Supreme Court of California Justia
Citation 39 Cal. 4th 623, 139 P.3d 532, 47 Cal. Rptr. 3d 69
Claremont Police etc. v. City of Claremont

Filed 8/14/06

IN THE SUPREME COURT OF CALIFORNIA

CLAREMONT POLICE OFFICERS
ASSOCIATION, )

Plaintiff and Appellant,
S120546
v.
Ct.App. 2/3 B163219
CITY OF CLAREMONT et al.,
Los Angeles County
Defendants and Respondents. )
Super. Ct. No. KS007219

In this case, we consider a provision of the Meyers-Milias-Brown Act
(MMBA) (Gov. Code,1 § 3500 et seq.), which governs labor-management
relations at the local government level. Section 3505 mutually obligates a public
employer and an employee organization to meet and confer in good faith about a
matter within the “scope of representation” concerning, among other things,
“wages, hours, and other terms and conditions of employment” (§ 3504). A
fundamental managerial or policy decision, however, is outside the scope of
representation
(§ 3504), and is excepted from section 3505’s meet-and-confer requirement.

1
All further statutory references are to the Government Code unless
otherwise indicated.
1



For reasons that follow, we conclude that there is a distinction between an
employer’s fundamental managerial or policy decision and the implementation of
that decision. To determine whether an employer’s action implementing a
fundamental decision is subject to the meet-and-confer requirement (§ 3505), we
employ the test found in our decision in Building Material & Construction
Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 660 (Building Material).
Applying that test to the case at hand, we reverse the judgment of the Court
of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Claremont Police Officers Association (Association) is an
employee organization representing public employees of defendant City of
Claremont (City), including police officers and recruits, police agents,
communication officers, record clerks, jailors and parking enforcement officers.
In May 2000, the City’s police department (Department) implemented a tracking
program to determine if police officers were engaging in racial profiling. The
Association, as the “[r]ecognized employee organization,”2 did not request to meet
and confer with the City beforehand. Under the program, if an officer stopped a
vehicle or person without issuing a citation or making an arrest, the officer was
required to radio the Department with information about the stop, including the
person’s race. The program lasted one year.
After the City’s police commission concluded that the data collected in the
pilot tracking program was insufficient to determine whether officers engaged in

2
A “[r]ecognized employee organization” is “an employee organization
which has been formally acknowledged by the public agency as an employee
organization that represents employees of the public agency.” (§ 3501, subd. (b).)
2


racial profiling, the commission appointed a subcommittee and advisory panel to
prepare a further study. In February 2002, the police commission adopted the
subcommittee’s recommendation that the Department implement a “Vehicle Stop
Data Collection Study” (Study), which is at issue in this case. This Study required
officers on all vehicle stops to complete a preprinted scantron form called a
“Vehicle Stop Data Form” (Form). The Form included questions regarding the
“driver’s perceived race/ethnicity,” and the “officers’ prior knowledge of driver’s
race/ethnicity.” On average, the Form takes two minutes to complete, and an
officer may complete between four and six Forms for each 12-hour shift. Each
Form is traceable to the individual officer making the stop. The Study was to last
15 months, commencing July 1, 2002.
In April 2002, the Association requested that the City meet and confer
regarding the Study because it asserted “the implementation of policy and
procedures in regards to this area falls under California Government Code section
3504.” On April 11, 2002, the City gave written notice disagreeing that the Study
fell within the scope of representation under section 3504. On June 27, 2002, the
Department informed officers it would implement the Study effective July 1,
2002. On July 11, 2002, the Association filed a petition for writ of mandate to
compel the City and the Department not to implement the Study until they meet
and confer in good faith under the MMBA.
On August 22, 2002, the superior court denied the petition. In its detailed
statement of findings and conclusions, the court concluded, among other things,
that the Study did not substantially affect the terms and conditions of the
Association members’ employment, and that “given the de minimus impact upon
workload, and the predominantly policy directed objectives of the Study, . . . the
Study falls primarily within management prerogatives under §3504, and is not a
3
matter within the scope of representation requiring compliance with the meet and
confer provisions of the MMBA.”
The Court of Appeal reversed. While it concluded the City’s decision to
take measures to combat the practice of racial profiling and the public perception
that it occurs is “a fundamental policy decision that directly affects the police
department’s mission to protect and to serve the public,” the Court of Appeal held
that “the decision precisely how to implement that fundamental policy, however,
involves several variables affecting law enforcement officers and is not itself a
fundamental policy decision.”3 The Court of Appeal explained that “the vehicle
stop policy significantly affects officers’ working conditions, particularly their job
security and freedom from disciplinary action, their prospects for promotion, and
the officers’ relations with the public. Racial profiling is illegal. [Fn. omitted.]
An officer could be accused of racial profiling and subjected to disciplinary action,
denial of promotion, or other adverse action based in part on the information
collected under the new policy. For this reason, the manner that the information is
collected and the accuracy of the data and data analysis are matters of great
concern to the association’s members.”
We granted review.

3
Although the Court of Appeal appeared at times to construe the City’s
fundamental decision as the decision to undertake measures against the practice of
racial profiling, on the one hand, and the implementation of that decision as the
adoption of the Study, on the other, neither of the parties adopts such a broad
construction; nor do we. (See post, at pp. 8-10.)
4


II. DISCUSSION
A. Background of the MMBA
The MMBA applies to local government employees in California. (Fire
Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 614, fn. 4 (Fire Fighters
Union).)4 “The MMBA has two stated purposes: (1) to promote full
communication between public employers and employees, and (2) to improve
personnel management and employer-employee relations. (§ 3500.) To effect
these goals the act gives local government employees the right to organize
collectively and to be represented by employee organizations (§ 3502), and
obligates employers to bargain with employee representatives about matters that
fall within the ‘scope of representation.’ (§§ 3504.5, 3505.)” (Building Material,
supra, 41 Cal.3d at p. 657.) The duty to meet and confer in good faith is limited to
matters within the “scope of representation”: the public employer and recognized
employee organization have a “mutual obligation personally to meet and confer
promptly upon request by either party . . . and to endeavor to reach agreement on
matters within the scope of representation prior to the adoption by the public
agency of its final budget for the ensuing year.” (§ 3505.) Even if the parties
meet and confer, they are not required to reach an agreement because the employer
has “the ultimate power to refuse to agree on any particular issue. [Citation.]”

