GLENDALE CITY EMPLOYEES’ ASSOCIATION, INC., et al., Plaintiffs and Appellants, v. CITY OF GLENDALE et al., Defendants and Appellants.
L.A. No. 30357
In Bank
Oct. 3, 1975.
15 Cal. 3d 328
Mohi, Morales & Glasman, Mohi, Morales, Dumas & Glasman and Frank C. Morales for Plaintiffs and Appellants.
Lemaire & Faunce, Cy H. Lemaire, Edward L. Faunce, Davis, Cowell & Bowe, Alan C. Davis and Wayne S. Canterbury as Amici Curiae on behalf of Plaintiffs and Appellants.
Joseph Rainville and Richard W. Marston, City Attorneys, Robert L. Smith, Frank R. Manzano and Peter C. Wright, Assistant City Attorneys, Burke, Williams & Sorensen, George W. Wakefield and Richard R. Terzian for Defendants and Appellants.
David S. Kaplan, Richard S. Whitmore and Gillio & Whitmore as Amici Curiae on behalf of Defendants and Appellants.
OPINION
TOBRINER, J.—With the enactment of the George Brown Act (Stats. 1961, ch. 1964) in 1961, California became one of the first states to recognize the right of government employees to organize collectively and to confer with management as to the terms and conditions of their employment. Proceeding beyond that act the Meyers-Milias-Brown Act (Stats. 1968, ch. 1390) authorized labor and management representatives not only to confer but to enter into written agreements for presentation to the governing body of a municipal government or other local agency.1 The present case raises among other issues which we shall discuss the fundamental question unanswered by the literal text of these statutes:
1. Statement of facts.
Pursuant to the Meyers-Milias-Brown Act, negotiators for plaintiff Glendale City Employees’ Association, Inc., the designated representative for the city employees, met with Charles Briley, the assistant city manager, to discuss employee salaries for the 1970-1971 fiscal year. The parties negotiated a memorandum of understanding, which they presented to the city council. On June 9, 1970, the council passed a motion approving the memorandum. The memorandum of understanding provides for a cost of living adjustment, sick leave, incentive pay, and a salary survey; the only matter that remains at issue is the survey provision.2
The survey provision reads as follows: “The parties hereto will conduct a joint salary survey and using as guide lines data secured from the following jurisdictions, Burbank, Pasadena, Santa Monica, Long Beach, Anaheim, Santa Ana, Los Angeles City and Los Angeles County. The intent of the survey will be to place Glendale salaries in an above average position with reference to the jurisdictions compared with proper consideration given to internal alignments and traditional relationships. The data used will be that data available to us and intended for use in fiscal year 1970-71. Adjustments which it is agreed shall be made will have an effective date of October 1, 1970. It is intended that comparisons will be made on a classification basis and not title only, and that the classifications shall be determined by professional judgment of the highest qualified personnel people with whоm we would confer in the jurisdictions with which we will compare.” (Italics added.)
By viewing the bar graphs, the city manager could obtain a rough idea of how Glendale salaries at each step compared with salaries paid in surveyed jurisdictions. On this basis the city manager, in September of 1970, prepared a draft salary ordinance. Plaintiff association, using the survey data, computed the arithmetic average of salaries from the surveyed jurisdictions for the top step of each job classification, and discovered that in many instances the salary proposed in the draft ordinance was below this average. Over the objection of the association the city council, on October 1, 1970, enacted the ordinance (Salary Ordinance No. 3936) recommended by the city manager.
On behalf of the class of city employees, plaintiff association and certain of its members filed the instant suit against the City of Glendale and its councilmen. Upholding the binding nature of the memorandum of understanding, the trial court admitted parol testimony of the negotiators to aid in the interpretation of its provisions. On the basis of that testimony, the court concluded that the city must compute the arithmetic (mean) average of the salaries paid employees in the highest step of each comparable classification in the surveyed jurisdictions, and must pay Glendale employees in the fifth step of each classification a salary equal to the average from the surveyed jurisdiction, plus one cent. Salaries of workers in the lower steps would be determined by the existing ratio of such salaries to step E salaries, thus preserving “internal alignments” as required by the memorandum.3
The court concluded that Salary Ordinance No. 3936 did not meet these criteria, and that the failure of the city to pay salaries in excess of
Defendants appealed. They contend that the memorandum of understanding was not binding, that the trial court erred in its interpretation of the memorandum, and that in any event the memorandum cannot be enforced by writ of mandamus. Defendants also argue that the present suit is not a proper class action, and that relief is barred by plaintiff‘s failure to exhaust administrative remedies. Plaintiffs filed a cross-appeal which raises a single limited issue; plaintiffs maintain that whenever an employee‘s salary must be increased to bring it into line with the survey, it should be increased not only to a figure one cent above average, but to a figure lying on a higher salary range.
