Almond v. Sacramento County

• Decision Date: 04 September 1969
• Citation: 276 Cal.App.2d 32,80 Cal.Rptr. 518
• Parties: , 72 L.R.R.M. (BNA) 2182 Joyce S. ALMOND et al., Petitioners and Appellants, v. The COUNTY OF SACRAMENTO, a Political Subdivision of the State of California, et al., Respondents. Civ. 12022.
• Court: California Court of Appeals Court of Appeals

Page 518

80 Cal.Rptr. 518

276 Cal.App.2d 32, 72 L.R.R.M. (BNA) 2182

Joyce S. ALMOND et al., Petitioners and Appellants, v. The COUNTY OF SACRAMENTO, a Political Subdivision of the State of California, et al., Respondents.

Civ. 12022.

Court of Appeal, Third District, California.

Sept. 4, 1969.

Rehearing Denied Oct. 1, 1969.

Hearing Denied Nov. 12, 1969.

Karlton & Blease by Coleman Blease and Lawrence K. Karlton, Sacramento, for petitioners-appellants.

John B. Heinrich, County Counsel by L. B. Elam, Deputy County Counsel, Sacramento, for respondents.

PIERCE, Presiding Justice.

Respondents' general demurrer to petition for mandate was sustained without leave to amend. Petitioners, who are 127 former classified employees of respondent County of Sacramento, appeal. This, therefore, is a 'pleading case' except that there is, as a part of the record a transcript of certain proceedings before the Civil Service Commission of the county of which the trial court could have taken judicial notice and which we must consider. (Code Civ.Proc. § 1094.5, subd. (a); Ev.Code § 452, subd. (h); Agostini v. Strycula (1965) 231 Cal.App.2d 804, 806, 42 Cal.Rptr. 314.)

After an examination of the petition and the record of the hearing mentioned, we--as an intermediate reviewing court--are compelled as a matter of law to the conclusion that the judgment following the order sustaining the demurrer was proper and must be affirmed. ¹

Appellants are civil service workers. They are also members of Social Workers Union, Sacramento Chapter, Local 535. While employed by the county they went on strike. The reasons are stated in some detail in the petition. It is stated that respondent county 'refused to meet and confer and Negotiate in good faith with the SOCIAL WORKERS UNION relative to employer-employee relations, wages, hours, and other terms and conditions of employment, as is more fully set out in the affidavit of ROBERT ANDERSON' (an exhibit to the pleading). (Italics ours.) Contrary to the pleading of a refusal to meet, the affidavit describes a number of such meetings. (We must, on demurrer, however, accept the contention they were not in good faith.) It is alleged that the ensuing strike was the result of 'the failure and refusal of the COUNTY OF SACRAMENTO to negotiate or use the services of the STATE CONCILIATION SERVICE and solely to require the COUNTY to so negotiate or conciliate and otherwise to secure compliance with applicable provisions of law * * *.' On March 9, 1967 petitioners, still on strike, were dismissed by respondent John P. Corey, Director of the Department of Social Welfare of the county. The 'cause' for dismissal was 'absence without leave.'

Under the charter of Sacramento County (art. IX, sec. 45--A subsec. 7) any classified employee 'may for cause be removed, suspended or reduced in rank * * * by the appointing authority * * *.' (Stats. 1963, Reso. ch. 20, p. 4678.) 'Absence without leave' is a cause for removal. (County of Sacramento, Civil Service Rules, sec. 11, 11.2, subd. (g).)

Under those rules (Id., sec. 11, 11.3--11.13) a discharged employee is entitled to a hearing before the Commission. Appellants availed themselves of that right. It is alleged that they were refused the right to be represented by the union, but the record shows that the president of the Sacramento chapter of Local 535 was appellants' principal witnesses and his testimony by stipulation made all encompassing. Also the attorneys now representing appellants, who represented them in the trial court and throughout earlier proceedings, are, it appears, the union's attorneys.

Meanwhile the California State Conciliation Service had conducted a vote among the members of the union's Sacramento chapter on the question of whether its striking members would return to work in the event of a reinstatement without reprisals. At the hearing before the Board petitioners produced evidence that the members had voted to return to work on those terms.

The Commission made its findings and decision. It upheld the dismissals. Thereafter the proceedings were brought from which the appeal now before us is taken. Petitioners sought from the superior court an order to compel the Commission to rescind its decision and effect appellants' reinstatement with back pay and other benefits excluding salary from February 7, 1967 (the date they went on strike) to March 9, 1967 (the date of their dismissal by Director Corey).