4
The MMBA has its roots in the 1961 enactment of the George Brown Act,
which originally appeared as sections 3500 through 3509. (See Stats. 1961, ch.
1964, pp. 4141-4143.) “The legislative revisions of 1968 and 1971 reserved those
sections for the Meyers-Milias-Brown Act, and reenacted the George Brown Act,
now limited to the relationship between the state government and state employees,
as Government Code sections 3525-3536.” (Glendale City Employees’ Assn., Inc.
v. City of Glendale
(1975) 15 Cal.3d 328, 335, fn. 5.)
5


(Building Material, supra, 41 Cal.3d at p. 665.) However, good faith under
section 3505 “requires a genuine desire to reach agreement.” (Placentia Fire
Fighters v. City of Placentia (1976) 57 Cal.App.3d 9, 25.)
1. “Scope of representation”
Section 3504 defines “scope of representation” to include “all matters
relating to employment conditions and employer-employee relations, including,
but not limited to, wages, hours, and other terms and conditions of employment,
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.” (Italics added.) The definition of “scope of representation” and
its exception are “arguably vague” and “overlapping.” (Building Material, supra,
41 Cal.3d at p. 658; Fire Fighters Union, supra, 12 Cal.3d at p. 615.) “ ‘[W]ages,
hours and working conditions,’ which, broadly read could encompass practically
any conceivable bargaining proposal; and ‘merits, necessity or organization of any
service’ which, expansively interpreted, could swallow the whole provision for
collective negotiation and relegate determination of all labor issues to the city’s
discretion.” (Fire Fighters Union, supra, 12 Cal.3d at p. 615.)
Courts have interpreted “wages, hours, and other terms and conditions of
employment,” which phrase is not statutorily defined, to include the transfer of
bargaining-unit work to nonunit employees (Building Material, supra, 41 Cal.3d
at p. 659; Dublin Professional Fire Fighters, Local 1885 v. Valley Community
Services Dist. (1975) 45 Cal.App.3d 116, 119); mandatory drug testing of
employees (Holliday v. City of Modesto (1991) 229 Cal.App.3d 528, 530
(Holliday)); work shift changes (Independent Union of Pub. Service Employees v.
County of Sacramento (1983) 147 Cal.App.3d 482, 487); and the adoption of a
disciplinary rule prohibiting use of city facilities for personal use (Vernon Fire
6
Fighters v. City of Vernon (1980) 107 Cal.App.3d 802). Notwithstanding section
3504’s broad language, to require an employer to bargain, its action or policy must
have “a significant and adverse effect on the wages, hours, or working conditions
of the bargaining-unit employees.” (Building Material, supra, 41 Cal.3d at pp.
659-660.)
2. “Merits, necessity or organization”
Even if an employer’s action or policy has a significant and adverse effect
on the bargaining unit’s wages, hours, and working conditions, the employer may
be excepted from bargaining requirements under the “merits, necessity, or
organization” language of section 3504. (Building Material, supra, 41 Cal.3d at p.
660.) This exclusionary language, which was added in 1968, was intended to
“forestall any expansion of the language of ‘wages, hours and working conditions’
to include more general managerial policy decisions.” (Fire Fighters Union,
supra, 12 Cal.3d at p. 616; Stats. 1968, ch. 1390, § 4, p. 2727.) “Federal and
California decisions both recognize the right of employers to make unconstrained
decisions when fundamental management or policy choices are involved.”
(Building Material, supra, 41 Cal.3d at p. 663; Berkeley Police Assn. v. City of
Berkeley (1977) 76 Cal.App.3d 931, 937 (Berkeley Police Assn.) [“To require
public officials to meet and confer with their employees regarding fundamental
policy decisions such as those here presented, would place an intolerable burden
upon fair and efficient administration of state and local government”]; see also
First National Maintenance Corp. v. NLRB (1981) 452 U.S. 666, 678-679 (First
National Maintenance).)
Such fundamental managerial or policy decisions include changing the
policy regarding a police officer’s use of deadly force (San Jose Peace Officer’s
Assn. v. City of San Jose (1978) 78 Cal.App.3d 935, 947 (San Jose Peace
7
Officer’s Assn.)), permitting a member of the citizen’s police review commission
to attend police department hearings regarding citizen complaints and sending a
department member to review commission meetings (Berkeley Police Assn.,
supra, 76 Cal.App.3d 931), and, in the context of private labor relations, closing a
plant for economic reasons (N.L.R.B. v. Royal Plating & Polishing Co. (3d Cir.
1965) 350 F.2d 191, 196 (Royal Plating)).
B. Distinction Between an Employer’s Fundamental Decision and the
Implementation and Effects of That Decision
Both parties agree that the City’s decision to take measures against racial
profiling, specifically its decision to implement the Study as a necessary first step,
is a fundamental managerial or policy decision. Racial profiling, which has been
defined as “the practice of detaining a suspect based on a broad set of criteria
which casts suspicion on an entire class of people without any individualized
suspicion of the particular person being stopped” (Pen. Code, § 13519.4, subd.
(e)), is expressly prohibited by statute (id., subd. (f)), and by the Department’s
policy.5 The Legislature has made clear that the practice of racial profiling
“presents a great danger to the fundamental principles of a democratic society. It
is abhorrent and cannot be tolerated.” (Pen. Code, § 13519.4, subd. (d)(1).) The
City’s decision to implement the Study was made in hopes to “improve relations
between the police and the community and establish the Claremont Police
Department as an open and progressive agency committed to being at the forefront
of the best professional practices in law enforcement.” (See Building Material,

