Los Angeles Superior Court (PERB 2112I)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FEDERATION OF
INTERPRETERS, LOCAL 39521,
Charging Party, 	Case No. LA-CE-24-I
v . 	PERB Decision No. 2112-I
June 7, 2010LOS ANGELES SUPERIOR COURT,
Respondent.
Appearances: Beeson, Tayer & Bodine by Sheila K. Sexton, Attorney, for California
Federation of Interpreters, Local 39521; Wiley, Price & Radulovich by Joseph E. Wiley,
Attorney, for Los Angeles Superior Court.
Before Dowdin Calvillo, Chair; Mckeag and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the California Federation of Interpreters, Local 39521 (CFI) of
a Board agent's partial dismissal (attached) of its unfair practice charge. The charge alleged
that the Los Angeles Superior Court (Court) violated the Trial Court Interpreter Employment
and Labor Relations Act (Court Interpreter Act)' by making unilateral changes in policy and
practice regarding filling assignments, reducing staffing and failing to give employees priority
for assignments, imposing limitations on work hours for part-time and as-needed employees,
retaliating against certain employees for engaging in protected activity; and by failing to
he Court Interpreter Act is codified at Government Code section 71800 et seq.
Unless otherwise indicated, all statutory references are to the Government Code.
2 CFI also alleged that these changes were made in retaliation for strike activity.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FEDERATION OF
INTERPRETERS, LOCAL 39521,
Charging Party,
V.
LOS ANGELES SUPERIOR COURT,
Respondent.
Case No. LA-CE-24-I
PERB Decision No. 2112-I
June 7, 2010
Appearances: Beeson, Tayer & Bodine by Sheila
K.
Sexton, Attorney, for California
Federation oflnterpreters, Local 39521; Wiley, Price & Radulovich by Joseph E. Wiley,
Attorney, for Los Angeles Superior Court.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
Board	WESLEY, Member: This case is before the Public Employment Reiations
(PERB or Board) on appeal by the California Federation oflnterpreters, Local 39521 (CFI)
of
a Board agent's partial dismissal (attached)
of
its unfair practice charge. The charge alleged
that the Los Angeles Superior Court (Court) violated the Trial Court Interpreter Employment
Relations Act (Court Interpreter Act) 1 by making unilateral changes in policy and
	and Labor
practice regarding filling assignments, reducing staffing and faiiing to give employees priority
2
for assignments, imposing limitations on work hours for part-time and as-needed employees,
retaliating against certain employees for engaging in protected activity; and by failing to
Act	TThe Court Interpreter 	is codified at Government Code section 71800 et seq.
Unless otherwise indicated, all statutory references are to the Government Code.
2 CFI also alleged that these changes were made in retaliation for strike activity.

provide CFI with requested information that is necessary and relevant to the representation of
its members.
The Board has reviewed the partial dismissal and the record in light of CFI's appeal,
the Court's response to the appeal, and the relevant law. Based on this review, the Board finds
the Board agent's partial warning and dismissal letters to be well-reasoned, adequately
supported by the record and in accordance with applicable law. Accordingly, the Board adopts
them as the decision of the Board itself, supplemented by a brief discussion of CFI's appeal.
DISCUSSION
CFI is the exclusive representative of court interpreters employed by the Court.
Between September 5 and October 16, 2007, CFI and its members engaged in a strike after the
Court unilaterally implemented terms of a salary increase following unsuccessful re-opener
negotiations. On October 15, 2007, CFI notified the Court that employees would be returning
to work on October 17.
The unfair practice charge alleged, in part, that in response to the strike, the Court
unilaterally changed the procedures for filling regular full-time assignments by ceasing to
allow employees holding part-time ("C" status) and as-needed ("F" status) positions, to apply
for vacant regular full-time assignments." Additionally, the charge alleged that the Court
eliminated at least nine regular assignments at various court locations, and unilaterally changed
the criteria relative to filling daily as-needed assignments."
CFI did not appeal the dismissal of the information request allegations.
# The terms "position" and "assignment" as they relate to this charge are not
interchangeable. An employee is hired into a "position" as full-time ("A" status), part-time
("C" status), or as-needed ("F" status). The employee may then be given a work "assignment"
at a particular court location for either an indefinite or a specified length of time.
Daily assignments include coverage for temporary vacancies such as those due to
illness or other leaves, and additional workload needs of the Court.
2
provide CFI with requested information that is necessary and relevant to the representation of
its members.
The Board has reviewed the partial dismissal and the record in light of CFI' s appeal, 3
the Court's response to the appeal, and the relevant law. Based on this review, the Board finds
the Board agent's partial warning and dismissal letters to be weli-reasoned, adequately
supported by the record and in accordance with applicable law. Accordingly, the Board adopts
them as the decision of the Board itself, supplemented by a brief discussion of CFI' s appeal.
DISCUSSION
CFI is the exclusive representative of court interpreters employed by the Court.
Between September 5 and October 16, 2007, CFI and its members engaged in a strike after the
Court unilaterally implemented terms of a salary increase following unsuccessful re-opener
negotiations. On October 15, 2007, CFI notified the Court that employees would be returning
to work on October 17.
The unfair practice charge alleged, in part, that in response to the strike, the Court
unilaterally changed the procedures for filling regular full-time assignments by ceasing to
allow employees holding part-time ("C" status) and as-needed ("F" status) positions, to apply
for vacant regular full-time assignments.4 Additionally, the charge alleged that the Court
eliminated at least nine regular assignments at various court locations, and unilateraliy changed
the criteria relative to filling daily as-needed assignments. 5
3 CFI did not appeal the dismissal of the information request allegations.
4 The terms "position" and "assignment" as they relate to this charge are not
interchangeable. An employee is hired into a "position" as full-time ("A" status), part-time
("C" status), or as-needed ("F" status). The employee may then be given a work "assignment"
at a particular court location for either an indefinite or a specified length of time.
5 Daily assignments include coverage for temporary vacancies such as those due to
illness or other leaves, and additional workload needs of the Court.
2

The Board agent's partial dismissal held that the charge failed to establish that the
Court effected an unlawful unilateral change by discontinuing the use of part-time or as-needed
status employees to fill regular full-time assignments. The partial dismissal also determined
that the charge did not state facts to establish that the Court failed to meet its obligation to
bargain decisions to reduce the number of regular and daily assignments. In addition, the
Board agent concluded that certain decisions involving assignments and the delivery of court
services were outside the scope of representation pursuant to Section 71816. Finally, the
Board agent also found the charge failed to establish a prima facie case that the alleged
changes were made in retaliation for unit member's participation in strike activity.
On appeal, CFI argues the Board agent failed to correctly analyze the seniority
provisions of Article 18 of the parties' memorandum of understanding (MOU)' for purposes of
ourt Interpreter Act section 71816 states, in part:
(@) The scope of representation shall include all matters relating
to employment conditions and employer-employee relations,
including, but not limited to, wages, hours, and other terms and
conditions of employment. However, the scope of representation
may not include consideration of the merits, necessity, or
organization of any service or activity provided by law or
executive order.
(b) In view of the unique and special responsibilities of the trial
courts in the administration of justice, decisions regarding any of
the following matters may not be included within the scope of
representation:
(1) The merits and administration of the trial court system.
(5) Delivery of court services.
(Emphasis added.)
Article 18, section 2, states, in relevant part:
In the event that there is an opening for a regular assignment,
which the Court determines there is a need to fill, such
assignment shall be filled based upon seniority.
The Board agent's partial dismissal held that the charge failed to establish that the
Court effected an unlawful unilateral change by discontinuing the use
of
part-time or as-needed
status employees to fill regular full-time assignments. The partial dismissal also determined
that the charge did not state facts to establish that the Court failed to meet its obligation to
bargain decisions to reduce the number
of
regular and daily assignments. In addition, the
Board agent concluded that certain decisions involving assignments and the delivery
of
court
services were outside the scope
of
representation pursuant to Section 71816. 6 Finally, the
Board agent also found the charge failed to establish a prima facie case that the alleged
changes were made in retaliation for unit member's participation in strike activity.
On appeal, CFI argues the Boa~d agent failed to correctly analyze the seniority
provisions
of
Article
18
of
the parties' memorandum
of
understanding (MOU)7 for purposes
of
C Court Interpreter Act section 71816 states, in part:
(a) The scope ofrepresentation shall include all matters relating
to employment conditions and employer-employee relations,
including, but not limited to, wages, hours, and other terms and
conditions
of
employment. However, the scope
of
representation
may not include consideration
of
the merits, necessity, or
organization
of
any service or activity provided by law or
executive order.
(b) In view
of
the unique and special responsibilities
of
the trial
courts in the administration
of
justice, decisions regarding any
of
the following matters may not be included within the scope
of
representation:
(1) The merits and administration
of
the trial court system.
(5) Delivery
of
court services.
(Emphasis added.)
7 Article 18, section 2, states, in relevant part:
In the event that there is an opening for a regular assignment,
which the Court determines there is a need to fill, such
assignment shall be filled based upon seniority.
3

filling regular, full-time assignments, and points to other provisions of the MOU addressing
layoffs and vacations that expressly limit the application of seniority to criteria other than
court-wide seniority." CFI contends that because Article 18 does not expressly limit the
application of seniority to full-time status employees when filling regular, full-time
assignments as it does in other provisions, that seniority must be applied court-wide, without
regard to part-time or as-needed employment status.
However, the specified application of seniority to layoffs and vacation does not compel
the result proffered by CFI with respect to assignments. The Board finds that the partial
dismissal properly addresses the seniority provisions found in Article 18, and appropriately
harmonizes those provisions with the Court's authority to determine the number of employees
in any status pursuant to Article 16."
Additionally, CFI asserts the Board agent ignored Section 71816(d), which states that
while the Court has the right to determine assignments, "the process, procedures, and criteria
for assignments" are within the scope of representation. CFI contends that the Court
unilaterally changed the criteria for filling assignments and providing relief interpreters.
As amended, the charge alleged that the Court changed its practice by eliminating at
least nine regular assignments and leaving vacancies in daily as-needed assignments "unfilled
more frequently and on an ongoing basis." CFI alleged that these changes "must be considered
Article 32 (Layoff and Reduction in Status) provides that in the event of layoffs
separate seniority lists will be used for part-time versus full-time employees. Article 27 (Sick
Leave and Vacation) provides that vacation slots shall be selected by seniority within a
courthouse location during a specified selection period, after which selection is on a first come
first serve basis.
" Article 16 states, in relevant part, that:
[T]he number of employees in any status under this Agreement is
subject to the needs of the Court and may be changed at the
discretion of the Court.
filling regular, full-time assignments, and points to other provisions of the MOU addressing
layoffs and vacations that expressly limit the application of seniority to criteria other than
court-wide seniority. 8 CFI contends that because Article 18 does not expressly limit the
application of seniority to full-time status employees when filling regular, full-time
assignments as it does in other provisions, that seniority must be applied court-wide, without
regard to part-time or as-needed employment status.
However, the specified application of seniority to layoffs and vacation does not compel
the result proffered by CFI with respect to assignments. The Board finds that the partial
dismissal properly addresses the seniority provisions found in Article 18, and appropriately
harmonizes those provisions with the Court's authority to determine the number of employees
in any status pursuant to Article 16.9
Additionally, CFI asserts the Board agent ignored Section 71816(d), which states that
while the Court has the right to determine assignments, "the process, procedures, and criteria
for assignments" are within the scope of representation. CFI contends that the Court
unilaterally changed the criteria for filling assignments and providing relief interpreters.
As amended, the charge alleged that the Court changed its practice by eliminating at
least nine regular assignments and leaving vacancies in daily as-needed assignments "unfilled
more frequently and on an ongoing basis." CFI alleged that these changes "must be considered
8 Article 32 (Layoff and Reduction in Status) provides that in the event oflayoffs
separate seniority lists will be used for part-time versus full-time employees. Article 27 (Sick
Leave and Vacation) provides that vacation slots shall be selected by seniority within a
courthouse location during a specified selection period, after which selection is on a first come
first serve basis.
9 Article 16 states, in relevant part, that:
[T]he number of employees in any status under this Agreement is
subject to the needs of the Court and may be changed at the
discretion of the Court.
4

