Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV105001.
BAMATTRE-MANOUKIAN, ACTING P.J.
This appeal is taken from a judgment confirming an arbitration award. The appellants are a labor union, the Santa Clara County Correctional Peace Officers’ Association, and one of its members, Vicky Vanderwall. The respondent is Vanderwall’s employer, the County of Santa Clara.
In the challenged award, the arbitrator upheld the County’s disciplinary suspension of Vanderwall. The arbitrator rejected appellants’ argument that the County’s action was void because the decision-maker lacked authority to administer discipline.
Appellants contend that the arbitrator exceeded his power by upholding a void disciplinary action in violation of public policy. For reasons explained below, we reject that contention. We therefore affirm the judgment confirming the arbitration award.
BACKGROUND
Vanderwall is employed by the County as a correctional officer with the Department of Correction (“Department” or “DOC”). Vanderwall’s employment is governed by the labor contract between her union and the County, by the County’s merit system rules covering “classified service” employees, and by the Department’s policies.
The Underlying Incident
In August 2005, Vanderwall was assaulted by an inmate, who “gassed” her by spraying her with urine, which struck Vanderwall in the face and hair, soaked her uniform, and caused her to vomit.
The next day, during a discussion of the gassing incident in the DOC briefing room, Vanderwall became agitated. Vanderwall was escorted from the briefing room to the hallway, where she became combative and was physically restrained by other officers.
Investigation; Imposition of Discipline
Vanderwall’s outburst was the subject of an internal investigation, which concluded with a report issued in October 2005. That report was followed by a memorandum, issued in March 2006, which set forth the alleged rule violations arising from Vanderwall’s conduct.
In July 2006, Chief of Correction Edward C. Flores signed a “Determination Letter, ” which sustained the allegations against Vanderwall and directed that she be notified of “the approved discipline, ” a 30-day suspension.
In August 2006, the County sent Vanderwall a letter notifying her of the DOC’s recommended disciplinary action of a 30-day suspension without pay. Later that month, Captain Toby Wong conducted a “Skelly” hearing – a pre-disciplinary, administrative hearing held pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
In November 2006, following the administrative hearing, the County sent Vanderwall a letter notifying her of the DOC’s final determination to impose modified discipline, consisting of an 11-day suspension without pay. That letter was signed by the hearing officer, Captain Wong. In the letter, Wong stated that he had “decided to modify the recommended disciplinary action” based on Vanderwall’s “14 years of discipline-free public service.” But Wong was not persuaded that the evidence warranted mitigation, explaining: “The possibility of assault by an inmate is a real and likely event, given the nature of our jobs. Correctional Officers are highly trained individuals whose compensation is based on the real potential dangers of our chosen profession. Therefore, your failure to maintain control over your emotional reaction after this incident is unacceptable, regardless of the circumstances of the event or any perceived lack of sensitivity demonstrated on the part of supervisors.”
Arbitration
Appellants challenged the suspension, and their grievance eventually proceeded to arbitration, as provided by the union’s labor contract with the County. The arbitrator, Norman Brand, held hearings on August 25, 2008, and December 18, 2008.
In April 2009, the arbitrator issued a 13-page decision, titled opinion and award, which refers to Vanderwall as “grievant.” In his decision, the arbitrator began by describing the procedural events leading to the arbitration and by noting that the union had moved for an award on the pleadings. The arbitrator framed the issues as follows: “1. Is the disciplinary action void because the Department of Correction failed to comply with the procedural safeguards contained in the County Charter, Merit System Rules, and Department of Correction rules, regulations, and policies? [¶] 2. If not, is there cause for the suspension imposed on grievant? [¶] 3. If not, what shall be the remedy?” Next, the arbitrator set forth language from relevant contract provisions, merit system rules, and DOC policies. The arbitrator then turned to the issues before him, starting with the union’s motion for an award on the pleadings.