5
The Department’s policy provides: “Officers shall stop persons on the
basis of all available information, not solely on the basis of race or ethnicity.”
(Dept. Rules & Regs., § 1.030.3.05.)
8


supra, 41 Cal.3d at p. 664 [matters relating to “the betterment of police-
community relations . . . are of obvious importance, and directly affect the quality
and nature of public services”]; Berkeley Police Assn., supra, 76 Cal.App.3d at p.
937 [same]; see also San Jose Peace Officer’s Assn., supra, 78 Cal.App.3d at p.
946 [“the use of force policy is as closely akin to a managerial decision as any
decision can be in running a police department”].) Thus, the Association concedes
that the City “may have the right to unilaterally decide to implement a racial
profiling study.”
However, the Association maintains that the Study’s implementation and
effects involve many factors that are distinct from the City’s fundamental decision
to adopt the Study. These factors include, on the one hand, determining the
methodology used in collecting the data, and on the other, determining the effects
or use of the Study’s data, i.e., whether the data would be used only for study
purposes, whether results based on the analyzed data or results regarding
individual officers would be made public, whether and under what circumstances
the results could be used against officers (including imposing discipline or
denying promotions), and what the implications are for officers’ privacy and the
potential for self-incrimination. The Association concludes that meeting and
conferring on the Study’s implementation and effects will not directly interfere
with the City’s right to exercise its managerial prerogative. The Association
contends that although Building Material is distinguishable, it “completely
recognizes this ‘dichotomy.’ ”
The City, however, counters that the Court of Appeal misinterpreted
section 3504 and calls this dichotomy “unprecedented.” It maintains that a public
employer’s fundamental decision and the implementation of that decision “are
integral to the nature of the public agency and are thus, equally excluded from the
bargaining process under Section 3504.” The City’s amicus curiae, League of
9
California Cities (League), argues that drawing an implementation distinction is
both “artificial and unworkable” because “[i]t is pointless to adopt a policy if it
cannot be implemented.” According to the League, the Association’s contention
begs the question “how the City could implement the Study and collect the data if
it were not known how the data would be collected and how it would be used.”
Another amicus curiae, Metropolitan Water District of Southern California, adds
that “the policy and its implementation cannot be severed and analyzed separately.
Rather, the former is interwoven with the latter, such that a decision to compel
negotiation of the implementation would inevitably compel negotiation of the
policy decision itself.”
At the outset, we agree with the Association that there is a long-standing
distinction under the National Labor Relations Act (NLRA) between an
employer’s unilateral management decision and the effects of that decision (29
U.S.C. § 158(d)), the latter of which are subject to mandatory bargaining. (First
National Maintenance, supra, 452 U.S. at pp. 681-682; id. at p. 677, fn. 15;
Kirkwood Fabricators, Inc. v. N.L.R.B. (8th Cir. 1988) 862 F.2d 1303, 1306
[“Requiring effects bargaining maintains an appropriate balance between an
employer’s right to close its business and an employee’s need for some protection
from arbitrary action”].) In other words, although “an employer has the right
unilaterally to decide that a layoff is necessary, he must bargain about such matters
as the timing of the layoffs and the number and identity of employees affected.
[Citation.]” (Los Angeles County Civil Service Com. v. Superior Court (1978) 23
Cal.3d 55, 64 [discussing cases under the NLRA]); see also 1 Chin et al., Cal
Practice Guide: Employment Litigation (The Rutter Group 2005) ¶¶ 6:80-6:84, p.
6-11 [discussing effects bargaining under NLRA].) For example, matters deemed
subject to effects bargaining include severance pay, vacation pay, seniority, and
pensions. (N.L.R.B. v. Transmarine Navigation Corporation (9th Cir. 1967) 380
10
F.2d 933, 939; Royal Plating, supra, 350 F.2d at p. 196 [union must have
“opportunity to bargain over the rights of the employees whose employment status
will be altered by the managerial decision”].)
We agree with the City, however, that the issue before us is whether it was
compelled to meet and confer with the Association before it required officers on
their vehicle stops to fill out the Forms as part of the Study. Based on the limited
record before us, there is no evidence regarding what effects would result from
implementing the Study; for instance, whether the data collected and later
analyzed will result in discipline if an officer is found to have engaged in racial
profiling,6 or whether the City will publicize the Study’s raw data. It is also not
clear from the record what exact methodology the City has adopted to analyze the
collected data to determine any racial profiling. Nor can we say that racial
profiling studies have been so historically associated with employee discipline that
their implementation invariably raises disciplinary issues. (Cf. Holliday, supra,
229 Cal.App.3d at p. 540 [various details of implementing mandatory drug-testing
policy subject to meet-and-confer requirement].) Thus, we do not decide the issue
whether the City was required to meet and confer with the Association over any
effects resulting from the City’s decision to implement the Study. (See
Fibreboard Corp. v. NLRB (1964) 379 U.S. 203, 223 (Fibreboard) (conc. opn. of

6
Regarding any discipline that may result from an officer’s failure to
properly fill out the Form, the superior court found that “officers are already
subject to discipline for not completing required reports.” For purposes of the
issue here, we conclude this type of discipline is distinguishable from any possible
discipline which may be imposed if an officer is found to have engaged in racial
profiling. (See Berkeley Police Assn., supra, 76 Cal.App.3d at p. 938 [no change
in working conditions where officers “were working under these rules and
conditions even prior to the challenged practices”].)
11


