Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC443168, Stephen D. Cunnison, Judge.
Law Offices of Dennis J. Hayes, Dennis J. Hayes, Diana C. Boley, and Jon D. Dwyer for Plaintiff and Appellant.
Joe S. Rank, County Counsel, L. Alexandra Fong, Deputy County Counsel; Jackson Lewis, Susan E. Groff; The Zappia Law Firm, Edward P. Zappia, and Eric W. LaPointe for Defendants and Respondents.
OPINION
King J.
I. INTRODUCTION
Appellant, Riverside Sheriffs’ Association (the RSA) appeals from the trial court’s order denying, in part, the RSA’s petition for a traditional writ of mandate (Code Civ. Proc., § 1085), against respondents, the County of Riverside and several county officials acting in their official capacities (collectively, the County). In its petition, the RSA claimed that the County violated the meet and confer requirement of section 3505 of the Meyers-Milias-Brown Act (the MMBA) (Gov. Code, § 3505 et seq.), by implementing or adopting eight changes to the wages, hours, or other terms and conditions of employment of the County law enforcement unit (LEU) employees, whom the RSA represents in collective bargaining with the County pursuant to the MMBA, without first meeting and conferring with the RSA.
The county officials named as defendants in the RSA’s writ petition include Grover Trask, in his official capacity as the district attorney of the County of Riverside, Bob Doyle, in his official capacity as sheriff of the County of Riverside, Ron Komers, in his official capacity as director of human resources and assistant chief administrative officer of the County of Riverside, and the Board of Supervisors for the County of Riverside.
All further statutory references are to the Government Code unless otherwise indicated.
The trial court agreed with one of the RSA’s eight claims, namely, that the County had a duty to meet and confer with the RSA before it changed the daily reporting times of deputy sheriffs from nine hours to nine and one-half hours. Accordingly, the trial court ordered the County to meet and confer with the RSA regarding the shift changes. In all other respects, the trial court denied the petition.
The change in reporting time from nine hours to nine and one-half hours was made in order to allow for a one-half hour unpaid lunch break. Previously, deputies were required to work a nine-hour shift with a one-half hour paid lunch break.
On this appeal, the RSA claims the trial court erroneously determined that the County did not have a duty to meet and confer with the RSA before it implemented or adopted seven other changes to the terms and conditions of LEU employees, namely, (1) secretly implanting global positioning units (GPS) in county-owned “take home” vehicles in order to ascertain and track LEU employees’ suspected and unauthorized personal uses of the vehicle; (2) changing the County’s practice of informally adopting or abiding by advisory arbitration awards in labor disputes without submitting the awards to the County Board of Supervisors (the Board) for approval; (3) issuing new combination locks to deputy sheriffs at a correctional facility and retaining the lock combinations; (4) instituting a no smoking policy for all newly hired deputy sheriffs; (5) searching the backpacks and bags of LEU employees entering County detention centers; (6) requiring LEU employees to use sick leave or other benefit hours for follow-up medical appointments to address work-related injuries; and, finally, (7) unilaterally amending the County’s contract with CalPERS to increase the amount of the benefit payable to surviving spouses of safety-member LEU employees who die prior to retirement. We find no error, and affirm the order denying the petition.
As remedies for the County’s breach of its meet and confer obligation, the RSA asked the trial court to (1) declare that the County violated section 3505 by unilaterally implementing multiple changes to the terms and conditions of LEU employees’ employment without meeting and conferring with the RSA; (2) order the County to cease and desist from implementing any changes in the terms and conditions of LEU employees’ employment unless and until the parties met and conferred regarding the changes; and (3) declare void ab initio all employment-condition changes the County made without meeting and conferring with the RSA, with the sole exception of the increase in the surviving-spouse, preretirement benefit payable pursuant to the County’s contract with CalPERS.
II. DISCUSSION
A. Standard of Review
Code of Civil Procedure section 1085 provides for the issuance of traditional or ordinary writs of mandate. As such, the statute authorizes interested parties to “‘compel a public official to perform an official act required by law.’” (People v. Karriker (2007) 149 Cal.App.4th 763, 774, citing Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.) In order to obtain a traditional writ of mandate, the petitioner must show it has “no other plain, speedy and adequate remedy, that the respondent has failed to perform an act despite a clear, present and ministerial duty to do so, and that the petitioner has a clear, present and beneficial right to that performance. [Citations.] The petitioner bears the burden of pleading and proving the facts upon which the claim is based. [Citation.]” (Riverside Sheriff’s Assn. v. County of Riverside (2003) 106 Cal.App.4th 1285, 1289 (Riverside Sheriff’s Assn.).)
