Filed 11/13/13 Long Beach Police Officers Assn. v. City of Long Beach CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


LONG BEACH POLICE OFFICERS                                            B246306
ASSOCIATION,
                                                                      (Los Angeles County
         Plaintiff and Respondent,                                    Super. Ct. No. NS026076)

         v.

CITY OF LONG BEACH et al.,

         Defendants and Appellants.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michele E. Flurer, Judge. Reversed.
         Robert E. Shannon, City Attorney and Christina L. Checel, Deputy City
Attorney for Defendants and Appellants.
         James E. Trott for Plaintiff and Respondent.



                                __________________________________
                                INTRODUCTION
      The City of Long Beach, a municipal corporation, and James McDonnell,
the City of Long Beach’s chief of police (the City), appeal from a judgment
granting a permanent injunction in favor of respondent Long Beach Police Officers
Association (POA). The judgment prohibited the City from changing a long-
standing practice of allowing motor patrol officers to take home their work
vehicles, unless the POA agreed to the change. The City contends the trial court
erred in determining that a collective bargaining agreement prohibited the City
from changing the practice. The City further contends that the POA waived its
right to negotiate about the proposed change pursuant to the Meyers-Milias-Brown
                                                       1
Act (MMBA), Government Code section 3500 et seq. We agree with the City and
reverse.


                  FACTUAL AND PROCEDURAL HISTORY
      A.     Take-Home Vehicle Policy
      For over 60 years, the City allowed its motor patrol officers to commute
between home and work on city-owned police motorcycles. On February 10,
2003, the City promulgated a revised “Take-Home Vehicle Policy,” applicable to
all city employees. The policy, codified at Administrative Regulation 4-2, sought
to reduce the number of city vehicles garaged at employees’ homes. It specifically
provided that “[p]olice motorcycles will be issued to police officers as take-home
vehicles when the City is unable to garage the motorcycles for security and
weather protection.” The policy also required an annual review of all take-home
vehicles. “Justification for each vehicle, including mileage verification, will be
supplied at that time.” Despite promulgating the revised policy, the City did not

1
      All further statutory citations are to the Government Code.

                                          2
change its practice of allowing motor officers to take home their work vehicles; it
maintains that it lacked the necessary facilities to garage the motorcycles until
2011.
        B.    The Memorandum of Understanding
        In March 2009, the City and the POA opened negotiations over the financial
compensation of the City’s police officers. The parties reached an agreement on a
memorandum of understanding (MOU), effective October 1, 2009 to September
30, 2014. In the MOU, the City and the POA stated that they intended the MOU to
cover “the wages, hours and working conditions of the employees represented by
the [POA].” The MOU acknowledged, however, that “there exist[] within the
Police Department, personnel policies and procedures, general orders,
departmental policies and rules and regulations. Except as specifically modified
by this MOU, these rules and regulations, and policies and any subsequent
amendments thereto shall be in full force and effect during the term of this MOU.
Before any new or subsequent amendments to these policies or departmental rules
and regulations directly affecting wages, hours and terms and conditions of
employment are implemented, the City, through the Police Chief, shall meet in
accordance with [the MMBA,] Government Code section 3500 et seq., with the
[POA] regarding such changes.” (MOU, Article One, Section VII.)
        The MOU contained a management rights clause in Article One, Section VI,
wherein the City retained its right to make fundamental managerial or policy
decisions. That clause also required the City to meet and confer with the POA
“over the impact of the exercise of a right of management upon the wages, hours,
terms and conditions of employment.”
        In separate articles, the MOU detailed the officers’ “Salaries and
Compensation,” “Paid Time Off Benefits,” “Health Insurance Benefits,”


                                           3
“Retirement” benefits, and “Other Benefits and Working Conditions.” The MOU
also established a grievance procedure and a transfer policy.
      Finally, in Article Nine, Section I, the MOU provided:
      “A. It is agreed that this constitutes the full and complete [MOU] between
      the parties, and that all other matters presented by the parties during the
      conduct of the meet and confer process which result[ed] in this [MOU] are
      withdrawn by both parties as matters in dispute for the term of this [MOU],
      and may be raised again by mutual consent only.

