Alameda County Assistant Public Defenders Assn. v. County of Alameda

• Citation: 109 Cal.Rptr. 392,33 Cal.App.3d 825
• Court: California Court of Appeals
• Decision Date: 06 August 1973
• Parties: , 84 L.R.R.M. (BNA) 2237, 72 Lab.Cas. P 53,152 ALAMEDA COUNTY ASSISTANT PUBLIC DEFENDERS ASSOCIATION, Plaintiff and Appellant, v. COUNTY OF ALAMEDA et al., Defendants and Respondents, Alameda County Employees Association, Intervenor and Respondent. Civ. 31726.

Page 392

109 Cal.Rptr. 392

33 Cal.App.3d 825, 84 L.R.R.M. (BNA) 2237,

72 Lab.Cas. P 53,152

ALAMEDA COUNTY ASSISTANT PUBLIC DEFENDERS ASSOCIATION, Plaintiff and Appellant, v. COUNTY OF ALAMEDA et al., Defendants and Respondents, Alameda County Employees Association, Intervenor and Respondent.

Civ. 31726.

Court of Appeal, First District, Division 4, California.

Aug. 6, 1973.

Hearing Denied Oct. 3, 1973.

Dean A. Beaupre, Oakland, for plaintiff and appellant.

Richard J. Moore, County Counsel, Douglas H. Hickling, Deputy County Counsel, County of Alameda, Oakland, for defendants and respondents County of Alameda and others.

Ronald Yank, Brundage, Neyhart, Grodin & Beeson, San Francisco, for intervenor and respondent Alameda County Employees Ass'n.

BRAY, ^* Associate Justice.

Plaintiff-appellant Alameda County Assistant Public Defenders Association appeals from judgment of the Alameda County Superior Court in favor of defendants-respondents. ¹

Question Presented

Does the establishment of Unit XI illegally deny the Assistant Public Defenders of the right to representation by a professional organization of their own choice?

Record

Pursuant to the provisions of Government Code section 3500 et seq., ² the Alameda County Board of Supervisors on October 13, 1970, enacted the Alameda County Employee Relations Ordinance (Ord. 70--68) which provided rules and regulations for the organization and operation of organizations for the administration of county employer-employee relations. On February 23, 1971, appellant Public Defenders Association petitioned the county to recognize the association as the representative of attorneys employed in the public defender's officer for the purpose of presenting grievances and recommendations regarding wages, salaries, hours and working conditions.

On March 9, 1971, respondent county through respondent board of supervisors established Representation Unit XI, consisting of all non-health-related professional employees working for respondent county for the purposes of meeting and conferring with regard to wages, salaries, hours and working conditions. Unit XI includes approximately 360 county professional employees in various occupations, to wit, librarians, planners, agricultural inspectors, auditors, buyers, systems and procedures analysts, appraisers and engineers, as well as attorneys in the public defender's office.

Appellant alleges that because Representation Unit XI consists of employees of such diverse and varied job functions and classifications, the attorneys of the public defender's office will be denied their right under Government Code section 3507.3 to be represented by an employee organization of their own choice consisting of professional employees.

Shortly after the establishment of Unit XI, the Alameda County Public Defenders Association and the Western Council of Engineers, together with the American Federation of State, County and Municipal Employees and United Public Employees Union, Local 390, formed a coalition employee organization known as the Coalition of Professional Employees. This coalition, about April 15, filed with the board of supervisors a petition for its certification as the recognized employee organization for the non-health-related professional employees. ³ A secret ballot election was then conducted involving a majority of all county employees voting for 14 different representation units, including the unit consisting of non-health-related professional employees. The results of the election were announced on May 7, 1971, with 162 votes cast for the Alameda County Employees Association and 131 votes cast for the Coalition of Professional Employees. Apparently none of the public defenders voted at the election. Appellant's brief states that 92 percent of the attorneys in the public defender's office have indicated that they want appellant Public Defenders Association to represent them.

