*1 Dist., No. 17631. Fourth Two. Div. Dec. [Civ. 1977.] EMPLOYEES PUBLIC OF COUNTY, INC., RIVERSIDE Plaintiff Respondent, al.,

COUNTY OF et RIVERSIDE Defendants and Appellants. *3 Counsel Sullivan, T. Jr., Counsel,

Ray Broiles, and Steven A. County Deputy Counsel, for Defendants County and Appellants. Welebir, Brunick & and William J. Brunick for Plaintiff and Taylor Respondent.

Opinion TAMURA, P. J.This involves the Acting appeal representation rights under the Act (hereafter supervisory employees Meyers-Milias-Brown Act; Code, MMB Gov. et are § Two (1) questions seq.).1 presented: Does MMB Act board of to meet require county supervisors and confer with a recognized employee organization regarding wages, hours other terms and conditions of of its members who are a rule supervisory employees? May county validly adopt which would prohibit recognized employee organization meeting with the board of on behalf of member conferring supervisors below, For reasons we supervisory positions? expressed answer the first in the affirmative and the second in the question negative. Act,

The facts are not in Pursuant to the MMB the Board of dispute. of Riverside (board) relations County Supervisors adopted employee rules and for the (ERR) resolution prescribing regulations implementa- 1All references to the Government Code unless otherwise indicated. statutory a number of the state The ERR established tion of law. employee a unit units “supervisory emplo- representation including composed functions, substantial major managerial yees employees having control, for the administrative performance primary responsibility Public (ERR, 8-a-l.) function.” an essential § Employees specific exclusive is the (PERC) Riverside Inc. County, recognized units of most of county employees. representative unit, PERC as In voted have there- their exclusive PERC and bargaining representative. entered into after a memorandum of understanding respect 1975-1976. for the fiscal 1974-1975 and *4 supervisory employees years for and with those two the board met conferred Accordingly, years and terms PERC’s to the hours other representatives respect wages, However, the and conditions of of employees. supervisory employment a the of board PERC’s for renewal of memorandum rejected request and, of the current declined understanding expiration agreement, upon in the to meet and confer with PERC concerning employees supervisory Instead, unit. the to the ERR which an amendment board proposed would from and organization meeting conferring prohibit any employee on with the board of behalf supervisory employees.

PERC the mandate in the instituted instant thereupon proceeding court to the board confer with it the to meet and as superior compel Meanwhile, of in the unit. the representative supervisory board, a amendment following hearing, following public adopted ERR: “d. No be to meet and shall organization permitted employee on hours other terms and of confer conditions wages, employment executive, in an or confi- supervisory any person serving management, dential position.”

The answer to for writ of mandate set a county’s petition up The MMB defense: Act does not (1) require two-prong governing to meet confer with of and public agency body hours, and and other terms of conditions respecting wages, organization the amend- supervisory positions, PERC ERR on ment behalf negotiating precludes submission cause on employees. Following rendered a written court memorandum arguments, pleadings it decision in which decided that the board intended was required and confer with PERC with meet respect supervisor

that fact, ERR amendment to the was invalid. conclu- Findings sions law and were entered and this judgment accordingly appeal ensued.

I Supervisory Employees’ Right Representation Fire contends Union Fighters City of 12 Cal.3d 608 526 P.2d our court 971], Vallejo, Cal.Rptr. high held that Act MMB does not confer representation rights Thus, the threshold issue is supervisory employees public agencies. whether the result advocated compels Vallejo county. involved the aof charter

Vallejo interpretation city provision requiring arbitration of labor at (Id., In 612-613.) disputes. pp. negotiations between fire union and the over the terms of a new fighters city contract, the failed on number issues. (Id., parties agree In accordance with the charter, procedure provided disputed *5 issues were submitted to mediation and fact and when those finding, failed to issues, resolve the the procedures to submit disputed city agreed all issues to arbitration Reduction,” “Personnel “Vacancies and except Promotions,” Hours,” “Schedule of and “Constant Procedure.” Manning (Id.) In a mandate to the to submit the proceeding compel city disputed arbitration, issues to the trial court found in favor of the and union entered the to to all arbitration on judgment commanding city proceed issues, the four which the maintained were nonarbitrable. including city at The (Id., 612.) (Id.) p. city appealed.