2. The memorandum of understanding, once approved by the city council, is binding upon the parties.
The Meyers-Milias-Brown Act, as set forth in
The historical progression in the legislative enactments began with the George Brown Act.5 That act sought in general to promote “the improvement of personnel management and employer-employee relations . . . through the establishment of uniform and orderly methods of communication between employees and the public agencies by which they are employed.” (Stats. 1961, ch. 1964, p. 4141.) It provided, in former section 3505, that “The governing body of a public agency [or its representatives] shall meet and confer with representatives of employee organizations upon request, and shall consider as fully as it deems reasonable such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action.” (Stats. 1961, ch. 1964, p. 4142.)6
During the years following enactment of the George Brown Act public employee unions continued to grow in size7 and to press their claims that public employees should enjoy the same bargaining rights as private employees so long as such rights did not conflict with the public service.8 The George Brown Act, originally a pioneering piece of legislation, provided only that management representatives should listen to and discuss the demands of the unions. Apparently the failure of that act to resolve the continual controversy between the growing public employees’ organizations and their employers led to further legislative inquiry. Moreover, subsequent enactments of other states, which granted public employees far more extensive bargaining rights,9 further exposed the limitations of the George Brown Act.
Why negotiate an agreement if either party can disregard its provisions? What point would there be in reducing it to writing, if the terms of the contract were of no legal consequence? Why submit the agreement to the governing body for determination, if its approval were without significance? What integrity would be left in government if government itself could attack the integrity of its own agreement? The procedure established by the act would be meaningless if the end-product, a labor-management agreement ratified by the governing body of the agency, were a document that was itself meaningless.
The Legislature designed the act, moreover, for the purpose of resolving labor disputes. (See
Reversing a trial court ruling which declined to enforce the agreement, the Court of Appeal through Justice Wakefield Taylor stated that the George Brown Act “required the public agency to meet and confer and listen . . . . [T]he modern view of statutory provisions similar to the Brown Act is that when a public employer engages in such meetings with the representatives of the public employee organization, any agreement that the public agency is authorized to make and, in fact, does enter into, should be held valid and binding as to all parties.” (3 Cal.App.3d 578, 584.) If, under the more limited provisions of the George Brown Act, which does not specifically refer to an “agreement reached by the representatives of the public agency and a recognized employer organization,” nevertheless the negotiation and agreement by such parties are “valid and binding,” we conclude a fortiori that the memorandum of
3. The city has failed to comply with the terms of the memorandum of understanding.
Defendants challenge the trial court‘s finding that the city did not comply with the terms of the agreement. We have pointed out that the trial judge found the agreement uncertain in meaning and admitted parol evidence to aid in its construction. Defendants do not contend that the evidence received was inadmissible under the parol evidence rule,12 nor that the evidence so admitted does not support the findings and conclusions of the trial court. Instead, the defendants argue first, that the city singularly enjoys a unilateral right to insist upon any reasonable interpretation of the agreement that it chooses, and second, that the agreement can properly be interpreted to require only the taking of a salary survey, leaving the fixing of salary ranges to later administrative determination.
The city‘s claim to a unilateral right to interpret the memorandum rests upon numerous cases holding that a city wage ordinance will not be held to conflict with charter provisions requiring payment of prevailing wages unless the city‘s action is “‘so palpably unreasonable and arbitrary as to indicate an abuse of discretion as a matter of law.‘” (Sanders v. City of Los Angeles (1970) 3 Cal.3d 252, 261 [90 Cal.Rptr. 169, 475 P.2d 201]; Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 639 [12 Cal.Rptr. 671, 361 P.2d 247]; City & County of S. F. v. Boyd (1943) 22 Cal.2d 685, 690 [140 P.2d 666].)13 The city seeks to apply this doctrine to the present case; it argues that in enacting Salary Ordinance No. 3936 it attempted to comply with its duty under the memorandum, and that this ordinance cannot be set aside unless it is fraudulent or palpably unreasonable.
