Department of Personnel Admin. v. Ccpoa

• Decision Date: 29 June 2007
• Docket Number: C051636.
• Citation: 152 Cal.App.4th 1193,62 Cal.Rptr.3d 110
• Court: California Court of Appeals Court of Appeals
• Parties: DEPARTMENT OF PERSONNEL ADMINISTRATION et al., Plaintiffs and Respondents, v. CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION, Defendant and Appellant.

62 Cal.Rptr.3d 110

152 Cal.App.4th 1193

DEPARTMENT OF PERSONNEL ADMINISTRATION et al., Plaintiffs and Respondents, v. CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION, Defendant and Appellant.

C051636.

Court of Appeal, Third District.

June 29, 2007.

Certified for Partial Publication^*

Carroll, Burdick & McDonough, Ronald Yank, Gregg McLean Adam, Tricia E. Weaver, Jennifer S. Stoughton, San Francisco; Benjamin C. Sybesma, Sacramento, and Christine Albertine, Rancho Cucamonga, for Defendant and Appellant.

K. William Curtis, Warren C. Stracener, James C. Spurling and Wendi L. Ross, Sacramento, for Plaintiffs and Respondents.

SCOTLAND, P.J.

In this appeal, the California Correctional Peace Officers Association (CCPOA) claims that the superior court erred in vacating an arbitrator's award on the ground that the arbitrator exceeded her powers in making the award. (Code Civ. Proc., § 1286.2, subd. (a)(4).)

An arbitrator exceeds his or her powers if the arbitration award violates a statutory right or otherwise violates a well-defined public policy. (Jordan v. Department of Motor Vehicles (2002) 100 Cal. App.4th 431, 443, 123 Cal.Rptr.2d 122.) That occurred here, as we will explain in the published part of this opinion, when the arbitrator determined that a written collective bargaining memorandum of understanding (MOU) between CCPOA and the Department of Personnel Administration (DPA) did not comport with the parties' actual agreement.

The arbitrator reformed the MOU after it had been ratified and approved by the Legislature pursuant to the Ralph C. Dills Act (Dills Act). (Gov.Code, § 3524 [formerly known as the State Employer-Employee Relations Act) (Gov.Code, § 3512 et seq.].) In changing the terms of the MOU after it was approved by the Legislature, the arbitrator exceeded her powers by violating the Dills Act and the important public policy of legislative oversight of state employee contracts.

Accordingly, we shall affirm the superior court's order granting DPA's petition to vacate the arbitration award.

In the unpublished part of our opinion, we address CCPOA's other arguments, which are of no benefit to CCPOA in light of our conclusion that the award exceeded the arbitrator's power.

FACTS

This appeal arises from a dispute concerning the terms of an MOU negotiated in 2001 between DPA and CCPOA, which is the exclusive representative for employees in Bargaining Unit 6. The dispute centers on section 10.13 of the MOU concerning the release time bank (RTB), which permits employees to contribute hours of paid leave for the use of other employees "to conduct bona fide [CCPOA] business."

The "Ground Rules" governing the contract negotiations provided in pertinent part: "6. All proposals by both parties shall be made by the respective chief negotiators only at the Master Bargaining Table and shall be reduced to writing before any tentative agreements are reached. When a proposal is passed to modify or change the existing Bargaining Unit 6 [MOU] language, the parties agree to indicate new language by underlining additions to the MOU. When a proposal is passed to delete language from the existing MOU, the parties agree to indicate language proposed to be deleted by placing strikeouts through the existing MOU language. . . . [¶] 7. Oral or written understandings reached outside the Master Bargaining table shall not bind either side nor shall such understandings constitute `bargaining history' for any proposal."

On September 12, 2001, CCPOA passed a proposal regarding section 10.13(A) of the MOU. As proposed by CCPOA, accepted by DPA, and memorialized in the MOU, section 10.13(A) states: "A CCPOA release time bank shall be established to which employees may contribute any earned leave credits, with the exception of sick leave. The contributions shall be in two (2) or more hour increments. Contributions in fractions of hours will not be allowed. Credit may not be transferred between departments. Contributions to the release time bank shall be computed once a month, provided they are received by the second Friday of that month."

Prior contracts entered into by CCPOA and DPA, and approved by the Legislature, included a 10,000-hour cap on accumulated leave in the RTB. CCPOA's proposal struck the following language from section 10.13(A): "An employee may only make one (1) donation between July 1 and December 31, and one (1) donation between January 1 and June 30, during the contract year. A maximum of ten thousand (10,000) hours may be credited and used by CCPOA during the above contract year. The ten thousand (10,000) hours shall be divided in proportion to each department's (CDC/CYA/DMH) unit membership, i.e., fifty-eight hundred (5,800) hours, CDC; and forty-two hundred (4,200) hours, CYA."