Stewart, J.) [an “extremely indirect and uncertain” impact on job security may
alone suffice to conclude such decisions do not concern conditions of
employment].)
We disagree with the City’s amici curiae that drawing a distinction between
an employer’s fundamental managerial or policy decision and the implementation
of that decision, as a general matter, would be impossible or impractical. The
reality is that “practically every managerial decision has some impact on wages,
hours, or other conditions of employment.” (Westinghouse Electric Corporation
v. N.L.R.B. (4th Cir. 1967) 387 F.2d 542, 548.) Indeed, section 3504 of the
MMBA codifies the unavoidable overlap between an employer’s policymaking
discretion and an employer’s action impacting employees’ wages, hours, and
working conditions. (See ante, at p. 6; Building Material, supra, 41 Cal.3d at p.
657; Fire Fighters Union, supra, 12 Cal.3d at p. 615.) As we shall explain in
greater detail below, while drawing a distinction may sometimes be difficult, the
alternative—which would risk sheltering any and all actions that flow from an
employer’s fundamental decision from the duty to meet and confer—is contrary to
established case law. (Building Material, supra, 41 Cal.3d at p. 660; see also First
National Maintenance, supra, 452 U.S. at p. 686.) Although Building Material
did not specifically decide the issue, our decision, as the City acknowledges,
expressly contemplates that the implementation of an employer’s fundamental
decision (“action . . . taken pursuant to a fundamental managerial or policy
decision”), is a separate consideration for purposes of section 3505’s meet-and-
confer requirement. (Building Material, supra, 41 Cal.3d at p. 660.)
Instead, we turn our focus to the City’s implementation of the Study,
requiring officers to fill out the Forms in order to collect data on possible racial
profiling.
12
C. The Applicable Test
Emphasizing that the Court of Appeal erroneously created an “automatic
presumption that a meet and confer is required if implementation of a fundamental
decision significantly affects the terms and conditions of employment,” the City
urges that our decision in Building Material, supra, 41 Cal.3d 651, requires us to
perform a balancing test that also considers the employer’s need for
unencumbered decisionmaking. If the balance weighs in favor of the employer,
there is no need to bargain even if the employer’s action has a significant and
adverse impact on the employees’ working conditions. The Association counters
that Building Material’s balancing test would apply only to the fundamental
decision itself and not to its implementation or its effects.
In
Building Material, supra, 41 Cal.3d 651, the City and County of San
Francisco unilaterally eliminated two bargaining unit positions and reorganized
and reclassified duties of hospital truck drivers who were members of the Building
Material and Construction Teamsters’ Union, Local 216 (Union). The city
transferred certain work duties to new positions that were not in the Union’s
bargaining unit. (Building Material, supra, 41 Cal.3d at p. 655.) The Union
requested to meet and confer with city agencies regarding the city’s action;
however, the request was denied on grounds that this matter was not within the
meet-and-confer obligations under the MMBA. (Building Material, supra, 41
Cal.3d at p. 656.)
After reviewing the background and purposes of the MMBA (Building
Material, supra, 41 Cal.3d at pp. 657-660), we concluded that the city was
required to meet and confer (§ 3505) with the Union because the city’s transfer of
duties to a non-bargaining unit had a significant and adverse effect on the
bargaining unit’s wages, hours, and working conditions. (Building Material,
supra, 41 Cal.3d at pp. 663-664.) We rejected the city’s assertion that its action
13
was exempted as a fundamental policy decision because it concerned the effective
operation of local government. (Id. at p. 664.) The “decision to reorganize certain
work duties was hardly ‘fundamental.’ It had little, if any, effect on public
services. Rather, it primarily impacted the wages, hours, and working conditions
of the employees in question and thus was a proper subject for mandatory
collective bargaining. Indeed, defendants’ claim to the contrary is in conflict with
the statutory framework of the MMBA: any issue involving wages, for example,
would affect the cost of government services, but such matters are specifically
included in the scope of representation as defined in section 3504.” (Ibid.)
Going on to explain that an employer’s fundamental decision may have a
significant and adverse effect on the bargaining unit’s wages, hours, or working
conditions (Building Material, supra, 41 Cal.3d at p. 660), we considered whether
“an action . . . taken pursuant to a fundamental managerial or policy decision” may
be within the scope of representation (§ 3504), and thus subject to a duty to meet
and confer. (Building Material, supra, 41 Cal.3d at p. 660.) As relevant here,
such an action would encompass an employer’s steps to implement the details of
the fundamental decision. Under that circumstance, a balancing test would apply:
“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.”
(Building Material, supra, 41 Cal.3d at p. 660, citing First National Maintenance,
supra, 452 U.S. at p. 686; see Berkeley Police Assn., supra, 76 Cal.App.3d at p.
937; see also San Francisco Fire Fighters Local 798 v. Board of Supervisors
(1992) 3 Cal.App.4th 1482, 1494 (San Francisco Fire Fighters).)
The high court applied a similar balancing test in First National
Maintenance, supra, 452 U.S. 666. While recognizing an employer’s “freedom to
14
manage its affairs unrelated to employment,” the high court balanced the
competing interests to determine whether mandatory bargaining was required
when a fundamental management decision directly impacted employment. (First
National Maintenance, supra, 452 U.S. at p. 677.) The high court concluded:
“[I]n view of an employer’s need for unencumbered decisionmaking, bargaining
over management decisions that have a substantial impact on the continued
availability of employment should be required only if the benefit, for labor-
management relations and the collective-bargaining process, outweighs the burden
placed on the conduct of the business.” (Id. at p. 679; see also id. at p. 686.) In
discussing the issues subject to collective bargaining (id. at p. 676), the high court
explained that employers’ management decisions may range from having “only an
indirect and attenuated impact on the employment relationship,” to being “almost
exclusively ‘an aspect of the relationship’ between employer and employee,” to
having “a direct impact on employment” though the decision is “ ‘not in [itself]
primarily about conditions of employment . . . . ’ ” (Id. at pp. 676-677, brackets in
First National Maintenance; see also Fibreboard, supra, 379 U.S. at p. 223 (conc.
opn. of Stewart, J.).)
The balancing test under Building Material, which has been described as a
“fluid standard” (San Francisco Fire Fighters, supra, 3 Cal.App.4th at p. 1494),
properly considers the competing interests while furthering the MMBA’s neutral
purpose to “promote communication between public employers and employees
and to improve personnel management. (§ 3500.)” (Building Material, supra, 41
Cal.3d at p. 660; see also First National Maintenance, supra, 452 U.S. at pp. 680-
681 [NLRA “is not intended to serve either party’s individual interest, but to foster
in a neutral manner a system in which the conflict between these interests may be
resolved”].) We conclude it applies to determine whether management must meet
and confer with a recognized employee organization (§ 3505) when the
15
implementation of a fundamental managerial or policy decision significantly and
adversely affects a bargaining unit’s wages, hours, or working conditions.
In view of the vast range of management decisions and to give guidance on
whether a particular matter is subject to a duty to meet and confer (§ 3505) under
Building Material, supra, 41 Cal.3d at page 660, we find instructive the high
court’s observation that “[t]he concept of mandatory bargaining is premised on the
belief that collective discussions backed by the parties’ economic weapons will
result in decisions that are better for both management and labor and for society as
a whole. [Citations.] This will be true, however, only if the subject proposed for
discussion is amenable to resolution through the bargaining process.” (First
National Maintenance, supra, 452 U.S. at p. 678, fn. omitted.) To that end, when
balancing competing interests a court may also consider whether “the transactional
cost of the bargaining process outweighs its value. [Citations.]” (Social Services
Union v. Board of Supervisors (1978) 82 Cal.App.3d 498, 505 (Social Services
Union) [discussing NLRA].) We believe this “transactional cost” factor is not
only consistent with the Building Material balancing test, but its application also
helps to ensure that a duty to meet and confer is invoked only when it will serve its
purpose.
In summary, we apply a three-part inquiry. First, we ask whether the
management action has “a significant and adverse effect on the wages, hours, or
working conditions of the bargaining-unit employees.” (Building Material, supra,
41 Cal.3d at p. 660.) If not, there is no duty to meet and confer. (See § 3504; see
also ante, at p. 7.) Second, we ask whether the significant and adverse effect
arises from the implementation of a fundamental managerial or policy decision. If
not, then, as in Building Material, the meet-and-confer requirement applies.
(Building Material, supra, 41 Cal.3d at p. 664.) Third, if both factors are
present—if an action taken to implement a fundamental managerial or policy
16
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.”
(Building Material, supra, 41 Cal.3d at p. 660.) In balancing the interests to
determine whether 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.” (Social Services Union, supra, 82 Cal.App.3d at p. 505.)
Next, we apply the foregoing standard to the facts of this case to determine
whether the City was required to meet and confer (§ 3505) with the Association
before implementing the Study.
D. Application to the Present Case
Applying the test under Building Material, we conclude that the
implementation of the Study did not have a significant and adverse effect on the
officers’ working conditions. (Building Material, supra, 41 Cal.3d at p. 660.)
The record reflects that “[i]n those cases resulting in citation or arrest, the Study
requires slightly more information to be collected by the officer than required in
completing the citation or arrest report.” Based on “undisputed evidence,” the
superior court determined that officers may complete a Form in about two minutes
and may complete between four and six such Forms in a 12-hour shift. The
superior court concluded that the impact on the officers’ working conditions was
de minimis. We agree and conclude the City was not required to meet and confer
(§ 3505) with the Association before implementing the Study. Because there was
no significant and adverse effect, we need not balance the City’s need for
unencumbered decisionmaking—in this case, its policymaking prerogative to
17
eliminate the practice and perception of racial profiling and to determine the best
means for doing so—against the benefit to employer-employee relations from
bargaining about the subject. (Building Material, supra, 41 Cal.3d at p. 660; see
also First National Maintenance, supra, 452 U.S. at p. 686.)
In conclusion, we emphasize the narrowness of our holding. In
determining that the City was not required to meet and confer with the Association
before implementing the Study, we do not decide whether such a duty would exist
should issues regarding officer discipline, privacy rights, and other potential
effects (see ante, at pp. 11-12), arise after the City implements the Study. Based
on the record, that question is not before us.
III. DISPOSITION
We reverse the judgment of the Court of Appeal and remand for further
proceedings consistent with our opinion.