In pre-Wagner Act days some courts considered collective bargaining agreements to be merely statements of intention or unilateral memoranda. (See Chamberlain, Collective Bargaining and the Concept of Contract (1948) 48 Colum.L.Rev. 829, 832; Annot. (1935) 95 A.L.R. 10, 34-37.) But all modern California decisions treat labor-management agreements whether in public employment14 or private15 as enforceable contracts (see
This principle applies as much to agreements between government employees and their employers as to private collective bargaining
The city raises many other objections to the trial court‘s interpretation of the agreement: it contends that the memorandum gave the council discretion to choose whether to implement the survey findings; that the memorandum is but an agreement to agree in the future concerning new salary ranges; that the term “average salаries” in the memorandum does not mean an arithmetic average but refers to the city‘s practice of using bar graphs to visualize an average salary level; that the phrase “proper consideration [for] internal alignments and traditional relationships” in the memorandum authorizes the city to use such alignments and relationships to justify payment of below average salaries.
All the above contentions violate the established rule that if the construction of a document turns on the resolution of conflicting extrinsic evidence, the trial court‘s interpretation will be followed if supported by substantial evidence. (See 6 Witkin, Cal. Procedure (2d ed. 1971) pp. 4248-4249 and cases there cited.) In light of this rule, defendants, in order to overturn the trial court‘s interpretation, must demonstrate either that the extrinsic evidence on which the court relied conflicts with any interpretation to which the instrument is reasonably susceptible (Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co., supra, 69 Cal.2d 33, 40) or that such evidence does not рrovide substantial support for the court‘s interpretation. But defendants present neither contention. Their arguments, based upon an interpretation of the memorandum on its face without reference to the extrinsic evidence or the trial court‘s findings, pose no issue cognizable within the scope of our appellate review.
4. Plaintiff union may maintain this action on behalf of the Glendale city employees; allegations that this suit is a class action are superfluous and do not affect the validity of the judgment.
The instant case in this respect closely resembles Daniels v. Sanitarium Assn., Inc. (1963) 59 Cal.2d 602 [30 Cal.Rptr. 828, 381 P.2d 652], in which we first confirmed the right of a union to sue as a legal entity. In Daniels, the union vice-president sued as a “representative” of the union; we held that the suit should have been filed by the union directly. We stated, however, that “[w]e do not believe the form in which the action is brought should be crucial. Here Daniels sued ‘in a representative capacity for and on behalf of the union . . . . But the union, as we have pointed out, may sue as an entity for the wrong done to itself; such an action is not a class action but a direct one by the union. Hence the better and simplest form of procedure would be the suit in the name of the union as such. Since the matter is procedural only, however, we have considered, and sustained, the instant сomplaint as one brought by the union as an entity.” (59 Cal.2d at pp. 608-609.)
In accord with Daniels, we conclude that the unnecessary allegations and findings that the suit is a class action do not detract from the merits
5. Plaintiffs’ action is not barred for failure to exhaust administrative remedies.
Defendants contend that this suit is barred by plaintiffs’ failure to exhaust administrative remedies. Defendants refer to the grievance procedure established by Ordinance No. 3830, enacted in 1968. Section 9 of this ordinance provides that an aggrieved employee, whose dispute relates to “the interpretation or application of this Ordinance, an ordinance resulting from a memorandum of understanding, or of rules or regulations governing personnel practices or working conditions” should first consult informally with his supervisor. If that consultation does not resolve the dispute, the employee may file a grievance form with the supervisor, who must enter his decision and reasons and return the form to the employee. If dissatisfied with the supervisor‘s response, the employee may forward the form to the division head; if dissatisfied with the division head‘s response, he may forward the form to the city manager, whose decision is final. Plaintiffs did not follow this procedure before instituting the present action.
