Los Angeles Police Protective League v. City of Los Angeles

• Citation: 212 Cal.Rptr. 251,166 Cal.App.3d 55
• Court: California Court of Appeals Court of Appeals
• Decision Date: 26 March 1985
• Parties: LOS ANGELES POLICE PROTECTIVE LEAGUE, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents. Civ. 67757.

Page 251

212 Cal.Rptr. 251

166 Cal.App.3d 55

LOS ANGELES POLICE PROTECTIVE LEAGUE, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

Civ. 67757.

Court of Appeal, Second District, Division 7, California.

March 26, 1985.

Review Denied June 5, 1985.

Loew & Marr, Cecil W. Marr and Robert J. Loew, Los Angeles, for plaintiff and appellant.

Ira Reiner, City Atty., Frederick N. Merkin, Sr. Asst. City Atty., Molly B. Roff, Deputy City Atty., for defendants and respondents.

HARRIS, Associate Justice. ^*

This appeal is from a judgment denying mandate to compel the City of Los Angeles to meet and confer with regard to its unilateral institution of parking fees for 76 City employees assigned to work in a City-leased building in downtown Los Angeles, and also denying attorneys' fees against the City pursuant to section 1021.5, Code of Civil Procedure, and section 800 of the Government Code.

The question presented is whether the determination that the parking fees were not too trivial to trigger the meet and confer obligation, made by the Employee Relations Board created by the Employee Relations Ordinance enacted by the City of Los Angeles in 1971 pursuant to the Meyers-Milias-Brown Act, is binding upon respondent City if no review is sought or, as contended by respondent City, is advisory only.

The Los Angeles Police Department's Planning and Research Division and Automated Information Division occupy leased facilities at 207 South Broadway in downtown Los Angeles and about 76 sworn personnel are employed at this location. These Police Department employees had not been required to pay a parking fee prior to December 1980. On September 8, 1980, the City Council approved a continuation of the lease for the 207 South Broadway facility and a continued leasing of 100 related parking spaces to be used by employees at that facility. The City Council also recommended that a uniform parking fee policy be maintained and in that regard instructed the Department of General Services to issue parking passes and to collect a $5.00 monthly parking fee from all City employees utilizing those leased parking spaces adjacent to 207 South Broadway, effective December 1, 1980. The City made no effort to meet and confer with the appellant prior to implementing the monthly $5.00 parking fee for employees at the 207 South Broadway location. There is no reference to employee parking in the Memorandum of Understanding between the City and the League, nor is there any history of Memorandum of Understanding negotiations on the subject.

Appellant, as a recognized bargaining agent, requested to meet and confer prior to the implementation of the City Council's parking fee policy, which request was denied. Appellant filed an Unfair Employee Relations Practice claim against management alleging that management committed an unfair employee relations practice under the City's Employee Relations Ordinance by refusing to meet and confer regarding the parking fees.

The Hearing Officer found that alternative parking in commercial lots nearest to 207 South Broadway averages about $50.00 per month and more distant lots average $15.00 per month, and that a recent survey suggested that about 54 percent of the City's 7,500 Civic Center employees used their own cars to get to work, 27 percent resorted to carpools, and 17 percent used buses. From this the Hearing Officer concluded that driving and parking were urban necessities "[i]n the real world of 1981 in Los Angeles," to which employees must continue to resort even at an imposed incremental reduction in real earnings.

The Hearing Officer further found that the City violated its obligation to meet and confer when it unilaterally imposed the $5.00 monthly parking fee and recommended an "administrative make-whole order" as the most efficient method of resolving the problem. The Employee Relations Board unanimously adopted the recommendations of the Hearing Officer and ordered the City "... to cease and desist from refusing to meet and confer with the Los Angeles Police Protective League on the subject of employee parking fees, to reinstate the status quo ante as of December 1, 1980, to make whole affected employees by refunding all such fees collected until such time as it has fulfilled its legal obligation to meet and confer, and to post a notice of this action in all locations where affected employees work."

The City by letter declined to comply with the order above quoted assigning "several reasons," among them "... that a five dollar ($5.00) per month parking fee is de minimus and therefore not subject to the meet and confer process. The Council disagrees with the ERB's ruling on the merits in UERP No. 308; the City Council believes that a five dollar ($5.00) monthly increase in parking neither materially nor significantly impacts upon employee working conditions." ¹ Despite its announced disagreement respondent City did not invoke Code of Civil Procedure section 1094.5 to review the decision and order and it has long since become final. Appellant League filed its petition for peremptory writ of mandate under Code of Civil Procedure section 1085 to enforce the order.

