Monday, January 24, 2005
C.A. Orders Binding Arbitration in Affirmative-Action Dispute
By KENNETH OFGANG , Staff Writer/Appellate Courts
San Francisco must arbitrate with its firefighters’ union over a change in promotion rules the city says is necessary to ensure that a fair number of minority employees are promoted, the First District Court of Appeal has ruled.
Div. Five overturned San Francisco Superior Court Judge Ronald Quidichay’s ruling upholding a 2003 amendment that allows the commission to consider candidates beyond the three with the highest scores on an examination.
Justice Linda Gemello, writing for the Court of Appeal, said Quidichay erred in ruling that the rule could only be overturned if the Civil Service Commission abused its discretion by adopting it. A municipal action that has the effect of expanding the municipality’s powers is subject to independent, de novo review by the courts, the justice declared.
Applying that standard, the appellate panel ruled that the commission action was unnecessary to ensure compliance with state and federal antidiscrimination laws, and thus was not exempt from the arbitration requirement.
The conflict over minority employment in the San Francisco Fire Department has been longstanding. Past lawsuits have resulted in rulings that established a minority hiring quota, which was later replaced with a nonbinding goal of 40 percent minority representation; in a long-term hiring goal of 10 percent women; and in creation of a banding system that allowed hiring decisions and promotions to be made from among several candidates with the highest test scores.
The stipulated order on which the banding system was based expired in 1998, and no promotional examinations have been held since.
As of June 2003, the department’s uniformed force was 57.7 percent Caucasian, 9.6 percent African-American, 13.9 percent Hispanic, 18.4 percent Asian/Pacific Islander/Filipino and 12.8 percent women.
In December 2000, the commission notified the union it intended to amend the “Rule of Three Scores,” which limited promotional eligibility for each vacancy to those with the three highest scores on the list. The commission proposed to replace the rules with one based on “Statistically Valid Grouping,” which would allow a wider band of candidates, similar to the method used when the department was subject to court orders.
After two years of negotiation with the union over the change, the commission declared an impasse and adopted it unilaterally, with legislative findings that included a declaration the change was needed to comply with antidiscrimination laws.
After the commission refused to arbitrate, the union sought a writ of mandate, which was denied by Quidichay.
But Gemello, writing for the Court of Appeal, said the deferential standard of review applied by the trial judge applies only to municipal actions that are within the scope of the agency’s authority. In this case, Gemello said, the commission was in effect seeking to modify its collective bargaining with the union and thus acting outside its authority.
In an unpublished portion of the opinion, the justice said the city had offered only speculation to show that it needed to go beyond the existing method in order to comply with Title VII or state or local laws against bias in promotions.
The case is San Francisco Fire Fighters Local 798 v. City and County of San Francisco, A108422.
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