Thomlinson v. City and County of San Francisco

• Decision Date: 04 June 1964
• Citation: 227 Cal.App.2d 619,38 Cal.Rptr. 863
• Court: California Court of Appeals Court of Appeals
• Parties: , 50 Lab.Cas. P 51,147 Henry THOMLINSON, on behalf of himself and all the other San Francisco Power House Operators, similarly situated and united in interest as a class, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a body politic, Harry Ross, as Controller thereof, Harold Mayers as Superintendent of Motive Power Department of the Municipal Railway thereof, Civil Service Commission, Hubert Soher, Richard Ham and William Kilpatrick as members thereof, Defendants and Respondents. Civ. 21414.

Page 863

38 Cal.Rptr. 863

227 Cal.App.2d 619, 50 Lab.Cas. P 51,147

Henry THOMLINSON, on behalf of himself and all the other San Francisco Power House Operators, similarly situated and united in interest as a class, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a body politic, Harry Ross, as Controller thereof, Harold Mayers as Superintendent of Motive Power Department of the Municipal Railway thereof, Civil Service Commission, Hubert Soher, Richard Ham and William Kilpatrick as members thereof, Defendants and Respondents.

Civ. 21414.

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

June 4, 1964.

Hearing Denied July 29, 1964.

Joseph P.G. Maltaman, San Francisco, for appellants.

Thomas M. O'Connor, City Atty., of City and County of San Francisco, Bernard J. Ward, Deputy City Atty., San Francisco, for respondents.

SULLIVAN, Justice.

Appellants appeal from a judgment denying their petition for a writ of mandate ¹ and discharging the alternative writ of mandate theretofore issued against respondents. ²

Petitioners are civil service employees of respondent city and county and employed by it as power house operators, designated as Class Number 7364 in the Motive Power Department of the Municipal Railway. Their petition filed in the court below alleged in substance the following: On March 29, 1962, respondent Civil Service Commission of the City and County of San Francisco (hereafter referred to as the commission) acting pursuant to section 151.3 of the charter ³ of respondent city and county certified to the board of supervisors of the city and county (hereafter referred to as the board) that the rate of $135.15 per week was the prevailing rate of pay for power house operators in private employment in San Francisco as established through collective bargaining agreements with employers. On April 23, 1962, the board adopted and fixed said certified rate as the rate of pay for petitioners for the fiscal year beginning July 1, 1962 and ending June 30, 1963, as contained in city and county ordinance 106-62 and in particular section 8.22 thereof.

It is undisputed that the collective bargaining agreement on which the commission based its certification to the board was an agreement between Pacific Gas and Electric Company and Local Union No. 1245 of International Brotherhood of Electrical Workers dated July 1, 1960. Petitioners so alleged in their petition and attached thereto as an exhibit a copy of such agreement. ⁴ It is also undisputed that from the time of the original certification by the commission on March 29, 1962, of the $135.15 rate of pay until the second Monday of July 1962, that is July 9, 1962, there had been no modification of the above-mentioned collective bargaining agreement. It is to be noted that under the proviso contained in section 151.3 of the charter (see footnote 3, ante) it was incumbent upon the commission to review 'all such agreements' and to certify to the board 'on or before the second Monday of July any modifications in rates of pay established thereunder * * *.' Nevertheless, according to the uncontradicted facts in the record, the commission in its report to the board in July 1962 certified a weekly rate of pay of $131.40. Thereafter on July 23, 1962, the board passed ordinance 206-62 reducing petitioners' rate of pay from $135.15 to $131.40 per week. The above amending ordinance also amended section 8.22.1 of ordinance 106-62 so as to provide for and define the workweek for shift employees among petitioners.

Petitioners sought a writ of mandate in the court below commanding: (1) respondent Harry Ross as the city's controller to pay them at the rate of $135.15 per week and also pay them the $3.75 per week withheld since July 1, 1962; (2) respondent commission to certify to the board the provisions of the above-mentioned union-management agreement affecting overtime pay, holiday pay and other related matters to the pay of power house operators; (3) respondent Harold Mayers as superintendent of the Motive Power Department of the Municipal Railway of the city to determine the basic workweek and to report to the city controller records of overtime, nonwork day employment and shift hours of petitioners pursuant to section 8.22 of the ordinance passed on April 23, 1962, and to establish what day is a workday and what days are nonwork days; and (4) respondent city and county to compel its subordinates to abide by section 151.3 of the charter. On the filing of the petition, the court below ordered the issuance of an alternative writ of mandate.

