ASSOCIATION OF ORANGE COUNTY DEPUTY SHERIFFS v. COUNTY OF ORANGE (1978)

OPINION

The County of Orange (hereinafter County) appeals from an order granting a peremptory writ of mandate commanding the County to recognize the Association of Orange County Deputy Sheriffs (hereinafter AOCDS) as the representative of the Orange County deputy sheriffs and as the “representation unit” of all Orange County deputy sheriffs pursuant to section 8 of the Employee Relations Resolution of the County of Orange.

The crucial question presented in this appeal is whether the County may lawfully withhold recognition of an employee organization on the ground that another employee organization has the exclusive right to meet and confer with respect to existing representation units where there has been no vote of the employees of the County or of any unit thereof for exclusive recognition.

We have concluded that it may not. Therefore, for the reasons hereinafter stated we hold that respondent is entitled to a peremptory writ commanding the County to recognize the AOCDS as a recognized employee organization within the meaning of Government Code sections 3500-3510.

No understanding of the factual development of this case or of the contentions of the respective parties is possible without an understanding of the statutory framework within which local public agencies are authorized to conduct their employer-employee relations. For this reason we turn first to the provisions of the Government Code that provide this framework, the Meyers-Milias-Brown Act (hereinafter “the Act” or MMBA). (Gov.Code, s 3500 et seq.)¹

A stated purpose of the Act is to promote improvement of employer-employee relations within the public agencies in the state “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.” (s 3500.)

The Act contains the following pertinent definitions:

“(a) ‘Employee organization’ means any organization which includes employees of a public agency and which has as one of its primary purposes representing such employees in their relations with that public agency.

“(b) ‘Recognized employee organization’ means an employee organization which has been formally acknowledged by the public agency as an employee organization that represents employees of the public agency.” (s 3501.)

Section 3503 provides that: “Recognized employee organizations shall have the right to represent their members in their employment relations with public agencies. . . .”

Section 3505 provides that: “The governing body of a public agency (or its designee) 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 . . ..” (Emphasis added.)

Section 3507 provides that a public agency may adopt reasonable rules and regulations for the administration of employer-employee relations and that such rules and regulations may include provision for “(a) verifying that an organization does in fact represent employees of the public agency (b) verifying the official status of employee organization officers and representatives (c) recognition of employee organizations (d) exclusive recognition of employee organizations formally recognized pursuant to a vote of the employees of the agency or an appropriate unit thereof . . . .” (Emphasis added.) Finally, section 3507 provides in the final sentence thereof that: “No public agency shall unreasonably withhold recognition of employee organizations.”

It is undisputed that respondent AOCDS is a verified employee organization pursuant to procedures established in the County's Employee Relations Resolution. It also appears that the County's verification procedures accomplish the purpose of verifying that an organization does in fact represent employees of the County as authorized under section 3507 of the Act. The controversy in the instant case and the area of conflict between the state law and the County's practice arises in the County's application of its procedures for recognition of employee organizations.

Section 3507 authorizes local agencies to adopt reasonable rules and regulations that may include provision for two levels of recognition, i. e., (1) simple, non-exclusive recognition and (2) exclusive recognition. However, as pointed out in Los Angeles County Firefighters Local 1014 v. City of Monrovia (1972) 24 Cal.App.3d 289, 101 Cal.Rptr. 78, the Legislature established reasonable, proper, and necessary principles that public agencies must follow in their rules and regulations for administering their employer-employee relations, and “if the rules and regulations of a public agency do not meet the standard established by the Legislature, the deficiencies of those rules and regulations as to rights, duties and obligations of the employer, the employee, and the employee organization, are supplied by the appropriate provisions of the act.” (Id., at p. 295, 101 Cal.Rptr. at p. 82.)

Our task is to examine the County's procedures as applied in this case to determine whether they meet the minimum standards provided by the Act. The County's Employee Relations Resolution (hereinafter ERR), insofar as pertinent to these proceedings, provides as follows:

“ ‘EMPLOYEE ORGANIZATION’ shall mean an organization which includes employees of the County and which has as one of its primary purposes representing such employees in their relations with the County.

