Sonoma County Superior Court (PERB 2532C)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1021,
Charging Party,
v.
SONOMA COUNTY SUPERIOR COURT,
Respondent.
Case No. SF-CE-39-C
PERB Decision No. 2532-C
June 26, 2017
Appearances: Weinberg, Roger & Rosenfeld by Anthony J. Tucci, Attorney, for Service
Employees International Union Local 1021; Renne Sloan Holtzman Sakai by Timothy G.
Yeung and Erich W. Shiners, Attorneys, for Sonoma County Superior Court.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by both parties to a proposed decision (attached) by an
administrative law judge (ALJ). The proposed decision concluded that the Sonoma County
Superior Court (Court) violated the Trial Court Employment Protection and Governance Act
(Trial Court Act)1 when it refused to permit union representation at a meeting convened by the
Court pursuant to its duty to provide reasonable accommodation to a disabled employee.
The Court excepts to the proposed decision, urging this Board to overrule its decision in
Sonoma Superior Court (2015) PERB Decision No. 2409-C (Sonoma) wherein PERB held that
the right to union representation applies to the interactive process meetings held as part of the
1 The Trial Court Act is codified at Government Code section 71600 et seq. Unless
otherwise indicated all statutory references herein are to the Government Code.

________________________
employer’s duty to provide reasonable accommodation under California’s Fair Employment &
Housing Act (FEHA) and the Americans with Disabilities Act (ADA).2
Service Employees International Union Local 1021 (SEIU) excepts only to the
proposed remedy, and urges PERB to order the Court to return to the status quo ante and to
make the affected employee whole for the denial of her right to be represented in the
interactive meeting.
The Board has reviewed the hearing record in its entirety, including the hearing
transcript and exhibits, the parties’ briefs to the ALJ, their exceptions and briefs in support
thereof in light of the applicable law. Based on this review, the Board concludes that the
proposed decision is adequately supported by the evidentiary record, and is well-reasoned and
consistent with all relevant legal principles, except as to the remedy. Accordingly, except as to
the remedy, the Board hereby affirms and adopts the proposed decision as the decision of the
Board itself, as supplemented by the following discussion of the parties’ exceptions.
PROCEDURAL BACKGROUND
This case began on December 20, 2013, when SEIU filed an unfair practice charge
alleging that the Court refused to allow a union representative to attend an interactive process
meeting held with Cyndi Nguyen (Nguyen), a trial court employee who had requested
reasonable accommodation for a disability.
The charge was dismissed by the Office of the General Counsel (OGC) based on
Trustees of the California State University (2006) PERB Decision No. 1853-H, (Trustees),
which held there was no right to union representation in interactive process meetings. SEIU
2 FEHA is codified at Government Code section 12900 et seq. The ADA is codified at
42 U.S.C. section 12101 et seq. Because the duty to provide reasonable accommodation under
both of these statutes is nearly identical, we will refer mainly to California’s statute throughout
this decision.
2

appealed the dismissal, and PERB issued Sonoma, supra, PERB Decision No. 2409-C which
overruled Trustees and remanded the case to the OGC for the issuance of a complaint. A
complaint issued alleging that Nguyen requested SEIU’s representation at a meeting to discuss
her request for reasonable accommodation for her disability and the Court denied the request.
This conduct was alleged to have violated Trial Court Act sections 71631, 71633, and 71635.1
and PERB Regulation 32606, subdivisions (a) and (b).
An informal conference did not resolve the dispute and a formal hearing was held on
May 29, 2015. On July 14, 2015, the ALJ issued his decision.
FACTUAL SUMMARY
Nguyen began working for the Court as a court reporter in April 2008. Within six
months, she began to experience pain in her wrists. In 2009, she asked that her desk be
lowered because of the pain in her hands. Other accommodations were made for her such as
temporarily assigning her to a 4-day work week. In 2010, Nguyen asked to be demoted to the
position of Legal Process Clerk (LPC) because of her hand pain, but ultimately did not take
that position. In December 2012, she developed tendonitis in her elbow and the Court gave her
less demanding assignments to allow her to take more rest periods.
By early March 2013, Nguyen could not perform the duties of a court reporter because
of the pain in her hands had become intolerable. She sought medical help, and presented the
Court’s human resources department with a doctor’s note explaining that she could only spend
20 minutes of every hour engaged in typing activities. Nguyen told Court management that
she believed she could perform the clerical duties of an entry level LPC position. The Court
then temporarily assigned Nguyen light clerical duties, while continuing to pay her the higher
salary of a court reporter. Nguyen continued to be treated for her pain, seeing her doctor every
four to six weeks between March and June 2013.
3

In June 2013, Nguyen’s doctor made the restriction on her typing activities permanent,
which meant that she could not return to her position as a court reporter, a job which requires
almost constant typing.
On June 13, 2013, Nguyen presented the Court’s Senior Human Resources Analyst,
Tracy Rankin (Rankin), with the doctor’s latest explanation of restrictions. Rankin informed
the Assistant Court Executive Officer, Cindia Martinez (Martinez), of the doctor’s permanent
restrictions on Nguyen’s keyboarding activity, and the Court set up an interactive process
meeting for June 19, 2013, to be held in Martinez’s office and attended by the two managers
and Nguyen.
Nguyen then contacted her job steward, Kris Ridste (Ridste), and asked that she
accompany her to the June 19, 2013 meeting. As Nguyen explained in her testimony, she
wanted someone “on my side . . . somebody there to maybe catch what I wasn’t getting.”
Nguyen continued: “I don’t’ know how to negotiate anything, I don’t know anything about the
law. I just wanted somebody in my corner.” (Reporter’s Transcript, pp. 26, 49.) Ridste
informed Court management that Michael Viloria, the SEIU organizer/representative and she
would be available to accompany Nguyen to the interactive process meeting on either June 18
or 19, 2013.
After an e-mail exchange between SEIU representatives and Court management
personnel, Martinez ultimately responded that “We do not include union stewards in
interactive [dialogues] as we view them as confidential, since we are discussing medical
conditions.” Martinez went on to explain that even if the employee waived confidentiality, the
Court would still not permit SEIU to attend the meeting because it “does not fall under
Weingarten Rights.” (Proposed decision, pp. 8-9.) At the administrative hearing, Martinez
described her concerns about permitting a union representative in the interactive meetings.
4

________________________
She did not believe that the shop stewards have the expertise to participate in the interactive
meetings. She was concerned about potential delays in scheduling the meetings if a union
representative had to be involved. Finally, meetings that she had attended with union
representatives present, such as grievance meetings or disciplinary investigations, were
adversarial. Because the interactive meetings were supposed to be collaborative endeavors,
Martinez did not believe permitting a union representative in those meetings was appropriate.
The meeting between Nguyen, Martinez and Rankin occurred in Martinez’s office on
June 19, 2013, one of the days Viloria was available. Martinez described the purpose of the
meeting: to determine whether the Court could accommodate Nguyen by assigning her to a job
that she could perform with her existing restrictions. Because Nguyen could no longer perform
the duties of a court reporter, the only positions under consideration at this meeting were in the
LPC classification. The Court initially proposed to place her as an LPC I, but at the top of the
salary scale for that class. Nguyen asked if she could instead be placed as an LPC II. Martinez
denied this request and explained to Nguyen that all new hires started as an LPC I. Martinez
assured Nguyen that after passing a six-month probationary period, she would advance to LPC
II and get a 5 percent raise. The meeting concluded in less than a half-hour, with Nguyen
grateful she still had a job, but “deflated” that she had to take such a large pay cut.3
(Reporter’s Transcript, p. 59.)
Although the Court has a Personnel Plan that sets forth provisions and rules for salary-
setting after involuntary demotion, rules that are replicated in the parties’ MOU, no grievance
or appeal was filed by Nguyen or SEIU challenging her placement in the LPC I position. The
Personnel Plan also has a reasonable accommodation policy which provides for a complaint
3 Nguyen’s salary was reduced by approximately 50 percent.
5

________________________
procedure if an employee believes he or she had been denied reasonable accommodation.
Nguyen did not file any such complaint after the June 19, 2013 decision placing her as an
LPC I. Nor is there anything in the record indicating that she filed any administrative charges
with the Department of Fair Employment & Housing (DFEH) or the Equal Employment
Opportunity Commission (EEOC) alleging that the Court had failed to provide her with
reasonable accommodation.
PROPOSED DECISION
Based on Sonoma, supra, PERB Decision No. 2409-C, the ALJ concluded that the
Court had violated the Trial Court Act by not permitting Nguyen to be represented by SEIU in
the interactive process meeting. The ALJ noted that in Sonoma the Board had considered and
rejected the same concerns expressed by the Court in the administrative hearing, i.e., the
confidentiality of interactive process meetings, the delays caused by union involvement, the
lack of expertise of union representatives, and the transformation of a collaborative process to
one adversarial in nature. Consequently, the ALJ concluded: “the Court did not raise any new
issues which have not already been considered and decided in Sonoma.” (Proposed decision,
p. 15.)
To remedy this violation, the ALJ ordered the Court to cease and desist from its
unlawful conduct, but he rejected SEIU’s request that the status quo be restored by ordering a
new interactive process meeting between Nguyen and Court management with SEIU present. 4
In the ALJ’s view, SEIU contended that it could have negotiated a better deal for Nguyen than
4 The ALJ also rejected SEIU’s request that a Court representative read a speech to
employees drafted by SEIU explaining that the Court had violated the Trial Court Act. In the
ALJ’s words, “Such a ‘shaming’ remedy seems highly inappropriate for a case in which PERB
prior precedent was just overturned. . . .” (Proposed decision, p. 17.) SEIU did not except to
this ruling.
6

she was able to secure. The ALJ rejected this request because there were other avenues for
SEIU to pursue such as the Court’s complaint process or a grievance under the MOU, if it
believed the Court had denied reasonable accommodation to Nguyen.
THE PARTIES’ EXCEPTIONS
The Court
The Court filed no exceptions to the ALJ’s factual findings, and notes that its
exceptions “do not challenge the Chief Administrative Law Judge’s ruling but rather the Board
decision that forced him to rule as he did.” (Court Exceptions, p. 1.) Thus we are presented
with a welcome opportunity to correct the Court’s misapprehension of Sonoma, supra, PERB
Decision No. 2409-C, and to refine or correct points in our opinion in that case that may have
led to misapprehensions.
The Court’s exceptions can be grouped into three topics. First, taking issue with the
Board’s holding in Sonoma, supra, PERB Decision No. 2409-C, it asserts that the Trial Court
Act does not grant a right to union representation at interactive process meetings because such
meetings are neither disciplinary nor grievance meetings. The Court reads Sonoma as
requiring union representation at any meeting that may have an impact on terms and conditions
of employment, which in its view represents an unwarranted expansion of the right of
representation.
Second, the Court asserts that requiring union representation in interactive process
meetings is contrary to the purposes of FEHA and the ADA for several reasons. Because a
union cannot waive employees’ rights under the FEHA or ADA, the Court argues that
“reasonable accommodation is outside the ambit of labor relations statutes such as the Trial
Court Act.” (Court’s Exceptions, p. 10.) The interactive process is intended to be informal
and collaborative, in contrast to grievance or disciplinary investigations, which are more
7

adversarial and more formal, according to the Court. Potential conflicts of interest between the
employee engaged in the interactive process and the union’s interests in representing other
employees in the bargaining unit is another concern articulated by the Court in support of its
claim that Sonoma, supra, PERB Decision No. 2409-C conflicts with the FEHA and ADA.
Finally, the Court asserts that it was denied due process because the Board’s
designation of Sonoma, supra, PERB Decision No. 2409-C as a precedential decision bound
the ALJ to the conclusion he reached. The Court claims that by designating Sonoma as
precedential, it “prejudged the merits of this case and forced the Court to go through the
motions of a hearing with no realistic opportunity to prevail.” (Court Exceptions, p. 16.) It
urges PERB to vacate Sonoma and decide this case on the basis of the administrative record.
SEIU
SEIU objects that the ALJ’s order did not completely cure the Court’s violation of the
Act. By merely ordering the Court to cease and desist from refusing to permit union
representation in interactive process meetings, SEIU asserts that the proposed decision did not
take into account that SEIU could have secured a better outcome for Nguyen if it had been
present at the June 19, 2013 meeting. Specifically, it could have prevented a halving of her
salary and put her in a better position to advance on the wage scale. It also could have
explored higher paying classifications in which Nguyen would have been able to perform,
according to SEIU. Therefore, SEIU requests that PERB order “a return of the status quo ante
with make whole relief and, further, rescind the June 19, 2013 ADA interactive-process
meeting” and order the Court to “re-engage in the interactive process meeting with Nguyen and
her Union Representative, upon her request.” (SEIU Exception, p. 12-13, italics in original.)
8

________________________
DISCUSSION
At the outset it is useful to reiterate what this case is not about and what issues PERB
does not have authority to decide. At issue here is not whether the Court complied with
FEHA/ADA requirements to provide reasonable accommodation to Nguyen.5 Absent a claim
that a refusal to provide reasonable accommodation was motivated by anti-union animus or in
some other way violated any of the collective bargaining laws PERB administers, this agency
has no authority to pass on the “reasonableness” of accommodation offered to Nguyen.
Nor does this case concern any alleged refusal to meet and confer over terms and
conditions of employment. The complaint alleged a violation of Trial Court Act sections
71631 and 71633, which respectively secure the right of employees to be represented by
employee organizations of their own choosing and the right of those organizations to represent
employees.
Before turning to the parties’ specific exceptions, we briefly review our decision in
Sonoma, supra, PERB Decision No. 2409-C, which we incorporate herein to the extent it
conforms with this opinion.
Sonoma - PERB Decision No. 2409-C
In directing that a complaint issue in this case, the Board explained the basis for
concluding that Trustees, supra, PERB Decision No. 1853-H should be overruled and that
SEIU had stated a prima facie case for denial of representation rights under the Trial Court
Act. After examining PERB and judicial precedents regarding the right of representation, the
Board observed that there were two strands of cases that considered representation rights in
5 It is DFEH, the administrative agency charged with administering and enforcing
FEHA, that has jurisdiction to initially consider claims regarding failure to provide reasonable
accommodation. (Gov. Code, §§ 12930, subd. (f); 12940, subd. (m)(1)).
9

