Orange County Superior Court and Region 4 Court Interpreter Employment Relations Committee (PERB 2818I)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA FEDERATION OF
INTERPRETERS, LOCAL 39000 THE
NEWSPAPER GUILD-COMMUNICATION Case No. LA-CE-37-I

WORKERS OF AMERICA,
PERB Decision No. 2818-|

Charging Party,

May 5, 2022
Vv.

ORANGE COUNTY SUPERIOR COURT &
REGION 4 COURT INTERPRETER
EMPLOYMENT RELATIONS COMMITTEE,

Respondents.

Appearances: Weinberg, Roger & Rosenfeld by Anne I. Yen, Attorney, for California
Federation of Interpreters, Local 39000 The Newspaper Guild-Communication
Workers of America; Aleshire & Wynder by Joseph E. Wiley and Monna Radulovich,
Attorneys, for Orange County Superior Court and Region 4 Court Interpreter
Employment Relations Committee.

Before Banks, Chair; Shiners and Paulson, Members.

DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions by California Federation of Interpreters,
Local 39000 The Newspaper Guild-Communication Workers of America (CFI) to the
proposed decision of an administrative law judge (ALJ). The complaint alleged that the
Orange County Superior Court and/or the Region 4 Court Interpreter Employment

Relations Committee (Region 4) violated the Trial Court Interpreter Employment and

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Labor Relations Act (Court Interpreter Act)1 by disciplining bargaining unit members
based on the accuracy of their interpretation, without affording CFI an opportunity to
meet and confer over the decision to implement the new discipline criterion or
procedure and/or the effects of that decision. The ALJ dismissed the unfair practice
charge and complaint, finding CFI failed to demonstrate a change in policy based on
the narrow facts of the case, which included that the reprimand was based on conduct
the bargaining unit employee admitted to in an investigatory interview.
Having reviewed the entire record and the parties’ submissions in light of
relevant legal authority, we hereby affirm the proposed decision based on the
following findings and discussion.
FACTUAL AND PROCEDURAL BACKGROUND
CFI is an exclusive representative within the meaning of PERB Regulation
32035, subdivision (c). The Court is a trial court within the meaning of Government
Code section 71801, subdivision (k), and PERB Regulation 32035, subdivision (b).
Region 4 is a regional court interpreter employment relations committee within the
meaning of Government Code sections 71801, subdivision (h), and 71807; a regional
committee within the meaning of PERB Regulation 32035, subdivision (a); and an
employer within the meaning of PERB Regulation 32035, subdivision (e). The Court is
part of Region 4, which also includes trial courts in several other counties in Southern
1 The Court Interpreter Act is codified at Government Code section 71800 et
seq. Unless otherwise specified, all statutory references herein are to the Government
Code. PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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California.2 The parties are therefore within the jurisdiction of PERB.
California courts provide the services of interpreters for litigants who are not
proficient in English. At the time of the hearing in this matter, the Court employed
75 full-time interpreters. Pamela Santos is a certified Spanish language interpreter
who has been employed by the Court since 1989, and served as a shop steward for
CFI from 2011-2019. Michael Ferreira is a certified Spanish language interpreter who
has been working in California courts since 1988 and is also the current CFI president.
Ferreira participated in the most recent successor contract negotiations in Region 4
that occurred in 2018-2019.
Santos and Ferreira explained the process that interpreters undergo to become
either registered or certified interpreters. High-frequency languages require
certification, while more uncommonly used languages require that an interpreter be
registered. The Judicial Council of California is responsible for testing interpreters to
become certified or registered. The process to become certified requires more testing
than the process to become registered.
Language Access Services manager Ana Parrack is responsible for receiving
and investigating formal and informal complaints regarding the Court’s Language
Access Services. Parrack has been in her role for the last five years and was
previously a Court Reporter and Interpretive Services supervisor.
2 Though the underlying unfair practice charge names Region 4 as a
respondent, CFI does not contend that Region 4 itself made any unilateral change,
instead including Region 4 because it would be a necessary party for a complete
remedial order. Our discussion regarding liability accordingly focuses solely on the
Court.

