City of Fresno v. People ex rel. Fresno Firefighters, IAFF Local 753

Citation83 Cal.Rptr.2d 603,71 Cal.App.4th 82
Decision Date01 April 1999
Docket NumberNos. F025765,F026444,s. F025765
CourtCalifornia Court of Appeals
Parties, 99 Cal. Daily Op. Serv. 2446, 1999 Daily Journal D.A.R. 3155 CITY OF FRESNO et al., Plaintiffs and Appellants, v. The PEOPLE ex rel. FRESNO FIREFIGHTERS, IAFF LOCAL 753 et al., Defendants and Appellants.

Page 603

83 Cal.Rptr.2d 603
71 Cal.App.4th 82, 99 Cal. Daily Op. Serv. 2446,
1999 Daily Journal D.A.R. 3155
CITY OF FRESNO et al., Plaintiffs and Appellants,
The PEOPLE ex rel. FRESNO FIREFIGHTERS, IAFF LOCAL 753 et al., Defendants and Appellants.
Nos. F025765, F026444.
Court of Appeal, Fifth District, California.
April 1, 1999.
Rehearing Denied April 30, 1999.
Review Denied July 21, 1999.
Certified for Partial Publication. *

Page 604

APPEAL from a judgment of the Superior Court of Fresno County. James L. Quaschnick and Stephen J. Kane, Judges**.

[71 Cal.App.4th 84] Hilda Cantu Montoy, City Attorney; Sagaser, Hansen, Franson & Jamison, Howard A. Sagaser and Kimberly A. Gaab, Fresno, for Plaintiffs and Appellants.

Daniel E. Lungren, Attorney General, Rodney Lillyquist and Clayton Roach, Deputy Attorneys General, for Defendant and Appellant the People.

Carroll, Burdick & McDonough, Christopher D. Burdick, Rosemary Springer and Martin R. Gran, San Francisco, for the People ex rel. Fresno Firefighters, IAFF Local 753, and Fresno Police Officers' Association, and Defendants and Appellants.



Karl von Clausewitz wrote that war is a continuation of politics "by other means." (Bartlett, Familiar Quotations (15th ed.1990)

Page 605

[71 Cal.App.4th 85] 443.) In an all too similar way, litigation can be a continuation of labor negotiations by other means: while it may reflect the failure of its less bloody alternative, there is no guarantee that the eventual result of war or litigation will be timely, or even that it will resolve what was at issue in the original diplomacy or negotiation. 1 So it seems in the present case. Not only does this case involve a matter put before the Fresno electorate six years ago but, in addition, we are informed that the relevant employees eventually negotiated for salaries that exceeded the minimums previously established by the city charter provision in question here. 2 Still, the war goes on. 3

Before us once again, in F025765, is the issue of the efforts of the Fresno City Council and the City of Fresno (hereafter collectively City) to repeal portions of section 809 of the city charter establishing a methodology for setting levels below which salaries for police officers and firefighters could not be negotiated. On this appeal by the People, Fresno Firefighters, IAFF Local 753, and Fresno Police Officers' Association, we conclude the City's actions were not subject to the mandatory meet and confer requirements of the Meyers-Milias-Brown Act (MMBA). (Gov.Code, § 3500 et seq.) Accordingly, the City was not required to bargain to impasse prior to taking the unilateral step of placing the issue of repeal before the electorate. We affirm the judgment.

In the consolidated appeal, F026444, the unions challenge the trial court's denial of an award of attorney fees under section 1021.5 of the Code of Civil Procedure. The unions contend they won a previous appeal in this same dispute; they say the trial court abused its discretion in finding they were in the litigation primarily for pecuniary reasons, not on behalf of the public interest. The City cross-appealed from certain findings made by the trial court. In this instance, too, we affirm the trial court's order.

71 Cal.App.4th 86


An earlier phase of this case was before us in F018749. We take judicial notice of the nonpublished opinion in that case, filed July 11, 1994, and modified on denial of petition for rehearing on August 10, 1994. The earlier opinion summarizes the factual and procedural history of the case. We quote at length from that opinion, with certain clarifications noted in brackets.


"Since the mid-1950s, [Fresno Charter] section 809 has prescribed an eight-city formula under which the city council is required to set the [minimum] salaries for police officers and firefighters based upon the average salaries paid to their counterparts in eight designated cities in California.[ 4] The formula

Page 606

[often] has been incorporated into the MOUs[ 5] entered into between City and the unions pursuant to the MMBA [thereby setting the actual wages at the average wage base established by the eight-city formula, although some MOUs have provided for percentage increases or the eight-city average, whichever is higher].