In this proceeding respondent Alameda County Employees Association filed a complaint in intervention by way of answer. After an evidentiary hearing, the court filed findings of fact and conclusions of law in which the court declared, Inter alia, that under the provisions of Government Code section 3507.3 attorneys in the public defender's office have a right to be represented separately from nonprofessional employees, but they do not have a right to be represented separately from other professional employees, that Unit XI has been established in accordance with law, particularly Government Code section 3507.3, and that the Public Defenders Association is not entitled to a separate unit from Unit XI. Judgment was entered accordingly.

The effect of section 3500 et seq., Government Code (the Brown Act).

Appellant contends that, by reason of the provision in Government Code section 3500 ⁴ that the purpose of the Brown Act is, Inter alia, to provide 'a uniform basis for recognizing the right of public employees to join organizations of their own choice,' assistant public defenders are entitled to have a bargaining organization limited to them.

While under section 3507 of the Government Code, Unit XI might be an 'appropriate' employee bargaining association for professional employees of the county who do not have an organization of their own, the real question is whether, in view of the fact that the assistant public defenders had an organization of their own and chose to have it as their sole bargaining body, the county could deny organization representation and force the public defenders into Unit XI. Another way of stating the issue is whether requiring all professional employees, regardless of their type, to be in one organization for the administration of employer-employee relations is reasonable and appropriate, in view of section 3507, providing that the county may adopt 'reasonable rules and regulations' and may create 'appropriate' units for this purpose.

The language of 'an appropriate unit' in Government Code section 3507 parallels the language of the National Labor Relations Act, section 9(a), allowing the National Labor Relations Board to certify labor organizations selected by the majority of employees in a 'unit appropriate for such purposes . . .' (29 U.S.C.A. § 159.) The parties to this appeal have indicated by citation of cases decided under the National Labor Relations Act that the construction placed upon that act is helpful in construing similar language in the Brown Act.

In International Assn. of Fire Fighters v. County of Merced (1962) 204 Cal.App.2d 387, 392, 22 Cal.Rptr. 270, the court stated that the construction placed by the United States Supreme Court on the provisions of the federal Labor Management Relations Act was helpful in determining the connotation of similar language in Labor Code section 1962. In Board v. Hearst Publications (1944) 322 U.S. 111, 134, 64 S.Ct. 851, 862, 88 L.Ed. 1170, the United States Supreme Court said: 'Wide variations in the forms of employee self-organization and the complexities of modern industrial organization make difficult the use of inflexible rues as the test of an appropriate unit. Congress was informed of the need for flexibility in shaping the unit to the particular case and accordingly gave the Board wide discretion in the matter.'

The discretion given the county under section 3507 appears to be as broas as that given to the Labor Relations Board under the National Labor Relations Act. The standard by which the county is to be governed in determining the appropriate bargaining unit is whether or not such determination is 'reasonable.' (Gov.Code, § 3507; J. Grodin, Public Employee Bargaining in California: The Meyers-Milias-Brown Act in the Courts (1972)23 Hastings L.J. 719, 741.)

Moreover, as stated by Professor Grodin, Supra, at page 741, 'The 1971 'exclusive recognition' amendment to section 3507 uses the term 'appropriate unit,' arguably inviting reference to standards of appropriateness established elsewhere in the private and public sectors. It also refers, however, to a vote of employees 'of the agency or an appropriate unit thereof,' suggesting that exclusive recognition may be accorded on an agency wide basis without regard to whether lesser units would be appropriate.' Such reasoning parallels the reasoning and case law decided under the National Labor Relations Act. Numerous cases have pointed out that the board need not determine the Ultimate unit or the Most appropriate unit. The act requires only that the unit be 'appropriate.' (Morand Bros. Beverage Co. (1950) 91 NLRB 58, 26 LRRM 1501, enforced 190 F.2d 576 (7th Cir. 1951); accord Federal Electric Corp. (1966) 157 NLRB 89, 61 LRRM 1500; F. W. Woolworth Co. (1963) 144...