CHIN,
J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.


18





CONCURRING OPINION BY MORENO, J.

I agree with the majority’s narrow holding that the City of Claremont (City)
need not meet and confer regarding its decision to conduct a racial profiling study
and to adopt a particular data collection method in implementing the study, and
that we need not consider other issues raised by the Claremont Police Officers
Association (Association). As the majority states: “Based on the limited record
before us, there is no evidence regarding what effects would result from
implementing the Study; for instance, whether the data collected and later
analyzed will result in discipline if an officer is found to have engaged in racial
profiling, or whether the City will publicize the Study’s raw data. It is also not
clear from the record what exact methodology the City has adopted to analyze the
collected data to determine any racial profiling. Nor can we say that racial
profiling studies have been so historically associated with employee discipline that
their implementation invariably raises disciplinary issues. (Cf. Holliday [v. City of
Modesto (1991)] 229 Cal.App.3d [528,] 540 [various details of implementing
mandatory drug-testing policy subject to meet-and-confer requirement].) Thus,
we do not decide the issue whether the City was required to meet and confer with
the Association over any effects resulting from the City’s decision to implement
the Study.” (Maj. opn., ante, at p. 11, fn. omitted.) Instead, the majority opinion
addresses only “the City’s implementation of the Study, requiring officers to fill
out the Forms in order to collect data on possible racial profiling.” (Id. at p. 12.)
1



That having been said, it is no doubt true that the study results may
potentially be used to discipline police officers or may have other adverse
employment consequences for them, because racial profiling is a serious form of
police misconduct. In my view, the use of the study as an additional basis for
discipline would give rise to a duty on the City’s part to meet and confer with the
Association. The City’s adoption of a new basis for disciplining police officers
goes to the heart of officers’ employment security, and is therefore one of the
critical “terms and conditions of employment” at the core of Government Code
section 3504. (See Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608,
618.) Although the City plainly has the authority and responibility to discipline
officers who persistently engage in racial profiling, its unfettered right to do so
does not outweigh the Association’s interest in ensuring, through negotiations
with the City, that any such discipline follows due process and that the study
results have been accurately and fairly analyzed.
MORENO, J.
I CONCUR:
KENNARD, J.
2

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Claremont Police Officers Association v. City of Claremont
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 112 Cal.App.4th 639
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S120546
Date Filed: August 14, 2006
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Conrad Richard Aragon

__________________________________________________________________________________

Attorneys for Appellant:

Lackie & Dammeier, Dieter C. Dammeier and Michael A. Morguess for Plaintiff and Appellant.

