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4 I 2 3 4 5 ALAN C. DAVIS DUANE W. RENO VINCENT J. COURTNEY JR. DAVIS & RENO 182 Second Street, Fourth Floor San Francisco, California 94105 Telephone (415) 543-1900 Attorneys for Plaintiffs and Petitioners IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN INSATEO 9 10 11 12 SAN rZATEO COUNTY FIRE FIGHTERS ) LOCAL 2400, INTERNATIONAL ) ASSOCIATION OF FIRE FIGHTERS, ) Case No. F1 LEQ u~ Cli C.ti, J;;yT1 Cl . ..r ..F~..~+.~ w u DECLARATION OF Plaintiffs and Petitioners, ) LEO C. AIIDDENDORF ) vs. ) ) CITY OF SAN MATEO, et al., } } Defendants and Respondents. ) ) AFL-CIO, et al., ) ) I, LEO C. MIDDENDORF, declare under penalty of perjury 24 25 as follows: i, I am and have been a member of the San Mateo Firefighters Local 2400 for the past six years and now hold the position of Labor Relations Representative, in which capacity I am authorized by Local 2400 to meet and confer with the City of San Mateo and the San Mateo Fire Department, when appropriate, under the provi- sions of the :ieyers-Milias-Brown seQ. Act, Government Code §§3500 et ,~v~ CCT 29 I*t~, 1 .

SAN IVaE® COUNTY FIRE FIUYERS INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS • LOCAL 2-:00 AFFILIATED WITH A F L.•C.LO. - - CENTRAL LADOl CJUNCIL OF SAN MATEO COUNTY , FEDERATED FIRE FIGHTERS OF CALIFORNIA INTERNATIONAL ASSOCIATION 'OF FIRE FIGHTERS January 18, 1982 Mr. 0. James Linenberger, Deputy City Manager City of San Mateo 330 West Twentieth Avenue San Mateo, California 94403 Dear Mr. Linenberger: 14151 348•2400 35 50 BAYSHORE BLVO. SAN MATEO. CALIFORNIA 04401 In regard to your letter of December 31, 1981 wherein the City of San Mateo maintains that classification of work and the establishment of standards are management rights and not subject to the meet and confer process. The posi- tion the City has taken on the physical standards and no-smok-ing clause is contrary to the *feyers-Milias-Brown Act and to various court Zases. Through the enactment of the Meyers-Milias-Brown Act (Gov. Code SS3`)0-3510) in 1968, the California Legislature recognized the right of local govcrnment employees to organize collectively and be represented by an employee or-.anization of their own choosing "on all matters of employer-employee rela-ions." (Gov. Code S3502). As noted in International Association of Fire Fighters Union Local 1974 v. City of Pleasanton (1976) 56 Cal. App. 3d 959, 967-968, the stated purpose of the Act is to improve employer-employee relations by promoting "full communication be- tween public employers and their employees": "Section 3503 establishes the right of recognized employee unions directly to represent their members in 'employment relations with public agencies'. This right to representatioci reaches 'all matters of employer-employee relations,' (Gov. Code, S3502; italics added) and encompasses 'but (is) not limited to wages, hours, and other terms and conditions of em- ployment' (Gov. Code, S3504)." (Social Workers Union,Local 535 v. Alameda County Welfare Dept. 1974) 11 Cal.ed 352, 388 (113 Cal.Rptr, 461, 521 P.2d 453) (Original italics; fn. omitted. For the texts of the M-f-B Act sections cited, see fn. 2, ante).) The M-,1-B Act thus "defines the scope of the emnloyee's rihht to union representation in language that is broad and generous." (Ibid. (Original italics).) The phrase "wages, hours, and other terms and conditions of employm,ent: is to be liberally construed, consistent with the "Penern_1 internretation" which has been accorded it in decisions clnalin;; with the federal law from which it has been incorporated into the ?I-M-R Act. (Id. , at p. 391) . E:{:3I3IT D