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Relevant MOU and Policy Provisions
The parties’ memorandum of understanding (MOU), dated July 31, 2014 –
June 30, 2018, was expired during the period that is relevant to this case, but the
parties stipulated that the terms of the MOU remained in effect. MOU Article 6,
“Discipline Policy,” includes, in relevant part:
“[F]or employees in this bargaining unit, discipline up to and
including termination shall be for cause and in accordance
with the provisions of this policy. For cause is a fair and
honest cause or reason, regulated by good faith.”
Article 6 also includes an appeal process for some disciplinary actions, and indicates
that preliminary discipline, including written reprimand, shall not be subject to appeal.
The MOU does not describe specific grounds or causes for discipline, either in
Article 6 or any other provision.
MOU Article 20, “Professional Status and Best Practice,” states:
“Court interpreters will perform their duties in accordance
with the Judicial Council’s Rules for Professional Conduct
for interpreters. (Currently Rule 984.4[.]) An interpreter may
not be disciplined for informing the Judicial Officer, in an
appropriate manner, of conditions that impede his or her
ability to perform complete and accurate interpretation or
sight translation.”
The parties stipulate that although Article 20 refers to “Rule 984.4,” that rule
was later replaced by California Rule of Court 2.890 (Rule 2.890), which was in effect
during the relevant time period and is now the rule governing standards of conduct for
interpreters.
Rule 2.890(b), titled “Complete and accurate interpretation” states:
“An interpreter must use his or her best skills and judgment
to interpret accurately without embellishing, omitting, or

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editing. When interpreting for a party, the interpreter must
interpret everything that is said during the entire
proceedings. When interpreting for a witness, the
interpreter must interpret everything that is said during the
witness’s testimony.”
Rule 2.890(h) “Assessing and reporting impediments to performance” states:3
“An interpreter must assess at all times his or her ability to
perform interpreting services. If an interpreter has any
reservation about his or her ability to satisfy an assignment
competently, the interpreter must immediately disclose that
reservation to the court or other appropriate authority.”
The parties also rely on the Professional Standards and Ethics for California
Court Interpreters (the ‘manual’), published by the Judicial Council. Santos confirmed
that the manual contains the statewide standards that court interpreters follow. The
purpose of the manual is “to inform interpreters of their professional and ethical
responsibilities so that they are better able to deal with the difficulties that commonly
arise in matters involving non-English-speaking parties in the judicial system.” The
manual includes guidance regarding “Complete and Accurate Interpretation” within the
meaning of Rule 2.890(b).
CFI also cites to California Rule of Court 2.891 (Rule 2.891), titled “Request for
court interpreter credential review.” Rule 2.891 provides, in relevant part, that the
Judicial Council, “as the credentialing body, has authority to review a credentialed
interpreter’s performance, skills, and adherence to the professional conduct
3 In addition, Rule 2.890 includes subdivisions addressing “Representation of
qualifications,” “Impartiality and avoidance of conflicts of interest,” “Confidentiality of
privileged communications,” “Giving legal advice,” “Impartial professional
relationships,” “Continuing education and duty to the profession,” and “Duty to report
ethical violations.” (Cal. Rules of Court, rule 2.890(a), (c), (d), (e), (f), (g), (h), & (i).)

