Region 2 Court Interpreter Employment Relations Committee, et al. (PERB 2099I)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FEDERATION OF
INTERPRETERS-TNG/CWA,
Charging Party,
V.
REGION 2 COURT INTERPRETER
EMPLOYMENT RELATIONS COMMITTEE,
et al.,
Respondent.
Case No. SF-CE-7-I
PERB Decision No. 2099-I
February 25, 2010
Appearances: Beeson, Tayer & Bodine by Sheila K. Sexton, Attorney, for California
Federation
of
Interpreters-TNG/CW A; Judicial Counsel
of
the Courts by Patti L. Williams,
Attorney, for Region 2 Court Interpreter Employment Relations Committee, et al.
Before McKeag, Neuwald and Wesley, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the California Federation
of
Interpreters-TNG/CWA
(Federation)
of
the partial dismissal
of
an unfair practice charge by a Board agent. The charge
alleged that the Region 2 Court Interpreter Employment Relations Committee, et al. (Region 2
Committee) and the Superior Courts
of
San Francisco, Sonoma, Santa Cruz and Monterey
Counties (collectively Courts) violated the Trial Court Interpreter Employment and Labor
Relations Act (Court Interpreter Act) 1 when they provided more favorable terms and
1 The Court Interpreter Act is codified at Government Code section 71800 et seq. Unless
otherwise indicated, all statutory references herein are to the Government Code.

conditions of employment to independent contractors than they did to court employees. The
Federation alleged this conduct constituted a violation of Court Interpreter Act sections 71802
and 71822.
The Board agent ruled that the Federation failed to establish the alleged pay disparity
between employees and independent contractors in connection with allegations by
Essam Elmahgoop (Elmahgoop) and Ted Kim (Kim) was for the purpose of discouraging
protected conduct. Accordingly, the Board agent dismissed those allegations for failure to
establish a prima facie case of discrimination in violation of Section 71802. 2
The Board has reviewed the entire record in this case and find that the unfair practice
charge states a prima facie case of violation of the Court Interpreter Act section 71802.
Accordingly, we reverse the partial dismissal of this charge and remand the matter to the
Office of the General Counsel for the issuance of a complaint consistent with this decision.
FACTS
The Region 2 Committee is one of four regional committees created under the Court
Interpreter Act to unify working conditions among trial courts with defined geographical areas.
Region 2 includes the counties of the First and Sixth Appellate Districts, except Solano
County.3 The Federation is the exclusive representative for all the superior court employees in
Region 2 who provide interpretation services in court and related proceedings. Although the
2 The Board agent also dismissed the allegations that the Region 2 Committee violated
Section 71802 on the grounds that Section 71802 only defines permissible and impermissible
conduct by trial courts. That ruling was not appealed by either party and, therefore, is not
before the Board. Consequently, it is not a part of the Board's decision in this case.
3 The Court of Appeal for the First Appellate District adjudicates cases from the
counties of Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa,
San Francisco, San Mateo, Solano, and Sonoma. The Court of Appeal for the Sixth Appellate
District adjudicates cases from the counties of Santa Clara, San Benito, Santa Cruz, and
Monterey.
2

