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

FIRE FIGHTERS UNION, LOCAL 1186 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL–CIO, Plaintiff, Respondent and Appellant, v. CITY OF VALLEJO and Donald F. McIntyre, Manager, City of Vallejo, Defendants, Appellants and Respondents.

Civ. 32325.

Decided: December 11, 1973

Davis, Cowell & Bowe by Alan C. Davis, San Francisco, for plaintiff, respondent and appellant. John M. Powers, City Atty., Vallejo, St. Sure, Moore, Hoyt & Sizoo by Ralph B. Hoyt, Oakland, for defendants, appellants and respondents. Richard S. Whitmore, Gillio & Whitmore, Sp. Counsel, Sunnyvale, for amicicuriae: for City of Vallejo. Bodle, Fogel, Julber, Reinhardt and Rothschild, George E. Bodle, Daniel Fogel, Stephen Reinhardt, Loren R. Rothschild, Lester G. Ostrov, Los Angeles, for Fire Fighters AFL–CIO. Charles P. Scully, Donald C. Carroll, San Francisco, for California Labor Federation.

This appeal presents a particularly difficult problem of construction of a provision of the charter of the City of Vallejo designed to ‘provide a system of collective negotiation’ between the city and its employees. The charter provision (§ 809) provides for negotiation, mediation by the state conciliation service, and appointment of a fact finding committee which shall make a public report. If none of these three steps results in agreement, the charter (§ 810) requires submission to binding arbitration.

Here the first three steps have been taken, but have left four issues unresolved. The city council refused to submit these issues to arbitration. Plaintiff sought, and the trial court granted, writ of mandate compelling arbitration. The city appeals. The requirements of negotiation, mediation and fact-finding having been fulfilled, no issue as to these steps is here presented.

The charter requires arbitration ‘on matters of wages, hours, and working conditions, but not on matters involving the merits, necessity, or organization of any service or activity provided by law * * *’

Obviously, there is a substantial overlap of matters which concern ‘wages, hours, and working conditions' of firemen and those which involve ‘the merits, necessity, or organization’ of the fire department.

The union correctly argues that provisions for arbitration in collective bargaining agreements are to be broadly construed, whether under state law (Posner v. Grunwald-Marx, Inc., 56 Cal.2d 169, 180, 14 Cal.Rptr. 297, 363 P.2d 313) or the National Labor Relations Act (United Steel Workers v. Warrior & Gulf Co., 363 U.S. 574, 584–585, 80 S.Ct. 1347, 1354, 4 L.Ed.2d 1409). But those cases deal with agreements to arbitrate which do not contain an exclusionary provision (Grunwald-Marx) or in which the ‘exclusion clause is vague and the arbitration clause quite broad’ (United Steel Workers).

Although the brief of plaintiff-respondent nowhere directly asserts flatly that the exclusionary language of the charter provision is to be given no effect, that is the ultimate effect of its contention. We cannot accept that view.

Here we construe a city charter and hence apply the rules of statutory construction (Squire v. City and County of San Francisco, 12 Cal.App.3d 974, 980, 91 Cal.Rptr. 347). Our function is ‘not * * * to omit what has been inserted’, but, in reconciling several provisions, to adopt ‘such a construction * * * as will give effect to all’ (Code Civ.Proc., § 1858). “A cardinal rule of construction is that * * * a construction making some words surplusage is to be avoided.” (People v. Gilbert, 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 728, 462 P.2d 580, 584.) Hence we cannot ignore the exclusion clause. The problem of what effect to give to it remains.

Concededly, the charter language, both of inclusion and exclusion, is derived from the Meyers-Nilias-Brown Act (Gov.Code, § 3504). But the only decision bearing in any way upon the language here in issue (Los Angeles County Employees Assn. Local 660 v. County of Los Angeles, 33 Cal.App.3d 1, 108 Cal.Rptr. 625 [hg. den.]) is not helpful. The Meyers-Milias-Brown Act requires only that the governmental body ‘meet and confer’ with employee representatives (§ 3505) and provides for mediation if agreed to (§ 3505.2). Neither that act nor the Los Angeles ordinance adopted pursuant to it, considered in the cited case, contains any provision compelling arbitration, as does the charter provision before us. Los Angeles County Employees repeatedly emphasizes that to negotiate is not to surrender the governmental function of the city. ‘The county does not give up [its] management powers when it engages in * * * negotiations * * *’ (p. 7, 108 Cal.Rptr. p. 629.) ‘[T]here is no requirement that the board of supervisors give up any of its powers, or that the board * * * agree to anything’ (p. 7, 108 Cal.Rptr. p. 629). A provision of the ordinance ‘relieves the county of any danger that by entering into a negotiation on ‘working conditions,’ it will be swept into an agreement covering matters upon which it is not required to negotiate.' (p. 8, 108 Cal.Rptr. p. 630.)

