Opinion
H036148
02-03-2012
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 521, Plaintiff and Appellant, v. SUPERIOR COURT OF SANTA CLARA COUNTY, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CV173914)
Appellant Service Employees International Union, Local 521 (the Union) appeals from the denial of its petition to compel arbitration of its grievance against respondent Santa Clara County Superior Court (SC). The Union contends that it was entitled to arbitrate its grievance under the agreement between the Union and SC because its grievance concerned a dispute over interpretation of the agreement. SC successfully argued below that the Union's grievance was subject to the exclusive initial jurisdiction of the Public Employment Relations Board (PERB). We conclude that SC's argument is correct and affirm the superior court's order.
I. Background
The Union is the exclusive bargaining representative for a group of SC employees. The Union and SC are parties to an agreement (the Agreement) that governs the employment relationship between these employees and SC. Article 8 of the Agreement addresses grievances. Section 8.2(a) defines a " 'grievance' " as "an alleged violation, misinterpretation or misapplication of the provisions of this Agreement," but it also provides that "[m]atters excluded under Section 8.2(b) shall not be subject to the grievance provisions of this Article." Section 8.2(b) provides that certain specified "matters shall not be subject to the grievance procedures of this Article." Among the excluded matters are "[i]tems within the scope of representation that are subject to the meet and confer process."
Article 11 of the Agreement sets forth "HOURS OF WORK." It provides that "[r]egular work hours for Court employees, unless otherwise specified, are from 8:00 a.m. to 5:00 p.m., Monday through Friday, Court holidays excepted." This article also provides that "[e]ight hours' work shall constitute a full day's work and forty hours' work shall constitute a full week's work unless otherwise provided by law, code or other agreement."
Article 24 of the Agreement sets forth the "SCOPE OF AGREEMENT." It provides: "It is understood that this Agreement represents a complete and final understanding on all negotiable issues between the Court and the Union. . . . The parties, for the term of this Agreement, voluntarily and unqualifiedly agree to waive the obligation to negotiate with respect to any practice, subject or matter not specifically referred to or covered in this Agreement even though such practice, subject or matter may not have been within the knowledge of the parties at the [t]ime this Agreement was negotiated and signed. In the event any new practice, subject or matter arises during the term of this Agreement and an action is proposed by the Court, the Union shall be afforded all possible notice and shall have the right to meet and confer upon request. In the absence of agreement on such a proposed action, the Court reserves the right to take necessary action by Management direction."
On August 17, 2009, the Union filed an unfair labor practice charge with PERB.The Union asserted in this charge: "Employer has sent furlough notices to all employees. Employer sent proposal to Union to furlough on Thursday 8/13/09, threatened to impose the furlough without bargaining on Friday 8/14/09. . . . [E]mployer moved forward and sent the notice out on Monday 8/17/09. We began to meet and confer about the court closures on 7/28/09. No proposal was provided at that time. We sent an information request on 5/18/09 but still have not received the information needed to bargain furloughs. Our next scheduled meet and confer session is 8/26/09 but employer has already imposed furloughs on employees." (Capitalization omitted.)
This charge remained pending before PERB when the Union's petition to compel arbitration of its grievance was denied.
On August 21, 2009, the Union filed a grievance against SC. The "STATEMENT OF GRIEVANCE" read in its entirety: "The court is not bargaining in good faith with the union regarding imposition of furloughs. We had already begun the meet & confer process regarding court closures on 7/28/09. There was no formal furlough proposal at that time. We sent an information request on 5/18/09 but still have not received the information needed to bargain . . . furloughs. The court sent furlough proposal to union on Thursday, 8/13/09 and threatened to impose the furlough without bargaining on Friday, 8/14/09. Union sent a cease and desist letter but the court moved forward and sent the notice out on Monday, 8/17/09. Our next scheduled meet and confer session is 8/26/09 but the court has already imposed furloughs on employees." The Union claimed that SC had violated "Article 6.1-No Strikes or Lock Outs, Article 11, 21 (and all other relevant articles) memorandums, rules, laws, regulations and policies." The remedy sought by the Union was for SC to "[w]ithdraw furlough notices" and "bargain in good faith . . . ."
In September 2009, the Union and SC extended the term of the Agreement, which had been set to expire in October 2009, to October 2010.
SC refused to arbitrate the grievance. On June 8, 2010, the Union filed a petition to compel arbitration in the superior court. On July 6, 2010, SC filed a response to the Union's petition. On August 4, 2010, SC filed points and authorities opposing the petition. It argued that PERB had exclusive jurisdiction over "all the allegations asserted by the Union." On August 10, 2010, the Union filed points and authorities in support of its motion. The Union asserted that SC's response was untimely, and the allegations of the petition should therefore be deemed admitted. SC responded that the Union "did not properly file" its petition because it had failed to notify SC of the time and place of the hearing, and had expressly informed SC that it had 30 days to respond. SC also maintained that, in any case, the superior court lacked subject matter jurisdiction, which could not be conferred on it due to SC's allegedly belated response to the petition.
Justice James R. Lambden, an associate justice of the First District Court of Appeal, was assigned to hear the matter. (Gov. Code, § 71639.5, subd. (c).) The petition was heard in September 2010. Justice Lambden found that "[t]he character of the conduct at issue" was "within PERB's exclusive jurisdiction." He characterized the dispute as "essentially based on the allegation that [SC] failed to 'meet and confer' with the Union regarding changes to employee work hours and compensation . . . ." Because, under the Agreement, "items within the 'scope of representation' that are subject to the meet and confer process are not subject to the [Agreement's] grievance procedure," Justice Lambden found that there had been no agreement to arbitrate this dispute. Justice Lambden concluded that SC's untimely response made no difference as "[u]nopposed and admitted factual allegations cannot confer authority to transfer subject matter jurisdiction from PERB to an arbitrator." The Union timely filed an appeal.