Addressing the union’s motion, the arbitrator analyzed its argument that “the discipline is invalid and unenforceable because Captain Wong had no authority to discipline Grievant.” After describing the parties’ respective positions on the point, the arbitrator denied the union’s motion. He concluded that Chief Flores was the one who actually made the disciplinary decision. The arbitrator further concluded that the union had “foregone the right to grieve the current procedure” by its longstanding acquiescence.
Turning to the disciplinary suspension itself, the arbitrator discussed the underlying facts and contentions concerning Vanderwall’s outburst. He determined that although her “behavior was completely out of character, that does not excuse it or deprive the County of cause for discipline. It was extreme, threatening behavior. While the County reduced the original penalty after the Skelly hearing, the penalty is still substantial. In the absence of any showing the penalty is disparate, or disproportionate in light of the Department’s normal disciplinary practices, however, there is no basis for reducing the penalty.”
The arbitrator concluded his decision with a formal “award, ” which stated that the disciplinary action was not void and that the County had cause to suspend Vanderwall. The arbitrator thus ruled: “The grievance is denied in its entirety.”
Proceedings in the Trial Court
Appellants petitioned the trial court to vacate the arbitration award. In connection with the petition, Vanderwall requested judicial notice of the award and of pertinent contract provisions, merit system rules, and Department policies.
The County filed a response to the petition, which included its request to confirm the award. The County also filed objections to appellants’ petition.
In reply, appellants defended their petition on the merits and opposed the County’s objections.
Following a hearing in September 2009, the court entered a formal order that granted the request for judicial notice, overruled the objections, denied the petition to vacate, and confirmed the arbitration award. In October 2009, the court entered judgment for the County and against appellants. In November 2009, appellants gave notice of entry of judgment.
Appeal
This timely appeal ensued.
Appellants’ sole argument on appeal is that the arbitration award should be vacated because the arbitrator “exceeded his authority by ignoring the clearly established public policy of County’s Merit System Rules and Department of Correction Policy 3.41 that limits the authority to impose disciplinary action on Correctional Officers to the Department’s appointing authority” – here, Chief Flores alone.
The County disputes appellants’ arguments. It maintains that the pivotal question of who disciplined Vanderwall “presents only a factual dispute” that is not subject to judicial review.
DISCUSSION
As a framework for our discussion of the parties’ contentions, we first summarize the governing legal principles.
I. Legal Principles
A. Arbitrators’ Powers
“The powers of an arbitrator derive from, and are limited by, the agreement to arbitrate.” (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 375; Eastern Associated Coal Corp. v. Mine Workers (2000) 531 U.S. 57, 61 (Eastern Coal).)
“Absent an express and unambiguous limitation in the contract or the submission to arbitration, an arbitrator has the authority to find the facts, interpret the contract, and award any relief rationally related to his or her factual findings and contractual interpretation.” (Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1182.) “When parties contract to resolve their disputes by private arbitration, their agreement ordinarily contemplates that the arbitrator will have the power to decide any question of contract interpretation, historical fact or general law necessary, in the arbitrator’s understanding of the case, to reach a decision.” (Id. at p. 1184.)
B. Vacating Arbitration Awards
The grounds for vacating an arbitration award are set forth in Code of Civil Procedure section 1286.2. The statutory grounds are exclusive. (Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1, 28 (Moncharsh).) Here, the pertinent statutory ground for vacatur is this: “The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (§ 1286.2, subd. (a)(4).)
Unspecified statutory references are to the Code of Civil Procedure. Section 1286.2, subdivision (a), sets forth the following grounds for vacating an arbitration award: “(1) The award was procured by corruption, fraud or other undue means. [¶] (2) There was corruption in any of the arbitrators. [¶] (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. [¶] (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. [¶] (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title. [¶] (6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision....”
“Under section 1286.2, subdivision (a)(4), an arbitrator exceeds his powers by acting without subject matter jurisdiction, deciding an issue that was not submitted to arbitration, arbitrarily remaking the contract, upholding an illegal contract, issuing an award that violates a well-defined public policy or a statutory right, fashioning a remedy that is not rationally related to the contract, or selecting a remedy not authorized by law.” (Gravillis v. Coldwell Banker Residential Brokerage Co. (2010) 182 Cal.App.4th 503, 511.) “In other words, an arbitrator exceeds his powers when he acts in a manner not authorized by the contract or by law.” (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 443; accord, O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1056.)