      “B. This section in no way inhibits or restricts the City or the [POA] from
      the lawful conduct of the meet and confer process regarding issues not
      presented during these negotiations.”

      The MOU specifically mentioned motor officers only in Article Two,
“Salaries and Compensation.” Under “Section II - Skill Pay,” it provided that
motor officers would be paid $350 per month for their skill in driving motorcycles.
Nothing in the MOU referred to the take-home vehicle policy, and the parties agree
that the practice of allowing motor officers to take home their work vehicles was
never raised by any party during negotiations.
      C.     Further Discussions About Take-Home Policy
      On October 19, 2011, Deputy Chief of Police Robert Luna and Commander
Richard Rocchi met with motor officers and informed them that the police
department was considering changing the take-home vehicle policy starting in
January 2012. Deputy Chief Luna stated that the department was having difficulty
justifying the practice of allowing officers to take home their work vehicles. He
asked officers for, and received, ideas on how to justify the associated costs to city
             2
management.

2
       According to City estimates, approximately 40 percent of the maintenance
and fuel budget allocated for police motorcycles is attributable to the motor
officers’ commute to and from work. In fiscal year 2011, the amount was

                                          4
      The next day, POA President Stephen James contacted Deputy Chief Luna
and informed him that the take home privileges were part of the motor officers’
compensation package, and that any change to compensation was subject to
collective bargaining. Deputy Chief Luna then spoke with Deputy City Attorney
Christina Checel. In Checel’s opinion, “it was likely a meet and confer issue since
it impact[ed] a longstanding past practice of allowing motor officers to take their
work vehicle home.” Thereafter, on November 8, 2011, on behalf of the
department, Deputy Chief Luna sent a letter to POA President James requesting a
meet and confer “regarding the ‘take-home’ portion of the Motor Patrol Detail’s
functions.”
      On November 21, 2011, on behalf of the POA, its general counsel, James
Trott, responded by declining to meet and confer. He stated that the POA had
agreed to an MOU two years earlier, had reopened the MOU and given away an
eight percent pay raise months earlier, and did not wish to reopen the issue of the
“long [standing] policy and clearly established past practice of allowing [motor]
officers to [take their bikes home after work].” Trott noted that the MOU
                                                                      3
contained a “‘zipper clause’” in Article Nine, Section I of the MOU. Based upon
the zipper clause, Trott declined “the request at this time to meet and confer.”
      On December 16, 2011, Checel sent a letter to Trott, making a second
request to meet and confer. In the letter, Checel stated that the City did not


approximately $121,152. In fiscal year 2012, it was $111,243. In addition, the
City is responsible for any injuries sustained by motor officers during their
commute. In fiscal year 2012, the City spent $80,235 on medical expenses for
three officers injured during their commutes, and it anticipated spending a further
$150,000 for these officers’ medical treatment.
3
      Trott’s November 21 letter indicated that the “‘zipper clause’” he referred to
was paragraph A of Section I of Article Nine.

                                          5
“disagree” with Trott’s assertion that “the motorcycles the officers take home are
tantamount to compensation, thereby rendering this issue a mandatory subject of
bargaining.” She also stated that the City agreed that “allowing motor patrol
officers to take home City owned motorcycles is a long-standing past practice and
a perk of employment,” but disputed Trott’s characterization of the practice as a
“right.” Checel disagreed that the zipper clause in the MOU prevented the City
from meeting and conferring over the take-home vehicle policy, noting that the
“past practice of allowing officers to take home City owned motorcycles is not
contained within the MOU.” She further stated: “Importantly, both the City and
the union have an obligation to meet and confer in good faith. Where an employer
offers reasonable written notice and provides the union an opportunity to respond,
but the union fails to respond, the employer may unilaterally act. . . . [¶] While
your letter declining the City’s request to meet and confer is a waiver of your rights
under the MMBA, the City makes a second request that the POA meet and confer
on the proposed change in practice regarding City owned motorcycles.”
      On December 21, 2011, Trott responded by again declining to meet and
confer. He stated that the “refusal to agree to this last meet and confer is premised
on the time tested and usually reliable notion of ‘enough is enough.’” Trott
reiterated his assertion that the zipper clause in the MOU permitted the POA to
reject the City’s request to meet and confer. He stated that “the subject of motor
compensation was discussed by our clients during negotiations, an agreement
reached, and no further discussions were had, such as the taking of their
motorcycles[;] hence the issue was laid to rest.”
      Thereafter, the City summarily changed the take-home vehicle policy,
effective September 28, 2012.
      D.     Procedural Background


