Santa Clara County Superior Court (PERB 2394C)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 521,
Charging Party, 	Case No. SF-CE-15-C
PERB Decision No. 2394-C
SANTA CLARA COUNTY SUPERIOR COURT, 	October 20, 2014
Respondent.
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele, Attorney, for Service
Employees International Union, Local 521; Lozano Smith by Sarah Levitan Kaatz, Attorney,
for Santa Clara County Superior Court.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Service Employees International Union, Local 521
(SEIU) to the proposed decision (attached) of an administrative law judge (ALJ). The
complaint, issued by PERB's Office of the General Counsel, alleged that the Santa Clara County
Superior Court (Court) violated the Trial Court Employment Protection and Governance Act
(Trial Court Act)' and PERB regulations" when it failed and refused to bargain in good faith over
its decision to implement furloughs for SEIU bargaining unit members on court closure days.
The complaint also alleged that the Court's conduct interfered with the rights of bargaining
unit members to be represented by their exclusive representative and denied SEIU its right to
The Trial Court Act is codified at Government Code section 71600 et seq. Unless
otherwise noted, all statutory references are to the Government Code.
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 521,
Charging Party,
v.
SANTA CLARA COUNTY SUPERIOR COURT,
Respondent.
Case No. SF-CE-15-C
PERB Decision No. 2394-C
October 20, 2014
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele, Attorney, for Service
Employees International Union, Local 521; Lozano Smith by Sarah Levitan Kaatz, Attorney,
for Santa Clara County Superior Court.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Service Employees International Union, Local 521
(SEIU) to the proposed decision (attached)
of
an administrative law judge (ALJ). The
complaint, issued by PERB's Office
of
the General Counsel, alleged that the Santa Clara County
Superior Court (Court) violated the Trial Court Employment Protection and Governance Act
(Trial Court Act)1 and PERB regulations2 when it failed and refused to bargain in good faith over
its decision to implement furloughs for SEIU bargaining unit members on court closure days.
The complaint also alleged that the Court's conduct interfered with the rights of bargaining
unit members to be represented by their exclusive representative and denied SEIU its right to
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 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

represent its bargaining unit members. The ALJ concluded that the Court did not violate the
Trial Court Act or PERB regulations because it had no duty to bargain the decision to
implement furloughs under former Government Code section 68106' and that SEIU never
made a demand to bargain over the effects of the furlough decision.
Former Government Code section 68106 became inoperative by its own terms on
July 1, 2010. All references to section 68106 in this decision are to the statute which became
inoperative on July 1, 2010.
Former Government Code section 68106 stated:
(a) The Legislature finds and declares that the current fiscal
crisis, one of the most serious and dire ever to affect the state,
threatens the continued operations of the judicial branch. This
situation requires a unique response to effectively use judicial
branch resources while protecting the public by ensuring that
courts remain open and accessible and that the core functions of
the judicial branch are maintained to the greatest extent possible.
(b) Notwithstanding any other law, the Judicial Council may
provide that the courts be closed for the transaction of judicial
business for one day per month and may adopt rules of court to
implement this section, subject to the following conditions:
(1) If the Judicial Council has provided for the closure of
courts pursuant to this section, the day so designated shall be
treated as a holiday for purposes of performing any act requiring
the transaction of judicial business, including, but not limited to,
all of the following:
(A) The transaction of judicial business under Section 134
of the Code of Civil Procedure.
(B) The sitting or holding of a court under Section 136 of
the Code of Civil Procedure.
C) The computation of time under Sections 12 and 12a of
the Code of Civil Procedure.
(D) The computation of time under all time-dependent
provisions, including, but not limited to, Sections 825, 859b,
1050, 1191, 1382, and 1449 of the Penal Code, and Sections 313,
315, 631, 632, 637, 657, 702, 704, 708, and 777 of the Welfare
and Institutions Code.
(2) A court may still receive papers for filing on a day
designated for closure, but the time of filing of the papers shall be
the next court day on which the court is open for the transaction
2
represent its bargaining unit members. The ALJ concluded that the Court did not violate the
Trial Court Act or PERB regulations because it had no duty to bargain the decision to
implement furloughs under former Government Code section 681063 and that SEIU never
made a demand to bargain over the effects
of
the furlough decision.
3 Former Government Code section 68106 became inoperative by its own terms
on
July
1,
2010. All references to section 68106 in this decision are to the statute which became
inoperative on July 1, 2010.
Former Government Code section 68106 stated:
(a) The Legislature finds and declares that the current fiscal
crisis, one
of
the most serious and dire ever to affect the state,
threatens the continued operations
of
the judicial branch. This
situation requires a unique response to effectively use judicial
branch resources while protecting the public by ensuring that
courts remain open and accessible and that the core functions
of
the judicial branch are maintained to the greatest extent possible.
(b) Notwithstanding any other law, the Judicial Council may
provide that the courts be closed for the transaction
of
judicial
business for one day per month and may adopt rules
of
court to
implement this section, subject to the following conditions:
(1)
If
the Judicial Council has provided for the closure
of
courts pursuant to this section, the day so designated shall be
treated as a holiday for purposes
of
performing any act requiring
the transaction
of
judicial business, including, but not limited to,
all
of
the following:
(A) The transaction
of
judicial business under Section 134
of
the Code
of
Civil Procedure.
(B) The sitting or holding
of
a court under Section
13
6
of
the Code
of
Civil Procedure.
(C) The computation
of
time under Sections 12 and 12a
of
the Code
of
Civil Procedure.
(D) The computation
of
time under all time-dependent
provisions, including, but not limited to, Sections 825, 859b,
1050, 1191, 1382, and 1449
of
the Penal Code, and Sections 313,
315,631,632,637, 657, 702, 704, 708, and 777 of the Welfare
and Institutions Code.
(2) A court may still receive papers for filing on a day
designated for closure, but the time of filing of the papers shall be
the next court day on which the court is open for the transaction
2

of judicial business. The receipt of papers pursuant to this
subdivision shall not constitute opening of the court for any
purpose. A day designated for closure under this section is not
governed by Section 68108.
(3) The impact of the court closure shall be subject to
subdivision (c) of Section 71634 and subdivision (c) of Section
71816. Notwithstanding any other law, any court closure or
reduction in earnings as a result of this section shall not constitute
a reduction in salary or service for the purpose of calculation of
retirement benefits or other employment-related benefits for court
employees otherwise eligible for those benefits. Nothing in this
section shall relieve a trial court of its obligation to meet and
confer concerning the impact of a court closure pursuant to
Chapter 7 (commencing with Section 71600) and Chapter 7.5
(commencing with Section 71800) of Title 8 of the Government
Code, and the trial courts, rather than the Judicial Council or
Administrative Office of the Courts, shall remain responsible for
meeting and conferring concerning that impact.
(4) A judge or justice may sign a form, to be prepared by the
Administrative Office of the Courts, which shall provide that the
judge or justice voluntarily agrees to irrevocably waive, in
advance, on a monthly basis, an amount equal to 4.62 percent of
the monthly salary otherwise payable to the judge or justice in the
absence of a waiver. The Administrative Office of the Courts
shall transmit the form to the Controller, county, or other entity
paying the salary of the judge or justice, except that the form
shall only be transmitted to the entity that pays the greatest
portion of the salary if the judge or justice is paid by more than
one entity. The entity receiving the form shall reduce the
payment otherwise due to the judge or justice from that entity by
an amount that takes into account the full effect of the
4.62 percent reduction of the total monthly salary of the judge or
justice received from all entities. Notwithstanding any other law,
a judge or justice who elects to sign the form under this section
shall not be deemed by that act to be holding office for other than
f salary, and that waiver shall not be deemed a reduction in
salary or service for purposes of the calculation of any retirement
Section 68220, or other job-related benefits. Except as necessary
waiver is not obligated to appear for work at the courthouse on
any day that a court is closed under this section.
3
of
judicial business. The receipt
of
papers pursuant to this
subdivision shall not constitute opening
of
the court for any
purpose. A day designated for closure under this section is not
governed by Section 68108.
(3) The impact
of
the court closure shall be subject to
subdivision (c)
of
Section 71634 and subdivision (c)
of
Section
71816. Notwithstanding any other law, any court closure or
reduction in earnings as a result
of
this section shall not constitute
a reduction in salary or service for the purpose
of
calculation
of
retirement benefits or other employment-related benefits for court
employees otherwise eligible for those benefits. Nothing in this
section shall relieve a trial court
of
its obligation to meet and
confer concerning the impact
of
a court closure pursuant to
Chapter 7 (commencing with Section 71600) and Chapter 7.5
(commencing with Section 71800)
of
Title 8
of
the Government
Code, and the trial courts, rather than the Judicial Council or
Administrative Office
of
the Courts, shall remain responsible for
meeting and conferring concerning that impact.
(4) A judge or justice may sign a form, to be prepared by the
Administrative Office
of
the Courts, which shall provide that the
judge or justice voluntarily agrees to irrevocably waive, in
advance, on a monthly basis, an amount equal to 4.62 percent
of
the monthly salary otherwise payable to the judge or justice in the
absence
of
a waiver. The Administrative Office
of
the Courts
shall transmit the form to the Controller, county, or other entity
paying the salary
of
the judge or justice, except that the form
shall only be transmitted to the entity that pays the greatest
portion
of
the salary
if
the judge or justice is paid by more than
one entity. The entity receiving the form shall reduce the
payment otherwise due to the judge or justice from that entity by
an amount that takes into account the full effect
of
the
4.62 percent reduction of the total monthly salary
of
the judge or
justice received from all entities. Notwithstanding any other law,
a judge or justice who elects to sign the form under this section
shall not be deemed by that act to be holding office for other than
full-time	full-time service during the time covered by the voluntary waiver	service during the time covered by the voluntary waiver
o
of
salary, and that waiver shall not be deemed a reduction in
salary or service for purposes
of
the calculation
of
any retirement
benefits, supplemental judicial benefits provided pursuant to	benefits, supplemental judicial benefits provided pursuant to
Section 68220, or other job-related benefits. Except as necessary
for purposes of paragraph (5), a judge or justice who makes a	for purposes of paragraph (5), a judge or justice who makes a
waiver is not obligated to appear for work at the courthouse on
any day that a court is closed under this section.
3

(5) A judicial officer shall be available for the signing of any
necessary documents on an emergency basis during the time a
court is closed under this section on the same basis as a judicial
officer is available on Saturdays, Sundays, and judicial holidays,
and any other time a court is closed.
(6) As a result of the closures authorized by this subdivision,
court security shall not be required on any day in which courts are
closed pursuant to this section.
(A) If a superior court has executed a memorandum of
understanding as required by Section 69926 with a sheriff,
county, or sheriff and county, the court and the sheriff, county, or
sheriff and county shall negotiate in good faith a reduction of
4.62
reduced amount of security resulting from the closure of the
courts under this section. Nothing in this section shall prohibit a
superior court and sheriff, county, or sheriff and county from
other cost savings programs. If necessary, the court and sheriff,
county, or sheriff and county shall amend the memorandum of
understanding required under Section 69926 to reflect that
reduction. Notwithstanding any other law or memorandum of
understanding, if the court and sheriff are unable to reach an
agreement within 30 days of the first court closure after good
faith negotiations, the amount of compensation payable to the
sheriff under the memorandum of understanding shall be reduced
by an amount equal to 4.62 percent of those allowable costs
authorized to be paid under paragraph (6) of subdivision (a) of
Section 69927. The sheriff shall not reduce the level of service
previously required under its memorandum of understanding on
the days the court remains open due to this 4.62 percent
reduction. Upon reaching an agreement, the court and sheriff
may reconcile any prior payments based on the terms
subsequently agreed upon by the court and sheriff.
(B) If a superior court and a sheriff, county, or sheriff and
county, have not executed a memorandum of understanding as
required by Section 69926, the sheriff shall continue to provide
security services as required by the court, but the compensation
payable to the sheriff shall be no more than the rate of the
average monthly amount paid by the court to the sheriff in the
2008-09 fiscal year, reduced by 4.62 percent, to reflect the
reduced level of security required as a result of the closure of the
courts under this section.
(c) To the extent practicable, the impact of the court closure on
the availability of courtrooms and court services shall be spread
in a proportional manner that reflects the caseload of the court.
( 5) A judicial officer shall be available for the signing
of
any
necessary documents on an emergency basis during the time a
court is closed under this section on the same basis as a judicial
officer is available on Saturdays, Sundays, and judicial holidays,
and any other time a court is closed.
(6) As a result
of
the closures authorized by this subdivision,
court security shall not be required on any day in which courts are
closed pursuant to this section.
(A)
If
a superior court has executed a memorandum
of
understanding as required by Section 69926 with a sheriff,
county, or sheriff and county, the court and the sheriff, county, or
sheriff and county shall negotiate in good faith a reduction
of
4.62 percent in the compensation due to the sheriff because of the	percent in the compensation due to the sheriff because
of
the
reduced amount
of
security resulting from the closure
of
the
courts under this section. Nothing in this section shall prohibit a
superior court and sheriff, county, or sheriff and county from
negotiating additional savings due to voluntary court closures or	negotiating additional savings due to voluntary court closures or
other cost savings programs.
If
necessary, the court and sheriff,
county, or sheriff and county shall amend the memorandum
of.
understanding required under Section 69926 to reflect that
reduction. Notwithstanding any other law or memorandum
of
understanding,
if
the court and sheriff are unable to reach an
agreement within 30 days
of
the first court closure after good
faith negotiations, the amount
of
compensation payable to the
sheriff under the memorandum
of
understanding shall be reduced
by an amount equal to 4.62 percent
of
those allowable costs
authorized to be paid under paragraph (6)
of
subdivision (a)
of
Section 69927. The sheriff shall not reduce the level
of
service
previously required under its memorandum
of
understanding on
the days the court remains open due to this 4.62 percent
reduction. Upon reaching an agreement, the court and sheriff
may reconcile any prior payments based on the terms
subsequently agreed upon by the court and sheriff.
(B)
If
a superior court and a sheriff, county, or sheriff and
county, have not executed a memorandum
of
understanding as
required by Section 69926, the sheriff shall continue to provide
security services as required by the court, but the compensation
payable to the sheriff shall be no more than the rate
of
the
average monthly amount paid by the court to the sheriff in the
2008-09 fiscal year, reduced by 4.62 percent, to reflect the
reduced level of security required as a result
of
the closure
of
the
courts under this section.
(c) To the extent practicable, the impact
of
the court closure on
the availability of courtrooms and court services shall be spread
in a proportional manner that reflects the caseload of the court.
4

We have reviewed the entire record in this matter including the proposed decision,
SEIU's exceptions and the Court's response thereto. The ALJ's proposed decision is well-
reasoned, adequately supported by the record and in accordance with applicable law.
Accordingly, the Board adopts the ALJ's proposed decision as the decision of the Board itself
subject to our discussion below of SEIU's exceptions.
PROCEDURAL HISTORY
SEIU filed its initial unfair practice charge on August 17, 2009, alleging that the Court
imposed furloughs on its bargaining unit members without bargaining in violation of Trial
Court Act section 71634.2." On September 2, 2009, the Court filed its position statement
denying that it refused to bargain and asserting that SEIU's charge was prematurely filed since
no furloughs had yet taken place.
On November 4, 2010, SEIU filed its first amended charge reiterating its allegations
that the Court had failed to meet and confer in good faith regarding the imposition of furloughs
(d) This section shall become inoperative on July 1, 2010, and,
as of January 1, 2011, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2011, deletes or
extends the dates on which it becomes inoperative and is
repealed.
" Trial Court Act section 71634.2 "Meet and confer requirements" states:
(a) The trial court, or those representatives as it may designate,
other terms and conditions of employment within the scope of
representation, as defined in Section 71634, with representatives
of the recognized employee organizations, as defined in
Section 71611, and shall consider fully the presentations as are
made by the recognized employee organization on behalf of its
members prior to arriving at a determination of policy or course
of action.
(b) In fulfilling the requirements of subdivision (a), the court and
the county may consult with each other, may negotiate jointly,
and each may designate the other in writing as it agent on any
matters within the scope of representation.
5
We
have reviewed the entire record
in
this matter including
the
proposed decision,
SEITJ's exceptions and the
Court's
response thereto. The
ALJ's
proposed decision is well-
reasoned, adequately supported
by
the record and in accordance with applicable law.
Accordingly, the Board adopts
the
ALJ's
proposed decision as the decision
of
the Board itself
subject to our discussion
below
of
SEIU's
exceptions.
PROCEDURAL HISTORY
SEIU filed its initial unfair practice charge
on
August 17, 2009, alleging that the Court
imposed furloughs on its bargaining unit members without bargaining
in
violation
of
Trial
Court
Act
section 71634.2.4
On
September 2, 2009, the Court filed its position statement
denying that it refused to bargain and asserting that SEIU's charge was.prematurely filed since
no furloughs had yet taken place.
On
November 4, 2010, SEIU filed its first amended charge reiterating its allegations
that the Court had failed
to meet and confer in good faith regarding the imposition
of
furloughs
(d) This section shall become inoperative on July 1, 2010, and,
as
of
January 1, 2011, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2011, deletes or
extends the dates on which it becomes inoperative and is
repealed.
4 Trial Court Act section 71634.2 "Meet and confer requirements" states:
5
(a) The trial court, or those representatives as it may designate,
shall	shall meet and confer in good faith regarding wages, hours, and	meet and confer in good faith regarding wages, hours, and
other terms and conditions
of
employment within the scope
of
representation, as defined in Section 71634, with representatives
of
the recognized employee organizations, as defined in
Section 71611, and shall consider fully the presentations as are
made by the recognized employee organization on behalf
of
its
members prior to arriving at a determination
of
policy or course
of
action.
(b) In fulfilling the requirements
of
subdivision (a), the court and
the county may consult with each other, may negotiate jointly,
and each may designate the other in writing as it agent on any
matters within the scope of representation.