“. . .

“ ‘RECOGNIZED EMPLOYEE ORGANIZATION’ shall mean a verified employee organization which has been certified in accordance with Section 10 of this resolution as representing the majority of the employees in an appropriate representation unit.

“ ‘REPRESENTATION UNIT’ shall mean a unit appropriate for negotiations and established in accordance with Section 8 of this resolution.

“. . .

“ ‘VERIFIED EMPLOYEE ORGANIZATION’ shall mean an employee organization which has been verified by the Personnel Director as provided in Section 7 of this resolution.” (ERR, section 3.)

Section 7 sets up a procedure whereby the County may verify that an employee organization does in fact represent certain county employees and has as one of its primary purposes the representation of such employees in their relations with the County.

Section 8 provides a procedure for the establishment of representation units where no representation unit is in existence. Briefly it provides that upon request of a verified employee organization, proof that such organization represents at least 50 percent of the employees within the proposed unit, and agreement of the personnel director and the requesting organization as to what constitutes an appropriate representation unit, the personnel director shall establish the unit and notify the board of supervisors, the departments and employees affected, and the requesting organization. If the director and requesting organization do not agree, the requesting organization may request a hearing by the board of supervisors. The section also provides for challenge, within 15 days of notice, by other verified organizations upon proof that the challenging organization represents at least 30 percent of the employees within the unit. If unresolved through consultations with the personnel director, the matter shall be submitted to the board of supervisors.

Section 9 provides for modification of representation units. It provides that a verified employee organization may request modification and requires a petition signed by a majority of employees within the requested modified representation unit within 90 days prior to the submission of the request. The petition may be filed only during the month of October of each year, or where a multi-year memorandum of understanding exists, requests may be filed only during October of the last year of the memorandum of understanding. Thereafter, the procedure is similar to that under section 8 for establishing the unit.

Section 10 provides for certification of an organization as a recognized employee organization for a representation unit. A verified employee organization may seek certification as a recognized employee organization for a representation unit by filing a request with the personnel director accompanied by specified information, including proof that it represents at least 30 percent of the employees in the representation unit. Notice is given and, if no challenge is received, the personnel director may accept proof that the organization represents a majority of the employees in the unit or arrange for a secret ballot election. If a challenge is received, an election is required.

Section 13 provides that only employee organizations that have been certified as the recognized employee organization in established representation units shall be entitled to negotiate on wages, hours, and other terms and conditions of employment.

It is primarily the County's procedures under sections 10 and 13 that are involved in the current dispute. As can be seen from a comparative analysis of MMBA and the ERR, the County's provision for recognition of employee organizations in section 10 of the ERR creates a possible conflict between the ERR and the MMBA. This is so because section 10 intermingles elements from both levels of recognition authorized by section 3507.

The first level of recognition is non-exclusive. If an employee organization has been formally acknowledged as an employee organization representing employees of an agency, it has the right to represent its members in their employment relations with the public agency (s 3503), and it has the right to meet and confer regarding wages, hours, and other terms and conditions of employment (s 3505.) The second level of recognition is exclusive. Under section 3507 such recognition can only be granted pursuant to a vote of the employees of the agency or an appropriate unit. Such organization prevailing in the election would then be the exclusive organizational representative of such unit.

Thus, under the MMBA, unit representation may be limited to one organization only where exclusive recognition has been granted after a vote of employees within the unit; on the other hand, the ERR, under section 10, limits unit representation for purposes of negotiations to one organization as a part of the process of certifying an organization as a recognized employee organization and permits such limitation without a vote of the unit employees. That is exactly what occurred in this case.

The Orange County Employees Association (hereinafter OCEA), and employee organization, had for some time prior to the events leading to this lawsuit been the only organization that had been certified as a “recognized employee organization” pursuant to section 10 of the ERR. There had been no vote of the employees of the County or of any unit thereof.

