California School Emp. Ass'n v. Willits Unified School Dist. of Mendocino County

• Decision Date: 02 August 1966
• Citation: 52 Cal.Rptr. 765,243 Cal.App.2d 776
• Parties: CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION, a nonprofit cororation, Plaintiff and Respondent, v. WILLITS UNIFIED SCHOOL DISTRICT OF MENDOCINO COUNTY et al., Defendants and Appellants. Civ. 22938.
• Court: California Court of Appeals Court of Appeals

Page 765

52 Cal.Rptr. 765

243 Cal.App.2d 776

CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION, a nonprofit cororation, Plaintiff and Respondent, v. WILLITS UNIFIED SCHOOL DISTRICT OF MENDOCINO COUNTY et al., Defendants and Appellants.

Civ. 22938.

District Court of Appeal, First District Division 3, California.

Aug. 2, 1966.

As Amended Aug. 4, 1966.

Thomas F. Cleland, Dist. Atty. of Mendocino County, David L. Luce, Deputy Dist. Atty. of Mendocino County, Ukiah, for appellants.

Richard H. Perry, San Francisco, for respondent.

Harold W. Kennedy, Los Angeles County Counsel, James W. Briggs, Deputy County Counsel, Raymond W. Schneider, Deputy County Counsel, Los Angeles, and Adrian Kuyper, Orange County Counsel, Arthur C. Wahlstedt, Jr., Deputy County Counsel, for Los Angeles County Counsel and Orange County Counsel, appearing as amici curiae in support of appellants.

DEVINE, Justice.

Defendant School District and several public officers appeal from an injunction and judgment granting writ of mandate which prohibit the School District from contracting for janitorial services, which order reinstatement of two formerly employed school janitors, and which award back pay to them.

Facts and Law on Plaintiff's Standing to Sue

Sections 3500--3509 of the Government Code recognize the right of public employees to join and to be represented by employee organizations. An employee organization must have as one of its primary purposes the representation of employees in their relations with the public agency. (Gov.Code, § 3501.) The suggestion by the School District that the California School Employees Association (hereafter referred to as the Association) is not an organization which meets the terms of section 3501 is without merit. Its articles of incorporation and by-laws do not, to be sure, expressly mention representation of the employees. They do state that the Association's objects are to 'raise the standards' and to 'promote generally the welfare' of members. These were drawn before sections 3500--3509 were enacted. That the articles were not subsequently amended to provide specifically for representation of employees is doubtless because amendment was deemed unnecessary.

The code sections do not expressly authorize employee organizations to sue on behalf of their members. But in Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal.2d 276, 32 Cal.Rptr. 830, 384 P.2d 158, it is held that an organization which qualifies under sections 3500--3509 does have standing to sue in its own name to enforce the employment rights of its members.

The School District protests that a representative suit is improper because there is no showing that there is a 'question of common interest' within the meaning of section 382 of the Code of Civil Procedure, the one which provides for representative suits. The discussion below on the substantive issues of the case demonstrates that the question is not only of common interest (as might be the case where relatively few parties in private litigation would have a common problem), but is of public interest, for the issues relate to interpretation of important statutes. If confirmation of this concept were needed, it is found in the brief of amici curiae Los Angeles and Orange County counsel who support the district's position on the main issues, but say that the question whether certain services may be contracted for is 'of vital interest to all school districts in the State of California.'

Equally lacking in substance is the district's contention that individual actions should have been brought because the evidence relating to the two individuals was different. It was different as to amounts of salary and perhaps other details, but not as to substantial issues, particularly when interpretation of the same statutes was essential to both cases. The case cited by the district, Noroian v. Bennett, 179 Cal. 806, 179 P. 158, a joint action by several different plaintiffs suing for fraud to cancel promissory notes made by each plaintiff separately and at different times and under different conditions to the same defendant, is essentially unlike the case before us.

Substantive Issues; General Facts; The Judgment

The substantive issues are: (1) May a school board contract for janitorial services or must it employ classified employees for this work? (2) Are the employees in this case 'permanent' or 'annual'?

