Fresno County Superior Court * * * OVERRULED IN PART by County of Sacramento (2013) PERB Decision No. 2315-M (PERB 1942C)

OVERRULED IN PART by County of
Sacramento (2013) PERB Decision No. 2315-M
STATE OF CALIFORl~IA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 535,
Charging Party,
V.
FRESNO COUNTY SlTPERIOR COURT,
Respondent.
PERB Decision No. 	1942-C
January 31, 2008
Appearances: Law Offices of Bennett & Sharpe by Thomas M. Sharpe, Attorney, for Service
Employees International Union Local 535; Kronick, Moscovitz, Tiedemann & Girard by Marie
A Nakamura, Attorney, for Fresno County Superior Court.
Before Neuwald, Chair; McKeag and Rystrom, l\.1embers.
DECISION
RYSTROM, Member: 	This case comes before the Public Employment Relations Board
(PERB or Board) on an appeal by Service Employees International Union Local 535
(Local 53 5) of the dismissal of its unfair practice charge against the Fresno County Superior
Court (Fresno Court) by an administrative law judge (A.IJ).
The complaint alleges that the Fresno Court, without prior notice or affordin~
Local 535 the opportunity to bargain, changed its Realtime reporting1 policy by requiring
newly hired court reporters to sign an agreement mandating that they provide Realtime
reporting services upon request. It further alleges that the prior policy allowed court reporters
to choose whether or not they would sign an agreement committing them to provide Realtime
reporting services for a pay differential. 	Local 535 claims that this unilateral change by the
Realtime reporting results in an instant translation of the court reporter's stenographic
notes into English onto the computer screen in front of the judge.

Fresno Court violates the Trial Court Employment Protection and Governance Act (Trial Court
Act) 2 sections 71631, 71633, 71634.2, 71634.2, 71635.1, 71639.l(c)
andPERB
Regulation 32606(a), (b) and (c).3
The Fresno Court responded that no unfair practice had occurred because this change
was non-negotiable pursuant to the statutory exemptions in the Trial Court Act, the waiver
language in the Local 535 representative agreement, and case law defining "terms and
conditions
of
employment."
The ALJ' s proposed decision dismissed the complaint concluding that no unfair
practice had occurred. Local 535 filed a timely appeal.
Having reviewed the entire record in this case, the Board agrees with the ALJ that no
unfair practice occurred and dismisses Local 535's complaint based on the legal findings and
reasoning below.
FINDINGS OF FACT
A. 	Agreements Between Local 535 and the Fresno Court Regarding Realtime
Reporting:
It is undisputed that Local 535 is an exclusive representative within the meaning
of
PERB Regulation 32033(b)
of
an appropriate unit
of
employees and that the Fresno Court is a
trial court within the meaning
of
the Trial Court Act section 71601(k) and PERB
Regulation 32033(a). In these capacities, Local 535 and the Fresno Court negotiated certain
terms regarding Realtime reporting in their written agreements which are set forth below.
2The Trial Court Act is codified at Government Code section 71600, et seq. 	Unless
otherwise indicated, all statutory references herein are to the Government Code.
3PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2

1.
	Memorandum
of
Understanding (MOU):
The MOU between Local 535, bargaining Unit
15
and the Fresno Court was effective
from September 13, 2004 through September 13, 2007. 	Bargaining Unit
15
consists
of
"Court
Professionals" which include court reporters.4
The Realtime terms negotiated for the MOU are contained in the "Realtime
Differential" section
of
the MOU. These provisions are that court reporters who sign an
agreement indicating that they will provide Realtime court reporting services upon demand for
any judicial officer requesting such services shall receive a salary differential pursuant to the
following terms: (a) Court reporters shall receive a differential
of
1 percent
of
base salary for
signing the agreement; (b) Any Court Reporter who has signed this agreement and who does
not provide the Realtime court reporting services upon request by any judicial officer shall no
longer be eligible to receive the salary differential; and (c) Additional Realtime salary
differentials (to the above 1 percent) are: 	(a) 1 percent
if
the court reporter has passed the
Fresno Court approved local Realtime test (for a total
of
2 percent); and (b) 3 percent
if
a court
reporter has been certified in Reaitime court reporting by the National Court Reporters
Association (for a total
of
5 percent).
This section
of
the MOU also provides that: "Before implementation
of
the Realtime
differential, the [Fresno] Court and Union [Local 535] agree to meet and confer regarding the
policies and disciplinary procedures in sections
1,
2 and 3 [outlined above]."
2. 	First Side Letter (March 4, 2005):
4According to the MOU, in addition to court reporters, bargaining Unit 15 includes
court personnel from accounting, archives, civil courts, court services "JAs and Court
Reporters," criminal courts, family court services, family support, jury, juvenile, master
calendar, secretaries, traffic and outlying courts. (Art. XLII(C).)
3