In reviewing a trial court’s denial of a petition for a writ of mandate, an appellate court must determine whether the trial court’s findings and judgment are supported by substantial evidence. When, however, the facts are undisputed and a question of law is presented, the appellate court reviews the trial court’s decision de novo. (Riverside Sheriff’s Assn., supra, 106 Cal.App.4th at p. 1289.) Broadly speaking, the reviewing court defers to the trial court’s rulings on the admissibility of evidence, unless an abuse of discretion is shown. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
B. The Meet and Confer Requirement of the MMBA
One of the stated purposes of the MMBA is to provide “a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations.” (§ 3500.) To this end, the MMBA imposes upon public agencies an obligation to give prior notice to and to meet and confer or bargain in good faith with public employee organizations, before undertaking an action that falls within the organization’s “scope of representation.” (§§ 3502, 3503-3505; Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 536-537; Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 657 (Building Material).)
Section 3502 provides that “public employees shall have the right to form, join, and participate in the activities of employee organizations . . . for the purpose of representation on all matters of employer-employee relations,” and section 3503 provides that “[r]ecognized employee organizations shall have the right to represent their members in their employment relations with public agencies.” Section 3504 defines the phrase “scope of representation” as including “all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.”
A public agency’s action falls within a public employee organization’s “scope of representation” if it has a significant effect on the wages, hours, and other terms and conditions of employment of the organization’s member-employees. (Building Material, supra, 41 Cal.3d at pp. 658-659; Riverside Sheriff’s Assn., supra, 106 Cal.App.4th at p. 1290.) Actions that fall within the scope of representation and that are taken without prior notice to or meeting and conferring with the affected employee organization are void. (See Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 828.)
In determining whether a public agency’s action falls within an employee organization’s scope of representation, or has a significant effect on the employees’ wages, hours, and terms and conditions of employment and is thus subject to the meet and confer requirement, the court must look to the terms and conditions of employment that existed at the time of the employer’s action. (See, e.g., Riverside Sheriff’s Assn., supra, 106 Cal.App.4th at p. 1290.) The starting point is the parties’ operative memorandum of understanding (MOU), if any. (Ibid.)
The meet and confer obligation is not limited to changes in an existing agreement or rule, however; it also extends to actions that significantly affect “an existing and acknowledged practice” concerning the wages, hours, and terms and conditions of employment. (International Assn. of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 972-973.) “Changes in existing and acknowledged practices are subject to the meet and confer requirement even if those practices are not formalized in a written agreement or rule.” (San Francisco Fire Fighters Local 798 v. Board of Supervisors (1992) 3 Cal.App.4th 1482, 1490, italics added.)
To qualify as an “existing and acknowledged practice” or, to use a synonymous phrase, a “binding past practice,” the practice must be “unequivocal,” “clearly enunciated and acted upon,” and “readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties.” (Riverside Sheriff’s Assn., supra, 106 Cal.App.4th at pp. 1291.) In other terms, a “valid past practice” is “one that is ‘regular and consistent’ or ‘historic and accepted.’” (Ibid.& fn. 2, & authorities cited.)
The scope of representation generally does not include fundamental managerial or policy decisions. (Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 631-632 (Claremont).) As our state Supreme Court has explained, “[e]ven when the action of an employer has a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees, the employer may yet be excepted from the duty to bargain under the ‘merits, necessity, or organization’ language of section 3504. If an action is taken pursuant to a fundamental managerial or policy decision, it is within the scope of representation only if the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question. [Citations.]” (Building Material, supra, 41 Cal.3d at p. 660, italics added.)
See footnote 5, ante.
Following Building Material, the court in Claremont, supra, 39 Cal.4th at page 638 developed a three-part test to determine whether a fundamental managerial policy decision falls within the scope of representation and is therefore subject to the meet and confer requirement. A court must first ask whether the public agency’s action has a significant and adverse effect on the wages, hours, or working conditions of the bargaining unit employees. (Ibid., citing Building Material, supra, 41 Cal.3d at p. 660.) If not, there is no duty to meet and confer. Second, the court must ask whether the significant and adverse effect of the action arises from the implementation of a fundamental managerial or policy decision. If not, then, the meet and confer requirement applies. (Claremont, supra, at pp. 638-639.)