$tNo such qualifications are to be found in a provision for compulsory arbitration. The very purpose of that process is to determine the disputed issues. Necessarily, arbitration removes from the elected city council and from the people, through their powers of referendum, initiative, and recall, the power to decide. If the exclusionary clause is to have any meaning, as it must under applicable rules of construction, it must be intended to exclude from the arbitration process those issues which are strictly governmental in character. We do not reach an issue of power to delegate governmental authority. Rather, solely as a matter of construction of the charter provision, we must give effect to the exclusionary clause.

Broadly construed, the exclusion of ‘matters involving the merits, necessity or organization of any service or activity’ would negate all arbitration. That view, however, would ignore the charter language which expressly provides for arbitration. Thus we construe the exclusion narrowly, and hold it to apply only to those issues which are strictly governmental.

Under the issue termed ‘constant manning procedure,’ the union seeks to add one engine company (which raises questions of amount of equipment and fire station facilities for it) and to increase personnel from 25 to 47. Determination of the total personnel, the amount of equipment and the facilities for its use, together with the number of fire companies and the personnel to be assigned to each engine or truck, seems clearly to be a matter turning upon the ‘merits, necessity, or organization’ of the fire department. In light of Los Angeles County Employees Assn., we find no problem in submitting these issues to negotiation. But if any effect is to be given to the charter proviso, they are not properly subjects of arbitration. We do not preclude arbitration of any issue merely because it may involve an expenditure of city funds. The charter expressly provides that the arbitration ‘shall consider all factors relevant to the issues from the standpoint of both the employer and the employee, including the City's financial condition.’ Thus as element of cost, standing alone, does not bar arbitration. It is, however, barred when the issue extends to the size of the department, a factor rather clearly involved in the exclusion of ‘matters involving the merits, necessity, or organization’ of the fire-fighting service.

As to the issue of ‘personnel reduction,’ we hold that the order of layoff and priorities for re-employment are properly subjects of arbitration. But whether there shall be a reduction of force, and in so its extent, are for governmental determination. As to ‘vacancies and promotions,’ the entire issue is properly arbitrable except as to the position of assistant fire chief. As to ‘schedule of hours,’ all issues are arbitrable save insofar as they may extend to the apparently unlikely point of determining the size of the firefighting force which, for the same reasons discussed under ‘constant manning procedure,’ must be deemed an issue not intended to be submitted to arbitration.

Plaintiff has also appealed from the judgment, attacking only the trial court's conclusion that it does not have jurisdiction under the state arbitration act (Code Civ.Proc., § 1280 et seq.). The act, however, applies only to an ‘arbitration agreement’ (§ 1281.2; see also § 1280, subd. (a), § 1281). In the case at bench, the requirement of arbitration does not arise from any agreement, but from the unilateral act of the city in adopting its charter provision. Plaintiff apparently recognized this problem at the outset. Rather than seeking an order to arbitrate (§ 1281.2) it sought injunction against refusing to arbitrate, and alternatively a writ of mandate to compel arbitration. The only order issued below is the writ of mandate. There is no order ‘dismissing or denying a petition to compel arbitration’ (§ 1294, subd. (a)) and the writ order appealed from effects an opposite result. But under the act (§ 1294) an order compelling arbitration is not appealable. To hold the act applicable would be to require dismissal of plaintiff's appeal, and to permit a further appeal (§ 1294, subds. (a) and (d)), raising the same issues here determined, from an ultimate order affirming or vacating the arbitration award which will follow this decision.

The judgment is modified by limiting, to the extent set forth earlier in this opinion, the directions for arbitration of the issues of ‘constant manning procedure’, ‘personnel reduction’ and ‘vacancies and promotions.’ As so modified, the judgment is affirmed. Each party shall bear its own costs on appeal.

DRAPER, Presiding Justice.


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