The first side letter agreement to the MOU, executed on March 4, 2005, states the
Fresno Court will implement the Realtime differential on February 28, 2005. It contains a
repeat
of
the eligibility conditions for and amounts
of
the salary differentials found in the
MOU and also provides: (1) the Fresno Court is responsible for the software used by judicial
officers; (2) the Fresno Court will offer a court-approved local Realtime test once a month for
the first three months after implementation; (3) how the determination will be made that a
court reporter declines to or has a technical inability to provide Realtime services; and (4) that
the consequence
of
failing to provide Realtime reporting upon request will be an ineligibility to
receive the pay differential for six months. The side letter's term is six months.
3. 	Second Side Letter (September 8, 2005):
On September 8, 2005, a second side letter agreement was executed which incorporates
the "Real time Differential" clause in the MOU and provides implementation
of
the Real time
differential will be July 22, 2005. It repeats the technical requirements, local test and pay
differential terms
of
the first side letter agreement and adds the following terms regarding
declining Real time assignments: (1) for the duration
of
this Side Letter Agreement the
designated Local 535 representative and the Director
of
Court Operations will work together to
identify, on a case-by-case basis, appropriate reasons a court reporter may cite as to why he/she
cannot provide Realtime; and (2) both parties will collaborate to develop a progressive
discipline process, to be implemented at the expiration
of
this side letter agreement. 	The
second side letter specifys a term
of
six months.
4. 	Third Side Letter (April 17, 2006):
The third side letter agreement, executed on April 17, 2006, confirms the Real time
differential was implemented on July 22, 2005. This side letter repeats the technical
4

responsibilities, local test, and pay differential terms
of
the previous side letters. In addition, it
specifys the progressive discipline process to be used for court reporters declining to provide
Realtime assignments. This side letter was effective until the expiration
of
the MOU.
B. 	Realtime Court Reporting:
Not all certified shorthand reporters are capable
of
providing Realtime court reporting.
Realtime reporting requires a court reporter to have their own laptop with special software
installed. This laptop is connected to the court reporter's steno machine which converts the
marks made by the steno keys instantly into English according to the court reporter's
customized dictionary. The court reporter's laptop is connected to the judge's computer which
receives the court reporter's instant rough English transcription
of
the proceedings. Court
reporters provide this computer equipment and software. Additionally, court reporters must
learn the technology to provide Realtime reporting on their own. The only compensation they
receive for providing the Fresno Court with this additional skill and equipment is the increased
pay differential negotiated in the September 2004 MOU and side letters described above.
1.	
The Fresno Court's job requirements for court reporters before the January 31,
2005 job description.
Prior to January 31, 2005, court reporters were not required to have the ability or
equipment to provide Realtime reporting. Those who learned the technology and invested in
the equipment and software had the option of signing an agreement committing to providing
Realtime upon request. The signing of this agreement entitled the court reporter to the pay
differential negotiated in the MOU.
Doreen Perkins (Perkins) was employed by the Fresno Court for over 26 years as a
court reporter. She was chapter president of Local 535 which involved representing court
employees for an estimated five years (2001 to 2006) and on the negotiating team for the MOU
5

and its three side letters described above. 	Perkins is certified to provide Realtime court
reporting services, does so daily, and has provided Realtime reporting for the past
20
years.
Perkins testified this method
of
court reporting became more common during the past five
years.
2.
	The change in required skills and duties for court reporters after the Fresno
Court's adoption
of
a court reporter job description on January 31, 2005.
In approximately the third week
of
January 2005, Rick Duran (Duran), the principal
personnel analyst for the Fresno Court, told Gloria Cantu (Cantu) who was Local 535's union
representative, that the Fresno Court did not have a job description for court reporters. 	Duran
informed her that the Fresno Court was going to work on such a job description.
Shortly thereafter, Cantu received a phone call from Duran indicating that he had a
proposed job description. 	Cantu told him to be sure and get a copy to Perkins because she was
more knowledgeable as to what the court reporters' job entailed.
On January 26 or 27, 2005, according to her court log, Perkins found a copy
of
the
court reporter job description on her desk. She did not know who put it there and was not
aware
of
a court reporter job description in the past.
The newly created Fresno Court job description contained numerous requirements
regarding Realtime capability. These were: (1) a "characteristic"
of
the job was utilization
of
the Realtime program; (2) an essential job duty was to provide Real time reporting; (3) an
ability to provide Realtime reporting was necessary; and (4) a minimum qualification was the
possession and knowledge
of
Real time transcription computer hardware and software and the
ability to use Computer Aided Transcription (CAT) to provide Realtime transcription services.
Several of the above Real time requirements had an asterisk referring to a paragraph
which stated:
6

All Court Reporters hired after January
1,
2005 and all Court
Reporters receiving the realtime differential shall be required to
provide realtime. The Court Executive Officer may waive the
realtime requirement for newly hired Court Reporters.
Perkins immediately reviewed this job description and informed Cantu that Perkins did
not agree with the job description. 	Subsequently Perkins met with her supervisor, Fran Riley,
and Duran about the job description and informed them
of
her disagreement with it. 	Duran
responded that he did not need her input on the job description. Perkins never saw the
job
description again nor did she have any additional conversations with anyone about it.
The job description was approved on January 31, 2005, by the Court Executive Officer
after which Duran provided a copy
of
it to Cantu by email. 5
On February 4, 2005, Cantu sent Duran an email regarding the job description
indicating she was not in agreement with a lot
of
the information on the job specification and
requesting to meet and confer over it. At the hearing, Cantu testified that they basically
wanted to bargain over the impacts. This was not mentioned in her February 4, 2005, email to
Duran which stated:
Spoke with Doreen briefly and we are not in agreement as to the
Court's proposed Court Reporter job specification. We are
asking for a formal meet and confer upon my return. Have you
secured any job specs from any other Courts in the State?
Duran responded by email on February 4, 2005 that:
The court had [sic] provided you the spec for review and we have
reviewed your suggestions.[6] 	The Court has no obligation to
meet and confer with you as none of the reporters working
5No evidence was presented indicating the date the email providing the approved job
description was sent to Cantu by Duran.
6No evidence was introduced indicating what these suggestions were or the
circumstances of their communication.
7