adverse actions against bargaining unit members who went on strike." However, as the Board
agent concluded, the charge does not provide facts that show a change in criteria for filling
assignments. Moreover, legal conclusions are insufficient to state a prima facie case. (State of
California (Department of Food and Agriculture) (1994) PERB Decision No. 1071-S.)
Finally, on appeal, CFI maintained its claim that the Court's changes were made in
retaliation for strike activity. However, CFI merely restates arguments made in the charge.
These arguments were aptly addressed in the partial dismissal. The Board finds that the partial
dismissal properly determined that the allegations of retaliation are conclustatements that
are insufficient to establish a prima facie case."
Accordingly, the Board affirms the partial dismissal of the charge for failure to state a
prima facie violation of the Court Interpreter Act.
ORDER
The partial dismissal of unfair practice charge in Case No. LA-CE-24-I is hereby
AFFIRMED.
Chair Dowdin Calvillo and Member Mckeag joined in this Decision.
In addition to the primary arguments on appeal, CFI contends the Board agent failed
to address two allegations.
First, CFI alleged in the charge that the Court unilaterally changed its policy when it
did not post vacant assignments between August 27, 2007 and January 2008. CFI's assertion
is without merit as this allegation is clearly addressed in the partial warning and dismissal
letters.
Second, the charge alleged that the Court contracted out unit work when it used non-
certified independent contractors for specified periods after the strike. CFI acknowledged,
however, that statutory provisions, court rules and the MOU allow the Court to hire
independent contractors under certain conditions. The charge does not allege that the Court
failed to meet the required criteria for such hiring. Rather, the amended charge states these
facts are relevant in support of other allegations, including the Court's failure to fill vacant
assignments or hire additional employee interpreters. We find these factual allegations were
properly considered by the Board agent.
5
adverse actions against bargaining unit members who went on strike." However, as the Board
agent concluded, the charge does not provide facts that show a change in criteria for filling
assignments. Moreover, legal conclusions are insufficient to state a prima facie case. (State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S.)
Finally, on appeal, CFI maintained its claim that the Court's changes were made in
retaliation for strike activity. However, CFI merely restates arguments made in the charge.
These arguments were aptly addressed in the partial dismissal. The Board finds that the partial
dismissal properly determined that the allegations
of
retaliation are conclusory statements that
are insufficient to establish a prima facie case.
10
Accordingly, the Board affirms the partial dismissal
of
the charge for failure to state a
prima facie violation
of
the Court Interpreter Act.
ORDER
The partial dismissal
of
unfair practice charge in Case No. LA-CE-24-I is hereby
AFFIRMED.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.
10
In addition to the primary arguments on appeal, CFI contends the Board agent failed
to address two allegations.
First, CFI alleged in the charge that the Court unilaterally changed its policy
when
it
did not post vacant assignments between August 27, 2007 and January 2008. CFI's assertion
is
without merit as this allegation is clearly addressed in the partial warning and dismissal
letters.
Second, the charge alleged that the Court contracted out unit work when it used non-
certified independent contractors for specified periods after the strike. CFI acknowledged,
however, that statutory provisions, court rules and the MOU allow the Court to hire
independent contractors under certain conditions. The charge does not allege that the Court
failed to meet the required criteria for such hiring. Rather, the amended charge states these
facts are relevant in support of other allegations, including the Court's failure to fill vacant
assignments or hire additional employee interpreters. We find these factual allegations were
properly considered by the Board agent.
5

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
October 27, 2009
Mary Lou Aranguren, Local Representative
CWA Local 39521, Media Workers Guild
433 Natoma Street, Third Floor
San Francisco, CA 94103
Re: 	California Federation of Interpreters, Local 39521 v. Los Angeles Superior Court
Unfair Practice Charge No. LA-CE-24-I
PARTIAL DISMISSAL
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 14, 2008. The California Federation of Interpreters, TNG-
CWA Local 39521 (Union or Charging Party) alleges that the Los Angeles Superior Court
(Court or Respondent) violated sections 71802, 71815, 71816(c) and (d), and 71822 of the
Trial Court Interpreter Employment and Labor Relations Act (Court Interpreter Act or Act)' by
making unilateral changes in practice and policy in retaliation for the Union and its members
engaging in a strike; by retaliating against employees for their exercise of protected rights by
failing to give employees priority for assignments and reducing staffing; and by failing to
provide the Union with requested information that is necessary and relevant to its
representation of members.
In an amended charge filed on March 5, 2009, the Union further alleged that the Court had
discriminated against an employee, Adela Herrera, based on Ms. Herrera's exercise of
protected rights, in violation of Court Interpreter Act section 71822, and that the Court had
implemented an additional unilateral change with respect to a limitation on the work hours of
regular part-time and as-needed employees, in violation of Court Interpreter Act sections
71802, 71815, 71816, 71817, and 71818. The First Amended Charge also provided additional
information in support of the allegations contained in the charge as originally filed.
Charging Party was informed in the attached Warning Letter dated June 16, 2009, that certain
allegations contained in the charge did not state a prima facie case. You were advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, you should amend the charge. You were further advised that, unless
you amended these allegations to state a prima facie case or withdrew them prior to June 26,
he Court Interpreter Act is codified at Government Code section 71800 et seq. The
text of the Court Interpreter Act and the Board's Regulations may be found on the Internet at
www.perb.ca.gov.
STATE OF CALIFORNIA 	( 	ARNOLD SCHWARZENEGGER, Governor	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
I
031
1'J:h
Street
Sacramento, CA
October 27, 2009
Mary Lou Aranguren, Local Representative
CWA Local 39521, Media Workers Guild
433 Natoma Street, Third Floor
San Francisco, CA 94103
Re: 	California Federation
of
Interpreters, Local 39521
v.
Los Angeles Superior Court
Unfair Practice Charge No. LA-CE-24-r'
PARTIAL DISMISSAL
Dear Ms. Aranguren:	Dear Ms. Aranguren:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 14, 2008. The California Federation oflnterpreters, TNG-
CWA Local 39521 (Union or Charging Party) alleges that the Los Angeles Superior
Court
(Court or Respondent) violated sections 71802, 71815, 71816(c) and (d), and 71822
of
the
Trial Court Interpreter Employment and Labor Relations Act (Court Interpreter Act
or
Act) 1 by
making unilateral changes in practice and policy in retaliation for the Union and its members
engaging in a strike; by retaliating against employees for their exercise
of
protected rights by
failing to give employees priority for assignments and reducing staffing; and by failing to
provide the Union with requested information that is necessary and relevant to its
representation
of
members.
In an amended charge filed on March 5, 2009, the Union further alleged that the Court
had
discriminated against an employee, Adela Herrera, based on Ms. Herrera's exercise
of
protected rights, in violation
of
Court Interpreter Act section 71822, and that the Court
had
implemented an additional unilateral change with respect to a limitation on the work
hours of
regular part-time and as-needed employees, in violation
of
Court Interpreter Act sections
71802, 71815, 71816, 71817, and 71818. The First Amended Charge also provided additional
information in support of the allegations contained in the charge as originally filed.
Charging Party was informed in the attached Warning Letter dated June 16, 2009, that certain
allegations contained in the charge did not state a prima facie case. You were advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, you should amend the charge. You were further advised that, unless
you amended these allegations to state a prima facie case or withdrew them prior to June 26,
The Court Interpreter Act is codified at Government Code section 71800 et seq. 	The
text of the Court Interpreter Act and the Board's Regulations may be found on the Internet at
T
www.perb.ca.gov.

LA-CE-24-I
October 27, 2009
Page 2
LA-CE-24-I
October 27, 2009
Page 2
2009, the allegations would be dismissed. The June 26 deadline was subsequently extended at
your request. On July 27, 2009, Charging Party filed a Second Amended Charge.
Discussion
1. 	Alleged Unilateral Change concerning Filling Full-Time Positions
The analysis of this allegation in the Warning Letter began as follows:
With this allegation, the Union contends that the Court ceased
allowing "C" and "F" status employees to apply for vacant full-
time assignments, thus also denying potential applicants the
seniority rights accorded by the MOU in Article 18. [Footnote
omitted.] The Court does not dispute that it determined to reduce
or limit the number of ["A" ] status positions it would fill.
However, the Court also cites to the [language] of the MOU at
Article 16, stating that "the number of employees in any status
under this Agreement is subject to the needs of the Court and may
be changed at the discretion of the Court." The Court also notes
that, even in Article 18, Section 2, the MOU conditions the right
to be selected for an assignment based on seniority to those
situations where "the Court determines there is a need to fill [the]
assignment."
In the Second Amended Charge, the Union argues in pertinent part that the Court's "right to
determine the number of positions in any status under Article 16 [footnote omitted] is thus
explicitly restricted by the parties' agreement under Article 18, in so far as the Court
determines there is a need to fill regular assignments, these shall be filled by seniority."
(Emphasis in original.)
When interpreting collective bargaining agreements, including in unilateral change cases, the
Board applies traditional rules of contract law, such as the provisions of Civil Code sections
1638 and 1641. (King City Joint Union High School District (2005) PERB Decision No. 1777;
see also, City of Riverside (2009) PERB Decision No. 2027-M.) Each contract clause must be
read in conjunction with phrases surrounding it and harmonized as a whole. (Long Beach
Community College District (2003) PERB Decision No. 1568.) The Board's interpretation
should harmonize any potential conflict between provisions of the agreement and give a
"reasonable, lawful and effective meaning to all the terms," as provided in Civil Code section
1641. (King City Joint Union High School District, supra, PERB Decision No. 1777.) The
interpretation given must avoid leaving any provision without meaning. (City of Riverside,
supra; PERB Decision No. 2027-M.)
he earlier Warning Error incorrectly referenced "F" status rather than "A" status
positions.
2009, the allegations would be dismissed. The June 26 deadline was subsequently extended at
your request. On July 27, 2009, Charging Party filed a Second Amended Charge.
Discussion
1. 	Alleged Unilateral Change concerning Filling Full-Time Positions
The analysis of this allegation in the Warning Letter began as follows:
With this allegation, the Union contends that the Court ceased
allowing "C" and "F" status employees to apply for vacant full-
time assignments, thus also denying potential applicants the
seniority rights accorded by the MOU in Article 18. [Footnote
omitted.] The Court does not dispute that it determined to reduce
or limit the number of ["A"2] status·positions it would fill.
However, the Court also cites to the [language] of the MOU at
Article 16, stating that "the number of employees in any status
under this Agreement is subject to the needs of the Court and may
be changed at the discretion of the Court." The Court also notes
that, even in Article 18, Section 2, the MOU conditions the right
to be selected for an assignment based on seniority to those
situations where "the Court determines there is a need to fill [the]
assignment."
In the Second Amended Charge, the Union argues in pertinent part that the Court's "right to
determine the number of positions in any status under Article 16 [footnote omitted] is thus
explicitly restricted by the parties' agreement under Article 18, in so far as the Court
determines there is a need to fill regular assignments, these shall be filled by seniority."
(Emphasis in original.)
When interpreting collective bargaining agreements, including in unilateral change cases, the
Board applies traditional rules of contract law, such as the provisions of Civil Code sections
163 8 and 1641. (King City Joint Union High School District (2005) PERB Decision No. 1777;
see also, City of Riverside (2009) PERB Decision No. 2027-M.) Each contract clause must be
read in conjunction with phrases surrounding it and harmonized as a whole. (Long Beach
Community College District (2003)PERB Decision No. 1568.) The Board's interpretation
should harmonize any potential conflict between provisions of the agreement and give a
"reasonable, lawful and effective meaning to all the terms," as provided in Civil Code section
1641. (King City Joint Union High School District, supra, PERB Decision No. 1777.) 	The
interpretation given must avoid leaving any provision without meaning. (City of Riverside,
supra, PERB Decision No. 2027-M.)
T The earlier Warning Error incorrectly referenced "F" status rather than "A" status
positions.

LA-CE-24-I
October 27, 2009
Page 3
LA-CE-24-I
October 27, 2009
Page 3
Applying these standards for contract interpretation to the present dispute, it is clear that the
Union's argument cannot prevail. To accept the Union's premise, that positions or
assignments to be filled must be filled by seniority without regard to status or the authority of
the Court to limit the number of positions at any status level, would do more than "restrict" the
Court's application of Article 16, as the Union argues. Instead, this reading of the two MOU
articles would render Article 16's provisions meaningless. The Court would, in effect, be
unable to limit the number of "A" status positions it would fill, contrary to the express
language of Article 16, if the Union's interpretation were accepted. On the other hand, Article
18 continues to have meaning even if the Court's interpretation is accepted. While this
interpretation results in the Court's ability to limit, for example, the number of "A" status
positions and only consider lateral transfer applications, seniority is still controlling in the
event of either lateral transfers or movement across status levels.
For these reasons, this unilateral change allegation fails to state a prima facie case and is
dismissed.
2 . 	Elimination of Regular Assignments
The Second Amended Charge includes the following paragraph specifically addressing this
Following the strike, in approximately January of 2008 the Court
made changes to assignment rotations, eliminating a total of at
least nine regular assignments at the following locations: Los
Padrinos (1), Long Beach (1.5), El Monte (1), Compton (4),
Pomona (.5), East LA (1). These regular assignments were in
place for the life of the agreement and prior, and were based upon
historical need prior to ratification. Elimination of these regular
assignments from the rotations affected the employee's working
conditions as described in more detail [in the Second Amended
Charge].
3. 	Change in Practice, Procedure and Policy Concerning the Assignment of Relief
and As-Needed Interpreters to Cover Daily Vacancies and Other Needs
In the section of the Second Amended Charge specifically addressing this allegation, the Union
states that:
Immediately following the strike, the Court's established criteria
and practices related to filling daily assignment needs changed.
The Court ceased providing sufficient relief and as-needed
interpreters to adequately cover daily assignment needs that arise
on an ongoing basis. These "daily assignment" needs (as
distinguished from regular assignments) include temporary
Applying these standards for contract interpretation to the present dispute, it is clear
that
the
Union's argument cannot prevail. To accept the Union's premise, that positions or
assignments to be filled must be filled by seniority without regard to status or the authority
of
the Court to limit the number
of
positions at any status level, would do more than "restrict" the
Court's application
of
Article 16, as the Union argues. Instead, this reading
of
the two
MOU
articles would render Article 16' s provisions meaningless. The Court would, in effect,
be
unable to limit the number
of
"A" status positions it would fill, contrary to the express
language
of
Article 16,
if
the Union's interpretation were accepted. On the other hand, Article
18
continues to have meaning even
if
the Court's interpretation is accepted. While this
interpretation results in the Court's ability to limit, for example, the number
of
"A" status
positions and only consider lateral transfer applications, seniority is still controlling
in the
event
of
either lateral transfers or movement across status levels.
For these reasons, this unilateral change allegation fails to state a prima facie case and is
dismissed.
2. 	Elimination of Regular Assignments
The Second Amended Charge includes the following paragraph specifically addressing
this
issue:	issue:
Following the strike, in approximately January
of
2008 the Court
made changes to assignment rotations, eliminating a total
of
at
least nine regular assignments at the following locations: Los
Padrinos (1), Long Beach (1.5), El Monte (1), Compton (4),
Pomona (.5), East LA (1). These regular assignments were in
place for the life
of
the agreement and prior, and were based upon
historical need prior to ratification. Elimination
of
these regular
assignments from the rotations affected the employee's working
conditions as described in more detail [in the Second Amended
Charge].
3.
	Change in Practice, Procedure and Policy Concerning the Assignment of
Relief
and As-Needed Interpreters to Cover Daily Vacancies and Other Needs
In
the section
of
the Second Amended Charge specifically addressing this allegation,
the
Union
states that:
Immediately following the strike, the Court's established criteria
and practices related to filling daily assignment needs changed.
The Court ceased providing sufficient relief and as-needed
interpreters to adequately cover daily assignment needs that arise
on an ongoing basis. These "daily assignment" needs (as
distinguished from regular assignments) include temporary