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requirements of [R]ule 2.890, and to impose discipline on interpreters.” Rule 2.891(b)
further states:
“Under the California Court Interpreter Credential Review
Procedures, all court interpreters certified or registered by
the council may be subject to a credential review process
after a request for a credential review alleging professional
misconduct or malfeasance. Nothing in this rule prevents
an individual California court from conducting its own
review of, and disciplinary process for, interpreter
employees under the court’s collective bargaining
agreements, personnel policies, rules, and procedures, or,
for interpreter contractors, under the court’s contracting and
general administrative policies and procedures.” (Italics
omitted.)
Complaint, Investigation, and Reprimand
The Judicial Council has a complaint procedure for litigants with complaints
regarding the courts’ Language Access Services. The complaint form includes a
category titled “I am not satisfied with the services of the interpreter,” where the
complainant is asked to provide the name and badge number of the interpreter, date
of service, location, case number and describe why the service was not satisfactory.
(Emphasis in original.) Parrack testified that she has investigated four such
complaints.
On or about January 16, 2019,4 a litigant’s attorney (hereafter, “Complainant”)
filed a complaint about interpreter Janet Suh’s interpretation during a family law
hearing on January 14. Complainant’s description included that the interpreter “was
unable to translate the questions as asked and failing [sic] to translate the witness’s
4 All further dates are in 2019, unless otherwise noted.

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testimony . . . I had to address this problem over 5 times to the judge (that the
questions/answers were not being translated accurately) during the [January 14]
hearing, at the end of which, Ms. Suh said she had to recuse herself.”
On April 17, Parrack and Human Resources analyst Chris Coombes convened
an investigatory meeting to discuss this complaint with Suh. Santos attended the
investigatory meeting as Suh’s union representative. At the time Suh was a certified
Korean language interpreter and a long-time employee of the Court.5
During the investigatory meeting, Parrack and Coombes reviewed and
discussed portions of the transcript of the January 14 hearing with Suh and Santos.
The transcript revealed that Complainant made several objections during her client’s
testimony regarding the accuracy of Suh’s interpretations. The judge, at one point,
asked Suh whether she agreed with Complainant’s assertion about the correct
interpretation of Complainant’s client’s testimony, and Suh then asked the court
reporter to read back the question. After another objection over inaccuracy of
interpretation, the judge asked Suh whether she wanted to correct her interpretation,
to which Suh replied, “May I request the reporter? I think whatever she said.” The
testimony then resumed for several minutes before Complainant again notified the
judge of her belief that the interpretation of her client’s testimony was inaccurate.
Complainant stated that the questions being asked of the witness and the witness’s
answers were not being interpreted correctly. At that point, Suh requested to be
recused from her interpreting duties and the judge granted that request.
5 Suh retired from the Court in 2021 and did not testify at the hearing.

8
During the investigatory meeting, Parrack explained the nature of the complaint,
showed Suh a copy of highlighted excerpts of the transcript of the January 14 hearing,
and proceeded to ask her a series of questions related to the complaint itself. Among
her responses during the investigatory meeting, Suh stated that she lost focus about
one hour into the January 14 hearing because she was experiencing severe back
pain, which caused her to make some interpretation mistakes.6
On May 7, Parrack issued Suh a written reprimand describing the complaint
and Parrack’s subsequent investigation. The reprimand concluded that Suh’s behavior
during the January 14 hearing violated Rule 2.890(b), the Professional Standards and
Ethics for California Court Interpreters, and Tenet Nine of the Code of Ethics for the
6 CFI excepted to this finding by the ALJ. We concur with the ALJ’s finding that
Suh admitted during the investigatory interview that she made mistakes at the
January 14 hearing, and that these mistakes included incorrect or incomplete
interpretation. While Santos’ testimony was not entirely consistent with Parrack and
Coombes on the extent to which Suh admitted to inaccurate interpretation during the
investigatory meeting, Santos’ notes from the investigatory meeting state that when
asked if her interpreting on January 14 was up to the standards of Rule 2.890(b), Suh
stated “There were unusual circumstances, I lost focus.” On cross-examination,
Santos further confirmed Suh admitted to mistakes:
“Q 	And do you recall that Ms. Suh indicated that she
had done all right initially, but after about an hour into the
hearing, her back began to hurt her and she was in quite a
lot of pain due to her back, and that that caused her to lose
focus, and thus, she made some mistakes?
“A 	Yes, I remember her saying that.
“Q 	And she actually said that more than once. She said
that two or three times when questioned, correct?
“A 	Yes.”