The requirement of exhaustion of administrative remedies does not apply if the remedy is inadequate. (Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834 [112 Cal.Rptr. 761]; Diaz v. Quitoriano (1969) 268 Cal.App.2d 807, 812 [74 Cal.Rptr. 358]; Comment, Exhaustion of Administrative Remedies in California (1968) 56 Cal.L.Rev. 1061, 1079-1080.) The city‘s grievance procedure is inadequate to the resolution of the present controversy in two respects.
First, the pertinent portion of Ordinance No. 3830 provides only for settlement of disputes relating to the “interpretation or application of . . . an ordinance resulting from a memorandum of understanding.” (Italics added.) The crucial threshold issue in the present controversy—whether the ratified memorandum of understanding itself is binding upon the partiеs—does not involve an “ordinance” and hence does not fall within the scope of grievance resolution.
Second, the city‘s procedure is tailored for the settlement of minor individual grievances. A procedure which provides merely for the submission of a grievance form, without the taking of testimony, the submission of legal briefs, or resolution by an impartial finder of fact is
6. Mandamus lies to enforce the memorandum of understanding.
The usual remedy for failure of an employer to pay wages owing to an employee is an action for breach of contract; if that remedy is adequate, mandate will not lie. (See Elevator Operators etc. Union v. Newman (1947) 30 Cal.2d 799, 808 and cases there cited.) But often the payment of the wages of a public employee requires certain preliminary steps by public officials; in such instances, the action in contract is inadequate and mandate is the appropriate remedy. (See Tevis v. City & County of San Francisco (1954) 43 Cal.2d 190 [272 P.2d 757] (mandate to compel officials to approve payroll); Ross v. Board of Education (1912) 18 Cal.App. 222 [122 P. 967] (mandate to compel officials to approve payment); cf. Flora Crane Service, Inc. v. Ross (1964) 61 Cal.2d 199 [37 Cal.Rptr. 425, 390 P.2d 193] (mandate to compel controller to certify that funds have been appropriated).) The superior court in the present case concluded that since “enforcement of the rights of [plaintiffs] requires obtaining the official cooperation necessary to implement the application of the formula agreed upon in the Memorandum of Understanding . . . . [Plaintiffs] do not have a speedy or adequate remedy at law to prevent the deprivation of their rights other than by mandamus.”20
Although defendants do not challenge the court‘s conclusion that plaintiffs have no other adequate remedy, they nonetheless urge that the remedy of mandamus is not available. Defendants contend that the adoption of a salаry ordinance constitutes a legislative act within the discretion of the city council, and that mandamus will not issue to compel action lying within the scope of agency or official discretion, or to compel performance of a legislative act.21
“The critical question in determining if an act required by law is ministerial in character is whether it involves the exercise of judgment and discretion.” (Jenkins v. Knight (1956) 46 Cal.2d 220, 223-224 [293 P.2d 6].)
In the present case, the city entered into an understanding which, we have held, became a valid and binding agreement upon approval by resolution of the council. That agreement, as interpreted by the trial court, is definitive, and admits of no discretion.
The findings and judgment establish precise mathematical standards which, applied to the survey data, yield the exact sums due. The trial court, in fact, awarded plaintiffs prejudgment interest on the ground that
7. The cause must be remanded for joinder of the city officers charged with the duty of computing and paying wages and salaries of city employees.
As we have noted, the trial court mandated performance of the ministerial acts of computing and paying the salaries as fixed by the judgment. The court‘s writ, however, was directed only to the city and its councilmen; plaintiffs failed to join as additional defendants the city officials entrusted with the administrative duties of computing and paying salaries. The trial court judgment and mandate thus suffer from a procedural defect similar to that discussed by the Court of Appeal in Martin v. County of Contra Costa (1970) 8 Cal.App.3d 856 [87 Cal.Rptr. 886].
In Martin, plaintiffs sued the county and its board of supervisors to mandate payment of uniform allowances. The trial court rendered judgment only against those named defendants, and not agаinst the county officers responsible for payment of the allowances. In remanding the cause for further proceedings, the Court of Appeal stated that “The only defect in proceedings and judgment is the failure to join the proper ministerial officers of the county government. Plaintiffs should be permitted to join the proper parties . . . . Since the county is the real party in interest and has been represented throughout, those ministerial officers should not be permitted to assert any laches or limitations upon being joined, but should be bound by the findings made against the county and its board of supervisors which have been approved in this opinion.” (8 Cal.App.3d at p. 866.)
