CLAREMONT POLICE OFFICERS ASSOCIATION, Plаintiff and Appellant, v. CITY OF CLAREMONT et al., Defendants and Respondents.
No. S120546
Supreme Court of California
Aug. 14, 2006
623
COUNSEL
Lackie & Dammeier, Dieter C. Dammeier and Michael A. Morguess for Plaintiff and Appellant.
Rains, Lucia & Wilkinson and Alison Berry Wilkinson for Peace Officers Research Association of California‘s Legal Defense Fund as Amicus Curiae on behalf of Plaintiff and Appellant.
Liebert Cassidy Whitmore, Richard M. Kreisler, Mark H. Meyerhoff; Best Best & Krieger, Jeffrey V. Dunn, Sonia R. Carvalho and Sandra M. Schwarzmann for Defendants and Respondents.
Alan L. Schlosser, Mark Schlosberg; and Peter Eliasberg for American Civil Liberties Union Foundation of Northern California and American Civil Liberties Union Foundation of Southern California as Amici Curiae on behalf of Defеndants and Respondents.
Jeffrey Kightlinger, Henry Barbosa, Henry Torres, Jr.; Atkinson, Andelson, Loya, Ruud & Romo, James F. Baca, Warren S. Kinsler, Nate Kowalski and Joshua E. Morrison for Metropolitan Water District of Southern California as Amicus Curiae on behalf of Defendants and Respondents.
Meyers, Nave, Riback, Silver & Wilson, Andrea J. Saltzman and Arthur A. Hartinger for League of California Cities as Amicus Curiae on behalf of Defendants and Respondents.
OPINION
CHIN,
For reasons that follow, we conclude that there is a distinction between an employer‘s fundamental managerial or policy decision and the implementation of that decision. To determine whether an employer‘s action implementing a fundamental decision is subject to the meet-and-confer requirement (
Applying that test to the case at hand, we reverse the judgment of the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Claremont Police Officers Association (Association) is an employee organization representing public employees of defendant City of Claremont (City), including police officers and recruits, police agents, communication officers, record clerks, jailors and parking enforcement officers. In May 2000, the City‘s police department (Department) implemented a tracking program to determine if police officers were engaging in racial profiling. The Association, as the “[r]ecognized employee organization,”2 did not request to meet and confer with the City beforehand. Under the program, if an officer stopped a vehicle or person without issuing a citation or making an arrest, the officer was required to radio the Department with information about the stop, including the person‘s race. The program lasted one year.
After the City‘s police commission concluded that the data collected in the pilot tracking program was insufficient to determine whether officers engaged in racial profiling, the commission appointed a subcommittee and advisory panel to prepare a further study. In Fеbruary 2002, the police commission adopted the subcommittee‘s recommendation that the Department implement a “Vehicle Stop Data Collection Study” (Study), which is at issue in this case. This Study required officers on all vehicle stops to complete a preprinted Scantron form called a “Vehicle Stop Data Form” (Form). The Form included questions regarding the “driver‘s perceived race/ethnicity,” and the “officers’ prior knowledge of driver‘s race/ethnicity.” On average, the Form takes two minutes to complete, and an officer may complete between four and six Forms for each 12-hour shift. Each Form is traceаble to the individual officer making the stop. The Study was to last 15 months, commencing July 1, 2002.
In April 2002, the Association requested that the City meet and confer regarding the Study because it asserted “the implementation of policy and procedures in regards to this area falls under California Government Code section 3504.” On April 11, 2002, the City gave written notice disagreeing that the Study fell within the scope of representation under section 3504. On June 27, 2002, the Department informed officers it would implement the Study effective July 1, 2002. On July 11, 2002, the Association filed a petition for writ of mandate to compel the City and the Department not to implement the Study until they meet and confer in good faith under the MMBA.