. r Mr. 0. James i Lineribe( rC Page Two January 18,_ 1982 CC To achieve this purpose, Section 3505 of the Government Code imposes the obli- gation upon local governmental agencies "to meet and confer and endeavor to reach agreement on wages, hours, and other terms and conditions of employment" prior to adopting any rule or policy relating to those matters. In Los Angeles County Civil Service Commission vs. Superior Court (1978) 23 Cal. 3d 55, the Supreme Court held that the Act imposes this obligation not only on city coun- cils and boards of supervisors, but also on all other local boards and commis- sions which have authority over wages, hours, and other terms and conditions of employment. It is now well established that when a local governmental agency has amended a rule affecting the terms and conditions-of employment of its em- ployees without first meeting and conferring with the recognized employee organi- zation until either an agreement or an impasse has been reached, the purported amendment is void and relief should be granted restrainii:g that agency from imple- menting, enforcing, or otherwise giving effect to it. In International Association of Fire Fighters Union, Local 1974 vs. City of Pleas- anton, supra, 56 Cal. App. 3d 959, the Court of Appeal held that because the Pleasanton City Council had failed to meet and confer in good faith over proposed rule changes relative to (1) the definition of an employee grievance, (2) pay for sick leave earned by an employee but not actually taken, (3) "educational incentive pay", (4) the procedure whereby the City announced competitive examin- ations for employment, (5) the time at which an employee serving an initial twelve-month probationary period would be eligible for a non-automatic "merit pay increase", and (6) the reclassification of employees hol,:ing the positions of "Fire Captain" and "Fire Prevention Officer" as "middle :--,anagement" employees of the City, injunctive relief should be granted enjoining =he City from implementing, enforcing, or otherwise giving effect to those rule chan;es. In Vernon Fire Fighters, Local 2312 v. City of Vernon (1'.30) 107 Cal.App. 3d 802, the Court of Appeal stated: The rule in California is well settled. A city's unilateral change in a matter within the scope of representation is a per se violation of the duty to meet and ccnfer in good faith. "(T)he courts have not been reluctant to intervene 'when a public agency has taken unilateral action t,;lthcut bargaining at all. In such situations, courts have been quite zealous in condemning the unilateral action and in gra-,ting appropriate relief". (International Assn. of Fire Fighters Union v. City of 0 Pleasanton, supra, 56 Cal. App. 3d 959,.967, {uoting Grodin, W Public Employee Bargaining in California: Tl.e "evers-`Iilias-Brown ~ Act in the Courts (1972) 23 Hastings L.J. 71:. 753-754 (herein- ~j after Grodin, Public Employee Bargaining in California)).. ~j ~ - O The California Supreme Court has unequivocally held _;iat vacancies and promotiens are matters within the scope of representation and h:~nce mandatory subjects for the meet and confer process under the :`feyers-'•tilias-T.roian Act. See, Fire FiQhters Union v. City of Vallejo (1974) 12 Cal. 3d 608, 618 ;26 P. 2d 971. Moreover, it appears the City intends to use physiccl standards and no-smoking as a safety measure in the department. Again, the C.-,li;ornia Supreme Court recog- nized that any rules or practices affecting employee sa,ety are mandatory subjects

Mr. 0. James LinenbeC er - Page Three ~' ,January 18,`1982 of bargaining, and thus mandatory subjects for the meet and confer process. Fire Fighters Union v. City of Vallejo, supra, 12 Cal. 3d 608, 620. See also NLRB v. Gulf Power Company (5th Cir. 1967) 384 F. 2d 822. was an unfair labor practice. In Medi Center, Mid-South Hospital (1975) 221 NLRB 670, the Board reviewed cases which held that requirements imposed during .the term of the collective bargaining agreement that an employee submit to any ject of bargaining and that the unilateral implementation of a testing procedure Any doubt that the City is required to meet and confer over the physical standards program is resolved by analagous discussions of the National Labor Relations Board. In American Gilsonite Company (1959) 122 NLRB 1006, the National Labor Relations Board found that an aptitude test was a mandatory sub- kind of examination affects conditions of employment and hence are mandatory subjects of bargaining. (221 NLRB at 677). If employees are subjected "to a jeopardy which had not prevailed under the preexisting rules," the procedure is not subject to unilateral employer control and is a mandatory subject for bar- gaining. • Thus, it cannot seriously be contended that the City is not required to meet and confer with the Union and endeavor to reach agreement prior to the implementation of any physical standards program. The program has a direct effect on safety, and will undoubtedly have an impact on employee discipline; and also constitutes a jeopardy which did not exist prior to the pro;ram's implementation. There is no. defense for your refusal to meet and confer. In view of the aforementioned Court cases and NLRB decisions I urge that the City refrain from implementing the physical standards and no-smoking clause until you have complied with the appropriate state stat::tes. Sincerely yours, LEO C. MIDDENDORF Labor Relations Representative Paralegal LCM/wwc cc: Ron Munier, District Vice President Rich Graham, District Vice President Mayor and City Council