As the only employee organization certified under section 10, the OCEA had been granted the exclusive right to “meet and confer” with County representatives with respect to wages, hours, and other conditions of employment. Although all classifications of employees of the County, including all deputy sheriffs, had been allocated to employee representation units (presumably established pursuant to section 8 of the ERR, although we have not been told this), all units were represented by the OCEA in the meet and confer negotiations.

Sometime in November of 1976, and again on March, 11, 1977, respondent, a “verified employee organization” under the ERR, requested a change in level of recognition, seeking certification as a recognized employee organization representing a majority of deputy sheriffs. Since under sections 10 and 13 of the ERR a verified employee organization would be granted the right to meet and confer (i. e., negotiate) on behalf of its members only by being certified as a recognized employee organization for a representation unit, the request necessarily included a specification of a representation unit. Because the deputy sheriffs were divided into two separate representation units (deputy sheriff I and II were part of the County general representation unit, and sheriff's sergeants were part of the County supervisory management unit), the request was treated by the County as a request for modification of existing representation units. The County denied the request on the ground that under section 9 of the ERR a request for modification of a representation unit could only be made during the month of October.

The respondent AOCDS sought a writ of mandate alleging that it is a verified employee organization pursuant to section 7 of the ERR, that it represents a majority of the Orange County deputy sheriffs, that it had performed all conditions precedent pursuant to sections 7, 8, 9 and 10 of the ERR and asking that County be compelled to recognize AOCDS (1) as the representative of the Orange County deputy sheriffs and (2) as the “representation unit” of all Orange County deputy sheriffs pursuant to section 8 of the ERR.

The OCEA, which had been joined as a party to the action, filed a demurrer. The demurrer was sustained. After hearing argument on the petition the court entered its order granting the peremptory writ according to the prayer. County appeals.²

Appellant County correctly contends that there were factual issues joined in the pleadings that were not resolved.

The AOCDS allegation that it represents a majority of the Orange County deputy sheriffs was denied by the County. No proof was presented on this issue. The AOCDS alleged compliance with sections 7, 8, 9 and 10 of the ERR. The County admitted compliance with section 7 but denied compliance with sections 8, 9 and 10. No proof was presented on these issues. Thus if proof of the existence of any of these disputed factual allegations is necessary to entitle respondent to a writ of mandate, the appellate must prevail.

Respondent's position is that these factual issues need not be resolved because (1) AOCDS is entitled to recognition by the County as a recognized employee organization pursuant to section 3501, subdivision (b) of the Act, and such recognition does not depend upon majority membership, and (2) the peace officer employees of the County have a statutory right, pursuant to section 3508, to be included in a unit consisting exclusively of peace officers. We agree that AOCDS is entitled to recognition by the County as a recognized employee organization pursuant to section 3501, subdivision (b), of the Act and is therefore entitled upon request to meet and confer regarding wages, hours, and other terms and conditions of employment pursuant to section 3505 of the Act. We do not agree that section 3508 grants peace officers any statutory right to a separate bargaining unit.

I

AOCDS is entitled to recognition as a recognized employee organization pursuant to section 3501, subdivision (b) of the Act.

Section 3501, subdivision (b) defines recognized employee organization as an employee organization that has been formally recognized as representing employees of the public agency. The ERR, in section 7, establishes a procedure whereby the County verifies that an organization is an employee organization that does in fact represent employees of the County. It appears that verification under the ERR is roughly equivalent to first level recognition, i. e., non-exclusive recognition, under the MMBA. The County's return to the writ herein admitted that respondent was a “verified employee organization” pursuant to section 7 of the ERR. For the County to withhold recognition under these circumstances would be unreasonable. (See s 3507.)

Since the County through its verification procedure has formally acknowledged that the AOCDS meets the qualifications for a recognized employee organization as that term is defined by state law, the County has the duty under section 3505 to meet and confer with AOCDS regarding wages, hours, and other terms and conditions of employment, unless the County has granted exclusive recognition to another organization “pursuant to a vote of the employees of the agency or an appropriate unit thereof.” (s 3507; see Los Angeles County Firefighters Local 1014 v. City of Monrovia, supra, 24 Cal.App.3d 289, 101 Cal.Rptr. 78.)

