SEIU Local 790 v. San Francisco

Filed 4/25/07 SEIU Local 790 v. San Francisco CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

Service Employees International Union, Local 790 (the Union), appeals from an order denying its petition to compel arbitration of a dispute with the City and County of San Francisco et al. (the City) over City amendments of a job classification that allegedly violate the Citys labor agreements with the Union. Based on the language of the agreements, the San Francisco City Charter (City Charter), and the applicable administrative rules, we conclude that the dispute is not subject to arbitration and affirm the order.

I. BACKGROUND

In 1997, the City transferred responsibility for emergency medical services (EMS) from the Department of Public Health to the Fire Department. Incident to the transition, two job classifications were created within the Fire Department: H-1 Fire Rescue Paramedic (H-1), and H-3 Firefighter Paramedic (H-3). H-1 was designed as a temporary means of transitioning Department of Public Health classification 2532 paramedics to the Fire Department. Paramedics moved over time from the 2532 classification to the H-1, and then H-3, classifications. By November 2005, the H-3 ranks had grown from zero to 235, and only 14 active employees remained in H-1.

The Union is recognized as the bargaining representative for the H-1 classification in a memorandum of understanding with the City (H-1 MOU); another union, Fire Fighters Union Local 798, represents the H-3 class. The Union is the recognized representative for the 2532 classification, and the 2526 Ambulance Driver classification, under a collective bargaining agreement with the City (Miscellaneous MOU).

In October 2005, the Citys Department of Human Resources (DHR) amended the H-3 classification to create a deep class with multiple levels: Level I H-3 EMT, Level II H-3 paramedic, and Level III H-3 firefighter/paramedic. DHR developed this deep class based on the common functions, cumulative duties, and related knowledge, abilities and skills of these EMS positions. In addition, the H-3 deep class allows for a clear career path for employees, multiple entry points into the H-3 classification, and increased operational flexibility for the Fire Department.

The Union objected to the amendments in a grievance under the H-1 and Miscellaneous MOUs, and in a protest to the DHR. The grievance alleged that the amended classifications duplicate the essential duties and characteristics and the work of existing classifications, including both H1 and 2526. The grievance demanded that no employees . . . be hired into the amended H3 Classification; rather, they should be hired into the appropriate [Union] classification . . . . The City refused to arbitrate the grievance on the ground that classification actions are not grievable, and the DHR denied the protest.

The Union then petitioned herein to compel arbitration, and appealed the DHR decision to the Civil Service Commission (CSC). The CSC appeal requested among other things that Level I H-3 EMT positions be allocated to the 2526 or 2532 classifications, and that Level II H-3 paramedic positions be allocated to the H-1 classification. The appeal was denied by the CSC, and the trial court denied the petition to compel arbitration.

II. DISCUSSION

A. Contentions of the Parties and the Language at Issue

(1) Unions Position

The Miscellaneous and H-1 MOUs provide for arbitration of grievances, and the Union submits that its objection to the H-3 amendments constitutes a grievance under various provisions of the MOUs.

The argument for arbitration under the Miscellaneous MOU rests primarily on Article I, section A.1., which acknowledges the Unions status as bargaining representative, and on Article I, sections A.3 and A.4. Section A.3 provides: Whenever a new class is created by the [DHR] which is the result of consolidation or splitting off of one or more former classes, and in those instances when the duties and responsibilities of the new class(es) are the same or similar to those of the former class(es), then the bargaining unit assignment and representation shall continue to be the same as for the former class(es) without notice and appeal procedures required by the CSC Rule and provisions of the San Francisco Administrative Code. Section A.4 states: Should there be a dispute regarding appropriate Unit assignment of any such classification(s), such dispute shall be resolved in accordance with the grievance and arbitration procedure.

The Union also cites Article IV, section A, which defines grievance to mean any dispute which involves the interpretation or application of, or compliance with this Agreement, and Article I, section B.8, which states that [u]pon adoption, the provisions of this Agreement shall supersede and control over contrary or contradictory Charter provisions, ordinances, resolutions, rules or regulations of the City to the extent permissible by Charter Section A8.409.

The argument for arbitration under the H-1 MOU is based on the agreements recognition of the Union as bargaining representative (Section 2), and the definition of grievance to include disputes regarding the application of this Agreement (Section 34.A).

(2) Citys Position

The City contends inter alia that neither MOU provides for arbitration of the dispute involved here, and that the dispute is not arbitrable under the City Charter and CSC rules.

The Miscellaneous and H-1 MOUs both provide that an arbitrator cannot add, delete, or modify terms of the agreement. Section 34.D of the H-1 MOU stipulates that: An Arbitrator selected pursuant to this Agreement shall have no power or authority to alter or supersede the [City] Charter, the Civil Service Commission Rules, the Administrative Code, or a Federal Consent Decree. Any decision or award shall be invalid if it conflicts with any of said provisions and those provisions shall prevail.