“Third, if both factors are present—if an action taken to implement a fundamental managerial or policy decision has a significant and adverse effect on the wages, hours, or working conditions of the employees—we apply a balancing test. The action ‘is within the scope of representation only if the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.’” (Claremont, supra, 39 Cal.4th at p. 638, citing Building Material, supra, 41 Cal.3d at p. 660.) Furthermore, “[i]n balancing the interests to determine whether the parties must meet and confer over a certain matter (§ 3505), a court may also consider whether the ‘transactional cost of the bargaining process outweighs its value.’ [Citation.]” (Claremont, supra, at p. 638.)
C. The RSA’s Claims on Appeal
We now turn to the RSA’s claims of error on this appeal. The RSA claims the trial court erroneously concluded that the County did not have a duty to meet and confer with the RSA before it implemented or adopted seven alleged changes to the wages, hours, or terms and conditions of employment of LEU employees. We address each of these claims in turn.
1. GPS Units in County-Owned “Take-Home” Vehicles
In its petition, the RSA first claimed that the County violated the meet and confer requirement of section 3505 by secretly inserting GPS units in County-owned “take-home vehicles” assigned to LEU employees, in order to ascertain whether the employees were using the vehicles for unauthorized personal purposes. The RSA argued that the use of vehicle tracking information obtained through the GPS units “created a new penalty” for LEU employees and therefore changed an established or past practice between the parties, because the tracking information was to be used to discipline an employee in the event it revealed the employee had used his or her take-home vehicle for unauthorized personal purposes.
In denying the petition on this ground, the trial court concluded that the RSA had “overstate[d] the nature of the County’s action” regarding the GPS units, and the County did not have a duty to meet and confer with the RSA “in this instance.” In its order, the trial court observed: “The record and the supporting and opposing declarations show that County officials installed a GPS unit in the official County vehicle assigned to a [single] [district attorney] Investigator, based upon a suspicion that the investigator was using the vehicle in violation of well-established rules. Petitioner makes no attempt to show that the suspicion was unfounded or unreasonable. The GPS unit remained in the vehicle for approximately two months, during which time it transmitted the location of the vehicle and disciplinary action was commenced against the employee based in part on the evidence generated by the GPS unit. The decision to install the GPS unit did not change the policy or rules regarding the use of take-home vehicles, nor did it alter the discipline which might be imposed in the event of violation of the policy or rules. The decision created no new penalties.”
The trial court also observed: “The court is not called upon to decide, and does not decide, whether random installation of GPS units in investigators’ take-home vehicles would require a meet and confer. It appears unlikely that the decision to investigate an individual investigator’s use of a take-home vehicle constituted a ‘fundamental managerial or policy decision.’ [Claremont, supra, 39 Cal.4th at pp. 635-636.] Even if it did, the benefit to employer-employee relations of bargaining about the decision is substantially outweighed by the County’s need for unencumbered decision making in managing its operations. Employees do not generally expose their misconduct to public view. The employer must be permitted to devise and employ an effective means of investigation. The means must be appropriate in light of the particular facts that give rise to the suspicion of violation, and will often be covert. Obviously, a request to meet and confer would tip off the bargaining unit and the employee, compromising the investigation.”
The supporting declaration of the district attorney investigator, which was filed under seal to protect the investigator’s privacy, stated that he/she was first informed, in October 2005, that the County had secretly installed a GPS unit in his/her “take-home vehicle” over an approximate two-month period, and the tracking information derived from the GPS unit was used as the basis for proposing the termination of the investigator’s employment. The investigator exercised his/her option to retire, rather than challenge his/her “unjust termination.”
The RSA claims the trial court erroneously concluded, as a matter of law, that the County’s new policy of installing GPS units in County-owned “take-home” vehicles did not “create a new penalty” or change an established or past practice regarding the disciplining of LEU employees. We disagree.
