Opinion
A157431
04-22-2020
SAN FRANCISCO POLICE OFFICERS' ASSOCIATION, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CPF-18-516351)
The San Francisco Police Officers' Association (Union) filed a petition in superior court to correct or vacate an arbitration award on the ground that the arbitrator exceeded his authority. The Union contends that in deciding a grievance about an overtime pay practice under the Memorandum of Understanding (MOU) between the Union and the City and County of San Francisco (City), the arbitrator improperly modified the MOU. The superior court denied the petition, and the Union now appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Facts
We draw our summary of the underlying facts from the arbitrator's Opinion and Award. In 2017, the Union filed a labor grievance under the MOU that was in effect from 2007 to 2018 (2007 MOU). The grievance stated that the San Francisco Police Department, and therefore the City, had violated a longstanding past practice of paying police officers assigned to the Department's Airport Bureau four hours of overtime pay whenever a prescheduled overtime shift was canceled less than 24 hours before the beginning of the shift.
The Union sought to reinstate the practice and to have the City meet and confer in accordance with the 2007 MOU to discuss the practice and the City's wish to discontinue it. The grievance came before an arbitrator, who heard the matter in March 2018. B. Arbitration Award
The arbitrator issued his opinion and award on June 15, 2018. He agreed with the Union that the City's history of paying airport officers for scheduled overtime shifts that were canceled less than 24 hours before the beginning of the shift constituted a binding past practice under the 2007 MOU, even though it was "informal" and was not written into the 2007 MOU, and that the City violated the 2007 MOU when it unilaterally changed the practice in 2017 without notice or offer to bargain and denied officers' requests for overtime when their shifts were canceled. Accordingly, the arbitrator ordered the City to pay the officers whose requests were denied and "restore the practice of paying for canceled and shortened overtime shifts at the airport, through and including any shifts scheduled to be worked on June 30, 2018," which was the last date on which the 2007 MOU would be effective.
The arbitrator further determined that in the course of negotiations for a successor to the 2007 MOU, the Union had "brought forward a proposal at the bargaining table to codify the practice of payment of canceled shifts" and "the City rejected that proposal." From this, he concluded that the Union's "requested meet and confer has already taken place"; in other words, the 2018 negotiations for a successor MOU "rendered moot the Union's request for meet and confer." Therefore, the arbitrator declined to order any additional meet and confer. The arbitrator noted that negotiations for a successor agreement were ongoing at the time of the arbitration hearing, the negotiations had been completed by the time he issued his opinion and award, the new agreement was scheduled to take effect on July 1, 2018, and he was "not privy to modifications made, if any, to the overtime provisions as they apply to cancellation." He concluded that unless the parties had negotiated otherwise, the City could discontinue the practice of paying for canceled overtime shifts once the new agreement was effective. The arbitrator based his conclusion in part on his interpretation of the 2007 MOU, which he understood as providing that once the City served notice of its intent to terminate a practice governed by an informal agreement, such as the practice of paying for canceled overtime shifts at the airport, and offered to negotiate or did negotiate about the practice, the expiration of the 2007 MOU would end the City's obligation to continue the practice. C. Trial Court Proceedings
The arbitrator's conclusion may also have been based in part on a leading treatise, Elkouri & Elkouri, How Arbitration Works (6th ed. 2008), which the City relied on in the arbitration. As relevant here, the treatise provides, "[A]n impressive line of arbitral thought holds that a practice that is not subject to unilateral termination during the term of the collective bargaining agreement is subject to termination at the end of said term by giving due notice of intent not to carry the practice over to the next agreement; after being so notified, the other party must have the practice written into the agreement to prevent its discontinuance." (Id. at p. 619.) The treatise continues, "Similarly, the binding status of the practice may be found to have ended through the give and take of bargaining. Arbitrators generally are unwilling to grant to any party by way of a past practice a demand that the party was unable to obtain at the bargaining table." (Id. at p. 620, fns. omitted.)
