Region 2 Court Interpreter etc. v. Cal. PERB CA1/3 ( 2021 )

Filed 10/21/21 Region 2 Court Interpreter etc. v. Cal. PERB CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
REGION 2 COURT INTERPRETER
EMPLOYMENT RELATIONS
COMMITTEE et al.,
Petitioner,
A159985
v.
CALIFORNIA PUBLIC (Public Employment Relations
EMPLOYMENT RELATIONS Board Decision No. 2701-I
BOARD, Case No. SF-CE-11-I)
Respondent;
CALIFORNIA FEDERATION OF
INTERPRETERS, LOCAL 39000 et
al.,
Real Party in Interest.
The Trial Court Interpreter Employment and Labor Relations Act
(Interpreter Act or Act) (Gov. Code, § 71800 et seq.)1 organizes trial courts
across the state into four regions and generally requires regional bargaining
of court interpreter labor agreements. In particular, the Act imposes an
obligation upon the representative of the trial courts in each region and the
recognized employee organization representing the interpreters to meet and
1 Unless otherwise indicated, all further statutory references are to this
code.
1
confer on “matters within the scope of representation” (§ 71801, subd. (e)),
which include “wages, hours, and other terms and conditions of employment”
(§ 71816, subd. (a)). The central question in this case is whether regional
bargaining of the impact of trial court changes to interpreter pension benefits
is required in light of the Act’s express contemplation that “health and
welfare and pension benefits” for interpreter employees “may be the same as
those provided to other employees of the same trial court.” (§ 71808.)
In the proceedings below, the California Public Employment Relations
Board (PERB) issued a decision concluding, among other things, that the
Interpreter Act and the parties’ memorandum of understanding required
regional impact bargaining of pension benefit changes and that the Region 2
Court Interpreter Employment Relations Committee (Committee) acted
unlawfully by refusing to meet and confer in good faith regarding the impact
of changes to pension cost sharing by certain trial courts within Region 2.
The Committee and the California Superior Courts of Region 2 (Region 2
Courts)2 filed a petition for writ of extraordinary relief from the PERB
decision, and we granted a writ of review.
Like PERB, we conclude the Committee had a statutory and
contractual duty to engage in regional bargaining over the impacts of the
trial court pension changes. We additionally conclude the other challenged
portions of the PERB decision are correct. Accordingly, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In California, each trial court maintains its own retirement plan for its
court employees. (See § 71624.) Some of the Region 2 Courts participate in
2 The Region 2 Courts include the superior courts in the “Counties of the
First and Sixth Appellate Districts, except for Solano County.” (§ 71807,
subd. (a)(2).)
2
the California Public Employees’ Retirement System (CalPERS), while others
participate in a statutory retirement system through their respective
counties. The trial court in San Francisco County participates in the City
and County of San Francisco’s retirement system.
Generally, the various trial court retirement plans operate under
different pension and contribution formulae, and other requirements. Each
plan involves an employer contribution and an employee member
contribution to fund its pension benefits, and during the relevant time herein,
some courts paid all or a portion of the employee member contribution,
referred to as the “employer-paid member contribution” (EPMC). Thus,
EPMC and employee contribution amounts varied from court to court because
of retirement system differences. For example, in 2014, the EPMC was 0
percent for the Superior Courts of the City and County of San Francisco,
Alameda County, and Santa Cruz County; 1.8 percent for Napa County
Superior Court; 2 or 4 percent (based upon hire date) for Santa Clara County
Superior Court; 7.8 percent for Mendocino County Superior Court; and 50
percent of the employee’s member contribution for the Superior Courts of
Contra Costa County and San Mateo County.
A. The Interpreter Act
Prior to 2002, virtually all trial court interpreters were not court
employees but instead were independent contractors who had no retirement
or other benefits, no job security, and no right to representation. (Sen. Com.
on Judiciary, Analysis of Sen. Bill No. 371 (2001–2002 Reg. Sess.) as
amended Aug. 28, 2002, p. 2.) That situation changed in 2002, when the
Legislature declared that court interpreter services “are vital to ensuring
access and fairness in the trial courts” and passed the Interpreter Act “to
provide for the fair treatment of court interpreters, to enhance access to the
3
court system for persons who depend upon the services of interpreters, and to
promote sound court management.” (Stats. 2002, ch. 1047, § 1, subd. (a)
(Sen. Bill No. 371).) Pursuant to the Act, trial courts were required to
transition from hiring independent contractors to appointing court employees
for interpretation services. (Id., § 1, subd. (b).)
In addition to requiring court appointment of interpreters as
employees, the Interpreter Act ensures the interpreter employees the right of
representation in a unique process that calls for collective bargaining at a
regional level. Specifically, the Act divides the California trial courts into
four regions and requires the development and bargaining of regional
employment terms and conditions for interpreter employees. (§ 71807.)
Pursuant to the Act, the Committee serves as the “regional court interpreter
employment relations committee” representing the Region 2 Courts
(§§ 71807, subd. (a)(2), 71809), and the California Federation of Interpreters–
The Newspaper Guild-Communication Workers of America, Local 39000
(CFI)3 is the “ ‘[r]ecognized employee organization’ ” representing the
interpreter employees hired in the Region 2 Courts (§§ 71801, subd. (g),
71815).
Although the regional bargaining scheme will be addressed at length
post, we note for now the Interpreter Act imposes an obligation to meet and
confer on “matters within the scope of representation” (§ 71801, subd. (e)),
which include “wages, hours, and other terms and conditions of employment.”
(§ 71816, subd. (a).) The Act expressly contemplates that compensation and
generally all terms and conditions of employment for interpreter employees
“shall be uniform throughout the region, except that health and welfare and
3 The organization’s subdivisional number during the operative period
was originally Local 39521, and subsequently changed to Local 39000.
4
pension benefits may be the same as those provided to other employees of the
same trial court.” (§ 71808.)