On August 22, 2002, the superior court denied the petition. In its detailed statement of findings and conclusions, the court concluded, among other things, that the Study did not substantially affect the terms and conditions of the Association members’ employment, and that “given the de minimus impact upon workload, and the predominantly policy directed objectives of the Study, . . . the Study falls primarily within management prerogatives under
action, their prospects for promotion, and the officers’ relations with the public. Racial profiling is illegal. [Fn. omitted.] An officer could be accused of racial profiling and subjected to disciplinary action, denial of promotion, or other adverse action based in part on the information collected under the new policy. For this reason, the manner that the information is collected and the accuracy of the data and data analysis are matters of great concern to the association‘s members.”
We granted review.
II. DISCUSSION
A. Background of the MMBA
The MMBA applies to local government employees in California. (Fire Fighters Union v. City of Vallejo (1974) 12 Cаl.3d 608, 614, fn. 4 [116 Cal.Rptr. 507, 526 P.2d 971] (Fire Fighters Union).)4 “The MMBA has two stated purposes: (1) to promote full communication between public employers and employees, and (2) to improve personnel management and employer-employee relations. (
1. “Scope of representation”
Section 3504 defines “scope of representation” to include “all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.” (Italics added.) The definition of “scope of representation” and its exceptions are “arguably vague” and “overlapping.” (Building Material, supra, 41 Cal.3d at p. 658; Fire Fighters Union, supra, 12 Cal.3d at p. 615.) ” ‘[W]ages, hours and wоrking conditions,’ which, broadly read could encompass practically any conceivable bargaining proposal; and ‘merits, necessity or organization of any service’ which, expansively interpreted, could swallow the whole provision for collective negotiation and relegate determination of all labor issues to the city‘s discretion.” (Fire Fighters Union, supra, 12 Cal.3d at p. 615.)
Courts have interpreted “wages, hours, and other terms and conditions of employment,” which phrase is not statutorily defined, to include the transfer of bargaining unit work to nonunit employees (Building Material, supra, 41 Cal.3d at p. 659; Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services Dist. (1975) 45 Cal.App.3d 116, 119 [119 Cal.Rptr. 182]); mandatory drug testing of employees (Holliday v. City of Modesto (1991) 229 Cal.App.3d 528, 530 [280 Cal.Rptr. 206] (Holliday)); work shift changes (Independent Union of Pub. Service Employees v. County of Sacramento (1983) 147 Cal.App.3d 482, 487 [195 Cal.Rptr. 206]); and the adoption of a disciplinary rule prohibiting use of city facilities for personal use (Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]). Notwithstanding section 3504‘s broad language, to require an employer to bargain, its action or policy must have “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees.” (Building Material, supra, 41 Cal.3d at p. 660.)
2. “Merits, necessity or organization”
Even if an employer‘s action or policy has a significant and adverse effect on the bargaining unit‘s wages, hours, and working conditions, the employer may be excepted from bargaining requirements under the “merits, necessity, or organization” language of section 3504. (Building Material, supra, 41 Cal.3d at p. 660.) This exclusionary language, which was added in 1968, was intended to “forestall any expansion of the language of ‘wages, hours and working conditions’ to include more general managerial policy decisions.” (Fire Fighters Union, supra, 12 Cal.3d at p. 616; Stats. 1968, ch. 1390, § 4, p. 2727.) “Federal and California decisions both recognize the
right of employers to make unconstrained decisions when fundamental management or policy choices are involved.” (Building Material, supra, 41 Cal.3d at p. 663; see Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 937 [143 Cal.Rptr. 255] (Berkeley Police Assn.) [“To require public officials to meet and confer with their employees
Such fundamental managerial or policy decisions include changing the policy regarding a police officer‘s use of deadly force (San Jose Peace Officer‘s Assn. v. City of San Jose (1978) 78 Cal.App.3d 935, 947 [144 Cal.Rptr. 638] (San Jose Peace Officer‘s Assn.)), permitting a member of the citizen‘s police review commission to attend police department hearings regarding citizen complaints and sending a department member to review commission meetings (Berkeley Police Assn., supra, 76 Cal.App.3d 931), and, in the context of private labor relations, closing a plant for economic reasons (N. L. R. B. v. Royal Plating & Polishing Co. (3d Cir. 1965) 350 F.2d 191, 196 (Royal Plating)).