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October 27, 2009
Page 4
vacancies due to illness, vacation or other leaves, and additional
workload needs such as trials that require back up for team
interpreting and for witness interpreters. This was a change in a
consistent past practice.
In the Second Amended Charge, in addition to naming various interpreters who could testify as
to the adverse impact of the alleged change, the Union also acknowledges that "the number of
regular assignments at each court, and other aspects of the assignment rotations at each
location, are not addressed in the MOU and were left unspecified by the parties."
The gravamen of the Union's argument, with respect to both numbered items 2 and 3, is that
the Court was obligated to provide notice and an opportunity for the Union to request to meet
and confer based on the language of MOU Article 13, Section 2:
It is understood and agreed that the provisions of this Section are
intended to apply only to matters that are not specifically covered
in this Agreement.
It is recognized that during the term of this Agreement it may be
necessary for Court Management to make changes in policies,
rules, procedures or practices affecting the employees in this
Unit. Where management finds it necessary to make such
changes it shall notify the Union, indicating the proposed change
prior to its implementation. For purposes of administration of
this Section 2, Government Codes 71816 through 71820, as
amended from time to time, shall apply.
The Union, in essence, argues that these alleged changes are subject to the bargaining
obligation under Article 13, Section 2, because the changes "are not made for legitimate
business needs" and "must be considered adverse actions against bargaining unit employees
who went on strike and against the Union."
However, as explained in the earlier Warning Letter, a charging party's burden includes
alleging the "who, what, when, where and how" of an unfair practice. (State of California
Department of Food and Agriculture) (1994) PERB Decision No. 1071-S, citing United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions
are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District
(1991) PERB Decision No. 873.) The conclustertion that the Court has made staffing
decisions based on unlawful animus and not on legitimate business needs does not establish a
prima facie violation with respect to either allegation 2 or 3, as captioned above.
a footnote, the Union also acknowledges that in bargaining the Court stated it was
possible that the numbers of positions could go up or down, based on the needs of the Court.
vacancies due to illness, vacation or other leaves, and additional
workload needs such as trials that require back up for team
interpreting and for witness interpreters. This was a change in a
consistent past practice.
In the Second Amended Charge, in addition to naming various interpreters who could testify
as
to the adverse impact
of
the alleged change, the Union also acknowledges that "the number
of
regular assignments at each court, and other aspects
of
the assignment rotations at each
location, are not addressed in the MOU and were left unspecified by the parties."3
The gravamen
of
the Union's argument, with respect to both numbered items 2 and 3, is that
the Court was obligated to provide notice and an opportunity for the Union to request to meet
and confer based on the language
of
MOU Article 13, Section
2:
It
is understood and agreed that the provisions
of
this Section are
intended to apply only to matters that are not specifically covered
in this Agreement.
It
is recognized that during the term
of
this Agreement it may be
necessary for Court Management to make changes in policies,
rules, procedures or practices affecting the employees in this
Unit. Where management finds it necessary to make such
changes it shall notify the Union, indicating the proposed change
prior to its implementation. For purposes
of
administration
of
this Section 2, Government Codes 71816 through 71820, as
amended from time to time, shall apply.
The Union, in essence, argues that these alleged changes are subject to the bargaining
obligation under Article 13, Section 2, because the changes "are not made for legitimate
business needs" and "must be considered adverse actions against bargaining unit employees
who went on strike and against the Union."
However, as explained in the earlier Warning Letter, a charging party's burden includes
alleging the "who, what, when, where and how"
of
an unfair practice. (State
of
California
(Department
of
F,ood and Agriculture) (1994) PERB Decision No. 1071-S, citing United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions
are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District
(1991) PERB Decision No. 873.) The conclusory assertion that the Court has made staffing
decisions based on unlawful animus and not on legitimate business needs does not establish a
prima facie violation with respect to either allegation 2 or 3, as captioned above.
In In a footnote, the Union also acknowledges that in bargaining the Court stated it was
possible that the numbers of positions could go up or down, based on the needs of the Court.

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LA-CE-24-I
October 27, 2009
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Further, the Second Amended Charge does not establish that the number of assignments to be
filled is a matter within scope. The Court Interpreter Act, at section 71816, provides that:
(a) The scope of representation shall include all matters relating
to employment conditions and employer-employee relations,
including, but not limited to, wages, hours, and other terms and
conditions of employment. However, the scope of representation
may not include consideration of the merits, necessity, or
organization of any service or activity provided by law or
executive order.
(b) In view of the unique and special responsibilities of the trial
courts in the administration of justice, decisions regarding any of
the following matters may not be included within the scope of
representation:
(1) The merits and administration of the trial court system.
(2) Coordination, consolidation, and merger of trial courts and
support staff.
(3) Automation, including, but not limited to, fax filing,
electronic recording, and implementation of information systems.
(4) Design, construction, and location of court facilities.
(5) Delivery of court services.
(6) Hours of operation of the trial courts and trial court system.
(Emphasis added.) The Board has previously held that an employer's determination as to
staffing or service levels is not within the scope of representation. (See, e.g., The Regents of
the University of California (Lawrence Livermore National Laboratory) (1997) PERB
Decision No. 1221-H.) A matter outside scope does not become a mandatory subject of
bargaining because the parties negotiate over it or even reach an agreement. (El Centro
Elementary School District (2006) PERB Decision No. 1863.)
These two allegations must also be dismissed.
4. 	Information Requested about Regular Assignments at Court Locations, Vacancies
and Openings, and Assignments filled before, during and after the strike
The exclusive representative is entitled to all information that is "necessary and relevant" to
the discharge of its duty of representation. (Stockton Unified School District (1980) PERB
Decision No. 143). PERB uses a liberal standard, similar to a discovery-type standard, to
Further, the Second Amended Charge does not establish that the number
of
assignments to be
filled is a matter within scope. The Court Interpreter Act, at section 71816, provides that:
(a) The scope ofrepresentation shall include all matters relating
to employment conditions and employer-employee relations,
including, but not limited to, wages, hours, and other terms and
conditions
of
employment. However, the scope
of
representation
may not include consideration
of
the merits, necessity, or
organization
of
any service or activity provided by law or
executive order.
(b) In view
of
the unique and special responsibilities
of
the trial
courts in the administration
of
justice, decisions regarding any
of
the following matters may not be included within the scope
of
representation:
(1) The merits and administration
of
the trial court system.
(2) Coordination, consolidation, and merger
of
trial courts and
support staff.
(3) Automation, including, but not limited to, fax filing,
electronic recording, and implementation
of
information systems.
( 4) Design, construction, and location
of
court facilities.
(5) Delivery
of
court services.
( 6) Hours
of
operation of the trial courts and trial court system.
(Emphasis added.) The Board has previously held that an employer's determination as to
staffing or service levels is not within the scope of representation. 	(See, e.g., The Regents
of
the University
of
California (Lawrence Livermore National Laboratory) (1997) PERB
Decision No. 1221-H.) A matter outside scope does not become a mandatory subject
of
bargaining because the parties negotiate over it or even reach an agreement. (El Centro
Elementary School District (2006) PERB Decision No. 1863.)
These two allegations must also be dismissed.
4.
	Information Requested about Regular Assignments at Court Locations, Vacancies
and Openings, and Assignments filled before, during and after the strike
The exclusive representative is entitled to all information that is "necessary and relevant" to
the discharge of its duty of representation. (Stockton Unified School District (1980) PERB
Decision No. 143). PERB uses a liberal standard, similar to a discovery-type standard, to

LA-CE-24-I
October 27, 2009
Page 6
LA-CE-24-I
October 27, 2009
Page 6
determine relevance of the requested information. (Trustees of the California State University
(1987) PERB Decision No. 613-H.) Failure to provide such information is a per se violation of
the duty to bargain in good faith.
Notwithstanding the liberal standard, an employer can refuse to release information that is
otherwise "relevant and necessary" if, for example, it will impose burdensome costs on the
employer (Los Rios Community College District (1988) PERB Decision No. 670; Tower Books
(1984) 273 NLRB 671) or the release will compromise employee privacy rights. (Modesto
City Schools and High School District (1985) PERB Decision No. 479, p. 11 (Modesto).)
However, the employer must affirmatively assert its concerns and then bargain in good faith to
ameliorate those concerns. (See, e.g., Modesto, supra, PERB Decision No. 479, at p. 12
(employer bargained in good faith by offering to delete social security numbers from requested
document).) The employer cannot simply ignore a union's request for information. However,
there is no violation when an employer partially complies with the request for information and
the union fails to communicate its dissatisfaction, or to reassert or clarify its request. (State of
California (Department of Personnel Administration) (2009) PERB Decision No. 2013-S;
State of California (Departments of Personnel Administration and Transportation) (1997)
PERB Decision No. 1227-S; Oakland Unified School District (1983) PERB Decision No. 367.)
On or about December 17, 2007, with follow-up on February 14, 2008, and March 10, 2008,
Charging Party made the following request for information that is relevant and necessary to
Charging Party's discharge of its duty to represen
Please provide us with a list of vacant regular assignments in
each court location, including the number of full and part-time
positions that are vacant in each location and the length of time
that each position has been vacant.
Please also provide us with a list of regular assignments filled
during the past year, since January 2007 and the name of the
interpreters assigned to those positions.
On or about April 8, 2008, Respondent made a partial response to the information request, but
the Union alleges that the Court never provided the information requested on regular
assignment vacancies, posting and assignments filled.
The Union, although alleging it made follow-up requests following the initial request, does not
allege that it reasserted its request or otherwise communicated its dissatisfaction with the
Court's April 8, 2008 response following its receipt of the response. Thus, under the
controlling case law, no violation can be found. (State of California (Department of Personnel
Administration), supra, PERB Decision No. 2013-S.)
determine relevance
of
the requested information. (Trustees
of
the California State University
(1987) PERB Decision No. 613-H.) Failure to provide such information is a per se violation
of
the duty to bargain in good faith.
Notwithstanding the liberal standard, an employer can refuse to release information that is
otherwise "relevant and necessary" if, for example, it will impose burdensome costs on theemployer (Los Rios Community College District (1988) PERB Decision No. 670; Tower Books
(1984) 273 NLRB 671) or the release will compromise employee privacy rights. (Modesto
City Schools and High School District (1985) PERB Decision No. 479, p.
11
(lvfodesto).)
However, the employer must affirmatively assert its concerns and then bargain in good faith to
ameliorate those concerns. (See, e.g., Modesto, supra, PERB Decision No. 479, at p. 12
(employer bargained in good faith by offering to delete social security numbers from requested
document).) The employer cannot simply ignore a union's request for information. However,
there is no violation when an employer partially complies with the request for information and
the
union
fails to communicate its dissatisfaction, or to reassert or clarify its request. (State
of
California (Department
of
Personnel Administration) (2009) PERB Decision No. 2013-S;
State
of
California (Departments
of
Personnel Administration and Transportation) (1997)
PERB Decision No. 1227-S; Oakland Unified School District (1983) PERB Decision No. 367.)
On or about December 17, 2007, with follow-up on February 14, 2008, and March 10, 2008,
Charging Party made the following request for information that is relevant and necessary to
Charging
Pa..rty'
s discharge
of
its duty to represent	t employees:	employees:
Please provide us with a list
of
vacant regular assignments in
each court location, including the number
of
full and part-time
positions that are vacant in each location and the length
of
time
that each position has been vacant.
Please also provide us with a list
of
regular assignments filled
during the past year, since January 2007 and the name
of
the
interpreters assigned to those positions.
On or about April
8,
2008, Respondent made a partial response to the information request, but
the Union alleges that the Court never provided the information requested on regular
assignment vacancies, posting and assignments filled.
The Union, although alleging it made follow-up requests following the initial request, does not
allege that it reasserted its request or otherwise communicated its dissatisfaction with
theCourt's April 8, 2008 response following its receipt
of
the response. Thus, under the
controlling case law, no violation can be found. (State
of
California (Department
of
Personnel
Administration), supra, PERB Decision No. 2013-S.)

