California Correctional Supervisors Organization v. Chiang

Filed 9/28/07 California Correctional Supervisors Organization v. Chiang 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

The California Correctional Supervisors Organization (CCSO) appeals the denial of its petition for writ of mandate seeking to compel the California State Controllers Office (Controller) and the California Department of Corrections and Rehabilitation (CDCR) to automatically stop deducting union dues from the salaries of rank and file members of the California Correctional Peace Officers Association (CCPOA) when they are promoted to a supervisory classification. We conclude the CCSO has failed to establish the existence of a ministerial duty that would require respondents to automatically discontinue such member deductions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to the Ralph C. Dills Act (Dills Act) (Gov. Code,^[1] 3524), state employees have the right to be represented by employee organizations in their dealings with the state pertaining to wages, hours and other terms and conditions of their employment. ( 3515, 3516.) The CCPOA and the CCSO are employee organizations authorized to represent employees of CDCR. The CCPOA is the exclusive representative organization for rank and file correctional officers, and is a non-exclusive representative of correctional supervisors. The CCSO is also a non-exclusive representative of correctional supervisors.

Membership in an employee organization is optional. ( 3513, subd. (k), 3515, 3531.)  Rank and file correctional officers who choose to join the CCPOA sign an authorization that permits union dues to be deducted from their paychecks by the Controller. The membership application provides: This authorization will remain in effect until cancelled by the organization at my written request subject to the provisions of any Memorandum of Understanding in effect between the State and CCPOA that applies to my classification. The Controller is authorized by statute to deduct union dues from employees paychecks at the request of the union, provided that the union certifies that it maintains a signed authorization for a dues deduction from each union member.^[2] ( 1153, subds. (a) & (b).)

The CCSO filed a petition for writ of mandate naming the Controller and the CDCR as respondents. In support of the petition, the CCSO submitted declarations by three CDCR employees who were members of the CCPOA when they were rank and file employees. After they were promoted to supervisory classifications, the Controller continued to deduct CCPOA dues from the declarants paychecks, until it received requests from the CCSO that the CCPOA deductions be terminated and that dues instead be deducted on behalf of the CCSO.

The CCSO argued that the authorization for dues deductions given by CCPOA members when they were rank and file employees became ineffective when they were promoted to supervisory classifications, and that respondents were required to automatically cease deductions from their paychecks when they were promoted. The CCSO also alleged that the Controllers failure to automatically cease deducting such dues violated state laws that protect state employees choice of which, if any, union they wish to join. The trial court concluded that absent direction from the affected employee, the Controller had no statutory obligation to change an employees dues deductions, and denied the petition. The CCSO timely appealed.

DISCUSSION

To obtain [a writ of mandamus pursuant to Code of Civil Procedure section 1085], the petitioner must show (1) a clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present, and beneficial right in the petitioner to the performance of that duty. [Citations.] A ministerial duty is an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists. (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 128-129; see also Transdyn/Cresci JV v. City and County of San Francisco (1999) 72 Cal.App.4th 746, 752.)

The CCSO argues that section 1153 requires the Controller to automatically cease deducting dues from CCPOA members who are rank and file employees promoted to supervisory classifications. We disagree. Section 1153 provides in relevant part: The Controller shall provide for the administration of payroll deductions as set forth [in pertinent statutes] . . . [] In administering these programs the Controller shall: [] (a) Make, cancel, or change a deduction or reduction at the request of the person or organization authorized to have the deduction or reduction.^[3]

Section 1153 requires the Controller to implement or cease a dues deduction when requested to do so by an employee or authorized organization, but does not authorize or require the Controller to automatically cancel dues deductions when union members are promoted to a supervisory classification. (See Tirapelle v. Davis (1993) 20 Cal.App.4th 1317, 1332, 1335 [the Controller may exercise only those powers granted by the Legislature].) The declarations attached to the CCSOs petition show the Controller performed its statutory duties and ceased taking deductions when requested by the CCSO.

The CCSO cites no authority to support its argument that the authorization for dues deductions given by employees when they join the CCPOA becomes ineffective as a matter of law if they are promoted to a supervisory classification. Instead, it bases its argument on an interpretation of section 1153, subdivision (a) that turns on an employees status at the time the employee consents to a deduction. The argument is that section 1153, subdivision (a) requires the Controller to obtain consent from an employee authorized to have the deduction, and consent by a rank and file employee cannot bind that same employee when he or she is promoted to supervisor. But the actual statutory language directs the Controller to [m]ake, cancel or change a deduction . . . at the request of the person or organization authorized to have the deduction . . . . ( 1153, subd. (a), italics added.)