and also alleging that the Court failed to provide SEIU with information necessary and relevant
to the discharge of its representational duties. On January 14, 2011, the Court filed its
response to SEIU's first amended charge. The Court again denied that it failed to meet its
obligations to provide notice or to meet and confer with SEIU over the furloughs. The Court
also maintained that SEIU failed to make an effects bargaining demand and that it had
provided SEIU with all of the documents it had requested.
On January 25, 2011, PERB's Office of the General Counsel issued a partial warning
letter notifying SEIU that it had alleged insufficient facts to determine whether the Court had
failed to provide any or all information pursuant to a valid request. On February 7, 2011,
SEIU filed its second amended charge alleging with greater specificity which documents SEIU
had requested and that the Court had failed to provide. On February 18, 2011, the Court filed
its response denying that it did not provide SEIU with the documents specified in SEIU's
second amended charge.
On March 2, 2011, PERB's Office of the General Counsel dismissed SEIU's
allegations regarding the requests for information and issued a complaint alleging that the
Court failed to bargain in good faith over its decision to implement furlough days for SEIU
bargaining unit members. On March 22, 2011, the Court filed its answer denying: (1) that it
took the position that it was not required to meet and confer over its decision to implement
furloughs; (2) that it refused to bargain in good faith; (3) that it interfered with employee rights
to representation; and (4) that it denied SEIU its right to represent its members.
Informal settlement conferences were held on April 4, and May 2, 2011. No settlement
was reached. A formal hearing was scheduled for October 13, and 14, 2011, and subsequently
rescheduled for December 15 and 16, 2011. On November 21, 2011, the Court filed an
amended answer admitting that it took the position that it was not required to meet and confer
6
and also alleging that the Court failed to provide SEIU with information necessary and relevant
to the discharge
of
its representational duties. On January 14, 2011, the Court filed its
response to SEIU's first amendeq. charge. The Court again denied that it failed to meet its
obligations to provide notice or to meet and confer with SEIU over the furloughs. The Court
also maintained that SEIU failed to make an effects bargaining demand and that
it
had
provided SEIU with all
of
the documents it had requested.
On January 25, 2011, PERB's Office
of
the General Counsel issued a partial warning
letter notifying SEIU that
it
had alleged insufficient facts to determine whether the Court had
failed to provide any or all information pursuant to a valid request. On February
7,
2011,
SEIU filed its second amended charge alleging with greater specificity which documents SEIU
had requested and that the Court had failed to provide. On Febmary 18, 2011, the Court filed
its response denying that it did not provide SEIU with the documents specified in SEIU' s
second amended charge.
On March 2, 2011, PERB' s Office
of
the General Counsel dismissed SEIU' s
allegations regarding the requests for information and issued a complaint alleging that the
Court failed to bargain in good faith over its decision to implement furlough days for SEIU
bargaining unit members. On March 22, 2011, the Court filed its answer denying: (1) that it
took the position that it was not required to meet and confer over its decision to implement
furloughs; (2) that
it
refused to bargain in good faith; (3) that it interfered with employee rights
to representation; and (4) that it denied SEIU its right to represent its members.
Informal settlement conferences were held on April 4, and May 2, 2011. No settlement
was reached. A formal hearing was scheduled for October 13, and 14, 2011, and subsequently
rescheduled for December 15 and 16, 2011. On November 21, 2011, the Court filed an
amended answer admitting that it took the position that it was not required to meet and confer
6

over its decision to implement furloughs, but denying that it had violated the Trial Court Act
by doing so. On the same date, the Court filed a motion to vacate the hearing date based on the
absence of disputed facts.
On December 8, 2011, SEIU filed a motion to amend the complaint. The proposed
amendment sought to change paragraph 3 of the complaint to:
3. 'On or about July 28, 2009, Respondent took a position that it
was not required to meet and confer over its decision to
implement furlough days for bargaining unit members, and on
each of the ten Court closure days between September 16, 2009
and June 16, 2010, Respondent implemented unpaid "furlough
days " for employees.'
(Changes to complaint underlined, emphasis in original.) On December 9, 2011, the Court
filed its non-opposition to SEIU's motion to amend the complaint and filed a second amended
answer admitting the allegations in amended paragraph 3 and denying that it had violated the
Trial Court Act by so doing.
On January 30, 2012, SEIU filed its opening brief and a motion requesting that the ALJ
take administrative notice of the contents of the entire unfair practice charge file, specifically:
(1) the parties' November 20, 2002 to October 25, 2009, memorandum of understanding
(MOU); and (2) Exhibit B of the Court's January 14, 2011, response to the first amended
charge which consists of an e-mail exchange between SEIU and the Court's attorney and an
attached notice to Court employees notifying them of the then impending court closures and
furloughs. Also on January 30, 2012, the Court filed its opening brief.
On February 10, 2012, the Court filed its own motion requesting that the ALJ take
administrative notice of the contents of the unfair practice charge file, specifically the Office of
PERB Regulation 32207 states:
The parties may submit stipulated facts where appropriate to the
Board agent. No hearing shall be required unless the parties
dispute the facts in the case.
7
over its decision to implement furloughs, but denying that it had violated the Trial Court Act
by
doing so. On the same date, the Court filed a motion to vacate the hearing date based on the
absence
of
disputed facts. 5
On December 8, 2011, SEID filed a motion to amend the complaint. The proposed
amendment sought to change paragraph 3
of
the complaint to:
3.
	'On
or about July 28, 2009, Respondent took a position that it
was not required to meet and confer over its decision to
implement furlough days for bargaining unit members, and on
each
ofthe
ten Court closure days between September
16,
2009
and June
16,
2010, Respondent implemented unpaid "furlough
days "
for
employees.'
(Changes to complaint underlined, emphasis in original.) On December 9, 2011, the Court
filed its non-opposition to
SElli's
motion to amend the complaint and filed a second amended
answer admitting the allegations in amended paragraph 3 and denying that it had violated the
Trial Court Act by so doing.
On January 30, 2012, SEID filed its opening brief and a motion requesting that the ALJ
take administrative notice
of
the contents
of
the entire unfair practice charge file, specifically:
(1) the parties' November 20, 2002 to October 25, 2009, memorandum
of
understanding
(MOU); and (2) Exhibit B
of
the Court's January 14, 2011, response to the first amended
charge which consists
of
an e-mail exchange between SEID and the Court's attorney and an
attached notice to Court employees notifying them
of
the then impending court closures and
furloughs. Also on January 30, 2012, the Court filed its opening brief.
On February 10, 2012, the Court filed its own motion requesting that the ALJ take
administrative notice
of
the contents
of
the unfair practice charge file, specifically the Office
of
5 PERB Regulation 32207 states:
The parties may submit stipulated facts where appropriate to the
Board agent. No hearing shall be required unless the parties
dispute the facts in the case.
7

the General Counsel's March 2, 2011, partial dismissal letter. On February 13, 2012, the Court
filed its opposition to the scope of SEIU's request for administrative notice. The Court
objected to SEIU's request that the ALJ take notice of the entire file as overbroad, but did not
object to the ALJ's taking notice of the parties' MOU.
On February 13, 2012, both SEIU and the Court filed their reply briefs. On
February 14, 2012, SEIU filed its non-opposition to the Court's motion to take administrative
notice. On March 28, 2012, the ALJ granted SEIU's motion to amend the complaint and the
Court's request that the ALJ take administrative notice of the dismissal letter. The ALJ
partially granted SEIU's request for administrative notice: the ALJ took notice of the parties'
MOU, but did not take notice of the emails and attached furlough notice.
On September 17, 2012, the unfair practice charge was transferred to a different ALJ.
On October 12, 2012, the second ALJ issued a proposed decision. On November 19, 2012,
SEIU filed its statement of exceptions to the ALJ's proposed decision, a request for oral
argument and a request for official notice." On December 19, 2012, the Court filed its
response and brief in opposition to SEIU's statement of exceptions and opposition to SEIU's
request for official notice. On December 31, 2012, the parties were informed that the filings
were complete.
FACTS
In the Summer of 2009, the Legislature enacted Government Code section 68106,
which authorized the California Judicial Council (CJC)' to provide for court closures during
one day each month. Section 68106(a) stated that California was facing a serious fiscal crisis
which threatened "the continued operations of the judicial branch." The CJC anticipated a
" See discussion infra, p. 15.
"The CJC is the policymaking body of the California court system.
the General Counsel's March 2, 2011, partial dismissal letter. On February 13, 2012, the Court
filed its opposition to the scope
of
SEIU's request for administrative notice. The Court
·objected to SEIU' s request that the ALJ take notice
of
the entire file as overbroad, but did not
object to the ALJ's taking notice
of
the parties' MOU.
On February 13, 2012, both SEIU and the Court filed their reply briefs. On
February 14, 2012, SEIU filed its non-opposition to the Court's motion to take administrative
notice. On March 28, 2012, the ALJ granted SEIU's motion to amend the complaint and the
Court's request that the ALJ take administrative notice
of
the dismissal letter. The ALJ
partially granted SEIU's request for administrative notice: the ALJ took notice
of
the parties'
MOU, but did not take notice
of
the emails and attached furlough notice.
On September 17, 2012, the unfair practice charge was transferred to a different ALJ.
On October 12, 2012, the second ALJ issued a proposed decision. On November 19, 2012,
SEIU filed its statement
of
exceptions to the ALJ' s proposed decision, a request for oral
argument and a request for official notice.6 On December 19, 2012, the Court filed its
response and brief in opposition to SEIU' s statement
of
exceptions and opposition to SEIU' s
request for official notice. On December 31, 2012, the parties were informed that the filings
were complete.
·
FACTS
In the Summer
of
2009, the Legislature enacted Government Code section 68106,
which authorized the California Judicial Council (CJC)7 to provide for court closures during
one day each month. 	Section 68106(a) stated that California was facing a serious fiscal crisis
which threatened "the continued operations of the judicial branch." The CJC anticipated a
6 See discussion infra, p. 15.
7 The CJC is the policymaking body of the California court system.
8

$360 million reduction in funding for court operations. CJC informed the Court that its
funding would be reduced by $10.9 million for the 2009-2010 fiscal year. (Proposed
Dec., p. 3.)
On July 28, 2009, SEIU and the Court met for a bargaining session regarding potential
court closures. On or about July 29, 2009, citing cost savings, the CJC designated the third
Wednesday of each month as a uniform statewide court closure day effective September 2009
through June 2010. A second bargaining session between SEIU and the Court was scheduled
for August 13, 2009; however, SEIU cancelled this session. Also on August 13, 2009, after the
cancelation of the bargaining session, the Court sent SEIU a proposed side-letter agreement via
e-mail regarding the implementation of furloughs for court employees on the ten scheduled
court closure days. (Proposed Dec., pp. 4-5.)
On August 14, 2009, the Court forwarded to SEIU an e-mail with an attached
memorandum from Court Chief Executive Officer David Yamasaki (Yamasaki) that was to be
issued to all Court staff on August 17, 2009, announcing the closure of the Court on the third
Wednesday of each month and the furloughs of all Court employees on those court closure
days. Yamasaki's memo noted that the impact of the furloughs was subject to the meet and
confer process under the Trial Court Act. The parties did not meet in another bargaining
session. The first court closure and furlough occurred on September 16, 2009. A total of ten-
court closure/furlough days were imposed between September 2009 and June 2010. (Proposed
Dec., pp. 5-6.)
In its answer, the Court admitted that it maintained the position throughout the
process, that it was not obligated under section 68106 to bargain over the decision to
implement furloughs during the court closure days.
$360 million reduction in funding for court operations. CJC informed the Court that its
funding would be reduced by $10.9 million for the 2009-2010 fiscal year. (Proposed
Dec., p. 3.)
On July 28, 2009, SEIU and the Court met for a bargaining session regarding potential
court closures.
On
or about July 29, 2009, citing cost savings, the CJC designated the third
Wednesday
of
each month as a uniform statewide court closure day effective September 2009
through June 2010. A second bargaining session between SEIU and the Court was scheduled
for August 13, 2009; however, SEIU cancelled this session. Also on August 13, 2009, after the
cancelation
of
the bargaining session, the Court sent SEIU a proposed side-letter agreement via
e-mail regarding the implementation
of
furloughs for court employees on the ten scheduled
court closure days. (Proposed Dec., pp. 4-5.)
On August 14, 2009, the Court forwarded to SEIU an e-mail with an attached
memorandum from Court Chief Executive Officer David Yamasaki (Yamasak:i) that was to be
issued to all Court staff on
August 17, 2009, announcing the closure
of
the Court on the third
Wednesday
of
each month and the furloughs
of
all Court employees on those court closure
days. Yamasak:i's memo noted that the impact
of
the furloughs was subject to the meet and
confer process under the Trial Court Act. 8 The parties did not meet in another bargaining
session. The first court closure and furlough occurred on September 16,2009. A total
of
ten-
court closure/furlough days were imposed between September 2009 and June 2010. (Proposed
Dec., pp. 5-6.)
8 In its answer, the Court admitted that it maintained the position throughout the
process, that it was not obligated under section 68106 to bargain over the decision to
implement furloughs during the court closure days.
9

PROPOSED DECISION
On October 12, 2012, the ALJ issued her proposed decision. In determining whether
the Court had violated its duty to bargain, the ALJ identified the key question as whether
section 68106 absolved the Court of its duty to bargain over the decision to furlough
employees pursuant to its authority to close the Court under section 68106.
The ALJ noted SEIU's several arguments that section 68106 did not absolve the Court
from bargaining over the furlough decision. According to SEIU: (1) section 68106 authorized
the courts to close for the transaction of "judicial business" but left open the possibility that
court employees could perform alternate work; (2) furloughs affect hours of employment,
therefore the decision to mandate furloughs falls within scope of representation under the Trial
Court Act and the Court had a duty to bargain the decision to impose them; and (3) it would
violate the federal and state constitutions to interpret section 68106 in a manner that permits
the unilateral implementation of furloughs despite the existence of a valid MOU that prohibits
a unilateral reduction in hours of employment. The ALJ also noted the Court's counter-
arguments that section 68106 clearly specified that only the impacts of the court closures were
subject to bargaining and that the only business of the Court is "judicial business." (Proposed
Dec., pp. 8-9.)
The ALJ then analyzed section 68106 in order to determine the legislative intent.
According to the ALJ, the legislative intent of section 68106 is perfectly clear from the
language of the statute:
[T]he underlying objective of section 68106 was to immediately
authorize limited court closures in order to save money so that the
Judicial Branch could keep afloat.
(Proposed Dec., p. 10.) Based on this interpretation, the ALJ rejected SEIU's argument that
section 68106 did not authorize the Court to implement furloughs on court closure days. The
10
PROPOSED DECISION
On October 12, 2012, the ALJ issued her proposed decision. In determining whether
the Court had violated its duty to bargain, the ALJ identified the key question as whether
section 68106 absolved the Court
of
its duty to bargain over the decision to furlough
employees pursuant to its authority to close the Court under section 68106.
The ALJ noted SEID' s several arguments that section 68106 did not absolve the Court
from bargaining over the furlough decision. According to SEID: (1) section 68106 authorized
the courts to close for the transaction of "judicial business" but left open the possibility that
court employees could perform alternate work; (2) furloughs affect hours
of
employment,
therefore the decision to mandate furloughs falls within scope
of
representation under the Trial
Court Act and the Court had a duty to bargain the decision to impose them; and (3) it would
violate the federal and state constitutions to interpret section 68106 in a manner that permits
the unilateral implementation
of
furloughs despite the existence
of
a valid MOU that prohibits
a unilateral reduction in hours
of
employment. The ALJ also noted the Court's counter-
arguments that section 68106 clearly specified that only the impacts
of
the court closures were
subject to bargaining and that the only business
of
the Court is "judicial business." (Proposed
Dec., pp. 8-9.)
The ALJ then analyzed section 68106 in order to determine the legislative intent.
According to the ALJ, the legislative intent
of
section 68106 is perfectly clear from the
language
of
the statute:
[T]he underlying objective of section 68106 was to immediately
authorize limited court closures in order to save money so that the
Judicial Branch could keep afloat.
(Proposed Dec., p. 10.) Based on this interpretation, the ALJ rejected SEIU's argument that
section 68106 did not authorize the Court to implement furloughs on court closure days. The