________________________
meetings with management. The first strand involves the typical Weingarten6 scenario—an
employer-initiated interview to investigate suspected employee wrongdoing—and adopted the
Weingarten rule. (Rio Hondo Community College District (1982) PERB Decision No. 260.)
The second group of cases, based on the independent right of representation contained
in the Educational Employment Relations Act (EERA),7 confirmed a right to union
representation in situations not involving the investigation of potential wrong-doing. For
example, in Mount Diablo Unified School District, et al. (1977) PERB Decision No. 44, the
Board concluded that EERA section 3543.1, subdivision (a) included the right of employee
organizations to represent their members in a formal grievance proceeding. This right was
extended to informal grievance meetings in Rio Hondo Community College District (1982)
PERB decision No. 272 (Rio Hondo II). In that case, the Board clarified that there is an
independent and broader right to representation in EERA than the parameters of Weingarten,
and it was an error to dismiss the case simply because Weingarten did not apply. Instead,
inquiry must be made as to whether the employees and their organizations had representation
rights under EERA, independent of Weingarten.8 These cases also held that the right of
representation attached to meetings initiated by employees to discuss contractual entitlements
6 See National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 (Weingarten)
holding that an employee who has a reasonable fear that discipline may result from an
investigatory or disciplinary meeting with the employer has a right to union representation at
such a meeting.
7 EERA is codified at Government Code section 3540 et seq.
8 The source of EERA’s representation rights is found in EERA sections 3540
(employees’ right to be represented by organizations in “their professional and employment
relationships with public school employers”); section 3543 (employees’ right to “participate in
the activities of employee organizations . . . for the purpose of representation on all matters of
employer-employee relations.”); and section 3543.1, subdivision (a) (employee organizations
have the “right to represent their members in their employment relations with public school
employers”).
10

(Fremont Union High School District (1983) PERB Decision No. 301; meetings initiated by
employees to discuss with management an appeal of its denial of reclassification request
(Regents of the University of California (1984) PERB Decision No. 403-H); and the right to
consult with a union representative regarding the consequences of signing an
acknowledgement of receipt of documents that potentially affected the employee’s
employment status (Placer Hills Union School District (1984) PERB Decision No. 377 (Placer
Hills). (Sonoma, supra, PERB Decision No. 2409-C, p. 14.)
In Redwoods Community College District (1983) PERB Decision No. 293 (Redwoods),
the Board determined that the employee’s right to union representation in a meeting with a
high-ranking management official concerning her evaluation was based on the language of
EERA section 3540, which guarantees the right of employees “to join organizations of their
own choice, to be represented by the organizations in their professional and employment
relationships with public school employers.” The Redwoods Board opinion then explained the
difference between the Weingarten rule and the broader right of representation under EERA:
Weingarten was intended only to clarify one uncertain aspect of the
right of representation which has been established under the
language of section 7 of the National Labor Relations Act [NLRA],
namely, the extent of that right during a preliminary investigative
procedure conducted by the employer. Certainly, that case need not
be relied upon to establish the right of representation in grievance
processing or arbitration of disciplinary action. (Emphasis added.)
(Redwoods, supra, PERB Decision No. 293, pp. 8-9.)
The Board’s Redwoods decision (Redwoods, supra, PERB Decision No. 293) reached
the Court of Appeal, which affirmed the Board’s holding that the employee was entitled to a
union representative in the meeting in question under the circumstances of the case. However,
the Court stated:
11

Although the precedents do not compel a conclusion that the
discipline element is invariably essential to a right of
representation, under EERA and other California labor statutes
representation should be granted, absent the discipline element,
only in highly unusual circumstances.
(Redwoods Community College Dist. v. Public Employment Relations Bd. (1984) 159
Cal.App.3d 617, 625 (Redwoods v. PERB.) The Court further noted:
Insofar as . . . Decision No. 293, . . . states or necessarily implies
that under the Educational Employment Relations Act the right of
union representation at individual employee-management
interviews will never depend upon a showing that the employee
reasonably believes that the interview may result in disciplinary
action against him or her it is disapproved.
(Id. at p. 626.)
Based on those cases that found a right to union representation in certain limited
circumstances not involving disciplinary investigations, the Board in Sonoma, supra, PERB
Decision No. 2409-C then explained why it did not believe comments made by the Court of
Appeal cautioning against expanding the right of representation in Redwoods v. PERB, supra,
159 Cal.App.3d 617, 625, applied to grievance-type meetings and why it viewed this statement
as dicta and not controlling the instant case.
This is a curious statement very akin to dicta. The Board’s
decision in Redwoods, supra, PERB Decision No. 293 did not
state that discipline would never be a factor in deciding when an
employee is entitled to have a union representative at an
investigatory interview convened by management. Further, the
Board’s decision established limiting parameters. It explained
that the right of representation would not attach to routine “shop
floor” conversations, and probably not to initial evaluation
meetings between an employee and supervisor. The Board’s
decision was based on its precedent, Rio Hondo, supra, PERB
Decision No. 272, which held that EERA sections 3543 and
3543.1(a) guaranteed an employee’s right to have union
representation at an informal step of a grievance procedure. The
12

________________________
Court of Appeals decision did not question these underpinnings
of the Board’s Redwoods opinion.9
(Sonoma at pp. 11-12.)
In its review of various representation cases through the years since the Redwoods court
decision (Redwoods v. PERB, supra, 159 Cal.App.3d 617), the Board noted in Sonoma, supra,
PERB Decision No. 2409-C, that the two strands of representation rights cases had become
conflated and that unfair practice charges were being dismissed because the alleged facts were
analyzed only under the Weingarten analysis. For example, in Berkeley Unified School
District (2002) PERB Decision No. 1481, the Board dismissed allegations that the employer
had violated EERA when it refused union representation to a group of three employees who
sought to discuss their caseload with their supervisor. Because there was no potential for
discipline and no “highly unusual circumstances” present, the Board concluded there was no
right to representation. Absent from the Berkeley decision was any analysis of Rio Hondo II,
supra, PERB Decision No. 272 or any other of the cases that based the right of representation
on EERA’s broader articulation of that right.
The Board found the same fault in Trustees, supra, PERB Decision No. 1853-H, the
case Sonoma, supra, PERB Decision No. 2409-C overruled. The charge alleging an unfair
practice by the employer that denied requested union representation in an interactive process
meeting was analyzed only under Weingarten and the “highly unusual circumstances” criteria
of Redwoods, supra, PERB Decision No. 293.
9 It is also worth noting that the judicial decisions reviewed by the Court of Appeal in
Redwoods v. PERB, supra, 159 Cal.App.3d 617 involved only disciplinary situations—either
investigations or disciplinary proceedings. For these reasons we conclude that the Court did
not intend to disturb PERB’s earlier rulings in Rio Hondo, supra, PERB Decision No. 272 or
Mount Diablo, supra, EERB Decision No. 44.
13

Sonoma concluded: “There is a right to represent and be represented at grievance-type
meetings, regardless of whether the circumstances are ‘highly unusual,’ because of the rights
guaranteed by EERA sections 3540, 3543, [subd.] (a) and 3543.1, [subd.] (a).” (Sonoma,
supra, PERB Decision No. 2409-C, p. 14.)
The Board then noted that the Trial Court Act contains a nearly identical provision to
EERA regarding the purpose of the Act, i.e., “to promote the improvement in personnel
management and employer-employee relations . . . by providing a uniform basis for
recognizing the right of trial court employees to . . . be represented by those organizations in
their employment relations with trial courts.” (Trial Court Act, § 71630, subd. (a).) Based on
this purpose and the right of trial court employees to “participate in the activities of employee
organizations of their own choosing for the purpose of representation on all matters of
employer-employee relations” (Id. at § 71631) and the right of employee organizations to
represent their members in “their employment relations” (Id. at, § 71633), the Board concluded
that it was appropriate to look to EERA in interpreting the Trial Court Act.
After considering the purposes of the interactive process and various FEHA regulations
(Sonoma, supra, PERB Decision No. 2409-C, pp. 16-19), the Board concluded that the
interactive process meetings was more like grievance-type meetings than investigatory-
discipline meetings because: 1) both grievance-type meetings and the interactive process are
initiated by the employee (or in the case of a grievance, the union), rather than the employer;
2) both the interactive process meeting and a grievance-type meeting envision a process of
give-and-take, a mutual exploration of a resolution, rather than an investigation of suspected
wrongdoing; 3) both the grievance-type meetings and interactive process meetings may
involve terms and conditions of employment in which all parties have an interest. (Id. at p.
20.) Based on this analysis, PERB held that the employees’ right of representation includes the
14

________________________
right to have a union representative attend interactive process meetings convened to explore
possible reasonable accommodations for an employee’s disability. The union’s right to
represent includes the same right, triggered only by the employee’s request. (Id. at pp. 24-25.)
The issues decided in Sonoma, supra, PERB Decision No. 2409-C were solely legal
matters, as the Board assumed the facts alleged in the unfair practice charge were true. (San
Juan Unified School District (1977) EERB10 Decision No. 12; Trustees of the California State
University (Sonoma) (2005) PERB Decision No. 1755).
We remain persuaded of the merits of that decision and have no reason to revisit the
Court’s arguments previously considered. However, we take this opportunity to address new
arguments and to clarify parts of Sonoma that the Court’s exceptions have brought to our
attention.
Sonoma Applies Only to Interactive Process Meetings
In its exceptions, the Court objects to that part of the analysis in Sonoma that
characterized the interactive process as more like a grievance than an investigatory interview
that could reasonably lead discipline. What the Board said in Sonoma was:
The interactive process differs from those meetings that PERB
has previously held trigger the right to representation. It is
clearly not a traditional Weingarten meeting, because it is not
convened by the employer for the purpose of investigating
suspected employee wrong-doing. Nor is it, strictly speaking, a
grievance meeting because it does not arise out of a negotiated
grievance procedure or other claim that the employer has violated
the MOU. However, unlike an employer-initiated meeting
pursuant to its investigation of employee conduct, the interactive
process more closely resembles the grievance process. Most
frequently, it is the employee’s request for reasonable
accommodation that triggers the employer’s obligation to initiate
10 Before January 1, 1978 PERB was known as the Educational Employment Relations
Board.
15

________________________
the interactive process.11 Both the interactive process and
grievance procedures involve orderly dialogue between employer
and employee (or exclusive representative) that envisions give-
and-take and compromise in the spirit of reaching resolution after
each side considers in good faith the other’s position. Both the
grievance procedure and the interactive process may involve
terms and conditions of employment in which all parties have an
interest. For the employee, a successful interactive process may
mean the difference between full employment or being
unemployed. He or she could benefit from union representation
in the process for reasons similar to those the Board cited in
Redwoods, supra, PERB Decision No. 293.12
(Sonoma, supra, PERB Decision No. 2409-C, p. 19-20.)
According to the Court, the Board’s reasoning on this subject was not sound because
grievances involve an assertion of rights under collective bargaining agreements or the
employer’s grievance policy and because the interactive process is “collaborative while [the
grievance process] is adversarial.” (Court’s Exceptions, p. 6.) The Court also excepts to the
Board’s purported reliance on Placer Hills, supra, PERB Decision No. 377 for the proposition
that an employee has a right to union representation at any meeting with management to
discuss matters having a potential impact terms and conditions of employment.
To characterize interactive process meetings as “collaborative” and grievance meetings
as “adversarial” is a gross over-generalization based more on wishful thinking than empirical
evidence. Of course the intent of interactive process meetings is collaborative, but a
breakdown of hoped-for collegiality can be easily imagined when an insistent employee, who
11 We recognize that the employer may also initiate the interactive process even if the
employee has not requested a reasonable accommodation. That fact does not change our
analysis, however, because the purpose and scope of the interactive process remains the same.
12 The reasons cited in Redwoods included assisting the employee in presenting “clear,
cogent arguments and facts supporting his/her point of view . . . [to] act as a buffer in a
confrontation that is filled with potential acrimony, a function obviously beneficial to both
sides.” (Redwoods, supra, PERB Decision No. 293, p. 7.)
16

stands to be out of work if reasonable accommodations are not provided, is denied the
accommodation he or she seeks. Similarly, not all grievance meetings result in an adversarial
proceeding.
But whether the interactive process meeting is adversarial or collaborative or whether it
is more similar to a grievance-type meeting than it is like a Weingarten meeting is a minor
point. The reason employees are entitled to union representation in an interactive process
meeting was summed up perfectly by the ALJ in the proposed decision:
The instant case involves probably the most critical point in time
in which an employee would have a need for a union
representative for purposes of reasonable accommodation/fitness
for duty; when medical restrictions on their face question the
employee’s ability to perform the essential functions of their
position with or without reasonable accommodation. In such a
situation, an employer may consider discharging an
employee. . . . Indeed, other than a disciplinary action, one cannot
imagine a greater need where an individual employee would
request representation . . . or the exclusive representative would
have the corresponding right to represent its members in their
employment relations with the Court.
(Proposed decision, p. 15.)
As the Board explained in Sonoma, supra, PERB Decision No. 2409-C, regulations
implementing the FEHA provide certain rights to both employees and employers, and a union
representative “can serve a useful function of defending and asserting the employee’s rights
under the FEHA regulations” as well as explaining to the employee the employer’s rights and
possible consequences of refusing offered accommodations. (Id. at p. 19.) The basis for our
conclusion that interactive meetings merit union representation on the employee’s request is
rooted in the statutory guarantee of the Trial Court Act section 71631: employees “shall have
the right to form, join and participate in the activities of employee organizations of their own
choosing for the purpose of representation on all matters of employer-employee relations.”
17

(Emphasis added.) Unlike a “shop floor conversation” or meetings held between management
and employees for the purpose of giving direction, or conveying (as opposed to investigating) a
disciplinary decision, the potential consequence of the interactive process can be the difference
between an employee being able to continue earning a living or finding herself out of work.
This is the essence of “employer-employee relations.” That is why employees are entitled to
representation in these meetings, regardless of how similar or dissimilar the meetings are to a
grievance process.
The Court asserts that Sonoma, supra, PERB Decision No. 2409-C incorrectly relied on
Placer Hills, supra, PERB Decision No. 377 for the proposition that an employee has a right to
representation in any meeting with management to discuss matters potentially having an
impact on significant terms and conditions of employment, noting that the holding in Placer
Hills was narrower. We agree that Placer Hills held that an employee has the right to consult
with a union representative prior to signing documents that were placed in his personnel file.
Specifically, Placer Hills stated:
We find that an employee’s right to representation includes the
right to consult with a union representative likely to be more
knowledgeable when that employee is asked to supply immediate,
written response to material placed in his/her personnel file. The
right to such representation is justified when the employee
reasonably believes the written response to such material will
likely be reviewed by superiors when promotions, transfers or
evaluations are prepared.
(Id. at p. 37. ) The decision went on to explain the basis for this conclusion, explicitly
disclaiming reliance on Weingarten. Instead, it noted: “The employee’s right to prior
consultation with a union representative derives from the right to participate in the activities of
an employee organization, particularly the representation of its members in their employment
relationship with the public school employer.” (Id. at p. 40.) Although the Court correctly
18