B. Distinction Between an Employer‘s Fundamental Decision and the Implementation and Effects of That Decision
Both parties agree that the City‘s decision to take measures against racial profiling, specifically its decision to implement the Study as a necessary first step, is a fundamental managerial or policy decision. Racial profiling, which has been defined as “the practice of detaining a suspect based on a broad set of criteria which casts suspicion on an entire class of people without any individualized suspicion of the particular person being stopped” (
[same]; see also San Jose Peace Officer‘s Assn., supra, 78 Cal.App.3d at p. 946 [“the use of force policy is as closely akin to a managerial decisiоn as any decision can be in running a police department“].) Thus, the Association concedes that the City “may have the right to unilaterally decide to implement a racial profiling study.”
However, the Association maintains that the Study‘s implementation and effects involve many factors that are distinct from the City‘s fundamental decision to adopt the Study. These factors include, on the one hand, determining the methodology used in collecting the data, and on the other, determining the effects or use of the Study‘s data, i.e., whether the data would be used only for study purposes, whether results based on the analyzed data or results regarding individual officers would be
The City, however, counters that the Court of Appeal misinterpreted section 3504 and calls this dichotomy “unprecedented.” It maintains that a public employer‘s fundamental decision and the implementation of that decision “are integral to the nature of the public agency and are thus, equally excluded from the bargaining process under Section 3504.” The City‘s amicus curiae, League of California Cities (League), argues that drawing an implementation distinction is both “artificial and unworkable” because “[i]t is pointless to adopt a policy if it cannot be implemented.” According to the League, the Association‘s contention begs the question “how the City could implement the Study and collect the data if it were not known how the data would be collected and how it wоuld be used.” Another amicus curiae, Metropolitan Water District of Southern California, adds that “the policy and its implementation cannot be severed and analyzed separately. Rather, the former is interwoven with the latter, such that a decision to compel negotiation of the implementation would inevitably compel negotiation of the policy decision itself.”
At the outset, we agree with the Association that there is a long-standing distinction under the National Labor Relations Act (NLRA) between an employer‘s unilateral management decision and the effects of that decision (
1306 [“Requiring effects bargaining maintains an appropriate balance between an employer‘s right to close its business and an employee‘s need for some protection from arbitrary action“].) In other words, although “an employer has the right unilaterally to decide that a layoff is necessary, he must bargain about such matters as the timing of the layoffs and the number and identity of employees affected. [Citation.]” (Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 64 [151 Cal.Rptr. 547, 588 P.2d 249] [discussing cases under the NLRA]); see also 1 Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2005) ¶¶ 6:80 to 6:84, p. 6-11 [discussing effects bargaining under NLRA].) For example, matters deemed subject to effects bargaining include severance рay, vacation pay, seniority, and pensions. (N. L. R. B. v. Transmarine Navigation Corporation (9th Cir. 1967) 380 F.2d 933, 939; Royal Plating, supra, 350 F.2d at p. 196 [union must have “opportunity to bargain over the rights of the employees whose employment status will be altered by the managerial decision“].)
