# United Clerical Employees, Local 2700 v. County of Contra Costa > California Court of Appeal · December 22, 1977 · 76 Cal. App. 3d 119 URL: https://www.frixlaw.com/law-library/cases/9730774 ## Case - **Full name:** UNITED CLERICAL EMPLOYEES, LOCAL 2700 Et Al., Plaintiffs and Respondents, v. COUNTY OF CONTRA COSTA Et Al., Defendants and Appellants - **Court:** California Court of Appeal - **Decided:** December 22, 1977 - **Citations:** 76 Cal. App. 3d 119; 142 Cal. Rptr. 735; 1977 Cal. App. LEXIS 2090 - **Precedential status:** Published - **Opinion:** Concurrence by Cohn - **Judges:** Rouse, Cohn - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9730774 ## Opinion text COHN, J., * Concurring and Dissenting.—I concur in the decision insofar as it affirms the trial judge’s decision to issue the injunction as to respondents Brown and Davison but dissent from the modification of the injunction insofar as it limits its scope to those two respondents. Realizing that the dissent of a briefly tenured pro tern, justice has about the same stature as a flea on an elephant and being ever mindful *132 that fools rush in where angels fear to tread (with apologies to the old popular song with that title), I nevertheless wish to take advantage of my First Amendment rights and register my thoughts on some phases of the Meyers-Milias-Brown Act (hereinafter referred to as MMB). At the outset, it should be noted that the trial judge, having heard and weighed the evidence, found that persons classified as supervising clerk I were not in fact exercising supervisory authority, the only provision of ordinance section 34-8.010 under which a supervising clerk I might have come. There was substantial evidence to support that finding, and the judgment can be affirmed solely on that basis. However, the decision need not rest on that point alone, and there are important issues bearing on the general problem, that should be discussed. The first such issue is whether it is reasonable for the county ordinance to eliminate all employees who are “exercising supervisory authority” from the bargaining process. The thrust of appellants’ argument seems to be that since section 34-8.010 merely follows the federal Labor Management Relations Act (L.M.R.A.) in banning all supervisors from the bargaining table, a fortiori it is a reasonable rule. On the contrary, the MMB Act was adopted in 1968 modifying its predecessor the Brown Act adopted in 1961. Previously, the L.M.R.A. was adopted by Congress in 1947, and used the term “supervisor.” If the California Legislature had wanted to use the term “supervisor” in the MMB Act rather than the term it used, “management,” it had plenty of opportunity. This leaves one with the logical conclusion that the drafters of the MMB Act had something different in mind than “supervisor” when they used the word “management.” I further note that the objectives of L.M.R.A. and MMB are completely contrary: L.M.R.A. is aimed at private employers and employees and completely eliminates government and governmental agencies from its scope ( 29 U.S.C.A. § 152 ), whereas MMB’s entire focus is on governmental agencies and their employees (§ 3500 et seq.). With this in mind, it would seem reasonable to conclude that supervisors in the private sector being wholly dependent on their superiors for advancement might well be in a different position than supervisors in the public sector who are more dependent on civil service examinations for advancement than on the good will of their superiors. Additionally, supervisors in the private sector are generally excluded from unions *133 whereas supervisors in the public sector under MMB may join a union (§§ 3500, 3507.5) and in this case did. There is certainly no basic reason in the governmental sector to believe that those supervisors on the low end of the totem pole tend to identify with management on the high end rather than with the employees that they supervise. It’s about as logical as equating an army corporal with a four-star general or the Secretary of Defense insofar as management of the army is concerned. Furthermore, the supervisors as members of the union have a direct financial interest in the outcome of the negotiations. The obvious purpose of section 3507.5 is to prevent management from bargaining with management. To that extent, a governmental agency may adopt reasonable rules to implement this purpose. To allow a rule forbidding anyone who exercises supervisory powers from participating in the bargaining process regardless of any real management function tends to emasculate the purpose of MMB, i.e., “to promote full communication between public employers and their employees . . (§ 3500). Inasmuch as it would be up to labor (the union) to pick supervisors, presumably on merit, to be its negotiators,- what possible purpose is accomplished by management’s refusal to deal with them under the guise that they are a part of management. It only deprives the union of its most competent representatives. We believe that we can safely assume that section 3507.5 was not added to MMB to weaken labor’s position at the instigation of management. And yet, the majority would eliminate almost everyone who is intelligent enough to pass a civil service examination for a supervisory position. It is difficult to ascertain what stake the defendants have in depriving plaintiff United Clerical Employees of its chosen representatives, except to eliminate its most capable people. A noted but nameless great philosopher once observed that “The proof of the pudding is in the eating,” which sage remark is peculiarly appropos here.. The best proof that supervisors are not management oriented is that the union, representing all of the employees, chooses them as its negotiators. One must indeed be isolated from reality to believe that any minor supervisor is any less enthused about employee benefits than the supervised employees. It seems obvious to me that if we are to give the term “management” its generally accepted meaning as that body of persons who control or direct an operation (Goad v. Montgomery, 119 Cal. 552 [ 51 P. 681 ]), there are supervisors that will be a part of management. A manager has been defined as one “who is vested with a certain amount of discretion and *134 independent judgment” (Black’s Law Dict. (rev. 4th ed. 1968) p. 1112). Some supervisors will fit this definition but most will not and employer governments should not be allowed to eliminate all supervisors by rule. The majority concedes that whether an employee is a supervisor who possesses genuine management prerogatives and exercises independence of judgment is essentially a question of fact but then proceeds to take the determination of that question from the trial judge where it properly belongs. They further concede that the factual determination does not depend solely on the job title, but then proceed to allow the county to eliminate employees based on job title. The majority concedes, as it must, the fundamental differences between the objectives of L.M.R.A. and MMB but then proceeds to use L.M.R.A. cases as authority to sustain their position that supervisors generally belong to management. Supervisors who do not in fact have the authority to exercise management prerogatives fail to qualify as management employees and should not be deprived of their representational rights. The appellants, as noted above, have attempted in ordinance section 34-4.050 to set forth the criteria for ascertaining the meaning of the term “supervisory authority” which they equate with management. In general, I have no quarrel with the county’s right to set up as criteria for management responsibility the “authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees . . . .” These are powers which can reasonably be associated with management. I do register an objection to the nebulous catch-all phrases that follow: “responsibility to direct them, or to adjust their grievances or effectively to recommend such action . . . .” These terms are about as easy to grasp as a handful of water, and do not lend themselves to ready definition. They are simply thrown out to net as many fish as possible, known and unknown, in a zeal to eliminate those leaders that the employees select as negotiators. If the stated purpose of MMB is “to promote full communication between public employers and their employees ...” (§ 3500), then the language to be used should be specific and not couched in vague generalities. I conclude this discussion by urging that the term “management” is not to be equated per se with the term “supervisor”; that with the exceptions noted, a governmental agency may set up the criteria as set *135 forth in ordinance section 34-4.050 as long as the employee has the actual official power to do some or all of the things mentioned, and not just a temporary de facto power or some ersatz power to recommend; that basically management is to be equated with the making of policy rather than the mere direction of other employees; and that the rule-making power established by section 3507.5 is defined as the power to implement the MMB Act and not to amend it. I would affirm the judgment of the trial court in full. Assigned by the Chairperson of the Judicial Council. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9730774. Public record. Not legal advice.