We express the question we decide within the framework of the following facts: Civil service employees of the county went on strike. Their pleaded reasons were a refusal by their appointing authority to negotiate with them in good faith on matters pertaining to employer-employee relations; also a refusal to accept the State Conciliation Service as a mediating agency. They refused to return to work except upon the conditions noted. The appointing authority discharged the employees as 'absent without leave.' The Commission affirmed that action after a hearing. The question is: Are the employees entitled to reinstantement as demanded?

The Right Of Discharge Generally

'(A)ny reasonable, sufficient cause may be grounds for dismissal By the appointing officer.' (Whoriskey v. City etc. of San Francisco (1963) 213 Cal.App.2d 400, 403, 28 Cal.Rptr. 833, 835, hear. den.) The civil service commission is a local administrative tribunal exercising quasi-judicial powers. Its actions may be reviewed by mandamus. (Schneider v. Civil Service Com'n. (1955) 137 Cal.App.2d 277, 284, 290 P.2d 306.) In such proceedings the issues before the Commission are its jurisdiction, whether there was substantial evidence, whether the Commission abused its discretion in fixing the penalty, and, in general whether the hearing was fair. Substantial evidence is not weighed either by the trial court or on appeal. (Code Civ.Proc. § 1094.5, subd. (b); Forstner v. City etc. of San Francisco (1966) 243 Cal.App.2d 625, 631--632, 52 Cal.Rptr. 621; Brown v. Gordon (1966) 240 Cal.App.2d 659, 666--667, 49 Cal.Rptr. 901; Schneider v. Civil Service Com'n., supra, 137 Cal.App.2d at pp. 282--284, 290 P.2d 306.)

As we have shown, provisions of the county charter supplemented by the rules of the Civil Service Commission authorize the removal of an employee who is absent without leave. An employee cannot be said to come within that status if he had a right to strike and is justifiably exercising that right. On the other hand if No right to strike exists, the absence was without leave, the appointing authority had the right to discharge, and the Commission had jurisdiction to affirm the removal and did so without abuse of discretion since substantial evidence (in fact actual admissions) showed an unauthorized absence from work with a refusal to return except upon payment of unearned salaries.

Right Of Public Employees To Strike

Our Supreme Court in Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 8 Cal.Rptr. 1, 355 P.2d 905, has stated (at p. 687 8 Cal.Rptr. at p. 2, 355 P.2d at p. 906): 'In the absence of legislative authorization public employees in general do Not have the right to strike (see 31 A.L.R.2d 1142, 1159--1161) * * *.' (Italics ours.) True, the statement was made in the context of an opinion in which the court held that legislation there involved did authorize transit authority employees to strike. But that statement is not an isolated indication of the thinking of our highest court. For example, as early as 1946 a hearing was denied in Nutter v. City of Santa Monica, 74 Cal.App.2d 292, 168 P.2d 741, involving the applicability of the then recently enacted (1937) Labor Code section 923 to public employees. That code section, still in effect, gives to workmen the right to form and join unions and through them the right collectively to bargain. On its fact it does not limit the employees mentioned to those privately employed. Nutter, however, states that the Legislature, By enacting section 923, had not intended to include public employees within its purview. (See also Berkeley Teachers Association v. Board of Education (1967) 254 Cal.App.2d 660, 671, 62 Cal.Rptr. 515.) Under the facts in Nutter a strike was not involved. But obviously the denial of a right to bargain collectively implies the denial of a right to strike. ² Again in 1949 in City of Los Angeles v. Los Angeles etc. Council (1949) 94 Cal.App.2d 36, 210 P.2d 305, our Supreme Court denied a hearing. That action Did involve the right of city employees to strike and the court of appeal held the right did not exist. In State v. Brotherhood of R. R. Trainmen (1951) 37 Cal.2d 412, 232 P.2d 857, the Supreme Court denied to employees of the state owned Belt Railroad, protected by state civil service, the right to contract covering wages and working conditions. In a 1960 court of appeal decision, Pranger v. Break, 186 Cal.App.2d 551, 556, 9 Cal.Rptr. 293, hearing denied (dissimilar on its facts to the case before us) the court repeated the language of Los Angeles Metropolitan Transit Authority quoted above.

In Newmarker v. Regents of Univ. of Cal. (1958) 160 Cal.App.2d 640, 325 P.2d 558--in which a hearing by the Supreme Court was not sought--it was held that the Board of Regents of the University of California was a public body, that its building and construction trade employees were public employees, and the court said (on page 646, 325 P.2d on page 562) 'that as public employees they do not have the same rights to strike and to bargain collectively (citation) as their counterparts in private industry (and if they were unhappy about it), plaintiffs' remedy lies with the legislature, not with the courts.'

Further review of cases is needless. The rule that, absent an authorizing statute, a public employee has no right either to bargain collectively or to strike is well settled. It is settled by decisions of the Supreme Court itself and by that court's denial of hearings...