The general facts are these: two women who had been employed by the School District for janitorial work were dismissed from their positions (one was given a lesser position) because the district had let a contract to a private firm to do the work. There was no other reason for their dismissal. It is undisputed that the School District believed, in good faith, that the work would be more economically done under the contract. Whether it actually was more economical is not clear. The contract was discontinued after the court overruled the School District's demurrer. The original employees were rehired.

The Association sought and obtained judgment that injunction issue against the School District and its officers from contracting for services performed by classified employees (as defined later), that the women be reinstated in their positions with restoration of leaves, retirement benefits and other benefits appertaining to the classified service, and be paid back salaries with interest.

Because there is no dispute about the facts and the case is to be decided entirely on interpretation of statutes, we must make our independent determination. (Gibbons & Reed Co. v. Dept. of Motor Vehicles, 220 Cal.App.2d 277, 33 Cal.Rptr. 688.)

Power of School District to Contract for Janitorial Services

School district boards have power to contract only as provided by statute. (People v. Stanley, 193 Cal. 428, 430--431, 225 P. 1.) The School District contends that it derives power to contract for janitorial services from two statutes: Education Code sections 15801 and 15955. The former provides that: 'The governing board of any school district shall manage and control school property within its district.' This is a very general statute. It says nothing about contracts or employment. The other statutes to be discussed relate more specifically to contracts and employment. We find nothing in section 15801 which grants contracting power. Section 15955, however, is the one on which the School District chiefly relies. It reads: 'Continuing contracts for work to be done, services to be performed, or for apparatus or equipment to be furnished, sold, built, leased, installed, or repaired for the district, or for materials or supplies to be furnished, sold or leased to the district may be made with an accepted vendor or lessor as follows: for work or services, or for apparatus or equipment, not to exceed five years; for materials or supplies, not to exceed three years.' (Stats.1961, ch. 2120, p. 4380.) The School District argues that there is no limitation in the statute on its power to contract for services. It is the Association's position that section 15955 gives power to school boards to contract for those services only which are not routinely performed as an immediate adjunct to the day-to-day operation of the schools and which have not historically been performed by employees of the School District. The Association contends that limitations are implied from the terms of the section and from certain statutes besides the one on which it places main reliance, namely, Education Code section 13581.

We address ourselves to the analysis of section 15955. Although it does not contain any specific limitation on the kinds of services which may be 'contracted out,' and although respondent's case must be established principally by the positive side of its cause, nevertheless there are indicia that section 15955 does not necessarily (and in such manner as to preclude affirmative contrary showing from other sources) embrace All possible services. It does not contain a limitation against contracting for teaching, assuming certified teachers could be supplied. It is unlikely, of course, that such a contract would be attempted; the point is merely that the broad terms of section 15955 do not forbid it. Then, the fact that a number of services are specifically made the proper subject of contract (transportation (Ed.Code, § 16801 et seq.); employment of attorneys (Ed.Code, § 1016); repair of football equipment (Ed.Code, § 15814); financial advice (Gov.Code, § 53060); repair of property (Ed.Code, § 15951)), although probably not bringing into play the inclusio unius rule, does suggest doubt that section 15955 is all-embracing; in particular, as against the provisions of section 13581, later to be analyzed. For all of the services which may be 'contracted out' section 15955 provides effective maximum durations.

At this point we observe that the brief of amici curiae, the county counsel of Los Angeles and Orange Counties, states that in recent years there has been significant increase in the number of services necessary to maintain the schools, such as servicing air conditioning equipment, swimming pool maintenance, landscape gardening, typewriter service, and the maintenance of highly specialized equipment such as Xerox machines. It is understandable that many of the highly technical services mentioned are necessarily the subject of contract, as amici curiae say they are; they do not say, of course, that ordinary janitorial services are necessarily performable under contract, but that they may be more economically done by contract. Now, the Association agrees that nearly all of the services mentioned in the brief may be contracted for, because they are not part of the routine tasks performable by employees of the schools. The Association would make a distinction in the maintenance of swimming pools between the tasks of day-to-day sweeping, etc. around the pool and the specialized work which service companies do;...