El Cajon Police Officers Assn. v. City of El Cajon
Filed 5/18/06 El Cajon Police Officers Assn. v. City of El Cajon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
EL CAJON POLICE OFFICERS' ASSOCIATION, Plaintiffs and Appellants, v. CITY OF EL CAJON, Defendant and Respondent. | D047043 (Super. Ct. No. GIC839941) |
APPEAL from a judgment of the Superior Court of San Diego County, Patricia A. Y. Cowett, Judge. Reversed.
El Cajon Police Officers' Association (Plaintiff and Appellant, the Association) appeals from a judgment in favor of the City of El Cajon (Defendant and Respondent, the City), in this action for a writ of mandate and for declaratory relief. (Code Civ. Proc., §§ 1085, 1060.) The Association brought its action under the Meyers-Milias-Brown Act (MMBA),[1] which requires local public agencies to " meet and confer" with representatives of a recognized employee association before making decisions relating to employment conditions that fall within the scope of representation of such an association. (§§ 3504, 3504.5, 3505.)
Specifically, the Association sought to compel the City to meet and confer on the issue of the conditions under which compensatory time off (CTO) could be used to extend an employee's annual vacation if the use would cause City's police department (the Department) to fall below staffing minimums.
The trial court ruled against the Association's requests to meet and confer, by finding the City's requirement that employees schedule their own coverage when using CTO to extend a vacation did not have a significant or material relationship to wages, hours, or other conditions of employment. The court further ruled that this policy decision was plainly within the realm of managerial discretion.
On appeal, the Association contends the trial court erred as a matter of law in interpreting the applicable statutes and applying them to the facts. We conclude the trial court erred in denying the requested relief, and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The Association is an employee representative for the City's police officers on issues of employment conditions and terms of employment. Under the MMBA, the City
is required to meet and confer with the Association regarding policies that affect issues within the scope of bargaining, such as employment conditions. The Association and the City have entered into a memorandum of understanding (MOU), which includes, among many other provisions, the conditions under which police officers will accrue compensatory time in exchange for overtime worked, as well as vacation provisions. The MOU also includes a " City Rights" paragraph outlining managerial prerogatives, such as directing employees, maintaining the efficiency of governmental operations, and determining the methods and means by which government operations are to be conducted.[2]
As alleged in the petition, in September 2004, the Association's president sent a letter to City's chief of police to memorialize a recent conversation that the Association's president had with a City police captain, about the Department's recently proposed change to the manner in which Petitioner's members could use CTO. The petition alleges:
" Previously, Petitioner's members could use CTO to extend their annual vacation without any responsibility on the part of that member to find a replacement if the use of CTO caused [the] Department to fall below staffing minimums. Petitioner's President was informed in the conversation with Respondent's Police Captain that [the] Department would now insist that an employee must find a replacement if that employee wanted to extend their annual vacation with CTO, if the use of that CTO caused [the] Department to fall below staffing minimums (hereinafter referred to as 'CTO modification')."
Further letters were exchanged on the topic in the fall of 2004, between the City's department management and the Association. The Association contended that this CTO modification constituted an impermissible, unilateral change in working conditions under the MMBA, and it sought agreement from the City to meet and confer prior to implementation of this CTO modification. City's police chief responded in writing, acknowledging that the CTO modification constituted a change of practice, but stating his position that meeting and conferring was not required. The Association's attorney continued to request the City to meet and confer on the CTO modification prior to implementation of any change, and requested the City continue to allow the usage of CTO to extend vacations as before. The City implemented this change in January 2005.
This petition was filed in December 2004, seeking a writ of mandate and declaratory relief to compel the City to meet and confer prior to implementation of any modification to the usage of CTO in connection with vacation use. Supporting declarations were filed by the former and current presidents of the Association, both stating that for many years, the City had allowed its police officers to use CTO to extend their annual vacation without any responsibility on the individual's part to find a replacement; if such a use of CTO would cause Department staffing to fall below its minimum level, the City would arrange for a replacement. As of the end of 2004, the City was now requiring individual officers to find a replacement officer to fill their own positions, should they utilize CTO in this manner. Both declarants stated, " This change effectively restricts the ability of [Association] officers to use their accrued CTO."