Respondents thereafter filed an answer and return to the petition in which they alleged, inter alia, that after the commission certified to the board the rate of $135.15 per week a protest was made against such rate on the ground that it was not being paid within the geographical limits of the City any County of San Francisco; that the commission, after making a field investigation, determined that no such rate was being paid within the geographical limits of the city; that thereafter, based upon the fact that it had committed an error in its original certification, the commission in its report to the board in July 1962 'corrected this error by certifying the proper rate of $131.40 per week'; and that this was done to meet the requirements of section 151.3 of the charter, the commission believing that it had the inherent power under such charter provision 'to correct any and all mistakes of fact made by them prior to the final adoption of any ordinance setting a rate of pay.'

The cause was submitted on the above pleadings and certain exhibits. ⁵ After submission, the parties stipulated to a waiver of findings of fact and conclusions of law. The court entered judgment denying the petition for the writ and discharging the alternative writ.

The record before us discloses without and conflict the following essential facts: The commission originally certified to the board a rate of pay of $135.15 per week and subsequently within the time prescribed by section 151.3 certified a lower rate of $131.40 although in the meantime there had been no modification of the collective bargaining agreement on which the rate of pay was based. As the answer and return alleged, the commission found on further investigation that the first rate of $135.15 was not being paid within the geographical limits of San Francisco and that it had made an error in its original certification in March 1962, which it corrected in July 1962 by certifying the proper rate of $131.40. Since petitioners have not controverted the allegations of the answer relating to the discovery and correction of the error, such allegations will be accepted as true. (Code Civ.Proc. § 1091; Hunt v. Mayor & Council of Riverside (1948) 31 Cal.2d 619, 623, 191 P.2d 426; Kimberlin v. Los Angeles City High School Dist. (1953) 115 Cal.App.2d 459, 464, 252 P.2d 344; Day v. City of Los Angeles (1961) 189 Cal.App.2d 415, 418, 11 Cal.Rptr. 325.) At oral argument the parties pointed out to us what actually happened: The commission based its March certification of the $135.15 rate on a schedule of wage rates as amended July 1, 1961, which is part of the collective bargaining agreement contained in a booklet attached to the petition for the writ. The particular rate made applicable by the certification was one for operators at 'Sta. H--San Francisco' for which a rate of $135.15 appears in the booklet. However, as the parties conceded at oral argument, although described 'San Francisco,' Station H of the Pacific Gas and Electric Company was not located within the geographical limits of San Francisco but just across the county line in San Mateo County. If this rate is eliminated, the booklet shows a rate of $131.40 for several stations of said company which are located in San Francisco.

We therefore face the question whether or not respondent commission had the power under the above section of the city's charter to correct an erroneous certification of rate of pay.

The purpose of section 151.3 of the charter of the City and County of San Francisco is to provide 'a standard for determining rates of pay that will insure these public employees a wage scale commensurate with wages received by workers in the same field in private industry.' (Adams v. Wolff (1948) 84 Cal.App.2d 435, 443, 190 P.2d 665, 671.) To state it more plainly, it is the intent of the above section that public employees of the type described therein shall receive the same compensation as that received by the same type of employees in private industry in San Francisco. (Adams v. Wolff, supra, 84 Cal.App.2d 435, 443, 444-445, 190 P.2d 665; Adams v. City & County of San Francisco (1949) 94 Cal.App.2d 586, 591, 211 P.2d 368, 212 P.2d 272; Butler v. City & County of San Francisco (1951) 104 Cal.App.2d 126, 134-135, 231 P.2d 75; see also Gowanlock v. Turner (1954) 42 Cal.2d 296, 308-309, 267 P.2d 310.) The certification of the rate of pay by the commission 'on or prior to April 1st of each year' is a part of the orderly process for the preparation and adoption of the city's budget. (Butler v. City & County of San Francisco, supra, 104 Cal.App.2d 126, 132, 135, 231 P.2d 75.) The obvious purpose in providing in section 151.3 for the commission's review of collective bargaining agreements as of July 1st and for the certification 'on or before the second Monday of July' of any modifications of the rates established thereunder, is to insure that rates of pay for the new fiscal year shall be those actually prevailing at its start on July 1. The commission's deadline for accomplishing this purpose--the second Monday of July--was selected as the latest feasible date 'consistent with allowing the board of supervisors time within which to introduce, consider and pass the amendatory ordinances necessary for adjustment of rates of pay for inclusion in the annual budget.' (Butler v. City & County of San Francisco, supra, 104...