Based on the evidence presented, which was undisputed on the GPS issue, the trial court correctly concluded that the County did not have a duty to meet and confer with the RSA before it secretly inserted a GPS unit in the “take-home vehicle” of a single district attorney investigator whom the County presumably had reason to suspect was using the vehicle for personal purposes in violation of the County’s policies and rules. As the trial court explained, the installation of the GPS unit in the investigator’s take-home vehicle did not alter the County’s policies or rules, which prohibited the unauthorized personal use of take-home vehicles. Nor did the use of the vehicle tracking information for disciplinary purposes “create a new penalty” for violating the County’s policies or rules. Instead, the tracking information merely served as a means of ascertaining whether the investigator was violating existing policies and rules of the County.
We also agree with the trial court that the question before it was not whether the County could randomly install GPS units in the take-home vehicles of LEU employees without first notifying the RSA of its proposed action and meeting and conferring with the RSA. As the trial court pointed out, this case did not involve the random installation of GPS units in vehicles owned by the County. Rather, it involved the installation of a single GPS unit in the take-home vehicle assigned to a single district attorney investigator whom the County suspected was using the vehicle for unauthorized personal purposes. As the trial court also pointed out, the RSA made no attempt to show that the County’s suspicions concerning the investigator were unreasonable or unfounded.
The trial court also correctly concluded that, even if the County’s decision to install the GPS unit in this particular instance constituted a fundamental managerial or policy decision, then “the benefit to employer-employee relations of bargaining about the decision [were] substantially outweighed by the County’s need for unencumbered decision making in managing its operations.” As discussed, “[i]f an action is taken pursuant to a fundamental managerial or policy decision, it is within the scope of representation only if the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.” (Building Material, supra, 41 Cal.3d at p. 660; Claremont, supra, 39 Cal.4th at p. 636.) As the trial court observed, employees do not generally expose their misconduct to public view, and the employer must be permitted to devise and employ effective means of investigation. Imposing an obligation to meet and confer with the RSA before the County may surreptitiously install a single GPS tracking device in a single take-home vehicle owned by the County, when the County has reason to suspect the employee of misusing the vehicle for personal purposes, would compromise the County’s investigation and interfere with its exclusive right and discretion to discipline and discharge its employees.
Pursuant to the County’s Employee Relations Resolution (EER), which established procedures governing collective bargaining between the County and registered employee organizations, including the RSA, the County retained the exclusive right to “direct, discipline and discharge its employees” and “relieve its employees from duty because of lack of work or for other legitimate reasons.”
2. Change in Practice Regarding Acceptance of Advisory Arbitration Awards
In its petition, the RSA claimed that the County also breached its duty to meet and confer with the RSA by unilaterally changing the parties’ practice of accepting arbitration awards or decisions in labor disputes outright or “as written,” without submitting the awards to the Board for acceptance or rejection, as the parties’ MOU required. The RSA requested an order directing the County, through its human resources director, Ron Komers, to meet and confer with the RSA before unilaterally changing the parties’ practice of accepting arbitration awards as written.
In its petition, the RSA claimed the County changed the parties’ past practice of accepting arbitration awards as written when it rejected a 2002 arbitration award in favor of Correctional Deputy Wayne Tillett (the Tillett Award), without notifying or meeting and conferring with the RSA. Before the RSA filed its present writ petition, the RSA petitioned the superior court to confirm the Tillett Award. The County opposed the petition on the grounds the Tillett Award was unenforceable because the Board had never accepted it. The superior court agreed with the County and denied the petition to confirm the Tillett Award. Thereafter, the County submitted the Tillett Award to the Board and recommended its rejection. Eventually, the Board rejected the Tillett Award.
The trial court denied the RSA’s requested relief. Without determining the factual question whether the parties had an established or past practice of accepting advisory arbitration awards as written and without submitting the awards to the Board for acceptance or rejection, the trial court observed that the parties had “already negotiated” an MOU which “expressly cover[ed] this subject matter” of submitting awards to the Board for acceptance or rejection. Indeed, the MOU expressly required the submission of arbitration awards to the Board for acceptance or rejection.
The trial court also noted that the RSA had recently filed a petition in the superior court seeking “to compel the County to submit certain awards to the Board for approval or rejection. If [the RSA] prevails, that, rather than an order to meet and confer, would appear to be the appropriate remedy.” Thus, the trial court concluded that the MOU afforded the RSA an alternative, adequate remedy to the meet and confer requirement—namely, a superior court action to compel the County to submit “certain awards” to the Board for approval or rejection. By “certain awards,” the trial court was apparently referring to awards that the County’s officials refused to accept, either as written or negotiated, without the Board’s approval.