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Page 7
LA-CE-24-I
October 27, 2009
Page 7
5. 	Information Requested About the Reasons for Elimination of Regular
Assignments
The Union also alleges that it "repeatedly" requested information related to the basis for the
elimination of regular assignments. These requests were made on March 10, 2008, and on
May 19 and 21, 2008. The Union further alleges that the Court provided no information in
response to this request. However, the Union acknowledges that, on a date not specified, the
Court's representative stated that the Court had no "written documents, reports, assignment
data or analysis of interpreter case loads" that are relevant to the information request.
In the Second Amended Charge, the Union points to the Court's earlier response to the instant
charge, where the Court referenced being engaged in a comprehensive study to determine
staffing needs, with a projected end date of mid to late-2008. However, the charge does not
include any facts to establish such a "comprehensive study" was completed or that the Court is
in fact in possession of any "written documents, reports, assignment data or analysis of
interpreter case loads" that would be responsive to the March 10, 2008 request.
The Board has long held that an employer need not comply with an information request if the
requested information does not exist. (Chula Vista City School District (1990) PERB Decision
No. 834; Stockton Unified School District (1980) PERB Decision No. 143.) Further, there is
no obligation for an employer to provide detail regarding the thought process or rationale
underlying its managerial decisions. (Ventura County Community College District (1999)
PERB Decision No. 1340.) For the above reasons, this allegation fails to state a prima facie
violation of the Court's duty to provide information.
Conclusion
Therefore, the allegations that the Court violated the Court Interpreter Act by unilaterally
changing the policy concerning filling full-time positions; eliminating regular assignments;
changing practice, procedure and policy concerning the assignment of relief and as-needed
interpreters to cover daily vacancies and other needs; refusing to provide information requested
about regular assignments at court locations, vacancies and openings, and assignments filled
before, during and after the strike; and refusing to provide information requested about the
reasons for elimination of regular assignments, fail to state a prima facie case and are hereby
dismissed based on the facts and reasons set forth above as well as in the June 16, 2009
Warning Letter.
Right to Appeal
Pursuant to PERB Regulations," Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
* PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
5.
	Information Requested About the Reasons for Elimination
of
Regular
Assignments
The Union also alleges that it "repeatedly" requested information related to the basis for the
elimination
of
regular assignments. These requests were made on March
10,
2008, and
on
May 19 and 21, 2008. The Union further alleges that the Court provided no information in
response to this request. However, the Union acknowledges that, on a date not specified, the
Court's representative stated that the Court had no "written documents, reports, assignment
data or analysis
of
interpreter case loads" that are relevant to the information request.
In the Second Amended Charge, the Union points to the Court's earlier response to the instant
charge, where the Court referenced being engaged in a comprehensive study to determine
staffing needs, with a projected end date
of
mid to late-2008. However, the charge does not
include any facts to establish such a "comprehensive study" was completed or that the Court is
in fact in possession
of
any "written documents, reports, assignment data or analysis
of
interpreter case loads" that would be responsive to the March 10, 2008 request.
The Board has long held that an employer need not comply with an information request
if
the
requested information does not exist. (Chula Vista City School District (1990) PERB Decision
No. 834; Stockton Unified School District (1980) PERB Decision No. 143.) Further, there is
no obligation for an employer to provide detail regarding the thought process or rationale
underlying its managerial decisions. (Ventura County Community College District (1999)
PERB Decision No. 1340.) For the above reasons, this allegation fails to state a prima facie
violation
of
the Court's duty to provide information.
Conclusion
Therefore, the allegations that the Court violated the Court Interpreter Act by unilaterally
changing the policy concerning filling full-time positions; eliminating regular assignments;
changing practice, procedure and policy concerning the assignment of relief and as-needed
interpreters to cover daily vacancies and other needs; refusing to provide information requested
about regular assigmnents at court locations, vacancies and openings, and assig:rnnents filled
before, during and after the strike; and refusing to provide information requested about the
reasons for elimination
of
regular assignments, fail to state a prima facie case and are hereby
dismissed based on the facts and reasons set forth above as well as in the June 16, 2009
Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,4 Charging Party may obtain a review of this dismissal
of
the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
4 PERB 's Regulations are codified at California Code of Regulations, title 8,
section
31001 et seq.

LA-CE-24-I
October 27, 2009
Page 8
LA-CE-24-I
October 27, 2009
Page 8
this dismissal. (PERB Regulation 32635(a).) Any document filed with the Board must contain
the case name and number, and the original and five (5) copies of all documents must be
provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(PERB Regulations 32135(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. (PERB Regulation 32135(b),
(c) and (d); see also PERB Regulations 32090 and 32130.)
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
If Charging Party files a timely appeal of the refusal to issue a complaint, any other party may
file with the Board an original and five (5) copies of a statement in opposition within twenty
(20) calendar days following the date of service of the appeal. (PERB Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See PERB Regulation 32140 for the required contents.)
the mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (PERB
Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (PERB Regulation 32132.)
this dismissal. (PERB Regulation 32635(a).) Any document filed with the Board must contain
the case name and number, and the original and five (5) copies
of
all documents must be
provided to the Board.
day.	A document is considered "filed" when actually received during a regular PERB business
(PERB Regulations 32135(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. 	(PERB Regulation 3213 5(b
),
(c) and (d); see also PERB Regulations 32090 and 32130.)
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
may	
'If
Charging Party files a timely appeal
of
the refusal to issue a complaint, any other party
file with the Board an original and five (5) copies
of
a statement in opposition within twenty
(20) calendar days following the date
of
service
of
the appeal. 	(PERB Regulation 3263 5 (b ).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to
the
proceeding, and a "proof of service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See PERB Regulation 32140 for the required contents.)
The document will be considered properly "served" when personally delivered or deposited in
the mail or deposited with a delivery service and 	addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (PERB
Regulation 32135(c).)
The document
vvill
be considered properly "served" when personally delivered or deposited in
properly
Extension of Time
be	A request for an extension of time, in which to file a document with the Board itself,
must
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
the	each other party regarding the extension, and shall be accompanied by proof of service
of
request upon each party. (PERB Regulation 32132.)

LA-CE-24-I
October 27, 2009
Page 9
LA-CE-24-I
October 27, 2009
Page 9
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
Les Chisholm
Division Chief
Attachment
cc: Joseph E. Wiley
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
______________
_
Les Chisholm
Division Chief
Attachment
cc:
	Joseph
E.
Wiley

STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
P.ER.B 	Fax: (916) 327-6377
June 16, 2009
Mary Lou Aranguren, Local Representative
CWA Local 39521, Media Workers Guild
433 Natoma Street, Third Floor
San Francisco, CA 94103
Re: 	California Federation of Interpreters, TNG-CWA Local 39521 v. Los Angeles Superior
Court
Unfair Practice Charge No.
PARTIAL WARNING LETTER
Dear Ms. Aranguren:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 14, 2008. The California Federation of Interpreters, TNG-
CWA Local 39521 (Union or Charging Party) alleges that the Los Angeles Superior Court
(Court or Respondent) violated sections 71802, 71815, 71816(c) and (d), and 71822 of the
Trial Court Interpreter Employment and Labor Relations Act (Court Interpreter Act or Act) by
making unilateral changes in practice and policy in retaliation for the Union and its members
engaging in a strike; by retaliating against employees for their exercise of protected rights by
failing to give employees priority for assignments and reducing staffing; and by failing to
provide the Union with requested information that is necessary and relevant to its
representation of members.
In an amended charge filed on March 5, 2009, the Union further alleged the Court had
discriminated against an employee, Adela Herrera, based on Ms. Herrera's exercise of
protected rights, in violation of Court Interpreter Act section 71822, and that the Court had
implemented an additional unilateral change with respect to a limitation on the work hours of
regular part-time and as-needed employees, in violation of Court Interpreter Act sections
71802, 71815, 71816, 71817, and 71818. The amended charge also provided additional
information in support of the allegations contained in the charge as originally filed.
Background
The Union is the exclusive representative of court interpreters employed by the Superior
Courts of California in the Counties of Los Angeles, San Luis Obispo, and Santa Barbara
(Region 1). The Union and its members engaged in a six-week strike against the Los Angeles
The Court Interpreter Act is codified at Government Code section 71800 et seq. The
text of the Court Interpreter Act and the Board's Regulations may be found on the Internet at
www.perb.ca.gov.
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOA	PUBLIC EMPLOYMENT RELATIONS BOARDRD
Sacramento Regional Office
I
031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
June 16, 2009
Mary
Lou
Aranguren, Local Representative
CWA Local 39521, Media Workers Guild
433 Natoma Street, Third Floor
San Francisco, CA 94103
Re: 	California Federation
of
Interpreters, TNG-CWA Local 39521
v.
Los Angeles Superior
Court
Unfair Practice Charge No. LA-CE-24-I	LA-CE-:24-I
PARTIAL WARNING LETTER
Dear Ms. Aranguren:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 14, 2008. The California Federation ofinterpreters, TNG-
CWA Local 39521 (Union or Charging Party) alleges that the Los Angeles Superior Court(Court
or
Respondent) violated sections 71802, 71815, 71816(c) and (d), and 71822
of
the
Trial Court Interpreter Employment and Labor Relations Act (Court Interpreter Act or Act)1 by
making unilateral changes in practice and policy in retaliation for the Union and its members
engaging in a strike; by retaliating against employees for their exercise
of
protected rights by
failing to give employees priority for assignments and reducing staffing; and by failing
toprovide the Union with requested information that is necessary and relevant to its
representation
of
members.
In an amended charge filed on March 5, 2009, the Union further alleged the Court had
discriminated against an employee, Adela Herrera, based on Ms. Herrera's exercise
of
protected rights, in violation
of
Court Interpreter Act section 71822, and that the Court
hadimplemented an additional unilateral change with respect to a limitation on the work hours ofregular part-time and as-needed employees, in violation
of
Court Interpreter Act sections
71802, 71815, 71816, 71817, and 71818. The amended charge also provided additional
information in support
of
the allegations contained in the charge as originally filed.
Background
The Union is the exclusive representative of court interpreters employed by the Superior
Courts
of
California in the Counties of Los Angeles, San Luis Obispo, and Santa Barbara
(Region 1). The Union and its members engaged in a six-week strike against the Los Angeles
1 The Court Interpreter Act is codified at Government Code section 71800 et seq. 	The
text of the Court Interpreter Act and the Board's Regulations may be found on the Internet at
www.perb.ca.gov.

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Superior Court from September 5, 2007 through October 16, 2007, after the Court unilaterally
implemented terms of a salary increase following unsuccessful re-opener negotiations by the
Union and the Court.
The memorandum of understanding (MOU or Agreement) negotiated by the Region 1 Court
Interpreter Employment Relations Committee and the Union expired by its terms on June 30,
2008, and the parties are presently engaged in negotiations over a successor agreement.
1 . 	Terms of the Memorandum of Understanding
In Article 16, Employment Status, the MOU states that an employee interpreter of any
language holding a regular full-time or relief full-time position shall be an "A" status
employee. A regular full-time position is one with five days and forty hours per week in a
specific location. A relief full-time position works the same hours but is not guaranteed a
specific location.
Article 16 further provides that an "employee interpreter of any language holding a regular
a.m. only five day per week position or an employee interpreter who has a pre-booked position
that is at least half time and less than full-time shall be a 'C' status employee." "C" status
employees are required to accept any assignment given and are also not guaranteed a specific
location.
The remaining employee interpreters, i.e., those not holding a full-time or regular part-time
position, are designated as "F" status employees, and are also referred to as "as-needed"
interpreters. Article 16 also states that "the number of employees in any status under this
Agreement is subject to the needs of the Court and may be changed at the discretion of the
Court."
In Article 18, Interpreter Assignments, the MOU provides as follows in Section 2:
The Interpreter Assignment Office may assign an interpreter to a
particular location for an unspecified period of service. Such an
assignment is not an entitlement and is subject to change and/or
redeployment as provided herein.
Interpreters shall not contact, nor request any other person to
contact on their behalf, any bench officer for the purpose of
soliciting an assignment. No interpreter shall contact any bench
officer on behalf of another interpreter for the purpose of
soliciting an assignment.
In the event that there is an opening for a regular assignment,
which the Court determines there is a need to fill, such
assignment shall be filled based upon seniority. Regular
assignments held by employees prior to the implementation of
Superior Court from September
5,
2007 through October 16, 2007, after the Court unilaterally
implemented terms
of
a salary increase following unsuccessful re-opener negotiations by the
Union and the Court.
The memorandum
of
understanding (MOU or Agreement) negotiated by the Region 1 Court
Interpreter Employment Relations Committee and the Union expired by its terms on June 30,
2008, and the parties are presently engaged in negotiations over a successor agreement.
1.
	Terms
of
the Memorandum
of
Understanding
In Article 16, Employment Status, the MOU states that an employee interpreter
of
any
language holding a regular full-time or relief full-time position shall be an "A" status
employee. A regular full-time position is one with five days and forty hours per week in a
specific location. A relief full-time position works the same hours but is not guaranteed a
specific location.
Article 16 further provides that an "employee interpreter
of
any language holding a regular
a.m. only five day per week position or an employee interpreter who has a pre-booked position
that is at least half time and less than full-time shall be a
'C'
status employee." "C" status
employees are required to accept any assignment given and are also not guaranteed a specific
location.
The remaining employee interpreters, i.e., those not holding a full-time or regular part-time
position, are designated as "F" status employees, and are also referred to as "as-needed"
interpreters. Article 16 also states that "the number
of
employees in any status under this
Agreement is subject to the needs
of
the Court and may be changed at the discretion
of
the
Court."
In
Article 18, Interpreter Assignments, the MOU provides as follows in Section
2:
The Interpreter Assignment Office may assign an interpreter to a
particular location for an unspecified period
of
service. 	Such an
assignment is not an entitlement and is subject to change and/or
redeployment as provided herein.
'
Interpreters shall not contact, nor request any other person to
contact on their behalf, any bench officer for the purpose of
soliciting an assignment. No interpreter shall contact any bench
officer on behalf of another interpreter for the purpose of
soliciting an assignment.
In the event that there is an opening for a regular assignment,
which the Court determines there is a need to fill, such
assignment shall be filled based upon seniority. Regular
assignments held by employees prior to the implementation of