B. The Memorandum of Understanding
Pursuant to the Interpreter Act, the Committee and CFI executed a
memorandum of understanding that covered all interpreter employees in the
Region 2 Courts during the period from December 16, 2013 through
September 30, 2016 (MOU). Consistent with the Act, the MOU expressed the
agreement of the Committee and CFI that regular full-time and part-time
interpreter employees would receive the same pension benefits as the
employees in the largest, non-management-represented bargaining unit at
their local court (the “linked bargaining unit”).
By its terms, the MOU represented the “full and entire agreement of
the parties” and declared their understanding that, “[e]xcept as specifically
provided [in the MOU],” the parties “reserve the right, upon mutual
agreement, to meet and confer in good faith with respect to any subject or
matter covered herein or with respect to any other matter within the scope of
representation, during the term of this MOU.”
C. Trial Court Adjustments in EPMCs
After the parties executed the MOU, the California Public Employees’
Pension Reform Act of 2013 (PEPRA) (Gov. Code, § 7522 et seq.) was enacted
into law. As pertinent here, PEPRA prohibited a public agency from paying
an EPMC for “new members” hired on or after January 1, 2013 and set a
standard that “employees pay at least 50 percent of normal costs” of their
pension benefits. (§ 7522.30, subd. (a).) In 2014, Governor Brown apparently
made statements indicating that reimbursement funding for benefits would
be allocated less favorably to trial courts that did not eliminate the EPMC.
5
This prompted many courts to consider eliminating EPMCs from their
retirement plans.
Among the courts considering EPMC changes was the Contra Costa
County Superior Court. In 2015, that court notified CFI of its agreement
with the linked bargaining unit to eliminate the court’s EPMC in two phases.
Before implementation of the first phase, the court and CFI met and
conferred regarding the impacts of the first phase and reached agreement for
additional paid leave time with a cash-out procedure and employer
contributions to a deferred compensation plan. But CFI declined to meet and
confer with the court on the impacts of the second phase. Instead, CFI
announced its intent to request regional bargaining because it wanted a wage
increase to offset the EPMC elimination. The court agreed to postpone a
meet and confer to allow the Committee to respond to CFI’s bargaining
request.
D. CFI’s Regional Bargaining Request and Subsequent Events
In February 2016, CFI representative and Regional Spokesperson Mary
Lou Aranguren sent a letter to the Committee’s Chairperson, Michael Yuen.
As relevant here, Aranguren requested to meet and confer at the regional
level regarding proposed PEPRA-related changes in retirement contributions
following court negotiations with linked bargaining units. In making this
request, Aranguren referenced the Superior Courts of Contra Costa County,
Marin County, Napa County, San Mateo County, and Santa Clara County.
On March 9, 2016, after consulting with the Court Executive Officers of the
Region 2 Courts, Yuen responded to CFI with the position that, based on
article 23.E of the MOU and the past practice of the Courts and CFI,
retirement issues must be addressed at each local court and not regionally.
6
Thereafter, the Contra Costa County Superior Court and CFI returned
to the bargaining table regarding the impacts of the court’s phase two EPMC
elimination. But no agreement was reached.
On April 1, 2016, CFI filed a grievance against the Committee and the
Superior Courts of Contra Costa County, Marin County, San Mateo County,
and Santa Clara County, alleging these courts planned to implement changes
to pension cost sharing without a meet and confer at the regional level. Each
trial court individually denied the grievance, with some claiming they had
not yet commenced or completed the meet and confer process over pension
cost sharing with the linked bargaining unit in their courts. The Superior
Courts of Contra Costa County and Marin County additionally asserted they
had met with CFI over pension cost sharing changes agreed to by the linked
bargaining unit and had not made any changes. Each court expressed a
willingness to meet and confer with CFI regarding the impacts of any pension
cost sharing changes at the appropriate time.
On April 13, 2016, Yuen responded to CFI on behalf of the Committee.
He stated that the Committee had not received the grievance and denied that
any violation of the MOU had occurred. Yuen also stated his March 9, 2016
letter advised CFI that any bargaining shall occur at each local court.
On April 22, 2016, Aranguren sent letters to the Superior Courts of
Contra Costa County, Marin County, and San Mateo County indicating CFI’s
grievances were preemptive.
Ultimately, the Superior Courts of San Mateo County, Mendocino
County, and Santa Clara County each notified CFI of agreements with the
linked bargaining units over changes to the EPMC in their respective courts
and invited CFI to bargain the impacts. CFI indicated its desire to meet and
confer at the regional level and declined to negotiate with the courts.
7
In May 2016, CFI filed an unfair practice charge against the
Committee and the Region 2 Courts, alleging the Committee’s refusal to
bargain regionally over changes to pension contributions and certain trial
courts’ repudiation of the grievance procedure when they rejected the
grievances over these changes. PERB’s Office of the General Counsel issued
a complaint. Thereafter, the PERB administrative law judge (ALJ) granted
two motions by CFI to amend the complaint to add additional claims.
Meanwhile, in June 2016, Aranguren sent Yuen a letter requesting to
meet and confer regarding a successor MOU. CFI and the Committee
bargained over several months and reached an agreement on September 11,
2017. The agreement included a 21 percent wage increase over its three-year
term to address, among other things, the impacts of changes to pension cost
sharing at some of the trial courts.
E. The ALJ Proposed Decision and PERB Decision
After presiding over an evidentiary hearing and considering the parties’
post-hearing briefs, the ALJ determined that the Committee was not
required to engage in regional bargaining over the impacts of trial court
changes to employee pension contributions and that the Committee had
lawfully delegated to the trial courts the duty to negotiate over such impacts.
The ALJ further concluded the Committee had not refused to bargain over
CFI’s employee contribution proposals during successor contract negotiations
in 2016–2017; the trial courts had not unilaterally changed employee pension
contribution rates; and the courts had not repudiated the parties’ contractual
grievance procedures.