In Los Angeles County Firefighters Local 1014 v. City of Monrovia, supra, 24 Cal.App.3d 289, 101 Cal.Rptr. 78, which arose at a time when the Act provided for non-exclusive, but not exclusive, recognition,³ the City of Monrovia had adopted an administrative manual that provided, inter alia, that “in all matters affecting the discussion and negotiation of wages and salaries, (City) recognizes the Monrovia Municipal Employees Association as the only organized group who can speak on behalf of the interests of the greatest number of City employees.” (Id., at p. 291, 101 Cal.Rptr. at p. 80, emphasis omitted.) The court held this provision violative of the Act, stating as follows: “Here, the policy set forth in the city's administrative manual . . . clearly does not meet the standards prescribed by the Legislature. The city argues that its unwritten ‘open door policy,’ under which individuals and organization representatives were permitted to speak,⁴ constitutes sufficient compliance with the act. We do not agree. First . . . it places individuals and non-recognized organizations in a secondary position, not in parity with the ‘recognized’ organization; second, individuals and organizations might not be aware of their right to speak under the ‘open door policy’; and third, neither the policy set forth in the administrative manual nor the ‘open door policy’ extends to individuals and employee organizations the rights, duties and obligations as provided by the act.” (Id., at pp. 295-296, 101 Cal.Rptr. at p. 83.)

Although the Act has since been amended to permit exclusive recognition pursuant to a vote of the employees, where the employees have not been given the opportunity to vote, the denial of “recognition” to other qualified employee organizations violates the rights of the employees and of such qualified organizations as provided by the Act.

A further analysis of the ERR reveals that the County has attempted to provide for exclusive recognition through its certification procedure under section 10. Subparagraph F of section 10 provides that, “A verified employee organization seeking certification as the recognized employee organization of a Countywide representation unit shall demonstrate that 60% Of the regular and probationary employees of the County are members of the organization and have designated the organization as their representative on employee relations matters with the County.” Once an employee organization is certified pursuant to section 10, the County grants that organization the exclusive right to meet and confer regarding wages, hours, etc., for the unit for which it is certified until there has been either a modification of representation units pursuant to section 9 of the ERR or a decertification of the organization pursuant to section 11 of the ERR.

In this case the County had granted such exclusive recognition to the OCEA. However, the record reflects that no vote of the employees of the County or any unit thereof had ever been taken. Under such circumstances, the County's action denying AOCDS the right to meet and confer as a recognized employee organization violated sections 3503, 3505 and 3507 of the MMBA. Thus the ERR as applied by the County failed to meet the standards established by the MMBA for employee representatives.

Respondent is entitled to a writ commanding the County to recognize the AOCDS as a recognized employee organization and to grant it full rights to represent its members in their employment relations with the County pursuant to sections 3503 and 3505 of the MMBA.

II

Section 3508 of the Act does not grant peace officers a right to a separate bargaining unit.

Respondent's contention that peace officers of the County have a statutory right to be included in a unit consisting exclusively of peace officers is based on section 3508 of the MMBA, which provides as follows:

“The governing body of a public agency may, in accordance with reasonable standards, designate positions or classes of positions which have duties consisting primarily of the enforcement of state laws or local ordinances, and may by resolution or ordinance adopted after a public hearing, limit or prohibit the right of employees in such positions or classes of positions to form, join or participate in employee organizations where it is in the public interest to do so; however, the governing body may not prohibit the right of its employees who are full-time ‘peace officers' as that term is defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, to join or participate in employee organizations which are composed solely of such peace officers, which concern themselves solely and exclusively with the wages, hours, working conditions, welfare programs, and advancement of the academic and vocational training in furtherance of the police profession, and which are not subordinate to any other organization.

“The right of employees to form, join and participate in the activities of employee organizations shall not be restricted by a public agency on any grounds other than those set forth in this section.”

The section is not concerned with the formation of representation units; it is concerned with the extent to which the governing body may restrict the participation of peace officers in employee organizations. The first clause recognizes that the public interest may require some limitation on the union activity of law enforcement officers; the second clause makes it clear that this right to limit their activities shall not include the right to prohibit their participation in employee organizations that are composed solely of such peace officers, are concerned solely with wages, hours, etc., and that are not subordinate to any other organization.