We agree with the City, however, that the issue before us is whether it was compelled to meet and confer with the Association before it required officers on their vehicle stops to fill out the Forms as part of the Study. Based on the limited record before us, there is no evidence regarding what effects would result from implementing the Study; for instance, whether the data collected and later analyzed will result in discipline if an officer is found to
We disagree with the City‘s amici curiae that drawing a distinction between an employer‘s fundamental managerial or policy decision and the implementation of that decision, as a general matter, would be impossible or impractical. The reality is that “practically every managerial decision has some impact on wages, hours, or other conditions of employment.” (Westinghouse Electric Corporation v. N. L. R. B. (4th Cir. 1967) 387 F.2d 542, 548.) Indeed, section 3504 of the MMBA codifiеs the unavoidable overlap between an employer‘s policymaking discretion and an employer‘s action impacting employees’ wages, hours, and working conditions. (See ante, at p. 631; Building Material, supra, 41 Cal.3d at p. 657; Fire Fighters Union, supra, 12 Cal.3d at p. 615.) As we shall explain in greater detail below, while drawing a distinction may sometimes be difficult, the alternative—which would risk sheltering any and all actions that flow from an employer‘s fundamental decision from the duty to meet and confer—is contrary to established case law. (Building Material, supra, 41 Cal.3d at p. 660; see also First National Maintenance, supra, 452 U.S. at p. 686.) Although Building Material did not specifically decide the issue, our decision, as the City acknowledges, expressly contemplates that the implementation of an employer‘s fundamental decision (“action . . . taken pursuant to a fundamental managerial or policy decision“), is a separate consideration for purposes of section 3505‘s meet-and-confer requirement. (Building Material, supra, 41 Cal.3d at p. 660.)
Instead, we turn our focus to the City‘s implementation of the Study, requiring officers to fill out the Forms in order to collect data on possible racial profiling.
C. The Applicable Test
Emphasizing that the Court of Appeal erroneously created an “automatic presumption that a meet and confer is required
In Building Material, supra, 41 Cal.3d 651, the City and County of San Francisco unilaterally eliminated two bargaining unit positions and reorganized and reclassified duties of hospital truck drivers who were members of
the Building Material and Construction Teаmsters’ Union, Local 216 (Union). The city transferred certain work duties to new positions that were not in the Union‘s bargaining unit. (Building Material, supra, 41 Cal.3d at p. 655.) The Union requested to meet and confer with city agencies regarding the city‘s action; however, the request was denied on grounds that this matter was not within the meet-and-confer obligations under the MMBA. (Building Material, supra, 41 Cal.3d at p. 656.)
After reviewing the background and purposes of the MMBA (Building Material, supra, 41 Cal.3d at pp. 657–660), we concluded that the city was required to meet and confer (
Going on to explain that an employer‘s fundamental decision may have a significant and adverse effect on the bargaining unit‘s wages, hours, or working conditions (Building Material, supra, 41 Cal.3d at p. 660), we considered whether “an action . . . taken pursuant to a fundamental managerial or policy decision” may be within the scope of representation (
The high court applied a similar balancing test in First National Maintenance, supra, 452 U.S. 666. While recognizing an employer‘s “freedom to manage its affairs unrelated to employment,” the high court balanced the competing interests to determine whether mandatory bargaining was required when a fundamental management decision directly impacted employment. (First National Maintenance, supra, 452 U.S. at p. 677.) The high court concluded: “[I]n view of an employer‘s need for unencumbered decisionmaking, bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” (Id. at p. 679; see also id. at p. 686.) In discussing the issues subject to collective bargaining (id. at p. 676), the high court explained that employers’ management decisions may range from having “only an indirect and attenuated impact on the employment relationship,” to being “almost exclusively ‘an aspect of the relationship’ between employer and employee,” to having “a direct impact on employment” though the decision is ” ‘not in [itself] primarily about conditions of employment . . . .’ ” (Id. at pp. 676–677, brackets in First National Maintenance; see also Fibreboard, supra, 379 U.S. at p. 223 (conc. opn. of Stewart, J.).)