The City responded and filed opposition, including a declaration from the Department's acting captain, Patrick Sprecco, who explained the vacation policy, and the decision to change the CTO coverage arrangement policy. Previously, when officers sought to extend a vacation by adding CTO to their vacation time, the Department would arrange coverage for that entire period, and when necessary, paid overtime for the coverage for the entire extended vacation. The Department had recently experienced difficulty in meeting its staffing requirements with the use of voluntary overtime, and had been increasing the use of mandatory overtime to fill the minimum staffing requirements, which was causing lower morale and more complaints. The acting captain sought to alleviate this problem by determining " that the Department should no longer make the coverage arrangements for officers who wish to extend their scheduled vacations by using compensatory time. Instead, I proposed that the officer wishing to take extended vacation should be responsible for making the coverage arrangement for the extended portion of the vacation using compensatory time. If the officer is able to arrange the coverage for the compensatory time off, the Department will continue to pay overtime for the coverage." This idea was implemented in January 2005.
Acting captain Sprecco's declaration explains the City, by now requiring that an officer make his or her own coverage arrangements in order to add CTO to a scheduled vacation, seeks to promote fairness and the balancing of interests of the various individuals involved. The declaration concludes, " The basic rule allowing officers to take compensatory time off, subject to meeting minimum staffing requirements, has not changed. The ability of officers to accrue compensatory time in exchange for overtime worked, and the amount of overtime accrued, as set forth in the MOU, has not changed."
The Association filed its reply, arguing that the CTO modification policy fell within the scope of collective bargaining, as it affected employment conditions and was not a fundamental managerial policy decision outside of the requirements for meeting and conferring.
After issuing a telephonic ruling and holding oral argument, the trial court filed its order and judgment denying the petition and the request for declaratory relief. The court ruled that the change in the manner of scheduling CTO following vacation leave was not subject to the " meet and confer" requirements of the MMBA, because the policy that the officers schedule their own coverage when using CTO to extend a vacation did not have a significant or material relationship to wages, hours, or other conditions of employment. The court also found that the subject decision was plainly within the realm of managerial discretion, and as such was excluded from meet and confer requirements, as follows:
" Here, the change to scheduling CTO does not alter the officers' rights to take CTO, as the right to CTO has always been contingent on scheduling coverage. The new requirement places the minimal burden of requiring the officers desiring to take CTO in addition to regular vacation to schedule their own coverage."
The Association appeals the judgment.
DISCUSSION
We first set forth applicable principles for reviewing a judgment issued in the context of an MMBA action to enforce a meet and confer provision. We then turn to the specific arguments raised concerning the CTO modification.
I
APPLICABLE STANDARDS
The parties dispute whether the standard on appeal in this case should be a straightforward independent review of a question of law (the Association), or the substantial evidence test requiring this court to defer to factual findings underlying the trial court's judgment (the City). The Association relies on cases such as Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 544, representing the rule that when a court must determine whether a party's claim falls within the scope of a statute, this interpretation of statutory language is a question of law for the appellate court's independent determination. In contrast, the City argues that these statutory interpretation issues cannot be resolved as questions of law, because they involve a consideration of conflicting evidence (declarations and exhibits), such that the substantial evidence test should apply. (Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 291-292.)
We first take note that on this appeal, the City does not dispute that the requirement that officers now secure their own coverage to use CTO to extend a vacation amounted to a " change" to Department procedure, which took effect at the beginning of January 2005. The City's correspondence, as shown in the trial exhibits, and its response also admit such a change. However, the City continues to disagree with the Association on whether this type of change should be characterized as predominantly a managerial decision, whether it significantly affects working conditions, and whether there ever existed any " established past practice" for purposes of collective bargaining requirements, regarding any entitlement to use CTO. The City therefore contends no material effect on working conditions or hours was created through the change. We note that in making its points, the City mainly relies on its acting captain's declaration setting forth the changes made, citing it over and over, but the City does not otherwise raise or cite to any other disputed facts.