See footnote 9, ante.
We agree with the trial court. First, the parties’ MOU expressly provides that the County will submit all arbitration awards to the Board for acceptance or rejection. The MOU states that, in the event a grievance has been rejected by the human resources director, or a designee, and “the grievant” has thereafter submitted a request “to the Employee Relations Manager” for arbitration, “The grievance shall thereafter be subject to advisory arbitration and decision by the Board . . . . The Board . . . shall either accept or reject the arbitrator’s decision, or accept part of the decision and reject the rest, without further testimony from either party. . . . The decision of the Board . . . shall be final.” (Italics added.)
In a September 19, 2005, letter from the County executive officer, Larry Parrish, to the RSA’s president, Pat McNamara, Mr. Parrish indicated that items are placed on the Board’s agenda either directly by a supervisor or through the officers of the County executive office. The MOU does not provide otherwise. Nor does the RSA claim it is empowered to submit any arbitration awards to the Board for acceptance or rejection.
The MOU thus provides the RSA with an adequate, alternative remedy to the meet and confer requirement in the event the County has breached or breaches any duty it may have, pursuant to any practice between the parties to accept advisory arbitration awards “as written” and without first submitting the awards to the Board for approval. That remedy is to (1) demand that appropriate officials of the County submit an award to the Board for acceptance or rejection in accordance with the MOU, particularly those awards the County refuses to accept informally and without the Board’s approval; or (2) in the event the County refuses to informally accept an award or refuses to submit an award to the Board for approval or rejection, the RSA may file a superior court action to compel the County to submit the award to the Board for approval or rejection.
As the trial court aptly observed, “This is not a situation in which the County unilaterally adopted a practice contrary to the MOU.” Indeed, the MOU effectively requires the County, through its appropriate representatives, to submit all arbitration awards to the Board for acceptance or rejection. Thus, even if the parties had a practice of informally accepting or abiding by advisory arbitration awards, without submitting those awards to the Board for approval, this does not mean the County should be compelled to meet and confer with the RSA every time it decides not to informally accept an award. As the trial court concluded, enforcement of the MOU, through superior court action if necessary, is an adequate alternative remedy, and it is the remedy the RSA and the County effectively agreed to when they entered into the MOU.
3. Change in Practice RegardingRetention of Locker Combinations
In August 2005, the County completed construction of new locker room facilities at the Larry Smith Correctional Facility in Banning (the Smith Correctional Facility). After the new locker room was completed, each deputy sheriff and correctional deputy who worked at the Smith Correctional Facility was offered a new locker. If the deputy accepted the locker, he or she was issued a new combination lock to use with the locker. Deputies had the option of declining to be assigned a locker. Correctional Lieutenant Valerie Horton was the “sole, confidential record keeper” of the lock combinations assigned to deputies at the Smith Correctional Facility.
In its petition, the RSA claimed that the sheriffs’ department’s retention of lock combinations constituted a change in its past practice of not retaining the lock combinations; thus, the County had a duty to meet and confer with the RSA before retaining the lock combinations. In support of its claim, the RSA submitted the declaration of Richard Garcia, a correctional deputy who had been employed by the County for seven years as of August 2006. Deputy Garcia averred that, before the new locker room was constructed at the Smith Correctional Facility, LEU employees who worked at the facility brought their own locks and the combinations to those locks were known only to the deputy.
The RSA observes that the retention of the lock combinations by sheriffs’ department personnel “gives rise to disciplinary and evidentiary issues,” because deputies have in the past been held accountable for the contents of their lockers, and the department’s knowledge of the lock combination means that department management personnel may now search the lockers without the deputies’ knowledge, remove items from the lockers, or place items in the lockers. In a meet and confer, the RSA argues it could have provided input on issues including, but not limited to, (1) whether a deputy would be held criminally or administratively liable for the contents of a locker to which he did not have exclusive access; and (2) whether a mechanism should be in place to determine whether a clandestine search of a deputy’s locker was undertaken.
The trial court sustained evidentiary objections to the pertinent portions of Deputy Garcia’s declaration, namely, paragraphs 4 and 5, based on lack of personal knowledge and foundation, among other grounds. The court therefore ruled there was “no admissible evidence of any new or different policy or procedure” regarding the retention of lock combinations at the Smith Correctional Facility; hence, the County did not violate the meet and confer requirement “in this instance.”