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Court Employees of California.7
Also during the first half of 2019, another complaint about an interpreter’s
services resulted in the Court taking disciplinary action, but the details of that
complaint and investigation are not part of the record. Nor does the record include the
specifics of two other complaints investigated by Parrack which did not result in
discipline. Before 2019, Parrack had never been involved in disciplinary action against
an interpreter for alleged inaccuracy. Parrack testified that CFI was not involved in the
three other investigations. Santos, in her role as a steward, was not aware of any prior
disciplinary actions for interpreter accuracy. In her role as an employee, the Court has
not tested or evaluated Santos for whether she provides accurate interpretation. She
also has not seen any process at the Court for determining whether an interpreter is
providing accurate interpretation. Ferreira similarly testified that he was not aware of
any discipline for interpreter inaccuracy in his region, and gave examples of discipline
issued by courts for insubordination, refusing to do unit work, misusing leave time, and
failing to “follow[] the different tenets that the Court has, for example, for honesty and
things of that nature.”
CFI’s Unfair Practice Charge
On September 16, CFI filed an unfair practice charge alleging the Court and
Region 4 unilaterally changed policy in violation of section 71825, subdivision (c), of
the Court Interpreter Act. The Court subsequently filed position statements in
response. On October 14, 2020, PERB’s Office of the General Counsel issued a
7 The record does not contain Tenet Nine of the Code of Ethics.

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complaint alleging that: (1) before May 7, 2019, the Court had a policy of not
evaluating interpreter employees on the accuracy of their interpretative work; (2) after
May 7, 2019, the Court changed this policy by “deciding to discipline bargaining unit
member(s) based on the accuracy of their interpretations” and by “issuing bargaining
unit member Janet Suh a written reprimand based on an alleged inaccuracy with an
interpretation”; (3) this conduct occurred without prior notice to CFI in violation of the
Court’s duty to bargain in good faith with CFI; and (4) the same conduct also interfered
with employee and employee organization rights in violation of the Court Interpreter
Act.
On November 2, 2020, the Court filed its answer to the complaint denying all
material allegations. When the matter did not resolve at an informal settlement
conference, PERB conducted a videoconference formal hearing on April 6, 2021. On
June 11, 2021, the parties filed closing briefs and the matter was submitted for
proposed decision.
The ALJ issued the proposed decision on October 29, 2021, dismissing the
complaint and underlying unfair practice charge because CFI failed to demonstrate
that the Court and/or Region 4 changed policy when it issued the reprimand to Suh.
CFI filed timely exceptions, challenging some of the ALJ’s factual findings as well as
the proposed decision’s legal conclusion, and asserting that it had established an
unlawful unilateral change. Respondents filed a timely response, urging the Board to
affirm the proposed decision.
DISCUSSION
The Board resolves exceptions to a proposed decision using a de novo

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standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.)
However, to the extent that a proposed decision has adequately addressed issues
raised by certain exceptions, the Board need not further analyze those exceptions.
(Ibid.) The Board also need not address alleged errors that would not impact the
outcome of the case. (Ibid.)
To establish a prima facie case that a respondent employer made an unlawful
unilateral change, a charging party union that exclusively represents a bargaining unit
must prove: (1) the employer changed or deviated from the status quo; (2) the change
or deviation concerned a matter within the scope of representation; (3) the change or
deviation had a generalized effect or continuing impact on represented employees’
terms or conditions of employment; and (4) the employer reached its decision without
first providing adequate advance notice of the proposed change to the union and
bargaining in good faith over the decision, at the union’s request, until the parties
reached an agreement or a lawful impasse. (Bellflower Unified School District (2021)
PERB Decision No. 2796, p. 9.)
Regarding the first element, there are three primary means of establishing that
an employer changed or deviated from the status quo: (1) a deviation from a written
agreement or written policy; (2) a change in established past practice; or (3) a newly
created policy or application or enforcement of existing policy in a new way.
(Bellflower Unified School District, supra, PERB Decision No. 2796, p. 10.)8
8 As addressed in further detail post, past practice can be used to establish the
status quo from which we assess an alleged unilateral change, and it can also be
used as an interpretive aid in assessing ambiguous written language.