conditions or classification will be impacted due to the
implementation
of
their new spec.
On March
7,
2005, Cantu (who had been out on a medical leave) responded to Duran
by email as follows:
I believe your position is incorrect. Tom Sharpe is looking into
this matter
as
well. 	Can you tell me what the Court is basing it's
[sic] position on?
Duran replied by email, dated March 14, 2005:
Gloria, saw this email when we spoke last week but didn't
provide you a response.
It's
not a new classification and the
reporters working conditions are not impacted. Also, we have
mutually agreed upon the realtime pay differential
implementation procedures which were negotiated in the MOU.
After this exchange
of
emails, Cantu could remember only one brief discussion with
Duran which occurred following a meeting when he said something to her about the job
description and she responded we're not in agreement and we didn't get a meet and confer.
Duran replied that the Fresno Court was not required to meet with her about it. 	Cantu testified
she could not remember
if
there was any effort by anyone to schedule a meeting. 	She said
there was no bargaining over the court reporter job specification.
During February 2005, the Fresno Court posted a recruitment announcement Gob
posting) on its "Fresno County Superior Court Employment Opportunity" website and on all
the bulletin boards within the court. This job posting closely tracked the Realtime reporting
requirements in the court reporter job description. The job posting listed Realtime reporting
under the essential job duties, required an ability to provide Realtime reporting and listed as
one of the minimum qualifications that the court reporter must possess and have knowledge of
Real time transcription computer hardware and software as well as the ability to use CAT to
provide Realtime transcription services.
8

According to the Fresno Court, Associate Executive Officer, Michael Weinberg
(Weinberg), the above court reporter
job
posting was the first
job
recruitment for court
reporters after the new
job
description was approved. It was circulated electronically
to
all
Fresno Court employees except court reporters, because they were not directly hooked up to
the internet system. 	Hard copies
of
the
job
posting were provided to court reporters. The
Fresno Court did not send a hard copy to Local 535. 	Cantu and Perkins both testifiedthat they
did not receive a copy
of
the job posting.
In May 2005, Perkins learned from a newly hired Court Reporter, Tracy Barksdale
(Barksdale), that she signed an agreement on May 3, 2005, mandating that she would provide
Real time reporting upon request. 	Barksdale gave Perkins a copy
of
this agreement and she
immediately sent it to Cantu.
The agreement was titled: 	"Court Reporter Conditional Offer
of
Employment" (pre-
hire agreement) and contained the following terms:
(a) 	The job announcement for the court reporter position required the ability
to provide Realtime reporting.
(b) 	The requirement to provide Realtime reporting was explained to
Barksdale during the oral interview for the job.
(c) 	During the oral interview Barksdale agreed to provide Realtime
reporting services
if
accepted for employment.
(d) 	The Realtime reporting services requirement was discussed with her
when she received a verbal offer
of
employment from the Fresno Court.
(e) 	Barksdale will be required to sign a "Realtime Reporting Agreement"7
prior to commencing employment with the Fresno Court.
7This is the agreement referenced in the MOU which court reporters could sign to
receive the pay differential negotiated in the MOU.
9

(f) 	Barksdale will be required to provide Realtime reporting services upon
the request
of
any judicial officer to whom she is assigned.
(g) 	The refusal to provide Realtime reporting services upon request will
result in Barksdale's rejection from employment during her initial rating period.
(h) 	The refusal to provide Realtime reporting services
if
requested after
Barksdale's completion
of
the initial rating period may result in the imposition
of
formal disciplinary action up to and including termination from employment
with the Fresno Court.
Cantu confirmed that she received a call from Perkins about a court reporter who was
required to sign the above pre-hire agreement. A few days later, Cantu was given a copy
of
the
pre-hire agreement either from Perkins, Barksdale or both. Prior to this, Cantu did not have
any knowledge
of
the pre-hire agreement.
It was stipulated by the parties that Barksdale was hired as a court reporter by the
Fresno Court in May 2005, and was told by Fresno Court representatives that as a condition
of
her employment she was required to sign the pre-hire agreement. 	Four additional court
reporters at various dates between May 2005 and May 24, 2006, were hired by the Fresno
Court and each was told that as a condition
of
their employment they were required to sign a
pre-hire agreement. All
of
these Fresno Court employees signed the required pre-hire
agreements.
C. 	The Fresno Court's Need for Court Reporters with Realtime Capability:
Weinberg testified that Fresno Court has 18-20 trial court rooms which are equipped to
accommodate Realtime court reporter services. The majority
of
the regularly assigned trial
judges to these courtrooms use Realtime reporting. Fresno has a total of 50 court rooms
countywide, thus approximately 30 do not have Realtime capacity. According to Weinberg, in
those departments where there is a need based on evidentiary proceedings and a desire by the

judicial officer to have Realtime capability, the necessary computer cables will be installed
giving Realtime capacity to additional courtrooms.
Prior to hiring new court reporters pursuant to the January 31, 2005, job description and
resulting pre-hire agreements, only
13
of
the Fresno Court's 34 court reporters signed
agreements to provide Realtime reporting for the MOU' s pay differential.
Weinberg, who was involved in the decision to make Realtime reporting an essential
job duty, testified that it was the judges' and court executive officer's determination that
Realtime reporting enhanced the efficient delivery
of
court services, affected the pace and flow
of
trial proceedings, and that a desirable goal was to over time achieve a workforce that was
able to provide this function.
ALJ'S PROPOSED DECISION
The ALJ found that the Fresno Court made a change in its policy and that its decision to
require new court reporters to provide Realtime reporting services was non-negotiable pursuant
to Alum Rock Union Elementary School District (1983) PERB Decision No. 322
(Alum Rock). The ALJ also held that Local 535 did not request to bargain over the impacts
of
this non-negotiable decision.
The ALJ determined the Fresno Court did not bypass Local 535 by having newly hired
court reporters sign the pre-hire agreements. She held that the pre-hire agreements simply
reflected the requirement to provide Realtime reporting services in the court reporter job
description adopted January 31, 2005, which was a non-negotiable decision.
11