II. Discussion
Since the petition to compel arbitration was denied on jurisdictional grounds, we exercise independent review over this purely legal issue, which depends entirely on interpretation of statutes and written documents. (International Assn. of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179 (Firefighters).)
The parties conceded in the trial court that there were no "fact issues."
"A complaint alleging any violation of this article [article 3 of chapter 7 of title 8 of the Government Code] or of any rules and regulations adopted by a trial court pursuant to Section 71636 shall be processed as an unfair practice charge by [PERB]. The initial determination as to whether the charge of unfair practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes of this article, shall be a matter within the exclusive jurisdiction of [PERB]." (Gov. Code, § 71639.1, subd. (c), italics added.) Chapter 7 of title 8 of the Government Code is the Trial Court Employment Protection and Governance Act (TCEPGA). Article 3 of the TCEPGA (Gov. Code, §§ 71630 through 71639.5) addresses labor relations. We will refer to this article as "the Act."
The question presented is whether the grievance filed by the Union alleged a violation of the Act. If it did, PERB had exclusive initial jurisdiction over the issue. The essence of the Union's grievance was that SC was "not bargaining in good faith with the union regarding imposition of furloughs" and had instead unilaterally "imposed furloughs on employees."
The Act explicitly required SC to "meet and confer in good faith" with the Union regarding the "impact" of the "[h]ours of operation of the trial courts and trial court system" to the extent that those hours "affect wages, hours, and terms and conditions of employment of trial court employees." (Gov. Code, § 71634.) The state trial court system required SC to close on certain days due to lack of funds, thereby altering SC's "[h]ours of operation." Such closures had the potential to affect the wages and hours of trial court employees. Hence, SC had an obligation under the Act to "meet and confer in good faith" with the Union regarding the impact on court employees' wages and hours as a result of these closures.
" 'Meet and confer in good faith' means that a trial court or representatives as it may designate, and representatives of recognized employee organizations, 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." (Gov. Code, § 71601, subd. (c), italics added.) The obligation to "meet and confer" for "a reasonable period of time," "to exchange . . . proposals," and "to endeavor to reach an agreement" is the very definition of the good faith bargaining that the Union's grievance claimed SC had failed to engage in. (Merriam-Webster's Collegiate Dict. (10th ed. 1999) p. 92 [bargain means "to negotiate over the terms" of an agreement].) It follows that the Union's grievance alleged a violation of the Act.
The Union contends otherwise. It claims that the "gravamen of the grievance is that the parties' Agreement prohibited [SC] from unilaterally reducing [Union]-represented employees' hours of work." We disagree. The issue was "whether the underlying conduct . . . —however described in the [grievance]—may fall within PERB's exclusive jurisdiction." (El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 954, fn. 13 (El Rancho).) "Sophistication of pleading actions is not the key to jurisdiction. Preemption exists 'to shield the system (of regulation of labor relations) from conflicting regulation of conduct. It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern.' " (Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 269, cited with approval in El Rancho.) The underlying conduct that the Union challenged was SC's failure to bargain in good faith with the Union about the impact of the court closures on Union-represented employees. The grievance expressly complained that SC was "not bargaining in good faith with the union regarding imposition of furloughs." While the grievance also complained that SC had proceeded to impose furloughs, the essence of the grievance was SC's failure to bargain in good faith.
The Union also argues that PERB has a policy of deferring contract issues that are subject to arbitration under an agreement. The existence of such a policy is irrelevant to whether PERB had initial exclusive jurisdiction over the Union's grievance. The Union did not attempt to demonstrate that PERB had deferred the issue raised in its grievance. If PERB has such a policy, then it may well do so after it has taken initial exclusive jurisdiction over the Union's grievance.
The Union ignores the fact that this court recently resolved an issue similar to the one posed in this case adversely to the Union's position. In Firefighters, the union claimed that the City had violated its memorandum of agreement (MOA) with the union by refusing to meet and confer and "bargain over" implementation of a new state law. The union sought arbitration of the claimed violation of the MOA. The City denied that it was required to meet and confer or bargain over the implementation of the new state law, and it refused to arbitrate the dispute. The union filed a petition to compel arbitration. It insisted that PERB did not have exclusive jurisdiction over the claim because it was claiming a violation of the MOA. The trial court found that PERB had exclusive jurisdiction because the underlying claim "may" fall within PERB's exclusive jurisdiction under the Meyers-Milias-Brown Act (the MMBA). (Firefighters, supra, 195 Cal.App.4th at p. 1194.) On appeal, this court affirmed. This court concluded that the union's petition was based on the City's refusal to meet and confer and bargain over implementation of the new state law. (Firefighters, at pp. 1209-1211.) Because the refusal to meet and confer constituted an unfair labor practice, the union's petition fell within PERB's exclusive initial jurisdiction. (Ibid.)
Firefighters was issued after the Union filed its opening appellate brief, and one day before SC filed its response brief. SC addressed Firefighters in its response brief, but the Union made no mention whatsoever of Firefighters in its reply brief.
Firefighters supports our conclusion that PERB has exclusive initial jurisdiction over the Union's grievance. As in Firefighters, the fact that the grievance encompasses a violation of the Agreement does not deprive PERB of exclusive initial jurisdiction over the grievance where the grievance alleges a violation of the Act that is within PERB's exclusive initial jurisdiction.
III. Disposition
The superior court's order is affirmed.
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Mihara, J.
WE CONCUR:
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Premo, Acting P. J.
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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