Section 1286.2 states that “ ‘a court shall vacate an award’ ” if it makes the predicate determination that the arbitrator has exceeded his power. (O’Flaherty v. Belgum, supra, 115 Cal.App.4th at p. 1055; Department of Personnel Administration v. California Correctional Peace Officers Assn. (2007) 152 Cal.App.4th 1193, 1200 (DPA v. CCPOA).) But the party seeking vacatur must “demonstrate that his ground is supported” by the statutory provisions. (United Brotherhood of Carpenters etc., Local 642 v. Demello (1972) 22 Cal.App.3d 838, 840.)
C. Judicial Review
“It is well settled that the scope of judicial review of arbitration awards is extremely narrow.” (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943; accord, City of Palo Alto v. Service Employees Internat. Union 1999) 77 Cal.App.4th 327 (City of Palo Alto).) “Courts may not review the merits of the controversy, the sufficiency of the evidence supporting the award, or the validity of the arbitrator’s reasoning.” (DPA v. CCPOA, supra, 152 Cal.App.4th at p. 1200; Harris v. Sandro (2002) 96 Cal.App.4th 1310, 1313.)
Judicial review is limited to “those cases in which there exists a statutory ground to vacate or correct the award.” (Moncharsh, supra, 3 Cal.4th at p. 28.) That includes cases in which the arbitrator has exceeded his powers by issuing an award that “violates a party’s statutory rights or otherwise violates a well-defined public policy.” (DPA v. CCPOA, supra, 152 Cal.App.4th at p. 1200.) Nevertheless, in the absence of “a clear expression of illegality or public policy undermining [the] strong presumption in favor of private arbitration, an arbitral award should ordinarily stand immune from judicial scrutiny.” (Moncharsh, at p. 32.) “The normal rule of limited judicial review cannot be avoided except in those rare cases where ‘according finality to the arbitrator’s decision would be incompatible with the protection of a statutory right’ or where the award contravenes ‘an explicit legislative expression of public policy.’ ” (City of Palo Alto, supra, 77 Cal.App.4th at p. 334, quoting Moncharsh, at pp. 32-33.)
“In determining whether an arbitrator exceeded his powers, we review the trial court’s decision de novo, but we must give substantial deference to the arbitrator’s own assessment of his contractual authority.” (O’Flaherty v. Belgum, supra, 115 Cal.App.4th at p. 1056; see Haworth v. Superior Court (2010) 50 Cal.4th 372, 383; Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 541.) On the other hand, whether a labor arbitrator’s decision violates public policy presents a legal question, which we review de novo. (See W.R. Grace & Co. v. Rubber Workers (1983) 461 U.S. 757, 766 [“the question of public policy is ultimately one for resolution by the courts”]; Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1365, [“whether the award was made in excess of the arbitrators’ contractual powers” is a question of law], disapproved on another point in Haworth v. Superior Court, at p. 382, fn. 6.)
With the foregoing principles in mind, we examine the arbitration award in this case.
II. Analysis
In assessing appellants’ claim that the award violates public policy, we proceed in two steps. First, we consider the existence and nature of the asserted policy. Next, we analyze whether the arbitrator’s decision violates that policy. As we explain, assuming (without deciding) that there is a public policy requiring authorized persons to administer employee discipline, the arbitrator’s decision here does not offend that policy.
A. The asserted public policy concerning the administration of employee discipline
As discussed above, an arbitration award may be vacated on grounds that it violates public policy. (Eastern Coal, supra, 531 U.S. at p. 62; City of Palo Alto, supra, 77 Cal.App.4th at pp. 339-340.) But “any such public policy must be explicit, well defined, and dominant. [Citation.] It must be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Eastern Coal, at p. 62, internal quotation marks omitted.) At issue here is what appellants characterize as the “clearly established” public policy concerning the administration of public employee discipline, which appellants find embodied in specific local provisions and, more generally, in California case law authorities.
