Decision 2818I – Orange County Superior Court and Region 4 Court Interpreter Employment Relations Committee
Decision Date: May 5, 2022
Decision Type: PERB Decision
Description: California Federation of Interpreters, Local 39000 TNG-CWA (CFI) filed exceptions to the proposed decision of an administrative law judge (ALJ) dismissing its unfair practice charge against Orange County Superior Court and/or the Region 4 Court Interpreter Employment Relations Committee. CFI alleged that the Court made an unlawful unilateral change when it disciplined a bargaining unit member based on the accuracy of their interpretation, without affording CFI an opportunity to meet and confer over the decision to implement the new discipline criterion or procedure and/or the effects of that decision. The ALJ dismissed the unfair practice charge and complaint, finding CFI failed to demonstrate a change in policy based on the narrow facts of the case, which included that the single reprimand at issue was based on conduct the bargaining unit employee admitted to in an investigatory interview.
Disposition: The Board affirmed the proposed decision, finding that CFI failed to demonstrate that the Court changed policy when it issued the reprimand, and thus failed to establish a prima facie case of a unilateral change in violation of the Court Interpreter Act, section 71825, subdivision (c). The Board therefore dismissed the complaint and underlying unfair practice charge.
Perc Vol: 46
Perc Index: 167
602.03000 – Change In Policy
“PERB has always recognized newly created, implemented or enforced policy as subject to its unilateral action doctrine.” (Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.)
602.01000 – In General
Past practice can be used to establish the status quo from which we assess an alleged unilateral change, and it can also be used as an interpretive aid in assessing ambiguous written language. In the former instance, a past practice establishes the status quo only if it was “regular and consistent” or “historic and accepted.” (County of Merced (2020) PERB Decision No. 2740-M, p. 13, fn. 9.) However, the inquiry is fundamentally different when analyzing the parties’ past practice to help ascertain the meaning of ambiguous contract language. (Antelope Valley Community College District (2018) PERB Decision No. 2618, p. 21.) In such circumstances, the past practice is but one tool for interpreting the contract, and therefore need not be as definitive as when it is defining the status quo in the absence of a contract term. (Id. at p. 22.) Union failed to establish either manner of past practice violation based on insufficient testimony and past practice consistent with the language of the MOU.
1404.02000 – Board’s Jurisdiction To Interpret Contracts
Although PERB does not resolve contract disputes, PERB may interpret contractual provisions as necessary to resolve unfair practice allegations. (County of San Joaquin (2021) PERB Decision No. 2775-M, pp. 39-40; Modoc County Office of Education (2019) PERB Decision No. 2684, p. 15.)
1404.03000 – General Principles of Contract Interpretation
In Lodi Unified School District (2020) PERB Decision No. 2723 (Lodi), the Board held that the traditional rules of contract law guide interpretation of a collective bargaining agreement between a public employer and a recognized employee organization. (Id. at p. 12.) “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Ibid.) “[T]he 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.” (Ibid.) Thus, the Board in Lodi held that we “must avoid interpreting contract language in a way which leaves a provision without effect.” (Ibid., citing State of California (Department of Corrections) (1999) PERB Decision No. 1317-S, p. 9.) Additionally, the Board has held that “[w]here contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning.” (Lodi, supra, PERB Decision No. 2723, p. 12, citing Civ. Code, § 1638; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 9.)