,~f L i1-i SAN iVI( K® COUNTY FIRr-- FTiCILIRs INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS - LOCAL 2400 "1, ~ AFFILIATED WITH _ c A.F.L•C 1 0 CLNTRAL LADON COUNCIL OF SAN MATEO COUNTY FEDERATED FIRE FIGHTERS - . Of CALIFORNIA INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS 0 1A191 348-2400 35 SO BAYSNORE BLVD SAN MATEO. CALIFORNIA 9A401 February 2, 1982 Mr. 0. James Linenberger Deputy City 'Manager City of San Mateo 330 [dest Twentieth Avenue San Mateo, California 94403 Dear Mr. Linnenberger: In response to your letter of January 25, 1982, there are a number of areas where you have erred in your analysis of :I-IN-B and its application to the issues before us. The courts, in the cases cited to you, did not differentiate between new, existing or retired employees and the issues ruled on pertained to what are mandatory subjects for bargaining. It is obvious from those cases that the city has a mandatory obligation to comply with the statutory requirements of :1-'f-B. In your letter you cite Government Code S.3504 as having precedence over what issues are subject to meet and confer. In Fire Fighters Union vs. City of Vallejo the Court directed its attention to the language at the end of Section 3504 which limits meeting and conferring on "merits, necessity or organization of any service or activity provided by law or executive order." The Court held that this language should not be read as making the scope of representation under the M-M-B Act narrower than the scope of bargaining in the private sector. "Although the iJLRA does not contain specific wording comparabie to the 'merits, necessity or organization' terminology in the city chsrter and the state act, the underlying fear that gener- ated this language - that is, that wages, hours and working Condit ons could be expanded beyond reasonable boundaries to deprive an employer of his legitimate management prerogatives - lies imbedded in fcderal precedents undor the NT,RA. As a review of federal case law in this field demonstrates, the trepidation that the union would extend its province into matters that should properly remain in the hands of employers has been incorporated into the intcrpretation of thc scope of 'wahes, hours and tcr-:s and conditions of cmplo)ment.' EXHIBIT E .

Mr.O. •James LinenberN , Page Two February 2, 1982 "Thus, because the federal decisions effectively reflect the same interests_as those that prompted the inclusion of the 'merits, necessity or organization' bargaining limitation in the charter provision and state act, the federal precedents provide reliable if analogous authority on the issue." The Vallejo case went on to hold that subjects such as schedules, vacancies, promotions, manning procedure, work load, and personnei reduction were all within the scope of representation. vision of our current Memorandum of Understanding. It is indeed very diffi- cult to review your position with any degree of objectivity when in fact we have met and conferred in the past on physical fitness. GC S.3504 preempts the provisions in our current contract pertaining to physi- cal fitness? If the foregoing is an accurate assumption, then your position would be contrary to current California Labor Law and to the appropriate pro- individual contractual commitment. Is the city now taking the position that standards an employee is required to comply with. No mention is made of any Our,current agreement, Section 23, Physical Fitness, sets forth the type of Finally, it is our position that until you comply with Government Code S.3500 - 3511 of the State of California, Local 2400 refuses to accept the im- plementation of"physical standards and no smoking clause." We are willing to meet and confer on the issues at any mutually agreeable time and place. Sincerely, LEO C. 'tInDPNnORF Labor Relations Representative Paralenal LC:1/wwc cc: Mayor and City Council Ron :•funier, District Vice President, Local •2400 Richard Graham, District Vice President, Local 2400