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9
this Agreement shall not be changed due to the implementation of
this Agreement.
In Article 40, Subcontracting, the MOU states that the Court "may subcontract unit work
consistent with the rights and limitations set forth in Government Code Section 71802," and
that the Court "will not use Section 71802(b) for the purpose of reducing costs or overtime."
2. 	The Charge Allegations
A. 	Unilateral Changes and Staffing Reductions
The charge first alleges three violations that are characterized by the Union as involving
"Unilateral Changes and Staffing Reductions."
. The Union contends that, without notice to the Union, the Court changed its policy and
practice regarding filling full-time positions. This change concerns the Court allowing
only lateral transfers of full-time interpreters into vacant full-time assignments rather
than allowing "C" and "F" status employees to also apply with the assignment then
filled on the basis of seniority pursuant to MOU Article 19.
The Court allegedly reduced assignments by not posting or filling vacancies or
assignments at several locations between September 2007 and January 2008, and the
Court further also allegedly adopted a new policy of not hiring as-needed interpreters to
serve when regularly scheduled interpreters were out on leave.
The Court adopted a "pilot program" at the Compton branch location that put
interpreters under the direction of local administrators at the branch rather than the
Interpreter Services Division Manager. The "pilot program" also involved
implementation of changes to the rotation system and the hiring of relief interpreters as
described above. The Union contends, however, that the changes in Compton were
more severe, resulting in unreasonable workloads and serious negative effects on
morale, health and performance.
B. 	Employee Priority and Hiring Issues
The second grouping of allegations concerns "Employee Priority and Hiring Issues." First, the
Union contends that it notified the Court on October 15, 2007 that strikers would return to
2 In section 71802(a), the Court Interpreter Act states that, "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 interpreter may be an employee
of the trial court or an employee of another trial court on cross-assignment." Section 71802(b)
further provides, however, that notwithstanding subdivision (a), "a trial court may appoint an
independent contractor to perform spoken language interpretation of trial court proceedings if
one or more" specified circumstances exists.
this Agreement shall not be changed due
to
the implementation
of
this Agreement.
In Article 40, Subcontracting, the MOU states that the Court "may subcontract unit work
consistent with the rights and limitations set forth in Government Code Section 71802," and
that the Court "will not use Section 71802(b) for the purpose
of
reducing costs or overtime. "2
2. 	The Charge Allegations
A. 	Unilateral Changes and Staffing Reductions
The charge first alleges three violations that are characterized by the Union
as
involving
"Unilateral Changes and Staffing Reductions."
• 	The Union contends that, without notice to the Union, the Court changed its policy and
practice regarding filling full-time positions. This change concerns the Court allowing
only lateral transfers
of
full-time interpreters into vacant full-time assignments rather
than allowing "C" and "F" status employees to also apply with the assignment
thenfilled on the basis of seniority pursuant to MOU Article 19.
• 	The Court allegedly reduced assignments by not posting or filling vacancies or
assignments at several locations between September 2007 and
Ja..'luary
2008, and the
Court further also allegedly adopted a new policy
of
not hiring as-needed interpreters to
serve when regularly scheduled interpreters were out on leave.
• 	The Court adopted a "pilot program" at the Compton branch location that put
interpreters under the direction
of
local administrators at the branch rather than theInterpreter Services Division Manager. The "pilot program" also involved
implementation
of
changes to the rotation system and the hiring
of
relief interpreters as
described above. The Union contends, however, that the changes in Compton weremore severe, resulting in unreasonable workloads and serious negative effects
onmorale, health and performance.
B.
	Employee Priority and Hiring Issues
The second grouping
of
allegations concerns "Employee Priority and Hiring Issues." First, the
Union contends that it notified the Court on October 15, 2007 that strikers would return to
2 In section 71802(a), the Court Interpreter Act states that, "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 interpreter may be an employee
of the trial court or an employee of another trial court on cross-assignment." Section 71802(b)
further provides, however, that notwithstanding subdivision (a), "a trial court may appoint an
independent contractor to perform spoken language interpretation of trial court proceedings ifone or more" specified circumstances exists.

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work on October 17, 2007. However, even though "F" status interpreters began calling in to
request assignments on October 16, 2007, the Court continued to use replacement contractors
who had worked during the strike, including at least two non-certified interpreters, on the three
days remaining in that week. The Court also used one "F" status employee who had worked
during the strike, even though she had lower seniority than strikers who did not receive an
assignment. Further, the Union contends that the Court is not accepting applications for
employment to intermittent positions in accordance with the requirements of the Court
Interpreter Act, and is denying such employment for discriminatory reasons.
In section 71802(c)(2), the Court Interpreter Act provides that:
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:
(2) The interpreter has not previously been appointed as an
independent contractor by the same trial court on more than 100
court days or parts of court days during the same calendar year,
except that the trial court may continue to appoint an independent
contractor on a day-to-day basis to complete a single court
proceeding, if the trial court determines that the use of the same
interpreter to complete that proceeding is necessary to provide
continuity. An interpreter who has been appointed by a trial court
as an independent contractor pursuant to this subdivision on more
than 45 court days or parts of court days during the same calendar
year shall be entitled to apply for employment by that trial court
as a court interpreter pro tempore and the trial court may not
refuse to offer employment to the interpreter, except for cause.
For purposes of this section, "for cause" means a fair and honest
cause or reason regulated by good faith on the part of the party
exercising the power.
(Emphasis added.) Court Interpreter Act section 71802(e) further provides:
A trial court that has appointed independent contractors pursuant
to paragraph (1) of subdivision (b) or to subdivision (c) for a
language pair on more than 60 court days or parts of court days in
the prior 180 days shall provide public notice that the court is
accepting applications for the position of court interpreter pro
tempore for that language pair and shall offer employment to
qualified applicants.
work
on
October 17, 2007. However, even though "F" status interpreters began calling in to
request assignments on October 16, 2007, the Court continued to use replacement contractors
who had worked during the strike, including at least two non-certified interpreters, on the three
days remaining in that week. The Court also used one "F" status employee who had worked
during the strike, even though she had lower seniority than strikers who did not receive an
assignment. Further, the Union contends that the Court is not accepting applications for
employment to intermittent positions in accordance with the requirements
of
the Court
Interpreter Act, 3 and is denying such employment for discriminatory reasons.
3 In section 71802( c)(2), the Court Interpreter Act provides that:
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:
(2) The interpreter has not previously been appointed as an
independent contractor by the same trial court on more than 100
court days or parts
of
court days during the same calendar year,
except that the trial court may continue to appoint an independent
contractor on a day-to-day basis to complete a single court
proceeding,
if
the trial court determines that the use
of
the same
interpreter to complete that proceeding is necessary to provide
continuity. An interpreter who has been appointed by a trial court
as
an independent contractor pursuant to this subdivision on more
than 45 court days or parts
of
court days during the same calendar
year shall be entitled to apply for employment by that trial court
as a court interpreter pro tempore and the trial court may not
refuse to offer employment to the interpreter, except for cause.
For purposes of this section, "for cause" means a fair and honest
cause or reason regulated by good faith on the part of the party
exercising the power.
(Emphasis added.) Court Interpreter Act section 71802(e) further provides:
A trial court that has appointed independent contractors pursuant
to paragraph (1) of subdivision (b) or to subdivision ( c) for a
language pair on more than 60 court days or parts of court days in
the prior 180 days shall provide public notice that the court is
accepting applications for the position of court interpreter pro
tempore for that language pair and shall offer employment to
qualified applicants.

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More specifically, the Union alleges that Michele Stevens, Jenny Faure, and Paul Yi, even
though eligible for employment under the 45-day rule of Court Interpreter Act section
71802(c)(2), were told that the Court is not hiring interpreters for intermittent employment.
Also, Ruth Marcus was first denied employment under the 45-day rule, and even though the
Court later agreed to hire Ms. Marcus after the Union filed a grievance, the verification of her
employment start date had not been received as of March 14, 2008.*
The Union also offers several allegations in support of the claim that the "staffing reductions
and hiring decisions" described above are discriminatory and retaliatory in nature. Those
allegations are summarized as follows:
On October 15, 2007, Presiding Judge J. Stephan Czuleger testified at a legislative
hearing as follows: "In response to the strike, only last week I gave directions to
administrative staff to begin planning for a reduced compliment [sic] of interpreters court wide
permanently."
2. Michele Stevens, Jenny Faure, and Paul Yi, as well as Ruth Marcus, were asked to
work during the six-week strike and each declined.
3. In early December 2007, the Court assigned a contract interpreter, Gerardo
Martinez, a non-certified interpreter who had worked during the strike, to fill in as a relief
interpreter at the same time that employee interpreters were not being offered relief
assignments consistent with past practice.
4. Adela Herrera, an employee interpreter who participated in the strike, was told after
the strike by a manager that she could not transfer from her
open "A" status position.
5. Diana Barahona was a "C" status part-time employee prior to the strike and she
worked throughout the six-week strike. After the strike, Ms. Barahona requested and was
granted a full-time regular assignment in Compton at the same time that the Court was denying
transfers to "C" and "F" status employees to "A" status positions. Ms. Barahona stated to a co-
worker that she had spoken to the judges about getting her position," that she believed she got
the position because she worked during the strike 	she was told she got the position
In its position statement, the Court asserts that Ms. Marcus has been working as an
employee interpreter since February 2008.
The charge actually shows this date as "October 15, 2008," but from the context it is
apparent the quoted statement was made in 2007 and not on a date following when the charge
was filed.
The Union notes that such contacts are prohibited by the MOU at Article 18,
Section 2.
More specifically, the Union alleges that Michele Stevens, Jenny Faure, and Paul Yi, even
though eligible for employment under the 45-day rule
of
Court Interpreter Act section
71802(c )(2), were told that the Court is not hiring interpreters for intermittent employment.
Also, Ruth Marcus was first denied employment under the 45-day rule, and even though the
Court later agreed to hire Ms. Marcus after the Union filed a grievance, the verification
of
her
employment start date had not been received
as
of
March
14,
2008.4
The Union also offers several allegations in support
of
the claim that the "staffing reductions
and hiring decisions" described above are discriminatory and retaliatory in nature. Those
allegations are summarized as follows:
1
.'	1. 	On October 15, 2007,5 Presiding Judge
J.
Stephan Czuleger testified at a legislative
hearing as follows: "In response to the strike, only last week I gave directions
to
administrative staff to begin planning for a reduced compliment [sic]
of
interpreters court wide
permanently."
2. Michele Stevens, Jenny Faure, and Paul Yi,
as
well as Ruth Marcus, were asked to
work during the six-week strike and each declined.
3. In early December 2007, the Court assigned a contract interpreter, Gerardo
Martinez, a non-certified interpreter who had worked during the strike, to fill in
as
a
relief
interpreter at the same time that employee interpreters were not being offered relief
assignments consistent with past practice.
4. Adela Herrera, an employee interpreter who participated in the strike, was
told
after
the strike by a manager that she could not transfer from her "C" status part-time position to an
open "A" status position.
"C" status part-time position to an
5. Diana Barahona was a "C" status part-time employee prior to the strike and sheworked throughout the six-week 	After the 	Ms. Barahona requested and wasgranted a full-time 	assignment in 	at
	sa1ne
time that the Court was denying
transfers to "C" and "F" status employees to "A" status positions. Ms. Barahona stated to a co-
worker that she had spoken to the judges about getting her position,6 that she believed she got
the position because she worked during the strike,, and that she was told she got the position
strike. 	strike,
regular 	Compton 	the
and that
# In its position statement, the Court asserts that Ms. Marcus has been working as an
employee interpreter since February 2008.
5 The charge actually shows this date as "October 15, 2008," but from the context it is
apparent the quoted statement was made in 2007 and not on a date following when the charge
was filed.
6 The Union notes that such contacts are prohibited by the MOU at Article I 8,
Section 2.