________________________
notes that Placer Hills involved a right to consult with a union representative, it was not error
for the Board in Sonoma to rely on that decision for the more general proposition that
representation rights under EERA and the MMBA are rooted in statutory guarantee of the right
to representation in the “employment relationship.” (Sonoma, supra, PERB Decision No.
2409-C.) The Board’s reliance on Placer Hills was especially appropriate because of the
discussion in that case of the importance of the right of employees to consult with their union
representative who is likely to be more knowledgeable than the employee about workplace
rights. That is precisely why Nguyen wanted her union representative present in her
interactive meeting.
We recognize that the right of representation on “all matters of employer-employee
relations” is not limitless and is not a license to turn the workplace into a terrain where no
conversation can occur between management and employees without a union representative
being present.
There is no doubt that by overturning Trustees, supra, PERB Decision No. 1853-H, the
Board expanded the right of representation to include union representation in such meetings
upon the employee’s request. However, in doing so, the Board did not jettison the language of
Redwoods, supra, PERB Decision No. 293, that the independent right of representation does
not apply to run-of-the-mill “shop floor” conversations.13 Nor did we intend to call into
question PERB’s holdings in City of Modesto (2009) PERB Decision No. 2022-M, proposed
decision, p. 10 or San Bernardino County Public Defender (2009) PERB Decision No. 2058-M
13 In Sonoma, supra, PERB Decision No. 2409-C, p. 11, PERB quoted Redwoods,
supra, PERB Decision No. 293 with approval: “. . . the Board’s decision established limiting
parameters. It explained that the right of representation would not attach to routine ‘shop
floor’ conversations, and probably not to initial evaluation meetings between an employee and
supervisor.”
19

(no right to representation in meeting to give work directives). See also State of California
(Department of California Highway Patrol) (1997) PERB Decision No. 1210-S, explaining the
distinction between an investigatory meeting for which a right of representation attaches, and
an informal meeting to give work performance direction in which there is no give and take
regarding the consequences of the employee’s conduct.
The Board explained in Sonoma, supra, PERB Decision No. 2049-C why interactive
process meetings were not like routine, run-of-the-mill conversations between employees and
supervisors. We noted first that the interactive process serves two purposes: 1) to determine
whether reasonable accommodation is needed, and 2) if so, to identify what reasonable
accommodation might be offered by the employer. (Id. at p. 17.) The Board then reviewed
various FEHA regulations governing the interactive process, including those pertaining to the
employer’s duty to identify possible reasonable accommodations, taking into account the
employee’s preferences, and those that provide protections for the employee, such as the
prohibition on the employer requiring the employee to be fully healed before he or she may
return to work. (Id. at p. 18.) The Board noted that FEHA regulations protect the employer’s
interest as well, e.g., it may reassign an employee to a lower paid position if there are no
funded vacant positions for which the disabled employee is qualified, and that an employee’s
refusal to accept the offered reasonable accommodation “may render the individual unable to
perform the essential functions of the current position.” (Id. at p. 18, quoting FEHA Reg.,
§ 11068(f)).
The Board further explained how the FEHA regulations defining “reasonable
accommodation” demonstrate an intersection with negotiable terms and conditions of
employment. Reasonable accommodations include, but are not limited to paid or unpaid
20

leaves of absence, reassignments to vacant positions, transfers, job restructuring, part-time or
modified work schedule, etc. (Sonoma, supra, PERB Decision No. 2049-C at p. 19.)
For these reasons, an interactive process meeting can be imbued with freighted
consequence that is not present in a routine informal meeting to provide direction or correction.
Unlike informal communication between management and an employee, the interactive
process meetings are required by law and governed by the FEHA regulations discussed in
Sonoma. (Sonoma, supra, PERB Decision No. 2049-C.) Most critically, the potential
outcome of the interactive process could be a loss of income, or loss of a job, if the employee
refuses a reasonable accommodation and is unable to perform the essential functions of the job.
Simply stated, the stakes are much higher in an interactive process meeting than in informal
meetings. As a general matter, routine “shop floor” conversations do not carry the potential for
income reduction or a complete loss of employment. Thus, Sonoma cannot reasonably and
should not be read to open the representation floodgates on all meetings between management
and employees. Neither that case nor this decision stands for that proposition. We affirm our
holding in Sonoma that employees are entitled to union representation upon request in
interactive process meetings convened for the purpose of determining whether reasonable
accommodation is needed, and if so, what that accommodation will be.
The Structure of the Trial Court Act Does Not Narrow Representation Rights
The Court asserts that under the Trial Court Act “employer-employee relations” is a
term of art limited to labor relations and does not encompass every facet of the relationship
between employee and employer. It points to other articles of the Act that govern relations
between individual employees and the trial court employer, such as Article 2, 4, 5, and 6,
which concern respectively the authority to hire, employment selection and advancement,
employment protection, and personnel rules. According to the Court, “[t]hese other subjects
21

________________________
[classification and compensation, employment protection, personnel files, selection and
advancement] are certainly part of the employment relationship but under the plain language of
the Act they do not constitute matters of ‘employer-employee relations,’ which are exclusively
governed by Article 3.” (Court Exceptions, p. 9.)
The Trial Court Act, unlike the Meyers-Milias-Brown Act (MMBA)14 or EERA, is both
a collective bargaining law and an employment rights statute. For example, Trial Court Act
section 71623.5 requires trial courts to provide workers’ compensation coverage for court
employees. Sections 71626 and 71626.5 address retirement benefits and retiree insurance
benefits. Section 71650, et seq. requires trial courts to develop an employment protection
system that includes progressive discipline and for-cause dismissal. Section 71652 decrees
that layoffs shall be based on seniority in the class of the layoff. Section 71653 requires trial
courts to establish due process for disciplinary decisions, including the appointment of an
impartial hearing officer, the right to call witnesses, the right of the employee to representation
in such process, and a right of judicial review of an adverse disciplinary decision.
The Court’s argument is not well developed and very oblique, but it seems to claim that
the employment subjects addressed in Articles 2, 4, 5, and 6 of the Trial Court Act are outside
the purview of representation by an employee organization because they do not constitute
matters of “employer-employee relations” which are “exclusively governed” by Article 3,
Labor Relations. (Court Exceptions, p. 9.) What this argument misses is that the Trial Court
Act consistently refers to the duty to meet and confer in good faith throughout, not confining
that duty to matters described in Article 3. In Article 1, Definitions, such matters as personnel
rules, promotions, and transfers are defined, “subject to meet and confer in good faith.” (Trial
14 The MMBA is codified at Government Code section 3500 et seq.
22

Court Act, § 71601, subds. (f), (g), (j).) The very implementation date of the Trial Court Act,
January 1, 2004, was subject to a later date if mutually agreed to by a trial court and
representatives of a recognized employee organization. (Trial Court Act, § 71615.)
Within Article 2, Authority to Hire, Classification and Compensation there are several
references to the role of an exclusive bargaining representative. Trial Court Act section 71625,
subdivision (c) provides that policies regarding leave accrual are subject to modification
pursuant to the terms of a memorandum of understanding, or upon revision to personnel
policies, “subject to meet and confer in good faith.” Section 71629 provides that the
implementation of the Trial Court Act shall not cause a modification of the level of
employment benefits. With respect to employees “who are represented by a recognized
employee organization, the level of . . . benefits . . . may not be modified until after the
expiration of an existing memorandum of understanding,” unless by mutual agreement
otherwise. (Trial Court Act . § 71629, subd. (b).)
Article 4 of the Trial Court Act requires each trial court to establish a system of
selection and advancement, and develop personnel rules regarding hiring, promotion, transfer
and classification. Courts are further directed to meet and confer in good faith with
representatives of recognized employee organizations on those rules that cover matters within
the scope of representation. (Trial Court Act , §§ 71640 and 71641.) Section 71651, subd. (a)
directs trial courts to include progressive discipline in personnel policies, “subject to meet and
confer in good faith.” The same is true for the development of procedures and rules governing
layoffs (Trial Court Act , § 71652); for due process hearings, including a process for review of
a hearing officer’s report (Trial Court Act , §§ 71653, 71654); for rules regarding employees’
access to their personnel files (Trial Court Act , § 71660).
23

In sum, the Trial Court Act read as a whole establishes a “floor” of certain guaranteed
employment rights and benefits and assures the rights of employee organizations to meet and
confer regarding those rights and benefits, provided they are within the scope of representation
as defined in Trial Court Act section 71634. That scope is defined broadly: “[t]he scope of
representation shall include all matters relating to employment conditions and employer-
employee relations, including, but not limited to, wages, hours, and other terms and conditions
of employment.” (Trial Court Act, § 71634, subd. (a), emphasis added.) As explained earlier,
the very purpose of the interactive process relates to the seminal “employment condition,”—
whether the employee can be accommodated in order to have employment.
Contrary to the Court’s implication, the Legislature did not intend to confine collective
bargaining rights to Article 3, but instead recognized that representative employee
organizations must have a role in the development of policies and rules regarding all matters
set forth in Articles 2, 4, 5, and 6 of the Trial Court Act. 	We therefore reject the Court’s
argument that the structure of the Trial Court Act suggests that an employee’s right to
representation and the employee organization’s right to represent differs from those rights
secured by the other statutes administered and interpreted by PERB.
Sonoma - PERB Decision 2409-C Does Not Conflict with FEHA Regulations
The Court asserts that PERB has misread FEHA regulations, which in the Court’s view,
permits a representative in an interactive process meeting only when necessary because of the
employee’s disability. According to the Court, “there is no support in the FEHA regulations
for the Board’s implication that they contemplate the assistance of a union representative in the
24

________________________
interactive process.”15 (Court Exceptions, p. 12.) What the Board actually said in Sonoma
was, “The implementing regulations [of FEHA] do not preclude the presence of a
representative for the employee during the interactive process.” (Sonoma, supra, PERB
Decision No. 2409-C, p. 17.) In other words, FEHA regulations do not prohibit union
representation.
The right of representation was rooted in the Board’s interpretation of the Trial Court
Act and related precedent, not the FEHA regulations. Sonoma, supra, PERB Decision
No. 2409-C referred to the FEHA regulations to demonstrate the purpose of the interactive
process and to show how that process potentially intersects with matters related to employer-
employee relations, including matters within the scope of bargaining, such as wages, transfers,
leaves, reassignments, and the like.
The Court has failed to persuade us that the discussion in Sonoma, supra, PERB
Decision No. 2409-C regarding FEHA regulations is incorrect or otherwise needs to be
revisited or clarified. Accordingly we deny this exception.
Sonoma - PERB Decision No. 2409-C Does not Create Irreconcilable Conflicts of
Interest
The Court renews its argument that potential conflicts between the interests of the
individual disabled employee and the Union’s interest in representing the entire bargaining unit
requires the Board to reconsider Sonoma, supra, PERB Decision No. 2409-C. It urges reversal
“to ensure that disabled employees can fully exercise their right to reasonable
accommodation.” (Court Exceptions, p. 14.) The Court speculates that because there is no
duty under the MMBA to fairly represent an individual in enforcing statutory rights such as
15 The Court has permitted an employee to bring a “support person” to an interactive
process meeting in the face of a medical condition that required assistance. That support
person happened to be the employee’s union representative.
25

________________________
FEHA, a union would resist the individual employee’s reasonable accommodation in order to
“fulfill its duty to other employees, while leaving the disabled employee with no recourse
against the union for doing so.” (Court’s Exceptions, p. 13.)
We disagree that such speculative concerns justify overruling Sonoma, supra, PERB
Decision No. 2409-C. As a general rule, the exclusive representative has no duty under the
duty of fair representation to represent an employee who seeks to enforce anti-discrimination
statutes, absent a relevant provision in the CBA. (Greene v. Pomona Unified School District
(1995) 32 Cal.App.4th 1216.) Yet the Court points to no evidence or other reasonable basis for
its assertion that this supposed conflict of interest would prevent or undermine the purpose of
the interactive process or an individual employee’s right to reasonable accommodation. The
ultimate decision as to what accommodation is “reasonable” is ultimately up to the employer,
after going through the interactive process with a genuine attempt to accommodate the
employee. If the employee believes he or she has not received reasonable accommodation, he
or she can vindicate his or her rights to reasonable accommodation with the Department of Fair
Employment & Housing.16 The interactive process meeting is but one step in the process of
obtaining reasonable accommodation, and as the Board’s decision in Sonoma made clear, the
union’s presence at such meetings depends entirely on the employee’s request for union
representation. If the employee distrusts the union’s motives or doubts its ability to be
effective in the meeting, he or she need not request the union’s assistance.
We considered the Court’s concerns regarding potential conflicts of interest between
the union and the individual employee in Sonoma, noting that the FEHA regulations and
16 Labor organizations are also prohibited against discriminating against “any person
employed by an employer” on the basis of physical or mental disability, among other reasons.
(Gov. Code, § 12940, subd. (b).) The Court’s assertion that an employee has no recourse
against a union is flatly incorrect.
26

________________________
various court decisions have clearly articulated that when a requested accommodation conflicts
with the provisions of an MOU, the request must yield to the MOU, unless the exclusive
representative agrees to an exception. (Sonoma, supra, PERB Decision No. 2409-C p. 23.)
Thus, the law has effectively resolved potential conflicts between MOUs and individual
requests for reasonable accommodation. If the Court is concerned that SEIU will unreasonably
withhold its agreement to a modification or exception to its MOU, we again note that such a
possibility is entirely speculative. More importantly, nothing in the Board’s decision alters an
employee’s remedies if that employee believes the employer or the union have violated the
FEHA.
The Court renews in its exceptions its assertions that requiring union representation in
interactive process meetings would delay the process and further asserts that there was no
evidence in this case that the union representative has successfully negotiated a reasonable
accommodation with an employer. This argument ignores the fact that the union representative
was available on the very day the meeting took place with Nguyen, a fact that was
communicated to the Court. Nor is it surprising or relevant that the union representative
allegedly had not negotiated a reasonable accommodation, since this employer refused to
permit union representatives to represent employees in the interactive process.
The Court Was Not Prejudiced by the Precedential Effect of Sonoma - PERB Decision
No. 2409-C
The Court takes issue with the fact that PERB exercised its discretion to designate
Sonoma, supra, PERB Decision No. 2409-C as a precedential decision pursuant to PERB
Regulation 32320, subdivision (d).17 The Court claims that by designating Sonoma as
17 PERB Regulation 32320 subdivision (d) authorizes “a majority of the Board
members issuing a decision or order pursuant to an appeal filed under Section 32635 [review
of dismissals] shall determine whether the decision or order . . . shall be designated as
27