The authorization of dues deductions signed by CCPOA members is not restricted to a particular time frame, and specifically provides that it will remain in effect until cancelled by the organization at [the employees] written request . . . . Nor does the employees indication of his or her collective bargaining status on the membership application necessarily restrict the efficacy or duration of the employees CCPOA membership.

The Controller discharges its statutory duties when it makes union dues deductions as requested by the employee or authorized organization, and obtains the unions certification that they are authorized to receive the deduction. ( 1153, subds. (a) & (b).) The CCSO provides no authority for its apparent inference that the Controller has some additional ministerial duty to investigate the continuing validity of an individuals authorization and to adjust the deductions accordingly.

The CCSO also argues that the CCPOA consists of two different unions, one for rank and file and one for supervisory employees, but it does not cite the record or authority in support of that assertion, nor does it demonstrate that any such distinction is material to the Controllers statutory duties in implementing dues deductions. It is also immaterial that the Controller automatically ceases deducting dues from paychecks of CCSO members who return to rank and file status. The burden is on the CCSO, as the petitioner, to demonstrate a ministerial duty that would support issuance of the writ. (Alliance for a Better Downtown Millbrae v. Wade, supra, 108 Cal.App.4th at p. 129 [to obtain a writ of mandate, a petitioner must show a clear, present, ministerial duty on the part of the respondent]; see also MacLeod v. Long (1930) 110 Cal.App. 334, 339 [burden is on petitioner to demonstrate that respondent has a duty to perform the act sought to be compelled].) We agree with the trial court that it does not matter[] one bit whether the Controller automatically terminated CCSO deductions if a supervisory employee was demoted, and that the Controller had no statutory obligation . . . to make a change [in dues deductions] absent the instruction from the employee. The CCSO also fails to show that the CDCR has the authority, much less any duty, to request or implement changes in union membership dues deductions pursuant to the applicable statutes.

There is no reason to conclude that the Controllers implementation of section 1153 improperly encourages one union over another or interferes with a supervisory employees right to choose which, if any, union the employee wishes to join. The various provisions of the Dills Act cited by the CCSO govern collective bargaining by state employees and impose no ministerial duties on the Controller with regard to the deduction of dues from employee paychecks, nor do they require the Controller or the CDCR to notify employees of their union membership options on promotion.^[4] (See  3512 [[i]t is the purpose of [the Dills Act] to promote full communication between the state and its employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between the state and public employee organizations];  3519 [state may not interfere with the formation or administration of any employee organization, or contribute financial or other support to it, or in any way encourage employees to join any organization in preference to another];  3526 [[t]he purpose of [the Bill of Rights for State Excluded Employees] is to inform state supervisory, managerial, confidential, and employees otherwise excepted from coverage under the Ralph C. Dills Act . . . of their rights and terms and conditions of employment . . .];  3531 [[s]upervisory employees shall have the right to form, join, and participate in the activities of supervisory employee organizations of their own choosing for the purpose of representation on all matters of supervisory employer-employee relations . . . .].)

Because the CCSO failed to show that the Controller or the CDCR had a ministerial duty to automatically cease deducting union dues from paychecks of CCPOA members who are promoted to supervisory classifications, the petition for writ of mandate was properly denied.^[5]

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.

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^[1] All further statutory references are to the Government Code.

^[2] The CCPOA also collects a fair share fee from rank and file employees who do not join the union. (See  3513, subd. (k); 3515.7, subds. (a) & (b).) If an employee who has been paying a mandatory fair share fee leaves a job classification for which the CCPOA is an exclusive representative, the Controller automatically cancels the fair share fee deduction. This case does not involve a claim challenging practices regarding fair share fees.

^[3] Section 1152 provides in relevant part: Deductions may be requested by employee organizations . . . from the salaries and wages of their members, as follows: [] (a) Employee organizations may request membership dues, initiation fees, and general assessments, as well as payment of any other membership benefit program sponsored by the organization.

^[4] In fact, the CCSO concedes in its reply brief that these sections of the Government Code do not establish duties specific to [the Controller] . . . .

^[5] As noted by the trial court, the CCSO remains free to contact newly promoted employees, and to encourage those employees to join the CCSO rather than one of its competitors. The CCSO has failed to substantiate its somewhat confusing allegation that it has been improperly denied a fair opportunity to sell the newly promoted employee on their [sic] union, . . . because this newly promoted employee is, unknowingly, already a member of the CCPOA supervisory union.