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because she was such a good worker. Ms. Barahona, in response to comments about the pilot
program at Compton and concerns about understaffing, stated words to the effect that, "No,
this comes from [administrator] Joe Padilla because he wants to teach the group a lesson."
6. Beatriz Loiederman, an independent contractor who worked during the strike, was
hired into a full-time "A" status position effective November 28, 2007.
7. Sophia Stutz, an independent contractor who worked during the strike, was hired
into an "F" status as-needed position effective December 31, 2007.
8. Silvia Barden, Union president and full-time "A" status interpreter on leave during
the strike, was ordered to return to work after the strike and her union leave was terminated.
9. The reduced staffing levels being implemented by the Court are having negative
effects on court operations, including longer wait times.
10. The reduced staffing levels being implemented by the Court are having negative
effects on employee interpreters, including increasing their health and safety risks. The Union
cites as an example an employee for whom paramedics had to be summoned on December 6,
2007, after the employee had worked several hours without a break. Her blood pressure was
elevated, and her claim of stress was supported by a subsequent Qualified Medical Evaluator's
report regarding her workers' compensation claim.
C. 	Failure to Provide Information
The Union also alleges that the Court has failed to timely provide information that is necessary
and relevant to the Union's investigation of the issues and concerns addressed in this unfair
practice charges. The allegations described above have also been raised with the Court by the
Union through the negotiated grievance procedure.
On October 29, 2007, the Union requested information regarding assignments prior to, during
and immediately following the strike. The Union followed up on its request at a meeting on
November 19, 2007 and by e-mail on December 17, 2007. The Union received "part of the
information requested" on December 27, 2007, in 71 separate Excel spreadsheet files. The
Union followed up with the Court on January 3, 25 and February 1, 2008 in an effort to
ascertain what information, if any, was missing and to request information not yet provided.
Also, on December 17, 2007, the Union requested additional information regarding vacant full-
time and part-time regular assignments, and about regular assignments filled during the prior
year. By letter dated February 5, 2008, the Court asked for an explanation as to the relevance
of the requested information. The Union responded to that letter by e-mail on February 14,
"This allegation is the subject of a complaint issued in Unfair Practice Case No. LA-
CE-23-I, scheduled for hearing in June 2009.
because she was such a good worker. Ms. Barahona, in response to comments about the pilot
program at Compton and concerns about understaffing, stated words to the effect that, "No,
this comes from [administrator] Joe Padilla because he wants to teach the group a lesson."
6. Beatriz Loiederman, an independent contractor who worked during the strike, was
hired into a full-time "A" status position effective November 28, 2007.
7. 	Sophia Stutz, an independent contractor who worked during the strike, was hired
into an "F" status as-needed position effective December 31, 2007.
8. 	Silvia Barden, Union president and full-time "A" status interpreter on leave during
the strike, was ordered to return to work after the strike and her union leave was terminated. 7
9. The reduced staffing levels being implemented by the Court are having negative
effects on court operations, including longer wait times.
I 0. The reduced staffing levels being implemented by the Court are having negative
effects on employee interpreters, including increasing their health and safety risks. The Union
cites as an example an employee for whom paramedics had to be summoned on December 6,
2007, after the employee had worked several hours without a break. Her blood pressure was
elevated, and her claim of stress was supported by a subsequent Qualified Medical Evaluator's
report regarding her workers' compensation claim.
C. 	Failure to Provide Information
The Union also alleges that the Court has failed to timely provide information that is necessary
and relevant to the Union's investigation of the issues and concerns addressed in this unfair
practice charges. The allegations described above have also been raised with the Court by the
Union through the negotiated grievance procedure.
On October 29, 2007, the Union requested information regarding assignn1ents prior to, during
and immediately following the strike. The Union followed up on its request at a meeting on
November 19, 2007 and by e-mail on December 17, 2007. The Union received "part of the
information requested" on December 27, 2007, in 71 separate Excel spreadsheet files. 	The
Union followed up with the Court on January 3, 25 and February 1, 2008 in an effort to
ascertain what information, if any, was missing and to request information not yet provided.
Also, on December 17, 2007, the Union requested additional information regarding vacant full-
time and part-time regular assignments, and about regular assign.TJJ.ents filled during the prior
year. By letter dated February 5, 2008, the Court asked for an explanation as to the relevance
of the requested information. The Union responded to that letter by e-mail on February 14,
7 This allegation is the subject of a complaint issued in Unfair Practice Case No. LA-
CE-23-I, scheduled for hearing in June 2009.

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2008 and renewed its request for assignment information as requested in October 2007. The
Court responded on February 27, 2008, promising to provide the requested information. On
March 10, 2008, "the Union submitted another information request to the Court, following up
on the missing information and asking for more limited and specific information relevant to the
pending grievances and unfair practice charges."
The charge alleges that, "To date, the Union has not received the requested information in a
sufficiently complete form to evaluate the issues contained in this charge and in pending
grievances filed after the strike."
D. 	Retaliation against Adela Herrera
As discussed in the summary of the original charge's allegations, Ms. Herrera, a "C" status
interpreter, sought appointment as a full-time interpreter in late 2007 but was told there were
no openings. In the amended charge, the Union alleges that despite its response to MS.
Herrera's earlier request, the Court assigned Ms. Herrera to work a full-time schedule on an
on-going basis. In August 2008, Ms. Herrera wrote to Interpreter Services Division Manager
Michele Oken again requesting that she be classified as a full-time employee and receive the
corresponding benefits.
The Union alleges that, on September 2, 2008, Ms. Herrera received a telephone call from her
supervisor, Rita Woodfin. Ms. Woodfin allegedly said that if Ms. Herrera asserted she was
entitled to full-time status based on the hours she had been working, her hours would be
reduced to 20 per week. As a result, Ms. Herrera sent an e-mail message to Ms. Woodfin
withdrawing her earlier assertion and request. The Union learned of the telephone call made
by Ms. Woodfin on September 5, 2008.
Ms. Herrera continued to work a full-time schedule. In November 2008, Ms. Herrera
submitted a request for time off on a day that she was scheduled to work. The request was
initially denied but later granted after Ms. Herrera asserted she had a right to take the time off
due to the extra hours she had been working.
However, on December 5, 2008, Ms. Woodfin contacted Ms. Herrera by telephone and
informed her that she would not be paid for the date she was taking off, because it was not part
of Ms. Herrera's normal part-time schedule and was thus an "optional" workday. Ms. Herrera
stated that she had been able to use "accruals" for time off previously, but Ms. Woodfin replied
that such a practice would not be continued. Ms. Woodfin then telephoned Ms. Herrera a
second time later in the day and informed her that "C" status employees would no longer be
permitted to work full-time and would be limited to 32 hours per week. Ms. Woodfin stated
In its April 30, 2008 position statement, the Court asserts in part that it provided the
requested information to the Union on April 8, 2008, without any subsequent request being
made for additional or missing information.
2008 and renewed its request for assignment information as requested in October 2007. The
Court responded on February 27, 2008, promising to provide the requested information. 	On
March 10, 2008, "the Union submitted another information request
to
the Court, following up
on the missing information and asking for more limited and specific information relevant to the
pending grievances and unfair practice charges."
The charge alleges that, "To date, the Union has not received the requested information in a
sufficiently complete form to evaluate the issues contained in this charge and in pending
grievances filed after the strike."8
D.
	Retaliation against Adela Herrera
As discussed in the summary
of
the original charge's allegations, Ms. Herrera, a "C" status
interpreter, sought appointment as a full-time interpreter in late 2007 but was told there were
no
openings. In the amended charge, the Union alleges that despite its response to Ms.
Herrera's earlier request, the Court assigned Ms. Herrera to work a full-time schedule
on
an
on-going basis. In August 2008, Ms. Herrera wrote to Interpreter Services Division Manager
Michele Oken again requesting that she be classified as a full-time employee and receive the
corresponding benefits.
The Union alleges that, on September 2, 2008, Ms. Herrera received a telephone call from her
supervisor, Rita Woodfin. Ms. Woodfin allegedly said that
if
Ms. Herrera asserted she was
entitled to full-time status based on the hours she had been working, her hours would bereduced to 20 per week. As a result, Ms. Herrera sent an e-mail message to Ms. Woodfin
withdrawing her earlier assertion and request. The Union learned
of
the telephone call madeby Ms. Vloodfin on September 5, 2008.
Ms.
Herrera continued to work a full-time schedule. In November 2008, Ms. Herrera
submitted a request for time off on a day that she was scheduled to work. The request wasinitially denied but later granted after Ms. Herrera asserted she had a right to take the
time offdue to the extra hours she had been working.
However, on December 5, 2008, Ms. Woodfin contacted Ms. Herrera by telephone and
informed her that she would not be paid for the date she was taking off, because it was
not
part
of Ms. Herrera's normal part-time schedule and was thus an "optional" workday. Ms. Herrera
stated that she had been able to use "accruals" for time off previously, but Ms. Woodfin replied
that such a practice would not be continued. Ms. Woodfin then telephoned Ms. Herrera a
second time later in the day and informed her that "C" status employees would no longer be
permitted to work full-time and would be limited to 32 hours per week. Ms. Woodfin stated
8 In its April 30, 2008 position statement, the Court asserts in part that it provided the
requested information to the Union on April 8, 2008, without any subsequent request being
made for additional or missing information.

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during that conversation that the Court did not "want to give the impression of working as a
full-time employee."
E. 	Unilateral Change regarding Limitation of Work Hours
The amended charge further alleges that Ms. Woodfin informed interpreters at the Children's
Court on December 9, 2008, of the new policy limiting "C" status employees to 32 hours per
week. The Union was not notified of this change in policy, nor was the issue raised in on-
going successor contract negotiations.
F. 	Violation of Contracting Out Provisions
This allegation in the amended charge reads in its entirety as follows:
The Court utilizes non-certified interpreters and independent
contractors on a daily basis for Spanish-English interpretation
(Ms. Herrera's language pair) demonstrating an ongoing business
need for interpreters in Spanish/English. [Government Code
section] 71802 and the contracting out provision of the MOU
prohibit contracting out services when employees are available to
work. Limiting hours worked by part time or as-needed
employees under these circumstances violates the Government
Code sections and the MOU provision on subcontracting which
incorporates by reference the statutory provisions that establish
employee priority for work assignments.
Discussion
The discussion that follows will not address two allegations contained in the charge as
amended: (1) the alleged retaliation against Adela Herrera, and (2) an alleged unilateral
change with respect to a limitation on work hours of "C" status employees. An analysis of the
remaining allegations follows.
A. 	Unilateral Change Allegations
In determining whether a party has violated Government Code section 71818, PERB utilizes
either the "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.)" Unilateral changes are considered "per se" violations if
When interpreting the Court Interpreter Act, it is appropriate to take guidance from
cases interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Gov. Code, $ 71826(b); Fire Fighters Union v. City of Vallejo (1974) 12
Cal.3d 608.)
during
that
conversation that the Court did not "want to give the impression
of
working as a
full-time employee."
E. 	Unilateral Change regarding Limitation of Work Hours
The amended charge further alleges that Ms. Woodfin informed interpreters at the
Children's
Court
on
December 9, 2008,
of
the new policy limiting
"C"
status employees to 32 hours per
week. 	The Union was not notified
of
this change in policy, nor was the issue raised
in
on-
going successor contract negotiations.
F.
	Violation
of
Contracting Out Provisions
This allegation in the amended charge reads in its entirety as follows:
The Court utilizes non-certified interpreters and independent
contractors on a daily basis for Spanish-English interpretation
(Ms. Herrera's language pair) demonstrating an ongoing business
need for interpreters in Spanish/English. [Government Code
section] 71802 and the contracting out provision
of
the MOU
prohibit contracting out services when employees are available to
work. Limiting hours worked by part time or as-needed
employees under these circumstances violates the Government
Code sections and the MOU provision on subcontracting which
incorporates by reference the statutory provisions that establish
employee priority for work assignments.
Discussion
The discussion that follows will not address two allegations contained in the charge as
amended: 	(1) the alleged retaliation against Adela Herrera, and (2) an alleged unilateral
change with respect to a limitation on work hours
of "C" status employees.
,A~n
analysis
of
the
remaining allegations
follo\VS~
A.	
Unilateral Change Allegations
In determining whether a party has violated Government Code section 71818, PERB utilizes
either the "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.)9 Unilateral changes are considered "perse" violations
if
9 When interpreting the Court Interpreter Act, it is appropriate to take guidance from
cases interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Gov. Code,§ 71826(b); Fire Fighters Union
v.
City
of
Vallejo (1974) 12
Cal.3d 608.)

