitioned the superior court for a writ of mandate to compel the city to vacate the MOU on the grounds the action by the city council amounted to a unilateral imposition of terms and conditions without good faith bargaining. The court denied the petition on the basis the MOU submitted by the personnel commission was not a final or binding agreement and the city council was under no duty to approve it.

Does the city council have the authority to modify an MOU reached through impasse or is its power limited to approval or disapproval of the terms as submitted?

The impasse procedures of the relevant Huntington Beach employee relations ordinance provide: “When an impasse is resolved in accordance with the procedures set forth in this section, the memorandum of agreement shall be modified accordingly, and such modified memorandum of agreement shall be submitted to the Personnel [Commission] for review and recommendation to the City Council. Said modified agreement shall not be binding, nor of any force or effect, unless and until approved by the City Council.” (Ordinance No. 3335, § 9–2(d).)3

The city council is not required to approve an MOU based on the recommendation of the personnel commission. (See Long Beach City Employees Assn., Inc. v. City of Long Beach (1977) 73 Cal.App.3d 273, 140 Cal.Rptr. 675.) The question here is whether the council has the authority to modify the MOU as it sees fit prior to implementing its terms.

The purpose of the “meet and confer in good faith” requirements of the Meyers–Milias–Brown Act is to “strengthen employer-employee communication․ The public agency must not only listen to presentations, but ‘meet and confer in good faith’ (Gov.Code, § 3505), a phrase statutorily defined to include a free exchange of information, opinions and proposals, with the objective of reaching ‘agreement on matters within the scope of representation․’ “ (Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 336, 124 Cal.Rptr. 513, 540 P.2d 609.)

The legislative intent of the Meyers–Milias–Brown Act is not served if, after countless hours spent by the parties at the bargaining table, the city council is permitted to disregard the product of those negotiations and impose any terms and conditions of employment it sees fit. (Ibid.) As pointed out in Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 182 Cal.Rptr. 461, “[o]rdinarily, an impasse procedure entails participation, including possibly resolution of disputed issues, by a neutral party, such as a mediator or an arbitrator. A city council, in negotiations between the city and an employee organization, is hardly a neutral․ [I]t has the ultimate responsibility for accepting or rejecting agreements reached in such negotiations. It is unrealistic to assume that it would not exercise some supervision of city representatives in the course of negotiations, by setting policy limits within which they make or accept offers. To that extent, it is a participant in the negotiating process. To characterize it also as a tribunal for the resolution of bargaining disputes is somewhat artificial, and creates certain inevitable tensions․” (Id. at p. 421, fn. 2, 182 Cal.Rptr. 461.)

We therefore conclude the response called for by the presentation of an MOU recommended to the governing body after impasse is “a determination either that the MOU is approved and shall be effective or that it is not approved, in which event further negotiations to reach an acceptable agreement are in order.” (Beverly Hills Firemen's Assn., Inc. v. City of Beverly Hills (1981) 119 Cal.App.3d 620, 628, 174 Cal.Rptr. 178, italics added.)

By this we do not mean the city may not implement its own conditions of employment once impasse procedures have been exhausted and in good faith the parties remain unable to reach agreement. What the city council may not do is unilaterally promulgate its own memorandum of understanding imposing terms and conditions of employment which purport to reflect the agreement of the parties, thereby relieving itself of the duty to continue to bargain where there is room to do so and claiming the culmination of a contract where none in fact exists.

Respondents' petition for rehearing is denied.

The judgment is reversed and the cause remanded for further proceedings consistent with the views expressed herein.4


1.  The City's employee relations ordinance allows the bargaining parties to choose one of the following four procedures in an attempt to resolve the impasse: (1) Mediation; (2) Fact finding; (3) Advisory arbitration; and (4) Personnel board hearing. (Ordinance No. 3335, § 9–2.)

2.  The relevant portions of Resolution No. 5455 provide, “SECTION 1. Subject to the modifications noted below and made therein, the Memorandum of Understanding between the City of Huntington Beach, California and the Huntington Beach Municipal Employees' Association, attached hereto and incorporated by reference herein, is hereby unilaterally approved, adopted, and implemented in accordance wth [sic] the terms and conditions thereof. The effective term of the Memorandum of Understanding shall be June 30, 1984 through June 28, 1985.[¶] SECTION 2. Article 3, Paragraph A, and Exhibit A shall be modified to provide for a four and one-half percent (4.5%) salary increase. This results in an overall increase of five percent (5.0%) when combined with the one-half percent (0.5%) of salary the city will pay into the Medical Insurance Retirement Fund (Article 4, Paragraph C). [¶] The City Council declines to adopt the arbitrator's full recommendations on the salary issue for reasons including, but not limited to, fiscal considerations, benefits afforded other employees, and avoidance of salary compaction between employees represented by this unit and other employees. [¶] SECTION 3. Article 3, Paragraph B, shall be deleted to eliminate the two percent (2.0%) increase specified for the police records classification, and Exhibit A shall be modified accordingly. The City Council finds that the record does not support the recommendation.”

3.  This ordinance parallels Government Code section 3505.1, which provides, “If agreement is reached by the representatives of the public agency and a recognized employee organization ․ they shall jointly prepare a written memorandum of such understanding, which shall not be binding, and present it to the governing body or its statutory representative for determination.”

4.  At oral argument, counsel for the Association indicated the parties did not wish to go back and negotiate a 1984–1985 MOU. If the Association desires a remedy other than a judicial determination of the city council's authority under Government Code section 3505.1, the trial court is in the best position to frame an appropriate order.

WALLIN, Associate Justice.

TROTTER, P.J., and CROSBY, J., concur.