SOCIAL WORKERS UNION LOCAL 535 v. ALAMEDA COUNTY WELFARE DEPARTMENT

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Court of Appeal, First District, Division 2, California.

SOCIAL WORKERS' UNION, LOCAL 535, etc., et al., Plaintiffs and Appellants, v. ALAMEDA COUNTY WELFARE DEPARTMENT et al., Defendants and Respondents.

Civ. 30283.

Decided: February 23, 1973

Levy & Van Bourg, Victor J. Van Bourg, Stewart Weinberg, San Francisco, for appellants. Richard J. Moore, County Counsel, Douglas Hickling, Deputy County Counsel, Oakland, for respondents.

We affirm the judgment of the superior court which denied plaintiffs'-appellants' application for a writ of mandate.

The individual appellants are members of appellant Social Workers' Union, Local 535, SEIU, AFL–CIO (‘Union’) and are employees of respondent Welfare Department of Alameda County (‘Department’).

The operative facts giving rise to the legal issues to be decided are succinctly summarized in the excellent Memorandum of Decision rendered by the trial judge and which we incorporate, as follows:

‘On May 14, 1969, a union demonstration, purportedly on behalf of Alameda County employees, took place in and around the County Administration Building in Oakland during the noon hour. A report was later received by respondent Welfare Department to the effect that thirty of their employees had used automobiles belonging to the County in which to travel to the demonstration.

‘Harold Davis, Chief Assistant Welfare Director of Alameda County, asked each of the thirty employees to come to his office ‘so that I might clarify this matter to see if they could shed further light.’ Interviews were conducted by Davis and Personnel Director Scheinman. Of the thirty employees to whom this request was submitted, twenty-three appeared and were interviewed, apparently without incident, and were subsequently sent letters by Davis, dated July 25, 1969, in which the attention of the employee was directed to the County Administrative Code section relating to use of County-owned vehicles. A copy of each such letter was placed in the individual employee's personnel file. No further action was taken.

‘Each of the seven petitioners appeared at the Assistant Director's office accompanied by a representative of Petitioner Social Workers' Union. Each of the seven indicated to the department interviewer that he or she would not participate in the interview or answer any questions unless the Union representative was present. Each interviewing officer declined to have the union representative present at such interviews on the ground that it was an informal conversation and not in the nature of a disciplinary proceeding.

‘Following the refusal of each of the seven petitioning employees to talk with the interviewer without a Union representative present, letters were addressed to each advising that the employee was to be suspended without pay from July 28, 1969 through July 30, 1969. The basis of the suspension was insubordination on the part of each of the petitioning employees.’

Despite various tangential points raised in the briefs, there is but one basic issue presented here which is dispositive of the matter.

The question is simply whether the attempted inquiry of the individual appellants by the Department's supervisory personnel was merely investigatory or whether such action amounted to a grievance or disciplinary or other employer-employee matter in which event the employee would be entitled to have a Union representative present.

The trial court concluded in its decision that ‘The proposed conference did not relate to any union activity or organizational problem. It only involved the question of when the use of public property (automobiles) by public employees is authorized. Such an inquiry appears to be proper and well within the scope of reasonable scrutiny of a supervising public employee. The letter addressed to the twenty-three employees who did not object to the proceeding is substantial evidence that it was not a disciplinary proceeding.’

We agree wholeheartedly with the trial court's conclusion. Appellants' contention, carried to its logical conclusion, would mean that, for all practical purposes, a union representative would be entitled to be present at each and every discussion between supervising and subordinate public employees concerning any matter which might involve a criticism or condemnation of the subordinate's work, his awareness of rules and regulations, his misuse or abuse of public property, his attention to duty, even to matters which might properly be viewed as counselling or instructive.

In short, to uphold appellant's contention would be to place a judicial imprimatur upon a potentiality of work stoppage in places of public employment. We reject any such suggestion, as did the trial judge, who felt ‘constrained’ to point out that ‘A careful review of all testimony and documents in evidence indicates, at best, a whimsical and juvenile attitude toward their supervising officers on the part of these petitioners.’ (Emphasis added.)

We likewise reject appellants' suggestion that we ‘adopt the theory of the National Labor Relations Board’ as expressed in Quality Manufacturing Company, 195 NLRB No. 42 (Jan. 28, 1972). As respondents accurately point out, similar rulings of the National Labor Relations Board have been rejected by the federal appellate courts. (See Texaco, Inc., Houston Producing Division v. N. L. R. B. (5 Cir. 1969) 408 F.2d 142.) We consider the reasoning of the National Labor Relations Board to be not only erroneous but inimical to a sound public policy, particularly when sought to be applied to public employer-employee relations.

The judgment is affirmed.

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.

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