Accordingly, the record demonstrates that the parties are only disputing the applicability of the MMBA statutory scheme to their admitted course of dealings. In such a case, in reviewing the trial court's denial of the writ and declaratory relief, we are required to examine the undisputed facts to resolve the questions of law presented. This invokes the appellate court's exercise of independent judgment. (Riverside Sheriff's Association v. County of Riverside (2003) 106 Cal.App.4th 1285, 1289 (Riverside Sheriff's Association).)
II
MMBA
Under the MMBA, employers are obligated to bargain with employee representatives about matters that fall within the " scope of representation" (§§ 3504, 3504.5, 3505). (Santa Clara County Counsel Attorneys Assn. v. Woodside (1994) 7 Cal.4th 525, 536; Building Material & Construction Teamsters' Union v. Farrell (1986) 41 Cal.3d 651, 657 (Building Material).) " Specifically, 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;' 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,' " prior to the public agency's determination of policy or a course of action. (Building Material, supra, at p. 657.)
To define matters within the " scope of representation," section 3504 includes " '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.' " (Building Material, supra, 41 Cal.3d at p. 658.) The first of these italicized terms was explained in Building Material based on federal precedents (e.g., Westinghouse Electric Corp. v. NLRB (4th Cir. 1967) 387 F.2d 542, 548):
" For an action by an employer to fall within the scope of representation, and thus be subject to the mandatory bargaining requirements of the MMBA, it must have a significant effect on the 'wages, hours, and other terms and conditions of employment' of the bargaining-unit employees. [Citations.] It is clear that the permanent transfer of work away from a bargaining unit often has a significant effect on the wages, hours, and working conditions of bargaining-unit employees. [Citations.] . . . [¶] The employer is required to bargain, however, only if the work transfer adversely affects the bargaining unit in question. [Citations.]" (Building Materials, supra, 41 Cal.3d at p. 659.)
With regard to the second of these italicized terms as explained in Building Material, supra, 41 Cal.3d 651, i.e., " the merits, necessity, or organization of any service," the Supreme Court said:
" Even 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.]" (Id. at p. 660; italics added.)
To determine which category a particular employment-related issue falls into, for purposes of interpreting the meet and confer requirement, the Supreme Court has taught that a factual foundation may be required for " the moulding and resolution of the issues." (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 611, 620-621 (Fire Fighters Union).) For example, defining and applying statutory terms in context may require development of facts in arbitration. (Id. at p. 615.) Where, as here, the parties essentially do not dispute the relevant sequence of events and factual transactions, de novo review is appropriate on appeal for determining if the specific issue raised falls within the scope of representation, under the language of section 3504 as explicated by case law. We also must determine as a matter of law on this settled record whether an exception to the meet and confer process applies, involvinga fundamental managerial or policy decision that should fall outside of the scope of representation. (Building Material, supra, 41 Cal.3d at pp. 658-659.)
III
CTO
As already noted, it is not disputed on appeal that a change in the coverage procedure for using CTO to extend a vacation was implemented in January 2005. The Association had filed its petition in November 2004, after it learned of the proposed change. We first address the trial court's ruling with regard to its acceptance of the City's argument that its CTO modification amounted to a fundamental policy managerial decision, to which meet and confer requirements should not apply.
Next, we discuss the Association's two-pronged challenge to the trial court's ruling that it had failed to show any significant, direct or material effect upon hours or working conditions from the change. The Association first argues that the record as a whole properly supports a determination that the CTO modification had significant and adverse effects upon the abilities of employees to utilize their accrued CTO, such that bargaining requirements must apply to this policy regarding hours and conditions of employment. The Association alternatively argues that this change in policy represented a departure from an established past practice, further demonstrating a significant effect on hours and terms or conditions of employment.