Following the reasoning of the Court of Appeal, we hold that the present judgment in favor of plaintiffs must be reversed and remanded to permit joinder of the appropriate city officials. These ministerial officers should not be permitted to assert any defense of laches or
8. Plaintiffs’ cross-appeal is not meritorious.
The City of Glendale has traditionally determined employee salaries by establishing a five-step salary range for each job classification. The trial court directed that whenever Glendale‘s salary for the fifth step of a salary range was less than the average salary from the surveyed jurisdictions, the city must raise the fifth step salary to an amount equal to that average plus one cent; it further directed that salaries for steps one through four be raised proportionately to the fifth step salary.
Plaintiffs argue on their cross-appeal that the trial court, instead of directing payment of fifth step salaries equal to the survey average plus one cent, should have ordered the city to provide salary increases to the closest fifth step of a higher range above the average. We believe, however, that the court did exactly that which plaintiffs now request; in fixing step five sаlaries at the average plus one cent, and increasing step one through four salaries proportionately, the court in effect established a new salary range at a level sufficient to assure plaintiffs a salary above the average from the surveyed jurisdiction. Although plaintiffs would prefer a raise to a salary range which exceeded that average by more than the one cent differential established by the trial court, they point to nothing in the memorandum of understanding or the evidence which bars the creation of new salary ranges so long as they yield an above-average wage.
9. Conclusion
For the foregoing reasons, the judgment is reversed, and the cause remanded for further proceedings in accord with the views expressed in this opinion. Each side shall bear its own costs on appeal.
Wright, C. J., McComb, J., Sullivan, J., Clark, J., and Richardson, J., concurred.
MOSK, J.—I concur in the reversal of the judgment, but I dissent from the directions given upon remand.
The majоrity make out a persuasive case for finding that a memorandum of understanding regarding municipal employee salaries was
The posture in which this case comes to us is of significance. First of all, the plaintiffs sued no ministerial officers; they sued the City of Glendale and five individuals identified as “the duly elected councilmen,” members of the “governing body” of the City of Glendale. No other persons, particularly none with ministerial as distinguished from legislative duties, appeared in the action at any time.
Secondly, the trial court issued a writ of mandate “directing the respondents and each of them [i.e., the city and the duly elected councilmen] to proceed at once to provide salary and wage increases to petitioners . . . .”
And finally, in their petition for hearing the petitioners seek mandate to enforce a memorandum “executed by the City of Glendale,” not mere performance of a duty by an identified ministerial public servant.
I
The majority have cited no authoritative cases in which a city and its legislative body have been mandated to adopt an ordinance, relating to salaries or to any other subject. The reason there are no such appellate cases is elementary: adoption or rejection of an ordinance has always been recognized as an act of legislative discretion and courts may not interfere with that legislative function. Each councilman has his electorally bestowed right to vote “aye” or “nay” on any proposal pending before the body. Perhaps, as here, the city and its governing legislators should have honored an obligation, but they cannot be compelled to do so by mandate of a court.
Let us review the cases cited by the majority to purportedly support their conclusion that a city and its councilmen may be ordered to enact a specified ordinance. In Tevis v. City and County of San Francisco (1954) 43 Cal.2d 190, 194, members of a commission, the secretary of the civil service commission and the controller “were directed to certify and approve payrolls.” This was clearly a ministerial act, but, the court continued at page 200, city officials “may not be
Flora Crane Service, Inc. v. Ross (1964) 61 Cal.2d 199, concerned mandate against thе city controller because he had failed to perform what the court found to be a ministerial duty (id. at p. 204). To the same effect is San Francisco v. Boyd (1941) 17 Cal.2d 606; involving an employment contract, the mandate suit was not directed to the city or its legislative body, but against the controller, a ministerial officer. Similarly in Ackerman v. Moody (1918) 38 Cal.App. 461, the city auditor, not the City of San Diego or its council, was ordered by mandate to certify a recall election.