PERB affirmed in part and reversed in part the ALJ’s proposed
decision. Specifically, it affirmed the ALJ’s conclusion that the Committee
did not refuse to bargain over CFI’s pension contribution proposals during
8
the successor contract negotiations. But PERB disagreed with the ALJ’s
other conclusions and held “(1) the Committee violated its duty to meet and
confer in good faith by refusing to engage in impact bargaining in response to
CFI’s February 11, 2016 request; (2) the Mendocino, San Mateo, and Santa
Clara County Superior Courts violated their duty to meet and confer in good
faith by unlawfully implementing changes to the interpreters’ pension
contributions prior to completion of impact bargaining; (3) the Contra Costa,
Marin, San Mateo, and Santa Clara County Superior Courts violated their
duty to meet and confer in good faith by repudiating the parties’ contractual
grievance procedure; and (4) the Santa Cruz County Superior Court violated
its duty to meet and confer in good faith when it unilaterally eliminated a
stipend that offset interpreters’ pension contributions.”
Pursuant to section 71825.1, the Committee and the Region 2 Courts
petitioned for writ of extraordinary relief from PERB’s decision. We
determined that a summary denial of the petition was not warranted and
issued a writ of review.
DISCUSSION
The principal issue is whether PERB properly concluded that the
Committee violated a duty to meet and confer in good faith by refusing to
engage in regional bargaining over the impacts of the trial court decisions to
reduce or eliminate the EPMC in their courts.
The California Supreme Court recently summarized the standards
governing our review of the underlying PERB decision, as follows. “ ‘[C]ourts
generally defer to PERB’s construction of labor law provisions within its
jurisdiction. (See [citations].) “. . . PERB is ‘one of those agencies presumably
equipped or informed by experience to deal with a specialized field of
knowledge, whose findings within that field carry the authority of an
9
expertness which courts do not possess and therefore must respect.’
[Citation.]” [Citations.]’ ” (Boling v. Public Employment Relations Bd. (2018)
5 Cal.5th 898, 911–912 (Boling).) Thus, while courts retain final authority to
construe a statute, we adhere to PERB’s interpretation unless we determine
it is clearly erroneous. (Id. at p. 912.) This type of “hybrid approach to
review in this narrow area maintains the court’s ultimate interpretive
authority while acknowledging the agency’s administrative expertise.” (Ibid.)
Pursuant to statute, PERB’s factual findings must be upheld if they are
supported by substantial evidence in the record considered as a whole.
(§ 71825.1, subd. (b).) We may not reweigh the evidence, and so long as
PERB’s factual findings have a plausible basis, “ ‘ “we are not concerned that
contrary findings may seem to us equally reasonable, or even more so.
[Citations.]” ’ ” (Boling, supra, 5 Cal.5th at p. 912.) Moreover, “when the
matter falls within PERB’s area of expertise, the deferential standard
outlined above applies to its legal determinations even if based on undisputed
facts.” (Id. at p. 913.) Finally, because PERB is “ ‘empowered to reweigh the
evidence [before an ALJ] and draw its own factual conclusions’ ” (City of Palo
Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1288),
the rule requiring deference to PERB’s findings applies even when it has
reversed an ALJ’s proposed decision (see ibid.; e.g., McPherson v. Public
Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304).
A. The Interpreter Act
The Committee challenges PERB’s conclusion that the Committee
violated its duty to meet and confer in good faith by refusing to engage in
regional bargaining over the impacts of the trial court decisions to reduce or
eliminate the EPMC for interpreter employees. Emphasizing that the
Interpreter Act does not require uniformity of pension benefits throughout
10
Region 2, the Committee contends the Act authorizes local trial court
bargaining over the impacts of local EPMC changes. Whether the Act
requires regional bargaining over such impacts is a matter of statutory
construction.
As a general matter, the fundamental task in statutory construction
“ ‘ “ ‘is to determine the Legislature’s intent so as to effectuate the law’s
purpose.’ ” ’ ” (Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th
844, 856–857.) Statutory language should be examined “ ‘ “ ‘in the context of
the statutory framework as a whole in order to determine its scope and
purpose and to harmonize the various parts of the enactment,’ ” ’ ” and the
plain meaning of the language must be followed “ ‘ “ ‘unless a literal
interpretation would result in absurd consequences the Legislature did not
intend.’ ” ’ ” (Id. at p. 856.) When statutory language is susceptible to more
than one reasonable interpretation, “ ‘ “ ‘other aids, such as the statute’s
purpose, legislative history, and public policy’ ” ’ ” may be consulted. (Id. at
p. 857.)
Applying the deferential standard of review, we must determine
whether it was clearly erroneous for PERB to construe the Interpreter Act as
requiring regional bargaining over the impacts of EPMC changes. (Boling,
supra, 5 Cal.5th at p. 912.) We turn first to the statutory language.
To effectuate its regional bargaining scheme, the Interpreter Act
provides that the “regional court interpreter employment relations
committee” (here, the Committee) “shall set terms and conditions of
employment for court interpreters within the region” (here, Region 2), which
“shall be binding on the trial courts within the region” when adopted by the
Committee. (§ 71808.) The Act specifies that the Committee “shall act as the
representative of the trial courts within the region in bargaining with a
11
recognized employee organization” (here, CFI). (§ 71809). The Act expressly
contemplates that the Committee or its designated representatives “shall
meet and confer in good faith” with CFI regarding the “terms and conditions
of employment within the scope of representation” as defined in the Act.
(§71818, italics added.) The Act defines the “scope of representation” as
including “all matters relating to employment conditions and employer-
employee relations, including, but not limited to, wages, hours, and other
terms and conditions of employment.” (§ 71816, subd. (a), italics added.) In
this regard, the Act states in unambiguous terms that “[c]ompensation shall
be uniform throughout the region” but that “health and welfare and pension
benefits may be the same as those provided to other employees of the same
trial court.” (§ 71808.) For purposes of the Act, “ ‘[m]eet and confer in good
faith’ means that a trial court or [the Committee] or those representatives it
may designate, and representatives of [CFI], shall have the mutual obligation
personally to meet and confer promptly upon request by either party and
continue for a reasonable period of time in order to exchange freely
information, opinions, and proposals, and to endeavor to reach agreement on
matters within the scope of representation.” (§ 71801, subd. (e) (§ 71801(e)).)