The charter that the had Vallejo provided city employees right conditions, “on matters of hours and but not on negotiate working wages, merits, matters the or service or involving necessity, organization any 614, .. .”2 at fn. court four (Id., The the 5.) activity. p. analyzed high issues and that full concluded were all some in disputed they negotiable, and others to a limited (Id., extent. at 623.) p. 3504 of MMB the 2Section Act contains similar language respecting scope It “The relating shall include all matters bargaining. provides: representation scope to, relations, not limited conditions but employer-employee including, hours, however,-that and other terms and conditions of

wages, employment, except, merits, shall not include or necessity, consideration scope service or law or executive order.” any activity provided by organization

887 court’s The critical on which the relies appears language and Promo- discussion of the of the issue of “Vacancies negotiability fire The affected tions.” determined that union’s court proposals and as such related for advancement fighters’ job hopes security 618.) at (Id., terms and conditions of negotiable employment. p. However, not this court added: “The contends that city proposal may fire chief. or of deputy apply appointment promotion position charter not contain does any Although provision Vallejo unit, determining managerial proper bargaining supervisory units under excluded from routinely bargaining (10th v. Inc. National Relations Act. Gold (N.L.R.B. Labor Dairy, Spot 125; 1970) Co. Cir. 432 F.2d see N.L.R.B. Bell Aerospace we conclude 1757]; U.S. 267 L.Ed.2d S.Ct. by analogy, as to under the charter the union can claim no right bargain supervisory added.) italics positions.(Id.,

The we have underscored in was language quotation Vallejo obiter The actual that the dictum. was of “Vacancies and holding subject Promotions” was insofar as it negotiable except pertained appoint- chief, ment or to the if in fire fact that promotion position deputy Thus, was found to be (Id.) position supervisory. dispositional section of its the court stated: “The as to Vacancies opinion, proposal Promotions is arbitrable. arbitrators shall hear the additionally whether facts to determine fire chief is a position deputy so, and thus excluded from the unit. one If bargaining Vacancies and cannot to the Promotions fire chief proposal apply deputy (Id., position.” *6 thus the of in Redondo Beach Police

We with Court Appeal agree Beach, Redondo 68 595 Assn. v. Cal.App.3d City [137 of Officers of “the issue was the not that in 384], Vallejo scope bargaining, Cal.Rptr. units, In under MMB. a the of resolving composition bargaining of (12 arbitration threshold issue proceedings concerning scope court, NLRA, 614), at on to out Cal.3d analogies pointed p. relying excluded from or routinely ‘supervisory managerial employees Relations Act.’ at (Id., Labor units under the National bargaining not could include such It 618.) does not follow that Legislature p. units; Police Assn. (Redondo in . . .” Beach bargaining Officers City Beach, 595, 598.) 68 v. Redondo Cal.App.3d supra, of 888

