San Francisco Fire Fighters v. City and County of San Francisco

Decision Date05 April 1977
Docket NumberAFL-CI,P
CourtCalifornia Court of Appeals Court of Appeals
Parties, 95 L.R.R.M. (BNA) 2835 SAN FRANCISCO FIRE FIGHTERS LOCAL 798, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,laintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants. SAN FRANCISCO FIRE FIGHTERS LOCAL 798, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,laintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. Civ. 36882, 38479.

Thomas M. O'Connor, City Atty., Milton H. Mares, Deputy City Atty., San Francisco, for defendants and appellants City and County of S.F. and others.

Davis, Cowell & Bowe, Philip Paul Bowe, Richard G. McCracken, Duane W. Reno, Geoffrey V. White, San Francisco, for plaintiff and appellant S.F. Fire Fighters etc.

ELKINGTON, Associate Justice.

These two appeals have been consolidated for hearing and determination by this court. There is but a single issue. It concerns the validity, as a binding agreement, of a memorandum of understanding ('Memorandum') signed by San Francisco Fire Fighters Local 798, International Association of Fire Fighters, AFL-CIO ('Union'), and the Mayor, Board of Supervisors and Fire Commission of the City and County of San Francisco ('City'). The Memorandum provided for arbitration of grievances converning 'terms and conditions of employment,' as established by the rules and regulations of the fire department. Among the 'terms and conditions of employment' subject to arbitration, at least as contended by the Union, were such matters as the authority of 'company commanders,' the 'right' of fire fighters to strike, disciplinary matters, the degree of 'physical fitness' required, and the 'conditions' of assignment and transfer of fire fighters.

The City has chosen, by the vote of a majority of its electors, to adopt a charter ('Charter') under the provisions of the state's Constitution; the City's ordinances and regulations are subject to the restrictions and limitations of the Charter, which 'shall supersede . . . all laws inconsistent therewith.' (Cal.Const., art. XI, § 3 a, formerly §§ 7 1/2, 8.)

The Charter 'represents the supreme law of the City and County of San Francisco, subject, of course, to conflicting provisions in the United States and California Constitutions, and to preemptive state law.' (Harman v. City and County of San Francisco, 7 Cal.3d 150, 161, 101 Cal.Rptr. 880, 887, 496 P.2d 1248, 1255.) '(Charter) cities may make and enforce all ordinances and regulations subject only to restrictions and limitations imposed in their several charters. . . . Within its scope, such a charter is to a city what the state Constitution is to the state.' (Campen v. Greiner, 15 Cal.App.3d 836, 840, 93 Cal.Rptr. 525, 527.)

The Charter provides that the City's chief executive shall be a mayor, who is chosen by vote of the electorate. It also provides that the mayor shall appoint a fire commission.

Section 3.540 of the Charter states: 'The fire department shall be under the management of (the) fire commission, . . .'

The powers and duties of boards and commissioners are set forth in section 3.500 of the Charter as follows:

'Each board and commission appointed by the mayor, or otherwise provided by this charter, shall have Powers and duties as follows: (a) To prescribe reasonable rules and regulations not inconsistent with this charter for the conduct of its affairs, for the distribution and performance of its business, for the conduct and government of its officers and employees, . . .' (Emphasis added.)

California's Legislature has enacted the 'Meyers-Milias-Brown Act' (hereafter sometimes the 'Act') which is codified as Government Code sections 3500--3510, inclusive.

The Act provides, among other things, for meetings between public employee organizations and representatives of the public employer, in order to 'confer in good faith regarding wages, hours, and other terms and conditions of employment . . ..' (Gov.Code, § 3505.)

It is then provided:

'If agreement is reached by the representatives of the public agency and a recognized employee organization or recognized employee organizations, they shall jointly prepare a Written memorandum of such understanding, which shall not be binding, and present it to the governing body or its statutory representative for determination.' (Gov.Code, § 3505.1: emphasis added.)