A plain reading of these particular Interpreter Act provisions leads to
the conclusion that pension benefits constitute a term or condition of
employment falling within the scope of representation (§§ 71808, 71816) and
that, as such, the impact of changes to pension benefits is subject to the
statutory meet and confer requirement (§ 71801(e).) And because the Act
expressly requires the Committee to act as the bargaining representative of
the Region 2 Courts (§ 71809) and to meet and confer in good faith with CFI
regarding “all matters relating to employment conditions” (§ 71816,
12
subd. (a)), the impact of changes to pension benefits must be bargained by the
Committee at the regional level.
In disputing this construction, the Committee highlights the definition
in section 71801(e) providing: “ ‘Meet and confer in good faith’ means that a
trial court or regional court interpreter committee or those representatives it
may designate, and representatives of a recognized employee organization,
shall have the mutual obligation personally to meet and confer promptly
upon request by either party . . . .” (Italics added.) In the Committee’s view,
section 71801(e)’s use of the disjunctive phrase―“a trial court or regional
court interpreter committee”—reflects the Act’s express provision of a local
bargaining option allowing individual trial courts to meet and confer
regarding matters that are determined at the local level, such as pension
benefits and health and welfare benefits.
While the Interpreter Act makes clear that interpreter pension benefits
need not be uniform throughout a region (§ 71808), nowhere does the Act
exclude the matter of pension benefits or the impact of pension benefit
changes from the scope of representation. To the contrary, the Act broadly
and explicitly contemplates the “scope of representation” as including “all
matters relating to employment conditions . . . including, but not limited to,
wages, hours, and other terms and conditions of employment.” (§ 71816,
subd. (a), italics added.) Had the Legislature intended to provide for local
trial court bargaining over the impact of pension-related changes, it would
not have specified that “[t]he regional court interpreter employment relations
committee . . . shall meet and confer in good faith regarding wages, hours,
and other terms and conditions of employment within the scope of
representation, as defined in this chapter.” (§ 71818, italics added.)
13
This construction aligns with other provisions of the Interpreter Act.
For instance, the Act lists six specific matters—none of which concerns
pension benefits—that reflect “the unique and special responsibilities of the
trial courts” and explicitly excludes trial court decisions regarding such
matters from “the scope of representation.” (§ 71816, subd. (b).)4
Nonetheless, the Act expressly stipulates that the impact from decisions on
those six matters “as those matters affect wages, hours, and terms and
conditions of employment of court interpreters” are “within the scope of
representation,” such that the Committee “shall be required to meet and
confer in good faith with respect to that impact.” (§ 71816, subd. (c).) In
other words, even though trial court decisions on the six listed matters are
statutorily exempt from the scope of representation, the Act specifically
contemplates that regional bargaining by the Committee is appropriate for
addressing their impact on wages, hours, and other employment terms and
conditions.
Finally, it bears emphasizing that interpreting the Act to require
regional bargaining over the impacts of pension contribution changes does
not lead to absurd results. Indeed, as the PERB decision recounts, the
Committee did in fact bargain in good faith with CFI over the impacts of
4 Section 71816, subdivision (b), states in full: “In view of the unique and
special responsibilities of the trial courts in the administration of justice,
decisions regarding any of the following matters may not be included within
the scope of representation: [¶] (1) The merits and administration of the trial
court system. [¶] (2) Coordination, consolidation, and merger of trial courts
and support staff. [¶] (3) Automation, including, but not limited to, fax filing,
electronic recording, and implementation of information systems.
[¶] (4) Design, construction, and location of court facilities. [¶] (5) Delivery of
court services. [¶] (6) Hours of operation of the trial courts and trial court
system.”
14
EPMC changes during successor MOU negotiations, “repeatedly sweeten[ing]
its wage proposals in an effort to address all EPMC impacts issues.”
So what does section 71801(e) contemplate in stating that “a trial court
or regional court interpreter committee” shall have the obligation to meet and
confer in good faith with the recognized employee organization “on matters
within the scope of representation”? As PERB observed, apart from section
71801(e), “[e]very other reference in the Act to the bargaining obligation
refers to the regional committee alone.” (See §§ 71807, 71808, 71809, 71816,
subd. (c), 71818, 71819, 71820, 71821.) Thus, PERB concludes the Act
“appears to contemplate that in some circumstances a trial court will be the
appropriate entity to meet and confer with CFI,” although the Act “does not
specify what those circumstances would be.”
Viewing the statutory scheme as a whole, we cannot say it was “clearly
erroneous” for PERB to construe the Interpreter Act as effectively allowing a
meet and confer at the local level if local bargaining is not expressly
prohibited by the Act and if the trial court and the recognized employee
organization have mutually agreed to it. But the structural design of the Act,
which focuses on the primacy of the regional court interpreter committee as
the representative of the trial courts in bargaining with the employee
organization, leads us to conclude that the regional committee’s consent to
such local bargaining is also required. Moreover, the obligation to meet and
confer in good faith under section 71801(e) necessarily includes the obligation
of the parties to adhere to the terms of any mutual agreement to meet and
confer at the local level, including any agreement to forgo regional impact
bargaining.
In a further effort to undermine PERB’s construction, the Committee
highlights the portion of section 71801(e) that imposes the obligation to meet
15
and confer in good faith upon a “regional court interpreter committee or those
representatives it may designate.” (Italics added.) Relying on this language,
the Committee contends that a regional court interpreter committee such as
itself is entitled to designate a trial court as its representative to bargain
locally over the impacts of changes to pension benefits. In so contending, the
Committee observes that section 71801(e) places no restriction on whom it
may designate and that PERB precedent recognizes the right of management
and unions to appoint their respective negotiators without interference from
the other side. (See Anaheim Union High School District (2015) PERB Dec.
No. 2434, p. 16.) We are not persuaded.