The Union filed a petition in the superior court to vacate or correct the arbitrator's award under Code of Civil Procedure sections 1286.2 and 1286.6. (Subsequent statutory references are to the Code of Civil Procedure.) The Union had no quarrel with the determination that the overtime cancellation policy was a past practice that had become an unstated but binding part of the 2007 MOU. But, according to the Union, "the [a]rbitrator decided himself, without any agreement by the parties that the . . . past practice . . . would be rescinded effective June 30, 2018—in other words, he modified a contract term he had found to exist," and in so doing, he exceeded his powers. The Union asked the superior court to vacate or correct the award only insofar as the award "eliminates the past practice that the [a]rbitrator determined existed," and provided the court with a proposed "partially vacated or corrected award." The superior court denied the petition, and judgment was entered for the City.
DISCUSSION
A. Applicable Law and Standard of Review
"In general, judicial review of an arbitration award is extremely limited." (SingerLewak LLP v. Gantman (2015) 241 Cal.App.4th 610, 616.) "Courts do not review the validity of an arbitrator's reasoning." (Ibid.) Section 1286.2, subdivision (a)(4) provides that a court "shall vacate" an arbitration award when the court determines the arbitrator has exceeded their powers "and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted." If the court determines the arbitrator exceeded their power "but the award may be corrected without affecting the merits of the decision upon the controversy submitted," the court is to correct the award and confirm it as corrected. (§ 1286.6, subd. (b).)
"[W]e review the superior court's decision de novo, but we 'pay substantial deference to an arbitrator's determination of his own authority.' [Citation.] Any doubts about the arbitrator's power to decide . . . issues must be resolved in his favor. [Citation.] As the Supreme Court has explained, 'arbitrators do not "exceed[ ] their powers" within the meaning of section 1286.2, subdivision [(a)] and section 1286.6, subdivision (b) merely by rendering an erroneous decision on a legal or factual issue, so long as the issue was within the scope of the controversy submitted to the arbitrators.' (Moshonov v. Walsh (2000) 22 Cal.4th 771, 775.)" (Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 347-348 (Roehl).) "[A]n arbitrator's decision is not generally reviewable for errors of fact or law." (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 6.) B. Analysis
The 2007 MOU provides, "The Arbitrator shall not have the right to alter, amend, delete or add to any of the terms of this Agreement." The Union claims that the arbitrator essentially amended the 2007 MOU, and therefore exceeded his authority, "when he eliminated the practice of paying for canceled overtime." Similarly, the Union claims that the arbitrator "declared that the . . . practice . . . should end after a certain date." The Union's position rests on a false premise, because the arbitrator did not eliminate the practice, nor did he declare that the practice should end. Instead, based on the evidence before him, he determined that the practice had been incorporated into the 2007 MOU, that the City had improperly discontinued the practice in 2017, and that the City was required to reinstate the practice for the duration of the 2007 MOU, which was scheduled to expire on June 30, 2018. Further, in addressing the Union's request that he order the City to meet and confer about the practice, he determined that the evidence before him showed that the request was moot because the parties had already met and conferred, as part of their negotiations for a successor MOU. In making this finding, the arbitrator explained he was relying on unrebutted testimony that in negotiating a successor MOU "the Union brought forward a proposal at the bargaining table to codify the practice of payment of canceled overtime shifts" and "the City rejected that proposal." He took no position as to whether the practice was ultimately eliminated in the successor agreement, which was to be effective on July 1, 2018. He simply found that the parties had met and conferred and that, therefore, unless the practice had been incorporated into the successor MOU, it would end with the 2007 MOU. This determination was within the scope of the controversy that was submitted to him, which required him to review the evidence and interpret the MOU to determine, first, whether the practice was enforceable under the 2007 MOU, and second, whether to order the parties to meet and confer. In these circumstances, we disagree with the Union's contention that the arbitrator eliminated the overtime pay practice and thereby effectively amended the 2007 MOU.