1. Specific local provisions
In appellants’ view, the pertinent public policy is reflected locally in the County’s Merit System Rules and in Department Policy 3.41. Those regulations call for employee discipline to be administered by an authorized group or person, referred to as an “appointing authority.”
a. Merit system rules
The County’s charter establishes a system with procedural safeguards for employees. Section 700 provides: “The personnel system of the county shall be based on merit and equal opportunity.” Section 708, subdivision (a), provides: “Any officer or employee holding a position under the classified service shall be subject to suspension without pay for a period not to exceed 30 days in any one calendar year, or to demotion or to removal from the position, but subject to the rights of the employee, other than one serving a probation period on an original appointment, to a hearing before the Personnel Board in the manner set forth herein. The Board of Supervisors and a recognized employee organization may agree on an alternate hearing procedure. When such an agreement is in effect, it shall supersede the hearing before the Personnel Board.”
By ordinance, the County has promulgated “merit system rules.” Two sections of those rules are relevant to appellants’ public policy claim. The first is section A25-39, which defines “appointing authority” as “the group or person having the lawful power to make appointments or to remove persons from positions in the County service.” The second is section A25-300, which states in pertinent part: “An appointing authority may suspend, demote or dismiss any employee subject to Section 708 of the Charter covering appeal rights of employees with permanent status or employees serving on a promotional probationary capacity.”
b. Department policy
The pertinent DOC regulation identified by appellants in support of their public policy claim is Department Policy 3.41, as revised in August 2006. The stated purpose of the policy is to “establish procedures to ensure employee rights are observed during the disciplinary process.” Section I.E. of the policy provides in pertinent part: “The Chief has sole authority to administer Disciplinary Action and this authority should not be delegated absent exigent circumstances.”
2. The asserted general policy against delegating disciplinary decisions
In addition to the foregoing local provisions, appellants assert that case law reflects a general public policy against the delegation of decisions concerning public employee discipline. (See, e.g., Civil Service Assn. v. Redevelopment Agency (1985) 166 Cal.App.3d 1222, 1226.) “As a general rule, powers conferred upon public agencies and officers which involve the exercise of judgment or discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates in the absence of statutory authorization.” (California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 144 [school district board “had exclusive jurisdiction to dismiss” employee].) “Under normal circumstances and absent statutory provisions to the contrary the dismissal of employees involves the exercise of judgment or discretion.” (Civil Service Assn. v. Redevelopment Agency, at p. 1225.) For that reason, such decisions ordinarily are not delegable. (Id. at p. 1226.) Moreover, public employee discipline generally “must be undertaken in strict compliance with established procedures.” (Ibid.) “Absent contrary written authority, no substituted or delegated procedure [is] legally permissible.” (Ibid.)
According to appellants, Vanderwall’s discipline was imposed by Captain Wong, in contravention of County regulations that entrust the administration of discipline to Chief Flores alone. Appellants contend that the disciplinary action was void under the policy against delegating disciplinary decisions. (See Civil Service Assn. v. Redevelopment Agency, supra, 166 Cal.App.3d at p. 1227 [when a public agency “acts in excess of its prescribed powers, the action or decision taken is void”].)
Appellants further contend that the arbitrator acted in excess of his power by upholding the void action. (See, e.g., DPA v. CCPOA, supra, 152 Cal.App.4th at p. 1200 [arbitrators exceed their powers when the award “violates a party’s statutory rights or otherwise violates a well-defined public policy”].)
As we now explain, we find no merit in appellants’ contentions. In resolving the case before us, we need not decide whether the cited local provisions and case law embody “ ‘an explicit legislative expression of public policy.’ ” (City of Palo Alto, supra, 77 Cal.App.4th at p. 334, quoting Moncharsh, supra, 3 Cal.4th at pp. 32-33.) Even assuming that such a policy exists, the arbitrator did not violate it here.