trial courts are the official employers, the regional committees are the designated
representatives for the courts in their respective geographical area for the purpose of meeting
and conferring.
The Federation and the Region 2 Committee are signatories to a collective bargaining
agreement dated November 18, 2005 to September 30, 2008 (Region 2 Agreement). The
Region 2 Agreement defines a regional court interpreter coordinator as an employee of the
administrative office of the courts whose duty is to locate, assign and schedule available court
interpreter employees for courts within and across regions which are described under
Section 71807(a). The Region 2 Agreement also defines a local court interpreter coordinator
as an employee of a superior court whose duty it is to locate, assign, and schedule available
court interpreter employees for his or her court.
Under the Region 2 Agreement, intermittent part-time employees are defined as those
employees who are either scheduled by the court to work less than twenty hours per week or
work on an as-needed basis. Intermittent part-time employees receive no guarantee of work,
but are considered bargaining unit members.
A. 	Premium Payments
Prior to May 2006, when an employee interpreter accepted a cross assignment that
presented "unusual circumstances," the employee would receive a full day's pay for a half-day
assignment. For the purposes of this practice, "unusual circumstances" included long distance
travel and/or assignments that required the employee to refuse other offers of work. In
May 2006, the Monterey and Sonoma County Superior Courts began informing employee
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interpreters that the Region 2 Agreement precluded premium payments for interpreters who
were required to travel long distances and forego other work opportunities.4
B. 	Essam Elmahgoop
Elmahgoop is an intermittent employee for the San Francisco County Superior Court.
On or about May 19, 2006, Elmahgoop was offered an assignment in the Monterey County
Superior Court for May 24, 2006. Although the assignment was for a half-day, Elmahgoop
stated that he would accept the assignment if he was paid for a full day plus mileage
reimbursement. The interpreter coordinator for the Monterey County Superior Court informed
Elmahgoop that "it is our region's policy that no employee should be paid for a half-day
assignment at the full day rate of $265.04." Under the circumstances, Elmahgoop declined the
assignment, and the court hired a non-certified contract interpreter, Samir Riszkallah
(Riszkallah), who was paid $500 for the half-day assignment.
Later, on or about August 4, 2006, the Monterey Superior Court requested the services
of Elmahgoop for a two-day trial to begin on August 7, 2006. Elmahgoop said that he was
available and would accept the assignment if the court would pay for him to stay overnight
rather than travel from Monterey to San Francisco and back on the night of August 7, 2006.
The interpreter coordinator's supervisor informed Elmahgoop that the court could not pay for
overnight accommodations. Elmahgoop declined the assignment. Thereafter, the court hired
Rizkallah who was paid $125 per hour through the agency for which he worked, as compared
to the employee rate of $33 .14 per hour.
4 On July 7, 2007, a complaint was issued finding the Superior Courts of Monterey,
Sonoma and San Francisco unilaterally changed the premium pay policies for employee
interpreters who were required to travel more than an hour for a cross-assignment.
4

C. 	Ted Kim
Kim is an intermittent employee for the San Francisco County Superior Court. In June
2006, Kim accepted a half-day assignment at Sonoma County Superior Court for the full-day
rate of $265.04. However, on June 22, 2006, Kim received a call from the Sonoma County
Superior Court's interpreter coordinator, informing him that the court would only pay him at
the half-day rate, despite three to four hours of travel time. As a consequence, Kim withdrew
from the assignment. The court subsequently hired independent contractor Jacki Noh (Noh)
for the assignment, and paid her $500 plus round trip mileage.
D. 	Region 2 Committee's Response
In its response to the above-stated charges, the Region 2 Committee argued that, while
it did in fact discontinue the practice of paying employees for a full-day's work when a half
day assignment was accompanied by unusual circumstances, the change was in keeping with
the language and intent expressed in the Region 2 Agreement. In particular, the Region 2
Committee cited Articles 20, 21 and 22 of the Region 2 Agreement with regard to pay rates,
mileage reimbursement and regular working hours. The Region 2 Committee also cited the
Court Interpreter Act for the principle of unifying pay rates throughout the region.
DISCUSSION
The issue in this case is whether the courts' disparate treatment of independent
contractors and court employees violated Section 71802. Because this is a case of first
impression, it is necessary to formulate a test for the establishment of a prima facie violation.
Court Interpreter Act section 71802 states, in relevant part:
(a) On and after July 1, 2003, trial courts shall appoint trial court
employees, rather than independent contractors, to perform
spoken language interpretation of trial court proceedings. An
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interpreter may be an employee of the trial court or an employee
of another trial court on cross-assignment.
(c) Notwithstanding subdivisions (a) and (b), and unless
otherwise provided in a memorandum of understanding or
agreement with a recognized employee organization, a trial court
may also appoint an independent contractor on a day-to-day basis
to perform spoken language interpretation of trial court
proceedings if all of the following circumstances exist:
(3) The trial court does not provide independent
contractors appointed pursuant to this subdivision with
lesser duties or more favorable working conditions than
those to which a court interpreter pro tempore employed
by that trial court would be subject for the purpose of
discouraging interpreters from applying for pro tempore
employment with the trial court. The trial court is not
required to apply the employee training, disciplinary,
supervisory, and evaluation procedures of the trial court to
any independent contractor.
Section 71802( c)(3) states that hiring independent contractors with lesser duties or
more favorable conditions is a violation of the statute if it is done for the purpose of
discouraging interpreters from applying for pro tempore employment with the Court. The
Court Interpreter Act, however, does not define "lesser duties" or "more favorable conditions."
These phrases, however, clearly relate to the working conditions required of contractors as
compared to those of employees. Moreover, it is equally clear that violations of
Section 71802(c)(3) require an unlawful motivation for the disparate treatment of independent
contractors.
A. 	Circumstantial Evidence May Be Used To Establish Unlawful Motive
It should be noted that direct evidence of unlawful motive is rare. Consequently, the
courts and PERB have held that unlawful discriminatory motive can be established by
circumstantial evidence and inferred from the record as a whole. (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4 th 317, 354; Novato Unified School District (1982) PERB Decision No. 210.)
6