The trial court’s evidentiary rulings are entitled to deference on this appeal, as no abuse of discretion appears. (People v. Waidla, supra, 22 Cal.4th at pp. 717-718.) Indeed, the evidentiary rulings were correct. Deputy Garcia stated he was a correctional deputy who had been employed by the County for seven years as of August 2006, but he did not state he had ever worked at the Smith Correctional Facility. Nor did he otherwise show he had any personal knowledge that the sheriffs’ department, by retaining the lock combinations to the newly issued locks at the Smith Correctional Facility, had changed a past policy or practice regarding the retention of lock combinations at correctional facilities.
In addition, the County submitted evidence that the retention of the lock combinations was not a new practice. Dana Fredendall, the commander of the Smith Correctional Facility, stated in his declaration that Correctional Lieutenant Valerie Horton was “the sole, confidential record keeper of the combinations for the locks assigned to deputies assigned to the Smith Correctional Facility,” and “[t]he locker combinations for the deputies’ lockers have never been disclosed to administration.” Moreover, the commander explained that, since the 1980’s, the sheriffs’ department had retained the locker combinations to locks assigned to deputies at other correctional facilities and sheriffs’ stations in the County, but “does not open any lockers assigned to its employees without providing notice and obtaining permission from the [deputy], pursuant to the [MOU] and Peace Officer Bill of Rights (POBR), regardless of whether the locker combinations are known.”
Thus, the trial court correctly ruled that the RSA failed to submit any admissible evidence of a new policy or procedure regarding the County’s retention of lock combinations at the Smith Correctional Facility or elsewhere. In this respect, the RSA’s petition was therefore properly denied.
4. Searches of Deputies’ Backpacks and Bags at the County’s Detention Centers
In its petition, the RSA also claimed that, beginning in October 2005, the sheriffs’ department “initiated a new procedure requiring deputy Sheriffs who are employed at [the County’s] Detention Centers to submit to searches of their backpacks and bags” as a condition of bringing the backpacks and bags into the facilities. The trial court ruled there was “no admissible evidence of a new or different policy regarding the search of bags and backpacks,” thus, the County did not violate the meet and confer requirement “in this instance.” Again, the trial court’s ruling was correct.
In support of this claim, the RSA submitted the declaration of its president, Mr. Pat McNamara. The trial court sustained the County’s evidentiary objections to pertinent portions of Mr. McNamara’s declaration based on lack of foundation and personal knowledge, among other grounds. These rulings are entitled to deference, as no abuse of discretion is shown (People v. Waidla, supra, 22 Cal.4th at pp. 717-718), and the rulings were correct.
Mr. McNamara claimed that the County had unilaterally implemented “a search procedure at the Riverside County Detention Centers requiring employees to submit to backpack and bag searches in order to bring such items into the facility where no such procedure previously existed.” But Mr. McNamara did not show how he had personal knowledge that the backpack search procedure was a new policy.
The County also submitted evidence that the backpack search policy was not new. Commander Fredendall stated in his declaration that “[a]ll bags, backpacks, boxes, etc. that are brought into any Sheriff’s Department correctional facility are subject to search, regardless of who brings the item into the correctional facility,” and this policy had never changed since he first became employed by the County in 1977. Thus, the RSA’s petition was properly denied in this instance as well.
5. Nonsmoking Policy for Newly Hired Deputy Sheriffs
The RSA also claimed that the County adopted a new policy “prohibiting newly hired deputy sheriffs the liberty to smoke tobacco,” without first notifying or meeting and conferring with the RSA. The trial court denied the RSA relief on this ground as well, after concluding there was “no evidence in the record or the supporting declarations that the County has adopted a new or different policy with respect to smoking by employees who are represented by [the RSA].” Again, the trial court was correct.
As the trial court said, there is no evidence in the record that the County adopted a policy prohibiting newly hired sheriffs’ deputies or LEU employees from smoking tobacco, whether on or off duty. The RSA’s argument to the contrary is based on form 11, a document that was submitted to the Board when it approved and adopted the parties’ current MOU in January 2005. “Attachment A” to form 11 purports to summarize the contents of the MOU. As pertinent, the attachment states, “In accordance with Board policy, the County will adopt a non-smoking requirement with respect to candidates for employment in the law enforcement unit. . . .” (Italics added.)
