Filed 9/24/14 San Francisco Police Off. Assn. v. City and County of San Francisco CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


SAN FRANCISCO POLICE OFFICERS’
ASSOCIATION,
         Plaintiff and Appellant,
v.                                                                       A137684
CITY AND COUNTY OF SAN
FRANCISCO et al.,                                                        (City and County of San Francisco
                                                                          Super. Ct. No. CPF-10-510396)
         Defendants and Respondents.


         The Meyers-Milias-Brown Act (MMBA; Gov. Code, § 3500, et. seq.) governs
labor relations between the San Francisco Police Officers’ Association (SFPOA) and the
City and County of San Francisco (the City). By its lawsuit, SFPOA seeks to set aside
section A8.590-5(h) of the Charter of the City and County of San Francisco (Charter) as
in conflict or inconsistent with the provisions and policies and purposes of the MMBA.
After an independent review, we agree with the trial court that Charter section A8.590-
5(h) is a reasonable regulation that does not violate the provisions or the policies and
purposes of the MMBA. Accordingly, we affirm.
                        FACTUAL AND PROCEDURAL BACKGROUND
         Plaintiff and appellant SFPOA is a recognized employee organization, exclusively
representing about 2,000 sworn law enforcement officers in the police department for the
City. Defendants and respondents are the City and its Director of Human Resources
Micki Callahan.



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       The Charter requires the City to bargain with SFPOA in good faith regarding
disputes pertaining to wages, hours, benefits or other terms and conditions of
employment. (Charter § A8.590-5(a).) Upon the declaration of an impasse, the parties
must submit the dispute to “a three-member board of arbitrators” (arbitration board).
(Charter § A8.590-5(a).) No later than January 20 of any year in which bargaining on an
agreement takes place, the parties shall each select one member of the arbitration board
and agree upon a chairperson. (Charter § A8.590-5(b).) In the event the parties do not
reach an agreement before the conclusion of the arbitration hearings, each party shall
submit a last offer of settlement on each of the remaining disputed issues, and the
arbitration board shall decide each issue by majority vote pursuant to a list of specific
criteria. (Charter § A8.590-5(d).) Except under certain circumstances not pertinent to
our decision, the arbitration decision “shall supersede any and all relevant formulas,
procedures and provisions of this Charter relating to wages, hours, benefits and terms and
conditions of employment; and it shall be final and binding on the parties to the dispute,
including the City and County of San Francisco, its commissions, departments, officers
and employees. No other actions or procedural steps to confirm or approve the decision
of the arbitration board shall be permitted or required; provided, however, that the City
and County of San Francisco, its designated officers, employees and representatives and
the recognized employee organization involved in the dispute shall take whatever action
that is necessary to carry out and effectuate the decision of the arbitration board.”
(Charter § A8.590-5(e).) “An agreement that is submitted to the Board of Supervisors for
approval on or before May 15 or a decision of the arbitration board that is submitted to
the Board of Supervisors on or before May 10, or May 15 if the parties waive the 10-day
period between the board’s decision and public disclosure of the decision, shall be
effective on July 1 of the same calendar year upon adoption by the Board of Supervisors.
An agreement submitted to the Board of Supervisors after May 15, or a decision of the
arbitration board that is submitted to the Board of Supervisors after May 10, or May 15, if
the parties waive the 10-day period between the board’s decision and public disclosure of
the decision, shall become effective no earlier than July 1 of the next calendar year upon


                                              2
approval of the Board of Supervisors. But an agreement reached during the term of an
existing memorandum of understanding that results in a net reduction, or results in no net
increase, in the cost to the City, during the current fiscal year, of existing economic
provisions in the existing memorandum of understanding may become effective at any
time upon approval by the Board of Supervisors. Economic provisions include, but are
not limited to, wages, premium pay rates, overtime, any employer pickup of the
employees’ retirement contribution, paid time off, and other compensation.” (Charter
§ A8.590-5(h).)
       SFPOA filed a combined petition for writ of mandate and complaint for
declaratory relief, seeking to set aside Charter section A8.590-5(h), which sets deadlines
for the submission of agreements and arbitration awards and determines the effective
dates of such agreements and arbitration awards. According to SFPOA, Charter section
A8.590-5(h) “unlawfully interferes with and restricts the parties and their rights and
obligations to meet and confer in good faith in all matters within the scope of
representation” in violation of the MMBA. The City filed written opposition. After
considering the parties’ papers and oral arguments, the trial court ruled Charter section
A8.590-5(h) “[was] reasonable and consistent” with the MMBA. SFPOA’s timely appeal
ensued.1
                                       DISCUSSION
       The sole issue raised on this appeal is whether Charter section A8.590-5(h) either
violates a specific provision of the MMBA or is clearly inconsistent with the MMBA’s
stated policies and purposes. “As the matter is a question of law, we are not bound by
evidence on the question presented [in the trial court] or by [that] court’s