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CFI’s exceptions, and the fundamental dispute between the parties, center on
the first element of the prima facie case: whether the Court changed the status quo
when it issued the reprimand to Suh. The proposed decision turned in part on the
ALJ’s finding that Suh admitted during the investigatory meeting that she had failed to
recuse herself and made mistakes in her interpretation during the January 14 hearing.
We agree that the facts in the record fail to establish that the Court altered the status
quo when it issued the reprimand, though we expand upon the ALJ’s analysis based
on the parties’ filings and our de novo review.
CFI premises its exceptions on its argument that in issuing Suh the reprimand,
the Court either added new criteria for discipline or established a new procedure for
evaluating interpreter accuracy. Disciplinary criteria and procedures, and procedures
for evaluating employee performance, are within the scope of representation and
subject to notice and meet-and-confer requirements. (See, e.g., Los Angeles Unified
School District (2017) PERB Decision No. 2518, pp. 15-20; Walnut Valley Unified
School District (1983) PERB Decision No. 289, p. 9.) While we find that the MOU, the
parties’ past practice, and existing policies do not foreclose discipline based on
inaccurate interpretation, we note that neither these documents nor the hearing
testimony demonstrate that the parties have established criteria or procedures the
Court uses to evaluate accuracy. Moreover, as found by the ALJ, the particular facts in
the record do not demonstrate that by issuing Suh the reprimand the Court has
adopted a new disciplinary criterion or procedure. The Court received a complaint
about Suh’s performance, it interviewed Suh regarding the complaint, and based on
Suh’s responses to the investigation, including her admission that she made mistakes,

13
it issued her a written reprimand.
CFI’s exceptions compare the circumstances here to Los Angeles Unified
School District, supra, PERB Decision No. 2518. There, the Board found that the
employer made a unilateral change in violation of the duty to bargain by instituting a
new rating system for measuring teachers’ performance and giving them feedback.
(Id. at p. 46.) In the instant record there is no evidence that the Court adopted a rating
system or other means of measuring interpreters’ performance. We affirm the ALJ’s
conclusion that Parrack did not have to make an unqualified determination regarding
the accuracy of Suh’s interpretation, because her investigation corroborated the
complaint when Suh admitted that she experienced physical pain during the January 14
hearing that caused her to lose focus and make mistakes.9 The record evidence does
not support CFI’s claims that the limited facts surrounding Suh’s reprimand constitute
new Court criteria on interpreter accuracy and discipline.10 The record also fails to
illuminate the circumstances of the contemporaneous discipline of another interpreter
based on a complaint about their interpretation, or of the other two complaint
investigations where no discipline resulted, sufficient to support finding that the Court
9 We do not find the parties’ arguments aimed at the truth of the allegations
contained in Suh’s reprimand particularly illuminating in these circumstances. For
example, while we do not discount that advocates at hearing may have tactical
reasons to object to an interpreter’s performance, such circumstances would not
overcome Suh’s admissions at the investigatory interview. Further, we note the
parties’ MOU specifically exempts written reprimands from the internal appeal
process.
10 That the interpreter evaluations in the record do not include a category for
interpreter accuracy is likewise of limited value in this context, as the investigation into
Suh and resulting reprimand do not involve a performance evaluation.