The parties do not dispute that, during the negotiations between the County and the RSA regarding the current MOU, the County proposed to include a provision prohibiting newly hired deputy sheriffs from smoking tobacco. The RSA rejected the nonsmoking proposal and the County later withdrew it. Then, in January 2005, when the County submitted the MOU to the Board for its approval, together with form 11 and attachment A, Mr. McNamara claimed that the County “included the non-smoking proposal in an attachment to the MOU, despite the fact that this proposal was not a bargained for provision included in the MOU. The Board . . . subsequently adopted the MOU, and its attachment, including the non-smoking proposal . . . .” (Fn. omitted.)
Mr. McNamara misunderstood the import of attachment A to form 11. As the trial court said, “the mention in the Form 11 of a non-smoking policy was a misstatement of the actual provisions of the MOU, which does not contain any reference to the smoking habits of new hires . . . .” The trial court was correct. The MOU does not contain any policy regarding the smoking habits of newly hired LEU employees. Furthermore, the County did not consider attachment A to be a part of the MOU, in part because “the parties did not agree to any non-smoking rules for RSA represented employees at the bargaining table.”
In the trial court, the County also argued that the RSA “does not represent candidates for employment and therefore any restriction on candidates for employment would not be included in [an MOU] with RSA.” The trial court rejected this argument on the grounds neither side had presented any authority on whether the RSA represents or does not represent LEU employees before they are hired. Neither side has presented any such authority on this appeal either. Moreover, and as the trial court pointed out, the RSA did not present any evidence that the County adopted or implemented any new policy regarding the tobacco-smoking habits of newly hired LEU employees. For this reason, the RSA did not meet its burden of proving the facts upon which its claim for relief is based, in this instance. (Riverside Sheriff’s Assn., supra, 106 Cal.App.4th at p. 1289.)
6. Use of Sick Time or Other Benefit Hours for Work-Related Injuries
In July 2005, Sheriff Bob Doyle issued directive #05-21, advising bureau, station, and facility commanders that, “effective immediately,” LEU employees would no longer be able to use the “TRC” (Time Reporting Code) of “IIP” (Industrial Injury Partial) when taking a partial day off for “follow-up” doctor’s or physical therapy appointments for work-related injuries. Instead, LEU employees would be required to use their own sick time or other benefit hours when taking partial or full days off for these purposes.
In its petition, the RSA claimed that directive #05-21 constituted a new policy, which the sheriff announced and implemented without first notifying or meeting and conferring with the RSA, and the policy effectively reduced the compensation payable to LEU employees by requiring them to use their own time off when attending medical appointments for work-related injuries. The trial court acknowledged that the language of the directive (e.g., “effective immediately”) suggested it constituted a new or changed policy, but “that inference” was “contradicted” by the declaration of Vicki Pounders, who had been the sheriffs’ department’s employee benefits and records supervisor since 1992.
In her declaration, Ms. Pounders explained that, on the day a department employee suffers a work-related injury, the department compensates the employee for his full days’ pay, regardless of when the employee was injured during his shift. The IIP code is used for the hours an employee did not work on the date of the injury, and may only be used on the date of the injury. In the payroll system, the IIP code converts to REG for regular hours worked, and the employee is paid as if he was working the entire day he was injured. In contrast to the IIP code, the “IIU” (Industrial Injury Used) code is used to report full days off due to a worker’s compensation injury. Critically, and according to Ms. Pounders, department employees “have never been allowed to use the IIU code for partial days off . . . [and] have never been allowed to use the IIP code for follow up medical appointments or treatment for injuries.”
Ms. Pounders further explained that, in 1996, sheriffs’ department employees were advised by directive #96-016 that “follow-up medical appointments or treatment” should be scheduled on the employee’s own time, and since 1996 the sheriffs’ department had required its employees to use “their own time” for follow-up medical appointments, including physical therapy appointments. Directive #05-021 “was issued to reinforce the policy contained within” directive #96-016, namely, “that employees are required to schedule follow-up medical appointments and treatment on their own time.”