________________________
precedential, the Board “tied both the Chief ALJ’s and the Court’s hands in the subsequent
evidentiary hearing,” because the ALJ was bound to follow Sonoma. (Court’s Exceptions, p.
15.) Therefore, the only way the Court could prevail was to establish facts different from those
alleged in the unfair practice charge, according to the Court.18
We reject the Court’s argument. Rather than taking issue with the proposed decision,
the apparent purpose of this exception is to lecture this Board about its practice of designating
certain decisions as precedential, urging the exercise of caution when setting out new rules of
law in a decision remanding for a complaint.
The unfair practice charge in Sonoma, supra, PERB Decision No. 2409-C was
dismissed by the Office of the General Counsel based on Trustees, supra, PERB Decision
No. 1853-H, which held that there was no right to representation in interactive process
meetings. By overruling Trustees, there is no doubt that Sonoma established a new law or
policy and addressed a legal issue of continuing interest. The Board’s designation of Sonoma
as precedential was squarely within the regulatory parameters describing when a decision
should be considered precedential.
In Sonoma, supra, PERB Decision No. 2409-C, the Board ruled on the purely legal
question of whether the Trial Court Act provides a right of representation for employees in
precedential.” In determining whether the decision shall be precedential, the Board may
consider several factors, including whether the decision “establishes new law or policy,”
modifies, clarifies or explains existing law of policy, or addresses a legal or factual issue of
continuing interest.
18 In the procedural posture of Sonoma, supra, PERB Decision No. 2409-C, the Board
was required to accept as true the facts alleged by the charging party, SEIU. Once a complaint
issued on the charge and a hearing convened, the Court had a full opportunity to establish any
truthful facts it chose. Because the Court did not except to the ALJ’s findings of fact, we
presume the Court was satisfied with the record, and cannot be heard to complain that Sonoma
prevented it from establishing the record as the Court saw fit.
28

interactive process meetings. The Board decided as a matter of law that the facts alleged in the
unfair practice charge stated a prima facie case for a violation of representation rights. In order
to allow the case to get to a hearing where a record could be fully developed, the Board had to
overrule Trustees and reverse the dismissal of the charge.
The Court has not been disadvantaged by the procedural posture of this case, despite its
implication that the Board has “prejudged the merits of this case.” (Court’s Exceptions, p. 16.)
It urges the Board to vacate Sonoma, supra, PERB Decision No. 2409-C and decide “this
appeal based on the record now before it.” (Court’s Exceptions, p. 16.) First, the Board has
decided this appeal based on the record before it. Second, this argument is undermined by the
fact that the Court has not pointed to a single fact in the record to support its argument that
Sonoma was wrongly decided. By the Court’s own admission (demonstrated by the absence of
exceptions to any finding of fact), there was no evidence that provides any basis for the Board
to vacate Sonoma. Instead, the Court disagrees with the Board’s legal conclusions. The fact
that those legal conclusions were first articulated in Sonoma, and followed by the ALJ when he
reached his legal conclusions based on the evidence presented to him and affirmed by this
Board, does not mean that PERB has prejudged the merits of this case. It simply means that
the Court disagrees with the Board’s decision in Sonoma and has been unsuccessful in
persuading the Board to overrule that decision. This does not deprive the Court of due process.
The Remedy
SEIU excepts to the proposed remedy, asserting that the ALJ erred by not ordering a
restoration of the status quo ante with make-whole relief. Specifically, SEIU asks that PERB
“rescind the June 19, 2013 meeting” between Nguyen and the Court, and order the “Court and
Nguyen to engage in the ADA interactive-process meeting with the presence of a Union
Representative, upon her request.” (SEIU Exceptions, p. 5.) According to SEIU, “[h]ad the
29

Union been present, Nguyen could have used her exclusive bargaining representative to
negotiate on her behalf to prevent the Court from halving her wage. . . .” (Id. at p. 7.) It
contends that the Court “continues to profit from its unlawful conduct by placing her in the
lower job classification. . . .” (Id.) In sum, SEIU urges the Board to give the Union the
opportunity to attempt to obtain the best deal for Nguyen. (SEIU Exceptions, p. 10.) While
SEIU does not specify by what measure the Board should make Nguyen whole, it contends that
some monetary remedy is the only way to assure that the Court not benefit from its unlawful
conduct.
There is no doubt that PERB is empowered to:
take any action and make any determinations in respect to these
charges or alleged violations as the board deems necessary to
effectuate the policies of this chapter.
(Trial Court Act , § 71639.1, subd. (b) and EERA , § 3541.3, subd. (i).) Yet, the Board also
has discretion to withhold various remedies at its disposal when doing so effectuates the
purpose of the labor relations statute, or when there is no evidence that the charging party was
qualified for the requested benefit. (San Diego Teachers Assn. v. Superior Court (1979) 24
Cal.3d 1, 13; Jurupa Unified School District (2015) PERB Decision No. 2458, p. 8.) Such is
the case here.
Since the interactive process meeting has already occurred, it is not possible to
“rescind” the meeting. However, we agree with SEIU that Nguyen should be afforded an
opportunity to attend a second interactive process meeting with her SEIU representative, if she
chooses. This remedy would do as much as possible to restore Nguyen and SEIU to the
position they were in prior to the unfair practice by providing them the opportunity to revisit
reasonable accommodation matters with the Court. (Redwoods, supra, PERB Decision No.
293; Eastern Sierra Unified School District (1983) PERB Decision No. 312.)
30

SEIU also urges that PERB order “make-whole” relief based on the theory that, but for
the wrongful denial of union representation at the interactive process meeting, Nguyen would
have not suffered the demotion and salary reduction. (SEIU Exceptions, p. 7.) We deny this
request for multiple reasons that are peculiar to this case. First, ordering back pay measured by
Nguyen’s salary as a court reporter would produce an unjustifiable windfall for Nguyen. It
was established without contradiction that Nguyen could no longer perform the functions of a
court reporter at the time the interactive process meeting occurred on June 19, 2013. Ordering
the Court to compensate her as a court reporter for any period after that date would be
unjustifiable. Likewise, it would also be entirely inappropriate for the Board to restore Nguyen
to her former court reporter position prospectively as a remedy for this unfair practice, because
such an order presumes that she was wrongfully removed from the court reporter position. The
record established that Nguyen could not perform the essential functions of a court reporter
and was therefore not entitled to the position after June 19, 2013.
A monetary make-whole remedy measured by reference to some position or wage
classification other than the court reporter position is further unwarranted because there is no
objective measure of wage loss for Nguyen. SEIU’s assertion that it could have negotiated a
better deal for Nguyen is total speculation. We cannot guess what the Court may have offered
her if SEIU were present at the June 19, 2013 meeting. There is therefore no appropriate
measure of damage. (Regents of the University of California (Davis, Los Angeles, Santa
Barbara and San Diego) (1990) PERB Decision No. 842-H, p. 17 [back pay not appropriate
remedy where the outcome of negotiations is speculative]; City of Pasadena (2014) PERB
Order No. Ad-406-M, p. 14.)
Moreover, any assertion that there is a monetary damage to remedy assumes that the
Court’s offer to place Nguyen as an LPC I was not a reasonable accommodation to her
31

________________________
disability. We have no jurisdiction to rule on that question and therefore cannot remedy any
failure to provide reasonable accommodation.19 For this reason, Capistrano Unified School
District (2015) PERB Decision No. 2440 and Placer Hills, supra, PERB Decision No. 377 are
inapposite precedents regarding a remedy in this case. As noted previously, this case is not
about whether the Court-offered accommodation was “reasonable” within the meaning the
FEHA. This decision is instead limited to determining that the Trial Court Act provides a right
of representation in the interactive process meeting upon the employee’s request. This is a
right held by the employee and the exclusive representative, upon the employee’s request. The
only remedy that cures a denial of the respective representation rights in this case is to require
a second interactive process meeting with an SEIU representative present, if requested.
We find appropriate and ample authority for the remedy ordered here in Redwoods,
supra, PERB Decision No. 293, where an employee was improperly denied union
representation in an employer-conducted meeting to answer questions about her negative
performance evaluation. After concluding that she was entitled to union representation
because the meeting with a high-level management official imbued it with a sense of appellate
formality, PERB ordered that the employer provide the employee with a new opportunity to
appeal her evaluation and permit union representation in the process. (Id. at p. 10.)
Because we assume that the Court provided Nguyen with a reasonable
accommodation,20 and because it was uncontroverted that she cannot perform the essential
19 We note that the duty to provide reasonable accommodation does not require an
employer to offer the “best” accommodation or the one favored most by the employee.
(Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228; Soldinger v. Northwest
Airlines, Inc. (1996) 51 Cal.App.4th 345, 370; Cal Code Regs., tit. 2, § 11068, subd. (e).)
20 Neither Nguyen nor SEIU pursued any remedy contained in the MOU or provided by
the Court’s appeal procedures to challenge the accommodation provided by the Court. Nor
does the record reflect that Nguyen sought any remedy from the DFEH or EEOC concerning
32

________________________
functions of her former position as a court reporter, ordering a rescission of the
accommodation previously provided could render Nguyen out of a job. Since the wrong we
are authorized to remedy is the Court’s denial of union representation in the interactive process
meeting, not an alleged denial of reasonable accommodation, we conclude that as in
Redwoods, supra, PERB Decision No. 293, it is most appropriate to restore to Nguyen and to
SEIU their respective representation rights by ordering a second interactive process meeting
upon Nguyen’s request, at which she may be represented by SEIU, if she chooses.
Equitable considerations further counsel against a back pay remedy. Sonoma, supra,
overturned what was a settled rule in Trustees, supra, PERB Decision No. 1853-H, and
announced a new rule. That decision and this one is not merely applying established rules of
law to new factual situations. Before Sonoma, the parties could not have anticipated that
Trustees would be overturned. Under these circumstances and for the other reasons discussed
above, a back pay remedy would not effectuate the purposes of the Trial Court Act and would
not be fair to the Court. Back pay in this case would not serve a purpose of deterring the Court
from wrongful conduct, because at the time it denied Nguyen union representation, it was
acting in conformity with the rule set forth in Trustees.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Sonoma County Superior Court (Court) violated the Trial Court
Employment Protection and Governance Act (Trial Court Act), Government Code sections
71631, 71633, and 71635.1 and PERB Regulation 32606, subdivisions (a) and (b), by
an alleged failure by the Court to provide reasonable accommodation. Ordering back pay in
this case would essentially reward SEIU and Nguyen for sleeping on their right to contend the
accommodation was not reasonable.
33

interfering with its employees’ rights to be represented by SEIU when it denied Nguyen’s
request to be represented by a Service Employees International Union Local 1021 (SEIU)
representative at her June 19, 2013 interactive process meeting to explore possible reasonable
accommodation alternatives.
Pursuant to section 71639.1 of the Government Code, it hereby is ORDERED that the
Court and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with employees’ right to have a union representative at
interactive process meetings to explore possible reasonable accommodation alternatives.
2. 	Denying SEIU the right to represent its employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Upon request by Cyndi Nguyen (Nguyen), the Court shall conduct an
interactive process meeting to consider her June 2013 request for reasonable accommodation.
The Court shall permit SEIU to represent Nguyen at this meeting upon her request for such
representation.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the Court customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the Court, indicating that it will comply with the terms of this Order. Such
posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced, or covered with
any other material. In addition to physical posting of paper notices, the Notice shall be posted
by electronic message, intranet, internet site, and other electronic means customarily used by
34

the Court to communicate with its employees in the bargaining units represented by SEIU.
3. 	Written notification of the actions taken to comply with this Order shall be made
to the General Counsel of the Public Employment Relations Board (PERB or Board), or the
General Counsel’s designee. Respondent shall provide reports, in writing, as directed by the
General Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on SEIU.
Chair Gregersen joined in this Decision.
Member Banks’ concurrence and dissent begins on page 36.
35

________________________
BANKS, Member, concurring and dissenting: Consistent with our decision in Sonoma
County Superior Court (2015) PERB Decision No. 2409-C (Sonoma), I agree with the majority
that the representational rights guaranteed to employees and employee organizations by the Trial
Court Employment Protection and Governance Act (Trial Court Act)1 extend to interactive
process meetings convened under state and federal reasonable accommodation laws. I also agree
with the majority that the record in this case supports the findings and conclusions of the
administrative law judge (ALJ) that the Sonoma County Superior Court (Court) violated these
rights by refusing to engage in the interactive process with employee Cyndi Nguyen (Nguyen),
unless she agreed to meet on June 19, 2013 without the representation and assistance of her
exclusive representative, Service Employees International Union Local 1021 (SEIU). I likewise
agree with the majority that, in addition to an order for the Court to cease and desist and post
notice of its unfair practices, it is appropriate to direct the Court, upon request by Nguyen or
SEIU as her designated representative,2 to rerun the interactive process meeting with
representation by SEIU to explore reasonable accommodations for Nguyen’s permanent medical
restrictions and inability to perform the essential duties of her previous position as a court
reporter.
In addition to these remedial provisions, however, I would also remand this matter to the
Office of the General Counsel for compliance proceedings to determine whether an award of
1 The Trial Court Act is codified at Government Code section 71600 et seq. Unless
otherwise noted, all statutory references are to the Government Code.
2 Although not stated by the majority, our cases and private-sector precedents recognize
that the exclusive representative may convey the request for representation to the employer on
behalf of an employee (Capistrano Unified School District (2015) PERB Decision No. 2440
(Capistrano), p. 29, fn. 15, citing Fremont Union High School District (1983) PERB Decision
No. 301, pp. 9-10), and that, in such circumstances, “it makes no difference” whether the employee
or the representative invokes the representational rights. (United States Postal Serv. (1991)
303 NLRB 463, 467, enforced (D.C. Cir. 1992) 969 F.2d 1064.)
36