We need not address the Union's secondary argument, that "the trial court's failure to consider whether the arbitrator exceeded his authority misapplied the law," because our review is de novo. (Roehl, supra, 147 Cal.App.4th at p. 347.)
Although we conclude that the Union has mischaracterized the arbitrator's ruling, we consider here the Union's arguments that the arbitrator exceeded his authority. We find none of them persuasive.
First, the Union argues that the arbitrator improperly altered the MOU by imposing an expiration date on the overtime practice. But that is not what the arbitrator did. He determined that the Union had proven a past practice that had become a binding implied term of the 2007 MOU, and correctly limited his determination to the term of that MOU, as required by the grievance procedure set forth in the 2007 MOU, which applied to "disputes regarding the application or interpretation of this [MOU] or relating to working conditions arising out of this [MOU]." Any expiration of the practice followed from the expiration of the MOU, and the arbitrator expressed no opinion as to whether the parties had negotiated to incorporate the practice in the successor MOU.
Second, the Union argues the arbitrator abused his authority by misinterpreting Article I, section 4F of the MOU, which provides, "This [MOU] sets forth the full and entire understanding of the parties regarding the matters set forth herein, and any and all prior and existing [MOU's] or Agreements, whether formal or informal, are hereby superseded or terminated in their entirety."
The Union's argument rests on a single sentence in the arbitrator's 15-page opinion and award. Here we reproduce the paragraph in which the sentence occurs, with the sentence in italics: "As for the Union's request that the arbitrator restore the status quo ante that existed prior to the changed practice in July 2017, that request is granted. The [MOU], in Article 1.4F, makes it clear that any informal agreements are superseded by the implementation of a successor [MOU]. Therefore this Union remedy request is granted only for the remaining two weeks of the existing MOU between the parties. Beginning on July 1, 2018, the [City] may discontinue the practice of paying for canceled and shortened overtime shifts, unless the parties have negotiated otherwise."
According to the Union, the arbitrator misinterpreted Article 1.4F as terminating or superseding the overtime pay practice. According to the City, the reference to Article 1.4F simply confirms that the overtime practice, which arose at some undetermined date, is part of the 2007 MOU. The City points out that the arbitrator "did not affirmatively rule that the practice was ended under the successor MOU," as evidenced by that arbitrator's stating that on July 1, 2018, the City could discontinue the practice "unless the parties have negotiated otherwise."
We find the arbitrator's reference to Article 1.4F ambiguous, but we need not try to determine exactly how the arbitrator interpreted the provision, because the Union cites no authority to suggest that a misinterpretation by the arbitrator of Article I, section 4F would be an abuse of his authority. To the contrary, the case law is clear that " '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. [Citations.]' " (San Francisco Housing Authority v. SEIU Local 790 (2010) 182 Cal.App.4th 933, 943, quoting Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1182.) "Inherent in the broad powers of the arbitrator 'is the possibility the arbitrator may err in deciding some aspect of the case. Arbitrators do not ordinarily exceed their contractually created powers simply by reaching an erroneous conclusion on a contested issue of law or fact, and arbitral awards may not ordinarily be vacated because of such error, for " '[t]he arbitrator's resolution of these issues is what the parties bargained for in the agreement.' " [Citations.]' (Gueyffier, at p. 1184.)" (Ibid.)
Here, the arbitrator awarded relief that was rationally related to his findings and contract interpretation, and therefore he did not exceed his authority. In connection with the Union's request that the practice be reinstated and that the parties be ordered to meet and confer, the arbitrator observed that, under his interpretation of the MOU, "once the [City] has served notice of its intent to terminate the practice and offered to negotiate, or in fact has negotiated, the expiration of the MOU ends the [City's] obligation to continue the . . . practice." The arbitrator clearly understood this determination to be within the scope of the controversy that was before him. The arbitrator found no dispute as to the City's terminating the practice without notice and no dispute as to the fact that negotiations took place. Accordingly, barring further negotiations about the practice, he concluded that the City had the authority to terminate the practice at the end of the existing MOU should it choose to do so.
