Service Employees Internat. Union v. City of Los Angeles, B081819

• Decision Date: 28 February 1996
• Docket Number: No. B081819,B081819
• Citation: 50 Cal.Rptr.2d 216,42 Cal.App.4th 1546
• Court: California Court of Appeals Court of Appeals
• Parties: , 152 L.R.R.M. (BNA) 2787, 96 Cal. Daily Op. Serv. 1332, 96 Daily Journal D.A.R. 2229 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 347, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

Page 216

50 Cal.Rptr.2d 216

42 Cal.App.4th 1546, 152 L.R.R.M. (BNA) 2787,

96 Cal. Daily Op. Serv. 1332,

96 Daily Journal D.A.R. 2229

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 347, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

No. B081819.

Court of Appeal, Second District, Division 4, California.

Feb. 28, 1996.

Robert F. Hunt, Posner & Rosen and Howard Z. Rosen, Los Angeles, for Plaintiff and Appellant.

James K. Hahn, City Attorney, Frederick N. Merkin, Senior Assistant City Attorney, and George R. Lomeli, Deputy City Attorney, for Defendants and Respondents.

CHARLES S. VOGEL, Presiding Justice.

Appellant Service Employees International Union, Local 347 ("the Union") appeals from the judgment and order denying a petition to compel arbitration of a grievance between one of its members and the City of Los Angeles and Department of Public Works of the City of Los Angeles ("the City"). Denial of the petition was based on the ground that the dispute was not arbitrable under the provisions of the parties' agreement. After independent review of the agreement, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Paul G. Fowler is an employee of the Department of Public Works of the City of Los Angeles. He is represented by the Union, an employee organization which is recognized by the City of Los Angeles as the bargaining representative for City employees in the "Equipment Operation and Labor Employees Representation Unit." The Union and City are parties to a Memorandum of Understanding ("MOU") dated July 17, 1990.

In March of 1992, Mr. Fowler filed a grievance on his own behalf, and on behalf of similarly situated employees, because he believed he was entitled to receive premium pay under Note K of the Los Angeles City Administrative Code. Section 4.61 of the Administrative Code contains a listing of all job titles, with their respective salary ranges designated at Schedule A. Attached to Schedule A is a series of salary "notes" providing for various adjustments to an employee's base rate of pay. Note K states: "A person employed in this class of position, when regularly assigned as said term is defined in Section 4.75 of this Code, to duties consisting of doing maintenance of or servicing or repairing of Motor Sweepers or of sewage disposal facilities and equipment or cleaning catch basins or transporting sewage or catch basin debris; or consisting of working in an area where the noise level is 85 decibels or higher; or when required to perform such duties more than 50% of his time in any one day, shall receive salary at (1) the corresponding step of the second salary schedule higher than the schedule prescribed for this class, or (2) the second premium level rate above the appropriate step rate of the salary range prescribed for this class." Mr. Fowler contended that he regularly works in an area where the noise level is 85 decibels or higher.

The parties completed all stages of the grievance procedure. In the end, the Fowler grievance was denied on the ground that the Note K bonus applied only to a temporary, short-term noise problem which could not be sufficiently mitigated by hearing protection. The Union submitted a request for arbitration pursuant to Article 3.1 of the MOU. The City refused to submit the matter to arbitration because "the issue of Note K under the Los Angeles [City] Administrative Code § 4.61, is one that lies outside the Memorandum of Understanding and thus, outside the jurisdiction of an arbitrator."