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certain criteria are met. Unilateral changes are considered "per se" violations if certain criteria
are met. Those criteria are: (1) the employer implemented a change in policy or practice; (2)
the change concerned a matter within the scope of representation; (3) the change was
implemented without the employer fulfilling its duty to negotiate with the exclusive
representative, including providing adequate notice; and (4) the action was not merely an
isolated incident, but amounted to a change that had a generalized effect or continuing impact
on bargaining unit employees. (Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d
802; Walnut Valley Unified School District (1981) PERB Decision No. 160; San Joaquin
County Employees Association v. City of Stockton (1984) 161 Cal.App.3d 813; Grant Joint
Union High School District (1982) PERB Decision No. 196.)
For a past practice to be binding and subject to a unilateral change analysis, it must be
unequivocal, clearly enunciated and acted upon, and readily ascertainable over a reasonable
period of time as a fixed and established practice accepted by both parties. (County of Placer
(2004) PERB Decision No. 1630-M, citing Hacienda La Puente Unified School District (1997)
PERB Decision No. 1186; see also Riverside Sheriffs' Association v. County of Riverside (2003)
106 Cal.App.4th 1285, 1291.) PERB has also described an enforceable past practice as one that
is "regular and consistent" or "historic and accepted." (Hacienda La Puente Unified School
District, supra, PERB Decision No. 1186.)
1 . 	Alleged Unilateral Change concerning Filling Full-Time Positions
With this allegation, the Union contends that the Court ceased allowing "C" and "F" status
employees to apply for vacant full-time assignments, thus also denying potential applicants the
seniority rights accorded by the MOU in Article 18. " The Court does not dispute that it
determined to reduce or limit the number of "F" status positions it would fill. However, the
Court also cites to the above-quoted language of the MOU at Article 16, stating that "the number
of employees in any status under this Agreement is subject to the needs of the Court and may
be changed at the discretion of the Court." The Court also notes that, even in Article 18,
Section 2, the MOU conditions the right to be selected for an assignment based on seniority to
those situations where "the Court determines there is a need to fill [the] assignment."
Thus, the language of the MOU does not support finding that the Court's conduct effected any
change in policy that would form the basis for finding a unilateral change violation. Nor does
the Union provide evidence of an enforceable past practice that would lead to a different result.
An employer's enforcement of or adherence to the express terms of a collective bargaining
agreement cannot form the basis for finding a unilateral change violation. (Marysville Joint
Unified School District (1983) PERB Decision No. 314.) This allegation as currently written
is subject to being dismissed. (Grant Joint Union High School District, supra, PERB Decision
No. 196.)
n its charge, at least at times, the Union cites to Article 19 rather than Article 18 in
the statement of the charge, but a reading of the MOU's provisions suggests that it is Article 18
that is at issue.
certain criteria are met. Unilateral changes are considered "per se" violations
if
certain criteria
are met. 	Those criteria are: 	(1) the employer implemented a change in policy or practice; (2)
the change concerned a matter within the scope
of
representation; (3) the change was
implemented without the employer fulfilling its duty to negotiate with the exclusive
representative, including providing adequate notice; and (4) the action was not merely
an
isolated incident, but amounted to a change that had a generalized effect or continuing impact
on bargaining unit employees. (Vernon Fire Fighters
v.
City
of
Vernon (1980) 107 Cal.App.3d
802; Walnut Valley Unified School District (1981) PERB Decision No. 160; San Joaquin
County Employees Association
v.
City a/Stockton (1984)
161
Cal.App.3d 813; Grant Joint
Union High School District (1982) PERB Decision No. 196.)
For a past practice to be binding and subject to a unilateral change analysis, it must be
unequivocal, clearly enunciated and acted upon, and readily ascertainable over a reasonable
period
ohime
as a fixed and established practice accepted by both parties. (County
of
Placer
(2004) PERB Decision No. 1630-M, citing Hacienda La Puente Unified School District (1997)
PERB Decision No. 1186; see also Riverside Sheriffs' Association
v.
County
of
Riverside (2003)
106 Cal.App.4th 1285, 1291.) PERB has also described an enforceable past practice as one that
is
"regular and consistent" or "historic and accepted." (Hacienda La Puente Unified School
District, supra, PERB Decision No. 1186.)
1.
	Alleged Unilateral Change concerning Filling Full-Time Positions
With this allegation, the Union contends that the Court ceased allowing "C" and "F" status
employees to apply for vacant full-time assignments, thus also denying potential applicants the
seniority rights accorded by the MOU in Article 18. 10
The Court does not dispute that
it
determined to reduce or limit the number
of "F"
status positions it would fill. However, the
Court also cites to the above-quoted language
of
the MOU at Article 16, stating that
"the
number
of employees in any status under this Agreement is subject to the needs
of
the Court
and
may
be
changed at the discretion
of
the Court." The Court also notes that, even in Article 18,
Section 2, the MOU conditions the right to be selected for an assignment based on seniority to
those situations where "the Court determines there is a need to fill [the] assignment."
Thus, the language
of
the MOU does not support finding that the Court's conduct effected any
change in policy that would form the basis for finding a unilateral change violation.
	Nor
does
the Union provide evidence
of
an enforceable past practice that would lead to a different result.
An employer's enforcement
of
or adherence to the express terms
of
a collective bargaining
agreement cannot form the basis for finding a unilateral change violation. (Marysville Joint
Unified School District (1983) PERB Decision No. 314.) This allegation as currently written
is
subject to being dismissed. (Grant Joint Union High School District, supra, PERB Decision
No.
196.)
I 	In its charge, at least at times, the Union cites to Article 19 .rather than Article 18 in
the statement of the charge, but a reading of the MOU' s provisions suggests that it is Article
18
that is at issue.

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2 . 	Alleged Unilateral Change concerning Posting and Filling Vacancies and the Use
of Relief Interpreters
The Court again does not deny that it determined not to fill certain vacancies, but points to the
language of Article 18, Section 2 as authority for the Court to make that determination. As with
the first unilateral change allegation, the charge fails to demonstrate that the Court's conduct
changed any existing policy within the scope of representation, and the allegation as currently
written must be dismissed.
With respect to the alleged change in policy as to the use of relief interpreters, the charge relies
on conclustatements that do not support the issuance of a complaint. PERB Regulation
32615(a)(5)" requires, inter alia, that an unfair practice charge include a "clear and concise
statement of the facts and conduct alleged to constitute an unfair practice." The charging
party's burden includes alleging the "who, what, when, where and how" of an unfair practice.
(State of California (Department of Food and Agriculture) (1994) PERB Decision No. 1071-S,
citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal
conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School
District (1991) PERB Decision No. 873.)
3. 	Unilateral Changes related to "Pilot Program" at Compton Branch Location
This allegation is similar to those made under numbers 1 and 2, above, but with the additional
concern added that interpreters have been placed under the management of the loca
administrators of branch courts. This allegation also suffers from the deficiency discussed above
with respect to the lack of specificity as to the requisite "who, what, when, where and how" of
the unfair practice.
With respect to the alleged "pilot program" involving local control over interpreters, which the
Court does not deny, the charge fails to establish that this change involves a matter within the
scope of representation. The Court Interpreter Act, at section 71816, provides that:
(a) The scope of representation shall include all matters relating
to employment conditions and employer-employee relations,
including, but not limited to, wages, hours, and other terms and
conditions of employment. However, the scope of representation
may not include consideration of the merits, necessity, or
organization of any service or activity provided by law or
executive order.
(b) In view of the unique and special responsibilities of the trial
courts in the administration of justice, decisions regarding any of
!PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2. 	Alleged Unilateral Change concerning Posting and Filling Vacancies and the Use
of
Relief Interpreters
The Court again does not deny that it determined not to fill certain vacancies, but points to the
language
of
Article 18, Section 2 as authority for the Court to make that determination. As with
the first unilateral change allegation, the charge fails to demonstrate that the Court's conduct
changed any existing policy within the scope
of
representation, and the allegation as currently
written must be dismissed.
With respect to the alleged change in policy
as
to the use
of
relief interpreters, the charge relies
on conclusory statements that do not support the issuance
of
a complaint. PERB Regulation
32615(a)(5)
11
requires, inter alia, that an unfair practice charge include a "clear and concise
statement of the facts and conduct alleged to constitute an unfair practice." The charging
party's burden includes alleging the "who, what, when, where and how"
of
an unfair practice.
(State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S,
citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal
conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School
District (1991) PERB Decision No. 873.)
3. 	Unilateral Changes related to "Pilot Program" at Compton Branch Location
This allegation is similar to those made under numbers 1 and 2, above, but with the additional
concern added that interpreters have been placed under the management
of
the local
administrators
of
branch courts. This allegation also suffers from the deficiency discussed above
with respect to the lack
of
specificity as to the requisite "who, what, when, where and
how"
of
the unfair practice.
With respect to the alleged "pilot program" involving local control over interpreters,
which
the
Court does not deny, the charge fails to establish that this change involves a matter within the
scope
of
representation. The Court Interpreter Act, at section 71816, provides that:
(a) The scope
of
representation shall include all matters relating
to employment conditions and employer-employee relations,
including, but not limited to, wages, hours, and other terms and
conditions of employment. However, the scope
of
representation
may not include consideration
of
the merits, necessity, or
organization
of
any service or activity provided by law or
executive order.
(b) In view of the unique and special responsibilities of the trial
courts in the administration of justice, decisions regarding any of
11
PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

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Page 11
LA-CE-24-I
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Page 11
the following matters may not be included within the scope of
representation:
(1) The merits and administration of the trial court system.
(2) Coordination, consolidation, and merger of trial courts and
support staff.
(3) Automation, including, but not limited to, fax filing,
electronic recording, and implementation of information systems.
(4) Design, construction, and location of court facilities.
(5) Delivery of court services.
(6) Hours of operation of the trial courts and trial court system.
(Emphasis added.) The Union does not demonstrate in its charge that the pilot program
concerned a negotiable decision, as the designation of how a program is administered would
appear to concern the "organization" of a "service or activity," "administration" of the trial
court, and the "delivery of court services." (See, e.g., Fresno County Superior Court (2008)
PERB Decision No. 1942-C.) While Court Interpreter Act section 71816(c) does further
provide that the effects of non-negotiable decisions are within the scope of representation, it is
not clear that the Union made a demand to bargain over any specific effects. (Ibid.; Newman-
Crows Landing Unified School District (1982) PERB Decision No. 223.)
B. 	Discrimination/Retaliation Against Strikers
The Union alleges that the Court, over a three-day period beginning October 16, 2007, continued
to use replacement interpreters even though interpreters who had participated in the strike called
to request assignments. It appears that the Union is alleging that the Court was thus unlawfully
retaliating against certain unnamed individuals for their exercise of protected rights.
To demonstrate that an employer discriminated or retaliated against an employee in violation
of Government Code section 71822 and PERB Regulation 32608(a), the charging party must
show that: (1) the employee exercised rights under the Court Interpreter Act; (2) the employer
had knowledge of the exercise of those rights; (3) the employer took adverse action against the
employee; and (4) the employer took the action because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato); Campbell
Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 (Campbell); San
Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553 (San
Leandro).) In determining whether evidence of adverse action is established, the Board uses
an objective test and will not rely upon the subjective reactions of the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) In a later decision, the Board further
explained that:
the following matters may not be included within the scope of
representation:
(1) The merits and administration of the trial court system.
(2) Coordination, consolidation, and merger of trial courts and
support staff.
(3) Automation, including, but not limited to, fax filing,
electronic recording, and implementation of information systems.
(4) Design, construction, and location of court facilities.
(5) Delivery of court services.
(6) Hours of operation of the trial courts and trial court system.
(Emphasis added.) The Union does not demonstrate in its charge that the pilot program
concerned a negotiable decision, as the designation of how a program is administered would
appear to concern the "organization" of a "service or activity," "administration" of the trial
court, and the "delivery of court services." (See, e.g., Fresno County Superior Court (2008)
PERB Decision No. 1942-C.) Vvhile Court Interpreter Act section 71816(c) does further
provide that the effects of non-negotiable decisions are within the scope of representation, it is
not clear that the Union made a demand to bargain over any specific effects. (Ibid.; Newman-
Crows Landing Unified School District (1982) PERB Decision No. 223.)
B. 	Discrimination/Retaliation Against Strikers
The Union alleges that the Court, over a three-day period beginning October 16, 2007, continued
to use replacement interpreters even though interpreters who had participated in the strike called
to request assignn1ents. It appears that the Union is alleging that the Court was thus unlmvfully
retaliating against certain unnamed individuals for their exercise of protected rights.
To demonstrate that an employer discriminated or retaliated against an employee in violation
of Government Code section 71822 and PERB Regulation 32608(a), the charging party must
show that: 	(1) the employee exercised rights under the Court Interpreter Act; (2) the employer
had knowledge of the exercise of those rights; (3) the employer took adverse action against the
employee; and (4) the employer took the action because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato); Campbell
Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 (Campbel[); San
Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553 (San
Leandro).) In determining whether evidence of adverse action is established, the Board uses
an objective test and will not rely upon the subjective reactions of the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) In a later decision, the Board further
explained that:

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Page 12
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S;
Campbell, supra, 131 Cal.App.3d 416); (2) the employer's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School
District (1979) PERB Decision No. 104; San Leandro, supra, 55 Cal.App.3d 553); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
Department of Parks and Recreation) (1983) PERB Decision No. 328-S; San Leandro, supra,
55 Cal.App.3d 553); (4) the employer's cursory investigation of the employee's misconduct
(City of Torrance (2008) PERB Decision No. 1971-M; Coast Community College District
(2003) PERB Decision No. 1560); (5) the employer's failure to offer the employee justification
at the time it took action or the offering of exaggerated, vague, or ambiguous reasons (County
of San Joaquin (Health Care Service) (2001) PERB Order No. IR-55-M); (6) employer
animosity towards union activists (Jurupa Community Services District (2007) PERB Decision
No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or
any other facts that might demonstrate the employer's unlawful motive. (North
Sacramento School District, supra, PERB Decision No. 264; Novato, supra, PERB Decision
No. 210.)
In this case, the Union relies merely on conclustatements and does not allege the specific
facts or even names of individuals to establish any of the above-summarized elements of a
prima facie discrimination violation. Without specific information as to the "who, what, when,
where and how" of the alleged unfair practices, it is not possible for the Union to establish any
of the elements of the test for discrimination. For example, without knowing "who" was
discriminated against, it is not possible to establish that the employee engaged in protected
activity, that the Court had knowledge of the protected activity, that the employee suffered an
adverse action, and that the Court was unlawfully motivated to deny an employment
opportunity because of the unnamed employee's earlier protected activity. Thus, this
allegation is also subject to dismissal. (State of California (Department of Food and
Agriculture), supra, PERB Decision No. 1071-S.)
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following
additional factors must also be present: (1) the employer's disparate treatment
of
the employee
(State
of
California (Department a/Transportation) (1984) PERB Decision No. 459-S;
Campbell, supra,
131
Cal.App.3d 416); (2) the employer's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School
District (1979) PERB Decision No. 104; San Leandro, supra, 55 Cal.App.3d 553); (3)
the
employer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S; San Leandro, supra,
55
Cal.App.3d 553); (4) the employer's cursory investigation
of
the employee's misconduct
(City
of
Torrance (2008) PERB Decision No. 1971-M; Coast Community College District
(2003) PERB Decision No. 1560); (5) the employer's failure to offer the employee justification
at the
time
it took action or the offering
of
exaggerated, vague, or ambiguous reasons (County
of
San Joaquin (Health Care Service) (2001) PERB Order No. IR-55-M); (6) employer
animosity towards union activists (Jurupa Community Services District (2007) PERB Decision
No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or
(7) any other facts that might demonstrate the employer's unlawful motive. (North7)
Sacramento School District, supra, PERB Decision No. 264; Novato, supra, PERB
Decision
No.210.)
In this case, the Union relies merely on conclusory statements and does not allege the specific
facts or even names
of
individuals to establish any
of
the above-summarized elements
of
a
prima facie discrimination violation. Without specific information as to the "who, what, when,
where
and
how"
of
the alleged unfair practices, it is not possible for the Union to establish any
of the elements
of
the test for discrimination. For example, without knowing "who" was
discriminated against, it is not possible to establish that the employee engaged in protected
activity, that the Court had knowledge
of
the protected activity, that the employee suffered an
adverse action, and that the Court was unlawfully motivated to deny an employment
opportunity because
of
the unnamed employee's earlier protected activity. Thus, this
allegation is also subject to dismissal. (State
of
California (Department
of
Food and
Agriculture), supra, PERB Decision No. 1071-S.)