We agree section 71801(e) plainly permits the Committee to designate
a representative for purposes of a meet and confer. But it is axiomatic that
whomever the Committee designates must act to fulfill the Committee’s
regional obligation under the Act to meet and confer in good faith “on matters
within the scope of representation” (§ 71801(e)), including the setting of the
“terms and conditions of employment” that will bind all Region 2 Courts
(§§ 71808, 71816, subd. (a), 71818). (See State of California (Department of
Personnel Administration) (1998) PERB Dec. No. 1305-S, p. 8 [a “specific
delegation of bargaining may be unlawful if it is found to be inconsistent with
the obligation to bargain in good faith”].) Moreover, while PERB precedent
supports the Committee’s right to designate its bargaining representative
without CFI’s interference, that representative remains obligated to
negotiate on the same regional basis as the Committee where the parties
have not otherwise agreed. Reasonably understood, section 71801(e) does not
grant the Committee an absolute right to designate a trial court to bargain
locally over the impacts of changes to the terms and conditions of
16
employment, including changes to the EPMC and employee pension
contributions.
Additionally, PERB observed that because the Act requires uniformity
of compensation throughout the region (§71808), “trial courts necessarily lack
the statutory authority to change interpreters’ wages.” (Fn. omitted.) In
PERB’s view, “allowing the Committee to delegate impact bargaining to a
trial court under these circumstances would extinguish CFI’s ability to
negotiate for higher wages to offset increased employee pension
contributions. Nothing in the Act indicates the Legislature intended this
result.” (Fn. omitted.)
In this regard, the Committee has never denied that designating trial
courts to bargain over the impacts of EPMC and employee contribution
changes forecloses CFI’s ability to negotiate a wage offset. Indeed, the trial
courts “consistently declined to negotiate wage increases on the basis that
compensation is subject to regional control under the Act’s uniformity
requirement.” The Committee instead emphasizes that trial courts may and
were prepared to offer “other economic fringe benefits” to address such
impacts.
Notably, however, a party may not refuse to discuss a mandatory
subject of bargaining―here, a subject within the scope of representation―once
the other party has requested bargaining on that subject. (City of San Jose
(2013) PERB Dec. No. 2341-M, p. 27, citing Gov. Code, § 3505 [Meyers-Milias-
Brown Act].) As PERB indicated, construing the Interpreter Act in a manner
that allows the Committee to unilaterally define its meet and confer
obligation over matters within the scope of representation and to impair
CFI’s ability to negotiate wage increases to offset increased employee pension
contributions “is incongruous with the Legislature’s purpose in enacting a
17
statutory scheme granting court interpreters the right to engage in collective
bargaining over ‘wages, hours, and other terms and conditions of
employment.’ ” We will avoid this construction, as it tends to defeat, rather
than promote, the legislative purpose. (Boling, supra, 5 Cal.5th at p. 918; see
Santa Clara Valley Water District (2013) PERB Dec. No. 2349-M, p. 17.)5
Having determined that PERB correctly concluded the Committee was
obligated under the Interpreter Act to meet and confer with CFI over the
impacts of the EPMC changes, we next address PERB’s finding the
Committee violated its statutory obligation.
“A complaint alleging any violation” of the Interpreter Act “shall be
processed as an unfair practice charge” by the Board. (§ 71825, subd. (c).)
Moreover, an outright refusal to bargain regarding a mandatory subject is a
per se violation of the duty to bargain in good faith. (Fresno County In-Home
Supportive Services Public Authority (2015) PERB Dec. No. 2418-M, p. 15.)
Here, PERB observed “it is undisputed that, on March 9, 2016 and June 30,
2017, the Committee refused to meet and confer with CFI over the impacts of
trial courts’ changes to employee pension contributions.” The record bears
out that observation, and the Committee does not dispute it. Accordingly, we
agree with PERB that a statutory violation and unfair practice have been
established. (§ 71825, subd. (c); 8 Cal. Code Regs., tit. 8, § 32608.)
B. The MOU
Though lacking the authority to enforce contracts between parties
(§ 3541.5, subd. (b)), PERB may interpret an MOU if necessary to resolve an
5 Having concluded the Interpreter Act did not grant the Committee an
absolute right to designate an individual trial court to bargain locally over
the impacts of EPMC changes, we need not and do not decide whether PERB
erroneously found the Committee did not in fact designate the trial courts to
bargain regarding such impacts.
18
unfair practice allegation. (San Francisco County Superior Court & Region 2
Court Interpreter Employment Relations Committee (2018) PERB Dec.
No. 2609-I, p. 7.) Here, PERB found the Committee was contractually
obligated under the MOU to bargain regionally over impacts of EPMC
changes.
“MOU’s are binding contracts and are interpreted in accordance with
the general rules of contract interpretation.” (County of Fresno v. Fresno
Deputy Sheriff’s Assn. (2020) 51 Cal.App.5th 282, 292 (County of Fresno).)
“Where contractual language is clear and unambiguous, it is unnecessary to
go beyond the plain language of the contract itself to ascertain its meaning.
[Citations.] ‘The whole of a contract is to be taken together, so as to give
effect to every part, if reasonably practicable, each clause helping to interpret
the other.’ (Civ. Code, § 1641.) Thus, ‘the Board must avoid an
interpretation of contract language which leaves a provision without effect.’
[Citation] However, where the contract language is silent or ambiguous, the
policy may be ascertained by examining past practice or bargaining history.
[Citations.]’ ” (County of Sonoma (2012) PERB Dec. No. 2242-M, pp. 15–16.)
We conclude PERB properly adhered to these principles in interpreting the
MOU.
Articles 22 and 23 of the MOU6 described the wages and benefits
afforded to court interpreters. Consistent with section 71808 of the
Interpreter Act, article 22 set forth the agreed wages and compensation for
interpreter employees on a region-wide basis. In turn, article 23 addressed
the various benefits. While article 23 provided that holiday benefits for
interpreters applied uniformly across all trial courts in Region 2, it specified
that other benefits were available to interpreters at the same level as for
6 All references to articles are to articles of the MOU.
19
other represented court employees, i.e., benefits regarding vacation; sick
leave; leaves of absence; health, vision, dental, and other insurance; and
retirement. Article 23.E, in particular, provided that each interpreter
employee “shall be eligible to participate in the same retirement plan at the
same benefit level as those non-management hourly represented employees of
the local trial court. The level of benefit shall include but not necessarily be
limited to, eligibility, vesting, employee contribution, regular retirement date,
benefit formula, etc.”