back pay is appropriate for the Court’s denial of Nguyen’s and SEIU’s representational rights
during the interactive process meeting held on June 19, 2013 and, if so, in what amount. I write
separately to explain why a broader remedial order, including the possibility of back pay, is
appropriate and consistent with the policies and purposes of the Trial Court Act and our
precedents guaranteeing the representational rights of employees and employee organizations,
including our previous decision in this case.
Factual Background
From her date of hire in April 2008 until early March 2013, Nguyen worked as a court
reporter. Throughout this period, she experienced pain in her wrists and hands, which she and
her doctors attributed to the typing duties associated with her position. In March 2013, Nguyen
ceased performing the duties of a court reporter and began working temporarily as a legal
processing clerk in the Court’s family law and criminal law divisions. (Reporter’s Transcript
(R.T.), pp. 19, 22-23.) The legal processing clerk classification series includes three levels,
designated as LPC I, LPC II, and LPC III, each of which has nine salary steps in increasing
amounts from Step A through Step I. Although temporarily reassigned to perform LPC duties,
as of March 2013, Nguyen was given no particular designation as to the level of work or pay
within the LPC title, and she continued earning her court reporter salary, which at that time was
$41.15 per hour. (R.T., pp. 28, 42.)
On or about June 13, 2013, Nguyen received a doctor’s note indicating that her medical
restrictions were permanent. (R.T., pp. 24-25.) Because there now appeared no likelihood that
she could resume performing the essential court reporter duties, the Court’s human resources
department scheduled an interactive process meeting to identify what, if any, reasonable
accommodations were available to allow Nguyen to continue working for the Court in some
capacity. Nguyen requested that a SEIU representative accompany her to the meeting because
37

she “wanted somebody on [her] side” during the meeting “somebody there to maybe catch what I
wasn’t getting.” Nguyen explained: “I don't know how to negotiate anything. I don't know
anything about the law. I just wanted somebody in my corner.” (R.T., pp. 26, 49.)
The Court denied Nguyen’s request, asserting that it generally prohibits union
representation in interactive process meetings. Although SEIU asked the Court to reconsider its
position, the Court refused, and Nguyen had no choice but to attend the meeting by herself or
forego the opportunity of receiving a reasonable accommodation altogether. For the reasons
discussed by the ALJ, Nguyen was understandably apprehensive about attending the meeting
without representation. Because her medical restrictions were permanent, Nguyen had no way of
knowing whether she could continue her employment with the Court in any capacity. (R.T.,
pp. 25, 28.)
The meeting was held on June 19, 2013 in the office of Assistant Court Executive Officer
Cindia Martinez (Martinez). Human Resources Analyst Tracy Rankin was also present. (R.T.,
p. 27.) As a result of the Court’s refusal to permit SEIU to attend the meeting, Nguyen attended
the meeting alone. Martinez presented Nguyen with an opening for an LPC I position in the
Court’s traffic department with an hourly rate of $19.77. (R.T., p. 27.) Nguyen asked if she
could start instead as a LPC II, because the pay cut from her court reporter salary was so drastic,
and Martinez responded that the Court starts “everybody” at level I. (R.T., pp. 29, 57-58)
Martinez also informed Nguyen that she would need to complete the Court’s standard six-month
probation period applicable for new hires, after which she could advance to an LPC II and
receive a 5 percent pay increase.
There is no dispute that the duties of the LPC I and LPC II positions are the same and
there is some overlap in the pay rates for these positions. As of June 19, 2013, a position at the
top of the LPC I scale had a pay rate of $19.77 per hour, while the pay rate at the bottom of the
38

________________________
LPC II scale was $18.83. Martinez explained to Nguyen that she would benefit from starting at
the top of the LPC I scale, rather than at the bottom of the LPC II scale. However, it is unclear
from the record why Nguyen was limited to starting at the lowest salary step in the LPC II scale,
or why that was the only relevant point of comparison to the LPC I position offered by the Court
and ultimately accepted by Nguyen.
Additionally, although Martinez testified that all new hires must start as an entry-level
LPC I and complete the Court’s standard six-month probation before advancing to LPC II and
receiving a corresponding pay increase, Nguyen was not a new hire and was apparently not
regarded as such, as evidenced by the fact that the reasonable accommodation options made
available to her included so-called “frozen” positions, i.e., existing positions that were subject to
a hiring freeze. Without representation, Nguyen did not ask Martinez to clarify these or other
points during the meeting though she testified that she felt “deflated” after the meeting as a result
of the drastic cut in pay associated with her new LPC I position. Upon completing her six-month
probation as an LPC I in the traffic department, Nguyen advanced to an LPC II position. (R.T.,
pp. 29, 31.) At that time, her hourly pay rate increased by 5 percent from $19.77 to $20.76 per
hour. (R.T., p. 32.)
While Reinstatement as a Court Reporter is Unwarranted, Back Pay May Be Appropriate
Our statutes, including the Trial Court Act, grant PERB broad authority to investigate,
adjudicate, and remedy unfair practice allegations, as the Board deems necessary to effectuate
the policies and purposes of the Trial Court Act. (§ 71639.1, subds. (b), (c); EERA,3 §§ 3541.3,
subds. (i), (n), 3541.5, subd. (c).) A Board-ordered remedy is generally designed to reverse the
effects of any unfair practices and, to the extent possible, restore the parties and any affected
3 The Educational Employment Relations Act (EERA) is codified at section 3540 et seq.
39

employees to their respective positions before the unlawful conduct occurred. (City of Pasadena
(2014) PERB Order No. Ad-406-M, p. 13; City of Selma (2014) PERB Decision No. 2380-M,
pp. 24-26; Desert Sands Unified School District (2004) PERB Decision No. 1682a
(Desert Sands), pp. 3-5; Santa Clara Unified School District (1979) PERB Decision No. 104
(Santa Clara), p. 26.) Our precedents thus provide for both broad cease-and-desist orders aimed
at preventing future misconduct, and for such affirmative relief, including but not limited to the
reinstatement of employees with or without back pay, as the Board deems necessary, to remedy
past acts or omissions that the agency has determined constitute unfair labor practices. (Trial
Court Act, § 71639.1, subds. (b), (c); EERA, §§ 3541.3, subds. (i), (n), 3541.5, subd. (c); Rim of
the World Unified School District (1986) PERB Order No. Ad-161, p. 15, fn. 8; see also
Capistrano, supra, PERB Decision No. 2440, p. 55.) What constitutes an appropriate remedy in
any given situation therefore depends not only on the Board’s discretion, but also on the nature
and purpose of the rights that were violated or the duties that were breached. (NLRB v. Rutter-
Rex Mfg. Co. (1969) 396 U.S. 258, 263.)
In the present case, there is no question that by June 2013, Nguyen could no longer
perform her previous court report duties, and SEIU does not contend that her situation has since
changed in any way that would allow her to resume her previous duties. Reinstatement to her
former position as a court reporter is therefore not appropriate under the circumstances.
However, reinstatement and back pay are separate remedies. (County of Riverside (2013)
PERB Decision No. 2336-M, p. 16.) Even where reinstatement is impractical or inappropriate,
the Board may still order back pay, front pay or other forms of compensation necessary to make
injured parties and/or affected employees whole for any out of pocket expenses resulting from an
employer’s unfair labor practices. (Ibid.; San Diego Unified School District (2007) PERB
Decision No. 1883, p. 9; Los Gatos Joint Union High School District (1980) PERB Decision
40

________________________
No. 120, pp. 3-4; see also Otay Water District (2004) PERB Decision No. 1634-M, adopting
proposed decision at pp. 8-9; Great Atlantic & Pacific Tea Co. (1963) 141 NLRB 1, 15;
New Madrid Mfg. Co. (1953) 104 NLRB 117.) Thus, the fact that Nguyen is no longer able to
perform the duties of a court reporter does not categorically preclude her from some back pay
award, particularly where, as here, there is a dispute over whether she was appropriately placed
in the Clerk I classification, the lowest possible classification available.
The Court argues that it placed Nguyen’s salary at “the highest step” for an LPC I
position but it is not clear from the record why the entry-level LPC I was the only position
considered. Additionally, as explained below, whether the Court met its obligations under the
Fair Employment and Housing Act (FEHA)4 and the American with Disabilities Act5 does not
absolve it of liability under the Trial Court Act or bar PERB from ordering an effective remedy
upon determining that the Court has engaged in unfair labor practices. Since there is no dispute
that the duties of the LPC I and LPC II positions are the same, there is a legitimate question
whether Nguyen could perform those same duties but receive the higher pay of an available
Clerk II position. Instead of rejecting SEIU’s exception, I would remand the matter to
compliance proceedings to resolve any back pay issues, including whether back pay is
appropriate and, if so, in what amount. To effectuate the purposes of the Trial Court Act, some
restorative remedy is appropriate here, which may include not only an order directing the Court,
at Nguyen’s option, to rerun the interactive process meeting with representation by SEIU, but
also a monetary award making Nguyen whole for any ascertainable losses suffered as a result of
the Court’s unfair practices.
4 Codified at 42 U.S.C. section 12101 et seq.
5 Codified at section 12900 et seq.
41

SEIU’s exception raises at least two questions for consideration: Whether Nguyen has
suffered ascertainable loss as a result of the Court’s unfair labor practices, and if so, what is the
appropriate measure of damages. Back pay, front pay and/or other monetary awards, plus
interest, are an ordinary part of Board-ordered remedies where necessary to compensate injured
parties or affected employees for out-of-pocket losses caused, in whole or in part, by an unfair
practice. (Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262 (Fairfield-
Suisun), pp. 18-19; Los Angeles Unified School District (2001) PERB Decision No. 1469
(LAUSD), pp. 5-6, 11; San Ysidro School District (1997) PERB Decision No. 1198, p. 5; Fresno
County Office of Education (1996) PERB Decision No. 1171 (Fresno), pp. 7-8, and proposed
decision at pp. 1-2.) A back pay award and other forms of make-whole relief ensure that injured
parties and employees are not effectively punished for exercising statutorily-protected rights.
Back pay also provides a financial disincentive and thus serves a deterrent effect against future
unlawful conduct. (City of Pasadena, supra, PERB Order No. Ad-406-M, p. 13, and authorities
cited therein.)
Additionally, unlike most monetary judgments in civil litigation, which are designed to
compensate individuals for loss or injury of a private nature, PERB-ordered remedies, including
awards of back pay, are designed to vindicate public rights and effectuate the policies and
purposes of our statutes. (City of Pasadena, supra, PERB Order No. Ad-406-M, p. 13; United
Teachers Los Angeles (Raines, et al) (2016) PERB Decision No. 2475 (UTLA), p. 69, fn. 44;
Sandrini Brothers v. Agricultural Labor Relations Bd. (1984) 156 Cal.App.3d 878, 883.) Since
PERB’s inception, the standard Board-ordered remedy for a bargaining violation has entailed
restoration of the status quo ante, including reinstatement, back pay and back benefits for all
affected employees without regard to their desires or their status as named parties. (Santa Clara,
supra, PERB Decision No. 104, pp. 26-27.) So long as back pay or other monetary awards are
42

not a patent attempt to achieve ends other than those reasonably calculated to effectuate the
policies of our statutes, they neither exceed PERB’s authority nor improperly intrude on an
employer’s exercise of lawful discretion to conduct its operations or decide personnel matters.
(J. R. Norton Co. v. Agricultural Labor Relations Bd. (1987) 192 Cal.App.3d 874, 902; NLRB v.
Rutter-Rex, supra, 396 U.S. 258, 263; City of Pasadena, supra, PERB Order No. Ad-406-M,
p. 12; see also City of Selma, supra, PERB Decision No. 2380-M, pp. 24-26; Desert Sands,
supra, PERB Decision No. 1682a, pp. 3-5; Capistrano, supra, PERB Decision No. 2440,
pp. 44-46.)
Because an employee is not entitled to back pay for a period when he or she would not or
could not have been in the position for reasons unrelated to the employer’s unlawful conduct
(County of Riverside, supra, PERB Decision No. 2336-M, p. 16), I can agree with the majority
that Nguyen’s previous salary as a court reporter is not a presumptively appropriate measure of
damages here. Unlike the majority, however, I am not prepared to rule out any possibility of
back pay as an appropriate remedy under the circumstances. Rather, I believe these remedial
issues should be resolved in PERB’s compliance proceedings.
Upon a Finding of Liability for Unfair Labor Practices, PERB Compliance Proceedings Are
Appropriate for Resolving Disputes over What, if any, Back Pay is Owed
Like California and federal courts, our precedents teach that back pay or other monetary
awards are not recoverable where the proof does not show with reasonable certainty both that the
charging party or affected employees suffered loss, and that such loss resulted from the
respondent’s wrongful act or omission. (Guntert v. City of Stockton (1976) 55 Cal.App.3d 131,
153; Calkins v. F.W. Woolworth Co. (8th Cir.1928) 27 F.2d 314, 319-320, cert. denied in (1928)
278 U.S. 645; Regents of the University of California (Davis, Los Angeles, Santa Barbara and
San Diego) (1990) PERB Decision No. 842-H, p. 17.) However, “the fact that the amount
43

of damage may not be susceptible of exact proof or may be uncertain, contingent or difficult
of ascertainment does not bar recovery.” (Pulaski & Middleman, LLC v. Google, Inc.
(9th Cir. 2015) 802 F.3d 979, 989, cert. denied (2016) 136 S.Ct. 2410; accord, City of Pasadena,
supra, PERB Order No. Ad-406-M, p. 13.) Nor must recovery be denied simply because it is
difficult to apportion the degree of fault between the respondent’s unfair practices and other
causes contributing to any losses suffered by the charging party or affected employees.
(Capistrano, supra, PERB Decision No. 2440, pp. 44-46, 50, fn. 24, 53, 54 citing Redwoods
Community College District (1983) PERB Decision No. 293, affd. in relevant part at
159 Cal.App.3d 617; Lake Elsinore Unified School District (2004) PERB Decision No. 1648,
p. 8; see also California Orange Co. v. Riverside Portland Cement Co. (1920) 50 Cal.App. 522.)
I acknowledge that this case presents difficult issues as to the appropriate remedy,
including what affirmative relief is necessary to make whole and, to reverse the effects of the
Court’s unlawful conduct insofar as is possible, without producing a windfall or excessive result
that punishes the Court. However, this problem strikes me as neither unprecedented nor
impossible to resolve within the framework of the Board’s usual remedial powers and PERB’s
administrative process. Once unfair practice liability has been determined, our cases say that, if
a controversy arises over any aspect of the remedy, a compliance proceeding is the proper forum
in which to resolve the controversy. (LAUSD, supra, PERB Decision No. 1469, p. 7; see also
UTLA, supra, PERB Decision No. 2475, p. 94; County of Riverside, supra, PERB Decision
No. 2336-M, p. 16; Fresno, supra, PERB Decision No. 1171, pp. 2, 3-5.) Our precedents also
say that, because the respondent has already been found to have engaged in unlawful conduct,
uncertainties as to the appropriate remedy for an unfair labor practice, including the measure of
back pay, are resolved against the respondent whose unlawful conduct made such doubts
possible. (Capistrano, supra, PERB Decision No. 2440, p. 53; City of Pasadena, supra,
44

