El Dorado Cnty. Deputy Sheriff's Ass'n v. Cnty. of El Dorado, C075615

• Decision Date: 11 February 2016
• Docket Number: C075615
• Citation: 198 Cal.Rptr.3d 502,244 Cal.App.4th 950
• Court: California Court of Appeals Court of Appeals
• Parties: EL DORADO COUNTY DEPUTY SHERIFF'S ASSOCIATION, Plaintiff and Appellant, v. COUNTY OF EL DORADO et al., Defendants and Respondents.

244 Cal.App.4th 950

198 Cal.Rptr.3d 502

EL DORADO COUNTY DEPUTY SHERIFF'S ASSOCIATION, Plaintiff and Appellant,

v.COUNTY OF EL DORADO et al., Defendants and Respondents.

C075615

Court of Appeal, Third District, California.

Filed February 11, 2016

Mastagni, Holstedt, Amick, Miller & Johnsen, Mastagni Holstedt, Kathleen N. Mastagni Storm, and Jeffrey R.A. Edwards, Sacramento, for Plaintiff and Appellant.

Wendi L. Ross, Acting General Counsel, and James E. Coffey, Regional Attorney, for Public Employment Relations Board as Amicus Curiae on behalf of Plaintiff and Appellant.

Renne Sloan Holtzman Sakai, Timothy G. Yeung, and Erich W. Shiners, Sacramento, for Defendants and Respondents.

NICHOLSON, Acting P.J.

In 2011, defendant El Dorado County (the County) created a new classification (sheriff's security officer) for employees providing court perimeter security and placed the new classification in a general bargaining unit rather than the County's law-enforcement bargaining unit because the sheriff's security officers would not have peace officer authority. At the same time, the County deleted several positions (all of which were vacant) from the law-enforcement bargaining unit. One year later, plaintiff El Dorado County Deputy Sheriff's Association (the Association), the exclusive representative of the County's law-enforcement bargaining unit, demanded to bargain over the decision to create the new classification, even though the Association had actual notice of the decision before it was implemented. The County denied the Association's request to meet and confer.

The Association filed a petition for writ of mandate in the trial court, alleging that the County did not provide advance notice of the creation of the sheriff's security officer classification and violated its duty to meet and confer.¹ The petition also alleged that the County violated its own local rules. The petition sought restoration of the status quo existing before creation of the new classification, which would require the County to nullify its action more than a year after it was taken and presumably terminate the 11 sheriff's security officers already hired, so that the Association could demand to bargain over the decision and its effects.

The trial court found the County had no duty to bargain over the decision because the work assigned to sheriff's security officers is not work belonging to the law-enforcement bargaining unit. The Association does not dispute this conclusion on appeal.²

The trial court also found that, while the County had a duty to bargain over the effects of the decision, which included loss of overtime opportunities for members of the Association, the Association waived its right to bargain over the effects of the decision because it had actual advance notice of the change before the change was made and did not make a demand to bargain.

On appeal, the Association contends that the trial court erred by finding that the Association waived its bargaining rights. It claims that the County was required to give advance notice not only of the decision but also of the reasonably foreseeable effects of the decision to create the sheriff's security officer classification. We conclude that the law does not require an employer to give advance notice of the reasonably foreseeable effects of the decision; instead, the employer must give advance notice only of the decision.

Finally, the trial court found that the County did not violate its own rules in deleting positions from the law-enforcement bargaining unit. The Association contends the trial court erred in making this finding. We agree that the County violated the local rule by failing to give notice to and consult with the Association before deleting the positions. Deletion of the law-enforcement bargaining unit positions must be invalidated so that the County can comply with the local rules.

TRIAL COURT RULING

The trial court filed an statement of intended decision, which became the statement of decision when the Association did not object. (Cal. Rules of Court, rule 3.1590.)

The trial court reached the following conclusions concerning the facts and law pertinent to this appeal:

• The duties of the new sheriff's security officer classification are not bargaining unit work belonging to the law-enforcement bargaining unit, which is represented by the Association.

• The County did not have a duty to bargain over the decision to assign court perimeter security duties to employees outside the law-enforcement bargaining unit.