The Union's third argument is that the arbitrator exceeded his authority by interpreting the successor MOU, which was not before him. But the record belies the Union's assertion that the arbitrator interpreted the successor MOU. There is no indication that the arbitrator saw or was informed about the terms of the successor MOU, beyond the fact that one had been negotiated and would take effect on July 1, 2018. And the arbitrator stated plainly that he did not know whether the successor MOU did or did not modify the practice of paying for canceled overtime. We do not construe the arbitrator's statements regarding the existence of a successor MOU and certain aspects of the 2018 negotiations as the interpretation of the successor MOU, but instead as discussion of the evidence and issues before him.
Finally, the Union discusses two cases, arguing that they support correcting the arbitrator's award here: Metropolitan Water District of Southern California v. Winograd (2018) 24 Cal.App.5th 881 (Winograd) and California Faculty Association v. Superior Court (1998) 63 Cal.App.4th 935 (Faculty Association). The cases are inapposite.
The Union contends that just as the trial court in Winograd, supra, 24 Cal.App.5th 881, properly "undid" a hearing officer's prospective order in connection with a labor grievance, the trial court here should have vacated the arbitration award. In Winograd, a hearing officer was assigned to determine whether the employer had violated an MOU in connection with a particular job posting. (Id. at p. 894.) Although the MOU specified that the hearing officer's role was " 'limited' to hearing 'the written grievance as originally filed by the employee to the extent that said grievance has not been satisfactorily resolved,' " and although the MOU stated that the hearing officer " 'shall not add to, subtract from or otherwise modify the terms and conditions of [the] MOU' " the hearing officer essentially provided "broad declaratory relief" that applied to all future job postings and thereby modified the terms of the MOU that governed job recruitment, exceeding his authority. (Id. at pp. 894-896.) But the facts of Winograd are distinguishable from the facts here, where the grievance was not limited to the officers whose requests for overtime had been denied: to the contrary, here the Union specifically requested that the practice be reinstated and that the City " 'meet and confer in accordance with the MOU to discuss any proposed changes to the issuance of overtime for cancelled overtime assignments.' " In addressing those issues, the arbitrator determined that the parties had already met and conferred, that the issue was moot, and that as a matter of law and contract interpretation, the City was required to reinstate the practice through the end of the 2007 MOU. Once the 2007 MOU expired, the practice would expire unless it had been incorporated in the successor MOU.
Nor do we agree with the Union that this case is like Faculty Association, supra, 63 Cal.App.4th 935. There, the collective bargaining agreement strictly limited the role of the arbitrator in reviewing tenure decisions. The question before an arbitrator was whether the university president " 'engage[d] in reasoned judgment in denying tenure and promotion to [the grievant].' " (Id. at p. 942.) But the arbitrator's opinion "clearly show[ed]" that the arbitrator did not review the president's decision with deference, but instead "substituted his own judgment for the president's" on whether the grievant had met the standards for tenure. (Id. at p. 951.) Moreover, "the arbitrator offered his own interpretation of University [tenure and promotion] standards and criteria, which are matters outside the scope of the collective bargaining agreement." (Ibid.) The Court of Appeal therefore held that the arbitrator exceeded his powers and the award must be vacated. (Id. at p. 953.) Here, in contrast, the arbitrator had broad authority under the MOU to decide disputes relating to working conditions arising from the MOU, and, as we have explained, he acted within that authority.
DISPOSITION
The judgment is affirmed. The City is awarded its costs on appeal.
/s/_________
Miller, J. WE CONCUR: /s/_________
Kline, P.J. /s/_________
Richman, J.