ALJ determined SEIU's proposed interpretation of section 68106 was inconsistent with the
Legislature's purpose, because the Court would realize no cost savings from closing the Court
to the public while allowing employees to report to work. (Proposed Dec., p. 10.)
The ALJ determined that Government Code section 20969.1(c) also supported the
interpretation that:
[The Legislature intended that employees would have forced
absences without pay when the Judicial Council determined to
exercise its authority under section 68106.
Proposed Dec., p. 1 1, emphasis in original.) The ALJ determined that it would be
unnecessary for the Legislature to carve out an exception for retirement and benefits had it not
intended that the section 68106 court closures would result in furloughs and automatic pay
reductions for trial court employees. (Proposed Dec., pp. 11-12.)
The ALJ rejected SEIU's argument that reference to Code of Civil Procedure (CCP)
section 134" in section 68106 demonstrates legislative intent that trial court employees could
Government Code section 20969.1 specifies that trial court employees will receive
credit for service and earnable compensation for all retirement purposes and benefit eligibility
"that would have been credited had the employee not been subject to mandatory furloughs."
Subdivision (c) defines "mandatory furloughs" as "the time during which a trial court
employee is directed to be absent from work without pay in the 2009-10 fiscal year on the day
designated by the Judicial Council for closure of the courts as authorized in Section 68106."
10 Code of Civil Procedure section 134 states:
(a) Except as provided in subdivision (c), the courts shall be
closed for the transaction of judicial business on judicial holidays
for all but the following purposes:
(1) To give, upon their request, instructions to a jury when
deliberating on their verdict.
(2) To receive a verdict or discharge a jury.
11
ALJ determined SEIU 1 s proposed interpretation
of
section 68106 was inconsistent with the
Legislature's purpose, because the Court would realize no cost savings from closing the Court
to the public while allowing employees to report to work. (Proposed Dec., p. 10.)
The ALJ determined that Government Code section 20969
.1
(c
)9
also supported the
interpretation that:
[T]he Legislature intended that employees would have forced
absences without pay when the Judicial Council determined to
exercise its authority under section 68106.
(Proposed Dec., p. 11, emphasis in original.) The ALJ determined that it would be
unnecessary for the Legislature to carve out an exception for retirement and benefits had it not
intended that the section 68106 court closures would result in furloughs and automatic pay
reductions for trial court employees. (Proposed Dec., pp. 11-12.)
The ALJ rejected SEIU's argument that reference to Code
of
Civil Procedure (CCP)
section 134
10
in section 68106 demonstrates legislative intent that trial court employees could
9 Government Code section 20969.1 specifies that trial court employees will receive
credit for service and earnable compensation for all retirement purposes and benefit eligibility
"that would have been credited had the employee not been subject to mandatory furloughs."
Subdivision (c) defines "mandatory furloughs" as "the time during which a trial court
employee is directed to be absent from work without pay in the 2009-10 fiscal year on the day
designated by the Judicial Council for closure
of
the courts as authorized in Section 68106."
1°Code
of
Civil Procedure section 134 states:
(a) Except as provided in subdivision (c), the courts shall be
closed for the transaction
of
judicial business on judicial holidays
for all but the following purposes:
(I) To give, upon their request, instructions to a jury when
deliberating on their verdict.
(2) To receive a verdict or discharge a jury.
11

perform alternate work on court closure days. The ALJ determined that the fact that the
Legislature carved out special exceptions for various types of judicial business transactions
that could be permitted when the courts otherwise would be closed did not demonstrate a
legislative intent that the Court should be required to bargain over whether employees could
perform alternate work during court closures. The ALJ determined that the reference to
CCP section 134 established the same exceptions for the conduct of judicial business on
closure days that could be made during any judicial holiday.
The ALJ determined that in section 68106 the Legislature "clearly intended to limit the
Court's bargaining obligation only to the effects of court closures on subjects within the scope
of representation." (Proposed Dec., p. 12.) Noting that "impact" and "decision" bargaining
are well-known terms of art in labor law, the ALJ found it persuasive that section 68106(b)(3)
(3) For the conduct of arraignments and the exercise of the
powers of a magistrate in a criminal action, or in a proceeding of
a criminal nature.
(4) For the conduct of Saturday small claims court sessions
pursuant to the Small Claims Act set forth in Chapter 5.5
(commencing with Section 116.110).
(b) Injunctions and writs of prohibition may be issued and served
on any day.
(c) In any superior court, one or more departments of the court
may remain open and in session for the transaction of any
business that may come before the department in the exercise of
the civil or criminal jurisdiction of the court, or both, on a judicial
holiday or at any hours of the day or night, or both, as the judges
of the court prescribe.
(d) The fact that a court is open on a judicial holiday shall not
make that day a nonholiday for purposes of computing the time
required for the conduct of any proceeding nor for the
performance of any act. Any paper lodged with the court at a
time when the court is open pursuant to subdivision (c), shall be
filed by the court on the next day that is not a judicial holiday, if
the document meets appropriate criteria for filing.
12
perform alternate work on court closure days. The ALJ determined that the fact that the
Legislature carved out special exceptions for various types
of
judicial business transactions
that could be permitted when the courts otherwise would be closed did not demonstrate a
legislative intent that the Court should be required to bargain over whether employees could
perform alternate work during court closures. The ALJ determined that the reference to
CCP section 134 established the same exceptions for the conduct
of
judicial business on
closure days that could be made during any judicial holiday.
The ALJ determined that in section 68106 the Legislature "clearly intended to limit the
Court's bargaining obligation only to the effects
of
court closures on subjects within the scope
of
representation." (Proposed Dec., p. 12.) Noting that "impacf' and "decision" bargaining
are well-known terms
of
art in labor law, the ALJ found it persuasive that section 68106(b)(3)
(3) For the conduct
of
arraignments and the exercise
of
the
powers
of
a magistrate in a criminal action, or in a proceeding
of
a criminal nature.
(4) For the conduct
of
Saturday small claims court sessions
pursuant to the Small Claims Act set forth in Chapter 5.5
(commencing with Section 116.110).
(b) Injunctions and writs
of
prohibition may be issued and served
on any day.
(c) In any superior court, one or more departments of the court
may remain open and in session for the transaction
of
any
business that may come before the department in the exercise
of
the civil or criminal jurisdiction
of
the court, or both, on a judicial
holiday or at any hours of the day or night, or both, as the judges
of
the court prescribe.
(d) The fact that a court is open on a judicial holiday shall not
make that day a nonholiday for purposes of computing the time
required for the conduct of any proceeding nor for the
performance of any act. Any paper lodged with the court at a
time when the court is open pursuant to subdivision (c), shall be
filed by the court on the next day that is not a judicial holiday, if
the document meets appropriate criteria for filing.
12

specifically mentions the obligation to bargain over the "impact" of court closures three
different times and that:
[TJhere would be no clear purpose in repeatedly limiting the
bargaining obligation only to impacts of court closures if the
Legislature had actually intended to also require bargaining over
the decision to furlough employees.
(Proposed Dec., p. 13, emphasis in original.)
Relying on her previous determination that section 68106 authorized the CJC to
implement mandatory furloughs, the ALJ rejected SEIU's argument that unlike the explicit
furlough plan in Professional Engineers in California Government v. Arnold Schwarzenegger
(2010) 50 Cal.4th 989 (Professional Engineers), section 68106 did not contain a clear
indication of the Legislature's intent to authorize furloughs. The ALJ also rejected SEIU's
contention that just as the emergency exception in the Ralph C. Dills Act (Dills Act)! did not
authorize the unilateral reduction of employees' hours of work and compensation, the
emergency exception to the Trial Court Act (section 71634.1) did not authorize unilateral
action in this case. The ALJ determined that:
The Court in this case need not prove an emergency existed
sufficient to invoke the protections of section 71634.1. Rather,
the Legislature itself, by enacting section 68106 to deal with the
fiscal crisis in the courts, provided the authority for the Court's
unilateral action.
(Proposed Dec., p. 14.) Therefore, the ALJ concluded that the Court did not commit an unfair
practice when it failed to bargain over the decision to impose furloughs during the 2009-2010
court closures. 12
The Dills Act is codified at Government Code section 3512 et seq.
12 The ALJ noted that PERB has consistently held that the Legislature is entitled to
unilaterally modify the scope of bargaining without requiring collective bargaining. (See State
of California (Department of Personnel Administration) (2011) PERB Decision No. 2210-S
(DPA III); State of California (Department of Personnel Administration) (2010) PERB
13
specifically mentions the obligation to bargain over the "impact"
of
court closures three
different times and that:
[T]here would be no clear purpose in repeatedly limiting the
bargaining obligation only to impacts
of
court closures
if
the
Legislature had actually intended to also require bargaining over
the decision to furlough employees.
(Proposed Dec., p. 13, emphasis in original.)
Relying on her previous determination that section 68106 authorized the CJC to
implement mandatory furloughs, the ALJ rejected SEIU's argument that unlike the explicit
furlough plan in Professional Engineers in California Government
v.
Arnold Schwarzenegger
(2010) 50 Cal.4th 989 (Professional Engineers), section 68106 did not contain a clear
indication
of
the Legislature's intent to authorize furloughs. The ALJ also rejected SEIU's
contention that just as the emergency exception in the Ralph C. Dills Act (Dills Act)
11
did not
authorize the unilateral reduction
of
employees' hours
of
work and compensation, the
emergency exception tothe Trial Court Act (section 71634.1) did not authorize unilateral
action in this case. The ALJ determined that:
The Court in this case need not prove an emergency existed
sufficient to invoke the protections
of
section 71634.1. Rather,
the Legislature itself, by enacting section 68106 to deal with the
fiscal crisis in the courts, provided the authority for the Court's
unilateral action.
(Proposed Dec., p. 14.) Therefore, the ALJ concluded that the Court did not commit an unfair
practice when it failed to bargain over the decision to impose furloughs during the 2009-2010
court closures. 12
11
The Dills Act is codified at Government Code section 3512 et seq.
12
The ALJ noted that PERB has consistently held that the Legislature is entitled to
unilaterally modify the scope of bargaining without requiring collective bargaining. (See State
of
California (Department
of
Personnel Administration) (2011) PERB Decision No. 2210-S
(DPA III); State
of
California (Department
of
Personnel Administration) (2010) PERB
13

Lastly, the ALJ also concluded that the Court did not fail and refuse to bargain in good
faith over the effects of the court closures and implementation of furloughs. The ALJ noted
that SEIU never made any effects bargaining demand; the Court scheduled meetings with
SEIU to bargain over the effects of section 68106 and the furloughs; the Court presented at
least one proposal; and the Court repeatedly stated in writing that it understood its obligation to
bargain over the negotiable impacts of the court closures and was willing to do so. (Proposed
Dec., p.15.)
EXCEPTIONS
SEIU takes six (6) exceptions to the ALJ's proposed decision. According to SEIU, the
ALJ erred: (1) in concluding that section 68106 authorized the Court to impose furloughs
without bargaining over the decision; (2) in concluding that section 68106 modified the scope
of bargaining under the Trial Court Act; (3) in concluding that SEIU did not make an effects
bargaining demand; (4) by failing to consider constitutional principles when interpreting
sections 68106 and 71634; (5) by failing to find that the parties' MOU barred the Court from
unilaterally implementing furloughs; and (6) by regarding comments made at a CJC meeting as
legislative history.
In addition, SEIU submits a request for oral argument before the Board and a request
for official notice. The Court takes no exceptions and requests that we affirm the ALJ's
Decision No. 2152-S (DPA II) and State of California (Department of Personnel
Administration) (2008) PERB Decision No. 1978-S [all three holding that the Dills Act does
not limit the Legislature's authority to enact unilateral changes to terms and conditions of
employment]; see also Professional Engineers, supra, 50 Cal.4th 989 [holding that nothing in
the Dills Act precludes the Legislature from adopting a furlough plan through legislative
enactment as one method of reducing the compensation of state employees when such cuts are
found necessary and appropriate in light of the state's fiscal condition].)
14
Lastly, the ALJ also concluded that the Court did not fail and refuseto bargain in good
faith over the effects
of
the court closures and implementation
of
furloughs. 	The ALJ noted
that
SEID never made any effects bargaining demand; the Court scheduled meetings with
SEID to bargain over the effects
of
section 68106 and the furloughs; the Court presented
at
least one proposal; and the Court repeatedly stated in writing that
it
understood its obligation to
bargain over the negotiable impacts
of
the court closures and was willing to do so. (Proposed
Dec., p.15.)
EXCEPTIONS
SEID takes six (6) exceptions to the
ALJ's
proposed decision. According to SEID, the
ALJ erred: (1) in concluding that section 68106 authorized the Court to impose furloughs
without bargaining over the decision; (2) in concluding that section 68106 modified the scope
of
bargaining under the. Trial Court Act; (3) in concluding that SEID did not make an effects
bargaining demand; (4) by failing to consider constitutional principles when interpreting
sections 68106 and 71634; (5) by failing to find that the parties' MOU barred the Court from
unilaterally implementing furloughs; and (6) by regarding comments made at a CJC meeting as
legislative history.
In addition,
SETTJ
submits a request for oral argument before the Board and a request
for official notice. The Court takes no exceptions and requests that we affirm the
ALJ's
Decision No. 2152-S (DPA II) and State
of
California (Department
of
Personnel
Administration) (2008) PERB Decision No. 1978-S [all three holding that the Dills Act does
not limit the Legislature's authority to enact unilateral changes to terms and conditions
of
employment]; see also Professional Engineers, supra, 50 Cal.4th 989 [holding that nothing in
the Dills Act precludes the Legislature from adopting a furlough plan through legislative
enactment as one method of reducing the compensation
of
state employees when such cuts are
found necessary and appropriate in light of the state's fiscal condition].)
14

proposed decision in its entirety. The Court opposes SEIU's request for official notice. The
Court neither requests oral argument nor opposes SEIU's motion for oral argument."
DISCUSSION
SEIU's Motion for Official Notice
SEIU requests that the Board take official notice of a document titled "Final Review of
Hearing Officer's Report and Recommendation, International Union of Operating Engineers,
Stationary Local 39, AFL-CIO v. Placer County Superior Court (Placer County Final
Review). The Placer County Final Review is the final decision by a panel of three Sacramento
Superior Court judges. It is part of the contractually agreed-to grievance machinery between
the Placer County Superior Court and the International Union of Operating Engineers,
Stationary Local 39. The matter in the Placer County Final Review concerned a grievance
filed by a union representing court employees in Placer County over furloughs implemented
pursuant to Government Code section 68106.
SEIU acknowledges that under PERB Regulation 32300(b) its statement of exceptions
may only refer to matters contained in the record of the case. However, SEIU argues that
nothing prevents a party from submitting a request for official notice concurrent with its
statement of exceptions. The Court, on the other hand, argues that SEIU's motion for official
notice does not comport with PERB Regulation 32320(a)(2) which, the Court argues, limits the
Board's authority only to issuing a decision based upon the record of hearing or re-opening the
record for the taking of further evidence. Alternatively, the Court argues that the Placer
County Final Review is irrelevant to the present case. As the Court notes, the Placer County
SEIU's request for oral argument is denied. The Board historically denies requests
for oral argument when an adequate record has been prepared, the parties have had an
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (Los Angeles
Community College District (2009) PERB Decision No. 2059; Monterey County Office of
Education (1991) PERB Decision No. 913.)
15
proposed decision in its entirety. The Court opposes SEIU's request for official notice. The
Court neither requests oral argument nor opposes SEID' s motion for oral argument.
13
DISCUSSION
SEIU's Motion for Official Notice
SEID requests that the Board take official notice
of
a document titled "Final Review
of
Hearing Officer's Report and Recommendation, International Union
of
Operating Engineers,
Stationary Local 39, AFL-CIO
v.
Placer County Superior Court" (Placer County Final
Review). The Placer County Final Review is the final decision by a panel
of
three Sacramento
Superior Court judges. It is part
of
the contractually agreed-to grievance machinery between
the Placer County Superior Court and the International Union
of
Operating Engineers,
Stationary Local 39. The matter in the Placer County Final Review concerned a grievance
filed by a union representing court employees in Placer County over furloughs implemented
pursuant to Government Code section 68106.
SEID acknowledges that under PERB Regulation 32300(b) its statement
of
exceptions
may only refer to matters contained in the record
of
the case. However, SEID argues that
nothing prevents a party from submitting a request for official notice concurrent with its
statement
of
exceptions. The Court, on the other hand, argues that SEIU's motion for official
notice does not comport with PERB Regulation 32320(a)(2) which, the Court argues, limits the
Board's authority only to issuing a decision based upon the record
of
hearing or re-opening the
record for the taking
of
further evidence. Alternatively, the Court argues that the Placer
County Final Review is irrelevant to the present case. As the Court notes, the Placer County
15
13
SEID' s request for oral argument is denied. The Board historically denies requests
for oral argument when an adequate record has been prepared, the parties have had an
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (Los Angeles
Community College District (2009) PERB Decision No. 2059; Monterey County Office
of
Education (1991) PERB Decision No. 913.)