"The MOUs contain provisions referred to by the parties as 'zipper' clauses which provide:

" 'During the life of this [MOU], shall either party desire to modify its terms or to meet and confer as to matters within the scope of representation not addressed in the [MOU], such party shall request in writing to meet and confer.... During the life of this Memorandum, either party may refuse such request without explanation if the item is directly related to or is an item directly considered herein, or if the item was included in a written proposal of either party during the meet and confer process which led to this agreement, and no unilateral action may be taken thereon after such refusal.'

"In 1988, the Fresno City Council moved to place on the ballot amendments to section 809 which would have repealed the eight-city formula. The [71 Cal.App.4th 87] [firefighters' and police officers' unions, the present appellants] sought a writ of mandate and [a] preliminary injunction directing City to honor the terms of the MOUs by not taking the unilateral action of placing a measure to modify section 809 on the ballot. In an oral ruling from the bench, the Fresno County Superior Court denied the motion for preliminary injunction, holding that City's action did not violate the intent of the MOUs. After a lengthy and expensive election campaign, the voters rejected the proposed repeal, but a number of influential entities remained opposed to the eight-city formula.


"In 1990, City and the unions entered into new MOUs for July 1, 1989, through June 30, 1992 (firefighters), and July 1, 1990, through June 30, 1993 (police officers). According to the unions, during the negotiations, Douglas Furman, City's Labor Relations Manager, stated the city council did not intend to propose a repeal of section 809 during the term of the MOUs because the council did not want to repeat the divisive election fight of 1988. However, the unions were concerned that a citizens' group might attempt to put the repeal on the ballot. As a result, the 1990 MOUs contained language providing for an alternative salary setting method '[i]n the event Fresno Charter Section 809 is eliminated by a vote of the electorate....'

"In February 1992, the city council directed [City Manager] Michael Bierman to meet and confer with the unions on a possible repeal, amendment or modification of section 809 so the issue could be submitted to the voters at the November 1992 general election. Bierman wrote the unions requesting they meet and confer on alternatives to section 809. The unions agreed to the request.

"The parties met during April 1992 to discuss ground rules but could not agree on an impasse procedure. City contended it retained the right to take unilateral action, including placing the repeal or modification of section 809 on the ballot, in the event the parties were unable to reach an agreement. The unions countered [that] the zipper clauses precluded such unilateral action during the[ ] terms [of the MOUs]. While they were willing to waive their right under the zipper clause not to meet and confer on section 809, they were unwilling to waive their [asserted] right to prevent City from taking unilateral action if the talks proved unproductive.

"Procedural History

"In May 1992, City abandoned attempts to negotiate and filed a complaint seeking (1) an injunction directing the firefighters and police officers to meet [71 Cal.App.4th 88] and confer in good faith, and (2) a declaration that nothing in the existing MOUs precluded it from proposing and having the electorate approve amendment, modification or repeal of section 809

Page 607

subject only to City's obligation to provide the unions the opportunity to meet and confer. Concurrently, City sought a preliminary injunction directing the unions to meet and confer in good faith with City regarding an amendment or modification of section 809. The unions opposed the motion for preliminary injunction on a number of grounds. In August 1992, the trial court denied the motion for preliminary injunction, concluding the zipper clauses unambiguously precluded City from proposing or passing a resolution regarding section 809.

"City then sought summary judgment/adjudication of its second cause of action for declaratory relief. City argued that nothing in the existing MOUs precluded it from taking action to amend, modify or repeal section 809; alternatively, if the zipper clauses prevented City from so acting, they were unconstitutional and void. The unions filed a cross motion for judgment on the pleadings. They contended City failed to exhaust its administrative remedies and the zipper clauses unambiguously prevented City from proposing charter amendments to the voters on issues addressed in the MOUs.

"After a hearing, the court denied the unions' motion for judgment on the pleadings and granted City's motion for summary adjudication. In granting the motion, the court stated triable issues of fact existed as to the meaning of the zipper clauses. But, if the unions prevailed on their interpretation that the zipper clauses precluded City from proposing a charter amendment, such an interpretation would be unconstitutional.

'The MOUs, as interpreted by [the unions], are in violation of Article XI, section 3, subdivision (b) of the California Constitution in that they permit [the unions] to decide if and when [City] may propose a ballot measure to the voters concerning the repeal or amendment of charter section 809 during the life of the MOUs. This is an impermissible restriction on the constitutional prerogatives of the City...

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