1
       Despite the absence of a separate formal judgment, the trial court’s November 26,
2012, order effectively disposed of both the first cause of action (writ of mandate) and
second cause of action (declaratory relief) in the combined petition and complaint. “In
these circumstances, we treat the trial court’s order . . . as the equivalent of a final
judgment on all of these causes of action. [Citation.] As the appeal from this order was
timely filed, we may consider the merits of the issues that [SFPOA] raise[s].” (Breslin v.
City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1074.)


                                              3
interpretation[s].” (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) 2 Instead, we
independently consider whether SFPOA has met its burden of showing that Charter
section A8.590-5(h) should be set aside because it is in conflict with the provisions or the
policies and purposes of the MMBA. As we now discuss, we conclude SFPOA has failed
to make the necessary showing to justify setting aside Charter section A8.590-5(h).
       “ ‘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. ([Gov. Code,] § 3500. [3]) To effect these goals the act
gives local government employees the right to organize collectively and to be represented
by employee organizations ([Gov. Code,] § 3502), and obligates employers to bargain
with employee representatives about matters that fall within the “scope of representation”
([Gov. Code,] §§ 3504.5, 3505).’ [Citation.] The duty to meet and confer in good faith is
limited to matters within the ‘scope of representation’: the public employer and
recognized employee organization have a ‘mutual obligation personally to meet and

2
       SFPOA’s reliance on statements made by the trial court at oral argument is
therefore unavailing.
3
       Government Code section 3500, subdivision (a), reads in full: “(a) It is the
purpose of this chapter 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 between public employers and
public employee organizations. It is also the purpose of this chapter to promote the
improvement of personnel management and employer-employee relations within the
various public agencies in the State of California by providing a uniform basis for
recognizing the right of public employees to join organizations of their own choice and
be represented by those organizations in their employment relationships with public
agencies. Nothing contained herein shall be deemed to supersede the provisions of
existing state law and the charters, ordinances, and rules of local public agencies that
establish and regulate a merit or civil service system or which provide for other methods
of administering employer-employee relations nor is it intended that this chapter be
binding upon those public agencies that provide procedures for the administration of
employer-employee relations in accordance with the provisions of this chapter. This
chapter is intended, instead, to strengthen merit, civil service and other methods of
administering employer-employee relations through the establishment of uniform and
orderly methods of communication between employees and the public agencies by which
they are employed.”


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confer promptly upon request by either party . . . and to endeavor to reach agreement on
matters within the scope of representation prior to the adoption by the public agency of
its final budget for the ensuing year.’ ([Gov. Code,] § 3505.)” (Claremont Police
Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 630; see Voters for
Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 781 (VFRR);
United Public Employees v. City and County of San Francisco (1987) 190 Cal.App.3d
419, 423 (United Public Employees).)
       Although the MMBA sets forth certain procedures for the administration of labor
relations,“[a] public agency may adopt reasonable rules and regulations” concerning
“[a]dditional procedures for the resolutions of disputes involving wages, hours and other
terms and conditions of employment, ” subject to the proviso that “[e]mployees and
employee organizations shall be able to challenge a rule or regulation of a public agency
as a violation of [the MMBA].” (Gov. Code, § 3507, subds. (a)(5), (d).) It is well settled
that “[t]he scope of local government rulemaking power under Government Code section
3507 is limited by the policies and purposes of the MMBA. ‘Although the Legislature
did not intend to preempt all aspects of labor relations in the public sector, . . . [t]he
power reserved to local agencies to adopt rules and regulations was intended to permit
supplementary local regulations which are “consistent with, and effectuate the declared
purposes of, the statute as a whole.” [Citation.]’ (Fn. omitted.)” (International
Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 202 (IBEW),
quoting from Huntington Beach Police Officers’ Assn. v. City of Huntington Beach
(1976) 58 Cal.App.3d 492, 501-502 (Huntington Beach Police Officers’ Assn.).)
       SFPOA contends Charter section A8.590-5(h) goes “beyond mere procedures for
the administration of employer-employee relations, or the resolution of disputes
regarding wages, hours and terms and conditions of employment, and intrude[s] into the
substantive results of such bargaining.” (Underscore in original.) We disagree. To the
extent Charter section A8.590-5(h) sets deadlines for the submission of agreements and
arbitration awards and determines the effective dates of agreements or arbitration awards,
it is not in direct conflict with any specific provision in the MMBA. (See United Public