Final Review is part of a contractually-agreed upon, grievance resolution procedure and has no
precedential value other than between the contracting parties.
PERB regulations do not specifically address the taking of official notice. With regard
to the propriety of an ALJ's taking of official notice, the Board has applied the standards for
the taking of judicial notice in a California court of law. (City of Alhambra (2010) PERB
Decision No. 2139-M (City of Alhambra).)" The taking of judicial notice is governed by
Evidence Code sections 451 and 452.
Evidence Code section 451 provides for the mandatory judicial notice of: (1) the U.S.
and California Constitutions; (2) California City and County charters; (3) federal and
California decisional law; (4) the regulations of federal and California agencies; (5) federal and
California rules of pleading, practice and procedure; (6) the signification of English words and
phrases; and (7) universally known facts.
Evidence Code section 452 provides for the optional judicial notice of: (1) the laws of
another state or territory in the United States; (2) the resolutions and private acts of the U.S.
Congress or California Legislature; (3) regulations and ordinances issued under federal
authority or any public entity in the U.S.; (4) official acts of one of the branches of the federal
government or any state government in the U.S.; (5) Court records of any California court,
federal court, or any state court in the U.S.; (6) foreign law; and (7) commonly known or
readily determinable facts.
Although the Placer County Final Review was conducted by three judges of the
Sacramento Superior Court, the document is not a judicial decision and is not precedential
authority. The Placer County Final Review is part of a contractually agreed-upon dispute
"The Board in City of Alhambra, supra, PERB Decision No. 2139-M, discussed the
taking of "judicial notice." As a quasi-judicial, administrative agency, PERB does not take
"judicial notice." The proper term for PERB is either "administrative notice" or "official
notice."
16
Final Review is part
of
a contractually-agreed upon, grievance resolution procedure and has no
precedential value other than between the contracting parties.
PERB regulations do not specifically address the taking
of
official notice. With regard
to the propriety
of
an
ALJ's
taking
of
official notice, the Board has applied the standards for
the taking
of
judicial notice in a California court
of
law. (City
of
Alhambra (2010) PERB
Decision No. 2139-M (City
of
Alhambra).)
14
The taking
of
judicial notice is governed by
Evidence Code sections 451 and 452.
Evidence Code section 451 provides for the mandatory judicial notice of: (1) the U.S.
and California Constitutions; (2) California City and County charters; (3) federal and
California decisional law; (4) the regulations
of
federal and California agencies; (5) federal and
California rules
of
pleading, practice and procedure; ( 6) the signification
of
English words and
phrases; and (7) universally known facts.
Evidence Code section 452 provides for the optional judicial notice of: (1) the laws
of
another state or territory in the United States; (2) the resolutions and private acts
of
the U.S.
Congress or California Legislature; (3) regulations and ordinances issued under federal
authority or any public entity in the U.S.; (4) official acts
of
one
of
the branches
of
the federal
government or any state government in the U.S.; (5) Court records
ofany
California court,
federal court, or any state court in the U.S.; (6) foreign law; and (7) comm.only known or
readily determinable facts.
Although the Placer County Final Review was conducted by three judges
of
the
Sacramento Superior Court, the document is not a judicial decision and is not precedential
authority. The Placer County Final Review is part
of
a contractually agreed-upon dispute
14
The Board in City
of
Alhambra, supra, PERB Decision No. 2139-M, discussed the
taking of "judicial notice." As a quasi-judicial, administrative agency, PERB does not take
"judicial notice." The proper term for PERB is either "administrative notice" or "official
notice."
16

resolution procedure involving different parties and a different labor agreement. Therefore, the
Placer County Final Review is neither a judicial decision (Evid. Code, $ 451(a)) nor an official
act of the Sacramento County Court (Evid. Code, $ 452(d)). The Placer County Final Review
has no precedential value and is a private act binding only upon the contracting parties.
Alternatively, the Board could consider SEIU's request for official notice as a request
to reopen the record under PERB Regulation 32320(a)(2) and remand the matter to the ALJ.
As the Court points out, the standard applied by the Board when considering whether to reopen
the record to take further evidence is the same standard applied to requests for reconsideration.
Long Beach Community College District (2009) PERB Decision No. 2002, p. 18, fn. 14 citing
San Mateo Community College District (1985) PERB Decision No. 543 and California State
University (1990) PERB Decision No. 799a-H.) PERB Regulation 32410 governs requests for
reconsideration and limits such requests to claims that: (1) the Board's decision contained
prejudicial errors of fact; or (2) the party has newly discovered evidence which was not
previously available and could not have been discovered with the exercise of reasonable
diligence. Requests for reconsideration based on newly discovered evidence, must be
accompanied by a declaration under penalty of perjury establishing that the evidence: (1) was
not previously available; (2) could not have been discovered prior to the hearing with the
exercise of reasonable diligence; (3) was submitted within a reasonable time of its discovery;
(4) is relevant to the issues sought to be considered; and (5) impacts or alters the decision of
the previously decided case.
SEIU's request is accompanied by a declaration under penalty of perjury by SEIU's
attorney stating: (1) that the document is a correct copy of the decision of a three-judge panel
of the Sacramento County Superior Court; (2) the decision was served on her law firm on
September 5, 2012; and (3) the document is an official act and record of the Sacramento
17
resolution procedure involving different parties and a different labor agreement. Therefore, the
Placer County Final Review is neither a judicial decision (Evid.
Code,§
451(a)) nor an official
act
of
the Sacramento County Court (Evid. Code, § 452(d)). The Placer County Final Review
has no precedential value and is a private act binding only upon the contracting parties.
Alternatively, the Board could consider SEIU's request for official notice as a request
to reopen the record under PERB Regulation 32320(a)(2) and remand the matter to the ALJ.
As the Court points out, the standard applied by the Board when considering whether to reopen
the record to take further evidence is the same standard applied to requests for reconsideration.
(Long Beach Community College District (2009) PERB Decision No. 2002,
p.
18,
fn.
14 citing
San Mateo Community College District (1985) PERB Decision No. 543 and California State
University (1990) PERB Decision No. 799a-H.) PERB Regulation 32410 governs requests for
reconsideration and limits such requests to claims that: (1) the Board's decision contained
prejudicial errors
of
fact; or (2) the party has newly discovered evidence which was not
previously available and could not have been discovered with the exercise
of
reasonable
diligence. Requests for reconsideration based on newly discovered evidence, must be
accompanied by a declaration under penalty
of
perjury establishing that the evidence: (1) was
not previously available; (2) could not have been discovered prior to the hearing with the
exercise
of
reasonable diligence; (3) was submitted within a reasonable time
of
its discovery;
(4) is relevant to the issues sought to be considered; and (5) impacts or alters the decision
of
the previously decided case.
.
SEIU's request is accompanied by a declaration under penalty of perjury by SEIU's
attorney stating: 	(1) that the document is a correct copy
of
the decision of a three-judge panel
of
the Sacramento County Superior Court; (2) the decision was served on her law firm on
September 5, 2012; and (3) the document is an official act and record of the Sacramento
17

County Superior Court. We note that there was no hearing held in this case. The matter was
submitted to the ALJ based on stipulated facts and was fully briefed as of February 13, 2012.
SEIU submitted the request and declaration to PERB on November 19, 2012. Arguably,
SEIU's request and declaration satisfies the first three requirements for a request for
reconsideration and, therefore, also for a request to reopen the record. However, SEIU fails to
establish that the Placer County Final Review is relevant to this case or would impact or alter
the ALJ's proposed decision. Moreover, we disagree with SEIU's characterization of the
Placer County Final Review as "an official act and record of the Superior Court of California,
County of Sacramento." (SEIU Request for Official Notice, p. 2.)
As stated above, the Placer County Final Review is a private act that is part of the
contractually agreed to grievance machinery between the Placer County Superior Court and the
International Union of Operating Engineers. The parties in that case contracted to have their
disputes resolved by sitting superior court judges does not render the decision an official act or
record of the Sacramento County Superior Court. Therefore, the Board denies SEIU's motion
for official notice on the grounds that it fails to comport with the standards for granting judicial
notice under the Evidence Code and fails to comply with PERB's requirements for reopening
the record under PERB Regulation 32300.
SEIU's First Exception
SEIU contends that the ALJ erred in concluding that section 68106 authorized the
Court to impose furloughs without negotiating over that decision. SEIU maintains, rather, that
section 68106 only authorized the CJC to institute court closures but did not authorize the
imposition of furloughs. SEIU agrees with the ALJ that ascertaining the legislative intent is
the paramount goal of statutory interpretation and that the meaning of a statute should be
sought in the language of the statute itself. SEIU emphasizes the maxim of statutory
18	18
County Superior Court. We note that there was no hearing held in this case. The matter was
submitted to the ALJ based on stipulated facts and was fully briefed as
of
February 13, 2012.
SEIU submitted the request and declaration to PERB on November 19, 2012. Arguably,
SEIU's request and declaration satisfies the first three requirements for a request for
reconsideration and, therefore, also for a request to reopen the record. However, SEIU fails to
establish that the Placer County Final Review is relevant to this case or would impact or alter
the ALJ's proposed decision. Moreover, we disagree with SEIU's characterization
of
the
Placer County Final Review as "an official act and record
of
the Superior Court
of
California,
County
of
Sacramento." (SEIU Request for Official Notice, p. 2.)
As stated above, the Placer County Final Review is a private act that is part
of
the
contractually agreed to grievance machinery between the Placer County Superior Court and the
International Union
of
Operating Engineers. The parties in that case contracted to have their
disputes resolved by sitting superior court judges does not render the decision an official act or
record
of
the Sacramento County Superior Court. Therefore, the Board denies SEIU' s motion
for official notice on the grounds that it fails to comport with the standards for granting judicial
notice under the Evidence Code and fails to comply with PERB' s requirements for reopening
the record under PERB Regulation 32300.
SEIU's First Exception
SEIU contends that the ALJ erred in concluding that section 68106 authorized the
Court to impose furloughs without negotiating over that decision. SEIU maintains, rather, that
section 68106 only authorized the CJC to institute court closures but did not authorize the
imposition of furloughs. 	SEIU agrees with the ALJ that ascertaining the legislative intent is
the paramount goal of statutory interpretation and that the meaning of a statute should be
sought in the language of the statute itself. SEIU emphasizes the maxim of statutory

construction expressionunius est exclusioanterius (expression unius)" which, according to
SEIU, demonstrates the Legislature's intent to permit court closures under section 68106 while
excluding furloughs.
As stated in section 68106(a):
The Legislature finds and declares that the current fiscal crisis,
one of the most serious and dire ever to affect the state, threatens
the continued operations of the judicial branch. This situation
requires a unique response to effectively use judicial branch
resources while protecting the public by ensuring that courts
remain open and accessible and that the core functions of the
judicial branch are maintained to the greatest extent possible.
The Legislature then authorized the CJC to institute court closures for one day each month
until July 1, 2010.16
There is no question that the overriding intent of section 68106 was to save money so
that the judicial branch could continue to function. As the ALJ stated:
The only meaningful way to immediately achieve the underlying
money-saving goal of this legislation is to presume that
employees were not to work and therefore not be paid on court
closure days. [Fn. omitted.] Any other interpretation of the
statute would render the provisions regarding "a unique response"
to the "current fiscal crisis" essentially meaningless.
We agree with the ALJ that under SEIU's interpretation of section 68106 the Court would
realize no cost savings and such an interpretation would defeat the clear intent of the statute.
15 "Expressiousius" is a maxim of statutory interpretation meaning that the expression
of one thing is the exclusion of another. Under this maxim, if a statute specifies one exception
to a general rule or assumes to specify the effects of a certain provision, other exceptions or
effects are excluded. (See Black's Law Dict. (6th ed. 1990) p. 581, col. 1-2 [internal citations
omitted].)
16 Section 68106(b)(1) subjected the court closures to certain conditions regarding the
conduct of judicial business which would normally be conducted during a court holiday and
provisions for the computation of time: viz. Code of Civil Procedure sections 134
(enumeratiog types of transactions which may be conducted during a judicial holiday) and
section 136 (appointed or adjourned date falling on judicial holiday). Computation of time
under sections 12 and 12a of the Code of Civil Procedure as well as the relevant sections of the
Penal Code and Welfare and Institutions Code were deemed applicable during the closures.
19
construction expressio unius est exclusio alterius (expressio unius)1 5 which, according to
SETTJ,
demonstrates the Legislature's intent to permit court closures under section 68106 while
excluding furloughs.
As stated in section 68106(a):
The Legislature finds and declares that the current fiscal crisis,
one
of
the most serious and dire ever to affect the state, threatens
the continued operations
of
the judicial branch. This situation
requires a unique response to effectively use judicial branch
resources while protecting the public by ensuring that courts
remain open and accessible and that the core functions
of
the
judicial branch are maintained to the greatest extent possible.
The Legislature then authorized the CJC to institute court closures for one day each month
until July 1, 2010.
16
There is no question that the overriding intent
of
section 68106 was to save money so
that the judicial branch could continue to function. 	As the ALI stated:
The only meaningful way to immediately achieve the underlying
money-saving goal
of
this legislation is to presume that
employees were not to work and therefore not be paid on court
closure days. 	[Fn. omitted.] Any other interpretation
of
the
statute would render the provisions regarding
"a
unique response"
to the "current fiscal crisis" essentially meaningless.
We agree with the ALJ that under SEIU' s interpretation
of
section 68106 the Court would
realize no cost savings and such an interpretation would defeat the clear intent
of
the statute.
15
"Expressio unius" is a maxim
of
statutory interpretation meaning that the expression
of
one thing is the exclusion
of
another. Under this maxim,
if
a statute specifies one exception
to a general rule or assumes to specify the effects
of
a certain provision, other exceptions or
effects are excluded. (See Black's Law Diet. (6th ed. 1990) p. 581, col. 1-2 [internal citations
omitted].)
16
Section 68106(b)(l) subjected the court closures to certain conditions regarding the
conduct of judicial business which would normally be conducted during a court holiday and
provisions for the computation of time: viz. Code of Civil Procedure sections 134
(enumerating types of transactions which may be conducted during a judicial holiday) and
section 136 (appointed or adjourned date falling on judicial holiday). Computation of time
under sections 12 and 12a of the Code of Civil Procedure as well as the relevant sections of the
Penal Code and Welfare and Institutions Code were deemed applicable during the closures.
19

In addition, as the ALJ noted, section 68106(b)(3) repeatedly mentions the Court's obligation
to meet and confer with SEIU over the impact of the court closures. Impact or effects
bargaining and decision bargaining are terms of art in labor law of which the Legislature is
presumed to be aware. Thus, under the maxim of expressionunius, the ALJ properly
determined that the Legislature purposely excluded the obligation to meet and confer over the
decision to close the courts form section 68106.
We conclude with the ALJ that the Legislature intended in section 68106 to authorize
the CJC to close courts and implement furloughs without bargaining over that decision.
SEIU's first exception therefore lacks merit.
SEIU's Second Exception
SEIU also contends that the ALJ erred by concluding that section 68106 modified the
scope of bargaining under the Trial Court Act. According to SEIU, "the ALJ concluded that
the Legislature modified the scope of representation under the Trial Court Act by providing
the authority for the Court's unilateral action."" (SEIU Exceptions, p. 12.) The ALJ
determined that both the California Supreme Court (Professional Engineers, supra,
50 Cal.4 989) and previous PERB decisions (DPA III, supra, PERB Decision No. 2210-S and
DPA II, supra, PERB Decision No. 2152-S) recognize the Legislature's right to modify the
scope of bargaining through subsequent legislation. The ALJ determined that the Court, thus,
did not have to rely on the emergency provision of the Trial Court Act (section 71634.1) in
order to unilaterally reduce employees' hours of work and compensation, because the
Legislature provided it with the authority to do so by enacting section 68106.
While SEIU is correct that furloughs are a reduction in hours and that generally a
reduction in hours falls within scope of representation and is negotiable (San Ysidro School
District (1997) PERB Decision No. 1198; North Sacramento School District (1981) PERB
20
In addition, as the ALJ noted, section 68106(b)(3) repeatedly mentions the Court's obligation
to meet and confer with SEIU over the impact
of
the court closures. Impact or effects
bargaining and decision bargaining are terms
of
art in labor law
of
which the Legislature is
presumed to be aware. Thus, under the maxim
of
expressio unius, the ALJ properly
determined that the Legislature purposely excluded the obligation to meet and confer over the
decision to close the courts form section 68106.
We conclude with the ALJ that the Legislature intended in section 68106 to authorize
the CJC to close courts and implement furloughs without bargaining over that decision.
SEIU' s first exception therefore lacks nierit.
SEIU's Second Exception
SEIU also contends that the ALJ erred by concluding that section 68106 modified the
scope
of
bargaining under the Trial Court Act. According to SEIU, "the ALJ concluded that
the Legislature modified the scope
of
representation under the Trial Court Act by providing
'the authority for the Court's unilateral action."' (SEIU Exceptions,
p.
12.) The ALJ
determined that both the California Supreme Court (Professional Engineers, supra,
50 Cal.4th
989) and previous PERB decisions (DPA III, supra, PERB Decision No. 2210-S and
DPA II, supra, PERB Decision No. 2152-S) recognize the Legislature's right to modify the
scope
of
bargaining through subsequent legislation. The ALJ determined that the Court, thus,
did not have to rely on the emergency provision
of
the Trial Court Act (section 71634.1) in
order to unilaterally reduce employees' hours
of
work and compensation, because the
Legislature provided it with the authority to do so by enacting section 68106.
While SEIU is correct that furloughs are a reduction in hours and that generally a
reduction in hours falls within scope of representation and is negotiable (San Ysidro School
District (1997) PERB Decision No. 1198; North Sacramento School District (1981) PERB
20