LOCAL 535's APPEAL
Local 535 argues on appeal:
1.	
The ALJ misapplied the law in Alum Rock to the facts
of
this case in finding
that the decision to require newly hired court reporters to provide Realtime
reporting was non-negotiable.
2. 	Determining that Local 535 had not requested to bargain the impacts
of
the
above decision was error, because when Local 535 requested a meet and confer
it was refused by the Fresno Court.
3. 	Finding there was no bypass by the Fresno Court was improper because there
was no dispute that Barksdale was told she would be required to sign a pre-hire
agreement which specified as a condition
of
employment that she must provide
Realtime reporting services which modified the existing MOU's policy
pertaining to Realtime court reporting.
4. 	The terms
of
the pre-hire agreement that employees signing the agreements and
failing to provide Realtime reporting services upon request could be subject to
formal discipline including termination resulted in the following unfair
practices: they undermined and modified the terms
of
the MOU and its March 4,
2005 side letter; they violated the terms
of
the MOU requiring that discipline be
negotiated; and they constituted a bypass by the Fresno Court.
FRESNO COURT'S OPPOSITION
In addition to agreeing with the ALJ's legal reasoning and conclusion that there
was no duty to bargain the decision to require new court reporters to provide Realtime
reporting services, the Fresno Court contended that the ALJ should have reached the same
conclusion pursuant to the Trial Court Act's scope
of
bargaining provisions.
The Fresno Court also argued that its decision to require new court reporters to possess
Realtime reporting skills and to provide Realtime reporting upon demand was not negotiable
because Local 535 waived its right to negotiate this decision in the Management Rights section
of the MOU.
12

DISCUSSION
The issues raised by Local 535's complaint are whether the Fresno Court's requiremen
that new employees sign a pre-hire agreement mandating them to provide Realtime reporting
services constituted both a unilateral change and a bypass
of
the exclusive employee
representative in violation
of
the Trial Court Act.
t
Local 535 did not allege in its unfair practice charge or complaint that the Fresno
Court's adoption
of
the Realtime requirements in the January 31, 2005, job description was an
unlawful unilateral change. However, we find that it is this earlier decision by the Fresno
Court that changed the qualifications and duties
of
newly hired court reporters in terms
of
the
requirements to provide Realtime court reporting services. The pre-hire agreements were the
means the Fresno Court chose to impose these Realtime requirements on newly hired court
reporters.
As is explained more fully below, we find PERB cannot rule on the complaint's pre-
hire agreement claims unless the Board first determines whether the adoption
of
the
job
description's Realtime reporting requirements constituted an unlawful unilateral change.
Therefore our analysis
of
Local 535's complaint will first deal with the Fresno Court's
adoption
of
Realtime requirements in its job description for court reporters and then with the
complained
of
pre-hire agreements which newly hired court reporters were required to sign.
I. 	STANDARD OF REVIEW
PERB Regulation 32320 allows the Board to issue its decision based upon the record
of
the hearing and gives the Board broad discretion in its review of an ALJ' s proposed decision.
(Oakland Unified School District (2007) PERB Decision No. 1880.) The Board is free to draw
13

its own conclusions from the record apart from those made by the ALJ. 	(Woodland Join
Unified School District (1990) PERB Decision No. 808.)
t
The proper standard
of
PERB's review
of
an ALJ proposed decision
is:
[W]hile the Board will afford deference to the hearing officer's
findings
of
fact which incorporate credibility determinations, the
Board
is
required to consider the entire record, including the
totality
of
testimony offered, and
is
free to draw its own and
perhaps contrary inferences from the evidence presented.
(Santa Clara Unified School District (1979) PERB Decision No. 104
(Santa Clara).)
II. 	THE FRESNO COURT'S JANUARY 31, 2005, COURT REPORTER JOB
DESCRIPTION
A. 	Can the Decision to Adopt the Realtime Requirements in the January 31, 2005,
Court Reporter Job Description be Adjudicated by PERB
as
an Unalleged
Violation?
PERB has established the principle whereby unalleged violations may be reviewed by
the Board when the following requirements are met: 	(1) adequate notice and opportunity to
defend has been provided the respondent; (2) the acts are intimately related to the subject
matter
of
the complaint and are part
of
the same course
of
conduct; (3) the unalleged violation
has been fully litigated; and (4) the parties have had the opportunity to examine and be cross-
examined on this issue. 	(Tahoe-Truckee Unified School District (1988) PERB Decision
No. 668 (Tahoe-Truckee); Santa Clara; Eureka City School District (1985) PERB Decision No.
481.) The failure to meet any of these requirements prevents the Board from considering the
unalleged conduct as a violation. 	(Tahoe-Truckee.)
Additionally, we note that the unalleged violation must be within the applicable statute
of limitations assuming it was alleged in the original unfair practice charge. Thus, if the
violation cannot be justified as timely, it will not be considered even if all of the other
requirements have been met.
14