________________________
PERB Order No. Ad-406-M, pp. 12-13, 26-27; County of Riverside, supra, PERB Decision
No. 2336-M, p. 16; LAUSD, supra, at p. 3; Fresno, supra, at p. 8; see also J. H. Rutter-Rex Mfg.
Co. (1971) 194 NLRB 19, 24.)
Although PERB has discretion to withhold as well as pursue the various remedies at its
disposal (San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 13), it may not do so
arbitrarily by ignoring its own relevant precedent or without at least explaining why analogous
cases have been decided differently. (California Teachers Assn v. Public Employment Relations
Bd. (2009) 169 Cal.App.4th 1076, 1087; LeMoyne-Owen College v. NLRB (D.C. Cir. 2004)
357 F.3d 55, 61; National Federation of Federal Employees, FD-1 v. Federal Labor Relations
Authority (D.C. Cir. 2005) 412 F.3d 119, 124.) The majority opinion cites no statutory provision
nor offers any persuasive policy reason to depart from our precedents holding that where the
Board has found liability and the extent of the harm is unknown but can be reasonably and
objectively determined, compliance proceedings are appropriate to resolve the controversy.
(City of Pasadena, supra, PERB Order No. Ad-406-M, pp. 12-13, 26-27; UTLA, supra, PERB
Decision No. 2475, p. 94; County of Riverside, supra, PERB Decision No. 2336-M, p. 16;
Fresno, supra, PERB Decision No. 1171, pp. 2, 3-5.)
Rather than dismiss the back pay issues as “speculative,” resolve uncertainty as to the
appropriate remedy against SEIU and Nguyen, and effectively reward the Court for its unlawful
conduct, I would remand this case to the Office of the General Counsel to determine in
compliance proceedings what, if any, amount of back pay is owed to Nguyen as a result of
the Court’s unfair practices. (PERB Reg. 32980;6 City of Pasadena, supra, PERB Order
No. Ad-406-M, pp. 12-13, 26-27; Fresno, supra, at pp. 2, 3-5.)
6 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
45

Contrary to the majority’s contention, a back pay award would not exceed PERB’s
authority or necessarily intrude on reasonable accommodation matters. 	Since its earliest days,
PERB has had to decide unfair practice allegations that overlap with matters governed by other
laws. (Jefferson School District (1980) PERB Decision No. 133, pp. 7-10; Pajaro Valley Unified
School District (1978) PERB Decision No. 51, p. 11.) The rule that has emerged, and which
enjoys the approval of our Supreme Court, is that, unless an external law or regulation sets an
inflexible standard or mandates a specific action affecting wages, hours or working conditions,
or unless the statutory scheme otherwise indicates that the Legislature intended to “occupy the
field,” PERB should attempt to harmonize its statutes with overlapping areas of external law.
(San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 866;
Fremont Unified School District (1997) PERB Decision No. 1240; Healdsburg Union High
School District and Healdsburg Union School District/San Mateo City School District (1984)
PERB Decision No. 375, pp. 6-7; Exxon Shipping Co. (1993) 312 NLRB 566, 567-568; Murphy
Oil USA (1987) 286 NLRB 1039, 1042.) For example, where external law, such as the state or
federal reasonable accommodation statutes, leaves discretion in how it will be implemented, an
employer would, logically, need to provide notice and opportunity to the exclusive representative
before the employer may exercise its discretion to affect negotiable subjects. (Healdsburg,
supra, at p. 13; Trustees of the California State University (2004) PERB Decision No. 1656-H;
Regents of the University of California (2010) PERB Decision No. 2094-H, p. 19; see also
Warren Unilube, Inc. (2012) 358 NLRB No. 92, p. 8; Standard Candy Co. (1964) 147 NLRB
1070, 1074.)
While an employee seeking a reasonable accommodation decides whether he or she will
be accompanied by a union representative when meeting with the employer (Sonoma, supra,
PERB Decision No. 2409-C, pp. 24-25), an employer violates the organization’s right to
46

________________________
represent, and perhaps the employer’s duty to bargain as well,7 when it bypasses the
representative and meets individually with the employee over terms and conditions of
employment or seeks to obtain a waiver of collectively-bargained rights. (Lake Elsinore
School District (1987) PERB Decision No. 646, pp. 7-8; Lake Elsinore School District (1986)
PERB Decision No. 563, pp. 3-4; North Sacramento School District (1981) PERB Decision
No. 193, p. 8.)8
We need not decide here whether or to what extent the accommodation chosen by the
Court has a generalized effect on wages, hours or working conditions or implicates the duty to
bargain. It is enough that the Court has been found to have violated SEIU’s right to represent
employees in their employment relations to recognize that the protected rights at issue, and thus
7 The fact that a reasonable accommodation decision affects “only” one employee does
not necessarily preclude it from the scope of representation. (Modesto City Schools and High
School District (1985) PERB Decision No. 552, p. 8; Jamestown Elementary School District
(1990) PERB Decision No. 795, p. 6.) Even an employer’s one-time action affecting only one
employee may have a generalized effect or continuing impact on negotiable terms and conditions
of employment, particularly where, as in the context of a reasonable accommodation request, the
employer asserts that it was legally authorized to act unilaterally under the circumstances.
(County of Santa Clara (2015) PERB Decision No. 2431-M, p. 19; Hacienda La Puente Unified
School District (1997) PERB Decision No. 1186, p. 4.)
8 Similar to adjusting grievances without providing notice to the exclusive representative,
which constitutes unlawful direct dealing, granting, denying or altering an employee’s request
for a reasonable accommodation may likewise affect not only the employee’s right to
representation, but also the organization’s independent right to represent employees, if the
decision affects negotiable matters or amounts to a waiver or modification of an existing policy
applicable to unit employees. (Lake Elsinore School District, supra, PERB Decision No. 563,
p. 5; City of San Diego (Office of the City Attorney) (2010) PERB Decision No. 2103-M, p. 7;
Bethlehem Steel Co. (1950) 89 NLRB 341; Van Can Co. (1991) 304 NLRB 1085, fn. 5.) Thus,
even if the employee has chosen to forego union representation in the interactive process, an
employer’s reasonable accommodation decision affecting negotiable matters may require notice
to the exclusive representative and opportunity for the union to meet separately with the
employer in order for the organization to fulfill its duty to represent all unit employees fairly.
(United States Postal Serv. (1986) 281 NLRB 1015, 1018-1019; ¶ 30,799 GENERAL
COUNSEL’S MEMORANDUM ADDRESSES AMERICANS WITH DISABILITIES ACT,
NLRB Cas. Handling Man. (CCH) P 30799; see also So. California Edison Co. (1987) 284
NLRB 1205, 1210-1212; and Jones Dairy Farm (1989) 295 NLRB 113, 113-116.)
47

the appropriate remedial measures, should vindicate not only Nguyen’s right to representation
but also SEIU’s organizational right to represent her and other unit employees. Because the
reasonable accommodation laws were never intended to preclude or supersede the public-sector
labor relations statutes, including the independent right of employee organizations to represent
employees in their employment relations with the Court, I see no reason for the Board to
acquiesce to the Court’s decision to deny SEIU the right to represent and assist Nguyen in the
interactive process meeting. To the extent Nguyen has suffered some loss as a result of the
Court’s unfair practices, a back pay award may be appropriate to vindicate both her right to
representation and SEIU’s right to represent her and other unit employees. Rather than consider
this possibility, the majority’s discussion conflates an employer’s discretion, under the
reasonable accommodation laws, to select among various “reasonable” accommodations, with
PERB’s authority and obligation under the Trial Court Act to investigate unfair labor practice
allegations and, where appropriate, order remedies which effectuate the purposes of the statute.
(§ 71639.1, subd. (b); State of California (Department of Transportation) (1983) PERB Decision
No. 361-S, pp. 17-18.)
It is well-settled that for every wrong there is a remedy. (Civ. Code, § 3523.) While
PERB lacks authority to review discipline or other adverse actions unrelated to the commission
of an unfair labor practice (EERA, § 3541.5, subd. (b); Jurupa Unified School District (2012)
PERB Decision No. 2283, p. 13; Alisal Union Elementary School District (1998) PERB Decision
No. 1248, pp. 5-6), nothing prevents PERB from exercising its broad remedial powers to declare
an employer’s personnel actions void and to order any other affirmative relief designed to
“undo” the effects of unfair labor practices within PERB’s jurisdiction. (City of Palo Alto v.
Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1351, review den. (Mar. 15,
2017); Fairfield-Suisun, supra, PERB Decision No. 2262, pp. 18-19.) Even where a public
48

employer has unfettered discretion under the common law or other statutes to hire, re-hire,
discipline or discharge employees with or without cause, or take other personnel actions, such
discretion does not insulate its conduct from PERB’s scrutiny and from a Board-ordered remedy,
if such conduct constitutes an unfair practice within PERB’s jurisdiction. (McFarland Unified
School Dist. v. Public Employment Relations Bd. (1991) 228 Cal.App.3d 166, 169; Berkeley
Unified School District (2003) PERB Decision No. 1538, p. 5; San Diego Community College
District (1983) PERB Decision No. 368, pp. 25-26.)
The Availability of Other Remedies Does not Oust PERB of its Jurisdiction Nor Relieve PERB
of its Duty to Order an Effective Remedy in this Case
Whether Nguyen or SEIU pursued any other remedies available under the parties’
Memorandum of Understanding or state or federal non-discrimination statutes does not affect
whether PERB should order an effective remedy for the Court’s unfair labor practices. Because
the Legislature has vested PERB with exclusive, initial jurisdiction to determine what conduct is
protected and prohibited by the Trial Court Act, we have both the power and the duty to order an
effective remedy upon finding that the Court has engaged in unfair labor practices. (Trial Court
Act, § 71639.1, subds. (b), (c); Fresno Unified School Dist. v. National Education Assn. (1981)
125 Cal.App.3d 259, 263-264; San Diego Teachers Assn. v. Superior Court, supra, 24 Cal.3d 1,
15.) Under our precedents, “[a] cease-and-desist order alone is inadequate because its exclusive
focus on prohibiting future violations effectively rewards the employer for its past misconduct,
without attempting to restore the conditions and relationships that existed or would have existed,
but for the commission of the unfair practice.” (Capistrano, supra, PERB Decision No. 2440,
p. 55, emphasis in original.)
Nor has there been any showing of waiver here. Because a waiver of statutory rights is
disfavored (City of Escondido (2013) PERB Decision No. 2311-M, p. 13; Metropolitan Edison
49

Co. v. NLRB (1983) 460 U.S. 693, 708), a charging party does not lose its access to the Board’s
administrative process and, where appropriate, to a Board-ordered remedy, unless it has entered
into a settlement agreement that clearly and unmistakably resolves the unfair practice issues or
explicitly waives its right to pursue the charge. (Oakland Unified School Dist. v. Public
Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1011; City & County of San Francisco
(2009) PERB Decision No. 2041-M, pp. 4-5; see also Lake Elsinore School District (1986)
PERB Decision No. 603, pp. 2-3.)
The majority refuses to entertain even the possibility of a back pay award, reasoning that
to do so would require PERB to determine whether the Court had complied with the reasonable
accommodation statutes, a determination which PERB has no authority to make. The majority
also “assume[s] that the Court provided Nguyen with a reasonable accommodation,” because the
record does not reflect “that Nguyen sought any remedy from the DFEH or EEOC concerning an
alleged failure by the Court to provide reasonable accommodation.” Additionally, because
“[n]either Nguyen or SEIU pursued any remedy contained in the MOU or provided by the
Court’s appeal procedures to challenge the accommodation provided by the Court,” the majority
concludes that “[o]rdering back pay in this case would essentially reward SEIU and Nguyen for
sleeping on their [sic] right to contend the accommodation was not reasonable.”
The majority’s reasoning is faulty for several reasons. If, as the majority points out, the
Court’s compliance with state and federal reasonable accommodation statutes is not an issue
properly before PERB, then there is no reason for the majority to conclude, much less to assume,
one way or the other, whether the Court has complied with those statutes. Rather than
demonstrating that Nguyen or SEIU failed to pursue remedies that may or may not have been
available before other tribunals, the absence of evidence on this point before PERB presumably
reflects SEIU’s recognition that the issue is indeed not within PERB’s expertise or authority, and
50

therefore not relevant to these proceedings. Consequently, it is, or should be, equally irrelevant
for determining whether back pay or any other remedial provisions are appropriate for the
Court’s violation of the Trial Court Act.
SEIU, as Nguyen’s collective-bargaining agent, has no legal duty or independent right
under the reasonable accommodation statutes to contest any accommodation provided to Nguyen
by her employer, nor to pursue a Department of Fair Employment & Housing action that Nguyen
has chosen not to pursue. However, as discussed above, the majority categorically refuses to
consider any back pay award for Nguyen, even if such an award were also necessary and
appropriate to vindicate SEIU’s independent right under the Trial Court Act to represent unit
employees in their employment relations with the Court.
More fundamentally, the majority fails to explain why, when fashioning an appropriate
remedy for an unfair labor practice, it should matter to PERB whether a party, or an employee it
represents, has pursued other remedies provided by statutes outside PERB’s jurisdiction. PERB
is charged with administering the Trial Court Act. (71639.1, subds. (b), (c).) Except in limited
circumstances involving deferral to arbitration (which are clearly not at issue here), whether a
party before PERB has pursued remedies before other tribunals has no bearing on whether a
particular remedial measure is appropriate for remedying an unfair labor practice. (See also Rojo
v. Kliger (1990) 52 Cal.3d 65, 74–75 [employment discrimination claims under FEHA intended
to supplement, not supplant, other administrative or judicial remedies].)
Echoing the Court’s arguments, the majority points out that, under the reasonable
accommodation statutes, an employer may consider an employee’s preferred accommodation,
but retains ultimate authority to select and implement an accommodation that is effective for
both the employee and the employer. However, the employer’s authority under the reasonable
accommodation statutes to choose among various reasonable accommodations is not at issue, nor
51

dispositive of the remedial issues in PERB’s unfair practice proceedings. In fact, the Trial Court
Act’s “meet-and-confer” requirement and settled PERB precedent likewise recognize the
authority of the Court, after considering fully the presentations made by a recognized employee
organization, to reject the union proposals and “arriv[e] at a determination of policy or course of
action.” (Trial Court Act, § 71634.2, subd. (a); City of San Jose (2013) PERB Decision
No. 2341-M, pp. 39-40, and authorities cited therein.) Yet an employer’s ultimate authority to
impose terms assumes good-faith bargaining and no one, including the majority, has questioned
PERB’s authority to order to restore the prior status quo, return to the table to rerun the process,
and to make any affected employees whole, where the employer has failed or refused to bargain
with the employees’ representative on matters within scope. (Lake Elsinore School District,
supra, PERB Decision No. 646, p. 35; see also City of Sacramento (2013) PERB Decision
No. 2351-M, pp. 48-50.) In short, the fact that an employer retains ultimate authority to make
operational decisions affecting reasonable accommodation or collective bargaining matters does
not divest PERB of its authority, nor its duty, to remedy violations of the Trial Court Act.
Having found the Court engaged in unfair labor practices, the Board should utilize its
power and fulfil its duty to order an effective remedy. I therefore do not adopt that portion of the
proposed decision appearing at pages 16-17 in which the ALJ denied SEIU’s request for
restoring the prior status quo and/or awarding Nguyen back pay because no evidence was
presented that a grievance or separate administrative complaint was pursued in another forum.
52