                                          6
      On September 21, 2012, the POA filed a verified complaint for a temporary
restraining order, a preliminary injunction, a permanent injunction, and a writ of
mandate. In the complaint, the POA sought to prohibit the City and the police
chief from changing the “take home policy” during the term of the MOU or until
such time as the parties agreed to a change. The complaint alleged that the take-
home vehicle policy had been in place for over 60 years, and that the policy
provided “an economic benefit for [the motor] officers.” It also alleged that during
the negotiations on the current MOU, “the issue of ‘motors’ was discussed by each
party on multiple occasions and in fact a change was made over the previous MOU
to grant motor officers an additional amount of $25.00 per month for skill pay.”
The complaint further alleged that the POA had declined to meet and confer with
the City on the issue of the take-home vehicle policy on two separate occasions in
November and December 2011 because, “[h]aving just completed the contract re-
opener negotiations and giv[en] back to [the] City items of a monetary nature, [the]
POA was no longer in a position to discuss further give-aways to [the] City.”
      The City filed an opposition, arguing (1) that it was not required to meet and
confer to implement the change in the take-home vehicle policy, as the change was
a fundamental managerial or policy decision; (2) that if it was required to meet and
confer under the MMBA, it had met its obligations by making two requests to meet
and confer; and (3) that the zipper clause in the MOU did not authorize the POA to
refuse to meet and confer.
      On September 27, 2012, the trial court held a hearing on the complaint. On
October 10, 2012, the court issued an order granting the POA’s request for
injunctive relief. A judgment granting a permanent injunction was entered the
same day. In the judgment, the court found that “compensation for motor officers
was discussed during contract negotiations pertaining to the current [MOU,] and
the practice of motor officers being allowed to take their motorcycles home is a

                                          7
long standing past practice.” The court further found that the POA was “within
[its] right, under the zipper clause of the [MOU], to refuse the request to meet and
confer by the City of Long Beach, and the 2003 policy outlining care and storage
of motorcycles was never bargained for with [the POA].” The City timely
appealed from the judgment.


                                   DISCUSSION
      A.     Standard of Review
      The parties disagree on the applicable standard of review. The City
contends the case should be reviewed de novo, whereas the POA contends the
substantial evidence standard of review applies.
      Generally, a permanent injunction is reviewed on appeal for the sufficiency
of the evidence to support the judgment. (Art Movers, Inc. v. Ni West, Inc. (1992)
3 Cal.App.4th 640, 646.) However, “[w]hether a permanent injunction should
issue becomes a question of law where the ultimate facts are undisputed and in
such a case the appellate court may determine the issue without regard to the
conclusion of the trial court.” (Eastern Columbia, Inc. v. Waldman (1947)
30 Cal.2d 268, 273.) Moreover, where the propriety of the injunctive relief
depends upon a question of law -- such as statutory construction or interpretation
of a contract -- we independently review the trial court’s decision. (See Alliant Ins.
Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1300 [reviewing order
granting preliminary injunction de novo, as its validity depended upon statutory
construction]; see also City of El Cajon v. El Cajon Police Officers’ Assn. (1996)
49 Cal.App.4th 64, 70-71 [interpretation of MOU a question of law].) Here, the
propriety of the permanent injunction hinges on an interpretation of the MOU and
the MMBA. Accordingly, we independently review the trial court’s grant of a
permanent injunction.