Article 23.E also explicitly stated that the impact of any changes in
retirement benefits “will be subject to meet and confer.” Notably, however,
the article was silent as to whether impact negotiations must occur with the
Committee at the regional level. But the obligation to meet and confer was
set forth in article 4, section 1, which provided: “For the purpose of meet and
confer under this agreement,” the “duly authorized representatives” shall be
“the Chairperson of the [Committee] or his/her designee” and “the Executive
Officer or Court Interpreter Unit Chair of [CFI] and his/her designee.” As
PERB correctly reasoned, articles 4 and 23.E, considered together, make
reasonably clear that the Committee was contractually obligated to meet and
confer over the impact of changes to retirement benefits. We further note
that, had the MOU intended to reflect an agreement for trial courts to meet
and confer over such impacts, it could have said so just as it did for impacts of
changes in other benefits.7
7 Article 25, for example, provided: “Court-provided employee parking
and reimbursement of parking and transit related expenses shall be
maintained in accordance with each trial court’s practices. In the event that
the local practice changes, the Court shall meet and confer regarding the
impact of the changes in practices.” (Italics added.)
20
The Committee’s contentions to the contrary are not persuasive. First,
the Committee argues that article 4, section 1, permits its Chairperson to
designate a trial court to act as its authorized representative for “the purpose
of meet and confer” under the MOU. We disagree. As in the statutory
context, the language of this article necessarily contemplates that the
Chairperson’s designee could and would exercise the full scope of the
Committee’s meet and confer authority under the MOU. But individual trial
courts have no authority to negotiate wage increases to offset increased
employee pension contributions. Accordingly, PERB properly found the
Committee violated the MOU by refusing to meet and confer with CFI over
EPMC change impacts.
The Committee alternatively contends the MOU should have been
interpreted with reference to substantial evidence in the record that CFI and
certain trial courts previously bargained at the local level over the impact of
pension changes. (See County of Sonoma, supra, PERB Dec. No. 2242-M at
p. 16 [“where the contract language is silent or ambiguous, the policy may be
ascertained by examining past practice or bargaining history”].) In this
regard, the Committee cites instances in 2008, 2014, and 2015 in which CFI
met and conferred with Santa Cruz County Superior Court, Napa County
Superior Court, and Contra Costa County Superior Court, respectively, over
the impacts of EPMC reduction or elimination. This contention lacks merit.
To the extent the Committee’s claim is premised on the 2014 and 2015
events in Napa County and Contra Costa County, which occurred while the
MOU was in effect, the claim is undermined by the MOU itself. As a
contractual matter, article 13, section 1 was express in providing: “The
waiver of any breach, term or condition of this MOU by either party shall not
constitute a precedent in the future enforcement of all its terms and
21
provisions.” Thus, any instance of the parties agreeing to local bargaining in
these instances did not result in a waiver of CFI’s contractual right to meet
and confer with the Committee over future enforcement of the Committee’s
obligations to bargain regionally over the impact of EPMC changes.
Nor is a different result compelled by any of the evidence connected to
the 2008 impact bargaining and arbitration decision involving the Santa
Cruz interpreters. That 2008 bargaining occurred under a previous MOU,
and CFI apparently assented to local impact bargaining with the Santa Cruz
County Superior Court. Although that particular MOU is not in the record,
the parties’ negotiations appear to have been permitted under section
71801(e) of the Interpreter Act (see ante, at p. 15), since both CFI and the
court evidently agreed to bargain locally without objection from the
Committee. And contrary to the Committee’s suggestion, Arbitrator William
E. Riker did not render an “interpretation” of article 23.E that is binding on
PERB or the parties here. There is absolutely no indication in Riker’s
decision that he was purporting to decide whether regional impact bargaining
over pension changes was either statutorily or contractually required.
C. Unilateral Changes in Violation of the Duty to Bargain
Under PERB standards, to prevail on a complaint of illegal unilateral
change, the charging party must establish: “ ‘(1) the employer breached or
altered the parties’ written agreement, or own established past practice;
(2) such action was taken without giving the exclusive representative notice
or an opportunity to bargain over the change; (3) the change is not merely an
isolated breach of the contract, but amounts to a change of policy, i.e., the
change has a generalized effect or continuing impact on . . . terms and
conditions of employment; and (4) the change in policy concerns a matter
within the scope of representation.’ ” (County of Fresno, supra, 51
22
Cal.App.5th at p. 295; e.g., County of Kern (2018) PERB Dec. No. 2615-M,
pp. 8–9.)
Here, PERB found that certain trial courts committed unfair practices
under section 71825 by: (1) implementing EPMC changes prior to the
completion of impact bargaining (Mendocino, San Mateo, and Santa Clara);
(2) unilaterally changing the parties’ negotiated grievance procedure (Contra
Costa, Marin, San Mateo, and Santa Clara); and (3) unilaterally eliminating
a pension stipend (Santa Cruz). We address the Committee’s challenges to
these findings in order.
1. Implementation of EPMC Changes Prior to Completion of
Impact Bargaining: Mendocino, San Mateo, and Santa Clara
County Superior Courts
Generally, an employer must refrain from implementing a change
impacting wages, hours, or terms or conditions of employment until impact
bargaining has been completed to agreement or impasse. (County of Santa
Clara (2013) PERB Dec. No. 2321-M, pp. 24-26, 30; see City of El Cajon v. El
Cajon Police Officers’ Assn. (1996) 49 Cal.App.4th 64, 71–72.) But an
employer that has negotiated in good faith may implement a change prior to
the completion of bargaining if the implementation date was based upon an
“immutable deadline” or “an important managerial interest, such that a delay
in implementation beyond the date chosen would effectively undermine the
employer’s right to make the nonnegotiable decision.” (Compton Community
College District (1989) PERB Dec. No. 720, pp. 14–15.)