A
Exception From Meet And Confer Requirements:
Fundamental Managerial Policy Decision?
Meeting and conferring on the CTO modification would not be required if the action involved only a " consideration of the merits, necessity, or organization of any service or activity provided by law or executive order." (Building Material, supra, 41 Cal.3d at p. 658.) Even if an issue appears to be primarily a fundamental managerial or policy decision, it can still be brought within the scope of representation, but " 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.]" (Id. at p. 660.) The City seeks to characterize the CTO modification as falling well within its managerial discretion in determining the overall course of its business, and the shape and structure of the organization.
In Huntington Beach Police Officers' Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 503 (Huntington Beach), the court rejected a similar argument that certain work schedule changes should fall within managerial discretion, and therefore be exempt from bargaining, as follows: " Nor may the city validly justify its attempts to make work schedule a nonnegotiable prerogative of management on the theory that the subject pertains to 'organization' of a city department." (Ibid.) For this conclusion, the court relied on Fire Fighters Union, supra, 12 Cal.3d 608, where the Supreme Court explained that the express exclusion from " scope of representation" of a " 'consideration of the merits, necessity, or organization of any service' " was intended by the Legislature " to forestall expansion of the phrase 'wages, hours, and other terms and conditions of employment' to include 'more general managerial policy decisions.' [Citation.]" (Huntington Beach, supra, 58 Cal.App.3d at p. 503.)
Here too, the City cannot realistically claim that the CTO modification amounted to only a change in the organization of its services, such that no bargaining would be required. Rather, the CTO modification directly related to topics that are normally subject to the meet and confer requirement, i.e., work schedule or the required hours to be worked, as terms and conditions of employment. As a matter of law, this managerial exception to the requirement for meeting and conferring does not apply to this undisputed set of facts.
Utilization of CTO: Significant and Adverse Effect on
Hours or Working Conditions?
Turning to the Association's other arguments that the requirements of meeting and conferring will apply, the main issue is whether this CTO policy modification properly fell within the scope of representation, as a matter relating to employment conditions and employer-employee relations. (Building Material, supra, 41 Cal.3d at p. 658.) It is well accepted that weekly schedules of hours are proper subjects of negotiation under the MMBA. (Fire Fighters Union, supra, 12 Cal.3d 608, 617-618.) Likewise, the transfer or reassignment of bargaining-unit work to nonunit employees is a proper subject for negotiation under the MMBA. (Building Material, supra, 41 Cal.3d 651, 661.) In Huntington Beach, 58 Cal.App.3d 492, 503, the court found that the city's decision to make a resolution rendering work schedules nonnegotiable was not in compliance with the purpose of the MMBA statutory scheme.
The MOU in effect here outlines the conditions under which Association members will accrue compensatory time in exchange for overtime worked, as well as vacation policies. However, it does not set forth rules for usage of CTO under the disputed circumstances. The City accordingly argues, and the trial court agreed, that due to the nature of the subject change, there was no material or direct effect upon hours or terms and conditions of employment. Instead, the City argues that this modification does not change an officer's fundamental ability to use CTO, simply because such usage " has always been contingent on the availability of replacement staffing."
At the outset, we will examine the nature of the current policy without regard to the Association's " binding past practice argument," which we will next discuss separately. We disagree with the City that the current policy does not affect, in a direct and material way, the employees' ability to use their accrued CTO, in determining their schedules of hours to be worked. Looking at the declarations supplied by each party and reading them together, it is clear that the Association carried its initial burden of proof of showing that the CTO modification affected, in a direct and material way, the employees' working hours and work schedules, which normally fall within the requirements of meeting and conferring under the MMBA. The City is now requiring individual officers to find a replacement officer to fill their own positions, when they seek to utilize CTO to extend a scheduled vacation. Both the Association president and former president stated in their declarations that based upon their experience, " This change effectively restricts the ability of [Association] officers to use their accrued CTO."