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had established criteria or a rating system for accuracy. Without new disciplinary
criteria or evaluation procedures, we turn to whether Suh’s reprimand otherwise
demonstrates a change in Court policy.11
CFI’s exceptions make three main arguments in support of finding the Court
changed its policy: (1) that the relevant MOU provisions do not include an agreement
that the Court may assess inaccuracy of interpretation as a basis for discipline; (2) that
the ALJ did not properly assess the evidence of past practice; and (3) that Rule 2.890
provides authority to the Judicial Council to issue discipline, not the Court. We
consider each argument in turn.
Deviation from MOU
Resolving whether Suh’s reprimand evidenced a change in policy by deviating
from the parties’ MOU requires us to interpret that MOU. Although PERB does not
resolve contract disputes, PERB may interpret contractual provisions as necessary to
resolve unfair practice allegations. (County of San Joaquin (2021) PERB Decision
No. 2775-M, pp. 39-40; Modoc County Office of Education (2019) PERB Decision
No. 2684, p. 15.) In Lodi Unified School District (2020) PERB Decision No. 2723
(Lodi), we held that the traditional rules of contract law guide interpretation of a
collective bargaining agreement between a public employer and a recognized
employee organization. (Id. at p. 12.) “A contract must be so interpreted as to give
11 CFI’s unfair practice charge, and the resulting complaint, do not allege that
the Court deviated from the status quo by using the complaint form or investigating the
complaint. CFI’s exceptions express some issue with the use of the complaint form,
but it failed to raise or brief whether this meets the requirements of the unalleged
violation doctrine. We have discretion to consider the unalleged violation doctrine sua
sponte, but we decline to do so in these circumstances.

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effect to the mutual intention of the parties as it existed at the time of contracting, so
far as the same is ascertainable and lawful.” (Ibid.) “[T]he whole of a contract is to be
taken together, so as to give effect to every part, if reasonably practicable, each
clause helping to interpret the other.” (Ibid.) Thus, the Board in Lodi held that we “must
avoid interpreting contract language in a way which leaves a provision without effect.”
(Ibid., citing State of California (Department of Corrections) (1999) PERB Decision
No. 1317-S, p. 9.) Additionally, we have held that “[w]here contractual language is
clear and unambiguous, it is unnecessary to go beyond the plain language of the
contract itself to ascertain its meaning.” (Lodi, supra, PERB Decision No. 2723, p. 12,
citing Civ. Code, § 1638; Marysville Joint Unified School District (1983) PERB
Decision No. 314, p. 9.)
CFI argues that Article 6’s general provision, which requires that disciplinary
action must be for fair and honest cause in good faith, does not reflect any mutual
agreement to include alleged inaccuracy of interpretation as a criterion for discipline.
CFI argues that a broad provision allowing discipline for cause cannot signify an
agreement that an employer can adopt any new criteria for discipline without prior
notice and opportunity to bargain.
We consider Article 6 in concert with the other relevant provisions of the MOU,
because we interpret the provisions of an agreement together, “so as to give effect to
every part, if reasonably practicable, each clause helping to interpret the other.”
(Civ. Code, § 1641.) Article 6 itself requires that discipline be “for cause,” which that
provision defines as “a fair and honest cause or reason regulated by good faith.” The
plain language indicates that the parties agreed to use broad language which can

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cover an array of disciplinary subjects rather than a detailed list of more specific
causes of discipline.
Article 20 requires Court interpreters to “perform their duties in accordance with
the Judicial Council’s Rules for Professional Conduct for interpreters.” Article 20
incorporates the Judicial Council’s Rules for Professional Conduct, and the parties
stipulate that in current practice, that includes Rule 2.890. Rule 2.890(b), titled
“Complete and accurate translation,” states that interpreters should use their best
“skills and judgment” to interpret “accurately without embellishing, omitting, or
editing[,]” and that when interpreting a witness’s testimony, the interpreter “must
interpret everything that is said during the witness’s testimony.” (Cal. Rules of Court,
rule 2.890(b).) The subheadings of Rule 2.890 also include a variety of other conduct
and performance related factors such as “Impartiality and avoidance of conflicts of
interest,” “Confidentiality of privileged communications,” “Assessing and reporting
impediments to performance,” and “Duty to report ethical violations.” (Cal. Rules of
Court, rule 2.890(c), (d), (h), & (i).) Article 20 specifically notes that interpreters are
bound by Rule 2.890, and the parties’ MOU therefore requires interpreters to follow
this specific set of rules that explicitly include complete and accurate translation.
Article 20 also notes a facet of Rule 2.890 which shall not result in discipline: “An
interpreter may not be disciplined for informing the Judicial Officer, in an appropriate
manner, of conditions that impede his/her ability to perform complete and accurate
interpretation or sight translation.” Reading these provisions together, the plain
language indicates that “cause” includes an interpreter failing to perform their duties in
accordance with the Judicial Council’s Rules for Professional Conduct, including

