AFL CIO 685 v. County of Los Angeles, et al., Defendants and Respondents. (1976)

Opinion

Local 685, American Federation of State, County and Municipal Employees, AFL–CIO appeals from an order of the superior court made pursuant to Code of Civil Procedure section 581 subdivision 3 dismissing its petition for peremptory writ of mandate following sustaining of a demurrer thereto without leave to amend upon the ground that the pleading does not state facts sufficient to constitute a cause of action. (Code Civ.Proc., § 430.10, subd. (e).)

Facts

On April 26, 1973, the county probation officers, union members, scheduled a one-day demonstration at the mall adjacent to the Hall of Administration in Los Angeles to take place between 1:30 and 3 p.m. The purpose of the demonstration was to protest a proposed consolidation of county functions and to publicize concern for working conditions should the integration of certain county departments occur. The chief probation officer issued an edict forbidding membership earned time off in order to participate. A substantial number of employees nevertheless attended the demonstration. They were not paid for the period of unauthorized absence and were placed on disciplinary suspension for one day.

At this time the relations between the membership and the county were governed by state law embodied in the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.)¹ and the Employee Relations Ordinance of the County of Los Angeles, Ordinance No. 9646, enacted pursuant thereto.

‘The county ordinance contains a comprehensive scheme for the handling of labor disputes between county management and county employees. It provides for the certification of employee representatives for the purpose of conducting negotiations with management representatives of the county. In section 3(o), the negotiation process is defined as the ‘performance by duly authorized management representatives and duly authorized representatives of a certified employee organization of their mutual obligation to meet at reasonable times and to confer in good faith with respect to wages, hours, and other terms and conditions of employment. . . .’ (Italics added.) Section 7 provides for the creation of an employee relations commission to administer and implement the ordinance.2 (Fn. omitted.)

‘Section 12(e) provides that ‘If the Commission's decision is that the County has engaged in an unfair employee relations practice or has otherwise violated this Ordinance or any rule or regulation issued thereunder, the Commission shall direct the County to take appropriate corrective action. If compliance with the Commission's decision is not obtained within the time specified by the Commission, it shall so notify the other party, which may then resort to its legal remedies.’' (Los Angeles County Employees Assn., Local 660 v. County of Los Angeles, [71 LC ¶53, 129] 33 Cal App 3d 1, 3, 4 [108 CalRptr 625].)

The union filed an unfair employee relations charge with the commission and upon conclusion of a hearing of the matter the hearing officer issued a report favoring the position taken by the union. Upon consideration of exceptions to the report by the county the commission adopted the report of the hearing officer and issued its decision and order wherein, inter alia, it was held that the action taken by the chief probation officer ‘constituted an interference and restraint of protected employee rights.’ The commission issued a remedial order with which the county refused to comply. The union then filed the instant petition seeking to ‘compel compliance by the County with the Order issued by its commission.’

Issue

The sole issue before us is whether, by alleging a wilful failure to comply with the order, a cause of action has been stated. We are not concerned on this appeal with the substantive merits of the controversy but only the enforceability of the order assuming it to be otherwise viable.

Discussion

First, we find nothing in the Meyers-Milias-Brown Act requiring the county to establish an Employee Relations Commission, much less to obey its orders. The act in section 3500 and 3504 expressly recognizes the right of public employees to join organizations of their own choice and to be represented by such organizations in their employment relationships with public agencies. Section 3507 provides that the ‘public agency may adopt reasonable rules and regulations . . . for the administration of employer-employee relations' contemplated by the act. Nothing in the act provides or requires that rules and regulations be adopted or, if adopted, that they be made enforceable against the county. The act may be characterized as a legislative effort to promote communication between the county and its employees in resolving labor disputes in the public sector. (§ 3500.)

A similar conclusion is required with respect to ordinance number 9646. We agree with the union that, although not obligated to do so, the county did elect, under the enabling state statute, to adopt an ordinance setting forth rules for the administration of its labor relations including the creation of a commission with power to issue remedial orders. However, we are not referred to any provision of the ordinance requiring the county to comply with the orders of the commission nor to any decisional law compelling of such a conclusion.

The union, after stating a number of self evident legal and factual generalities, argues that federal labor law precedent establishes the existence of a cause of action in the case at bench. The argument is to the effect that the Meyers-Milias-Brown Act does not countenance unreasonable regulations and that, since the ordinance in question consists of a set of reasonable rules and regulations, to accord to them an interpretation whereby they may be arbitrarily aborted by the board of supervisors, renders report to the procedure futile and the rules and regulations themselves unreasonable. We are unimpressed by the argument of the reference to Fire Fighters Union v. City of Vallejo, 12 Cal3d 608 [116 CalRptr 507, 526 P2d 971], Alameda County Assistant Public Defenders Assn. v. County of Alameda, [72 LC ¶53,152] 33 CalApp3d 825 [109 CalRptr 392], and San Joaquin County Employees' Assn., Inc. v. County of San Joaquin, [69 LC ¶52,964] 39 CalApp3d 83 [113 CalRptr 912]. In Firefighters, supra, the court was called upon to construe the right to compel arbitration under section 810 of Vallejo City charter. The court determined that the scope of the bargaining provision of the charter paralleled the scope of the bargaining provision found in the Meyers-Milias-Brown Act and, ‘because the federal decisions effectively reflect the same interests . . . the federal precedents [NLRA] provide reliable if analogous authority on the issue. . . . We therefore conclude that the bargaining requirements of the National Labor Relations Act and cases interpreting them may properly be referred to for such enlightenment as they may render in our interpretation of the scope of bargaining under the Vallejo charter.’ In Alameda County etc., supra, this court directed a writ of mandamus to issue compelling the county to recognize the Association as the representative of attorneys employed in the public defender's office in regard to grievances over wages, hours and working conditions in accordance with the Meyers-Milias-Brown Act and the county ordinance enacted pursuant thereto. Again, finding a parallel between the provisions of the state and federal statutes, consideration was given by the court to cases construing the NLRA. San Joaquin etc., supra, is of little significance in connection with our resolution of the problem. In the instant case we are referred to no parallel between the NLRA and the Meyers-Milias-Brown Act and Los Angeles County Ordinance No. 9646 with respect to the enforcement of orders of the commission nor are we referred to any decisions of the federal courts remotely persuasive or compelling of a decision herein favorable to the position taken by the union. In fact the upon points out that the NLRA, unlike the county commission in the instant case, is empowered to petition the federal court of appeal for enforcement of its orders under 29 United States Code section 160.