Rains, Lucia & Wilkinson and Alison Berry Wilkinson for Peace Officers Research Association of
California’s Legal Defense Fund as Amicus Curiae on behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Liebert Cassidy Whitmore, Richard M. Kreisler, Mark H. Meyerhoff; Best Best & Krieger, Jeffrey V.
Dunn, Sonia R. Carvalho and Sandra M. Schwarzmann for Defendants and Respondents.

Alan L. Schlosser, Mark Schlosberg; and Peter Eliasberg for American Civil Liberties Union Foundation
of Northern California and American Civil Liberties Union Foundation of Southern California as Amici
Curiae on behalf of Defendants and Respondents.

Jeffrey Kightlinger, Henry Barbosa, Henry Torres, Jr.; Atkinson, Andelson, Loya, Ruud & Romo, James F.
Baca, Warren S. Kinsler, Nate Kowalski and Joshua E. Morrison for Metropolitan Water District of
Southern California as Amicus Curiae on behalf of Defendants and Respondents.

Meyers, Nave, Riback, Silver & Wilson, Andrea J. Saltzman and Arthur A. Hartinger for League of
California Cities as Amicus Curiae on behalf of Defendants and Respondents.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Dieter C. Dammeier
Lackie & Dammeier
367 North Second Avenue
Upland, CA 91786
(909) 985-4003

Michael A. Morguess
Lackie & Dammeier
367 North Second Avenue
Upland, CA 91786
(909) 985-4003

Jeffrey V. Dunn
Best Best & Krieger
5 Park Plaza, Suite 1500
Irvine, CA 92614
(949) 263-2600


Opinion Information
Date:Citation:Docket Number:Cross Referenced Cases:
Mon, 08/14/200639 Cal. 4th 623, 139 P.3d 532, 47 Cal. Rptr. 3d 69S120546

41 CAL.3D 651


Parties
1City Of Claremont (Defendant and Respondent)
Represented by Sonia Rubio Carvalho
Best Best & Krieger, LLP
5 Park Plaza, Suite 1500
Irvine, CA

2City Of Claremont (Defendant and Respondent)
Represented by Jeffrey V. Dunn
Best Best & Krieger, LLP
5 Park Plaza, Suite 1500
Irvine, CA

3City Of Claremont (Defendant and Respondent)
Represented by Sandra Marie Schwarzmann
Best Best & Krieger, LLP
5 Park Plaza, Suite 1500
Irvine, CA

4Claremont Police Officers Association (Plaintiff and Appellant)
Represented by Michael Alan Morguess
Lackie & Dammeier, LLP
367 N. Second Avenue
Upland, CA

5Claremont Police Officers Association (Plaintiff and Appellant)
Represented by Dieter C. Dammeier
Lackie & Dammeier LLP
367 N. Second Avenue
Upland, CA

6Brown, Roy (Defendant and Respondent)
Represented by Richard M. Kreisler
Liebert Cassidy Whitmore
6033 W. Century Boulevard, Suite 500
Los Angeles, CA

7Aclu Foundation Of Northern California, Inc. (Amicus curiae)
Represented by Peter J. Eliasberg
ACLU Foundation of Southern California
39 Drumm Street
San Francisco, CA

8Aclu Foundation Of Northern California, Inc. (Amicus curiae)
Represented by Alan L. Schlosser
American Civil Liberties Union
39 Drumm Street
San Francisco, CA

9Aclu Foundation Of Southern California, Inc. (Amicus curiae)
Represented by Peter J. Eliasberg
ACLU Foundation of Southern California
1616 Beverly Boulevard
Los Angeles, CA

10Aclu Foundation Of Southern California, Inc. (Amicus curiae)
Represented by Alan L. Schlosser
American Civil Liberties Union
1663 Mission Street, 4th Floor
San Francisco, CA

11Metropolitan Water District Of Southern California (Amicus curiae)
Represented by James Baca
Atkinson Andelson et al.
17871 Park Plaza Drive, Suite 200
Cerritos, CA

12Metropolitan Water District Of Southern California (Amicus curiae)
Represented by Jeffrey Kightlinger
Metropolitan Water District of Southern California
700 N. Alameda Street
Los Angeles, CA

13Peace Officers Research Assoc. Of Calif. Legal Defense Fund (Amicus curiae)
Represented by Alison Berry Wilkinson
Rains Lucia & Wilkinson, LLP
2300 Contra Costa Boulevard, Suite 230
Pleasant Hill, CA

14League Of California Cities (Amicus curiae)
Represented by Andrea J. Saltzman
Meyers Nave et al.
555 Twelfth Street, Suite 1500
Oakland, CA


Opinion Authors
OpinionJustice Ming W. Chin
ConcurJustice Carlos R. Moreno

Disposition
Aug 14 2006Opinion: Reversed

Dockets
Nov 18 2003Petition for review filed
  counsel for respondents City of Claremont and Roy Brown, in his Official Capacity as Chief of Police of the City of Claremont
Nov 18 2003Received document entitled:
  Compendium of Federal Authorities received concurrent with petition from, respondent, City of Claremont, etc
Nov 18 2003Record requested
 