In such cases, an employee who claims discrimination must first make a prima facie case.
According to the California Supreme Court, this step is "designed to eliminate at the outset the
most patently meritless claims." (Ibid., at p. 355.) Although the employee's burden at this
stage is not overly burdensome, the employee must show, at a minimum, that one can infer
from the employer's actions, if such actions remain unexplained, that it is more likely than not
that the employer's conduct was such actions were "based on a [prohibited] discriminatory
criterion." (Ibid.)
B. 	Establishing A Prima Facie Violation Of Section 71802(c)(3)
Based on the foregoing, we find that in order to establish a prima facie violation of
Section 71802(c)(3), the charging party must establish that: (1) an independent contractor was
afforded lesser duties or more favorable working conditions than an employee interpreter was
(or would have been) afforded; and (2) the employer applied the disparate treatment for the
purpose of discouraging independent contractors from applying for pro tempore interpreter
jobs. With regard to the second element, the charging party must show a substantial disparity
in the duties or working conditions between employee interpreters and independent
contractors, plus some other factual circumstances that suggest unlawful motive. Such facts
may include, but are not limited to, the employer's departure from established procedures and
standards, evidence that the employer actively discouraged interpreters from applying for pro
tempore employment; or other facts that might demonstrate the employer's unlawful motive.5
It should be noted that in determining whether the charging party has stated a prima
facie case, the Board assumes the essential facts alleged in the charge are true. (Golden Plains
Unified School District (2002) PERB Decision No. 1489.) Consistent with this premise, the
5 This list is not exhaustive. Other factors may be added on a case-by-case basis.
7

Board has held that disputed facts and conflicting theories of law must be resolved through the
hearing process. (Ibid.) Thus, the focus in Section 71802 cases at the charge investigation
stage is limited to whether the charging party has plead facts sufficient to establish the two
elements of the prima facie case.
In the event a complaint is issued and the matter progresses to a formal hearing, the
charging party will be required to prove the facts necessary to support the establishment of a
prima facie case. If a prima facie case is established, the employer will be afforded an
opportunity to present evidence that its disparate treatment was taken for a legitimate reason,
notwithstanding evidence of unlawful motive.
C. 	Essam Elmahgoop
1. 	May 24, 2006 Assignment
The Federation alleged that on May 19, 2006, Elmahgoop, an employee interpreter, was
offered a half-day assignment in Monterey County Superior Court for May 24, 2006. Given
the distance and travel time between San Francisco and Monterey, Elmagoop indicated he
would accept the assignment if the court would pay him the full-day rate ($265.04) plus
mileage. The court denied the request and Elmahgoop declined the assignment. Thereafter,
the court hired Rizhallah, a non-certified independent contractor, and paid him $500 for the
assignment.
Applying the above-stated test to these facts, we find that because Rizhallah was paid
almost twice as much as Elmahgoop would have received, the court clearly afforded more
favorable working conditions to an independent contractor than it did to an employee
interpreter. Thus, the first element of the test is satisfied. Next, based on the magnitude of the
disparity, plus the fact that the court allegedly unilaterally changed its premium pay policies
8