Here, PERB found the Mendocino, San Mateo, and Santa Clara County
Superior Courts unlawfully implemented changes to their respective EPMCs
prior to the completion of regional impact bargaining. In contending this was
error, the Committee highlights evidence in the record that: (1) the three
courts each notified CFI of the EPMC changes to which the linked bargaining
23
units in each court had agreed; (2) the courts made repeated offers to meet
and confer before implementing the respective EPMC changes; and (3) CFI
refused to meet and confer or offer any impact mitigation proposal. We are
not persuaded.
While the record amply demonstrates the courts’ efforts to bargain the
impacts of EPMC changes at a local level, we have already determined the
Committee was statutorily and contractually obligated to bargain such
impacts at the regional level. Thus, the courts should have waited for CFI
and the Committee to complete regional bargaining over impacts before
implementing the EPMC changes.
Indeed, CFI and the Committee did in fact engage in impact bargaining
over the EPMC changes as part of successor MOU negotiations and
completed the bargaining process in September 2017. But by that time, the
Mendocino, San Mateo, and Santa Clara County Superior Courts had already
implemented their EPMC changes for the court interpreters. As for whether
implementation of the changes could not be delayed, PERB concluded to the
contrary: “No evidence in the record shows that the Courts could not have
waited until the completion of regional impact bargaining to implement the
EPMC changes, or that their decision to make those changes would have
been undermined by the delay.”
The Committee’s reliance on Stockton Police Officers’ Assn. v. City of
Stockton (1988) 206 Cal.App.3d 62 and Metropolitan Water District of
Southern California (2009) PERB Dec. No. 2055-M is misplaced. In those
cases, the employee organizations failed to timely request to meet and confer
after they were notified of the employers’ intent to make changes and thus
waived their bargaining rights. Here, however, there is no question that CFI
timely demanded to meet and confer regionally with the Committee.
24
In sum, the record supports PERB’s finding that these courts
committed an unfair practice under the Interpreter Act by unilaterally
implementing their EPMC changes prior to the completion of regional impact
bargaining.
2. Unilateral Change of Grievance Procedure: Contra Costa,
Marin, San Mateo, and Santa Clara County Superior Courts
An employer may not unilaterally repudiate or add terms to an existing
collective bargaining agreement. (See Stanislaus Consolidated Fire
Protection District (2012) PERB Dec. No. 2231-M, pp. 13–17.) Grievance
procedures generally fall within the scope of representation (County of
Riverside (2003) PERB Dec. No. 1577-M, p. 6), and an employer’s failure or
refusal to process a grievance in accordance with collectively bargained
grievance procedures may constitute an unlawful unilateral change (E.g.,
Inland Empire Utilities Agency (2019) PERB Dec. No. 2658-M, pp. 1–2;
Omnitrans (2010) PERB Dec. No. 2143-M, pp. 6–8).
Pursuant to article 9 of the MOU,8 on April 1, 2016, CFI filed a
grievance with the Contra Costa, Marin, San Mateo, and Santa Clara County
Superior Courts alleging the courts had notified CFI they had or were in the
process of changing EPMCs for the interpreters. Citing articles 13 and 23.E,
as well as the Committee’s March 9, 2016, written refusal to bargain over
those changes on a regional basis, CFI claimed it was contractually entitled
to regional negotiations and offsetting benefits equivalent to those the courts
had provided to linked bargaining units. Although CFI also named the
8 Article 9 contained a three-step procedure for resolving grievances
arising under the MOU that started with a process for possible informal
resolution and ultimately provided for binding arbitration. As defined in the
article, a “ ‘grievance’ ” referred to “a dispute of one or more employees, or
[CFI] involving the interpretation, application or the enforcement of the
express terms of this MOU.”
25
Committee in its grievance allegations, it did not file the grievance with the
Committee based on the belief that article 9 did not allow CFI to file
grievances on a regional basis. (PERB Dec. at pp. 18-19, fn. 14.)
Each of the four courts individually denied the grievance as premature,
with some claiming they had neither commenced nor completed the meet and
confer process over pension cost sharing with the linked bargaining unit in
their courts. The Contra Costa and Marin County Superior Courts
additionally asserted they had been meeting with CFI over pension cost
sharing changes agreed to by the linked bargaining unit and had not made
any changes. All four courts expressed a willingness to meet and confer with
CFI regarding the impacts of any pension cost sharing changes at the
appropriate time. But none of the courts held any meetings with CFI over its
grievance. (PERB Dec. at p. 21.)
As PERB observed, the Committee clearly stated in writing to CFI that
its refusal to bargain regionally over the impacts of EPMC changes was not
grievable “ ‘because Article 23.E clearly establishes the agreement between
the [parties] that such bargaining shall occur at each [trial] court.’ ” (PERB
Dec. at p. 54.) In alignment with the Committee’s position, the four courts
rejected CFI’s grievance on the ground the matter was simply not subject to
the article 9 grievance procedures. As PERB reasonably concluded, the
courts’ rejection essentially indicated that future grievances over such
changes would be rejected outright. Where, as here, the failure to process
CFI’s grievances has “a generalized effect or continuing impact” on the terms
and conditions of employment for CFI members across the various courts, an
unlawful unilateral change of policy may be found. (See Omnitrans, supra,
PERB Dec. No. 2143-M at pp. 7–8.)
26
In this court, the Committee complains PERB failed to consider the
Committee’s evidence and argument that the trial courts’ rejection of the
grievance was based on the circumstance that pension cost sharing changes
had not yet been implemented as to the interpreters or even as to the linked
bargaining units in some instances. Such circumstance, the Committee
claims, rendered CFI’s grievance anticipatory and not yet ripe for processing
through the grievance procedure. Citing Hacienda La Puente Unified School
District (1997) PERB Dec. No. 1187 (Hacienda), the Committee argues the
courts’ denial of a premature grievance did not amount to an impermissible
change or repudiation of grievance procedure.