The City's showing in opposition to the petition in some ways actually supports the Association's allegations. The declaration by its acting police captain acknowledges that previously, the Department had utilized mandatory overtime to make the arrangements for replacements. While referring to the new requirement that officers must find their own coverage for the CTO, the acting captain stated that the basic rule had not changed, because officers were still allowed to take CTO subject to the Department meeting minimum staffing requirements. However, these undisputed facts reveal that the critical portion of the rule that changed was the identity of the person who would have the burden to arrange for the replacement. Although the Department has the ability to order replacement officers into work, it is not disputed that individual employees have no such power. Their work assignments have effectively been changed and new conditions have been placed upon the Association members' ability to utilize accrued CTO. The CTO modification amounts to a significant and adverse change to the employees' required hours and/or conditions of work.
Moreover, the reasons given by the City for the change, such as the effect upon Department morale, serve to illustrate the material or direct effect created upon the hours or terms and conditions of employment of Association members. The declaration of the acting captain identifies the problems associated with the past practice regarding CTO usage as an explanation for the change, and specifically ties it to employees' hours and conditions of work, which are normally subjects of bargaining. This supports an inference that the ability of particular employees to utilize the CTO that they had accrued under the MOU provisions was impacted by the modification. The Association may appropriately rely on the City's factual showing in opposition to the petition to demonstrate that the manner of permissible CTO usage significantly and adversely affects employees' hours and working conditions, and therefore falls within the requirements for meeting and conferring.
The City nevertheless argues that Mortensen v. County of Sacramento (9th Cir. 2004) 368 F.3d 1082, 1086 (Mortensen) supports its position that the CTO modification was merely an operational decision that did not directly impact the working conditions of the bargaining unit, since it only applied in the specialized factual situation of the use of CTO to extend a scheduled vacation, and only when that would leave the department short-staffed. The City argues that this particular situation did not create any sufficiently direct impact on hours or working conditions, so as to invoke the meet and confer requirement.
In Mortensen, supra, 368 F.3d 1082, 1086, the actual issue presented was whether the Fair Labor Standards Act (FLSA, 29 U.S.C. § 201 et seq.; 207(o)), required the defendant county to allow its deputies to use accrued CTO on the days they specifically requested, unless it would have " unduly disrupted" the law enforcement agency's function, under that section's language. The plaintiff employee sought injunctive relief, alleging that the county's policy governing deputies' use of CTO violated section 207(o)(5) of the FLSA. He contended that the county was required to grant his request to use CTO on a specific date unless the county could show that the request would unduly disrupt its operations. The employee's theory was that qualified substitute staff could normally be made available on notice in a reasonable manner within the meaning of the statute. The court was therefore required to determine de novo the correct interpretation of section 207(o)(5), and whether the county had properly applied the statute to its operations. This resulted in the court of appeal affirming the district court's grant of summary judgment in favor of the county. (Id. at p. 1091.) This authority is distinguishable on its facts and law, and does not, even by analogy, illuminate the MMBA issues.
Specifically, as argued by the Association, even if the City has previously given employees certain latitude with regard to CTO usage, " that latitude does not empower a public employer to make unilateral changes to policies affecting either hours or working conditions . . . ." We agree with this approach. As already stated, it is not determinative that the MOU does not expressly cover CTO usage in connection with vacations, but rather only CTO accrual. The record nevertheless shows that the subject modification directly and significantly affects Association members' current obligations regarding hours worked or working conditions, in terms of when they must report for duty and under what conditions. The trial court erred in denying the petition on these grounds.
C
Existence of " Binding Past Practice?"
As an additional ground for reversal, the Association contends that it can show the City engaged in a binding past practice, such that a unilateral change to it would be in violation of the MMBA. The Association relies on Riverside Sheriff's Association, supra, 106 Cal.App.4th 1285, 1290-1291, in which the employee association had similarly argued that the employer's denial of a particular benefit had a significant effect on the terms of employment, and therefore the association sought to demonstrate that bargaining requirements were implemented. The court of appeal found no such entitlement to bargaining existed, because the subject labor agreement did not expressly provide an entitlement to this benefit, which had instead been treated as discretionary with management. Thus, the court ruled that no binding past practice to allow it had been created. (Id. at p. 1292.)