for employees but not for independent contractors, we find the Federation has demonstrated
evidence
of
unlawful motive.6
Accordingly, we find both elements have been established and, therefore, conclude the
Federation established a prima facie case that the court's disparate treatment
of
Rizhallah in
connection with the May 24, 2006, assignment constituted a violation
of
Section 71802.
2.
	August 7, 2006 Assignment
The Federation also demonstrated that on or about August 4, 2006, the Monterey
County Superior Court requested the services ofElmahgoop for a two-day trial to begin on
August
7,
2006. Elmahgoop said that he was available and would accept the assignment
if
the
court would pay for him to stay overnight rather than travel from Monterey to San Francisco
and back on the night
of
August 7, 2006. The court denied the request and Elmahgoop
declined the assignment. The court hired Rizkallah, who was paid $125 per hour, through the
agency for which he worked, as compared to the employee rate
of
$3
3 .14 per hour.
Applying the test to these facts, Rizkallah was paid almost four times the employee
rate. 	Under these circumstances, there is no doubt Rizkallah was afforded more favorable
working conditions than Elmahgoop would have received. Thus, the first element
of
the test is
satisfied. Moreover, in light
of
the magnitude
of
this disparity in pay, plus the fact that the
court allegedly unilaterally changed its premium pay policies for employees but not for
independent contractors, we conclude the Federation has demonstrated evidence of unlawful
motive. Accordingly, like the May 19, 2006 allegation, both elements
of
the prima facie case
6 The Federation also alleges the court's action is based on union animus because it was
the driving force behind the legislative enactment of the Court Interpreter Act. Other than this
mere assertion, however, there are no facts to show such animus.
9

have been satisfied for this allegation. We, therefore, find the Federation established a prima
facie case that the court's disparate treatment
of
Rizhallah in connection with the August 7,
2006 assignment constituted a violation
of
Section 71802.
D.
	Ted Kim
The Federation established that in late June 2006, Kim, an employee interpreter,
accepted a half-day assignment at Sonoma County Superior Court for the full-day rate
of
$265.04. However, on June 22, 2006, Kim was informed by the court that it would only pay
him at the half-day rate, despite three to four hours
of
travel time. Consequently, Kim
withdrew from the assignment and the court subsequently hired Noh, an independent
contractor, for the assignment. Noh was paid $500 plus round trip mileage.
Applying the test to these facts, because Noh was paid almost twice as much as Kim
would have received, there is no question that the court afforded more favorable working
conditions to an independent contractor than it did to Kim. Last, based on the magnitude
of
this disparity, plus the fact that the court allegedly unilaterally changed its premium pay
policies for employees but not for independent contractors, we find the Federation
demonstrated evidence
of
unlawful motive. Accordingly, we find both elements have been
established and, therefore, conclude the Federation established a prima facie case that the
court's disparate treatment
of
Noh constituted a violation
of
Section 71802.
Based on the foregoing, we conclude the Federation established a prima facie case that
the Monterey County Superior Court violated Section 71802 when it paid an independent
contractor more than Elmahgoop would have received in connection with the May 24, 2006,
and August 7, 2006, assignments. In addition, we find the Federation also established a prima

facie case that Sonoma County Superior Court violated Section 71802 when it paid an
independent contractor more than Kim would have received in connection with the June 2006
assignment.
ORDER
The unfair practice charge in Case No. SF-CE-7-I is hereby REMANDED to the Office
of
the General Counsel for the issuance
of
a complaint consistent with this decision.
Members Neuwald and Wesley joined in this Decision.
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