Berkeley Police Assn. v. City of Berkeley

• Decision Date: 21 December 1977
• Citation: 143 Cal.Rptr. 255,76 Cal.App.3d 931
• Parties: BERKELEY POLICE ASSOCIATION, Roosevelt Brown and Albert P. Salerno, Plaintiffs and Appellants, v. CITY OF BERKELEY, a Municipal Corporation, Wesley Pomeroy, Chief of Police of the City of Berkeley, John L. Taylor, City Manager of the City of Berkeley, Defendants and Respondents, and Jane Bond Moore, Abraham Wasserman, Kate S. Dorst and Samuel R. Gross, Intervenors and Respondents. Civ. 40772.
• Court: California Court of Appeals Court of Appeals

Page 255

143 Cal.Rptr. 255

76 Cal.App.3d 931

BERKELEY POLICE ASSOCIATION, Roosevelt Brown and Albert P. Salerno, Plaintiffs and Appellants, v. CITY OF BERKELEY, a Municipal Corporation, Wesley Pomeroy, Chief of Police of the City of Berkeley, John L. Taylor, City Manager of the City of Berkeley, Defendants and Respondents and Jane Bond Moore, Abraham Wasserman, Kate S. Dorst and Samuel R. Gross, Intervenors and Respondents.

Civ. 40772.

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

Dec. 21, 1977.

Rehearing Denied Jan. 19, 1978.

Hearing Denied March 9, 1978.

Elizabeth G. Leavy, Carroll, Burdick & McDonough, San Francisco, for plaintiffs and appellants.

Michael J. Lawson, City Atty., Berkeley, Charles O. Triebel, Jr., Oakland, for defendant and respondent City of Berkeley.

Amitai Schwartz, Northern California Police Practices Project, Charles C. Marson, Margaret C. Crosby, Alan L. Schlosser, American Civil Liberties Union Foundation of Northern California, San Francisco, for intervenors and respondents.

EMERSON, ^* Associate Justice.

The City of Berkeley has established, by initiative ordinance, a citizens' police review commission, hereafter referred to as the commission. The function of the commission, and the purpose of the ordinance, is stated to be "to provide for community participation in setting and reviewing police department policies, practices, and procedures and to provide a means for prompt, impartial and fair investigation of complaints brought by individuals against the Berkeley Police Department."

The validity of the ordinance was upheld in Brown v. City of Berkeley (1976) 57 Cal.App.3d 223, 129 Cal.Rptr. 1, insofar as it established the commission and empowered it to investigate and make recommendations concerning the policies and practices of the department. The court, however, struck down certain provisions empowering the commission to intervene in disciplinary proceedings against police department employees and officers, as well as some other provisions not germane to the instant case.

The Berkeley Police Department has established its own procedures for reviewing citizen complaints against police officers. Such complaints are investigated by the department's Internal Affairs Bureau. Bureau investigators take statements from complainants and from accused and witness officers, and prepare reports based thereon. These reports are reviewed by the department's Board of Review, which holds hearings at weekly intervals to determine what action should be taken concerning each complaint. Each member of the board is provided with a copy of the bureau report. The hearings consist almost entirely of a discussion of the contents of these reports and the information contained therein.

The police review commission is composed of nine citizen members who are appointed by the city council. Pursuant to its power to investigate complaints and make recommendations to the city council, the police review commission conducts "Trial Board" hearings. Such hearings are open to the public, in contrast to the hearings held by the department's Board of Review, which are not.

In June of 1976, respondent Pomeroy, the chief of police, announced his intention to (1) permit a member of the commission to sit in at department Board of Review hearings during which bureau reports are discussed, and (2) send a representative of the department to each police review commission trial board meeting. The representative would take with him a copy of any bureau reports that had been prepared concerning individuals who were being investigated by the police review commission and answer questions of commission members concerning the department's position on the complaints.