The balancing test under Building Material, which has been described as a “fluid standard” (San Francisco Fire Fighters, supra, 3 Cal.App.4th at p. 1494), properly considers the competing interests while furthering the MMBA‘s neutral purpose to “promote communication between public employers and employees and to improve personnel management. (
In view of the vast range of management decisions and to give guidance on whether a particular matter is subject to a duty to meet and confer (
competing interests a court may also consider whether “the transactional cost of the bargaining process outweighs its value. [Citations.]” (Social Services Union v. Board of Supervisors (1978) 82 Cal.App.3d 498, 505 [147 Cal.Rptr. 126] (Social Services Union) [discussing NLRA].) We believe this “transactional cost” factor is not only consistent with the Building Material balancing test, but its application also helps to ensure that a duty to meet and confer is invoked only when it will serve its purpose.
In summary, we apply a three-part inquiry. First, we ask whether the management action has “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employеes.” (Building Material, supra, 41 Cal.3d at p. 660.) If not, there is no duty to meet and confer. (See
Next, we apply the foregoing standard to the facts of this case to determine whether the City was required to meet and confer (
D. Application to the Present Case
Applying the test under Building Material, we conclude that the implementation of the Study did not have a significant and adverse effect on the officers’ working conditions. (Building Material, supra, 41 Cal.3d at p. 660.) The record reflects that “[i]n those cases resulting in citation or arrest, the Study requires slightly more information to be collected by the officer than required in completing the citation or arrest report.” Based on “undisputed evidence,” the superior court determined that officers may complete a Form in about two minutes and may complete between four and six such Forms in a 12-hour shift. The superior court concluded that the impact on the officers’ working conditions was de minimis. We agree and conclude
the City was not required to meet and confer (
In conclusion, we emphasize the narrowness of our holding. In determining that the City was not required to meet and confer with the Association before implementing the Study, we do not decide whether such a duty would exist should issues regarding officer discipline, privacy rights, and other potential effects (see ante, at pp. 634–635), arise after the City implements the Study. Bаsed on the record, that question is not before us.
III. DISPOSITION
We reverse the judgment of the Court of Appeal and remand for further proceedings consistent with our opinion.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Moreno, J., and Corrigan, J., concurred.
MORENO, J., Concurring.—I agree with the majority‘s narrow holding that the City of Claremont (City) need not meet and confer regarding its decision to conduct a racial profiling study and to adopt a particular data collection method in implementing the study, and that we need not consider other issues raised by the Claremont Police Officers Association (Association). As the majority states: “Based on the limited record bеfore us, there is no evidence regarding what effects would result from implementing the Study; for instance, whether the data collected and later analyzed will result in discipline if an officer is found to have engaged in racial profiling, or whether the City will publicize the Study‘s raw data. It is also not clear from the record what exact methodology the City has adopted to analyze the collected data to determine any racial profiling. Nor can we say that racial profiling studies have been so historically associated with employee discipline that their implementation invariably raises disciplinary issues. (Cf. Holliday [v. City of Modesto (1991)] 229 Cal.App.3d [528,] 540 [280 Cal.Rptr. 206] [various details оf implementing mandatory drug testing policy subject to meet-and-confer requirement].) Thus, we do not decide the issue whether the City was required to meet and confer with the Association over any effects resulting from the City‘s decision to implement the Study.” (Maj. opn., ante, at p. 634,
fn. omitted.) Instead, the majority addresses only “the City‘s implementation of the Study, requiring officers to fill out the Forms in order to collect data on possible racial profiling.” (Id. at p. 635.)
That having been said, it is no doubt true that the study results may potentially be used to discipline police officers or may have other adverse employment consequences for them, because racial profiling is a serious form of police misconduct. In my view, the use of the study as an additional basis for discipline would give rise to a duty on the City‘s part to meet and confer with the Association. The City‘s adoption of a new basis for disciplining police officers goes to the heart of officers’ employment security, and is therefore one of the critical “terms and conditions of employment” at the core of Government Code section 3504. (See Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 618 [116 Cal.Rptr. 507, 526 P.2d 971].) Although the City plainly has the authority and responsibility to discipline officers who persistently engage in racial profiling, its unfettered right to do so does not outweigh the Association‘s interest in ensuring, through negotiations with the City, that any such discipline follows due process
Kennard, J., concurred.