We consider this issue bearing in mind the significant importance
of
giving all parties
litigating disputes under California's public labor relations statutes adequate notice and a fair
opportunity to litigate their claims. PERB must be very circumspect when determining
whether to adjudicate an unalleged violation and should only do so
if
there
is
clear evidence
that all
of
the above criteria have been met. Toward this end, it is strongly recommended that
the evidence justifying the above criteria always be expressly enunciated, so that all parties are
aware
of
the basis for finding that an unalleged violation can be heard without any unfairness.
We find that the evidence in the instant case justifies our consideration
of
whether the
decision to adopt the Realtime requirements in the January 31, 2005, job description was an
unlawful unilateral change on the following bases:
1.
The Fresno Court had adequate notice that the uncharged violation was being
litigated and the opportunity to defend.
The transcript
of
the hearing before the ALJ indicates that both parties litigated the
terms
of
the job description
as
part
of
their case. A copy
of
the job description was introduced
into evidence by both the Fresno Court and Local 535. Witnesses presented by Local 535
(Perkins and Cantu) testified extensively as to how they first learned
of
the job description,
their reaction to it, and their request for a meet and confer on it. The Fresno Court's witness
(Duran) testified about when the job description was approved and his communications with
Cantu about it. 	Weinberg testified as to who made the decision to include the Realtime
requirements in the job description and why they did so. Additionally, the emails containing
the parties' communications about the job description were admitted into evidence.
In its post hearing opening brief, Local 535 stated that one of the issues before the ALJ
was whether the Fresno Court could unilaterally create a job description requiring court
reporters to provide Realtime reporting. 	Post hearing briefs by the Fresno Court argued that
15

its management rights clause in the MOU expressly gave it the right to determine the content
of
job classifications and that Local 535 did not request to bargain the effects
of
the Realtime
requirements in the job description.
2. The job description was intimately related to the pre-hire agreements and was
part
of
the same course
of
conduct.
The primary issue before the ALJ was whether the Fresno Court could unilaterally
require reporters to provide Realtime reporting. The testimony on this issue indicated that this
requirement was first put in the job description and was subsequently made part
of
the
challenged pre-hire agreements.
Moreover, as will be shown below, the determination
of
whether the pre-hire agreement
was an unlawful unilateral change depends on whether adding the Realtime reporting
requirements in the job description was a lawful unilateral decision.
3. The Realtime requirements in the job description were fully litigated.
We conclude that this violation was fully litigated by both parties for the same reasons
which support our finding that the Fresno Court had notice
of
the unalleged violation and an
opportunity to defend.
Further evidence
of
such litigation in this case was the ALJ' s proposed decision which
contained rulings based on the evidence before her regarding the Realtime requirements in the
job description.
4. The parties had the opportunity to examine and cross examine on the job
description.
Our review of the transcripts indicates that both parties presented witnesses who laid
the foundation for the admission of the job description into evidence and testified about the
Realtime requirements in the job description and communications between the parties about
16

the
job
description. The Fresno Court adduced evidence showing why the job description's
Realtime reporting qualifications and duties were added. As to all
of
this testimony, each party
had the opportunity to cross examine the other's witnesses.
5. The unalleged violation falls within the Trial Court Act's limitations period.
The Trial Court Act has a six-month limitations period. 8 The testimony in this case
indicates that
if
the unalleged violation had been charged in the unfair practice claim filed on
July 25, 2005, it would have been timely.
Local 535's witness, Cantu, testified she first learned
of
the job description being
drafted in early February 2005, and that she directed it be provided to Perkins. Testimony
indicated a copy
of
the January 31, 2005, approved job description was provided to Cantu by
email after its approval.
B. 	Was the Addition
of
the Realtime Requirements in the Job Description a
Unilateral Change
of
a Matter Within the Scope
of
Representation Without
Notice or Opportunity to Negotiate?
On appeal Local 535 contends that the unilateral approval
of
the Real time reporting
requirements in the January 31, 2005, court reporter job description violated the Fresno Court's
obligation under the Trial Court Act section 71634.2, to meet and confer in good faith
regarding wages, hours and other terms and conditions
of
employment.
To determine
if
the Realtime requirements are an unlawful unilateral change we use the
"per se" or "totality
of
the conduct" tests, depending on the specific conduct involved and the
effect
of
such conduct on the negotiating process. 	(County
of
Riverside (2003) PERB
8The Trial Court Act section 71825(c) provides, in pertinent part, that PERB "shall not
issue a complaint in respect of any charge based upon an alleged unfair practice occurring
more than six months prior to the filing of the charge."
17