17
complete and accurate interpretation.
CFI cites Fairfield-Suisun Unified School District (2012) PERB Decision
No. 2262 (Fairfield-Suisun) to support its contention that Article 6 and Article 20 do not
contemplate discipline due to alleged inaccuracy because they do not state it with
particularity. But Fairfield-Suisun is distinguishable on its facts, and does not stand for
the proposition CFI cites. There, the parties’ MOU required progressive discipline, with
exceptions for safety and emergency. (Id. at pp. 3-4.) Without notifying the union, the
employer adopted a zero-tolerance policy for employees in some classifications who
refused random drug testing, and later disciplined an employee based on this
zero-tolerance policy without following the MOU’s progressive discipline provisions.
(Id. at pp. 5-8.) The Board concluded that the district’s zero-tolerance policy exceeded
the scope of the exceptions in the parties’ MOU, and therefore changed the parties’
negotiated progressive discipline policy. (Id. at p. 12.) The Board found that refusing
drug testing did not fall within the exceptions for safety or emergency, and thus the
District unilaterally changed its contractual employee discipline policy by establishing
and enforcing a zero-tolerance policy without meeting and negotiating. (Id. at pp. 12,
18.)
According to CFI, the circumstances here are analogous with Fairfield-Suisun,
because the agreement that discipline shall be for cause does not constitute
agreement that an employer can simply adopt new criteria. But in Fairfield-Suisun, the
Board did not interpret a broad good cause provision, and the Board’s interpretation of
the specific safety and emergency exceptions to progressive discipline for those
parties has no bearing on what might constitute cause under CFI and the Court’s

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MOU. The MOU does not define “cause,” or provide any list of examples. But by its
plain language, Article 6’s requirement that discipline be for “fair and honest cause,”
read with Article 20 and the incorporated standards of Rule 2.890, encompasses
components of interpreter job performance, including accurate and complete
interpretation. Therefore, there was no change in status quo as set by the MOU.
Past Practice
CFI also argues that the parties’ past practice supports the proposition that
Suh’s reprimand constituted a change in Court policy. It is not clear whether CFI relies
on past practice to establish a firm policy, or to support reading the contract language
to exclude inaccurate interpretation as a cause for discipline. We find CFI would not
prevail under either theory.
Past practice can be used to establish the status quo from which we assess an
alleged unilateral change, and it can also be used as an interpretive aid in assessing
ambiguous written language. In the former instance, a past practice establishes the
status quo only if it was “regular and consistent” or “historic and accepted.” (County of
Merced (2020) PERB Decision No. 2740-M, p. 13, fn. 9.) However, the inquiry is
fundamentally different when analyzing the parties’ past practice to help ascertain the
meaning of ambiguous contract language. (Antelope Valley Community College
District (2018) PERB Decision No. 2618, p. 21.) In such circumstances, the past
practice is but one tool for interpreting the contract, and therefore need not be as
definitive as when it is defining the status quo in the absence of a contract term. (Id. at
p. 22.)