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Employees, supra, 190 Cal.App.3d at p. 423 [the MMBA does not “prescribe the manner
in which an agreement between a local government and an employee organization should
be put into effect . . . .”]; 4 East Bay Mun. Employees Union v. County of Alameda (1970)
3 Cal.App.3d 578, 584 [the MMBA does not “precisely” define “the nature and scope of
the contract that can be entered into by the parties”].) Additionally, Charter section
A8.590-5(h) does not unlawfully interfere or conflict with the MMBA’s mandates
concerning the scope of representation (Gov. Code, § 3504) and the meet and confer
process (Gov. Code, § 3505). 5 According to SFPOA, Charter section A8.590-5(h)
truncates the bargaining process and thereby modifies the scope of representation by
removing mandatory subjects of bargaining – the timing and payment of wages, and their
retroactivity – from the bargaining process. However, Charter section A8.590-5(h) does
not contain either a time referent for the commencement of collective bargaining or any
language precluding the parties from bargaining on any issue. SFPOA is free at any time
after the effective date of an agreement or arbitration award in any calendar year to

4
        SFPOA argues that United Public Employees, supra, 190 Cal.App.3d 419, is
called into doubt by VFFR, supra, 8 Cal.4th 623. However, we see nothing in VFRR that
overrules that portion of United Public Employees that we rely on, namely, that the
MMBA does not regulate the manner in which collective bargaining agreements are to be
given effect by a charter city and county like San Francisco. (United Public Employees,
supra, 190 Cal.App.3d at p. 423.) Consequently, we find unavailing SFPOA’s contention
that “if the question at issue in United Public Employees were presented to the Supreme
Court today, a different result would obtain.”
5
        Government Code section 3504 provides, in pertinent part, that “[t]he scope of
representation shall 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 . . . .” Government Code section 3505 defines “[m]eet and
confer in good faith” to mean “that a public agency, or such representatives as it may
designate, and representatives of recognized employee organizations, shall have the
mutual obligation personally to meet and confer promptly upon request by either party
and continue for a reasonable period of time in order to exchange freely information,
opinions, and proposals, and to endeavor to reach agreement on matters within the scope
of representation prior to the adoption by the public agency of its final budget for the
ensuing year. The process should include adequate time for the resolution of impasses
where specific procedures for such resolution are contained in local rule, regulation, or
ordinance, or when such procedures are utilized by mutual consent.”


                                             6
request a meet and confer session to begin bargaining anew in sufficient time to meet the
May deadlines in the ensuing calendar year. If there is no agreement or arbitration award
before the May deadlines in any calendar year, the charter section does not preclude the
parties from bargaining and reaching agreement during the next bargaining cycle to
provide for a wage or other financial benefit increase retroactive to any date. Thus, we
see nothing in Charter section A8.590-5(h) that impinges on the scope of representation
or the meet and confer process as mandated by the MMBA. Nor are we persuaded by
SFPOA’s contention that Charter section A8.590-5(h)’s determination of the effective
dates of agreements and arbitration awards allows the City’s “budgetary procedures” to
“trump the duty to bargain created by the” MMBA.6 The MMBA allows for a public
agency’s consideration of “the practical realities” of its budgetary cycle in its negotiations
with represented employees. (Dublin Professional Firefighters, Local 1885 v. Valley
Community Services Dist. (1975) 45 Cal.App.3d 116, 118 (Dublin Professional
Firefighters); see Gov. Code, § 3505 [parties are “to endeavor to reach agreement . . .
prior to the adoption by the public agency of its final budget for the ensuing year . . .”].)7