Section A8.409-3 of the City Charter, which covers miscellaneous employees such as those in classes 2526 and 2532, states that those matters within the jurisdiction of the [CSC] which establish, implement and regulate the civil service merit system shall not be subject to bargaining, and that such matters include the establishment and maintenance of a classification plan including the classification and reclassification of positions and the allocation and reallocation of positions to the various classifications. CSC rule 309.1.5, which applies to uniformed Fire Department personnel and thus to the H-3 classification, vests the Human Resources Director with the authority to amend class specifications as necessary to reflect the major duties of positions within the class and the job related knowledge, skill and abilities necessary to perform the functions of the class. CSC Rule 309.2.4 provides that: The decision of the Human Resources Director is appealable to the [CSC]. The decision of the [CSC] shall be final and not subject to reconsideration.

B. Analysis

The question of whether a collective bargaining agreement creates a duty for the parties to arbitrate a particular grievance is an issue for judicial determination. . . .  Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute. [Citation.]  [Citation.] However, there is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate. [Citation.] (United Public Employees v. City and County of San Francisco (1997) 53 Cal.App.4th 1021, 1026 (United Public Employees).) The right to arbitration depends upon the terms of the contracta petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Ibid.) [T]he petitioner bears the burden of establishing the existence of a valid agreement to arbitrate . . . . (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356.)

The ruling on the petition herein is subject to de novo review because there is no conflicting extrinsic evidence as to the meaning of the MOUs. (Amalgamated Transit Union Local 1277 v. Los AngelesCounty Metropolitan Transportation Authority (2003) 107 Cal.App.4th 673, 685; NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 71.) We independently agree with the trial court that the Unions protest against the H-3 amendments is not an arbitrable grievance under either of the MOUs.

The City Charter supersedes all laws inconsistent therewith (Cal. Const., art. XI,  3, subd. (a)). The City Charter represents the supreme law of the City and County of San Francisco.

Looking first at the Miscellaneous MOU, we can assume for purposes of this opinion that the H-3 amendments create new classes that consolidate or split off former classes within the meaning of Article I, section A.3, and that the Unions challenge would be arbitrable under section A.4 as a dispute regarding appropriate Unit assignment of . . . such classification(s). However, the CSCs classification and reclassification of positions, and allocation and reallocation of positions to the various classifications of miscellaneous employees are exempted from bargaining under section A8.409-3 of the City Charter. Since those actions are not subject to bargaining, we agree with the City that they cannot be altered or negated by arbitration under the terms of a bargaining agreement. We note in this regard that the Miscellaneous MOU purports to supersede conflicting City Charter provisions only to the extent permissible by Charter Section A8.409. And Section A8.409-3 does not permit bargaining of theses classifications.

Our conclusion is supported by the decision in United Public Employees, supra, 53 Cal.App.4th 1021. In that case, the union sought to arbitrate whether a member had been properly classified as a safety-sensitive employee for purposes of drug and alcohol testing. One reason the petition was denied was that City Charter section A8.409-3 specifically carved out [classification decisions] from the scope of bargaining, and relegate[d] them to the exclusive jurisdiction of the civil service commission. (Id. at p. 1031.) The court thus concluded that allow[ing] an arbitrator to exempt an employee in a job classification properly designated as safety-sensitive from drug testing would conflict . . . with the San Francisco City Charter. (Id. at pp. 1030-1031.)

Likewise here, for an arbitrator to require, as the Union demands, that employees be hired into Union-represented classifications rather than the amended H-3 subclasses would conflict with the City Charters provisions for the CSCs exclusive jurisdiction over classification matters. The Union ventures that arbitration of its grievance can coexist with the CSCs classification action because the grievance only challenges the effects or consequences of that action . . . . However, the remedy the Union seeks would effectively replace the new subclasses that the CSC has created with other classifications. Arbitration of the grievance would therefore impinge on the CSCs exclusive jurisdiction.

The situation is different, but result is the same, under the H-1 MOU. That MOU covers Fire Department employees, and the City Charter does not preclude bargaining over classifications of those employees like it does for miscellaneous employees. However, the H-1 MOU acknowledges and preserves the CSCs exclusive jurisdiction over classification matters by precluding any arbitration decision that would conflict with CSC rules. As we have noted, those rules empower the CSC to amend classifications, and to finally resolve disputes involving such amendments. Since those rules would be violated by arbitration of the issues raised and decided in the Unions appeal to the CSC, arbitration is not authorized under the terms of the H-1 MOU.[1]

III. DISPOSITION

The order denying the petition to compel arbitration is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

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Margulies, J.

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[1] In view of this conclusion, we need not reach the Citys argument that the Union cannot compel arbitration because it failed to contest the CSCs decision by petitioning for a writ of mandate.