Service Employees International Union v. County of Napa

• Decision Date: 19 December 1979
• Docket Number: P,AFL-CI
• Citation: 160 Cal.Rptr. 810,99 Cal.App.3d 946
• Parties: SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 614,laintiff and Appellant, v. COUNTY OF NAPA, Defendant and Respondent. Civ. 44500.
• Court: California Court of Appeals Court of Appeals

Page 810

160 Cal.Rptr. 810

99 Cal.App.3d 946

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 614, AFL-CIO, Plaintiff and Appellant, v. COUNTY OF NAPA, Defendant and Respondent.

Civ. 44500.

Court of Appeal, First District, Division 1, California.

Dec. 19, 1979.

Hearing Denied March 13, 1980.

Van Bourg, Allen, Weinberg & Roger, Stewart Weinberg, San Francisco, for plaintiff and appellant.

Stephen W. Hackett, County Counsel, Joseph C. Folkard, Deputy County Counsel, Napa County, Napa, for defendant and respondent.

ELKINGTON, Acting Presiding Justice.

The instant appeal was taken by the above named plaintiff (Union) from a judgment of the superior court denying a writ of mandate which would have compelled the County of Napa (County) to arbitrate a "grievance" of one of its members, a County civil service employee, who will hereafter be designated as the "employee."

We have considered the record, the briefs of the respective parties, and also the learned dissent of our esteemed colleague. We conclude, for the reasons we now state, that the judgment of the superior court was without error, and that it must be affirmed.

The basic issue of the appeal is whether the evidence before the superior court, under apposite law, required issuance of such a writ as was sought by the Union.

The trial's evidence established the following.

The Union had been the recognized representative of the County's civil service employees, including the employee.

The County had provided by ordinance for "merit salary step increases" for certain of its civil service employees whose performance evaluations were found to be satisfactory. Those whose performance was found unsatisfactory were denied the increase. It was further provided that: "No step increase shall be deemed automatic, but shall be given only for performance of satisfactory service, on the recommendation of department heads . . . ." (Emphasis added.)

An ordinance of the County had provided for Discipline for misconduct of civil service employees, subject to review under certain administrative procedures.

During each of the years 1975, 1976 and 1977, the occasional denial of merit salary step increases had been a source of much dispute between the Union and the County.

Also, during each of those years, under the Meyers-Milias-Brown Act (Gov.Code, § 3500 et seq.) the County and the Union had "met and conferred" on matters of their mutual concern. Following each session the parties entered into a "Memorandum of Understanding" which was approved by the County's legislative body and thus became a binding agreement. (See Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 337, 124 Cal.Rptr. 513, 540 P.2d 609 (cert. den., 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349).) That document will hereafter be termed the Agreement.

At the first of the parties' "meet and confer" sessions in 1975 an understanding was reached, and the Agreement provided, for "binding arbitration" of civil service employee "grievances" that were not resolved by the previously provided "administrative steps." And it was further agreed:

"For a grievance to be reviewable (by arbitration), it must involve a disagreement over the Interpretation, application, or compliance with the terms of the Memorandum of Understanding ; or involve A disciplinary action or a discharge Of a permanent employee." (Agreement, § 7.1; emphasis added.)

When the parties held their 1976 "meet and confer" session the County "proposed a definition of the term discipline." ("(A)t the table the question of merit increases denials was never spoken about" as discipline or otherwise.) An acceptable definition was reached "as a result of negotiations . . . ." It follows:

" 'Discipline' consists of dismissal, suspension, letter of reprimand, demotion, or reduction in class or salary." (Emphasis added.)

The above noted provisions were continued in effect by the parties' 1977 Agreement.

In none of the sessions, or their resulting Agreements, was it provided, or suggested, that the County's denial of a merit salary step increase constituted imposition of discipline, or should follow or was otherwise related to the imposition of such discipline.

Thereafter The employee was denied a merit salary step increase because his work performance evaluation was found unsatisfactory by the County. His "grievance" was rejected at the several administrative levels. The Union then, for the first time, contended that such a denial was Arbitrable under the Agreement. The supportive theory was that the Agreement required, as a condition precedent to the denial, a "letter of reprimand" or "disciplinary action."

