City of Hayward v. United Public Employees

Decision Date23 January 1976
Docket NumberAFL-CIO
Citation54 Cal.App.3d 761,126 Cal.Rptr. 710
CourtCalifornia Court of Appeals Court of Appeals
Parties, 91 L.R.R.M. (BNA) 2898, 78 Lab.Cas. P 53,803 CITY OF HAYWARD, etc., et al., Plaintiffs and Appellants, v. UNITED PUBLIC EMPLOYEES, LOCAL 390, OF the SERVICE EMPLOYEES INTERNATIONAL UNION,, an Unincorporated Association, Defendant and Respondent. Civ. 36690.

John W. Scanlon, City Atty., Myron A. Johnson, Asst. City Atty., Hayward, for appellants City of Hayward and William C. Hanley.

Van Bourg, Allen, Weinberg, Williams & Roger by David A. Rosenfeld, San Francisco, for respondent.

Raymond L. LaJeunesse, Jr., James Newton Wilhoit, III, National Right to Work Legal Defense Foundation, Fairfax, Va., Maureen McClain, Littler, Mendelson & Fastiff, San Francisco, for amicus curiae.

CHRISTIAN, Associate Justice.

The City of Hayward and its city manager appeal from a judgment declaring that an 'agency shop' agreement between the City and respondent United Public Employees, Local 390, is lawful.

Respondent (hereinafter 'the Union') is a labor organization affiliated with the Service Employees International Union, AFL-CIO; certain employees of the City are members of the Union. On July 11, 1972, the Union and the City entered into a 'Memorandum of Understanding,' whereby the City recognized the Union as representing a majority of the employees in the City's Maintenance and Operations Unit. The agreement covered wages, hours, and other terms and conditions of employment, about which there is no controversy. A dispute arose, however, over the validity of section 1.02 of the agreement, which provides that, although employees are not to be required to join the Union, all employees in the Maintenance and Operations Unit, including nonmembers of the Union,

'shall, as a condition of continued employment, pay to the union an amount of money equal to that paid by other employees in the appropriate unit who are members of the union, which shall be limited to an amount of money equal to the union's usual and customary initiation and monthly dues.'

Except as may be authorized by statute, public employees have no right to bargain collectively with the employing agency. (Sacramento County Employees Organization, Local 22 etc. Union v. County of Sacramento (1972) 28 Cal.App.3d 424, 429, 104 Cal.Rptr. 619; City of San Diego v. American Federation of State etc. Employees (1970) 8 Cal.App.3d 308, 310, 87 Cal.Rptr. 258.) In 1960, California became one of the first states to create a right on the part of government employees to organize and to confer with management as to the terms and conditions of their employment. 1 Another enactment, the Meyers-Milias-Brown Act (Gov.Code, §§ 3500--3510 (hereinafter 'MMBA')) has created certain additional rights of organization in employees of municipalities and local agencies, and authorized representatives of labor and management to enter into written agreements for presentation to the governing body. (Gov.Code, §§ 3505--3505.1.) 2

The memorandum of understanding entered into by the parties was negotiated by means of procedures which conform to the MMBA. The sole question presented is whether the MMBA permits the creation of an agency shop in an agency of local government. An agency shop agreement is to be distinguished from a union shop agreement, which conditions the continuance of an employee's job on union membership; a union shop is prohibited by statute in public employment. (§ 3502.) In an agency shop, union membership is not a condition of employment, but all employees, including those who do not choose to join the union, must pay union dues. The MMBA does not explicitly refer to agency shop agreements; no reported decision has previously addressed the issue of the legality of this type of agreement.

Section 3502 provides: 'Except as otherwise provided by the Legislature, public employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations. Public employees also shall have the right to refuse to join or participate in the activities of employee organizations And shall have the right to represent themselves individually in their employment relations with the public agency.' (Emphasis added.)

Section 3506 prohibits both public agencies and employee organizations from interfering with, intimidating, restraining, coercing or discriminating against public employees 'because of their exercise of their rights under Section 3502.' The freedom of choice provisions of each of these sections must be construed as prohibiting the extraction of union dues, or their equivalent, as a condition of continued employment. Otherwise the statutory right of employees to represent themselves would be defeated.