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-39-C, Service Employees
International, Local 1021 v. Sonoma County Superior Court, in which all parties had the right
to participate, it has been found that the Sonoma County Superior Court (Court) violated the
Trial Court Employment Protection and Governance Act (Trial Court Act), Government Code
sections 71631, 71633, and 71635.1 and PERB Regulation 32606, subdivisions (a) and (b),
when it interfered with its employees’ rights to be represented by Service Employees
International Union, Local 1021 (SEIU) by denying a unit employee’s request to be
represented by a SEIU representative at an interactive process meeting to explore possible
reasonable accommodation alternatives.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with employees’ right to have a union representative at
interactive process meetings to explore possible reasonable
accommodation alternatives.
2. 	Denying SEIU the right to represent its employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE TRIAL COURT ACT:
1. 	Conduct an interactive process meeting upon Nguyen’s request at which
she may be represented by SEIU.
Dated: _____________________ 	SONOMA COUNTY SUPERIOR COURT
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Charging Party,
v.
SONOMA COUNTY SUPERIOR COURT,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-39-C
PROPOSED DECISION
(July 14, 2015)
Appearances: Weinberg, Roger & Rosenfeld, by Anthony J. Tucci and Matthew J. Gauger,
Attorneys, for Service Employees International Union, Local 1021; Renne Sloan Holtzman
Sakai, by Timothy G. Yeung, Attorney, for Sonoma County Superior Court.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
INTRODUCTION
The case alleges that a Court employer refused to permit union representation requested
by an employee at an interactive process meeting in violation the Trial Court Employment
Protection and Governance Act (Trial Court Act) and PERB Regulations.1 The Court
employer denied any violation of the Trial Court Act.
PROCEDURAL HISTORY
On December 20, 2013, Service Employees International Union, Local 1021
(Local 1021) filed an unfair practice charge against the Sonoma County Superior Court (Court)
alleging that the Court refused to permit union representation requested by an employee at an
interactive process meeting and violated the Trial Court Act. On March 20, 2014, the Office of
1 The Trial Court Act is codified at Government Code section 71600 et seq. Unless
otherwise indicated, all statutory references herein are to the Government Code. PERB
Regulations are codified at California Code of Regulations, title 8, section 31001 et seq.

the General Counsel of the Public Employment Relations Board (PERB or Board) dismissed
the charge pursuant to Trustees of the California State University (2006) PERB Decision
No. 1853-H (Trustees). On April 9, 2014, the dismissal was appealed to the Board. Both
parties filed briefs with the Board.
On January 13, 2015, the Board overturned Trustees, supra, PERB Decision
No. 1853-H, and, in summary, found:
Having addressed the Court’s arguments, we conclude that the
right of representation guaranteed by Trial Court Act sections
71630, 71631, and 71633 includes an employee's right to have a
union representative assist him or her in the interactive process
by attending meetings with the employer convened to explore
possible reasonable accommodations to an employee's disability.
The union has a concurrent right to represent the employee in the
interactive process. ([Rio Hondo Community College District
(1982) PERB Decision No. 260].) Recognizing the employee's
right to privacy and his or her right not to participate in the
activities of employee organizations (Trial Court Act,§ 71631),
we conclude that the union’s right to represent in the interactive
process attaches only if the employee requests union
representation.
(Emphasis added, Sonoma County Superior Court (2015) PERB Decision No. 2409-C,
pp. 24-25, (Sonoma).)
The Board then ordered the dismissal to be reversed and the matter be remanded to the
PERB Office of the General Counsel for the issuance of a complaint.
On February 24, 2015, the PERB Office of the General Counsel issued a complaint,
which stated in pertinent part:
3. Cyndi Nguyen (Nguyen) is a trial court employee within the
meaning of Government Code section 71601(l).
4. On June 19, 2013, Nguyen met with Respondent’s agent,
Cindia Martinez (Martinez), to discuss reasonable
accommodations for Nguyen’s disability.
2

________________________
5. Nguyen requested that her employee organization
representative be present for the meeting. Respondent, acting
through its agent, Martinez, refused to permit the representative
to attend the meeting.
The complaint alleged that the Court’s refusal denied Nguyen’s right to be represented
by Local 1021 and denied Local 1021 right to represent its members in violation of Trial Court
Act sections 71631, 71633 and 71635.1 and PERB Regulation 32606, subdivisions (a) and (b).
On March 16, 2015, the Court filed an answer admitting to allegations in paragraphs
three through five of the complaint, but denied that Nguyen had a reasonable belief that the
meeting could lead to a disciplinary action. The Court further avers that the meeting was
neither disciplinary in nature, nor could a reasonable person believe the meeting to be
disciplinary in nature. The Court also alleged other affirmative defenses such as: the right to
representation does not flow to employees who want to discuss potential reasonable
accommodation, PERB lacks jurisdiction to decide such a representational issue; and that the
Court’s actions were justified under the Fair Employment and Housing Act2 (FEHA), and the
Americans with Disabilities Act of 19903 (ADA), and other operational necessities.
An informal conference was conducted on March 26, 2015, but the matter was not
resolved.
On March 31, 2015, a formal hearing notice was issued scheduling the formal hearing
for May 29, 2015.
On May 29, 2015, a formal hearing was held. After Local 1021 rested its case-in-chief,
the Court moved to amend its answer to plead an affirmative defense that the filing of the
2 FEHA is codified at Government Code section 12900 et seq.
3 ADA is codified at 42 U.S.C. section 12101 et seq.
3

________________________
unfair practice charge was untimely.4 Over Local 1021’s objection, the amendment was
allowed. On July 6, 2015, post-hearing briefs were submitted.
Petition for Writ of Mandate
On March 5, 2015, the Court filed a Verified Petition for Writ of Mandate (Code of
Civil Procedure section 1085) as to PERB’s issuance of Sonoma, supra, PERB Decision
No. 2409-C with the Sacramento Superior Court (Case No. 34-2015-80002035) seeking that
the Superior Court vacate PERB Decision No. 2409-C and dismiss the unfair practice charge.
The writ hearing was set for November 6, 2015. Both Local 1021 and the PERB Office of
General Counsel filed demurrers to the writ arguing that the Court had not exhausted its
administrative remedies and that it was filed in the wrong court. No stay of the instant
administrative hearing was sought or ordered.
FINDINGS OF FACT
Local 1021 is the exclusive representative of an appropriate unit of employees working
for the Court pursuant to PERB Regulation 32033, subdivision (b), and the Court is a trial
court within the meaning of Trial Court Act section 71601, subdivision (k), and PERB
Regulation 32033, subdivision (a). Nguyen is a trial court employee within the meaning of
71601, subdivision (l).
Background
Martinez is the Assistant Court Executive Officer of the Court. Since October 2012,
Martinez has assumed the duties of the Court Human Resources Director, including immediate
4 The Court did not include an argument of the charge being untimely filed in its
post-hearing brief.
4

________________________
oversight over the reasonable accommodation process,5 and has engaged in the interactive
process with Court employees as the Court’s representative on over 20 occasions.6 Tracy
Rankin (Rankin) is a Senior Human Resources Analyst and keeps track of each employee’s
workplace injury and accommodation chronological timeline. Raul Riefkohl (Riefkohl) is the
Court Operations Manager who supervises all Court Interpreters and Court Reporters. Nguyen
works under Riefkohl’s supervision as a Court Reporter.
Martinez explained that the reasonable accommodationെinteractive process is usually
initiated by the employee bringing a physician’s note setting forth medical work restrictions to
the Court’s attention brought about by an employee’s injury or pain. The Court attempts to
engage employees quickly in an interactive process dialogue to determine whether they can
perform the essential functions of their position without or without reasonable accommodation.
These interactive process discussions can range from a simple ergonomic evaluation, where
their work location is modified, to permanent medical restrictions which may cause them to be
transferred/demoted from their current employment. On almost every occasion, the Court has
5 Government Code section 12926, subdivision (p)(1) and (2), define “reasonable
accommodation” as:
(1) Making existing facilities used by employees readily accessible
to, and usable by, individuals with disabilities.
(2) Job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification
of equipment or devices, adjustment or modifications of
examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.
6 Martinez explained that these interactive process communications had been resolved
by “quick email” exchanges, phone calls, and/or ergonomic evaluations. Many times these
communications were numerous.
5

________________________
disallowed a union representative at such an interactive process meeting.7 Martinez stated that
the past practice of the Court was to disallow union representation, unless the employee was
incapacitated or needed assistance to be able to understand the proceedings.
Nguyen
Nguyen was hired as a probationary Court Reporter on April 8, 2008. She started
feeling pain in her wrists within the first six months of her employment. She chose to endure
the pain rather than file a workers’ compensation claim. In 2009, she again complained of pain
in her hands and wanted her desk to be lowered. Over her early years, she had some
accommodations such as working four days a week (instead of five) for approximately three
months because of her anxiety. In 2010, she requested to be demoted to a Legal Process Clerk
(LPC) position,8 but eventually did not demote to that position. In December 2012, Nguyen
complained of tendonitis of the elbow for which she was given lighter assignments to allow for
more rest periods.
March 2013 Meeting in Martinez Office
In early March 2013, Nguyen was in too much pain to perform her duties as a court
reporter and told Riefkohl that she was experiencing excruciating pain. Riefkohl asked her if
she needed to see a physician and she replied in the affirmative. Nguyen went to see a workers
compensation physician at Kaiser Permanente who issued her a note placing her on modified
duty regarding keyboarding.
7 Martinez recalled on one occasion where the accommodation was that the Court
provide the employee with a support person, and that support person was her union
representative.
8 The LPC classification series has a LPC I, LPC II, and LPC III. Each classification in
these series has salary steps from Step A through I. A Court Reporter earned $41.15 an hour
during the time.
6

________________________
On or about March 11, 2013, Nguyen presented Rankin with a physician’s note
indicating that she had a 20-minute cumulative per hour keying restriction. Nguyen met with
Martinez and Riefkohl. Nguyen believed that she could perform some of the clerical duties of
the entry level LPC positions. As a result of the meeting, Nguyen was assigned to the Family
Law Division to perform light clerical duties to accommodate her physician’s work
restrictions.9 After approximately a week, she transferred to the Criminal Division. She
received her Court Reporter salary during this time.
In May 2013, Nguyen received a physician’s note from May 2 to June 14, 2013 which
restricted her repetitive keyboarding motions to no more than 20 minutes an hour. She
presented the note to Rankin. Nguyen was allowed to continue performing LPC work while
being compensated as a Court Reporter.
Permanent Restrictions
On June 13, 2013, Nguyen went to her physician who informed her that her restrictions
regarding keyboard for no more than 20 cumulative minutes per hour had become “permanent”
and she was later provided with a physician’s note setting forth these restrictions. After
receiving the note, Nguyen knew that she could not return to her court reporter duties and was
deeply concerned that she may not have a job. On the other hand, she was relieved, as she
knew her condition regarding her hands would not deteriorate further.
When Nguyen came to work that day, she presented Rankin with the physician’s note.
Rankin brought the physician’s note to Martinez’s attention and Rankin set up an interactive
process meeting with Martinez, Nguyen, and Rankin at Martinez’s office on June 19, 2013.
9 These duties included setting up new case files, filing, and other basic clerical work.
7

Nguyen contacted Local 1021 job steward Kris Ridste (Ridste) as she wanted Ridste to
come with her to the June 19, 2013 interactive process meeting. Nguyen wanted Ridste with
her as she wanted somebody that was “on her side” who she could discuss the issues with.
Nguyen was unfamiliar with her rights in this area and did not want to “miss anything”
important.
On June 14, 2013, Ridste emailed Riefkohl stating that Michael Viloria (Viloria),
Local 1021 organizer/representative, and she were available June 18 and 19, 2013, to
accompany Nguyen when the Court would meet with her about her permanent work
modifications. Riefkohl responded:
Thanks for your email. I checked with HR. Indeed, the Court did
receive a note from Cyndi’s doctor yesterday. HR needs to
follow up and get more information. They will likely set up a
meeting with Cyndi next week. My understanding is that [u]nion
representation is not appropriate during this interactive [dialogue]
with Cyndi.
That same day Ridste forwarded Riefkohl’s response to Viloria. Nguyen then sought
Viloria’s assistance in order to provide her with representation at the interactive process
meeting. Viloria said he would work on it.
On June 18, 2013, Viloria sent an email to Riefkohl asking to explain why the Court
was not allowing Nguyen to have union representation at the meeting concerning her “medical
condition and employment status.” Viloria believed the union’s involvement would help
facilitate the process and the matter involved Nguyen’s conditions of employment.
On June 19, 2013, Martinez responded:
We will be engaging in an interactive [dialogue] with the
employee which does not involve disciplinary matters that would
involve the union. We do not include union stewards in
interactive [dialogues] as we view them as confidential, since we
are discussing medical conditions. While an employee might
8

choose to waive any confidentiality, it still does not fall under
Weingarten Rights. At this point[,] we are not discussing
employment status, but engaging in an interactive [dialogue]
under [the] ADA.
Viloria responded that he disagreed with Martinez that Nguyen had the right to be
represented at such a meeting.
June 19, 2013 Meeting in Martinez’s Office
Before Nguyen came to the interactive process meeting, she did not know what to
expect. She was not sure whether she would have a job, would be given another job, or the
amount she would be paid.
On June 19, 2013, Martinez and Rankin met with Nguyen in Martinez’s office.
Martinez testified that the purpose of the meeting was engage in an interactive dialogue to
determine whether the Court could accommodate her by assigning her to a job to which she
could work with her existing permanent restrictions.
At the meeting, Nguyen did not renew her request for a representative. After
discussing the permanent restrictions with Nguyen, Martinez asked Nguyen whether she
believed she could continue as a court reporter. Nguyen responded that she thought she could
not. Martinez then started to discuss what Court positions Nguyen could work with her current
permanent restrictions. They discussed Nguyen being able to work as an LPC. Martinez
discussed an LPC I position in the Traffic Division in which she could be appointed at the top
step of the salary scale (Step I, $19.77 an hour). While there was not an “open” position as the
Court was under a hiring freeze, the Court did have positions which they could not hire from
the public as they were “frozen” positions. Nguyen asked if she could be placed in a LPC II
position instead of an LPC I position. Martinez explained that all new hires started as a LPC I,
9