Thus, the parties not only eliminated from section 10.13(A) the limitations on contributions to the RTB and the manner in which the 10,000-hour cap was split between departments, they eliminated the 10,000-hour cap altogether. However, CCPOA did not submit a written proposal to eliminate a similar cap in section 10.13(B), which sets forth the procedures for employees to contribute hours of leave to the RTB. Section 10.13(B) of the MOU states in relevant part: "In no case shall CCPOA accumulate or use more than ten thousand (10,000) CTO and/or vacation hours from the bank during the term of this MOU." The term of the MOU is from July 1, 2001, through July 2, 2006.

Pursuant to the Dills Act, the MOU was submitted to the Legislature for its approval. (Gov.Code, §§ 3517, 3517.5, 3517.61.) The enrolled bill report states the MOU will "[p]rovide [a] mutually agreed upon amount of employee release time annually for activity related to collective bargaining...." (DPA Director, Enrolled Bill Rep. on Sen. Bill No. 65 [January, 14, 2002].) There is no mention of eliminating the 10,000-hour cap.

On May 20, 2005, DPA wrote a letter to CCPOA, stating a review of the RTB between 2002 and 2006 disclosed that the release time used by employees exceeded the limits set forth in section 10.13(B) of the MOU. DPA said: "Our review has shown that CCPOA has used a total of 122,387 hours (CDC and YA combined) since the enactment of the current MOU, or 112,387 hours more than the 10,000 hours authorized by Section 10.13. The amount of release time used exceeds the limits of the clear language contained in Section 10.13. [¶] Obviously, both parties (CCPOA and the State) have been remiss in monitoring the use of Section 10.13. Nevertheless, the 10,000 hour cap established in Section 10.13 has been greatly exceeded and there is now no authority to continue releasing CCPOA representatives under this section of the MOU. [¶] Therefore, any future request for both donations and release time pursuant to Section 10.13 must be denied, and any CCPOA representative currently on Section 10.13 release time must return to state employment no later than June 6, 2005."

Contending the 10,000-hour cap did not apply, CCPOA demanded immediate arbitration of the matter, pursuant to the arbitration provision of the MOU.

At the arbitration hearing, CCPOA asserted that the parties agreed to eliminate the 10,000-hour cap but, due to a scrivener's error, they modified only section 10.13(A) and neglected to modify section 10.13(B). CCPOA presented evidence that in 1997, during a period when there was no collective bargaining agreement in place, DPA permitted CCPOA to accumulate more than 10,000 release time hours in the RTB. CCPOA wanted to continue this practice and drafted a "side letter" to section 10.13, in which the parties agreed "to not enforce the caps of 10,000, 5,800 (CDC), and 4,200 (CYA) hours, and will continue to allow employees to make more than one contribution in either of the two six-month periods of time." DPA and CCPOA signed the side letter on September 19, 1997. According to CCPOA, the parties intended to incorporate the side letter agreement into the MOU by amending the terms of the MOU to eliminate the 10,000-hour cap.

DPA responded that the side letter agreement no longer was relevant in light of the parties' subsequent contrary agreement in the MOU. They agreed only to eliminate the departmental limits between the release time available for CDC and CYA, which limits existed in prior agreements, but did not address the 10,000-hour cap in section 10.13(B). According to DPA, it might have been remiss in enforcing the cap in the past but that did not preclude it from insisting on compliance with the contract language, which unambiguously establishes a cap.

CCPOA's chief negotiator, Steve Weiss, testified that it was the union's intent to remove the cap and, in attempting to do so, he shared the 1997 side letter agreement with the negotiators. CCPOA passed the proposal with the language about a cap stricken out of section 10.13(A), and after a brief discussion off the record, the parties signed the tentative agreement. According to Weiss, he did not realize that the language about a cap appeared in the contract twice, and he erred in failing to remove it from section 10.13(B).

Linda Buzzini, the lead spokesperson for DPA, testified that the parties discussed removing the cap; she recalled agreeing to CCPOA's demand, and the proposal eliminating the cap from 10.13(A) reflected their agreement. Buzzini could not recall if these discussions, which are not reflected in the bargaining notes, occurred away from the bargaining table. She testified that she never received a proposal from CCPOA about section 10.13(B).

The arbitrator ruled that the weight of the evidence disclosed the parties mutually agreed, off the record but at the bargaining table, to remove the 10,000—hour cap. The arbitrator found that it was "highly unusual in a vigorously contested case like this to have the spokesperson for both union and management so clearly and consistently articulate the parties' mutual intent." Moreover, she concluded, elimination of the cap was...