6
        By its argument, the SFPOA effectively asks us to require the City to return to the
situation that existed before the enactment of Charter section A8.590-5(h) – “ ‘most of
the time,’ ” the City and SFPOA did not finalize their memorandum of understanding “by
a timeline that applied to miscellaneous employees of the City,” and “[i]n some cases,”
the memorandum of understanding was not submitted “until months after the beginning
of the fiscal year that the [memorandum of understanding] covered[, and] [t]o the extent
that th[e] [memorandum of understanding] provided for compensation increases, such
increases were retroactive to the beginning of the [memorandum of understanding’s]
term.”
7
       SFPOA’s reliance on the following cases is misplaced: Huntington Beach Police
Officers’ Assn., supra, 58 Cal.App.3d 492, concerned a situation in which the public
agency refused to bargain on a specific topic that purportedly concerned “a nonnegotiable
prerogative of management” (id. at p. 503); Dublin Professional Firefighters, supra, 45
Cal.App.3d 116, concerned a situation in which the public agency refused to bargain on a
specific issue because the public agency had already formulated its budget (id. at p. 118);
and in IBEW, supra, 34 Cal.3d 191, 202, and Los Angeles County Federation of Labor v.
County of Los Angeles (1984) 160 Cal.App.3d 905, 907-908, the courts struck down
ordinances that precluded collective bargaining and/or granting increases in employee
financial benefits as sanctions to deter employee or union misconduct. Unlike the

                                               7
       We also reject SFPOA’s argument that Charter section A8.590-5(h) unlawfully
discriminates between unions solely on the basis of the timing of their exhaustion of the
collective bargaining process with the City.8 SFPOA complains that one union may be
able to implement its agreement or an arbitration award on July 1 of the year in which the
bargaining occurs, but another union may not do so only because through no fault of the
union it has failed to exhaust the bargaining process by the May deadlines. However, we
conclude the potential for discriminatory enforcement is purely speculative in nature.
Charter section A8.590-5(h) does not create a discriminatory classification among
employees represented by various unions or otherwise treat employees represented by
SFPOA differently from employees represented by other unions. Unlike the situations in
Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416,
420, 422, 425 and Los Angeles County Employees Assn. v. County of Los Angeles (1985)
168 Cal.App.3d 683, 685, 689, cited by SFPOA, we are not now confronted with the
situation where the City has in fact refused to grant employees represented by SFPOA the
same benefits that have been granted to other city employees solely based on the status of
the parties’ negotiations and inability to reach an agreement or secure an arbitration
award by the May deadlines. Thus, we reject SFPOA’s claim that Charter section
A8.590-5(h) must be set aside because it may be enforced in a discriminatory manner.
       Given the narrow issue before us and after our independent review, we agree with
the trial court that Charter section A8.590-5(h) is a reasonable regulation, which is
neither in direct conflict with the provisions of the MMBA nor “inconsistent . . . with the
stated purposes of the MMBA: to encourage communication and improve relations
between local governments and their employees.” (IBEW, supra, 34 Cal.3d at p. 197.)


aforecited cases, Charter section A8.590-5(h) does not actually or implicitly attempt to
bypass collective bargaining either as envisioned by the MMBA or as a sanction for
employee or union misconduct.
8
       Government Code section 3506 provides that “[p]ublic agencies and employee
organizations shall not interfere with, intimidate, restrain, coerce or discriminate against
public employees because of their exercise of their rights under Section 3502
[employees’ right to join or refuse to join employee organizations].”


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SFPOA “read[s] proscriptions into the [MMBA] which are not there.” (United Public
Employees, supra, 190 Cal.App.3d at p. 426.)
                                   DISPOSITION
      The order filed on November 26, 2012, is affirmed. Defendants and respondents
City and County of San Francisco and Micki Callahan are awarded costs on appeal.



                                               _________________________
                                               Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.




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