Unlike the Act Labor which ex- Relations Management expressly as a cludes individual from the definition of “any employed supervisor” the term the MMB Act (29 152(3)), U.S.C.A. defines § “employee” as . . . “public by employee” “any person employed any public agency or those elected vote to office excepting persons by popular appointed by 3501, Thus, Governor of this state.” subd. in (§ (d).) decision filed, six rendered months after was Vallejo Organization Deputy Mateo, v. 331 San 48 210], Cal.Rptr. County Cal.App.3d [122 Sheriffs denied, the Court observed: federal hearing Appeal “Contrary virtue in broad definition of section by practice, ‘public employee’ 3501, subdivision which excludes elected (d), officials those only Governor, MMB extends appointed organizational represen- tation without rights managerial regard their in the administrative The act is about their silent position hierarchy. The California thus minimized the unit placement. Legislature potential that, actual conflict of interest as mentioned in NLRB v. Bell 267, 141-142, 134, 416 271-272 L.Ed.2d 94 Co. U.S. Aerospace [40 1757], S.Ct. was the basis for total exclusion of management that obtains under federal law. (Organization omitted.]” [Fn. Mateo, v. San 48 Cal.App.3d Deputy County supra, Sheriffs of 338.) Placentia, Placentia Fire Fighters City Cal.App.3d on which 126], relies, also did not involve the Cal.Rptr. here The central issue in Placentia whether question presented. was trial court’s that the did meet and confer in faith finding city good the union fire representing was department employees supported by (Id., 21.) evidence. at One of the union’s numerous contentions on p. was that the initial exclusion of city’s two nonunion fire appeal captains unit demonstrated bad faith. bargaining (Id., that contention the Although court made reference discussing passing “ that the ‘union can claim no language Vallejo right bargain ” as to the contention was because the positions,’ supervisoiy rejected showed evidence that the was issue on the city willing bargain fire inclusion of the two was unit and even captains bargaining as to their inclusion condition of overall settlement. agree willing *7 Therefore, court concluded there (Id.) was substantial evidence to the trial court’s that the did meet and in confer finding city good support that faith on issue. Placentia does not hold the MMB (Id., that Act not accord to does representation rights supervisory employees. In view of the all-inclusive definition of the term statutory “public 3501, (§ (d)), subd. to employee” right granted recognized employee to their in their members relations organizations represent employment with (§ 3503), and the aof public agencies obligation agency public “meet and confer in faith” with good representatives recognized (§ 3505), the MMB Act employee organizations requires governing of a to meet and body confer with a public agency recognized employee terms and conditions of organization regarding supervi- employment who are members of the sory employees organization. employee (§ 3505.)

That it is the of this state to accord policy representation rights public is further confirmed supervisory positions by recent enactment of the state Relations Act (Stats. Employer-Employee 1977, ch. ch. 10.3 with to div. 4 of tit. adding § [commencing 3512] 1 of the Gov. excluded Code). from other Though act provisions state (§ 3522), to be supervisory employees granted right represent- ed of their by own employee organization matters choosing relating to terms and conditions of employment.3

II Validity to ERR of the Amendment We next address the contention its refusal to meet county’s and confer with PERC as in the representative was amendment to the ERR: supervisory unit by justified following “(d) No shall be to meet and confer on employee organization permitted form, 3Section 3522.3 shall have the provides: “Supervisory employees right join, in the activities of of their own participate for the employee organizations choosing on all representation matters of relations purposes as supervisory employee-employer in Section set forth 3522.6. have the also shall to refuse Supervisory employees right activities of and shall have the participate (cid:127)join employee organizations right themselves in their relations represent individually employment public employer.” 3522.5 Section “The provides: scope supervisory shall all include matters conditions relating supervisory employee- hours, relations and other terms and conditions of employer including wages, employ- ment.” Section 3522.6 the state shall meet and provides: request, confer with “Upon employee ‘Meet and confer’ means that organizations representing supervisory employees. they shall consider as as the deems reasonable such as are fully employer made presentations on behalf of its members organization at a prior arriving determination of or course of action.” policy *8 890 hours or other and terms of for conditions

wages, employment any executive, in an or confidential person serving management, supervisory position.”

The the board’s to on amendment county posits adopt power to it 3507 section “to reasonable rules and granted authority adopt ... of administration relations” regulations employer-employee and more on the section specifically power granted public agency by 3507.5 to reasonable rules and for the “adopt regulations providing of the and confidential designation management public such from agency restricting representing any employee which other on organization, represents public agency, within matters Neither the rule- scope representation.” general section 3507 nor the more making power granted by specific authority 3507.5 section the board to the amend- granted by empowered adopt ment. the ERR