Upon the County's rejection of the requested arbitration, the instant mandate proceedings were commenced. The Union sought thereby an order compelling the County "to submit to arbitration the issue of whether or not the Memorandum of Understanding and the ordinance or resolution adopting the Memorandum of Understanding compel the taking of disciplinary actions such as a Letter of Reprimand prior to invoking any adverse personnel action such as the declination of a step increase."

At the trial's commencement the Union, while maintaining that mandate was an appropriate procedure, nevertheless requested that the matter be alternatively considered as if it had filed a petition to compel arbitration under the California Arbitration Act as well. Although the trial court appears to have then denied the motion, it and the parties nevertheless proceeded to a trial and determination of the issue whether or not such arbitration should be compelled. Neither of the parties contends that the procedure was otherwise, nor does either claim resulting prejudice.

The superior court ruled that the Agreement Did not provide for arbitration of such a dispute. The court also stated: "If the phrase, 'merit or a step increase' is to mean anything as the term is used in (the) Ordinance, it means that a step increase shall not be automatic but rather is a kind of reward that is to be earned. To withhold it is not an affirmative act of discipline. It is only a determination that a reward has not been earned. Merit salary increases mean more than the passage of a period of time within which an employ (Sic) was not discharged." (Emphasis added.)

Judgment was entered accordingly. The instant appeal is from that judgment.

The Union first contends that: "The petition for writ of mandamus is an appropriate remedy."

As we have pointed out, the parties and the trial court did, in effect, treat the Union's mandate petition as a petition to compel arbitration which, at least ordinarily, is the more appropriate remedy. We shall also so treat it, for the County has pointed out no resulting prejudice from the procedure followed and we ourselves observe none. And, as will next be seen, the Union here concedes that the trial court considered and determined the issue whether the Union and the employee were entitled under the Agreement to arbitration of the underlying dispute.

The Union's remaining and principal contention is that the superior court erred by itself determining that the employee's dispute was not arbitrable instead of submitting the issue of its arbitrability to an arbitrator.

The Union agrees that when one of the parties to a contract which contains an arbitration clause refuses to arbitrate on the ground that the particular dispute lies beyond the scope of that clause, the determination of the issue is Ordinarily for the court, and not the arbitrator. (Accord Code Civ.Proc., § 1281.2; Steelworkers v. Warrior & Gulf Co. (1960) 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409.)

The Union and our dissenting colleague also concede that the Agreement contains No "express language directly supportive of the Union's position" that the parties had Agreed to arbitrate. Instead, as our colleague has said: "The problem arises from the fact that it does not. Rather, the Union alleged in its petition that in the negotiation of the memorandum of understanding the parties 'determined to establish a system of disciplinary measures which may be taken by management including the letter of reprimand,' and that in doing so the parties 'contemplated that employees would not suffer by adverse personnel action except by the employment by management of the disciplinary procedures set forth in the Memorandum of Understanding.' Thus, the Union seems to be contending for an obligation either expressed orally in the negotiations or implied from the negotiations, past practices, or relationship of the parties." (Emphasis added.)

The Union's reliance is upon what has come to be known as the "Steelworkers Trilogy." It consists of the nation's high court's cases: Steelworkers v. American Mfg. Co. (1960) 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; and Steelworkers v. Enterprise Corp. (1960) 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424. The Steelworkers Trilogy has effectively become a part of California law. (See Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 14 Cal.Rptr. 297, 363 P.2d 313, Passim ; O'Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482, 30 Cal.Rptr. 452, 381 P.2d 188, Passim.)

Each of the Steelworkers Trilogy cases concerned, As does the case at hand, a negotiated labor-management agreement providing for arbitration of disputes over The interpretation or application of, or compliance with, the terms of the agreement. It was held that arbitration of disputes under such an agreement will be judicially ordered, unless it may be said "beyond dispute," or "with positive assurance" that the contract is not "susceptible of an interpretation" that the parties had so agreed. In case of "doubt" resolution of the dispute will be ordered arbitrated (Warrior, 363 U.S., p. 583, 80 S.Ct. 1347), for both a "presumption" and "public policy" favor arbitration of labor disputes....