The trial court regarded itself as bound by the decision of this court in Social Services Union, Local 535 v. Board of Supervisors of Santa Barbara County (1978) 82 Cal.App.3d 498, 147 Cal.Rptr. 126 (hereinafter "Santa Barbara "), and ruled accordingly. In construing the "meet and confer" obligation imposed upon public agencies by the Meyers-Milias-Brown Act (Govt.Code, §§ 3500 et seq.) this court in Santa Barbara turned to cases interpreting the National Labor Relations Act which the Meyers-Milias-Brown Act parallels. After noting a disagreement between decisions of the National Labor Relations Board, and decisions of the federal Courts of Appeal, this court in Santa Barbara followed the reasoning of the federal judicial decisions rather than that of the Federal Administrative Agency, and adopted a narrower definition of "wages, hours, and other terms and conditions of employment" in determining the scope of the "meet and confer" obligation. Accordingly, a resolution by the Board of Supervisors of the County of Santa Barbara calling for a uniform charge of $4.00 per month for all employee reserved parking spaces, raising the existing fee of $3.50 per month at the "Administrative Building" and $2.50 per month at the "Garden Street Lot," was held by this court in Santa Barbara not to be a meet and confer obligation.

Appellant argued before the trial court that Santa Barbara had been overruled by the United States Supreme Court in Ford Motor Co. v. NLRB (1979) 441 U.S. 488, 99 S.Ct. 1842, 60 L.Ed.2d 420. The trial court refused to follow that argument, as has the First District Court in Solano County Employees' Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 186 Cal.Rptr. 147. The court pointed out in Solano at page 261, footnote 4, 186 Cal.Rptr. 147, that the Ford court did not dispense with the materiality analysis but indicated that it would defer to the evaluation of the employees and the N.L.R.B. in determining whether a matter is trivial. ² Here it is clear that neither the Hearing Officer nor the Employee Relations Board regarded the parking fee as trivial. ³

It is to be noted that Santa Barbara did not arise after an administrative hearing and the scope of review of the trial court on mandate was not there involved. In that case the Board of Supervisors took the position that the increase in parking fees was not a "meet and confer item" and refused a demand by the Union that the increase in fees be rescinded and arrangements made "to meet and confer." The local then filed a complaint in the superior court seeking mandate to compel the Supervisors to meet and confer on the issue with the local, and injunctive relief enjoining the County from carrying the newly adopted parking charges into effect. The County demurred to the complaint, the demurrer was sustained without leave to amend, the action was dismissed, and the appeal followed. In the case at bar there was a hearing at which testimony was taken under oath, exhibits were received, briefs were filed, and findings and recommendations made by the Hearing Officer, which were subsequently adopted by the Employee Relations Board as to the reasoning therein contained.

Respondent having elected not to review the decision and order under Code of Civil Procedure section 1094.5, it became final and binding upon the trial court ⁴ unless respondent is correct in its position that the decision and order was "advisory only." The answer to this question requires an examination of the Meyers-Milias-Brown Act and the Employee Relations Ordinance of the City of Los Angeles.

The Meyers-Milias-Brown Act provides that "[a] public agency may adopt reasonable rules and regulations ... for the administration of employer-employee relations under this chapter (commencing with Section 3500)" and that the "rules and regulations may include provisions for ... procedures for the resolution of disputes involving wages, hours and other terms and conditions of employment...." (Govt.Code, § 3507.)

The City of Los Angeles Employee Relations Ordinance was enacted in 1971 as a consequence of the Meyers-Milias-Brown Act. One of the purposes of the ordinance was "to establish policies and procedures for ... the resolution of disputes regarding wages, hours and other terms and conditions of employment." (L.A.Admin.Code, § 4.800.) The determining body was defined as the body "who has final authority to make a decision...." (L.A.Admin.Code, § 4.801.) Fact finding was defined as, among other things, "the investigation and reporting of the facts by one or more impartial fact finders...." (L.A.Admin.Code, § 4.801.) "Impasse" was defined as, among other things, a deadlock "... over the scope of matters upon which [representatives] are required to meet and confer." (...