Nov 19 2003Received Court of Appeal record
  one doghouse.
Dec 8 2003Answer to petition for review filed
  by counsel for appellant Claremont Police Officers Association
Dec 18 2003Reply to answer to petition filed
  Claremont Police, appellant.
Jan 14 2004Petition for Review Granted (civil case)
  votes: George, CJ.,Kennard, J., Baxter, J.,Werdegar,J.,Chin, J.,Brown, J.,Moreno, J.
Jan 14 2004Letter sent to counsel re:
  Certification of Interested Entities or Persons.
Jan 28 2004Certification of interested entities or persons filed
  By Respondents {City of Claremont et al.,}.
Jan 29 2004Certification of interested entities or persons filed
  by appellant {Claremont Police Officers Association}.
Feb 4 2004Request for extension of time filed
  resp (City of Claremont & Roy Brown) request to March 15, 2004
Feb 4 2004Notice of substitution of counsel
  Best, Best & Krieger, LLP replace Liebert Cassidy Whitmore as counsel for the City of Claremont and Roy Brown.
Feb 9 2004Extension of time granted
  To March 15, 2004 to file Respondents' Opening Brief on the Merits.
Mar 15 2004Opening brief on the merits filed
  respondent's City of Claremont and Roy Brown as Chief of Police.
Mar 15 2004Request for judicial notice filed (granted case)
  respondent's City of Claremont and Roy Brown as Chief of Police of the City of Claremont.
Mar 15 2004Received:
  resp's., City of Claremont's, exhibits to request for judicial notice exhibits under separate cover, submitted concurrent with request judicial notice.
Mar 19 2004Request for extension of time filed
  counsel for appellant Claremont Police Officers Association request to May 14, 2004 to file answer/brief on the merits
Mar 25 2004Extension of time granted
  To May 14, 2004 to file Appellant's Answer Brief on the Merits
May 14 2004Answer brief on the merits filed
  counsel for appellant Claremont Police Officers Association
May 20 2004Request for extension of time filed
  respondents City Of Claremont & Roy Brown requesting to June 23, 2004 to file reply brief on the merits
May 24 2004Extension of time granted
  to June 23, 2004 for Respondent to file the reply brief on the merits.
Jun 23 2004Reply brief filed (case fully briefed)
  counsel for resps City of Claremont and Roy Brown
Jul 22 2004Received application to file Amicus Curiae Brief
  from American Civil Liberties Union of Northern Calif. & ACLU Foundation of Southern Calif. in support of respondents.
Jul 23 2004Received application to file Amicus Curiae Brief
  Metropolitan Water District of Southern California
Jul 23 2004Received application to file Amicus Curiae Brief
  from Peace Officers Research Assoc. of Calif. Legal Defense Fund in support of appellants.
Jul 23 2004Received application to file Amicus Curiae Brief
  from League of Calif. Cities in support of resondents.
Aug 2 2004Permission to file amicus curiae brief granted
  ACLU of Northern Calif. & ACLU Foundation of Southern Calif.
Aug 2 2004Amicus curiae brief filed
  The application of American Civil Liberties Union of Northern Calif. & ACLU Foundation of Southern Calif. for permission to file an amicus curiae brief in support of respondents is hereby grante granted. Answer due by any party within 20 days.
Aug 2 2004Permission to file amicus curiae brief granted
  Metropolitan Water District of Southern California
Aug 2 2004Amicus curiae brief filed
  The application of Metropolitan Water District of Southern California for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days.
Aug 2 2004Permission to file amicus curiae brief granted
  Peace Officers Research Assoc. of Calif. Legal Defense Fund.
Aug 2 2004Amicus curiae brief filed
  The application of Peace Officers Research Assoc. of Calif. Legal Defense Fund for permission to file an amicus curiae brief in support of appellants is hereby granted. Answer due by any party within 20 days.
Aug 2 2004Permission to file amicus curiae brief granted
  League of California Cities
Aug 2 2004Amicus curiae brief filed
  The application of League of California Cities for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days.
Aug 23 2004Response to amicus curiae brief filed
  ac briefs of League of Calif Cities, ACLU of Northern Calif & ACLU Fdn of Southern Calif.>>appellant Claremont Police Offcrs Assn
May 2 2006Case ordered on calendar
  June 6, 2006, at 2:00 p.m., in Los Angeles
May 9 2006Change of contact information filed for:
  American Civil Liberties Union, Amicus Curiae Alan L. Schlosser, retained counsel
May 12 2006Application filed to:
  divide oral argument time. Counsel for appellant Claremont Police Officers Association asking to divide time equally between Dieter C. Dammeier and Michael A. Morguess (both counsel of record).
May 15 2006Order filed
  The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate 15 minutes to Dieter C. Dammeier, and 15 minutes to co-counsel Michael A. Morguess, of appellant's 30-minute allotted time for oral argument is granted.
May 26 2006Request for judicial notice granted
  Respondent's request for judicial notice, filed March 15, 2004, is granted. Amicus curiae American Civil Liberties Union of Northern California and American Civil Liberties Union Foundation of Southern California's request for judicial notice is denied.
May 26 2006Received:
  from appellant Claremont Police Officers Association "notice of intent to cite additional authorities"
Jun 6 2006Cause argued and submitted
 
Aug 14 2006Opinion filed: Judgment reversed
  and remanded to that court for further proceedings consistent with this opinion. Majority Opinion by Chin, J. joined by George C.J., Kennard, Baxter, Werdegar and Corrigan, JJJJ. Concurring Opinion by Moreno, J.
Sep 20 2006Remittitur issued (civil case)
 
Sep 28 2006Received:
  Receipt for Remittitur - Court of Appeal, Second Appellate District, Division 3

Briefs
Mar 15 2004Opening brief on the merits filed
 
May 14 2004Answer brief on the merits filed
 
Jun 23 2004Reply brief filed (case fully briefed)
 