Decision No. 1577-M (Riverside) citing (Stockton Unified School District (1980) PERB
Decision No. 143 (Stockton).)9
Unilateral changes are "per se" violations
if
the following criteria is established by a
preponderance
of
the evidence: (1) the employer breached or altered the parties' written
agreement or past practice; (2) the action was taken before the employer notified the exclusive
representative and gave it an opportunity to request negotiations; (3) the change was not
merely an isolated breach
of
the contract or practice, but amounted to a change
of
policy that
had a generalized effect or continuing impact upon terms and conditions
of
employment
of
bargain unit members; and (4) the change in policy concerned a matter within the scope
of
representation. 	(Riverside and cases cited therein.
10
)
We hold that the Realtime requirements in the January 31, 2005 job description
changed past practices.
11
The evidence presented indicates that prior to the job description, it
9The Trial Court Act section 71826(b) provides that the language
of
the Trial Court Act
is the same or substantially the same as that in the Meyers-Milias-Brown Act (MMBA) (the
MMBA is codified at Gov. Code sec. 3500, et seq.) and shall be interpreted and applied in
accordance with the judicial interpretations
of
the same language. Riverside applies the tests
enunciated in Stockton in determining a violation under MMBA section 3505. Because that
section is substantially the same as the Trial Court Act sections 71634.2 and 71601(e), we
apply Riverside and Stockton herein.
10Vernon Fire Fighters v. City
of
Vernon (1980) 107 Cal.App.3d 803 [165 Cal.Rptr.
908]; San Joaquin County Employees Assn. v. City
of
Stockton (1984) 161 Cal.App.3d 813
[207 Cal.Rptr. 876]; Walnut Valley Unified School District (1981) PERB Decision No. 160;
Grant Joint Union High School District (1982) PERB Decision No. 196.
11
We do not find that the Realtime requirements in the job description altered the
parties' MOU. The MOU's Realtime reporting provisions were limited to providing what the
pay will be for those court reporters who sign a contract stating that the court reporter willingly
agrees to provide Real time reporting for the MOU' s pay differential. 	There is no indication in
the MOU's provisions that the parties bargained over whether providing Realtime would be
required or voluntary. The MOU's provisions indicate that the parties bargained over and
agreed: 	(1) what the pay would be for court reporters who sign a contract obligating them to
provide Realtime; and (2) that before the Realtime pay differential is implemented, the Fresno
18

was sufficient for court reporters to use only a stenograph machine to take down in shorthand
the proceedings in their assigned courtrooms. 	The resulting steno notes were transcribed into
English at a latter date and certified as the official transcript.
After the job description was adopted, these court reporting capabilities were not
sufficient to qualify for a court reporter position with the Fresno Court. The Realtime
requirements in the job description mandated that, in addition to taking down the proceedings
in steno, court reporters must have the capability to provide Realtime services and that such
services would be part
of
their duties. 	The effect
of
these Realtime requirements was that new
court reporters must have additional equipment and software which would translate the steno
key strokes into English instantaneously. Realtime reporting also required that the court
reporter have the technological knowledge to use CAT and that they customize the dictionary
in their Realtime software to transcribe words used in the courtroom which were not already in
the software. 	The instant English transcript resulting from Realtime reporting is a rough draft
only thus the certified English transcript
of
the court room proceedings still had to be
produced.
These Realtime requirements had a generalized effect given they impacted the terms
and conditions
of
all court reporters hired after the approval
of
the Real time requirements in
the job description. It is clear that Local 535 did not have an opportunity to meet and confer
regarding these new requirements in the job description. 	After receiving a copy
of
the
January 31, 2005, job description, Local 535 requested a "formal meet and confer" about it.
The Fresno Court denied this request taking the position that it had no obligation to meet and
confer over the contents
of
the job description.
Court and Local 535 would meet and confer regarding the policies and procedures for
implementing the pay differential. 	(MOU, Art. LV - Realtime Differential.)
19

Given the above findings, deciding whether the Fresno Court's unilateral adoption
of
its
January 31, 2005, job description for court reporters was a "per se" violation will turn on
whether the decision to add the Realtime requirements was within the scope
of
representation.
To make this ruling we first look to the provisions in the Trial Court Act defining scope
of
representation.
The Fresno Court contends that the decision to add the Realtime reporting requirements
in its court reporter job description comes within two
of
the excluded matters in
Section 71634(b): 	automation and delivery
of
court services. (Trial Ct. Act secs. 71634(b)(3)
and (5), respectively.) We agree that the Fresno Court's decision to add Realtime requirements
for all court reporters hired after January
1,
2005, fell within the Trial Court Act's exclusion
of
decisions on delivery
of
services.
12
Trial Court Act section 71634 defines the scope
of
representation to be matters relating
to wages, hours, and other terms and conditions
of
employment. This section also excludes
from the scope
of
representation, decisions on a limited number
of
specified matters.
If
the language
of
a statute is clear and unambiguous, then the intent
of
the Legislature
is reflected in the plain meaning
of
the statute. (County
of
Imperial (2007) PERB Decision
No. 1916-M and cases cited thereinY)
The Legislature clearly stated the purpose for these excluded matters in the Trial Court
Act. 	Section 7 l 634(b) provides that decisions regarding the enumerated matters should not be
included in the scope
of
representation: 	"In view
of
the unique and special responsibilities
of
Having made this determination, we need not consider
if
the decision also fell within
the automation exclusion.
13
Barstow Unified School District (1996) PERB Decision No. 1138; North Orange
County Regional Occupational Program (1990) PERB Decision No. 857.
20