., •7 -1 V W G 5 1 I W G I V I I C I l1 P V C I`I V G I"~ C C. I'• t- I1 C T lJ C P'. I T V \/ A A I A l" C O I 5AN MATEO. CALIFORNIA 94403 TELEPHONE: /413/ 374-6710 January 25, 1982 Mr. Leo C. Middendorf Labor Relations Representative San Mateo County Fire Fighters, Local 2400 35 So. Bayshore Blvd. San Mateo, CA 94401 Dear Mr. Middendorf: With respect to your letter of January 18, 1982, may I point out that the standards discussed apply only to new hires. Certainly it would be healthier if current fire fighters did not smoke, for example, but that remains their decision, not the City's. However if you have a proposal to make with respect to current employees, we would be pleased to meet and confer on it. The cases you cite of source apply,to existing employees, and not potential candidates for employment, and are therefore inapplicable. Even if MMB did apply, the standards discussed would clearly come under the "merits, necessity, or organization of any service or activity provided by law or executive order" (GC § 3504), and would therefore not be subject to meet and confer. Moreover, the Vallejo case which you cit.e (and also the Pleasanton and Vernon cases, which rest upon the Vallejo dase), itself recognizes that the formulation of policy is a management right which should not be egregiously circumscribed. We therefore conclude that these matters are not subject to meet and confer, and repeat our previous offer to discuss this and all subjects with Local 2400. Thank you for your concern in this matter. Sincerely, S LINENBERGc "^R DEPUTY CITY MHNAGER cc: Ron Munier EXHIBIT F ,. ... _

330 WEST TWENTIETH AVENUE SAN MATEO. CAIIFORNI:. 34403 TELEPHONE: 4413 ) 674•0710 Leo C. Middendorf, Labor Relations Representative San Mateo County Fire Fighters 35 South Bayshore Blvd. San Mateo, CA 94401 Dear Mr. Middendorf: Your letter to Mr. DeLong has been referred to me for reply. The classification of work and the establishment of standards therefor is a management right and not a mandated subject of meet and confer, although the City did consult with the union. Thank you for your inquiry. Sd J IfwS ".t-v,va Qs-! S LINENBERGER TY CITY MANAGER E:{HI3IT C 11

SAN COUNTY FIRE FICk-ERS INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS - LOCAL 2400 AFFILIATED WITH 1. A F.L.-C.I.O. CENTRAL LAU.•R COUNCIL OF SAN MATEO COUNTY FEDERATED FIRE FIGHTERS - OF CALIFORNIA . INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS 14151 348-2400 `' 35 50. BAYSHORE BLVD. '~ SAN MATEO. CALIFORNIA 94401 ~maz December 28, 1981 „ Mr. Richard B. DeLong, City Manager City of San Mateo 330 West 20th Avenue San Mateo, California 94403 Re: Employment Requirements - ' Physical Standards, No-Smoking Clause Dear Mr. DeLong: The current application for Fire Fighter/Engineer requires the applicant, as a condition of employment, to sign a"contract to maintain prescribed physical standards on an annual test basis" and to agree to a no-smoking clause. Even though the aforementioned physical standards and refraining from . smoking may be desirable goals, the terms of our contract, as well as the appropriate state statutes require the employer to bargain on these issues. I find no documents which would indicate you have attempted to do so.. n I therefore urge that the City refrain from implementing the physical standards and no-smoking clause until such time as you have met your statu- tory obligation to meet and confer. Very truly yours, f . ~_ ---- ~ / ' LLO C. `i[DDL•:`DORF % L,ihor Relations Represcntative Paralegal LC.M/wwc Copy: Ron Munier, District Vice Presidelit, i. A. F. F., Local 2400 Richard Graham, District Vice fresiclent, I. A. F. F. , Local 2400 O W ~ C..) ~ EXHIBIT B .~ ~ a-

1 2 3 4 5 In December of 1981 I became aware of the fact that new applicants for positions of firefighter/engineer with the City of San Mateo were being required to sign an "employment agreement" as a condition of employment and which contained within it provi- sions that these applicants would maintain certain physical standards once hired, that they would bear the expense of "medical correction" or "physical conditioning" to maintain these physical 9 10 11- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 standards, that applicants would, if employed, refrain from smoking on and off duty, and that non-compliance with either the physical standards of with the prohibition against smoking would subject the applicants to disciplinary action. On December 28, 1981, I wrote on behalf of Local 2400 to Richard B. DeLong, City Manager, City of San Mateo, urging that the City not implement the physical standards and no smoking clauses of the preemployment agreements until the City met its responsibility to meet and confer with Local 2400. A true and correct copy of this December 28, 1981, letter is attached hereto, identified as Exhibit B, and incorporated herein by reference. I received a response to my request from 0. James Linenberger by letter dated December 31, 1981, wherein he denied the City's responsibility to meet and confer and stated, in reference to our request that "the classification of work and the establishment of standards therefor is a management right'_ and not a mandated subject of meet and confer." A true and correct copy of this December 31, O 1981, letter is attached hereto, identified as Exhibit C, and W Cr: incorporated herein by reference. ~ 2.