The Act further provides:

'Nothing contained herein shall be deemed to supersede the provisions of existing state law and the Charters, ordinances, And rules of local public agencies which establish and regulate a merit or civil service system . . ..' (Gov.Code, § 3500; emphasis added.)

The City's Charter established and regulates such a merit or civil service system as is contemplated by Government Code section 3500, for its employees, including its fire fighters.

The City's fire fighters, exercising the right recognized by section 3500 of the Act had elected to be represented by the Union.

In 1973 the Union and representatives of the City, pursuant to the Act met and conferred concerning the fire fighters' employment relationship with the City. Following the meeting there was prepared the above-noted Memorandum, according to Government Code section 3505.1.

The Memorandum, among other things, provided:

'Grievance Procedure: The grievance procedure presently in effect, and utilized by the Employer and the Union, shall continue in operation for the purpose of settling disputes relating to the terms and conditions of employment in the Department; provided, however, that in the event no settlement is reached concerning any dispute, said dispute shall be subject to the impasse procedure hereinafter provided.'

(Impasse Procedure:) a) Pursuant to the grant of authority set forth in paragraph (d) of Section 3507 of the Government Code of the State of California, the parties agree that all unresolved issues between the parties relating to employment conditions, including grievances but excluding disciplinary proceedings, shall upon the request of either party hereto, be submitted to an impartial arbitrator for final and binding determination. Provided that before proceeding to arbitration both parties agree to meet mutually with the Mayor in order to attempt to resolve the impasse. ( ) b) The parties shall attempt to agree upon the impartial arbitrator provided for herein, but in the event they are unable to do so within five (5) days, then the American Arbitration Association shall be requested to nominate five (5) persons, all of whom shall be residents of San Francisco, qualified and experienced as labor arbitrators. If the parties cannot agree upon one (1) of the five (5) persons named to act as arbitrator, they shall strike names from the list alternately until one name remains, and siad person shall then become the arbitrator. ( ) c) The decision of the arbitrator on any issue submitted as provided herein shall be final and binding on all parties. Any joint costs of arbitration shall be borne equally by the parties.'

The Memorandum, as previously noted, was thereafter approved by the City's mayor, its board of supervisors, and its fire commission. If they, or any of them, had the required authority the Memorandum thus became a binding agreement between the Union and the City. (See Glendale City Employees' Ass'n v. City of Glendale, 15 Cal.3d 328, 124 Cal.Rptr. 513, 540 P.2d 609.)

The issue may accordingly be narrowed to the question whether the City through its mayor, board of supervisors, and fire commission, or any of them, was legally permitted to delegate to an arbitrator, the 'rules and regulation' making power entrusted to the fire commission by the Charter.

The City contends that the authority of the fire commission to prescribe its own reasonable rules and regulations is made exclusive by the Charter, and that such power may not be assigned or delegated to another, such as the arbitrator of the case before us.

We have concluded that the City's contention is correct. Our reasons follow.

There is little disagreement over the basic principle with which we are concerned.

The rule is broadly stated in 2 McQuillin, The Law of Municipal Corporations (3d Ed. 1966) section 10.39, as follows:

'(T)he principle is fundamental and of universal application that public powers conferred upon a municipal corporation and its officers and agents cannot be delegated to others, Unless so authorized by the legislature or charter. In every case where the law imposes a personal duty upon an officer in relation to a matter of public interest, He cannot delegate it to others, as by submitting it to arbitration.' (Fns. omitted; emphasis added.)

Relying in part on the above-quoted authority of McQuillin, the high court of the state in California Sch. Employees Ass'n v. Personnel Commission, 3 Cal.3d 139, 144, 89 Cal.Rptr. 620, 623, 474 P.2d 436, 439, asserted the same principle in this manner:

'As a general rule, powers conferred upon public agencies and officers which involve the exercise of judgment or discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates In the absence of statutory authorization.' (Emphasis added.)

Under this rule there can be no doubt that the fire...

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