Organization of Deputy Sheriffs v. County of San Mateo

• Decision Date: 25 March 1975
• Citation: 48 Cal.App.3d 331,122 Cal.Rptr. 210
• Court: California Court of Appeals Court of Appeals
• Parties: , 90 L.R.R.M. (BNA) 2561, 77 Lab.Cas. P 53,736 ORGANIZATION OF DEPUTY SHERIFFS OF SAN MATEO COUNTY INC. et al., Plaintiffs and Appellants, v. COUNTY OF SAN MATEO et al., Defendants and Appellants. Civ. 33305.

Page 210

122 Cal.Rptr. 210

48 Cal.App.3d 331, 90 L.R.R.M. (BNA) 2561,

77 Lab.Cas. P 53,736

ORGANIZATION OF DEPUTY SHERIFFS OF SAN MATEO COUNTY INC. et al., Plaintiffs and Appellants, v. COUNTY OF SAN MATEO et al., Defendants and Appellants.

Civ. 33305.

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

March 25, 1975.

Hearing Denied June 4, 1975.

Keith C. Sorenson, Dist. Atty., County of San Mateo, James W. Foley, Michael J. McLaughlin, Deputy Dist. Attys., Redwood City, for plaintiffs-appellants.

Carroll, Burdick & McDonough, San Francisco, for defendants-appellants.

GOOD, ^* Associate Justice.

The Organization of Deputy Sheriffs, ODS Post, was formed in 1970 as an organization whose membership included civil service job classifications of sheriff's deputies, sergeants, lieutenants and captains and investigators and chief inspector in the district attorney's office. It was composed entirely of peace officers. Its purpose, in addition to promoting effectiveness of law enforcement generally, was to represent sheriff's employees of rank below captain and district attorney's investigators in labor negotiations with the County of San Mateo. Captains were thus members of ODS but not represented by it.

After the passage of the Myers-Milias-Brown Act (MMB, Post; also, code references Post are to Government Code sections 3500 to 3510 unless otherwise stated), appellant County in August 1970, as authorized by section 3507, ¹ promulgated Resolution 28068 to govern employer-employee relations therein. The resolution contained rules of procedure for the establishment and modification of representation units for various classifications of employment. Pursuant thereto, ODS petitioned for its recognition as the representation unit for sheriff's employees below captain and for inspectors in the district attorney's office, all of whom were peace officers as defined by Penal Code sections 830.1 and 830.3, subdivision (b). The petition was granted and a Law Enforcement Unit was established with ODS recognized as the organization representing these employees. The sheriff's captains, chief civil deputy and the district attorney's chief investigator were designated as management employees and placed in the All County Management Unit which included managerial and confidential employees in departments having nothing to do with law enforcement and was thus not composed entirely of peace officers. This unit was represented by the County Employees Association, a county-wide employee's organization.

Less than two years thereafter, ODS, upon the initiative of respondent Captain Elvander and other peace officers who were in the All County Management Unit, petitioned the Civil Service Commission to create a new Enforcement Management Unit to be composed entirely of peace officers and to thus remove them from representation by the All County Employees Association. They asked that ODS be recognized as their representation organization. The petition was granted but the Commission took it a step further and determined that sheriff's lieutenants had managerial duties and they were thus included in the Law Enforcement Management Unit. Before an election could be held to designate an employee's organization to represent them--a step contemplated by section 3507, subdivision (d), where regulations for such elections existed--ODS, Captain Elvander and Lieutenant Hoover (who had served on ODS' negotiating team for two years), individually and on behalf of the officers placed in the new unit, filed their petition in the superior court seeking mandate and injunction to prevent the creation of the new unit or the inclusion therein of said upper echelon employees. They sought to compel the County to continued lieutenants in the (basic) Law Enforcement Unit and to add thereto the sheriff's captains, his chief deputy and the district attorney's chief inspector.

The trial court found that the creation of two law enforcement units violated the rights of peace officers under section 3508 which in relevant party provides: '. . . the governing body may not prohibit the right of its employees who are full-time 'peace officers' . . . to join or participate in employee organizations which are composed solely of such peace officers which concern themselves solely and exclusively with the wages, hours, working conditions, welfare programs, and advancement of the academic and vocational training in furtherance of the police profession, and which are not subordinate to any other organization. ( ) The right of employees to form, join and participate in the activities of employee organizations shall not be restricted by a public agency on any grounds other than those set forth in this section.'