                                          8
      B.     The MOU and Its Zipper Clause
      The trial court determined that the City’s decision to change the take-home
vehicle policy violated the MOU. Specifically, the court determined that the
zipper clause prevented the City from changing the take-home vehicle policy
without the consent of the POA, and that the POA was within its rights under the
zipper clause to decline to meet and confer about the proposed change.
      A zipper clause “seeks to close out bargaining during the contract term and
to make the written contract the exclusive statement of the parties’ rights and
obligations.” (NLRB v. Tomco Communications, Inc. (9th Cir. 1978) 567 F.2d 871,
879; City of Fresno v. People ex rel. Fresno Firefighters (1999) 71 Cal.App.4th
82, 98 [“‘general purpose of a zipper clause is to “zip up” the collective bargaining
agreement’”].) A reviewing court “will look to the language of [a] particular
zipper clause and give it the breadth the language warrants.” (Los Rios Classified
Employees Association v. Los Rios Community College Dist. (1988) PERB Dec.
No. 684 at p. 16.)
      In referring to the zipper clause, the POA apparently refers to paragraph A
of Section I of Article Nine of the MOU. The entire section consists of only two
paragraphs, and there is no serious contention that they should not be read together.
The section provides:
      “A. It is agreed that this constitutes the full and complete [MOU] between
      the parties, and that all other matters presented by the parties during the
      conduct of the meet and confer process which result[ed] in this [MOU] are
      withdrawn by both parties as matters in dispute for the term of this [MOU],
      and may be raised again by mutual consent only.
      “B. This section in no way inhibits or restricts the City or the [POA] from
      the lawful conduct of the meet and confer process regarding issues not
      presented during these negotiations.”

      Under Section I, the parties agreed to the following three provisions. First,
as set forth in paragraph A, the MOU would be the exclusive statement of the

                                          9
parties’ rights and obligations. Second, as to “matters presented by the parties
during the conduct of the meet and confer process,” those matters would be
withdrawn as matters in dispute during the term of the MOU and could be raised
again only by mutual consent. Finally, as set forth in paragraph B, as to matters
“not presented during [the] negotiations,” both the City and the POA were free to
utilize the meet and confer process. It is undisputed that the long-standing practice
of allowing motor officers to take home their work vehicles was never presented or
raised during the negotiations over the MOU. Thus, under paragraph A, the
practice was not withdrawn as a disputed matter during the term of the MOU.
Moreover, under paragraph B, as an issue that was “not presented during [the
MOU] negotiations,” the take-home policy remained one which the City or the
POA could lawfully negotiate, pursuant to the meet and confer process.
      The POA contends -- and the trial court determined -- that the City could not
unilaterally raise the take-home vehicle policy because compensation for motor
officers was raised during negotiations. In essence, the court adopted the POA’s
position that if any form of compensation was discussed, all issues affecting
compensation were necessarily zipped up during the term of the MOU. We
disagree, as the POA’s broad interpretation of the zipper clause is inconsistent with
other provisions in the MOU.
      First, as noted, the management rights clause permitted the City to make
fundamental managerial or policy decisions, even if those decisions affected the
officers’ wages, hours, and terms and conditions of employment. Second, aside
from fundamental managerial or policy decisions, the parties agreed that a
preexisting policy, rule or regulation that impacted the officers’ wages, hours, and
terms and conditions of employment could be changed during the term of the
MOU, as long as the City complied with the MMBA. Thus, the zipper clause
cannot be interpreted to preclude the City from making any change to a long-