On October 6, 1993, the Union filed a verified petition to compel arbitration. The City opposed the petition on the grounds that although the Los Angeles City Charter gives to the city council power to set salaries for all City employees and the council could permit the bringing of grievances concerning salary and require unresolved grievances be sent to arbitration, it did not do so in either the MOU or the Employee Relations Ordinance of the City of Los Angeles. ¹ The City contended that the resolution of the issue presented by the grievance would intrude into the economic domain reserved under the Employee Relations Ordinance to the city council. Denying the petition to compel arbitration, the trial court ruled that "the resolution of the underlying grievance through arbitration could have a substantial economic impact on City government and, thus, falls within the exclusive province of the Los Angeles City Council to act as the final and unfettered arbiter of such issues on behalf of the City" and that "[t]here was no delegation of the Council's plenary authority over salaries through the establishment of the grievance procedures set forth in the applicable MOU's." At the hearing, the court explained the basis for its ruling: "[I]f there is any ambiguity, ... it should be construed against the Union.... [p] [T]he only proper reading of the ERO's in context is to reject the [Union's] interpretation and to construe the ERO's as leaving in the [Council] the ultimate responsibility and authority for setting terms and conditions of employment to the extent that they involve the payment of wages and terms of that employment." The Union appealed from the denial.

I

On appeal, the Union contends that a dispute over the interpretation of Note K is a dispute over " 'the interpretation or application of this written MOU' " as described in the definition of grievance contained in Article 3 of the MOU and section 4.865(a)(4) of the Employee Relations Ordinance. Article 3 of the MOU defines a grievance as "any dispute concerning the interpretation or application of this written MOU or departmental rules and regulations governing personnel practices or working conditions applicable to employees covered by this MOU. An impasse in meeting and conferring upon the terms of a proposed MOU is not a grievance." "Grievance" is similarly defined in the Employee Relations Ordinance as "[a]ny dispute concerning the interpretation or application of a written memorandum of understanding or of departmental rules and regulations governing personnel practices or working conditions. An impasse in meeting and conferring upon the terms of a proposed memorandum of understanding is not a grievance." (Employee Relations Ordinance of the City of Los Angeles, § 4.801.)

According to the Union, Note K is incorporated into the MOU by virtue of Article 1.9, which states: "The parties agree that this MOU is subject to all applicable Federal and State laws, the City Charter, City ordinances, and any lawful rules and regulations enacted by the Civil Service Commission, ERB, or similar independent commissions of the City." Therefore, the Union contends, disputes concerning its interpretation are subject to the grievance and arbitration procedures outlined in the MOU and the Employee Relations Ordinance.

The Employee Relations Ordinance requires "[t]he management representative principally responsible for meeting and conferring with a recognized employee organization" to "meet and confer with the representatives of such employee organization to develop a grievance procedure for employees in the representation unit, to be incorporated into any memorandum of understanding reached by the parties." (Employment Relations Ordinance of the City of Los Angeles, § 4.865(a).) "Such grievance procedure shall apply to all grievances, as defined in Section 4.801 of this code, shall provide for arbitration of all grievances not resolved in the grievance procedure, and shall conform to the following standards: ... [p] (1) Provision shall be made for discussion of the grievance first with the employee's immediate supervisor on an informal basis; [p] (2) Provision shall be made for the filing of a formal grievance in writing, and for the processing of the unresolved grievance through not more than four, nor less than two, levels of review with written notice of the results of each such review to the employee and to his representative, if any; [p] ... [p] (4) If the grievance is not resolved in the grievance procedure, either party may submit the grievance to arbitration by written notice to the other party of its desire to arbitrate.... With respect to grievances involving the Department of Airports, Harbor, Water and Power, Library, Recreation and Parks, Pensions and City Employees' Retirement System, the decision of the arbitrator shall be advisory only. With respect to grievances involving all other City departments, the decision of the arbitrator shall be final and binding on the parties." (Employment Relations Ordinance of the City of Los Angeles, § 4.865(a).)

The MOU's grievance procedures conform to the standards of the Employee Relations Ordinance. Under the procedures set forth in the MOU, first an informal discussion is held, and then three levels of review. If none of these proceedings succeed in resolving the grievance, there is an optional provision for mediation. If the mediation is unsuccessful or the parties opt not to mediate, and the Union and the grievant agree that they desire arbitration, "the Union shall serve upon the head of the department, office or bureau a copy of the request for arbitration at the same time that the original is filed with [the Employee Relations Board]." The arbitrator's decision "shall be binding upon the parties concerned, except for grievances involving the Department of Airports, Harbor, Water and Power, Library, Recreation and Parks, Pensions, and CERS, which shall be advisory only."

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