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In arguing that the Court changed its past practice, CFI relies on testimony from
Santos and Ferreira that the ALJ omitted from the proposed decision. Both Santos
and Ferreira confirmed that, to their knowledge, the Court had not disciplined any
represented employees for alleged inaccuracy of interpretation before Suh. But this
testimony is insufficient to meet the burden of showing a “regular and consistent” or
“historic and accepted” practice. Santos, for example, testified that the Court has not
tested or evaluated her for whether she provides accurate interpretation, nor has she
seen any process at the Court for determining whether an interpreter is providing
accurate interpretation. But neither of these statements stand in contrast to Suh’s
reprimand. Suh was shown the transcript and asked about her performance at the
January 14 hearing. She was not tested or evaluated on her accuracy when the Court
investigated the complaint, nor did the Court engage in a process to determine whether
her interpretation was accurate, other than asking her about it and relying on her
admissions that she made mistakes at the January 14 hearing. Further, it is undisputed
that CFI is not involved in every disciplinary action, including the three other recent
complaints Parrack investigated. Santos and Ferreira’s lack of knowledge of discipline
based on interpreter performance does not establish a Court policy that interpreters
will not be disciplined based on the inaccuracy of their interpretation, and is insufficient
to establish a regular and consistent past practice.
We also consider whether evidence of the parties’ past practice helps interpret
ambiguities in the MOU. As we have already noted, we find that the MOU’s plain
language incorporates Rule 2.890 into cause for discipline. Assuming for the sake of
argument that there is some ambiguity about whether inaccurate interpretation can be

20
considered cause for discipline under Article 6, the evidence of past practice does not
provide clarification. Ferreira testified that in the past, interpreters were disciplined for
other types of conduct which also do not have specific criteria or standards embedded
in Article 6, but are incorporated into Rule 2.890, such as failing to follow the Court’s
tenets for honesty. (See Cal. Rules of Court, rule 2.890(a).) CFI was not involved in
the three other recent complaint investigations, so the testimony of CFI’s witnesses is
insufficient to establish that their lack of knowledge of discipline for inaccurate
interpretation means the MOU should be interpreted to bar disciplining interpreters for
failing to comply with Rule 2.890(b). Rather, as discussed ante, Article 6 incorporates
Rule 2.890 as causes for discipline. Thus, the past practice evidence comports with
the plain language of the MOU, and there is no contrary evidence suggesting a
different interpretation.
New Application or Enforcement of Existing Policy
“PERB has always recognized newly created, implemented or enforced policy
as subject to its unilateral action doctrine.” (Pasadena Area Community College
District (2015) PERB Decision No. 2444, p. 12, fn. 6.) CFI argues that the Judicial
Council, not the Court, retains sole discretion to discipline employees based on
violations of Rule 2.890. In support of this contention CFI relies on Rule 2.891, which
provides that a certified or registered court interpreter may be subject to a credential
review by the Judicial Council due to a complaint “alleging professional misconduct or
malfeasance.” (Cal. Rules of Court, rule 2.891(b) & (c)(1).) CFI argues that the words
“misconduct or malfeasance” limit the complaint process to conduct issues, such as
disclosing attorney-client communications or failing to disclose a conflict of interest.

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CFI further argues that to the extent the complaint process encompasses complaints
about inaccurate interpretation, the Rule states that the Judicial Council, not the
employer court, “has authority to review a credentialed interpreter’s performance,
skills, and adherence to the professional conduct requirements of Rule 2.890, and to
impose discipline on interpreters.” (Cal. Rules of Court, rule 2.891.) But CFI ignores
that Rule 2.891 also explicitly states that “[n]othing in this rule prevents an individual
California court from conducting its own review of, and disciplinary process for,
interpreter employees under the court’s collective bargaining agreements, personnel
policies, rules, and procedures.” (Cal. Rules of Court, rule 2.891(b).) Rule 2.891 by its
plain language applies to credential reviews by the Judicial Council, and does not
prohibit court-level discipline. Because the MOU incorporates Rule 2.890 into its
causes for discipline, we do not find persuasive CFI’s argument that only the Judicial
Council has authority to discipline interpreters relative to their interpretive accuracy.
Thus, CFI fails to demonstrate the Court enforced this policy in a new way.
In conclusion, CFI has not established a deviation from the MOU, violation of
past practice, or enforcement of its disciplinary criteria or procedures in a new or
different way based on the limited evidence in the record. We therefore affirm the
conclusion that CFI failed to demonstrate that the Court changed policy when it issued
the reprimand to Suh, and thus failed to establish a prima facie case of a unilateral
change in violation of the Court Interpreter Act, section 71825, subdivision (c).
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-37-I
are DISMISSED.

Chair Banks and Member Shiners joined in this Decision.

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