the trial courts in the administration
of
justice." Therefore, it is necessary that a trial
cour
decision be consistent with the Legislature's express purpose in carving out the exclusion
order to fall within an enumerated exclusion.
t's
in
To determine
if
the Legislature intended that a particular decision falls within one
of
the Trial Court Act section 71634(b) exclusions, we must examine what the decision does and
its purpose. To qualify as an exclusion under Section 71634(b), the decision must not only be
a decision which reasonably falls within one
of
the excluded categories, but the reason for the
particular decision must be for the purpose
of
carrying out the special responsibilities
of
the
trial courts.
Consistent with the above, we analyze whether the decision
of
the Fresno Court to add
Realtime reporting capability as a
job
requirement for all newly hired reporters was a decision
for the delivery
of
court services which was made for the purpose
of
carrying out the special
and unique responsibilities
of
a trial court.
Evidence from the Fresno Court's associate executive officer, who was present when
the decision to add these requirements was made, indicated that the Judicial Executive
Committee as well as the Court Executive Officer determined that Realtime reporting
enhanced the efficient delivery
of
court services, affected the pace and flow
of
trial
proceedings, and that it was a desirable goal over time to achieve a workforce that was able to
provide Realtime court reporting. No testimony was presented which controverted these facts.
The evidence indicates the Fresno Court's decision to add the Realtime reporting
requirement for all court reporters hired after January 1, 2005, was for the purpose
of
delivering a court service and was based on considerations consistent with the Legislature's
21

justification for excluding decisions for the delivery
of
services from the scope
of
representation.· 	14
This leaves the issue
of
whether the Fresno Court was obligated to meet and confer
with Local 535 on the impact
of
the job description's Realtime reporting requirements. 	The
Trial Court Act section 71634(c) requires that the impact from matters excluded under
Section 71634(b) shall be included within the scope
of
representation
as
those matters affect
wages, hours and terms and conditions
of
employment.
PERB has long held that a request to bargain the impact
of
a decision not within the
scope
of
bargaining does not have to be in a particular form, but it must adequately signify the
desire to negotiate on a subject within the scope
of
bargaining. 	iliewman-Crows Landing
Unified School District (1982) PERB Decision No. 223 iliewman-Crows); City
of
Richmond
(2004) PERB Decision No. 1720-M (Richmond).)
15
A request to meet and confer over a non-
negotiable decision will not be interpreted as a demand to bargain the effects
of
such a
decision. (Ibid.) Any demand to bargain over effects must clearly identify the negotiable areas
of
impact. (Richmond.)
4This finding renders it unnecessary for us to examine if the decision to add Realtime
reporting requirements was also non-negotiable because: Local 535 waived the right to
bargain this decision under the Management Rights article of the MOU or the decision fell
within the Fresno Court's management prerogative.
15
In Richmond, a case brought under the MMBA, PERB held that the Newman-Crows
rule resulting from an Educational Employment Relations Act (EERA) (the ERRA is codified
at Gov. Code sec. 3540, et seq.) case would apply under the MMBA noting that there is
nothing in the text of the MMBA requiring a departure from the well established rule. 	For the
same reasons, we find this Newman-Crows rule also applies to cases adjudicated under the
Trial Court Act. 	Additionally, since the Trial Court Act's meet and confer requirements in
Section 71634.2 are substantially the same as the MMBA's meaning of "Meet and confer in
good faith" in Section 3505, they should be similarly interpreted. (See fn. 9 above.)
22

The ALJ found that Local 535's requests to bargain were limited to: 	Perkins' late
January 2005 statements that she did not agree with the
job
description; Cantu's February 4,
2005 email requesting a "formal meet and confer," because they are not in agreement with the
job
specification; and Cantu's March 7, 2005 email that the Fresno Court's position claiming
it
did not have an obligation to meet and confer was incorrect. 	The ALJ held under Newman-
Crows and Richmond that these requests were not sufficient.
We agree with the ALJ's findings as to what attempts were made by Local 535 to
bargain on the impacts
of
the job description and with her legal conclusion that Local 535 did
not request to bargain effects
of
the job description's Realtime requirements.
16
III. 	WAS THE FRESNO COURT'S REQUIREMENT THAT NEWLY HIRED COURT
REPORTERS SIGN THE PRE-HIRE AGREEMENT AN UNLAWFUL
UNILATERAL CHANGE?
In its complaint, Local 535 alleges that before May 3, 2005, court reporters could
choose whether or not to sign an agreement that they would provide Realtime reporting
services for a pay differential. It further alleges that this policy was changed by requiring new
employees to sign a pre-hire agreement obligating them to provide Realtime reporting
services.
17
According to Local 535, this constituted a unilateral change
of
a negotiable subject
without prior notice or the opportunity to meet and confer.
Given that pursuant to the January 31, 2005, job description all new court reporters
must provide Real time court reporting as part
of
their duties, the Fresno Court's act in
6Similar to the instant case, in Richmond, the union requested to bargain over the
decision to make layoffs but not the decision's effects. This was found not to be a sufficient
request to bargain over effects.
17On appeal, Local 535 also argues that the pre-hire agreements altered the parties'
written agreement by imposing discipline different from the MOU and the March 4, 2005 side
letter. 	As is discussed more fully below, we do not address this issue because it was not raised
by the allegations in Local 535's charge or complaint.
23

requiring newly hired court reporters to sign an agreement obligating them to provide these
services is analogous to an assignment
of
Realtime reporting duties to these new court
reporters.
"PERB has long held that the assignment
of
work,
if
reasonably related to existing
duties, is a management prerogative." (City & County
of
San Francisco (2004) PERB
No. 1608-M (San Francisco).) Although San Francisco was an MMBA case, this holding
applies equally to the Trial Court Act given the "scope
of
representation" provisions in MMBA
section 3504 are the same as those in the Trial Court Act section 71634(a).
18
Because the Fresno Court properly made Realtime reporting a duty
of
all court
reporters hired after January 1, 2005, requiring newly hired court reporters to sign a pre-hire
agreement obligating them to fulfill this duty is a proper assignment
of
existing duties and falls
within the Fresno Court's management prerogative under San Francisco.
IV. 	DID THE FRESNO COURT BYPASS LOCAL 535 WHEN IT REQUIRED
NEW
COURT REPORTS TO SIGN THE PRE-HIRE AGREEMENTS AS A CONDITION
OF EMPLOYMENT?
Local 535's complaint aileges that by conditioning employment
of
new court reporters
on their signing pre-hire agreements requiring them to provide Realtime reporting services, the
Fresno Court bypassed Local 535.
The elements for bypass under the Trial Court Act are the same as those enunciated in
County
of
Fresno (2004) PERB Decision No. 1731-M (Fresno) which dealt with a charge
of
bypass under the MMBA.
19
18
See footnote 9 above.
19Because statutory sections on which the bypass charge is based under the Trial Court
Act are substantially the same as those in the MMBA, the sections should be similarly
interpreted. 	(See fn. 9 above.)
24