The mandatory and injunctive relief prayed for was granted, including a mandate that ODS be recognized as the representative for the basic law enforcement unit which, as reconstituted according to the mandate, would include both upper and lower echelons of peace officers. The court made findings and conclusions which recited the resolution's definition of 'management employees' ² and found that the Commission had 'authority to find that lieutenants are management employees;' that its finding to that effect was supported by evidence both before the Commission and at trial; that lieutenants and captains were management employees and that the 'county's prohibition restricting management and confidential employee's activities, expressed in section 17 (of said resolution) is valid.' ³ We find nothing in the judgment itself that reduces these latter findings and conclusions to judgment either by way of declaration or order.

The County and Civil Service Commission appealed. ODS and Captain Elvander and Lieutenant Hoover cross-appealed 'from that portion of the judgment . . . (which held) . . . that lieutenants in the Sheriff's Department . . . were and are 'management employees' as that term is defined' in said resolution. Although the point is not properly before us on the cross-appeal because the judgment is completely silent concerning it, the point must be discussed because for reasons explained below we have concluded that the judgment must be reversed as to that portion which prohibits appellant from designating any management and confidential employees in the sheriff's office as a separate representation unit.

MMB furnishes a sketchy and frequently vague framework of employer-employee relations for California's local governmental agencies. It has been criticized for lack of specificity, 'confusing lack of clarity' and internal inconsistencies in many important areas. (Grodin, Pub. Emp. Bargaining in California, 23 H.L.J. (1972) 719, 738--739, 760; Schneider (1969) An Analysis of the Meyers-Milias-Brown Act of 1968 (1 Civil Public Employment Relations (CPER) 1) and Unit Determination, Experiments in California Local Government, (3 CPER 1).) The dispute herein arises out of the kind of vagueness and inconsistencies described by Dr. Grodin, Supra. The basic issue presented is whether MMB's grant of authority for a public agency to designate some employees in various departments as management or confidential employees and restrict them from representing any employee organization which represents non-management or non-confidential employees (§ 3507.5) ⁴ was rendered inapplicable to the law enforcement branches of local governments by the provisions of section 3508 heretofore quoted and precluded the County from designating management employees therein as an appropriate bargaining unit separate from non-management employees therein.

The trial court held that 'the creation of a separate (law enforcement) management unit of peace officers abridges the statutory right that the management employees have to join and participate in the Organization of Deputy Sheriffs. . . .' Although we have phrased the basic issue in a different manner by placing emphasis on the postulated inconsistency of the two sections of MMB, we are not in disagreement with the trial court's statement that the issue was whether the Civil Service Commission had the power to create the two separate bargaining units for the County's deputy sheriffs if they are opposed to being divided.

Appellant contends that MMB contemplates separate representation units determined or defined as to job classification included within an appropriate unit by the public agency and employee organizations whose right to represent such units is determined by vote of the employees 'of the agency or an appropriate unit thereof.' (§ 3507.) Grodin points out that the phrase 'appropriate unit' is borrowed from the federal statute. Reference to standards of appropriateness established by NLRB decisions is arguably invited--an inviation accepted in Alameda County Assistant Public Defenders Assn. v. County of Alameda (1973) 33 Cal.App.3d 825, 829, 109 Cal.Rptr. 392, which cites and relies upon N.L.R.B. decisions.

Schneider at 1 CPER, pp. 12--13, Supra, states that in the complex matter of unit determination, MMB neither requires nor prohibits such determination. The language of section 3507 as to adoption of rules and regulations is permissive. The only limitations are that they must be (a) preceded by 'consultation in good faith' with employee organizations; (b) rules promulgated must be reasonable; and (c) section 3507.3 requires that professionals must be allowed the option of separate representation in an organization of similar employees--an aspect not here involved. Nor is the question of whether or not manemployees' organization if the governing damus would issue at the instance of an body refused to make any unit determination. The point is that such determination is for the agency as employer subject only to the restrictions set forth above. (Cf. Grodin, Supra, 23 H.L.J. 741--742.)

The record herein reflects considerable consultation between the employees involved with various county officers before the...