The board’s amendment would deny employ- supervisoiy ees all and as such is inconsistent with the rights patently We what we said MMB Act. in Beach Police repeat Huntington Officers’ Beach, Assn. v. 492 City 893], Huntington Cal.App.3d Cal.Rptr. under 3507: section concerning rule-making power public agencies did not intend to all of labor “Although Legislature preempt aspects sector, we relations in cannot attribute to it intention to public local entities to which would frustrate the adopt regulations permit declared the MMB Act. Were we to purposes policies uphold would, in local entities as Professor Grodin question, city’s regulation observed, be ‘free rules adopt prohibiting employees joining unions, decline and to refuse to meet recognition any organization, confer on matters recognized organizations pertaining short, relations—in undercut which the very purposes to serve. Such an act is inconsistent with the purports interpretation statute as declared in the and with the general objectives preamble which in of the sections.’ mandatory appears (Grodin, language many Public Act Employee Bargaining Meyers-Milias-Brown California: Courts L.J. In the words 724-725.) Hastings Grodin, the Professor reserved to local rules power agencies adopt was intended to local permit regulations supplementary regulations with, of, which ‘consistent and effectuate the declared purposes (Grodin, statute as whole.’ supra, (Hunting- [Fn. omitted.]”

891 Beach, 58 v. Beach Police Assn. ton supra, City Huntington of Officers’ 492, 501-502.) Cal.App.3d At the that the amendment was oral only argument county suggested an whose intended organization membership proscribe employee are in includes rank and file from also members who representing It that We do so read amendment. not positions. provides supervisory employee organization” may represent supervisory employees. “[n]o However, as

even were it construe the amendment possible suggested it still be The “the would invalid. statute county, by gives employees form, and in of the activities right join, participate employee their own of on organizations choosing purpose of of all matters relations. ...” italics (§ added.) employer-employee Nor does section 3507.5 board the amendment. In permit adopt decision, memorandum of intended trial that his judge rejected contention, “A that of section does not stating: reading [§ 3075.5] me, however, that it so far as to persuade goes permit regulation of such from with prohibiting representatives employees bargaining At it most county. give appears only agency authority and confidential and to restrict them management employees designate certain that employee organizations. Nothing representing suggests 3505 it was intended to override the in section that requirement must meet and confer in faith good governing body public agency terms and conditions of hours and other wages, employment.”4 regarding that We add as the views would We expressed. except agree rules and to draft reasonable to enable a agency 4Section 3507.5 was designed public between conflict interest of the section to avoid potential within the scope regulations terms conditions of in negotiating nonsupervisory employees' supervisory 433, 439, City Monica, (See 442 Cal.App.3d Reinbold Santa employment. 874].) Cal.Rptr. Act the Relations Legislature State We note in the new Employer-Employee Section 3522.2 provides: dealt of interest with the conflict problem. directly in “(a) on handling grievances shall not employees participate Supervisory shall not participate of nonsupervisory employees. Nonsupervisory behalf employees. on behalf of supervisory the handling grievances “(b) in meet and confer on shall sessions not participate Supervisory shall not Nonsupervisory employees participate of nonsupervisory employees. behalf employees. behalf of meet and confer sessions on (b) (a) shall “(c) not be construed to the in subdivisions apply prohibition staff of organization. paid “(d) vote on of ratification or questions shall not rejection Supervisory behalf reached on understanding nonsupervisory employees.” memorandums of statute,5 otherwise was section 3507.5 not provided expressly *10 intended to an basic permit public agency nullify right granted section and to be employee by join represented by recognized own (See his Reinbold employee organization choosing. City of Monica, 433, Santa supra, Cal.App.3d

We ERR conclude that the amendment to the exceeds the rule-making is, therefore, of the board and void. power is affirmed. Judgment

Morris, J., concurred. I concur in all of the KAUFMAN, J. majority opinion except II which to hold could not enact portion part purports validly effect that ordinance not be supervisorial may the same which represented by employee organization represents As I rank file. to that dissent. portion indicates,

theAs the amendment to the majority opinion correctly relations resolution does not to and adopted by county purport cannot be construed of both units same prohibit representation by of an ordinance employee organization. question validity which does so is therefore not at issue this case and should provide not be decided. While the of Government Code section 3502 would language the conclusion reached it is not appear support by majority, conclusive. The has not been briefed necessarily question parties, and its resolution should be deferred until decision aof case in which its resolution is to the (See decision. 6 Witkin Cal. necessary Procedure (2d 223, ed.) 4212-4213.) § Appeal, pp. for a

Appellants’ petition Court was denied hearing by Supreme Richardson, J., 1978. was of the that the February opinion petition should be granted. (§ 3508.) to law pertains

5The enforcement exception positions.