________________________
the entry-level position, and after passing a six-month probation,10 she would be advanced to a
LPC II classification and receive a five percent raise.11 Martinez explained that the Court
would appoint her to a top-step LPC I position, which was better than being appointed at the
Step-A salary step at the LPC II classification ($18.83). At the end of the meeting, Nguyen
stated that the meeting was not as bad as she thought it would be. She was glad that she still
had a job and would not become homeless. On the other hand, she felt “deflated” as she was
going to experience a large pay cut. The meeting lasted less than a half-hour.
Nguyen testified that the duties she performed in the Family Law Division and
Criminal Division were similar to those she performed in the Traffic Division.
Court Personnel Plan and MOU
The Court has a Court Personnel Plan authorized under Trial Court Act section 71640
et seq. and 71650 et seq., which sets forth numerous sections as to the salary an employee is to
receive after involuntary demotion, voluntary demotion and transfer from another
classification. (Court Personnel Plan Sections 3002.8, 3002.9, and 3002.11.) The
Memorandum of Understanding (MOU) between Local 1021 and the Court have the exact
same sections. (MOU Articles 8.12, 8.13, and 8.15.) The MOU has a grievance procedure
which covers violations of these salary-setting procedures (MOU Article 18.2.) and end in final
and binding arbitration (MOU Article 18.13.)
10 Court Personnel Plan Section 2001.1 (12), which defines “probationary employee,”
only lists one exception to serving a probationary period upon a new appointment: when a
permanent employee transfers to another position in the same class within the same or different
department.
11 Nguyen would advance to Step E of the LPC II classification ($20.76 an hour). The
top step for LPC classification (Step I) was $22.89 an hour.
10

Additionally, Court Personnel Plan Sections 1006 and 1007 provide:
1006 	Reasonable Accommodation Policy
The Court will comply with the employment-related reasonable
accommodation requirements of the California Fair Employment
and Housing Act and the Americans with Disabilities Act (ADA).
Requests for accommodation should be directed to the ADA
Coordinator.
An employee or applicant who alleges a denial of a reasonable
accommodation may file a complaint pursuant to the Court’s
Complaint Procedure for Complaints of Denial of Reasonable
Accommodation (Section 1007).
1007 Complaint Procedure for Complaints of Denial of
Reasonable Accommodation
Complaints of denial of reasonable accommodation shall be
directed to the Court’s designated ADA Coordinator. Applicants
and employees are encouraged to bring such complaints to the
Court’s attention promptly.
The ADA Coordinator shall investigate the complaint and make
recommendations to the Court Executive Officer as to whether a
reasonable accommodation can be provided. The Court
encourages the applicant/employee and a Court representative to
meet and discuss potential reasonable accommodations to try and
agree to a specific reasonable accommodation. The Court
Executive Officer shall have the authority to determine which
reasonable accommodation, if any, shall be provided.
The Court’s Concerns about Granting Union Representation at Interactive Process Meetings
Martinez testified that the Court had a number of concerns about being compelled to
grant union representation for Court employees who request union representation at interactive
process meetings. Specifically, Martinez was concerned that a union representative would not
treat the subject matter of these meetings as confidential; that union stewards did not have the
expertise to be of assistance to employees in the area of reasonable accommodation; a union
representative would delay the Court’s ability to conduct a timely interactive process meeting;
11

the likelihood of multiple meetings with employee in coming to a determination of reasonable
accommodation would be further delayed with the insertion of a union representative; and that
union representatives would change the interactive process meetings from a collaborative to an
adversarial meeting.
ISSUES
1. 	Was the filing of the charge untimely?
2. 	Did the Court violate the Trial Court Act by refusing to grant Nguyen’s request
for a union representative during her June 19, 2014 interactive process meetings?
CONCLUSIONS OF LAW
Timeliness of Charge
PERB has described the statute of limitations both as an aspect of the charging party’s
burden and as an affirmative defense that the respondent has the burden to prove. (South
Placer Fire Protection District (2008) PERB Decision No. 1944-M, warning letter, pp. 2-3.)
In Los Angeles Unified School District (2014) PERB Decision No. 2359, the Board elaborated
on this issue, stating:
Charging party’s duty to provide the [PERB] Office of the
General Counsel with sufficient facts upon which to make a
determination of timeliness is a bedrock principle. We do not
disturb that principle here. We hold that the charging party’s
duty to establish timeliness has been discharged at the point at
which the Office of the General Counsel has determined that the
charge is not subject to dismissal for lack of timeliness and issues
a complaint. Where the matter goes to a formal hearing, the
presentation of evidence and allocation of burdens flow from the
operative pleadings, the complaint and the answer. At this stage
of the proceedings, we see no justification for treating the statute
of limitations as anything but a “true” affirmative defense, which
the respondent has the burden to plead and prove.
12

________________________
(Id. at p. 3.12)
Put another way, the charging party has the burden to demonstrate the timeliness of its
claims during the PERB Office of the General Counsel’s investigation of that charge. If a
complaint issues on those claims, then the respondent has the burden to prove the charge’s
untimeliness at hearing.
Trial Court Act section 71639.1, subdivision (c), prohibits PERB from issuing a
complaint with respect to “any charge based upon an alleged unfair practice occurring more than
six months prior to the filing of the charge.” The limitations period begins to run once the
charging party knows, or should have known, of the conduct underlying the charge. (Gavilan
Joint Community College District (1996) PERB Decision No. 1177.) The six-month limitation
period commences on the date that the conduct constituting an unfair practice was discovered,
and not the date of discovery of the legal significance of that conduct. (Compton Unified School
District (2009) PERB Decision No. 2016; Empire Union School District (2004) PERB Decision
No. 1650.) In computing the six-month period, the period of time begins to run after the day the
act or occurrence took place or, if the last date to file a document falls on a Saturday or Sunday,
or when PERB offices are closed, the time period is extended to the next regular PERB business
day. (PERB Regulation 32130, subdivisions (a) and (b).)
On June 14, 2013, Riefkohl emailed Ridste stating that “[m]y understanding is that
[u]nion representation is not appropriate during this inactive [dialogue] with [Nguyen].” Six
months from this date is December 14, 2013. However, December 14 and 15, 2013, fell on a
12 When interpreting the Trial Court Act, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608,
p. 616; Santa Clara County Superior Court (2014) PERB Decision No. 2394-C.)
13

Saturday and Sunday. December 16, 2013 fell on a Monday, which is when the charge was
filed. Therefore, the filing of the charge is found to be timely. (See Santa Monica Community
College District (1979) PERB Decision No. 103.)
Interference with Employee and Employee Organization Rights
The Trial Court Act provides the following pertinent provisions, in part:
71631 Except as otherwise provided by the Legislature, trial
court employees shall have the right to form, join, and participate
in the activities of employee organizations of their own choosing
for the purpose of representation on all matters of employer-
employee relations. . . .
71633 Recognized employee organizations shall have the right to
represent their members in their employment relations with trial
courts as to matters covered by this article. . . .
71635.1 Trial courts and employee organizations shall not
interfere with, intimidate, restrain, coerce, or discriminate against
court employees because of their exercise of their rights under
Section 71631.
(Emphasis added.)
In Sonoma, supra, PERB Decision No. 2409-C, the Board recently overturned its prior
precedent in Trustees, supra, PERB Decision No. 1853-H, that there was no right to union
representation in interactive process meetings convened to explore possible reasonable
accommodation of an employee with a disability. The Board in coming to this conclusion
discussed and rejected the same concerns expressed by the Court in that decision: the
confidentiality of the interactive process meetings (Sonoma, supra, PERB Decision No. 2409-
C, p. 23-24); the delays created by union involvement (Id, pp. 20-21); the lack of expertise of
union representatives assisting their members in this area (Id, pp. 18-20); and the
transformation of interactive process meetings from collaborative to adversarial (Id,
14

pp. 19-20). As a result, the Court did not raise any new issues which have not already been
considered and decided in Sonoma.
Additionally, while some of the interactive process communications may have been
historically resolved by email, phone call, or ergonomic evaluation, the instant case involves
probably the most critical point in time in which an employee would have a need for a union
representative for purposes of reasonable accommodation/fitness for duty; when medical
restrictions on their face question the employee’s ability to perform the essential functions of
their position with or without reasonable accommodation. In such a situation, an employer
may consider discharging an employee. (Government Code section 12940, subdivisions (a)(1)
and (2).) In the alternative, the employer may consider to reassigning the employee to a vacant
position (Government Code section 12926, subdivision (p)(2)), which may result in a demotion
and resulting decrease in pay. Indeed, other than a disciplinary action, one cannot imagine a
greater need where an individual employee would request representation from an exclusive
representative in representing one’s employment relations with the Court or the exclusive
representative would have the corresponding right to represent its members in their
employment relations with the Court. (Trial Court Act sections 71631 and 71633.)
Therefore, the Court’s refusal to allow Nguyen a union representative at her
June 19, 2013 interactive process meeting to explore possible reasonable accommodation
alternatives constitutes a violation of Trial Court Act sections 71631, 71633 and 71635.1 and
PERB Regulation 32606, subdivisions (a) and (b).
15

REMEDY
Pursuant to section 71639.1, subdivision (b), PERB under section 3541.3,
subdivision (i), is empowered to:
[T]ake any action and make any determinations in respect of
these charges or alleged violations as the board deems necessary
to effectuate the policies of this chapter.
It has been found that the Court violated the Trial Court Act sections 71631 and
71635.1 and PERB Regulation 32606, subdivision (a), by interfering with its employees’ rights
to be represented by Local 1021 when it denied Nguyen’s request to be represented by a
Local 1021 representative at her June 19, 2013 interactive process meeting to explore possible
reasonable accommodation alternatives. By this same conduct, the Court also denied
Local 1021 the right to represent its employees in violation of Government Code section 71633
and PERB Regulation 32606, subdivision (b). Accordingly, it is appropriate to order the Court
to cease and desist from such unlawful conduct. (Rio Hondo Community College District
(1983) PERB Decision No. 292.)
Local 1021 requested that PERB restore the status quo by rescinding the interactive-
process meeting of June 19, 2013, and ordering the Court to engage in a new interactive
meeting with Nguyen with her union representative. In a sense, Local 1021 contends that it
could have negotiated a better result for Nguyen than she received by possibly getting her
appointed to a LPC II position, and thereby increasing the salary she would have earned.
However, if Local 1021 wanted to pursue this avenue of advocacy, it still could have done so
either through the complaint process set up for complaints of denial of reasonable
accommodation (Court Personnel Plan Section 1007) or through the MOU grievance process
as to demotions or transfers from one classification to another (MOU Article 8.12, 8.13, and
16

8.15). No evidence was provided that such a grievance or complaint was pursued and
therefore such a remedy is denied.
Local 1021 requested that PERB order a Court representative to read a speech written
by Local 1021 of 250 words or less explaining that the Court violated the Trial Court Act and
that Local 1021 would have the ability to record and distribute such speech. Such a “shaming”
remedy seems highly inappropriate for a case in which PERB prior precedent was just
overturned and as such, this requested remedy will therefore be denied.
It is the ordinary remedy in PERB cases that the party found to have committed an
unfair practice be ordered to post notice incorporating the terms of the order. Such an order
ordinarily is granted to provide employees with a notice signed by an authorized agent that the
offending party has acted unlawfully, is being required to cease and desist from its unlawful
activity, and will comply with the order. Thus, it is appropriate to order the Court to post a
notice incorporating the terms of the order herein at its buildings, offices, and other facilities
where notices to bargaining unit employees are customarily posted. Posting of such notice
effectuates the purposes of the Trial Court Act that employees be informed of the resolution of
this matter and of the Court’s readiness to comply with the ordered remedy. (Placerville
Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Sonoma County Superior Court (Court) violated the Trial Court
Employment Protection and Governance Act (Trial Court Act), Government Code sections
71631, 71633, and 71635.1 and PERB Regulation 32606, subdivisions (a) and (b), by
interfering with its employees’ rights to be represented by Local 1021 when it denied Nguyen’s
17

request to be represented by a Service Employees International Union Local 1021 (Local 1021)
representative at her June 19, 2013 interactive process meeting to explore possible reasonable
accommodation alternatives.
Pursuant to section 71639.1 of the Government Code, it hereby is ORDERED that the
Court and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with employees’ right to have a union representative at
interactive process meetings to explore possible reasonable accommodation alternatives.
2. 	Denying Local 1021 the right to represent its employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the Court customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the Court, indicating that it will comply with the terms of this Order. Such
posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced, or covered with
any other material. In addition to physical posting of paper notices, the Notice shall be posted
by electronic message, intranet, internet site, and other electronic means customarily used by
the Court to communicate with its employees in the bargaining units represented by
Local 1021. Pursuant to City of Sacramento (2013) PERB Decision No. 2351 and other
applicable authority, the Court shall identify and include in its electronic posting any and all
affected employees who are no longer employed by the Court as of the date of posting, or use
personal delivery or some alternative means of notification reasonably devised to ensure that
18

any and all affected employees who are no longer employed by the Court are advised of their
rights and remedies under this Decision. Reasonable steps shall be taken to ensure that the
Notice is not reduced in size, altered, defaced, or covered with any other material;
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Local 1021.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board’s address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered “filed” when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered “filed” when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
19

subdivision (d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
20