B. The arbitrator’s decision
As noted above, appellants’ voidness claim was raised by the union’s motion for an award on the pleadings in the arbitration proceedings. That motion was based on the union’s position that Wong had no authority to discipline Vanderwall. In assessing the motion, the arbitrator first summarized the five assertions offered by the union in support of its position, including the union’s reliance on a decision in a separate arbitration, the Strosnider case. The arbitrator then summarized the County’s three-pronged response to the union’s argument: first, that the disciplining authority was Chief Flores, not Captain Wong; second, that Chief Flores approved Wong’s recommendation to reduce the suspension from 30 days to 11 days; and third, that the union had acquiesced in the Department’s hearing procedures, which had been in place for 14 years without challenge.
In denying the union’s motion, the arbitrator distinguished the Strosnider arbitration decision, finding “two critical differences” between that case and this one: (1) the participation in the disciplinary decision here by Chief Flores, and (2) the participation in the arbitration here by the union. Addressing the first distinction, the arbitrator cited “testimony in this case” in concluding that “Captain Wong recommended a reduction in penalty and Chief Flores considered and agreed with it.” With respect to the second distinction, the arbitrator concluded that the union’s “long acquiescence” in the “well known and consistently followed procedure” rendered that procedure “a past policy.” The union thus was estopped “to grieve the current procedure.”
As we now explain, contrary to appellants’ arguments, neither of the foregoing determinations provides a basis for vacating the arbitration award. We consider each in turn.
1. The arbitrator’s determination concerning the imposition of discipline
The arbitrator effectively determined that Chief Flores was the person who administered Vanderwall’s discipline – either directly, by concurring in Wong’s recommendation, or indirectly, by ratifying Wong’s decision. (See California Sch. Employees Assn. v. Personnel Commission, supra, 3 Cal.3d at p. 145 [“public agency may ratify prior actions of subordinates”].) As the County aptly observes, that determination by the arbitrator is factual in nature.
In making the challenged factual determination, the arbitrator was acting within his power. (See Gueyffier v. Ann Summers, Ltd., supra, 43 Cal.4th at p. 1185 [“arbitrator was empowered to interpret and apply the parties’ agreement to the facts he found to exist”].)
Consequently, the trial court properly refused to vacate the arbitration award. (Moncharsh, supra, 3 Cal.4th at p. 6 [“arbitrator’s decision is not generally reviewable for errors of fact”]; Harris v. Sandro, supra, 96 Cal.App.4th at pp. 1313-1314 [arbitrator’s asserted “factual errors... are not subject to judicial review”]; City of Palo Alto, supra, 77 Cal.App.4th at p. 337 [court “cannot judicially revisit” disputed fact issues].)
2. The arbitrator’s determination concerning the union’s acquiescence
The arbitrator also determined that the union had acquiesced in the challenged procedure, which assertedly allows hearing officers to administer discipline.
In challenging that determination, appellants first take issue with the arbitrator’s focus on the union alone in finding acquiescence. They contend that the arbitrator ignored the fact that Vanderwall was also a grievant. Appellants also cite the arbitrator’s own “contrary decision in the Strosnider arbitration” and the absence of evidence that the union had a contract with the County “for the ten years preceding 2001.”
We reject appellants’ contentions as impermissible attacks on the arbitrator’s decision. As thoroughly discussed above, courts “may not review the validity of the arbitrator’s reasoning, the sufficiency of the evidence supporting the award, or any errors of fact or law that may be included in the award.” (Harris v. Sandro, supra, 96 Cal.App.4th at p. 1313, citing Moncharsh, supra, 3 Cal.4th at p. 11.)
3. Conclusion
To sum up, the arbitrator made a factual determination that the appointing authority, Chief Flores, was the person who actually administered Vanderwall’s discipline. The arbitrator also determined that the union had acquiesced in the challenged procedure. Those determinations do not constitute acts in excess of the arbitrator’s power within the meaning of section 1286.2, subdivision (a)(4). Consequently, there is no statutory basis for vacating the arbitration award. The trial court thus acted properly in confirming the award.
DISPOSITION
The judgment is affirmed. Respondent shall have costs on appeal.
WE CONCUR: MIHARA, J., DUFFY, J.