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C. 	Failure to Hire Intermittent Interpreters under the "45-day Rule"
The Union alleges that the Court is violating the Court Interpreter Act at section 71802(c) and
(e) by not offering employment to certified interpreters and instead continuing to use
independent contractors. The Union names Michele Stevens, Jenny Faure, and Paul Yi as
intermittent interpreters affected by this conduct but further alleges that there are additional,
but unnamed, individuals affected as well. The Union also alleges the Court has violated this
rule with respect to Ruth Marcus, even though the Court agreed to hire Ms. Marcus, because of
delays in the process.
The Act states at section 71802(c)(2) that, "An interpreter who has been appointed by a trial
court as an independent contractor pursuant to this subdivision on more than 45 court days or
parts of court days during the same calendar year shall be entitled to apply for employment by
that trial court as a court interpreter pro tempore and the trial court may not refuse to offer
employment to the interpreter, except for cause." The allegation with regard to Ms. Stevens,
Ms. Faure, and Mr. Yi fails to state a prima facie case as the charge contains insufficient
information from which to conclude that these provisions are applicable to them. (State of
California (Department of Food and Agriculture), supra, PERB Decision No. 1071-S.)
Likewise, the allegation that this violation applies to other unnamed individuals is not specific
enough to support finding a violation.
With respect to Ms. Marcus, the Union does not demonstrate in its charge that the Act, or other
applicable authority, imposes timelines on the offer of employment under the "45-day rule"
that the Court has violated.
D. 	Failure to Provide Information
The exclusive representative is entitled to all information that is "necessary and relevant" to
the discharge of its duty of representation. (Stockton Unified School District (1980) PERB
Decision No. 143). PERB uses a liberal standard, similar to a discovery-type standard, to
determine relevance of the requested information. (Trustees of the California State University
(1987) PERB Decision No. 613-H.) Failure to provide such information is a per se violation of
the duty to bargain in good faith.
Notwithstanding the liberal standard, an employer can refuse to release information that is
otherwise "relevant and necessary" if, for example, it will impose burdensome costs on the
employer (Los Rios Community College District (1988) PERB Decision No. 670; Tower Books
(1984) 273 NLRB 671) or the release will compromise employee privacy rights. (Modesto
City Schools and High School District (1985) PERB Decision No. 479, p. 11 (Modesto).)
However, the employer must affirmatively assert its concerns and then bargain in good faith to
ameliorate those concerns. (See, e.g., Modesto, supra, PERB Decision No. 479, at p. 12
(employer bargained in good faith by offering to delete social security numbers from requested
document).) The employer cannot simply ignore a union's request for information. (Chula
Vista City School District (1990) PERB Decision No. 834.)
/
i
C.
	Failure to Hire Intermittent Interpreters under the "45-day Rule"
The Union alleges that the Court is violating the Court Interpreter Act at section 71802( c) and
( e) by
not
offering employment to certified interpreters and instead continuing to use
independent contractors. The Union names Michele Stevens, Jenny Faure, and Paul Yi as
intermittent interpreters affected by this conduct but further alleges that there are additional,
but unnamed, individuals affected as well. The Union also alleges the Court
hl'.ls
violated this
rule
with
respect to Ruth Marcus, even though the Court agreed to hire Ms. Marcus, because
of
delays
in
the process.
The
Act
states at section 71802( c)(2) that, "An interpreter who has been appointed by a trial
court as an independent contractor pursuant to this subdivision on more than 45 court days or
parts
of
court days during the same calendar year shall be entitled to apply for employment by
that trial court as a court interpreter pro tempore and the trial court may not refuse to
offer
employment to the interpreter, except for cause." The allegation with regard to Ms. Stevens,
Ms. Faure, and Mr. Yi fails to state a prima facie case as the charge contains insufficient
information from which to conclude that these provisions are applicable to them. (State
of
California (Department
of
Food and Agriculture), supra, PERB Decision No. 1071-S.)
Likewise, the allegation that this violation applies to other unnamed individuals is not specifi
enough
to
support finding a violation.
c
With respect to Ms. Marcus, the Union does not demonstrate in its charge that the Act,
or
other
applicable authority, imposes timelines on the offer
of
employment under the "45-day
rule"
that the Court has violated.
D.
	Failure to Provide Information
The exclusive representative is entitled to all information that is "necessary and relevant" to
the discharge
of
its duty
of
representation. (Stockton Unified School District (1980)
PERE
Decision No. 143). PERB uses a liberal standard, similar to a discovery-type standard,
to
determine relevance
of
the requested information. (Trustees
of
the California State University
(1987) PERB Decision No. 613-H.) Failure to provide such information is a per se violation of
the duty to bargain in good faith.
Notwithstanding the liberal standard, an employer can refuse to release information that is
otherwise "relevant and necessary" if, for example, it will impose burdensome costs
on the
employer (Los Rios Community College District (1988) PERB Decision No. 670; Tower Books
(1984) 273 NLRB 671) or the release will compromise employee privacy rights. (Modesto
City Schools and High School District (1985) PERB Decision No. 479, p.
11
(Modesto).)
However, the employer must affirmatively assert its concerns and then bargain in good faith to
ameliorate those concerns. (See, e.g., Modesto, supra, PERB Decision No. 479, at p. 12
(employer bargained in good faith by offering to delete social security numbers from requested
document).) The employer cannot simply ignore a union's request for information. (Chula
Vista City School District (1990) PERB Decision No. 834.)

LA-CE-24-I
June 16, 2009
Page 14
LA-CE-24-I
June 16, 2009
Page 14
Here, the Union has plead sufficient facts to establish that it requested necessary and relevant
information from the Court. The Union also acknowledges the receipt of some information,
and further alleges that the Union and the Court exchanged various communications regarding
the information requested.
This portion of the charge concludes by stating that, "To date, the Union has not received the
requested information in a sufficiently complete form to evaluate the issues contained in this
charge and in pending grievances filed after the strike." However, an employer is not required
"to furnish information in a form more organized than its own records." (State of California
Department of Corrections) (2000) PERB Decision No. 1388-S, citing NLRB v. Tex-Tan, Inc.
(1963) 318 F.2d 472.) This allegation by the Union simply fails to provide sufficient facts
with sufficient clarity to understand what information the Court failed to provide, or how the
information provided failed to respond adequately to the Union's request.
E. 	Violation of Contracting Out Provisions
As noted above, this allegation in the amended charge reads in its entirety as follows:
The Court utilizes non-certified interpreters and independent
contractors on a daily basis for Spanish-English interpretation
(Ms. Herrera's language pair) demonstrating an ongoing business
need for interpreters in Spanish/English. [Government Code
section] 71802 and the contracting out provision of the MOU
prohibit contracting out services when employees are available to
work. Limiting hours worked by part time or as-needed
employees under these circumstances violates the Government
Code sections and the MOU provision on subcontracting which
incorporates by reference the statutory provisions that establish
employee priority for work assignments.
This allegation clearly fails to meet the pleading requirements under PERB Regulation
32615(a)(5) requiring, inter alia, that an unfair practice charge include a "clear and concise
statement of the facts and conduct alleged to constitute an unfair practice," including the "who,
what, when, where and how" of an unfair practice. (State of California (Department of Food
and Agriculture), supra, PERB Decision No. 1071-S; Charter Oak Unified School District,
supra, PERB Decision No. 873.)
Conclusion
For these reasons the allegations that the Court unlawfully implemented unilateral changes
with respect to filling full-time positions, posting and filling vacancies, use of relief
interpreters, and a "pilot program" in Compton; discriminated against striking interpreters with
respect to their return to work; failed to offer employment to intermittent interpreters under the
"45-day rule;" failed and/or refused to provide information; and violated contracting out
Here, the Union has plead sufficient facts to establish that it requested necessary and relevant
information from the Court. The Union also acknowledges the receipt
of
some information,
and further alleges that the Union and the Court exchanged various communications regarding
the information requested.
This portion
of
the charge concludes by stating that, "To date, the Union has not received the
requested information in a sufficiently complete form to evaluate the issues contained in this
charge and in pending grievances filed after the strike." However, an employer is not required
"to furnish information in a form more organized than its own records." (State
of
California
(Department
of
Corrections) (2000) PERB Decision No. 1388-S, citing NLRB
v.
Tex-Tan, Inc.
(1963) 318 F.2d 472.) This allegation by the Union simply fails to provide sufficient facts
with sufficient clarity to understand what information the Court failed to provide, or
how
the
information provided failed to respond adequately to the Union's request.
E.
	Violation
of
Contracting Out Provisions
As
noted above, this allegation in the amended charge reads in its entirety as follows:
The
Court
utilizes non-certified interpreters and independent
contractors on a daily basis for Spanish-English interpretation
(Ms. Herrera's language pair) demonstrating an ongoing business
need for interpreters in Spanish/English. [Government Code
section] 71802 and the contracting out provision
of
the MOU
prohibit contracting out services when employees are available to
work. Limiting hours worked by part time or as-needed
employees under these circumstances violates the Government
Code sections and the MOU provision on subcontracting which
incorporates by reference the statutory provisions that establish
employee priority for work assignments.
This allegation clearly fails to meet the pleading requirements under PERB Regulation
32615(a)(5) requiring, inter alia, that an unfair practice charge include a "clear and concise
statement
of
the facts and conduct alleged to constitute an unfair practice," including
the
"who,
what, when, where and how"
of
an unfair practice. (State
of
California (Department
of
Food
and Agriculture), supra, PERB Decision No. 1071-S; Charter Oak Unified School District,
supra, PERB Decision No. 873.)
Conclusion
For these reasons the allegations that the Court unlawfully implemented unilateral changes
with respect to filling full-time positions, posting and filling vacancies, use of relief
interpreters, and a "pilot program" in Compton; discriminated against striking interpreters with
respect to their return to work; failed to offer employment to intermittent interpreters under the
"45-day rule;" failed and/or refused to provide information; and violated contracting out

LA-CE-24-I
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Page 15
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Page 15
provisions, as presently written, do not state a prima facie case."If there are any factual
inaccuracies in this letter or additional facts that would correct the deficiencies explained
above, Charging Party may amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled Second Amended Charge, contain
all the facts and allegations you wish to make, and be signed under penalty of perjury by an
authorized agent of Charging Party. The amended charge must have the case number written
on the top right hand corner of the charge form. The amended charge must be served on the
Respondent's representative and the original proof of service must be filed with PERB. If an
amended charge or withdrawal is not filed on or before June 26, 2009," PERB will dismiss
these allegations from your charge. If you have any questions, please call me at the above
telephone number.
Sincerely,
Les Chisholm
Division Chief
12 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
issued and the matter be sent to formal hearing." (Ibid.)
15 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via f 	PERB Regulation 32135.)
provisions, as presently written, do not state a prima facie case.
12
If
there are any factual
inaccuracies in this letter or additional facts that would correct the deficiencies explained
above, Charging Party may amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled Second Amended Charge, contain
all the facts and allegations you wish to make, and be signed under penalty
of
perjury by an
authorized agent
of
Charging Party. The amended charge must have the case number written
on the top right hand corner
of
the charge form. 	The amended charge must be served on the
Respondent's representative and the original proof
of
service must be filed with PERB.
	If
an
amended charge or withdrawal is not filed on or before June 26, 2009,
13
PERB will dismiss
these allegations from your charge.	
If
you have any questions, please call me at the above
telephone number.
Sincerely,
Les Chisholm
Division Chief ·
12
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or	onflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (lb id.)
"a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of c
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
13
A document is "filed" on the date the document is actually received by PERE,
including if transmitted via acsimile. ( (PERB Regulation 32135.)	facsimile.