The trial judge did not address either of these sections; instead, he found that the agency shop provision was a 'reasonable rule or regulation' adopted pursuant to the authority conferred by section 3507.

Section 3507 provides:

'A public agency may adopt reasonable rules and regulations after consultation in good faith with representatives of an employee organization or organizations for the administration of employer-employee relations under this chapter (commencing with Section 3500).

'Such rules and regulations may include provisions for (a) verifying that an organization does in fact represent employees of the public agency (b) verifying the official status of employee organization officers and representatives (c) recognition of employee organizations (d) exclusive recognition of employee organizations formally recognized pursuant to a vote of the employees of the agency or an appropriate unit thereof, subject to the right of an employee to represent himself as provided in Section 3502(e) additional procedures for the resolution of disputes involving wages, hours and other terms and conditions of employment (f) access of employee organization officers and representatives to work locations (g) use of official bulletin boards and other means of communication by employee organizations (h) furnishing nonconfidential information pertaining to employment relations to employee organizations (i) such other matters as are necessary to carry out the purposes of this chapter.

'Exclusive recognition of employee organizations formally recognized as majority representatives pursuant to a vote of the employees may be revoked by a majority vote of the employees only after a period of not less than 12 months following the date of such recognition.

'No public agency shall unreasonably withhold recognition of employee organizations.'

The trial judge reasoned that the agency shop provision could be lawfully enacted under section 3507 because '(a) it obligates the Union to represent All employees, (b) it requires nonmembers to share the cost of the benefits which such representation is intended to provide, and (c) it clearly relates to the administration of employer-employee relationships.' He recognized the inconsistency of the provision with the employees' statutorily guaranteed freedom of choice, but reasoned that the right of the individual should be subordinated to a policy in furtherance of collective bargaining 'as a vehicle for improving employment relationships and avoiding the harsh consequences of labor disputes involving public services.'

Courts must, if possible, harmonize statutes, reconcile seeming inconsistencies and construe them to give force and effect to all provisions thereof. (Hough v. McCarthy (1960) 54 Cal.2d 273, 279, 5 Cal.Rptr. 668, 353 P.2d 276.) A court may not add to or detract from a statute or insert or delete words to accomplish a purpose that does not appear on its face or from its legislative history. (Estate of Simmons (1966) 64 Cal.2d 217, 221, 49 Cal.Rptr. 369, 411 P.2d 97.)

The MMBA was enacted to promote 'full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment . . ..' (§ 3500.) It was not intended to supersede existing systems for the administration of employer-employee relations in the public sector, but to strengthen such systems by improving communication. (Ibid.)

It is argued that an agency shop agreement is a reasonable method of resolving labor disputes and that, since it is not specifically prohibited, it should be held permissible under the MMBA. But that construction would render the provisions of sections 3502 and 3506 meaningless. Section 3502 implicitly recognizes that employees may choose to join or participate in different organizations. (See, e.g., Sacramento County Employees Organization, Local 22 etc. Union v. County of Sacramento, supra, 28 Cal.App.3d 424, 104 Cal.Rptr. 619.) It also confers upon each employee the right not to join or participate in the activities of any employee organization. Section 3506 not only prohibits management from interfering with an employee's section 3502 rights, but also imposes the same ban on employee organizations.

Without common law collective bargaining rights, public employees enjoy only those rights specifically granted by statute. Statutes governing the labor relations of other public employee groups indicate that when the Legislature has authorized union security devices, it has done so with explicit language. Certain public transit district employees have been granted extensive collective bargaining rights, including the right to contract for a closed or union shop. (See, e.g., Pub.Util.Code, §§ 25051--25057.) The labor relations of teachers and other school district employees have been governed by the Winton Act. (Ed.Code, §§ 13080--13090.) Sections 13082 and 13086 of that Act contain provisions paralleling sections 3502 and 3506 and the MMBA. The Winton Act has never been...

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