The majority, in footnote 24, desperately attempt to find some authority for courts to mandate legislative bodies. They miss the target. Sanders v. City of Los Angeles (1970) 3 Cal.3d 252, and Sanders v. City of Los Angeles (1967) 252 Cal.App.2d 488, arose out of the same circumstances. The courts found that a ministerial officer had failed to perform his charter-required function. “As the adviser of the committees and the council and as the responsible official of the city, the City Administrative Officer failed utterly to perform his duties.” (Id. at p. 493 of 252 Cal.App.2d.) He, and several administrative departments—recreation and parks, library, retirement system, pensions—were then directed to perform thеir ministerial duties.
In Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 632, the court declared that the board of supervisors failed to perform its duty, but found only that the board has “a quasi-judicial, non-legislative, fact-finding function preceding the performance of the indicated legislative act.” (Italics added.) It was that nonlegislative function the board was mandated to perform.
It is true that we ordered the board of supervisors to redistrict supervisorial districts in Griffin v. Board of Supervisors (1963) 60 Cal.2d 318. I point out, however, that this court obviously has had second thoughts about the propriety of such an order,
Thus it is abundantly clear that appellate courts do not order a political subdivision as an entity, or its legislative body, to act or to refrain from acting in any specified manner.
Tandy v. City of Oakland (1962) 208 Cal.App.2d 609 [25 Cal.Rptr. 429], is a case in рoint. Plaintiffs sought to mandate the city council to rezone their property on a theory that the current zoning ordinances were unconstitutional as applied. The court held that such ordinances “are entirely within the discretion of the municipal legislative body” and that “a court cannot substitute its judgment for that of the municipality” (id. at p. 612). To the identical effect is Johanson v. City Council (1963) 222 Cal.App.2d 68, 72 [34 Cal.Rptr. 798].
II
The majority seem to assume that a mere ministerial act, performed by unidentified “appropriate city officials” (ante, p. 346), will provide the petitioners with the remedy they seek. The assumption is unjustified.
As alleged in the complaint and as found by the trial judge, on September 29, 1970, the city council adopted salary ordinance No. 3921, which, said the trial court, “did not provide increases in salaries and wages” based upon the purported formula. The adoption of that ordinance was clearly a legislative act, as, indeed, is the passage or rejection of any ordinance. If there are to be any other or different salary provisions, ordinance No. 3921 must be repealed by the city council and another ordinance adopted in its stead. Such action will also be strictly legislative in character.
That brings us back to square one: there is no authority for this court, or any court, to direct how the city councilmen, individually or collectively, are to vote on any measure proposed to repeal ordinance No. 3921. Pursuant to a bargained understanding, the councilmen may
The procedure employed by the Court of Appeal in Martin v. County of Contra Costa (1970) 8 Cal.App.3d 856, and adopted by the majority here, is untenable. The court there conceded “the general principle that the courts have no power to compel the performance of a legislative act” and that the petitioners asked for mandate to compel the city “to enact a county ordinance which compensates and provides benefits for petitioners” (id. at p. 865). It then proceeded to direct joinder of ministerial officers. How, it must be asked, can the ministerial officers secure enactment of a county ordinance as prayed? The Martin court gives us no clue, nor do the majority advise us here how the unidentified ministerial officers, at this late date to be amended into the case, are to undertake the legislative task of repealing ordinance No. 3921 and adopting another measure in its place.
III
Finally, I am compelled to make an embarrassing inquiry. How do my learned colleagues propose to enforce their order?
Naturally it is to be hoped that all good citizens will accept a final judicial determination of their rights and duties. But let us assume arguendo that the Glendale City Councilmen are intransigent, that they steadfastly refuse to vote to repeal ordinance No. 3921 and to adopt another salary ordinance in its stead. Are my colleagues prepared to cite the entire legislative body for contempt of their order? (See, e.g., City of Vernon v. Superior Court (1952) 38 Cal.2d 509, 519-520 [241 P.2d 243].) I would hope not. Yet the potential need to do so demonstrates one of the pitfalls when the judiciary attempts in any manner to dictate how the legislative process is to function.
In the final analysis, this is not a labor or salary case nor is it litigation over a contract. This is purely and simply an issue of separation of powers. I, for one, am unwilling to embark upon a murky project of ordering legislative members to adopt an ordinance, no matter how desirable I may believe the ordinance to be.
The petition of defendants and appellants for a rehearing was denied October 30, 1975. Mosk, J., was of the opinion that the petition should be granted.