                                         10
standing practice that affected the motor officers’ financial well-being, if that
practice was not presented by either party during the negotiations.
      The POA’s reliance on International Union, United Autoworkers v. NLRB
(D.C. Cir. 1985) 765 F.2d 175 is misplaced. There, the federal appellate court
stated, without citation to authority, that “[g]enerally speaking, a zipper clause has
the effect of incorporating all possible topics of bargaining -- both those actually
discussed and those neither discussed nor contemplated during bargaining -- into
the contract.” (Id. at p. 180.) The court’s statement, however, was based upon the
actual language of the zipper clause at issue in the case. That zipper clause
provided that each party “waives the right, and each agrees that the other shall not
be obligated, to bargain collectively with respect to any subject or matter referred
to or covered in this Agreement, or with respect to any subject or matter not
specifically referred to or covered in this Agreement, even though such subject or
matter may not have been within the knowledge or contemplation of either or both
of the parties at the time they negotiated or signed this Agreement.” (Id. at p. 182,
fn. 27.) In contrast, here, the zipper clause contains no similarly broad language.
Indeed, section I makes clear that only those matters “presented” during the MOA
negotiations are zipped up; matters “not presented” during the course of the MOU
negotiations are not zipped up, but may be the subject of negotiations pursuant to
the meet and confer process of the MMBA.
      Nor does the zipper clause authorize the POA to refuse to meet and confer
with the City about the proposed change to the take-home vehicle policy. The
MOU specifically provides that the zipper clause does not prevent either party
from using the meet and confer process to negotiate “issues not presented during
[the] negotiations.” Moreover, the MOU anticipated that the parties would use the
meet and confer procedures outlined in the MMBA to negotiate changes to long-
standing practices that affected the employees’ wages, hours, and terms and

                                          11
conditions of employment. The MOU expressly provided that “[b]efore any new
or subsequent amendments to [pre-existing] policies or departmental rules and
regulations directly affecting wages, hours and terms and conditions of
employment are implemented, the City, through the Police Chief, shall meet in
accordance with [the MMBA,] Government Code [s]ection 3500 et seq., with the
[POA] regarding such changes.” (MOU, Article One, Section VII.) As set forth
below, the City complied with the requirements of the MMBA before attempting to
implement the change in the take-home vehicle policy.
      C.     The MMBA
      “The MMBA applies to all local government employees in California.”
(Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 812.) The
purpose of the MMBA is to “promote full communication between public
employers and their employees by providing a reasonable method of resolving
disputes regarding wages, hours, and other terms and conditions of employment.”
(§ 3500, subd. (a).) Section 3505 requires a local government employer to “meet
and confer in good faith regarding wages, hours, and other terms and conditions of
employment” with its employees’ exclusive representative. The obligation to
“‘[m]eet and confer in good faith’” is a “mutual obligation” triggered by a “request
by either party.” (§ 3505.)
      “An employer cannot change matters within the scope of representation
without first providing the exclusive representative notice and opportunity to
negotiate.” (Public Employment Relations Bd. v. Modesto City Schools Dist.
(1982) 136 Cal.App.3d 881, 900.) “Unilateral change in these areas prior to
impasse is seen as a violation of the duty to negotiate in good faith because it is
tantamount to a refusal to bargain. However, once impasse is reached, the
employer may take unilateral action to implement the last offer the union has
rejected.” (Ibid.; see also San Joaquin County Employees Assn. v. City of Stockton

                                          12
(1984) 161 Cal.App.3d 813, 818 [“the duty to bargain collectively requires the
employer to maintain the status quo without taking unilateral action as to wages,
working conditions, or benefits until negotiations reach an impasse”].)
      An employer may also unilaterally change a preexisting practice or policy if
the employees’ exclusive representative expressly waived its right to negotiate the
subject of the change pursuant to the MMBA. (California State Employees’ Assn.
v. Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 937; see also
Stationary Engineers v. San Juan Suburban Water Dist. (1979) 90 Cal.App.3d 796,
802 [under section 3504.5, defendant employer may unilaterally change certain
terms and conditions of employment where it provided prior written notice and
“plaintiffs did not appear to discuss the issues”], disapproved on another ground by
County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985)
38 Cal.3d 564.)
      In sum, under the MMBA, the City and the POA are obligated to meet and
confer in good faith on all matters within the scope of representation. The City
may unilaterally change a preexisting policy or practice that falls within the scope
of representation only when the negotiations with the POA have reached an
impasse, or where the POA has waived its right to negotiate the subject of the
change.
      D.     Change to Take-Home Vehicle Policy
      The parties dispute whether the long-standing practice of allowing motor
officers to take home their work vehicles is within the scope of representation and
subject to a meet and confer requirement before any change can be made. The
City argues that the change to the practice is a fundamental managerial or policy
decision not subject to the meet and confer requirement in the MMBA. (See
Building Material & Construction Teamsters’ Union v. Farrell, supra, 41 Cal.3d at
p. 660 [fundamental managerial or policy decision generally fall outside the scope