The Committee’s reliance on Hacienda is misplaced. Hacienda
determined that a school district did not unilaterally change a grievance
process where the facts established its conformance to a past practice to
which it had consistently adhered over an extended period of time.
(Hacienda, supra, PERB Dec. No. 1187, at p. 2, pp. 13–16 of the adopted
ALJ’s decision in Hacienda.) Here, the record is devoid of evidence indicating
the courts’ past practice of rejecting a grievance without adhering to
article 9’s grievance procedures. More to the point, the courts were firm in
their refusal to meet and process CFI’s charge that it was contractually
entitled to regional negotiations over the impacts of EPMC changes, and the
record contains no indication the courts would consider meeting with CFI and
processing such grievance at any point in time. Because PERB’s factual
findings are supported by substantial evidence based on the whole of the
record, we shall not disturb its determination that the courts unilaterally
implemented a change in policy by repudiating article 9’s grievance
procedures without first affording CFI notice and then the opportunity to be
heard over that change. (See Boling, supra, 5 Cal.5th at p. 912.)
27
3. Change of Past Practice Regarding Pension Stipend: Santa
Cruz County Superior Court
Under PERB precedent, an established policy can take the form of an
established past practice. (County of Riverside (2013) PERB Dec. No. 2307-
M, p. 20.) An established past practice has been described as a practice that
is “unequivocal, clearly enunciated and acted upon, and readily ascertainable
over a reasonable period of time as a fixed and established practice accepted
by both parties,” or a practice that is “ ‘regular and consistent,’ ” or “ ‘historic
and accepted.’ ” (Id. at p. 20.) When an employee bargaining unit first learns
of a negotiable change to an established practice in circumstances where the
employer indicates “it has no intention of entering into negotiations with an
open mind,” then “by definition, there has been inadequate notice.” (City of
Sacramento (2013) PERB Dec. No. 2351-M, p. 33.)
In 2007, CFI filed a grievance against Santa Cruz County Superior
Court, alleging court interpreters were entitled to the same one-time wage
increase that employees in the linked bargaining unit received to offset the
court’s pension contribution changes. The grievance was submitted to
Arbitrator William E. Riker for final and binding arbitration. In June 2009,
Arbitrator Riker awarded “a retroactive monetary ‘pension offset leave
benefit’ ” to continue at least until expiration of the then-operative MOU
between the trial court and the linked bargaining unit, Service Employees
International Union, Local 521. Although that MOU expired in October
2010, “the court continued to pay the stipend to court interpreters through
2017.” In June 2017, the court decided to end the stipend and informed CFI
it would stop such payments.
Here, the evidence that the Santa Cruz Superior Court consistently
paid the stipend to its interpreters over the course of eight years after the
operative MOU expired in 2010 substantially supports PERB’s finding that
28
the stipend payments constituted “a binding past practice.” Thus, we defer to
that finding. (§ 71825.1, subd. (b); Boling, supra, 5 Cal.4th at p. 912.) The
record and relevant PERB authority also support PERB’s findings that “[t]he
amount employees pay toward their pension benefits is within the scope of
representation because it has a direct effect on wages” (see Clovis Unified
School District (2002) PERB Dec. No. 1504, pp. 17–18); the court’s June 2017
elimination of the stipend was therefore a change that involved a matter
within the scope of representation; and the decision to stop paying the
stipend had a generalized effect and continuing impact on the affected
employees. Because the court made no offer to meet and confer before
notifying CFI that it would end the stipend payments, we agree with PERB
that the court acted unilaterally and unlawfully in making that change. (City
of Sacramento, supra, PERB Dec. No. 2351-M, p. 33.)
In challenging PERB’s findings, the Committee first argues that PERB
lacked jurisdiction to decide that the Santa Cruz Superior Court unlawfully
changed its past practice of paying a stipend because the ALJ did not make a
finding on this issue and CFI failed to take exception to the ALJ’s failure to
do so. While the Committee correctly notes that an exception not specifically
identified generally is waived (Cal. Code Regs., tit. 8, §§ 32300, subd. (c),
32635, subd. (b); County of Ventura (Office of Agricultural Commissioner)
(2011) PERB Dec. No. 2227-M, p. 2), PERB is statutorily authorized to review
unappealed matters and may consider sua sponte legal issues not raised by
the parties. (§ 71825, subd. (b); § 3541.3, subd. (i); Cal. Code Regs, tit. 8,
§ 32320, subd. (a)(2) [PERB may “take such other action as it considers
proper” in reaching a decision]; State Employees Trades Council United
(2009) PERB Dec. No. 2069-H, pp. 6–7; Antelope Valley Community College
District (1981) PERB Dec. No. 168, p. 5, fn. 5.) Here, the Committee makes
29
no claim that PERB could not properly make a de novo finding on the stipend
matter based on the administrative record or that its finding was improper
due to a deficient or undeveloped record. Thus, we reject the Committee’s
jurisdictional challenge.
Turning to the merits, the Committee next contends the court’s ceasing
of the stipend payment was not a unilateral change because the court acted
in compliance with Arbitrator Riker’s 2009 order and explicit
acknowledgement that he could not order payment of the stipend beyond
2010, when the MOU at issue expired. While a unilateral change might not
have been at issue had the court ended the stipend upon expiration of the
MOU, the very fact that the court regularly and consistently paid the stipend
to the interpreter employees for another eight years after the MOU’s
expiration is what elevated the conduct to an enforceable, established past
practice that the court then unilaterally and unlawfully terminated (County
of Riverside, supra, PERB Dec. No. 2307-M at p. 20).
DISPOSITION
The petition for writ of extraordinary relief is denied. CFI is awarded
its costs on appeal.
30
_________________________
Fujisaki, Acting P. J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Chou, J.*
A159985/Region 2 Court Interpreter Employment Relations Committee v. PERB
*Judge of the Superior Court of San Mateo County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
31