Aug 2 2004Amicus curiae brief filed
 
Aug 2 2004Amicus curiae brief filed
 
Aug 2 2004Amicus curiae brief filed
 
Aug 2 2004Amicus curiae brief filed
 
Aug 23 2004Response to amicus curiae brief filed
 
Brief Downloads
application/pdf icon
ACLU Amicus - Claremont Court of Appeals.pdf (1350267 bytes)
application/pdf icon
City of Claremont Reply Brief.pdf (675299 bytes)
application/pdf icon
Claremont Police Answer Brief.pdf (2213685 bytes)
application/pdf icon
Claremont Police Response to Amicus Briefs.pdf (513645 bytes)
application/pdf icon
ACLU Amicus - Claremont.pdf (1684519 bytes)
application/pdf icon
Metro Water District Amicus - Claremont.pdf (1192642 bytes)
application/pdf icon
League of California Cities Amicus - Claremont.pdf (2244587 bytes)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jul 1, 2011
Annotated by holly ragan

Facts

In February 2002, the police commission of the city of Claremont, California adopted a 15-month "Vehicle Stop Data Collection Study," which requires police officers to fill out a Scantron form for each vehicle stop they conduct. This form includes questions about the driver's perceived race/ethnicity and the officers' prior knowledge of the driver's race/ethnicity in order to determine whether police officers are engaging in racial profiling, which is a crime. Cal. Penal Code § 13519.4(f). The form would take about two minutes to complete, and an officer was expected to complete between four and six forms during a 12-hour shift.

Concerned that the study could subject police officers to discipline, adversely affect their employment prospects, or harm their role in the community, police officers' bargaining unit, the Claremont Police Officers Association, requested a meeting with the City under the Meyers-Milias-Brown Act (MMBA), Gov't Code § 3505. This act requires the governing body of an agency like a police department to "meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations," including the Claremont Police Officers Association. This duty to meet and confer is limited to matters within the "scope of representation," which "shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order." Gov't Code § 3504. This means that employers have the right "to make unconstrained decisions when fundamental management or policy choices are involved." 39 Cal. 4th at 632.

There is a "mutual obligation personally to meet and confer promptly upon a request by either party ... and to endeavor to reach agreement on matters within the scope of representation prior to the adoption by the public agency of its final budget for the ensuing year." Id. § 3405. There is no requirement that the parties reach an agreement, but there must be a "genuine desire to reach an agreement." See Placentia Fire Fighters v. City of Placentia, 57 Cal. App 3d 9, 25 (1976).

Because "fundamental managerial or policy decisions" are not within the "scope of representation" that is covered by Section 3505, Gov't Code § 3504, the City maintained that it was not required to meet with the Association about the study.


Procedural History

After the City refused to meet, the Association filed a petition for writ of mandate to prevent the City and police department from implementing the study until they had met and conferred in good faith under the MMBA. Though all parties agreed that a racial profiling policy is a fundamental managerial or policy decision, the Association believed that the implementation of the study involves factors that are outside of the fundamental managerial or policy decision exception. The Superior Court denied the petition, agreeing with the City that the study was not a matter within the scope of representation because it did not substantially affect the terms and conditions of the officers' employment, and that it fell within management prerogatives because of the de minimis impact upon officers' workload and the policy-directed objectives of the study.

The Court of Appeal reversed, 112 Cal. App. 4th 639. It agreed that the broad decision to combat racial profiling is a fundamental policy decision not covered by the MMBA, but held that "'the decision precisely how to implement that fundamental policy, however, involves several variables affecting law enforcement officers and is not itself a fundamental policy decision.'" 39 Cal. 4th at 629. The Court of Appeal was concerned that the study would affect officers' job security, freedom from disciplinary actions, promotion prospects, and public relations, so it held that a meeting was required under the MMBA.

The California Supreme Court granted review and reversed the judgment of the Court of Appeal.


Issues

The issue before the Supreme Court was "whether [the City] was compelled to meet and confer with the Association before it required officers on their vehicle stops to fill out the forms as part of the Study." Id. at 634. The Court took great care to emphasize the narrowness of the issue before it; the Court was not deciding "whether the City was required to meet and confer with the Association over any effects resulting from the City's decision to implement the Study," id., because the record before the Court lacked any information about what those effects might be or how the City planned to use the survey results.


Holding

The Court held that the City was not required to meet and confer with the Association before implementing the study. Id. at 639.


Analysis

The Court agreed that there is a distinction between a decision and the effects of a decision, and it clarified and applied the test from Building Material & Construction Teamsters' Union v. Farrell, 41 Cal. 3d 651 (1986) to conclude that no meeting was required. The inquiry has three parts:

  1. If the management action has no significant or adverse effect on the wages or hours of working conditions of the bargaining-unit employees, there is no duty to confer.
  2. If there is a significant and adverse effect and it does not arise from the implementation of a fundamental managerial or policy decision, then the meet-and-confer requirement does apply.
  3. If there is a significant and adverse effect on the wages, hours, or working conditions of the employees and it does arise from a fundamental managerial or policy decision, then a balancing test applies. 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.'" 39 Cal. 4th at 638 (quoting Building Material, 41 Cal. 3d at 660). In conducting this balancing, the court may consider whether the "transactional cost of the bargaining process outweighs its value." Id.

The Court held that the study did not have a significant and adverse effect on the officers' working conditions, so under the first step of the inquiry, no meeting was required. Because the study collected only slightly more information than officers already had to collect, the Court agreed with the Superior Court that the study would have a de minimis impact on officers' working conditions. Again, however, the Court emphasized that it was not deciding "whether such a duty would exist should issues regarding officer discipline, privacy rights, and other potential effects arise after the City implements the study." Id. at 639.

Justice Moreno concurred in the majority opinion, but wrote separately to emphasize once again the limited holding of the Court. He added that if the study were used for discipline, the City would have a duty to meet and confer with the Association because that would "go[] to the heart of officers' employment security, and is therefore one of the critical 'terms and conditions of employment' at the core" of Gov't Code § 3504. Id. at 640.


Tags

collective bargaining, employee organization, fundamental managerial decision, good faith bargaining, labor union, meet and confer, Meyers-Milias-Brown, MMBA, policy decision, racial profiling, scope of representation, union

Annotation by Holly E. Ragan