As pointed out by this court in Los Angeles County Employees Assn., Local 660 v. County of Los Angeles, supra, 33 CalApp3d 1, 6, ‘[i]n determining the intent of the Board of Supervisors who enacted the local ordinance, it is instructive to refer to the report prepared by the committee appointed by the board to draft the local ordinance. The report was adopted as an accurate statement of the board's legislative intent as of September 3, 1968.’ This court in that case went on to discuss the enforceability of the commission's cease and desist orders, saying at pages 7–8:

‘The defendant county further contends that the decision of the employee relations commission and the subsequent order to the county to ‘cease and desist’ from the refusal to negotiate did not create a duty on the part of the county that is enforceable by mandate. We are referred to the ‘report of intention’ adopted by the board of supervisors, relative to the discussion of ‘cease and desist’ orders: ‘Although it is to be hoped that the Commission's findings and orders in unfair employee practice cases will be respected by all parties involved, it is necessary to comment briefly on the remedies that would be available to the injured party in the event that the other party refused to abide by the Commission's order. Because of the very nature of public employment, complete mutuality of remedy would not be possible in this situation. The Commission would lack authority to compel the County to obey its orders, although it would presumably advise the Board of Supervisors of any refusal by a County agency to comply. Thus, ultimately, the issue would become whether the Board of Supervisors intended to support the Commission. Refusal by the Board to do so would, of course, endanger the continued existence of the Commission.’

‘Section 12(e) indicates rather clearly that while the commission was not given the power to enforce its decisions, it was foreseen tht a party bringing charges before that body might have to resort to ‘legal remedies' to obtain enforcement of a decision made. ‘Legal remedies' include mandamus in the proper case.

‘The county argues that to enforce the commission's order deprives the board of supervisors of its exclusive responsibility to exercise its discretionary governmental powers.

‘The judgment of the superior court does no more than to require the county to negotiate in good faith in an effort to reach an agreement, ‘and in the event that an agreement is reached, that it be reduced to writing and signed by petitioners and respondents.’ Thus, there is no requirement that the board of supervisors give up any of its powers, or that the board or its representatives agree to anything. It is, of course, true that any discussion of ‘working conditions' impinges upon matters which are within the exclusive jurisdiction of the board of supervisors, and as to which it would be improper for the county to make binding agreement with an employee organization. But this inevitable interelationship need not preclude negotiation as to any aspect of the caseload problem as to which the county and the employees might be able to agree without invading the subjects upon which the county is not required to negotiate.

‘The work ‘negotiation’ is a term of art, specially defined in section 3(o) of Employee Relations Ordinance, and is limited to the subjects of ‘wages, hours, and other terms and conditions of employment.’ The judgment of the superior court, requiring the county to negotiate, goes no farther than to require what the ordinance promised. Section 3(o) also states ‘This obligation does not compel either party to agree to a proposal or to make a concession.’ This saving clause 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 obliged to negotiate.

‘While mandamus will not lie to compel governmental officials to exercise their discretionary powers in a particular manner, it will lie to compel them to exercise them in some manner. (5 Witkin, Cal Procedure (2d ed. 1971) Extraordinary Writs, §§ 75, 76, pp. 3851, 3852.) In the instant case, mandamus is a proper method of compelling governmental officials to comply with both state and local law requiring them to negotiate on a particular subject, although the compulsion does not, of course, extend to requiring them to reach a specified result pursuant to such negotiation. The duty to negotiate is not, by itself, a discretionary act under these circumstances. Negotiation does not mean agreement; neither the state law nor the local ordinance equates negotiation with compulsory collective bargaining. (East Bay Mun. Employees Union v. County of Alameda, cited supra; see Sacramento County Employees Organization, Local 22, etc. Union v. County of Sacramento, [69 LC ¶52,939] 28 CalApp3d 424 [104 Cal Rptr 619].)’

We find the foregoing persuasive of our conclusion herein that mandamus does not lie to compel the county to abide by the order of the commission ordering the probation department to rescind the suspensions imposed upon the employees participating in the demonstration and ordering reimbursement for wages lost from the participation or from the imposition of disciplinary suspension.

The judgment (order of dismissal) is affirmed.

FOOTNOTES

1.  All sections hereinafter referred to are to the Government Court unless otherwise indicated.

ALLPORT, J.