—I respectfully dissent from the majority view with respect to whether Fresno City Charter section 809 is a matter within the scope of representation. The majority view is extremely well presented and I agree with my colleagues’ expression that “The question whether Fresno City Charter section 809 is a matter within the scope of representation is, in our opinion, a close and difficult one.” (Maj. opn., ante, at p. 94.) However, I disagree with the following expression in the majority opinion. .
“On the one hand, the eight-city formula only establishes ‘a policy of parity’ between local firefighter and police wages and those in other large California cities. [Citation.] As such, it merely sets the City’s initial bargaining position, as the unions recognize. Establishment of an initial bargaining position clearly would seem to be in the nature of a ‘general managerial policy decision’ exempt from the meet-and-confer requirements of section 3505 pursuant to section 3504, in the same way, for example, the composition of the City’s negotiating committee would be exempt from mandatory bargaining. [Citations.] Fresno City Charter section 809, in fact, only establishes wages directly when the collective bargaining process has broken down and impasse on the issue of wages has resulted. Then, and outside of the collective bargaining process, Fresno City Charter section 809 becomes a wage-setting provision; before that time, it merely establishes a mandatory bargaining position for the City.
“It is in this sense that the trial court correctly observed, in support of its finding that repeal of Fresno City Charter section 809 was merely a permissive subject of bargaining: ‘The repeal of Charter section 809 did not place any impediments to future meet and confer under [MMBA] and the only effect the repeal. . . had was to require the parties in the future to meet and confer in good faith . . . .’
“Different considerations would be involved if the charter section in question actually set wages, as is the case in some prevailing wage charter provisions. [Citation.] In those cases, the charter provision establishes the wages, and repeal of the charter section would be subject to negotiation [citation]; in the present case, Fresno City Charter section 809 does not *103purport to set wages. As such, the literal terms of Fresno City Charter section 809 would not bring it within the statutory ‘scope of representation.’ ” (Maj. opn., ante, at pp. 94-95, fns. omitted.)
The majority view then acknowledges that although the eight-city minimum in the present case became the actual wage incorporated into the memorandums of understanding (MOU’s) “in some instances,” nevertheless it is not the practical effect of the provision that controls but rather the conclusion as to whether it is a statement of “fundamental labor policy.” Finding that it is an expression of labor policy, the majority then concludes that it is not a mandatory subject of bargaining and therefore not within the scope of representation within the meaning of the Myers-Milias-Brown Act (MMBA, Gov. Code § 3500 et seq.).
With all due respect, I believe that interpretation distorts the concept of scope of representation as it applies to wages and is inconsistent with People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591 [205 Cal.Rptr. 794, 685 P.2d 1145] (hereinafter Seal Beach). In reference to Government Code section 3504, which defines the 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,” the court in Seal Beach said: “We conclude that the city council was required to meet and confer with the relators before it proposed charter amendments which affect matters within their scope of representation. The MMBA requires such action and the city council cannot avoid the requirement by use of its right to propose charter amendments.” (36 Cal.3d at p. 602.) The majority view finds a distinguishing characteristic in the words of Fresno City Charter section 809 that “salaries of the members of the police and fire departments of the city shall be fixed annually at an amount not less than the average monthly salaries . . . .” (Italics added.) Using the provisions of a 1990 through 1991 MOU, the majority conclude that because that MOU merely adopts the provisions of Fresno City Charter section 809 as the basis for the salary under the MOU, the calculation of salaries was done through negotiation and not through the charter provision. Here is where I get lost. Just because the MOU refers to the charter provision does not lead me to the conclusion that the provision of charter section 809 is not a salary setting provision. In my view, the only purpose of the salary reference in charter section 809 was to establish an agreed upon or accepted resolution of salaries. The fact that the unions argue that it would be theoretically regarded as a “floor from which bargaining over wages could begin” (maj. opn., ante, at p. 94, fn. 10, referring to union brief) does not, in my view, change its nature as a salary-setting provision.
*104The majority opinion strives to distinguish a charter provision that requires police and fire department employee wages “ ‘to be fixed annually at an amount not less than . . . .’ ” from the holding in Seal Beach that a provision setting wages is subject to a mandatory meet-and-confer requirement — in other words, the majority contend that a provision that expressly sets a wage (City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898 [120 Cal.Rptr. 707, 534 P.2d 403]) is somehow distinguishable from one which sets some type of minimum wage. To the contrary, as noted by Justice Clark in San Francisco Labor Council v. Regents of University of California (1980) 26 Cal.3d 785, 790 [163 Cal.Rptr. 460, 608 P.2d 277], “A statute requiring payment of prevailing wages or more is effectively a salary setting statute. Public agencies’ use of taxpayers’ funds to pay in excess of a prevailing wage is unwarranted, and while the statute purports to establish a minimum wage, it in effect determines the wage.” (Italics added.)
The effect of the majority opinion is to conclude that the provision of Fresno City Charter section 809, which concerns a minimum wage determination, is an expression of a general managerial decision which would not be within the scope of representation. “Federal and California decisions both recognize the right of employers to make unconstrained decisions when fundamental management or policy choices are involved. . . . [Management decisions that ‘lie at the core of entrepreneurial control’ or are ‘fundamental to the basic direction of a corporation enterprise’ should be excluded from the mandatory bargaining requirements of the NLRA. [Citation.] Thus federal cases have held an employer need not bargain about a decision to shut down a plant for economic reasons [citation], nor about a decision to cancel a contract with a customer, even though layoffs result from such cancellation [citation].” Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 663 [224 Cal.Rptr. 688, 715 P.2d 648].)