• The County had a duty to provide reasonable notice and an opportunity to bargain over the effects of its decision to assign court perimeter security duties to employees outside the law-enforcement bargaining unit because the decision had a reasonably foreseeable effect on matters within the scope of bargaining (specifically, on overtime opportunities).

• Association president Todd Crawford discussed the establishment of the new sheriff's security officer classification in June 2011.

• An Association officer attended the County Board of Supervisors' meeting in August 2011, when the board adopted the resolution creating the sheriff's security officer classification.

• The Association did not make a demand to bargain over the decision until August 2012, one year after the new classification was established. The Association did not demand to bargain over the effects of the decision.

• The County's decision did not violate its own local rules when it deleted the vacant positions from the law-enforcement bargaining unit.

DISCUSSION

IWaiver of Bargaining Over Effects

The Association contends the trial court erred because the County had a duty to give the Association notice, not only of the decision, but also of the foreseeable effects of the decision, to establish the sheriff's security officer classification. According to the Association, advance notice of the decision without specifying the foreseeable effects of the decision, was insufficient to support a finding that the Association waived its right to bargain concerning the effects of the decision. The contention is without merit because an employer has a duty to give notice only of the decision, not of the reasonably foreseeable effects of the decision.

"The [Meyers–Milias–Brown Act (MMBA) ] applies to local government employees in California. [Citation.] ‘The MMBA has two stated purposes: (1) to promote full communication between public employers and employees, and (2) to improve personnel management and employer-employee relations. (§ 3500.) ^{[3 ]} To effect these goals the act gives local government employees the right to organize collectively and to be represented by employee organizations (§ 3502), and obligates employers to bargain with employee representatives about matters that fall within the "scope of representation" (§§ 3504.5, 3505).’ [Citation.] The duty to meet and confer in good faith is limited to matters within the ‘scope of representation’: the public employer and recognized employee organization have a ‘mutual obligation personally to meet and confer promptly upon request by either party ... and to endeavor to reach agreement on matters within the scope of representation prior to the adoption by the public agency of its final budget for the ensuing year.’ (§ 3505.) Even if the parties meet and confer, they are not required to reach an agreement because the employer has ‘the ultimate power to refuse to agree on any particular issue. [Citation.]’ [Citation.] However, good faith under section 3505 ‘requires a genuine desire to reach agreement.’ [Citation.]" ( Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 630, 47 Cal.Rptr.3d 69, 139 P.3d 532 (Claremont ), fn. omitted.)

The public employer's duty to bargain arises under two circumstances: (1) when the decision, itself, is subject to bargaining, and (2) when the effects of the decision are subject to bargaining, even if the decision, itself, is nonnegotiable. (Claremont, supra, 39 Cal.4th at p. 633–634, 47 Cal.Rptr.3d 69, 139 P.3d 532.) Here, the trial court found that the County had a duty to bargain because the effects of the decision to create the new sheriff's security officer classification (decreased overtime opportunities for law-enforcement bargaining unit members) were subject to bargaining, and neither party asserts on appeal that the trial court's finding was erroneous.

If a public employer has a duty to bargain over either the decision or the effects of the decision to implement a change, then the employer must give notice to the employee organization so that it can make a demand to bargain. (Public Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 900, 186 Cal.Rptr. 634.) "Failure by the [employee organization] to assert its bargaining rights after receiving notice of the proposed change in terms of employment constitutes waiver of its rights. (Stockton Police Officers' Assn. v. City of Stockton (1988) 206 Cal.App.3d 62, 253 Cal.Rptr. 183.) Formal notice of a proposed change delivered to a union official is, of course, appropriate. Notice need not ... be formal to be effective. When a union official with authority to act has actual notice of the intended change, together with adequate time to decide whether to demand negotiation before a final decision is made, the union will be deemed to have received adequate notice. (Victor Valley Teachers Association v. Victor Valley Union High School District (Apr. 10, 1986) PERB Dec. No. 565 [10 PERC [para.] 17079].)"⁴ (San Diego Adult Educators v. Public Employment Relations Bd. (1990) 223 Cal.App.3d 1124, 1136, 273 Cal.Rptr. 53.)

In this case, we must address the nature of the notice given. Specifically, does the public employer have a duty to give notice only of the decision? Or must notice include a specification of the reasonably foreseeable effects of the decision? Here, the decision was to create the sheriff's security officer classification, and the...