It may well be that the need to limit the organizational activities of peace officers to organizations described in the second clause of section 3508 will result in a separate bargaining unit being the only appropriate unit for purposes of establishing exclusive bargaining rights under section 3507. However, even if that be a fact,⁵ it does not grant peace officers the right to such separate unit without first complying with reasonable rules and regulations for establishing the unit and for determining majority representation thereof. We recognize that there is language in Santa Clara County Dist. Attorney Investigators Assn. v. County of Santa Clara (1975) 51 Cal.App.3d 255, 262, 124 Cal.Rptr. 115, that suggests that section 3508 grants peace officers the absolute right to separate unit representation. To the extent that decision may be so interpreted, we disagree. However, it is clear that the court in the Santa Clara case also recognized the necessity of compliance with reasonable rules and regulations for determining the appropriate representation unit. (Id., at pp. 263-264, 124 Cal.Rptr. 115.)

Absent a showing that the County's rules and regulations for establishment and modification of representation units are unreasonable the court should not interfere in this administrative function.

As the court stated in the Santa Clara case at page 264, 124 Cal.Rptr. at page 121: “A clear distinction must be drawn between public employees' rights to organize and their right to separate bargaining units.” Section 3508 deals with the right of peace officers to organize. The respondent has not been denied that right. They have the right under the ERR to request modification of the representation unit and may seek the right of exclusive representation of that unit pursuant to the County's ERR.

Because of the County's improper action of granting the OCEA exclusive rights to meet and confer and denying such rights to all other employee organizations, including respondent, without a vote of the employees, the respondent, in order to obtain the right to meet and confer, simultaneously requested establishment of the new unit and certification of the AOCDS as the “representation unit” (sic).⁶

In view of our conclusion that respondent is entitled to the right to meet and confer as a non-exclusive recognized employee organization, the requests of AOCDS for unit modification and exclusive recognition may be processed in an orderly manner within the framework of the ERR and without prejudice to the rights of either AOCDS or OCEA to represent their members in negotiations with the County pending unit modification and any election made necessary by competing requests for exclusive unit representation.

Appellant County contends that the failure to have OCEA joined as a party to this action constitutes a failure to join an indispensible party and that the trial court proceeded in excess of its jurisdiction because OCEA was not joined.

We have not discussed these contentions for the reason that they were based on the erroneous belief that the County had a legal duty to meet and confer exclusively with OCEA regarding AOCDS' members, as well as all other County employees. Having concluded that no such right of exclusive recognition exists, we hold that OCEA was not an indispensible party. Nevertheless, OCEA was permitted to appeal as an aggrieved party, and its arguments have been fully considered.

The judgment of the trial court is modified to direct that a peremptory writ of mandate shall issue commanding respondent County of Orange to recognize the Association of Orange County Deputy Sheriffs as a recognized employee organization within the meaning of Government Code sections 3500-3510.

The judgment is affirmed as modified. Respondent shall recover costs against appellant County of Orange. Appellant Orange County Employees Association shall bear its own costs.

FOOTNOTES

1.  All statutory references are to the Government Code unless otherwise designated.

2.  The OCEA has also filed an appeal from the order granting the writ, as an “aggrieved party.”

3.  Exclusive recognition was first authorized by Statutes 1971, chapter 1575, section 1, page 3164.

4.  Under section 13 of the ERR County also has the equivalent of an open door policy in that verified employee organizations and individual employees may consult with the personnel director, but may not negotiate, i. e., meet and confer.

5.  There is no evidence in this record that the County has attempted to limit the rights of its peace officers to “join or participate” in any employee organization.

6.  It is obvious in the context of the ERR that AOCDS was seeking the right to represent the new unit it sought to have established. Under the County's practice that was the only way it could represent its members in “meet and confer” sessions with the County.

MORRIS, Associate Justice.

TAMURA, Acting P. J., and KAUFMAN, J., concur.