An employer may not communicate directly with employees to
undermine or derogate the representative's exclusive authority to
represent unit members. (Muroc Unified School District) (1978)
PERB Decision No. 80. 	[fn omitted.] 	Similarly, the employer
violates the duty to bargain in good faith when it bypasses the
exclusive representative to negotiate directly with employees
over matters within the scope
of
representation. 	(Walnut Valley
Unified School District) (1981) PERB Decision No. 160.)
However, once a policy has been established by lawful means, an
employer has the right to take necessary actions, including
consulting with employees, to implement the policy. 	(Ibid.) 	To
establish that an employer has unlawfully bypassed the union, the
charging party must demonstrate that the employer dealt directly
with its employees (1) to create a new policy
of
general
application, or (2) to obtain a waiver
or
modification
of
existing
policies applicable to those employees. (Ibid.)
In its appeal, Local 535 argues that by having court reporters sign the pre-hire
agreements, the Fresno Court bypassed Local 535 because the pre-hire agreement's
requirement for Realtime reporting services modified the existing
MOU's
policy pertaining to
Realtime reporting.20
We do not find the pre-hire agreement's terms that court reporters will provide
Realtime reporting to be a modification
of
the MOU. 	As stated above, the
MOU's
Realtime
reporting provisions were limited to the pay differential that reporters who signed agreements
to provide Realtime reporting would receive and that the policies and procedures for
implementing the Realtime pay differential would be negotiated.
We agree with Local 535 that requiring Realtime reporting was a changein the practice
which existed prior to September 2004 when the MOU was executed. 	However, this past
practice was not memoralized in the MOU.
20
Local 535 also argues there was a bypass based on the pre-hire agreements discipline
provisions. 	We explain below why we do not address this bypass argument.
25

As
is
stated above, this past practice was changed by the Fresno Court's decision to add
new qualifications and duties in the January 31, 2005,job description by requiring that all new
court reporters would have to be capable
of
and would provide Realtime reporting services.
Because we have determined that this change in a past practice was non-negotiable under the
Trial Court Act's scope
of
representation provisions, the Fresno Court's implementation
of
the
change
is
not an unlawful bypass. As stated in Fresno, once a policy is established by lawful
means, an employer has the right to take necessary actions, including consulting with
employees to implement the policy.
V.
	DID LOCAL 535 ALLEGE IN ITS COMPLAINT THAT THE DISCIPLINE TERMS
IN THE PRE-HIRE AGREEMENT CONSTITUTED AN UNLAWFUL
UNILATERAL CHANGE OR A BYPASS VIOLATION UNDER THE TRIAL
COURT ACT?
Local 535 argues that the pre-hire agreement's disciplinary procedure terms were an
unlawful unilateral decision and constituted a bypass
of
Local 535, because these terms
differed from the MOU's provisions. 	Specifically, Local 535 contends that under the pre-hire
agreement court reporters agreed that they could be subject to "formal disciplinary action, up
to and including termination from employment,"
if
they refused to provide Real time reporting
services. Under the MOU's terms, a refusal to provide Realtime reporting by those court
reporters who signed agreements to do so resulted in a loss
of
the right to receive the Realtime
premium.
The Fresno Court responds on appeal that this claim was not alleged in the unfair
practice charge or pled in Local 535's complaint, but rather is a new contention made for the
first time in Local 535's opening post-hearing brief.
Our examination of the record indicates that the Fresno Court is correct. The
allegations in Local 535's complaint as well as its charge do not raise any issues regarding the
26

discipline language in the pre-hire agreements. The complaint, which mirrors Local 535's
charge, limits its allegations to claiming that the pre-hire agreement changed policy by
demanding that new employees sign an agreement requiring them to provide Realtime
reporting services versus the MOU's provisions that allowed a court reporter to choose
whether to provide Realtime reporting in return for pay differential.
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include
a "clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
Thus, the charging party's burden includes alleging the "who, what, when, where and how"
of
an unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.)
The Board cannot adjudicate Local 535's claims based on the disciplinary procedures in
the pre-hire agreement, because Local 535's factual allegations do not meet the requirements
of
PERB Regulation 32615(a)(5).
21
ORDER
The unfair practice charge in Case No. SA-CE-6-C is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Chair Neuwald and Member McKeag joined in this Decision.
Additionally, our review of the record indicates there were no contentions made by
Local 535 prior to or during the hearing before the ALJ that Local 535 was also litigating the
discipline language in the pre-hire agreement. Under the Board's criteria for adjudicating
unalleged violations discussed above, the proceedings in this case do not allow us to rule on
Local 535's unalleged contentions regarding the discipline language in the pre-hire agreement.
27