                                         13
                   4
of representation].) The POA contends the change is subject to the meet and
confer requirement, although it also contends that the zipper clause authorized it to
decline to meet and confer with the City. We need not determine whether the
change is a fundamental managerial or policy decision, as under the MOU the City
                                                5
was required to meet and confer with the POA.
      Here, the City satisfied its obligation to meet and confer with the POA about
the proposed change when it made two requests to meet and confer. In its second
request, the City specifically informed the POA that (1) “both the City and the
[POA] have an obligation to meet and confer in good faith,” that (2) “[w]here an
employer offers reasonable written notice and provides the union an opportunity to
respond, but the union fails to respond, the employer may unilaterally act,” and
(3) that “declining the City’s request to meet and confer is a waiver of [the POA’s]
rights under the MMBA.” Despite being fully advised of the potential
consequences of failing to meet and confer, the POA declined to do so. This
constituted a clear and unmistakable waiver of the POA’s right to negotiate the

4
        Citing a recent decision by the Public Employment Relations Board (PERB),
the City contends that where there is a preexisting take-home vehicle policy, a
local government employer need not meet and confer with the union before acting
in compliance with that policy. (See Riverside Sheriff’s Assn. v. County of
Riverside (2003) 106 Cal.App.4th 1285, 1291 [PERB decisions are persuasive in
interpreting the MMBA].) However, that decision -- Teamsters Local 150 v.
County of Sacramento (2013) PERB Dec. No. 2315-M) -- is factually
distinguishable. There, nothing suggested that the local government employer had
not bargained for the take-home vehicle policy. (Id. at p. 2.) In contrast, here, the
trial court found that the City had not bargained for the 2003 take-home vehicle
policy.
5
       As set forth above, under the management rights clause in the MOU, the
City is required to meet and confer with the POA “over the impact of the exercise
of a right of management upon the wages, hours, and terms and conditions of
employment.”

                                         14
proposed change. (See California School Employees Association v. Solano County
Community College District (1982) PERB Dec. No. 219-E, at p. 11 [waiver of
right to meet and negotiate may be shown by either clear and unmistakable
language or demonstrable behavior]; see also Stationary Engineers v. San Juan
Suburban Water Dist., supra, 90 Cal.App.3d at p. 802 [employer may change
policy after employees failed to appear to discuss proposed change despite
receiving written notice]; Stockton Police Officers’ Assn. v. City of Stockton (1988)
206 Cal.App.3d 62, 67 [union waived its right to meet and confer where public
employer gave notice of proposed change in working conditions and union failed
to timely invoke the meet and confer requirement].) After the POA twice refused
to meet and confer, the City was entitled to summarily change the take-home
               6
vehicle policy. Accordingly, the trial court erred in granting a permanent
injunction.




6
       The POA’s refusal to meet and confer also constituted a waiver of its right to
negotiate the impact of the proposed changes, as the POA did not specifically
demand to negotiate over the effects of the proposed change. (Teamsters Local
150 v. County of Sacramento, supra, PERB Dec. No. 2315-M at p. 6.)

                                         15
                                   DISPOSITION
      The superior court’s order granting a permanent injunction is reversed.
Costs are awarded to respondent.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                   MANELLA, J.


We concur:




EPSTEIN, P. J.




SUZUKAWA, J.




                                        16