In support of its claim that directive #05-21 constituted a new policy, the RSA submitted the declaration of its executive director, Jim Cunningham. Mr. Cunningham asserted, in conclusory fashion, that directive #05-21 constituted a new policy and practice. The County objected to Mr. Cunningham’s declaration on the grounds it lacked foundation and personal knowledge and contained improper conclusions of law. The trial court sustained the objections, and the RSA does not challenge the evidentiary rulings on this appeal. Nor did the RSA dispute any of the statements or explanations in Ms. Pounder’s declaration.
The trial court thus concluded, based on Ms. Pounder’s declaration and the contents of directive #05-21, that “[a]dmissible evidence from which it may be inferred that the policy is new or changed is outweighed by evidence that there is no new or changed policy.” Accordingly, the trial court concluded that the RSA failed to meet its burden of demonstrating that directive #05-21 constituted a new or changed policy; thus, the County did not violate the meet and confer requirement in this instance. Again, the trial court was correct. The RSA did not meet its burden of proving the facts upon which its claim for relief is based. (Riverside Sheriff’s Assn., supra, 106 Cal.App.4th at p. 1289.)
7. Increase in CalPERS Survivor Benefit
Pursuant to a contract with CalPERS, surviving spouses of safety members are entitled to receive monthly benefits in the event their safety-member spouse dies prior to retirement. This is known as the “1959 Survivor Pre-Retirement Death Benefit.” The parties did not dispute that, in June 2005, the County amended its contract with CalPERS to increase the amount of the surviving spouse’s monthly benefits, without notifying or meeting and conferring with the RSA.
In its petition, the RSA claimed the County had a duty to meet and confer before it amended its contract with CalPERS, even though the change increased the benefits payable to surviving spouses. The County did not seek to void the amended CalPERS contract; rather, it sought a court declaration that the County had an obligation to meet and confer with the RSA before it agreed to amend its contract with CalPERS.
The trial court denied the RSA’s requested relief on the ground the meet and confer requirement applies only if the new or changed policy adversely affects the members of the bargaining unit. Again, the trial court was correct. (Building Material, supra, 41 Cal.3d at p. 659.) Thus, the trial court properly denied the requested relief in this instance.
III. DISPOSITION
The order denying the RSA’s petition for writ of mandate is affirmed. The parties shall bear their respective costs on appeal.
We concur: Hollenhorst Acting P.J., Miller J.
Furthermore, “section 3504.5 provides that public agencies must give employee organizations ‘reasonable written notice’ of any proposed ‘ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation’; [and] section 3505 provides that representatives of public agencies and employee organizations ‘shall have the mutual obligation personally to meet and confer promptly upon request by either party . . . and to endeavor to reach agreement on matters within the scope of representation . . . .’” (Building Material, supra, 41 Cal.3d at p. 657.)
The opposing declaration of a supervising County employee, which was also filed under seal, stated that a GPS device was installed in the investigator’s take-home vehicle in May 2005, three months after the County first suspected that the investigator was using the vehicle for personal purposes. The GPS unit revealed that the investigator had used his/her take-home vehicle for personal purposes during working and nonworking hours, without the County’s authorization. For example, the vehicle was driven to San Marcos, Carlsbad, Escondido, Fallbrook, and the Pechanga Casino in Temecula, and was also observed parked at several establishments in Riverside and San Diego Counties which serve alcoholic beverages. The GPS unit was removed from the vehicle following the conclusion of the investigation. No GPS units were installed in vehicles assigned to any other district attorney investigators.
In August 2005, the RSA submitted a letter to the Board requesting that it amend the parties’ MOU to provide that all arbitration awards would be deemed accepted by the Board unless rejected by the Board within 30 days of the date of the award. In its letter request, the RSA noted that the superior court had denied its petition to confirm the Tillett Award and had held “the Board . . . must accept or reject an advisory arbitration award for that award to be considered final; and if the Board fails to so act, the RSA must bring a petition for a writ of mandate in Superior Court to obtain an order to compel the Board to either accept or reject [the award].” The County executive officer refused to submit the RSA’s letter request to amend the MOU to the Board, on the grounds the matter of approving or rejecting arbitration awards was covered by the parties’ current MOU.
The RSA later petitioned the superior court to compel the Board to accept or reject several advisory arbitration awards, including the Tillett Award, in case No. RIC453902. That petition was filed before the Board rejected the Tillett Award and was pending when the trial court ruled on the RSA’s present writ petition.