Decision No. 193); SEIU has failed to address the ALJ's determination that the Legislature
may modify the scope of bargaining and absolve a public employer of its duty to bargain over
the decision to implement furloughs pursuant to authority granted to the employer by statute.
We conclude that the ALJ correctly determined that Professional Engineers, supra,
50 Cal.4 989; DPA III, supra, PERB Decision No. 2210-S; and DPA II, supra, PERB
Decision No. 2152-S acknowledge the Legislature's right to modify the scope of bargaining for
public employees through subsequent legislation. Here, the Legislature modified the scope of
bargaining by absolving the Court of the duty to bargain over the decision to impose furloughs
when it enacted section 68106, and the Court did not commit an unfair practice when it failed
to bargain over the decision to implement furloughs pursuant to section 68106.
SEIU's Third Exception
SEIU contends that the ALJ erred by determining that it did not make an effects
bargaining demand. The ALJ determined:
There is no evidence in the record that SEIU ever made a clear
demand to bargain over the effects of the Court's decision to
that the Court scheduled meetings to discuss impacts, presented at
least one proposal, and stated repeatedly in writing that it
understood its obligation to bargain over negotiable impacts
relating to the court closures and was ready to do so.
(Proposed Dec., p. 15.) SEIU has pointed to no evidence in the record to demonstrate that the
ALJ's determination was erroneous." Therefore SEIU's third exception lacks merit.
17 The Board has long held that party seeking to meet and confer initiates the process by
making a request therefor. The request need not be stated in particular terms, but must place
the responding party on notice of the subject over which discussions are sought. (Rio Hondo
Community College District (2013) PERB Decision No. 2313 (Rio Hondo); Newman-Crows
Landing Unified School District (1982) PERB Decision No. 223 (Newman-Crows Landing),
citing, inter alia, NLRB v. Columbian Enameling & Stamping Co. (1939) 306 U.S. 292 and
Schreiber Freight Lines (1973) 204 NLRB 1162.) Where an employer believes that the subject
over which an employee organization desires to meet and confer exceeds the employer's duty
to meet and confer, or an employer is otherwise in doubt as to its meet and confer obligation,
21
Decision No. 193);
SETIJ
has failed to address the
ALJ's
determination that the Legislature
may modify the scope
of
bargaining and absolve a public employer
of
its duty to bargain over
the decision to implement furloughs pursuant to authority granted to the employer by statute.
We conclude that the ALJ correctly determined that Professional Engineers, supra,
50 Cal.4 th 989; DPA III, supra, PERB Decision No. 2210-S; and DPA
JI,
supra, PERB
Decision No. 2152-S acknowledge the Legislature's right to modify the scope
of
bargaining for
public employees through subsequent legislation. Here, the Legislature modified the scope
of
bargaining by absolving the Court
of
the duty to bargain over the decision to impose furloughs
when it enacted section 68106, and the Court did not commit an unfair practice when
it failed
to bargain over the decision to implement furloughs pursuant to section 68106.
SEIU' s Third Exception
SETIJ
contends that the ALJ erred by determining that it did not make an effects
bargaining demand. The ALJ determined:
There is no evidence in the record that
SETIJ
ever made a clear
demand to bargain over the effects
of
the Court's decision to
close courts and therefore impose furloughs. The record is clear
that the Court scheduled meetings to discuss impacts, presented at
least one proposal, and stated repeatedly in writing that it
understood its obligation to bargain over negotiable impacts
relating to the court closures and was ready to do so.
close courts and therefore impose furloughs. The record is clear
(Proposed Dec., p. 15.) SEIU has pointed to no evidence in the record to demonstrate that the
ALJ's determination was erroneous.17 Therefore SEIU's third exception lacks merit.
17
The Board has long held that party seeking to meet and confer initiates the process by
making a request therefor. The request need not be stated in particular terms, but must place
the responding party on notice
of
the subject over which discussions are sought. (Rio Hondo
Community College District (2013) PERB Decision No. 2313 (Rio Hondo); Newman-Crows
Landing Unified School District (1982) PERB Decision No. 223 (Newman-Crows Landing),
citing, inter alia, NLRB
v.
Columbian Enameling & Stamping Co. (1939) 306 U.S. 292 and
Schreiber Freight Lines (1973) 204 NLRB 1162.) Where an employer believes that the subject
over which an employee organization desires to meet and confer exceeds the employer's duty
to meet and confer, or an employer is otherwise in doubt as to its meet and confer obligation,
21

SEIU's Fourth Exception
SEIU contends that the ALJ erred by failing to consider SEIU's argument that
section 68106 as implemented by the Court violates the federal and California Constitution's
prohibition on the impairment of contracts. The ALJ determined: (1) that PERB's jurisdiction
did not extend to the adjudication of alleged constitutional violations; and (2) that in any event,
as to the MOU itself, section 68106 was not inconsistent with the parties' MOU because
section 68106 designated court closure days as "holidays" and since the parties' MOU set forth
the regular hours of court employees "as from 8:00 a.m. to 5:00 p.m., Monday through Friday,
Court holidays excepted'." (Proposed Dec., p. 15, fn. 14.) Thus the ALJ determined that
section 68106 did not violate the parties' MOU.
As to PERB's authority, it is well-settled that PERB does not have the authority to
declare a statute unconstitutional. (The Regents of the University of California (1999) PERB
Order No. Ad-293-H [PERB has no power: (1) to refuse to enforce a statute on the ground that
it is unconstitutional unless an appellate court has made a determination that it is
unconstitutional; (2) to declare a statute unconstitutional; or (3) to declare a statute
unenforceable on the basis that federal law or regulations prohibit enforcement, unless an
appellate court has determined that enforcement of such statute is prohibited by federal law or
regulation]; California State University, Hayward (1991) PERB Decision No. 869-H
[violations of the constitution must be taken up in another forum other than PERB].) " We
the employer must seek clarification. (Healdsburg Union High School District and
Healdsburg Union School District/San Mateo City School District (1984) PERB Decision
No. 375, pp. 9-10.) (See Rio Hondo, pp.4-5.) With the ALJ we conclude that SEIU made no
impact bargaining demand, but sought to meet and confer only over the decision itself.
(Newman-Crows Landing.)
" Article 3.5 of the California Constitution provides:
22
SEIU's Fourth Exception
SEID contends that the ALJ erred by failing to consider SEID' s argument that
section 68106 as implemented by the Court violates the federal and California Constitution's
prohibition on the impairment
of
contracts. The ALJ determined: (1) that PERB' s jurisdiction
did not extend to the adjudication
of
alleged constitutional violations; and (2) that in any event,
as to the MOU itself, section 68106 was not inconsistent with the parties' MOU because
section 68106 designated court closure days as "holidays" and since the parties' MOU set forth
the regular hours
of
court employees "as from 8:00 a.m. to 5:00 p.m., Monday through Friday,
'Court holidays excepted'." (Proposed Dec., p. 15, fn. 14.) Thus the ALJ determined that
section 68106 did not violate the parties' MOU.
As to PERB's authority, it is well-settled that PERB does not have the authority to
declare a statute unconstitutional. (The Regents
of
the University
of
California (1999) PERB
Order No. Ad-293-H [PERB has no power: (1) to refuse to enforce a statute on the ground that
it is unconstitutional unless an appellate court has made a determination that it is
unconstitutional; (2) to declare a statute unconstitutional; or (3) to declare a statute
unenforceable on the basis that federal law or regulations prohibit enforcement, unless an
appellate court has determined that enforcement
of
such statute is prohibited by federal law or
regulation]; California State University, Hayward (1991) PERB Decision No. 869-H
[violations
of
the constitution must be taken up in another forum other than PERB].)18 We
the employer must seek clarification. (Healdsburg Union High School District and
Healdsburg Union School District/San Mateo City School District (1984) PERB Decision
No. 375, pp. 9-10.) (See Rio Hondo, pp.4-5.) With the ALJ we conclude that SEID made no
impact bargaining demand, but sought to meet and confer only over the decision itself.
(Newman-Crows Landing.)
18
Article 3.5 of the California Constitution provides:
22

conclude that the ALJ properly declined to determine whether section 68106 violated the
California and federal constitutions' prohibitions against the impairment of contracts.
SEIU's Fifth Exception
SEIU's fifth exception contends that the ALJ erred by failing to acknowledge that the
parties' MOU barred the Court from unilaterally implementing furloughs. As discussed with
regard to SEIU's fourth exception, the ALJ determined that furloughs did not violate the
parties' MOU because section 68106 designates court closure days as holidays and the parties'
MOU makes an exception for regular employee hours on Court holidays. Section 11.3 of the
parties' MOU provides, in part:
Eight hours' work shall constitute a full day's work and forty
hours' work shall constitute a full week's work unless otherwise
provided by law, code or other agreement.
(Emphasis added.) We conclude that the parties' MOU does not bar and, in fact allows, the
Court to alter the regular work day and work week as long as it does so under the authority of
law or by agreement with SEIU. The Court implemented furloughs under the authority
provided to it by section 68106. Therefore, we conclude that SEIU's fifth exception lacks
merit.
An administrative agency, including an administrative agency
created by the Constitution or an initiative statute, has no power:
(a) To declare a statute unenforceable, or refuse to enforce a
statute, on the basis of it being unconstitutional unless an
appellate court has made a determination that such statute is
unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a
statute on the basis that federal law or federal regulations prohibit
the enforcement of such statute unless an appellate court has
made a determination that the enforcement of such statute is
prohibited by federal law or federal regulations.
23
conclude that the ALJ properly declined to determine whether section 68106 violated the
California and federal constitutions' prohibitions against the impairment
of
contracts.
SEIU's Fifth Exception
SEIU' s fifth exception contends that the ALJ erred by failing to acknowledge that the
parties' MOU barred the Court from unilaterally implementing furloughs. As discussed with
regard to SEIU's fourth exception, the ALJ determined that furloughs did not violate the
parties' MOU because section 68106 designates court closure days as holidays and the parties'
MOU makes an exception for regular employee hours on Court holidays. Section 11.3
of
the
parties' MOU provides, in part:
Eight hours' work shall constitute a full day's work and forty
hours' work shall constitute a full week's work unless otherwise
provided by law. code or other agreement.
23
(Emphasis added.) We conclude that the parties' MOU does not bar and, in fact allows, the
Court to alter the regular work day and work week as long as it does so under the authority
of
law or by agreement with SEID. The Court implemented furloughs under the authority
provided to it by section 68106. Therefore, we conclude that SEIU's fifth exception lacks
merit.
An administrative agency, including an administrative agency
created by the Constitution or an initiative statute, has no power:
(a) To declare a statute unenforceable, or refuse to enforce a
statute, on the basis
of
it being unconstitutional unless an
appellate court has made a determination that such statute is
unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a
statute on the basis that federal law or federal regulations prohibit
the enforcement of such statute unless an appellate court has
made a determination that the enforcement of such statute is
prohibited by federal law or federal regulations.

SEIU's Sixth Exception
SEIU argues that the ALJ treated the Minutes of a July 29, 2009, CJC meeting as
though it were legislative history. According to SEIU, the Minutes from the CJC meeting
provide no insight into the thought processes of the legislators who enacted section 68106 and
is irrelevant to an analysis of legislative intent.
The Minutes of the July 29, 2009, CJC meeting are part of the joint stipulated record.
SEIU agreed that the ALJ could consider the Minutes in rendering her proposed decision. The
ALJ described the events and comments made at the July 29, 2009, CJC meeting only in her
"Findings of Fact." The CJC meeting and comments are part of the factual background in this
case and were not mentioned in the ALJ's interpretation of section 68106. We conclude that
SEIU's sixth exception lacks merit.
CONCLUSION
Based upon the entire record in the case, we conclude that the Court did not violate the
Trial Court Act as alleged in the amended complaint.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-15-C are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chair Martinez and Member Winslow joined in this Decision.
24
SETTJ'
s Sixth Exception
SEIU argues that the ALJ treated the Minutes
of
a July 29, 2009, CJC meeting as
though it were legislative history. According to SEIU, the Minutes from the CJC meeting
provide no insight into the thought processes
of
the legislators who enacted section 68106 and
is irrelevant to an analysis
of
legislative intent.
The Minutes
of
the July 29, 2009, CJC meeting are part
of
the joint stipulated record.
SEIU agreed that the ALJ could consider the Minutes in rendering her proposed decision. The
ALJ described the events and comments made at the July 29, 2009, CJC meeting only in her
"Findings
of
Fact." The CJC meeting and comments are part
of
the factual background in this
case and were not mentioned in the ALJ' s interpretation
of
section 68106. We conclude that
SEIU' s sixth exception lacks merit.
CONCLUSION
Based upon the entire record in the case, we conclude that the Court did not violate the
Trial Court Act as alleged in the amended complaint.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-15-C are hereby
DISMISSED WITHOUT LEA VE TO AMEND.
Chair Martinez and Member Winslow joined in this Decision.
24

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 521,
UNFAIR PRACTICE
Charging Party, 	CASE NO. SF-CE-15-C
PROPOSED DECISION
(October 12, 2012)
SANTA CLARA COUNTY SUPERIOR COURT,
Respondent.
Weinberg, Roger & Rosenfeld by Vincent A. Harrington, Jr. and Kerianne R.
Steele, Attorneys, for Service Employees International Union, Local $21; Lozano Smith by
Sarah Levitan Katz, Attorney, for Santa Clara Superior Court.
Before Valerie Pike Racho, Administrative Law Judge.
PROCEDURAL HISTORY
Service Employees International Union, Local 521 (SEIU) filed an unfair practice
charge against the Santa Clara County Superior Court (Court) under the Trial Court Employees
Protection and Governance Act (Trial Court Act)' on August 17, 2009. On March 2, 2011, the
Office of the General Counsel of the Public Employment Relations Board (PERB or Board)
issued a complaint alleging that the Court failed and refused to bargain in good faith regarding
the decision to implement furlough days on the bargaining unit. This conduct is alleged to
violate sections 71631, 71634.2, 71633, and 71635.1 of the Trial Court Act and PERB
Regulation 32606(a), (b) and (c).2
The Trial Court Act is codified at Government Code section 71600 et seq. Hereafter
all statutory references are to the Government Code unless otherwise indicated.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 521,
Charging Party,
v.
SANTA CLARA COUNTY SUPERIOR COURT,
Res ondent.
UNFAIR PRACTICE
CASE NO. SF-CE-15-C
PROPOSED DECISION
(October 12, 2012)
Appearances: Weinberg, Roger & Rosenfeld by Vincent A. Harrington, Jr. and Kerianne R.
Steele, Attorneys, for Service Employees International Union, Local 521; Lozano Smith by
Sarah Levitan Katz, Attorney, for Santa Clara Superior Court.
Before Valerie Pike Racho, Administrative Law Judge.
PROCEDURAL HISTORY
Service Employees International Union, Local 521 (SEIU) filed an unfair practice
charge against the Santa Clara County Superior Court (Court) under the Trial Court Employees
Protection and Governance Act (Trial Court Act)1 on August 17, 2009. On March 2, 2011, the
Office
of
the General Counsel
of
the Public Employment Relations Board (PERB or Board)
issued a complaint alleging that the Court failed and refused to bargain in good faith regarding
the decision to implement furlough days on the bargaining unit. This conduct is alleged to
violate sections 71631, 71634.2, 71633, and 71635.1
of
the Trial Court Act and PERB
Regulation 32606(a), (b) and (c).2
1 The Trial Court Act is codified at Government Code section 71600 et seq. Hereafter
all statutory references are to the Government Code unless otherwise indicated.
2 PERB regulations are codified at California Code
of
Regulations, title 8,
section 31001 et seq.
Appearances:

On March 22, 2011, the Court filed its answer to the complaint, denying its material
allegations.
Informal settlement conferences were held on April 4 and May 2, 2011, but the matter
was not resolved.
On November 21, 2011, the Court filed an amended answer to the complaint to admit
the allegation that it took the position that it was not required to meet and confer over its
decision to implement furlough days for bargaining unit members.
On December 8, 2011, SEIU filed a motion to amend the complaint to allege that the
Court also implemented ten unpaid furlough days for bargaining unit employees beginning on
September 16, 2009. On December 9, 2011, the Court filed a second amended answer,
admitting the added allegation.
In lieu of a formal hearing, the parties filed a joint stipulation of evidence consisting of
six documents.
On February 10, 2012, the matter was submitted for decision upon receipt of final post-
hearing briefs." On September 17, 2012, the case was transferred to the undersigned for the
issuance of a proposed decision.*
FINDINGS OF FACT
The Court is a "trial court" within the meaning of section 71601(k). SEIU is an
"employee organization" within the meaning of section 71601(b)(1) and a "recognized
employee organization" within the meaning of section 71601(h).
The parties were permitted to file opening briefs and reply briefs in this case.
Neither party objected to the transfer.
2
On March 22, 2011, the Court filed its answer to the complaint, denying its material
allegations.
Informal settlement conferences were held on April 4 and May 2, 2011, but the matter
was not resolved.
On November 21, 2011, the Court filed an amended answer to the complaint to admit
the allegation that it took the position that it was not required to meet and confer over its
decision to implement furlough days for bargaining unit members.
On December 8, 2011, SEIU filed a motion to amend the complaint to allege that the
Court also implemented ten unpaid furlough days for bargaining unit employees beginning on
September 16, 2009. On December 9, 2011, the Court filed a second amended answer,
admitting the added allegation.
In lieu
of
a formal hearing, the parties filed a joint stipulation
of
evidence consisting
of
six documents.
On February 10, 2012, the matter was submitted for decision upon receipt
of
final post-
hearing briefs.3 On September 17, 2012, the case was transferred to the undersigned for the
issuance
of
a proposed decision.4
FINDINGS OF FACT
The Court is a "trial court" within the meaning
of
section 7160l(k). SEIU is an
"employee organization" within the meaning
of
section 71601 (b )( 1) and a "recognized
employee organization" within the meaning
of
section 71601 (h).
3 The parties were permitted to file opening briefs and reply briefs in this case.
4 Neither party objected to the transfer.
2

Background
The Judicial Branch of the State of California (State) suffered a major reduction in
funding from the state in the 2009-2010 fiscal year during the state's unprecedented budget
crisis of the time. The Judicial Council, which is the policymaking body for the courts,
determines the share of state funding allocated to the state's trial courts. Heading into its
June 29, 2009' meeting, the Judicial Council was expecting to reduce funding for court
operations by $360 million. The Court was informed that its share of the reduction would
amount to $10.9 million for the fiscal year.
Contemporaneously, the Legislature enacted Government Code section 68106 as
urgency budget legislation authorizing the Judicial Council to close the trial courts for one day
per month during which there would be no "transaction of judicial business."
Section 68106(a), outlining the Legislature's intent, stated that "the current fiscal crisis, one of
the most serious and dire ever to affect the state, threatens the continued operations of the
judicial branch." The authority for closures stemmed from the need for "a unique response to
effectively use judicial branch resources while protecting the public" and its need for access to
the judicial branch. (Ibid.)
Several provisions of section 68106 are of note." Section 68106(b)(1) provided that if
the Judicial Council provided for court closures pursuant to the statute, "the day so designated
shall be treated as a holiday for the purposes of performing any act requiring the transaction of
judicial business." Section 68106(b)(3) provided:
All dates hereafter refer to calendar year 2009 unless stated otherwise.
" Subsection (d) provides that "[this section shall become inoperative on July 1, 2010,
and, as of January 1, 2011, is repealed, unless a later enacted statute, that becomes operative on
or before January 1, 2011, deletes or extends the dates on which it becomes inoperative and is
repealed."
3
Background
The Judicial Branch
of
the State
of
California (State) suffered a major reduction in
funding from the state in the 2009-2010 fiscal year during the state's unprecedented budget
crisis
of
the time. The Judicial Council, which is the policymaking body for the courts,
determines the share
of
state funding allocated to the state's trial courts. Heading into its
June 29, 20095 meeting, the Judicial Council was expecting to reduce funding for court
operations by $360 million. The Court was informed that its share
of
the reduction would
amount to $10.9 million for the fiscal year.
Contemporaneously, the Legislature enacted Government Code section 68106 as
urgency budget legislation authorizing the Judicial Council to close the trial courts for one day
per month during which there would be no "transaction
of
judicial business."
Section 68106(a), outlining the Legislature's intent, stated that "the current fiscal crisis, one
of
the most serious and dire ever to affect the state, threatens the continued operations
of
the
judicial branch." The authority for closures stemmed from the need for "a unique response to
effectively use judicial branch resources while protecting the public" and its need for access to
the judicial branch. (Ibid.)
Several provisions
of
section 68106 are
of
note. 6 Section 68106(b )( 1) provided that
if
the Judicial Council provided for court closures pursuant to the statute, "the day so designated
shall be treated as a holiday for the purposes
of
performing any act requiring the transaction
of
judicial business." Section 68106(b)(3) provided:
5 All dates hereafter refer to calendar year 2009 unless stated otherwise.
6 Subsection (d) provides that "[t]his section shall become inoperative on July 1, 2010,
and, as of January 1, 2011, is repealed, unless a later enacted statute, that becomes operative on
or before January 1, 2011, deletes or extends the dates on which it becomes inoperative and is
repealed."
3

The impact of the court closure shall be subject to subdivision (c)
of Section 71634 and subdivision (c) of Section 71816.
Notwithstanding any other law, any court closure or reduction in
earnings as a result of this section shall not constitute a reduction
in salary or service for the purpose of calculation of retirement
benefits or other employment-related benefits for court
employees otherwise eligible for those benefits. Nothing in this
section shall relieve a trial court of its obligation to meet and
confer concerning the impact of a court closure pursuant to
Chapter 7 (commencing with Section 71600) and Chapter 7.5
(commencing with Section 71800) of Title 8 of the Government
Code, and the trial courts, rather than the Judicial Council or
Administrative Office of the Courts, shall remain responsible for
meeting and conferring concerning that impact.
Section 68106(b)(4) provided that a judge or justice may sign a form for the purpose of
voluntarily waiving monthly salary in the amount of 4.62 percent. Section 68106(b)(6)
provided that court security would not be required on the days of the court closures.
Subdivision (b)(6)(A) required good faith negotiations between the Court and the county
sheriff or the county for the purpose of achieving a 4.62 percent reduction of the cost of an
existing contract for security services on a monthly basis and, in the absence of agreement, a
mechanism for the Court to reduce its outlay by that amount. Subdivision (b)(6)(B) authorized
the same reduction of expenditure on a monthly basis where there was no existing agreement.
At the July 29 meeting, the Judicial Council, following the recommendation of the
Executive and Planning Committee and the Administrative Office of the Courts (AOC),
implemented this authority by designating the third Wednesday of each month as a uniform
statewide closure day for all trial and appellate courts, effective September 2009 through June
2010, "for cost savings purposes." Accompanying this resolution was a directive to the AOC
to gather information from the courts to determine the actual monetary savings achieved by the
closures. At the same meeting, then-Chief Justice Ronald George announced he would be
accepting the voluntary salary waiver "to acknowledge the sacrifice of court employees" and
appealed to other judges and justices to do the same.
The impact
of
the court closure shall be subject to subdivision (c)
of
Section 71634 and subdivision (c)
of
Section 71816.
Notwithstanding any other law, any court closure or reduction in
earnings as a result
of
this section shall not constitute a reduction
in salary or service for the purpose
of
calculation
of
retirement
benefits or other employment-related benefits for court
employees otherwise eligible for those benefits. Nothing in this
section shall relieve a trial court
of
its obligation to meet and
confer concerning the impact
of
a court closure pursuant to
Chapter 7 (commencing with Section 71600) and Chapter 7.5
(commencing with Section 71800)
of
Title 8
of
the Government
Code, and the trial courts, rather than the Judicial Council or
Administrative Office
of
the Courts, shall remain responsible for
meeting and conferring concerning that impact.
Section 68106(b)(4) provided that a judge or justice may sign a form for the purpose
of
voluntarily waiving monthly salary in the amount
of
4.62 percent. Section 68106(b)(6)
provided that court security would not be required on the days
of
the court closures.
Subdivision (b)(6)(A) required good faith negotiations between the Court and the county·
sheriff or the county for the purpose
of
achieving a 4.62 percent reduction
of
the cost
of
an
existing contract for security services on a monthly basis and, in the absence
of
agreement, a
mechanism for the Court to reduce its outlay by that amount. Subdivision (b)(6)(B) authorized
the same reduction
of
expenditure on a monthly basis where there was no existing agreement.
At the July 29 meeting, the Judicial Council, following the recommendation
of
the
Executive and Planning Committee and the Administrative Office
of
the Courts (AOC),
implemented this authority by designating the third Wednesday
of
each month as a uniform
statewide closure day for alltrial and appellate courts, effective September 2009 through June
2010, "for cost savings purposes." Accompanying this resolution was a directive to the AOC
to gather information from the courts to determine the actual monetary savings achieved by the
closures. At the same meeting, then-Chief Justice Ronald George announced he would be
accepting the voluntary salary waiver "to acknowledge the sacrifice
of
court employees" and
appealed to other judges and justices to do the same.
4

The Parties' Memorandum of Understanding'
SEIU and the Court were parties to a memorandum of understanding (MOU) at the time
of the events in this dispute. Article 10 ("Pay Practices") and section 10.1 ("Salaries")
references an appendix listing the wages for bargaining unit employees. Article 11 ("Hours of
Work"), section 11.1 ("Workweek"), states that the work week shall consist of seven days, and
regular work hours for employees unless otherwise specified are from 8:00 a.m. to 5:00 p.m.,
Monday through Friday, court holidays excepted.
The Parties' Attempts at Negotiations
On July 28, SEIU and the Court met for a meet and confer session. On behalf of the
Court, Joseph Wiley informed SEIU that in light of section 68106 "no judicial business would
be conducted and no employees would report for work" on the monthly closure days. A
follow-up meeting scheduled for August 13, was canceled at the request of SEIU.
On August 13, Wiley wrote to Maggie Wong of SEIU expressing hope that the parties
could meet on August 26 to continue meeting for purpose of "addressing the impact of the
court closure decision." Wiley attached a proposal for a side letter agreement. The proposed
agreement contained a number of provisions, including acknowledgement that employees
would be furloughed one day each month without pay, that other forms of paid leave could not
be substituted, and that employees' retirement benefits would not be affected.
On August 14, Wiley forwarded via e-mail a copy of a memorandum prepared for
issuance to all staff by Court Chief Executive Officer David Yamasaki (Yamasaki), dated
August 17, announcing the closure of the Court on the third Wednesday of each month along
SEIU's request for administrative notice of the parties' memorandum of
understanding having a term of November 20, 2002 through October 25, 2009 was granted.
5
The Parties' Memorandum ofUnderstanding7
SEIU and the Court were parties to a memorandum
of
understanding (MOU) at the time
of
the events in this dispute. Article 10 ("Pay Practices") and section
10
.1
("Salaries")
references an appendix listing the wages for bargaining unit employees. Article
11
("Hours
of
Work"), section 11. 1 ("Workweek"), states that the work week shall consist
of
seven days, and
regular work hours for employees unless otherwise specified are from 8:00 a.m. to 5:00 p.m.,
Monday through Friday, court holidays excepted.
The Parties' Attempts at Negotiations
On July 28, SEIU and the Court met for a meet and confer session. On behalf
of
the
Court, Joseph Wiley informed SEIU that in light
of
section 68106 "no judicial business would
be conducted and no employees would report for work" on the monthly closure days. A
follow-up meeting scheduled for August 13, was canceled at the request
of
SEIU.
On August 13, Wiley wrote to Maggie Wong
of
SEIU expressing hope that the parties
could meet on August 26 to continue meeting for purpose
of
"addressing the impact
of
the
court closure decision." Wiley attached a proposal for a side letter agreement. ·The proposed
agreement contained a number
of
provisions, including acknowledgement that employees
would be furloughed one day each month without pay, that other forms
of
paid leave could not
be substituted, and that employees' retirement benefits would not be affected.
On August 14, Wiley forwarded via e-mail a copy
of
a memorandum prepared for
issuance to all staff by Court Chief Executive Officer David Yamasaki (Yamasaki), dated
August 17, announcing the closure of the Court on the third Wednesday
of
each month along
7 SEIU's request for administrative notice of the parties' memorandum of
understanding having a term of November 20, 2002 through October 25, 2009 was granted.
5

with the "furlough [of] Court employees on the same days of the closure." Wiley stated that
"[a]ll Court employees will be subject to the furlough" and that the decision was made "in
response to the court closure statute." Yamasaki's memorandum to employees noted that "the
impact of the furlough on employees is subject to a meet and confer process with the labor
organizations and these meetings are ongoing." (Emphasis in original.)
On September 11, Yamasaki distributed to employees a question-and-answer guide
regarding the court closures and resulting furloughs.
It is undisputed that between September 2009 and June 2010, the Court imposed 10
unpaid furlough days on unit employees on days when courts were closed.
ISSUE
Did the Court violate its duty to bargain by unilaterally implementing unpaid furlough
days and refusing to bargain over that decision?
CONCLUSIONS OF LAW
In determining whether a party has violated section 71634.2, PERB utilizes either a
"per se" or "totality of the conduct test," depending on the specific conduct involved and the
effect of such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.)" Absent a valid defense, unilateral changes are considered "per se"
violations if the exclusive representative establishes the following criteria by a preponderance
of the evidence: (1) the employer breached or altered the parties' written agreement or past
practice; (2) the action was taken before the employer notified the exclusive representative and
gave it an opportunity to request negotiations; (3) the change was not merely an isolated breach
of the contract or past practice, but amounted to a change in policy that had a generalized
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. (Trial Court Act, $ 71639.3; see also Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608.)
with the "furlough [ofJ Court employees on the same days
of
the closure." Wiley stated that
"[a]ll Court employees will be subject to the furlough" and that the decision was made "in
response to the court closure statute." Yamasaki's memorandum to employees noted that "the
impact
of
the furlough on employees is subject to a meet and confer process with the labor
organizations and these meetings are ongoing." (Emphasis in original.)
On September 11, Yamasaki distributed to employees a question-and-answer guide
regarding the court closures and resulting furloughs.
It is undisputed that between September 2009 and June 2010, the Court imposed 10
unpaid furlough days on unit employees on days when courts were closed.
ISSUE
Did the Court violate its duty to bargain by unilaterally implementing unpaid furlough
days and refusing to bargain over that decision?
CONCLUSIONS OF LAW
In determining whether a party has violated section 71634.2, PERB utilizes either a
"per se" or "totality
of
the conduct test," depending on the specific conduct involved and the
effect
of
such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.)8 Absent a valid defense, unilateral changes are considered "per se"
violations
if
the exclusive representative establishes the following criteria by a preponderance
of
h 	(1) the employer breached or altered the parties' written agreement or past
practice; (2) the action was taken before the employer notified the exclusive representative and
gave it an opportunity to request negotiations; (3) the change was not merely an isolated breach
of
the contract or past practice, but amounted to a change in policy that had a generalized
8
t e evidence:
6
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. (Trial Court Act,§ 71639.3; see also Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)

effect or continuing impact upon terms and conditions of employment of bargaining unit
employees; and (4) the change in policy concerned a matter within the scope of representation.
(Grant Joint Union High School District (1982) PERB Decision No. 196; Walnut Valley
Unified School District (1981) PERB Decision No. 160.)
Even when an employer has no obligation to bargain over a particular decision, it must
provide an exclusive representative with reasonable notice and opportunity to bargain over the
effects of its decisions that have an impact on matters within the scope of representation.
(Oakland Unified School District (1985) PERB Decision No. 540; Santee Elementary School
District (2006) PERB Decision No. 1822.) In practice, this means that once a firm decision is
made to enact a change to a non-negotiable subject, the employer must provide the exclusive
representative with notice and a reasonable opportunity to negotiate prior to taking an action
that impacts matters within the scope of representation. (Mt. Diablo Unified School District
(1983) PERB Decision No. 373.) What amounts to a reasonable amount of time depends on
the unique circumstances of each case. (Victor Valley Union High School District (1986)
PERB Decision No. 565.) However, a union must make a clear demand to bargain over
effects, rather than over the decision itself, and must also specifically identify the negotiable
effects over which it desires to negotiate. 'Absent such an identification, the employer has no
duty to bargain. (Trustees of the California State University (2009) PERB Decision
No. 1876a-H; State of California (Department of Corrections) (2006) PERB Decision
No. 1848-S; Stanislaus County Department of Education (1985) PERB Decision No. 556
(Stanislaus).) Persistently insisting that the employer must bargain over a decision, without
also specifically demanding to bargain over any negotiable impacts of the decision, will
amount to a waiver of a union's right to bargain over effects in the event that the underlying
7
effect or continuing impact upon terms and conditions
of
employment
of
bargaining unit
employees; and (4) the change in policy concerned a matter within the scope ofrepresentation.
(Grant Joint Union High School District (1982) PERB Decision No. 196; Walnut Valley
Unified School District (1981) PERB Decision No. 160.)
Even when an employer has no obligation to bargain over a particular decision, it must
provide an exclusive representative with reasonable notice and opportunity to bargain over the
effects
of
its decisions that have an impact on matters within the scope
of
representation.
(Oakland Unified School District (1985) PERB Decision No. 540; Santee Elementary School
District (2006) PERB Decision No. 1822.) In practice, this means that once a firm decision is
made to enact a change to a non-negotiable subject, the employer must provide the exclusive
representative with notice and a reasonable opportunity to negotiate prior to taking an action
that impacts matters within the scope
of
representation. (Mt. Diab lo Unified School District
(1983) PERB Decision No. 373.) What amounts to a reasonable amount
of
time depends on
the unique circumstances
of
each case. (Victor Valley Union High School District (1986)
PERB Decision No. 565.) However, a union must make a clear demand to bargain over
effects, rather than over the decision itself, and must also specifically identify the negotiable
effects over which it desires to negotiate. Absent such an identification, the employer has no
duty to bargain. (Trustees
of
the California State University (2009) PERB Decision
No. 1876a-H; State
of
California (Department
of
Corrections) (2006) PERB Decision
No. 1848-S; Stanislaus County Department
of
Education (1985) PERB Decision No. 556
(Stanislaus).) Persistently insisting that the employer must bargain over a decision, without
also specifically demanding to bargain over any negotiable impacts
of
the decision, will
amount to a waiver of a union's right to bargain over effects in the event that the underlying
7