Appellant Berkeley Police Association is an employee organization representing members of the Berkeley Police Department. It, along with certain individual members thereof, filed the instant suit to enjoin the above described practices. Respondents and certain intervenors filed general demurrers to the complaint. After a hearing, the court ordered that the demurrers be sustained without leave to amend. Judgment for respondents was subsequently entered. This appeal is from the judgment and order. Appellants raise the points discussed below.

Did appellants state a cause of action for violation of the Meyers-Milias-Brown Act?

Appellants claim that their petition stated a valid cause of action in that it was alleged that the department had established new policies regarding investigation of citizen complaints against police officers without having first met or conferred with appellant police association. Appellants assert this constituted a violation of the Meyers-Milias-Brown Act, specifically Government Code section 3505, ¹ which provides in pertinent part: "The governing body of a public agency, or such boards, commissions, administrative officers or other representatives as may be properly designated by law or by such governing body, 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, and shall consider fully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action."

Accepting appellants' allegations of a failure to meet and confer as true for the purposes of the demurrer, it does not follow that the policies announced by Chief of Police Pomeroy constituted a change in "conditions of employment" contemplated by the Meyers-Milias-Brown Act. It has been established that the city's duty to "meet and confer in good faith" is confined to matters within the "scope of representation." (International Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 966, 129 Cal.Rptr. 68, 73.) The scope of representation is defined in Government Code section 3504 as "all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order." (Emphasis added.)

The exception carved out in the italicized language was added by amendment in 1968. Our Supreme Court interpreted the Legislature's intent in providing for this exception as follows: "The origin and meaning of the second phrase excepting 'merits, necessity or organization' from the scope of bargaining cannot claim so rich a background. Apparently the Legislature included the limiting language not to restrict bargaining on matters directly affecting employees' legitimate interests in wages, hours and working conditions but rather to forestall any expansion of the language of 'wages, hours and working conditions' to include more general managerial policy decisions." (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 616, 116 Cal.Rptr. 507, 512, 526 P.2d 971, 976.) The court went on to note that although the exception does not have an analogue in the National Labor Relations Act, federal cases interpreting the NLRA have forged a similar exception by restricting the scope of the term " 'wages, hours and terms and conditions of employment' " to exclude managerial decisions, out of an "underlying fear that . . . wages, hours and working conditions could be expanded beyond reasonable boundaries to deprive an employer of his legitimate management prerogatives . . . . As a review of federal case law in this field demonstrates, the trepidation that the union would extend its province into matters that should properly remain in the hands of employers has been incorporated into the interpretation of the scope of 'wages, hours and terms and conditions of employment.' " (Id.)

The policies announced by Chief Pomeroy consist of (1) allowing a member of the commission to sit in on department Board of Review hearings, and (2) sending a representative of the department to commission Trial Board meetings to answer questions of commission members concerning the department's position on individual complaints.

We conclude that these policies fall within the exception delineated in section 3504. Appellants are in fact challenging the merits or necessity of a "service or activity provided by . . . executive order," (§ 3504) i. e., the announced policies of their chief officer concerning a matter of police-community relations. These policies clearly constitute management level decisions which are not properly within the scope of union representation and collective bargaining. As pointed out by our Supreme Court, a distinct line of federal precedent has established substantive limitations upon the extent to which "working conditions" may be defined under the NLRA, so that decisions which are plainly within the realm of managerial discretion are excluded from the scope of union representation. (See Fire Fighters Union v. City of Vallejo, supra, 12 Cal.3d at pp. 616-617, fn. 8, 116 Cal.Rptr. 507, 526 P.2d 971 and cases cited therein.) As stated in NLRB v. Transmarine Navig. Corp. (9th Cir. 1967) 380 F.2d 933: "A decision of such fundamental importance to the basic direction of the corporate enterprise is not included within the area of mandatory collective bargaining." (Id., at p. 939.) These considerations apply a fortiori where our Legislature has chosen to provide for an explicit statutory exception for management decisions and particularly in the case of public entities where both employers and employees are servants of the people. To require public officials to meet and confer with their employees regarding fundamental policy decisions such as those here presented, would place an intolerable burden upon fair and efficient administration of state and local...