In resolving that issue, the court looked to " the definition applied by the California Public Employment Relations Board, which has adopted the rule that 'to be binding a past practice: [¶] . . . must be (1) unequivocal; (2) clearly enunciated and acted upon; and (3) readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties. [Citation.] The [California Public Employment Relations] Board has . . . described a valid past practice as one that is " regular and consistent" or " historic and accepted." . . .' [Citation.]" (Riverside Sheriff's Assn., supra, 106 Cal.App.4th at p. 1291.) The employees' association will have the burden of proving the existence of such a binding past practice. (Ibid.) In that case, the sheriff's association did not meet its burden, because it could not establish that the practice (allowing step increases while on a certain type of disability leave) " was unequivocal, regular and consistent, clearly enunciated or readily ascertainable over a reasonable period of time." (Id. at p. 1292.)
In our case, both parties acknowledge that the MOU does not spell out CTO usage policies, but only the conditions under which CTO may be accrued. At oral argument, counsel for the Association contended that based on the declarations of the parties, this court can conclude as a matter of law that a continuing pattern of interpretation of the MOU had previously allowed CTO to be used to extend annual vacations, without regard to arranging coverage, and that this interpretation amounted to a binding past practice, which was not subject to change without bargaining requirements being met. (Riverside Sheriff's Association, supra, 106 Cal.App.4th at p. 1292.)
There are several problems with this theory. First, the analysis in Riverside Sheriff's Association, supra, 106 Cal.App.4th 1285 is not squarely applicable, because the Association has not shown that the previous interpretation of the MOU with regard to CTO usage was " unequivocal, regular and consistent, clearly enunciated or readily ascertainable over a reasonable period of time." (Id. at p. 1292.) The MOU provides for accrual of CTO, and such a benefit theoretically has value only if it can be used in some manner. However, utilizing CTO in connection with vacation was not shown to be " unequivocally" allowed by the MOU, as understood by the parties. Rather, this record provides very little information about whether or how the previous CTO policy was " regularly and consistently" applied over a reasonable period of time. The declarations do not address how the previous policy actually affected any Association members' rights to use their accrued time, in terms of how many employees participated in combining their CTO with vacation time, either before or after the modification. This is partly attributable to the early stage of these proceedings, since the Association filed its petition promptly upon learning that the proposed change was about to be implemented, and filed its declarations a few months thereafter. Obviously, it is difficult for either a trial court or an appellate court to evaluate the significance or effect of a change of a previously established employment practice while the facts are still being developed. We cannot find the Association has successfully demonstrated that the City's previous policy of allowing Association members to utilize their CTO to extend their vacations, without the responsibility for arranging coverage, fell within the definition of a " binding past practice," because not enough information has been provided about the source, nature and extent of the past practice.
In any case, we need not base our decision upon this alternative argument by the Association, as its showing regarding the first prong of its argument was sufficient, as discussed above. In conclusion, we do not disagree that there may be valid policy reasons for the City to seek to pursue the CTO modification procedure, in terms of promoting overall department morale and officer safety. We decide only in light of accepted standards regarding employer actions that have a " significant effect on the 'wages, hours, and other terms and conditions of employment' " that this CTO modification, made in disregard of plaintiff's request to meet and confer, was in violation of the MMBA. (Building Material, supra, 41 Cal.3d at p. 659.)
DISPOSITION
The judgment is reversed with directions to the trial court to issue the writ of mandate and declaratory relief as prayed. Each party to bear its own costs.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
McINTYRE, J.
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[1] Government Code sections 3500-3510. All further statutory references are to the Government Code unless noted.
[2] The Association argues on appeal that it never waived any rights to assert that meet and confer requirements will apply to this factual situation, merely based on its agreement to the " City Rights" paragraph in the MOU. We need not discuss this argument, since it does not appear from the respondent's brief that the City is pursuing it at this time.