decision is determined to be non-negotiable. (Newman-Crows Landing Unified School District
(1982) PERB Decision No. 223; Stanislaus.)
The key question in this case is whether section 68106 absolved the Court of its duty to
bargain over the decision to furlough employees pursuant to its authority to close courts under
the statute. In other words, did section 68106 itself authorize the Court to unilaterally furlough
employees? SEIU argues that it did not. In SEIU's view, section 68106 merely contemplated
that the Court was entitled to exercise its discretion under the statute to close courts for the
transaction of "judicial business" and this necessarily left open the option that employees could
perform alternate work when courts were closed to the public. SEIU argues that a court
closure does not automatically equate to the furlough of employees, and thus, while
section 68106 entitled the Court to unilaterally close courts for the conduct of traditional
judicial business, it did not permit the Court to unilaterally decide that its employees would not
perform any work on those days." Instead, SEIU believes that furloughs were a possible
impact of the decision to close courts under section 68106. Furthermore, because furloughs
unavoidably affect hours of employment, SEIU contends the Court's decision to mandate
furloughs falls within scope of representation under section 71634(b)(6), and therefore, the
Court had a duty to bargain over its decision to impose them. Additionally, SEIU argues that
should section 68106 be read in such a manner that permitted the Court's unilateral action,
regardless of the existence of a valid MOU between the parties that prohibited unilateral
" In support of this argument, SEIU points to the language in section 68106(b)(1)(A)
stating that the day so designated by the Judicial Council for court closure shall be treated as a
holiday for the purposes of performing any act requiring the transaction of judicial business,
including that under section 134 of the Code of Civil Procedure. That section of the code in
turn provides that during judicial holidays, the courts shall be closed for the transaction of
judicial business for all but a few enumerated exceptions, including, for example, giving jury
instructions upon request, and issuing injunctions and writs of prohibition. (Cal. Code Civ.
Proc., $ 134.)
decision is determined to be non-negotiable. (Newman-Crows Landing Unified School District
(1982) PERB Decision No. 223; Stanislaus.)
The key question in this case is whether section 68106 absolved the Court
of
its duty to
bargain over the decision to furlough employees pursuant to its authority to close courts under
the statute. In other words, did section 68106 itself authorize the Court to unilaterally furlough
employees? SEID argues that it did not. In SEIU's view, section 68106 merely contemplated
that the Court was entitled to exercise its discretion under the statute to close courts for the
transaction
of
"judicial business" and this necessarily left open the option that employees could
perform alternate work when courts were closed to the public. SEID argues that a court
closure does not automatically equate to the furlough
of
employees, and thus, while
section 68106 entitled the Court to unilaterally close courts for the conduct
of
traditional
judicial business, it did not permit the Court to unilaterally decide that its employees would not
perform any work on those days. 9 Instead, SEID believes that furloughs were a possible
impact
of
the decision to close courts under section 68106. Furthermore, because furloughs
unavoidably affect hours
of
employment, SEID contends the Court's decision to mandate
furloughs falls within scope
of
representation under section 71634(b)( 6), and therefore, the
Court had a duty to bargain over its decision to impose them. Additionally, SEID argues that
should section 68106 be read in such a manner that permitted the Court's unilateral action,
regardless
of
the existence
of
a valid MOU between the parties that prohibited unilateral
9 In support
of
this argument, SEID points to the language in section 68106(b)(l)(A)
stating that the day so designated by the Judicial Council for court closure shall be treated as a
holiday for the purposes
of
performing any act requiring the transaction
of
judicial business,
including that under section 134 of the Code of Civil Procedure. That section of the code in
turn provides that during judicial holidays, the courts shall be closed for the transaction of
judicial business for all but a few enumerated exceptions, including, for example, giving jury
instructions upon request, and issuing injunctions and writs of prohibition. (Cal. Code Civ.
Proc., § 134.)
8

reductions in hours, such a result would be unconstitutional in that it would run afoul of the
federal and California constitutions' prohibition on the impairment of contracts.
The Court takes a different view of section 68106. It argues that the statute clearly
expressed at section 68106(b)(3) that only the impacts of court closures needed to be bargained
over. The Court necessarily presumes that if courts are closed for the transaction of judicial
business then employees do not report for work. This is so, according to the Court, because
the only "business" performed by the courts is "judicial business," and this term cannot
reasonably be construed to simply mean the work that is performed by employees during times
when the public has access to the courts. Accordingly, the Court contends that it acted within
the statutory authority proscribed under section 68106 when it determined to close courts on
one Wednesday per month and prohibited employees from reporting to work on those days.
The Court maintains that it stood ready to bargain over the effects of the court closures, but
that SEIU never demanded to bargain over effects and never responded to the Court's
proposals on the subject.
Interpretation of Section 6810610
The first task in construing a statute is to ascertain the intent of the Legislature so as to
effectuate the purpose of the law. (Dyna-Med, Inc. v. Fair Employment and Housing
As the expert agency established by the Legislature to administer the Trial Court Act,
the Board has exclusive jurisdiction over conduct that arguably violates it. (See e.g,
San Diego Teachers Association v. Superior Court (1979) 24 Cal.3d 1, 20-21.) While PERB
is not specifically charged with enforcing section 68106, the Board as a quasi-judicial agency
may interpret this section to carry out its duty to administer the Trial Court Act. Thus, where
arguably unlawful conduct implicates both this statute and the Trial Court Act, the Board may
interpret the statute to determine whether the action constitutes an unfair practice. (See e.g.,
Wilmar Union Elementary School District (2000) PERB Decision No. 1371, p. 13; Whisman
Elementary School District (1991) PERB Decision No. 868.) Accordingly, PERB is the
agency charged by the Legislature with resolving disputes such at the one presented here.
reductions in hours, suc.h a result would be unconstitutional in that it would run afoul
of
the
federal and California constitutions' prohibition on the impairment
of
contracts.
The Court takes a different view
of
section 68106. It argues that the statute clearly
expressed at section 68106(b )(3) that only the impacts
of
court closures needed to be bargained
over. The Court necessarily presumes that
if
courts are closed for the transaction
of
judicial
business then employees do not report for work. This is so, according to the Court, because
the only "business" performed
by
the courts is "judicial business," and this term cannot
reasonably be construed to simply mean the work that is performed by employees during times
when the public has access to the courts. Accordingly, the Court contends that it acted within
the statutory authority proscribed under section 68106 when it determined to close courts on
one Wednesday per month and prohibited employees from reporting to work
on those days.
The Court maintains that it stood ready to bargain over the effects
of
the court closures, but
that SEIU never demanded to bargain over effects and never responded to the Court's
proposals on the subject.
Interpretation
of
Section 68106
10
The first task in construing a statute is to ascertain the intent
of
the Legislature so as to
effectuate the purpose
of
the law. (Dyna-Med, Inc.
v.
Fair Employment and Housing
such at the one presented here.
9
10
As the expert agency established by the Legislature to administer the Trial Court Act,
the Board has exclusive jurisdiction over conduct that arguably violates it. (See e.g.,
San Diego Teachers Association
v.
Superior Court (1979) 24 Cal.3d 1, 20-21.) While PERB
is not specifically charged with enforcing section 68106, the Board as a quasf-judicial agency
may interpret this section to carry out its duty to administer the Trial Court Act. Thus, where
arguably unlawful conduct implicates both this statute and the Trial Court Act, the Board may
interpret the statute to determine whether the action constitutes an unfair practice. (See e.g.,
Wilmar Union Elementary School District (2000) PERB Decision No. 1371, p. 13; Whisman
Elementary School District (1991) PERB Decision No. 868.) Accordingly, PERB is the
agency charged by the Legislature with resolving disputes

Commission (1987) 43 Cal.3d 1379, 1386-1387.) The plain language of a statute is of
paramount importance in its interpretation. As noted by the California Supreme Court:
[u]nder well-established rules of statutory construction, we must
ascertain the intent of the drafters so as to effectuate the purpose
of the law. (Citation omitted.) Because the statutory language is
generally the most reliable indicator of legislative intent, we first
examine the words themselves, giving them their usual and
ordinary meaning and construing them in context. (Citation
omitted.) When statutory language is clear and unambiguous,
"there is no need for construction and courts should not indulge
in it." (Citations omitted.)
(Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 268; see also Casterson v. Superior Court of
Santa Cruz County (2002) 101 Cal.App.4th 177, 187.) Further, when ascertaining legislative
intent, a court cannot "create exceptions, contravene plain meaning, insert what is omitted,
omit what is inserted, or rewrite the statute." (San Francisco Unified School District v.
San Francisco Classroom Teachers Association (1990) 222 Cal.App.3d 146, 149.)
Here, the Legislature's intent is perfectly clear from an examination of the language in
section 68106(a): urgency legislation was enacted to deal with "one of the most serious and
dire" fiscal crises ever to face the State of California, which in turn threatened the continued
operations of the court system. Thus, the underlying objective of section 68106 was to
immediately authorize limited court closures in order to save money so that the Judicial Branch
could keep afloat. With this basic premise in mind, it is unclear what purpose this legislation
would serve if SEIU's interpretation of the statute is credited. Namely, that the Legislature
had really intended that the Court was merely authorized to close the courts to the public, but
would be required to bargain over the decision to bar employees from actually working on
those days. What cost savings, if any, would be realized by merely banning the public from
entering court buildings? The only meaningful way to immediately achieve the underlying
money-saving goal of this legislation is to presume that employees were not to work and
10
Commission (1987)
43
Cal.3d 1379, 1386-1387.) The plain language
of
a statute is
of
paramount importance in its interpretation. As noted by the California Supreme Court:
[u]nder well-established rules
of
statutory construction, we must
ascertain the intent
of
the drafters so as to effectuate the purpose
of
the law. (Citation omitted.) Because the statutory language is
generally the most reliable indicator
of
legislative intent, we first
examine the words themselves, giving them their usual and
ordinary meaning and construing them in context. (Citation
omitted.) When statutory language is clear and unambiguous,
"there is no need for construction and courts should not indulge
in it." (Citations omitted.)
(Esberg
v.
Union Oil
Co.
(2002) 28 Cal.4th 262,268; see also Casterson
v.
Superior Court
of
Santa Cruz County (2002)
101
Cal.App.4th 177, 187
.)
Further, when ascertaining legislative
intent, a court cannot "create exceptions, contravene plain meaning, insert what is omitted,
omit what is inserted, or rewrite the statute." (San Francisco Unified School District
v.
San Francisco Classroom Teachers Association (1990) 222 Cal.App.3d 146, 149.)
Here, the Legislature's intent is perfectly clear from an examination
of
the language in
section 68106(a): urgency legislation was enacted to deal with "one
of
the most serious and
dire" fiscal crises ever to face the State
of
California, which in tum threatened the continued
operations
of
the court system. Thus, the underlying objective
of
section 68106 was to
immediately authorize limited court closures in order to save money so that the Judicial Branch
could keep afloat. With this basic premise in mind, it is unclear what purpose this legislation
would serve
if
SEIU's interpretation
of
the statute is credited. 	Namely, that the Legislature
had really intended that the Court was merely authorized to close the courts to the public, but
would be required to bargain over the decision to bar employees from actually working on
those days. What cost savings,
if
any, would be realized by merely banning the public from
entering court buildings? The only meaningful way to immediately achieve the underlying
money-saving goal of this legislation is to presume that employees were not to work and

therefore not be paid on court closure days." Any other interpretation of the statute would
render the provisions regarding "a unique response" to "the current fiscal crisis" essentially
meaningless, which is a result to be avoided. (Henning v. Industrial Wage Commission (1988)
46 Cal.3d 1262, 1278 [a court's ultimate resolution of statutory construction should not negate
a clear and unambiguous legislative directive].)
Furthermore, as pointed out by the Court in its reply brief, the Legislature further
elucidated the intent behind section 68106 in Government Code section 20969.1(c):
For the purposes of this section, 'mandatory furloughs' is limited
to the time during which a trial court employee is directed to be
day designated by the Judicial Council for closure of the courts as
authorized in Section 68106.
(Emphasis supplied.) Accordingly, it appears that the Legislature intended that employees
would have forced absences without pay when the Judicial Council determined to exercise its
authority under section 68106. This interpretation is further bolstered by the language in
section 68106(b)(3) stating that: "Notwithstanding any other law, any court closure or
reduction in earnings as a result of this section shall not constitute a reduction in salary or
service for the purpose of calculation of retirement benefits or other employment-related
benefits for court employees otherwise eligible for those benefits." (Emphasis supplied.)
There would be no need to carve out an exception for employees' retirement and other benefits
Indeed, the statute provided that the services of independent contractors working in
the courts (i.e., Sheriff officers providing court security services) would not be required on
court closure days. (Gov. Code, $ 68106(b)(6).) In light of that condition, the Legislature
instructed the Court to enter into good faith negotiations with the Sheriff's department to
reduce the amount of the contract by the equivalent of 4.62 percent per month, and a
mechanism to unilaterally impose that reduction if necessary. (Gov. Code, $ 68106(b)(6)(B).)
Similarly, the statute provided a mechanism for judicial officers, who are not court employees,
to voluntarily waive their rights to salary equivalent to one day per month. (Gov. Code,
$ 68106(b)(4).) Thus, it seems clear that the Legislature intended that when the courts were
closed, no work was to be performed, even by those whom the Court does not directly employ
(and thus do not fall within the coverage of the Trial Court Act).
11
therefore not be paid on court closure days.
11
Any other interpretation
of
the statute would
render the provisions regarding
"a
unique response" to "the current fiscal crisis" essentially
meaningless, which is a result to be avoided. (Henning
v.
Industrial Wage Commission (1988)
46
Cal
.3d 1262,
1278
[a court's ultimate resolution
of
statutory construction should not negate
a clear and unambiguous legislative directive].)
Furthermore, as pointed out by the Court in its reply brief, the Legislature further
elucidated the intent behind section 68106 in Government Code section 20969.l(c):
For the purposes
of
this section, 'mandatory furloughs' is limited
to the time during which a trial court employee is directed to be
absent from work without pay in the 2009-10 fiscal year on thee
day designated by the Judicial Council for closure
of
the courts as
authorized in Section 68106.
. absent from work without
pay
in the 2009-10 fiscal year on th
(Emphasis supplied.) Accordingly, it appears that the Legislature intended that employees
would have forced absences without pay when the Judicial Council determined to exercise its
authority under section 68106. This interpretation is further bolstered by the language in
section 68106(b)(3) stating that: "Notwithstanding any other law, any court closure or
reduction in earnings as a result
of
this section shall not constitute a reduction in salary or
service for the purpose
of
calculation
of
retirement benefits or other employment-related
benefits for court employees otherwise eligible for those benefits." (Emphasis supplied.)
There would be no need to carve out an exception for employees' retirement and other benefits
11
Indeed, the statute provided that the services .of independent contractors working in
the courts (i.e., Sheriff officers providing court security services) would not be required on
court closure days. (Gov. Code, § 68106(b)(6).) In light of that condition, the Legislature
instructed the Court to enter into good faith negotiations with the Sheriffs department to
reduce the amount
of
the contract by the equivalent
of
4.62 percent per month, and a
mechanism to unilaterally impose that reduction if necessary. (Gov. Code,§ 68106(b)(6)(B).)
Similarly, the statute provided a mechanism for judicial officers, who are not court employees,
to voluntarily waive their rights to salary equivalent to one day per month. (Gov. Code,
§ 68106(b)(4).) Thus, it seems clear that the Legislature intended that when the courts were
closed, no work was to be performed, even by those whom the Court does not directly employ
(and thus do not fall within the coverage of the Trial Court Act).
11