In placing the charter provision in question within the context of a fundamental managerial policy, the majority view concludes that the City of Fresno (City) was not required to negotiate because the issue was not one of wages. In effect, it was a subject of permissive negotiation. I infer that the import of the majority view is that the charter provision in question is a policy decision as to where to start discussions as to wages (not unlike an opening offer in negotiations.
While I might agree that an employer’s opening position in negotiations is not itself a subject of negotiation, that begs the question. The unions do not claim the right to negotiate the City’s opening position; rather, they claim the right to meet and confer on the minimum wage the City can pay their *105members. The subject matter here is wages and wages are matters within the scope of representation. I do not know what could more directly address the issue of wages than a statute that purports to establish a minimum wage. As noted by Justice Clark, “it in effect determines the wage.” (San Francisco Labor Council v. Regents of University of California, supra, 26 Cal.3d at p. 790.) Therefore, I cannot separate such a recognition from the conclusion that the provision in the instant case is also a wage-setting provision.
The practical consequence of the majority view is to say a decision as to a minimum wage is a management decision so only whether to pay more than the minimum wage offered is the subject of mandatory negotiations. The problem with this position is that, in this view, the employer would never have to negotiate on the minimum it chose to pay because that would always be a management decision. That cannot be the law. A minimum wage is still a wage, and the MMBA requires covered employers to meet and confer about wages.
I find the determination that this is a wage-setting provision to be amply supported by the reality of its history. At argument, the unions expressed without challenge that the provision of Fresno City Charter section 809 regarding salaries had been the accepted level in virtually every MOU since the inception of charter section 809. The obvious effect of the provisions of charter section 809 was to minimize labor strife on what is commonly one of the most contentious issues in labor negotiation — money. Certainly, the City had a financial incentive to eliminate the provision because of its rising labor costs. Given section 809’s treatment by the parties historically and its statutory effect of restricting the City’s ability to go below the average set in charter section 809, the City would never be able to gain leverage in its negotiations on salaries so long as section 809 was in place. However, regardless of the wishful thinking of the unions, they would also have a difficult time in gaining leverage in negotiations, even with section 809 in place: history shows the unions have seldom exceeded the section 809 mínimums.
I cannot reach the conclusion that the wage provision herein was simply an expression of fundamental labor policy and its repeal a managerial decision that was not within the scope of representation. As noted in Building Material & Construction Teamsters’ Union v. Farrell, supra, 41 Cal.3d. at page 660, “. . . the principal purposes of the MMBA’s mandatory bargaining requirements are to promote communication between public employers and employees and to improve personnel management.” Building Material also states, “If an action is taken pursuant to a fundamental *106managerial 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.” (Ibid.) Clearly, employers would always prefer unencumbered decisionmaking in management of operations, but such an exception cannot swallow the rule by allowing the employer to designate with impunity what is an operational management decision. Such an interpretation would subsume wage negotiations and other working conditions.
I conclude this is a wage-setting provision and that the fact that it utilizes the words, “not less than” does not change its nature. I conclude that the provision of Fresno City Charter section 809 regarding wages was the subject of mandatory meet and confer. This takes us to the same result reached in Seal Beach, “. . . the city council was required to meet and confer with the relators before it proposed charter amendments which affect matters within their scope of representation. The MMBA requires such action and the city council cannot avoid the requirement by use of its right to propose charter amendments.” (Seal Beach, supra, 36 Cal.3d at p. 602.)
This is not to say, and Seal Beach does not require, that a charter provision cannot be adopted or repealed simply because it affects wages. It does recognize that, in reconciling the provisions of the MMBA with the provisions of the California Constitution, article XI, section 3, subdivision (b) regarding the constitutional power of city councils to propose charter amendments, the two must be reconciled in a way that accommodates the goals of each. In effect, the City herein was required to meet and confer with the unions on the subject of repeal of Fresno City Charter section 809. The fact that such negotiations ultimately may have proven fruitless does not change the requirements of the MMBA that such discussions be undertaken.
I make no observation about the relative merits of either side’s position in this negotiation except to note that labor negotiations do not turn on logic, they turn on experience, to paraphrase Justice Oliver Wendell Holmes. And experience shows us that discussion is better than strife, and amicable resolution would be better than what has happened in this case. The City chose to create Fresno City Charter section 809 as a means of setting wages and I cannot, in good conscience, transmute it into a management decision that is exempt from negotiation. Further, the will of the community has been amply expressed on this issue, which is a sobering reality of which the parties would be on notice in the future if the unions were granted their right to meet and confer. Posturing by either side should not prevent an amicable *107solution given that reality. As I do not find support in the record for the conclusion that the unions were afforded the right to meet and confer, that impasse' was impliedly reached, or that the unions engaged in bad faith negotiations or waiver, I would reverse. Because I would reverse the judgment in No. F025765,1 would find No. F026444 to be moot.
A petition for a rehearing was denied April 30, 1999. Ardaiz, J., was of the opinion that the petition should be granted. The petition of defendants and appellants for review by the Supreme Court was denied July 21, 1999.