if it was not presumed that court closures under 68106 would result in furloughs and therefore
automatic pay reductions for employees.
SEIU's argument that employees could perform alternate work on court closure days by
virtue of the reference in section 68106(b)(1)(A) to the Code of Civil Procedure section 134 is
also unpersuasive. The fact that the Legislature has carved out special exceptions for various
types of judicial business transactions that can be permitted to occur on judicial holidays, when
the courts are otherwise ordinarily closed, and therefore, employees have a day off from work,
does not demonstrate a legislative intent that the Court should be required to bargain over
whether employees can perform "alternate" work during court closures. Rather, it simply
demonstrates that under the mandatory employee furloughs required when the Judicial Council
exercised its authority to close courts under section 68106, certain exceptions for the
transaction of judicial business could be made, if necessary, as with any other judicial holiday
when employees are normally off work.
The Legislature also clearly intended to limit the Court's bargaining obligation only to
the effects of court closures on subjects within the scope of representation by the language in
section 68106(b)(3). At three separate points in this section, the Legislature stated that nothing
in section 68106 should be construed as relieving the Court of its obligation to bargain over
the impact of court closures. "Decision-bargaining" versus "impact-bargaining" are well-
known terms of art in labor law, of which the Legislature is no doubt aware. (See, e.g., Zerger
et al., California Public Sector Labor Relations (2012) Duty to Bargain, $ 10.03[1].) SEIU
argues that had the Legislature intended to exempt the Court from bargaining over the decision
to furlough employees it would have clearly stated that within section 68106. However, this
12 The statute specifically notes that it is the courts themselves, rather than the
Judicial Council or the AOC, which is subject to the bargaining obligation. (Gov. Code,
$ 68106(b)(3).)
12
if
it was not presumed that court closures under 68106 would result in furloughs and therefore
automatic pay reductions for employees.
SEIU' s argument that employees could perform alternate work on court closure days by
virtue
of
the reference in section 68106(b)(l)(A) to the Code
of
Civil Procedure section 134 is
also unpersuasive. The fact that the Legislature has carved out special exceptions for various
types
of
judicial business transactions that can be permitted to occur on judicial holidays, when
the courts are otherwise ordinarily closed, and therefore, employees have a day off from work,
does not demonstrate a legislative intent that the Court should be required to bargain over
whether employees can perform "alternate" work during court closures. Rather, it simply
demonstrates that under the mandatory employee furloughs required when the Judicial Council
exercised its authority to close courts under section 68106, certain exceptions for the
transaction
of
judicial business could be made,
if
necessary, as with any other judicial holiday
when employees are normally
off
work.
The Legislature also clearly intended to limit the Court's bargaining obligation only to
the effects
of
court closures on subjects within the scope
of
representation by the language in
section 68106(b)(3). At three separate points in this section, the Legislature stated that nothing
in section 68106 should be construed as relieving the Court
12
of
its obligation to bargain over
the impact
of
court closures. "Decision-bargaining" versus "impact-bargaining" are well-
known terms
of
art in labor law,
of
which the Legislature is no doubt aware. (See, e.g., Zerger
et al., California Public Sector Labor Relations (2012) Duty to Bargain, § 10.03[1].) SEIU
argues that had the Legislature intended to exempt the Court from bargaining over the decision
to furlough employees it would have clearly stated that within section 68106. However, this
12
The statute specifically notes that it is the courts themselves, rather than the
Judicial Council or the AOC, which is subject to the bargaining obligation. (Gov. Code,
§ 68106(b)(3).)
12

argument rests on the premise that court closures pursuant to section 68106 were not already
intended by the Legislature to result in automatic employee furloughs. For the reasons
discussed above, this argument has been rejected. Furthermore, there would be no clear
purpose in repeatedly limiting the bargaining obligation only to impacts of court closures if the
Legislature had actually intended to also require bargaining over the decision to furlough
employees. (See People v. Mancha (1974) 39 Cal.App.3d 703, 713 ["where a statute
enumerates things upon which it is to operate it is to be construed as excluding from its effect
all those not expressly mentioned."])
PERB has consistently held that the Legislature retains the authority to unilaterally
modify terms and conditions of employment of public employees without requiring collective
bargaining. (State of California (Department of Personnel Administration) (2011) PERB
Decision No. 2210-S (DPA III); State of California (Department of Personnel Administration)
(2010) PERB Decision No. 2152-S (DPA II); see also State of California (Department of
Personnel Administration) (2009) PERB Decision No. 2085-S (DPA D);; and State of
California (Department of Personnel Administration) (2008) PERB Decision No. 1978-S.)
In DPA II and DPA III, the Board upheld the dismissals of unfair practice charges filed
by two different public employee unions alleging that the State unlawfully implemented
furloughs after the Governor had mandated such action by executive order. PERB, relying the
decision of the California Supreme Court in Professional Engineers in California Government
v. Schwarzenegger (2010) 50 Cal.4th 989 (Professional Engineers) found that any bargaining
obligation over the decision to implement furloughs was effectively eliminated when the
Legislature ratified the Governor's furlough plan by adopting revisions to the Budget Acts of
2008 and 2009. (DPA II at p. 6; DPA III at p. 4.) In Professional Engineers, the Court found
13	13
argument rests on the premise that court closures pursuant to section 68106 were not already
intended by the Legislature to result in automatic employee furloughs. 	For the reasons
discussed above, this argument has been rejected. Furthermore, there would be no clear
purpose in repeatedly limiting the bargaining obligation only to impacts
of
court closures
if
the
Legislature had actually intended to also require bargaining over the decision to furlough
employees. (See People
v.
Mancha (1974) 39 Cal.App.3d 703, 713 ["where a statute
enumerates things upon which it is to operate it is to be construed as excluding from its effect
all those not expressly mentioned."])
The Legislature is Entitled to Modify the Scope
of
Bargaining
PERB has consistently held that the Legislature retains the authority to unilaterally
modify terms and conditions
of
employment
of
public employees without requiring collective
bargaining. (State
of
California (Department
of
Personnel Administration) (2011) PERB
Decision No. 2210-S (DPA
111);
State
of
California (Department
of
Personnel Administration)
(2010) PERB Decision No. 2152-S (DPA
11);
see also State
of
California (Department
of
Personnel Administration) (2009) PERB Decision No. 2085-S (DPA !);; and State
of
California (Department
of
Personnel Administration) (2008) PERB Decision No. 1978-S.)
In DPA
II
and DPA III, the Board upheld the dismissals
of
unfair practice charges filed
by two different public employee unions alleging that the State unlawfully implemented
furloughs after the Governor had mandated such action by executive order. PERB, relying the
decision
of
the California Supreme Court in Professional Engineers in California Government
v.
Schwarzenegger (2010) 50 Cal.4th 989 (Professional Engineers) found that any bargaining
obligation over the decision to implement furloughs was effectively eliminated when the
Legislature ratified the Governor's furlough plan by adopting revisions to the Budget Acts of
2008 and 2009. (DPA II at p. 6; DPA III at p. 4,) In Professional Engineers, the Court found
The Legislature is Entitled to Modify the Scope of Bargaining

that the emergency exception in the Ralph C. Dills Act" did not independently authorize the
Governor's action in imposing furloughs, but that the Legislature's later approval of his plan
authorized unilateral changes in terms and conditions of employment. The Court stated:
[Njothing in the Dills Act precludes the Legislature from
adopting such a furlough plan through a legislative enactment as
one method of reducing the compensation of state employees
when such cuts are found necessary and appropriate in light of
the state's fiscal condition.
(Professional Engineers at p. 1048; emphasis in original.)
SEIU argues that Professional Engineers is distinguishable from the instant situation
because in that case, the furlough plan was explicit, whereas here, section 68106 does not
specifically use the word "furlough." As previously discussed, it has been concluded that the
Legislature intended that employees would be furloughed when courts were closed pursuant to
section 68106. Thus, SEIU's argument is unpersuasive. SEIU further argues that Professional
Engineers actually stands for the proposition that the emergency exception in the Dills Act did
not authorize unilateral reductions in employees' hours of work and compensation. Therefore,
SEIU argues, the emergency exception in the Trial Court Act did not authorize the Court's
unilateral action here. This argument misses the import of Professional Engineers. The Court
in this case need not prove an emergency existed sufficient to invoke the protections of
section 71634.1. Rather, the Legislature itself, by enacting section 68106 to deal with the
fiscal crisis in the courts, provided the authority for the Court's unilateral action. Just as the
Legislature initially enacted the Trial Court Act, setting forth the scope of representation and
therefore determining the bargaining obligation of the Court, nothing precludes the Legislature
from taking action to later modify the scope of bargaining, as it did by the enactment of
section 68106. (Professional Engineers at p. 1005; DPA III; DPA II.) Thus, the Court did not
15 The Ralph C. Dills Act (Dills Act) governs labor relations for the state and is codified
at section 3512 et seq.
14
that the emergency exception in the Ralph
C.
Dills Act
13
did not independently authorize the
Governor's action in imposing furloughs, but that the Legislature's later approval
of
his plan
authorized unilateral changes in terms and conditions
of
employment. The Court stated:
[N]othing in the Dills Act precludes the Legislature from
adopting such a furlough plan through a legislative enactment as
one method
of
reducing the compensation
of
state employees
when such cuts are found necessary and appropriate in light
of
the state's fiscal condition.
(Professional Engineers at p. 1048; emphasis in original.)
SEIU argues that Professional Engineers is distinguishable from the instant situation
because in that case, the furlough plan was explicit, whereas here, section 68106 does not
specifically use the word "furlough." As previously discussed, it has been concluded that the
Legislature intended that employees would be furloughed when courts were closed pursuant to
section 68106. Thus, SEIU's argument is unpersuasive. SEIU further argues that Professional
Engineers actually stands for the proposition that the emergency exception in the Dills Act did
not authorize unilateral reductions in employees' hours
of
work and compensation. Therefore,
SEIU argues, the emergency exception in the Trial Court Act did not authorize the Court's
unilateral action here. This argument misses the import
of
Professional Engineers. The Court
in this case need not prove an emergency existed sufficient to invoke the protections
of
section 71634.1. Rather, the Legislature itself, by enacting section 68106 to deal with the
fiscal crisis in the courts, provided the authority for the Court's unilateral action. Just as the
Legislature initially enacted the Trial Court Act, setting forth the scope ofrepresentation and
therefore determining the bargaining obligation
of
the Court, nothing precludes the Legislature
from taking action to later modify the scope of bargaining, as it did by the enactment
of
section.68106. (Professional Engineers atp. 1005; DPA III; DPA II.) Thus, the Court did not
13
The Ralph C. Dills Act (Dills Act) governs labor relations for the state and is codified
at section 3512 et seq.
14

commit an unfair practice when it failed to bargain over the decision to impose furloughs
during the period of court closures in 2009-2010.14
Duty to Bargain Effects
There is no evidence in the record that SEIU ever made a clear demand to bargain over
the effects of the Court's decision to close courts and therefore impose furloughs. The record
is clear that the Court scheduled meetings to discuss impacts, presented at least one proposal,
and stated repeatedly in writing that it understood its obligation to bargain over negotiable
impacts relating to the court closures and was ready to do so. This situation is factually similar
to Stanislaus. In that case, the union alleged that the employer had a duty to bargain over the
decision to turn over operations of one of the employer's facilities to an outside provider. The
employer and union met to discuss impacts of the decision, but proposals by the employer over
that subject were only met by the union demanding to bargain over the decision itself. The
union never specifically demanded to bargain over effects nor presented any proposal
regarding negotiable impacts. In its argument to the Administrative Law Judge (ALJ), the
union focused entirely on the negotiability of the decision. PERB adopted the decision of the
ALJ in that case, and found that under the circumstances, the employer had either discharged
its effects bargaining obligation, or that the union had waived its right to bargain over effects.
(Id., ALJ's proposed dec. at pp. 26-27.)
14 SEIU's argument that this interpretation of section 68106 results in unconstitutional
impairment of contract has already been rejected by PERB under similar facts. In DPA I, the
Board found that legislative action entitled to the state to unilaterally change the method of
overtime calculation, despite contrary language in the applicable MOU. The union in that case
argued that by so doing, the state violated the California Constitution's prohibition on
impairment of contracts. PERB refused to consider this argument, finding that PERB lacks
jurisdiction to consider alleged constitutional violations. (Id. at p. 9; citations omitted.)
Therefore, there are no grounds to consider SEIU's argument in this regard. Furthermore, the
parties' MOU at section 1 1.1 sets forth, for payroll purposes, regular
section 68106 designated court closure days as holidays, the resulting alteration to employees'
hours fits within this section of the MOU.
15
commit an unfair practice when it failed to bargain over the decision to impose furloughs
during the period
of
court closures in 2009-2010.
14
Duty to Bargain Effects
There is no evidence in the record that SEIU ever made a clear demand to bargain over
the effects
of
the Court's decision to close courts and therefore impose furloughs. The record
is clear that the Court scheduled meetings to discuss impacts, presented at least one proposal,
and stated repeatedly in writing that it understood its obligation to bargain over negotiable
impacts relating to the court closures and was ready to do so. This situation is factually similar
to Stanislaus. In that case, the union alleged that the employer had a duty to bargain over the
decision to turn over operations
of
one
of
the employer's facilities to an outside provider. The
employer and union met to discuss impacts
of
the decision, but proposals by the employer over
that subject were only met by the union demanding to bargain over the decision itself. The
union never specifically demanded to bargain over effects nor presented any proposal
regarding negotiable impacts. In its argument to the Administrative Law Judge (ALJ), the
union focused entirely on the negotiability
of
the decision. PERB adopted the decision
of
the
ALJ in that case, and found that under the circumstances, the employer had either discharged
its effects bargaining obligation, or that the union had waived its right to bargain over effects.
(Id., ALJ's proposed dee. at pp. 26-27.)
14
SEIU' s argument that this interpretation
of
section 68106 results in unconstitutional
impairment
of
contract has already been rejected by PERB under similar facts. 	In DP
A
I,
the
Board found that legislative action entitled to the state to unilaterally change the method
of
overtime calculation, despite contrary language in the applicable MOU. The union in that case
argued that by so doing, the state violated the California Constitution's prohibition on
impairment
of
contracts. PERB refused to consider this argument, finding that PERB lacks
jurisdiction to consider alleged constitutional violations. (Id. at p. 9; citations omitted.)
Therefore, there are no grounds to consider SEIU' s argument in this regard. Furthermore, the
parties' MOU at section 11.1 sets forth, for payroll purposes, regular hours of employees as	hours of employees as
from 8:00 a.m. to 5:00 p.m., Monday through Friday, "Court holidays excepted." Thus, sincefrom 8:00 a.m. to 5:00 p.m., Monday through Friday, "Court holidays excepted." Thus, since
section 68106 designated court closure days as holidays, the resulting alteration to employees'
hours fits within this section of the MOU.
15

In this case, SEIU has been entirely focused on its perceived right to bargain over the
Court's decision to impose furloughs, characterizing furloughs as an impact of the decision to
close the courts. Following SEIU's reasoning, the Court would then be required to bargain
over the decision to impose an impact. Notwithstanding the fact that this rationale completely
obliterates the distinction between decision and effects bargaining, it is simply incorrect. The
relevant decision here was non-negotiable. Like the employer in Stanislaus, the Court stood
ready to bargain over negotiable effects, and similar to the union in that case, SEIU failed to
identify negotiable effects nor made a demand to bargain over effects. Thus, the Court cannot
be found in this circumstance to have violated its duty to bargain in good faith.
PROPOSED ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
matter, the complaint and underlying unfair practice charge in Case No. SF-CE-15-C, SEIU
Local 521 v. Santa Clara County Superior Court, are hereby DISMISSED.
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.)
16	16
In this case, SEIU has been entirely focused on its perceived right to bargain over the
Court's decision to impose furloughs, characterizing furloughs as an impact
of
the decision to
close the courts. Following SEIU's reasoning, the Court would then be required to bargain
over the decision to impose an impact. Notwithstanding the fact that this rationale completely
obliterates the distinction between decision and effects bargaining, it is simply incorrect. The
relevant decision here was non-negotiable. Like the employer in Stanislaus, the Court stood
ready to bargain over negotiable effects, and similar to the union in that case, SEIU failed to
identify negotiable effects nor made a demand to bargain over effects. Thus, the Court cannot
be found in this circumstance to have violated its duty to bargain in good faith.
PROPOSED ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
matter, the complaint and underlying unfair practice charge in Case No. SF-CE-15-C,
SEIV
Local 521
v.
Santa Clara County Superior Court, are hereby DISMISSED.
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, $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 PERB Regulation 32135(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, $5 32300, 32305, 32140,
and 32135, subd. (c).)
Valerie Pike Racho
Administrative Law Judge
17	17
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
PERB Regulation 32135(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).)
Valerie Pike Racho
Administrative Law Judge