Superior Court of Fresno Cnty. v. Pub. Emp't Relations Bd.

• Decision Date: 14 December 2018
• Docket Number: F075363
• Citation: 241 Cal.Rptr.3d 554,30 Cal.App.5th 158
• Court: California Court of Appeals Court of Appeals
• Parties: The SUPERIOR COURT OF FRESNO COUNTY, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; Service Employees International Union, Local 521, Real Party in Interest.

30 Cal.App.5th 158

241 Cal.Rptr.3d 554

The SUPERIOR COURT OF FRESNO COUNTY, Petitioner,

v.PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent;

Service Employees International Union, Local 521, Real Party in Interest.

F075363

Court of Appeal, Fifth District, California.

Filed December 14, 2018

Wiley Price & Radulovich, Joseph E. Wiley and Suzanne I. Price, Alameda, for Petitioner.

J. Felix De La Torre, Wendi L. Ross, Sacramento, and Brendan P. White for Respondent.

Weinberg, Roger & Rosenfeld, Kerianne R. Steele, Alameda, and Anthony J. Tucci for Real Party in Interest.

OPINION

Hill, P.J.

In this original proceeding, the Superior Court of Fresno County (Court) challenges a decision by the Public Employment Relations Board (PERB) that certain Court personnel rules and regulations (Personnel Rules) violate the Trial Court Employment Protection and Governance Act (Trial Court Act) ( Gov. Code, § 71600 et seq. )¹ and, thus, constitute unfair practices. The initial administrative proceedings were brought by Service Employees International Union Local 521 (Union) after Court adopted new Personnel Rules affecting Union members. Respondent PERB is a quasi-judicial agency of the State of California charged with administering the provisions of the Trial Court Act. (§ 71639.1.) Union, the real party in interest, is and at all relevant times has been the "recognized employee organization" representing employees of Court. (§ 71691, subd. (h).)

The Personnel Rules in question prohibit Court’s employees from (1) wearing clothing or adornments with writings or images, including pins, lanyards and other accessories; (2) soliciting during working hours for any purpose without prior Court approval; (3) distributing literature during nonworking time in working areas; and (4) displaying writings or images not published by Court in work areas visible to the public. Relevant to the issues raised in this writ, PERB found several aspects of the rules improper with respect to Union members and thus constitute unfair practices. PERB concluded rules prohibiting employees from wearing certain clothing anywhere in the courthouse and from displaying images that are not published by Court in work areas visible to the public overly broad and interfered with rights protected by the Trial Court Act. It also determined the restriction on soliciting during work hours and the ban on distributing literature in working areas were ambiguous and overly broad. Relatedly, PERB considered and upheld its authority to remedy these violations and ordered Court to rescind the rules.

The case now reaches this court via writ proceedings. Within the many issues raised are important questions regarding Court’s authority to impose workplace rules to ensure Court appears impartial in all cases it hears and PERB’s authority to impose remedies for the perceived violations in Court’s workplace actions. As set out more fully below, we find Court has a substantial interest in regulating its workforce to ensure that the judicial process appears impartial to all appearing before it. Under the existing law and the facts presented regarding interactions with the public in the relevant courthouses, this interest is sufficient to justify the broad restrictions on employee clothing adopted in this case. Furthermore, we conclude, contrary to PERB’s findings, that the bans on soliciting during working hours and displaying images in areas visible to the public are not ambiguous and thus were properly adopted. However, we do agree with PERB that the regulations prohibiting the distribution of literature in working areas is ambiguous as to the meaning of "working areas." In line with this conclusion, we agree with PERB that separation of powers concerns do not prohibit PERB from imposing a remedy with respect to that regulation.

We therefore affirm PERB’s decision invalidating the rule prohibiting the distribution of literature but otherwise set aside PERB’s remaining conclusions.

FACTUAL AND PROCEDURAL BACKGROUND

In general terms, this case is a dispute between Court and its employees. Court had approximately 550 employees at 11 facilities. Union is the exclusive representative of Court’s employees. Represented employees include approximately 63 office assistants, 200 judicial assistants, five account clerks, 42 court reporters and 14 marriage and family counselors. The employees work in various areas, including courtrooms, customer service windows, workstations behind customer service windows, offices near judges’ chambers, and separate offices. These work areas are visible to the public in varying degrees. Moreover, many employees regularly move throughout the courthouse as part of their duties, either going to and from courtrooms and judicial chambers, transferring files, or traveling in public areas and on public elevators for official business. They may even travel between courthouse buildings. Other employees, such as clerks and court reporters, work within courtrooms and travel between different courtrooms. Finally, some relevant employees work as counselors, meeting with the public as part of their duties and traveling throughout the courthouse and their offices in view of the public.

Adoption of Personnel Rules

In 2009, representatives of Court met and conferred with representatives of Union on four occasions to discuss proposed amendments of Court’s Personnel Rules. No agreement was reached as to the provisions disputed in this proceeding. Regardless, Court chose to implement the new Personnel Rules, including the disputed provisions, on December 1, 2009, and included them in Court’s "Personnel Manual Amended 2009." The disputed provisions are parts of Personnel Rules 1.11 (Dress and Appearance) and 17.3 (Solicitation and Distribution Policy).

Personnel Rule 1.11 sets forth the general requirement that "Court employees must dress in a professional, business-like manner" and provides a list of items employees may not wear, such as jean pants, slippers, tennis shoes and casual sandals. In addition, Court’s employees may not wear "[c]lothing and/or adornments with writings or images, including but not limited to pins, lanyards, or any other accessories (except for Court-approved clothing and/or adornments bearing the Court logo)."²

Personnel Rule 17.3 sets forth the rules that apply to employee activity on Court’s property involving: (1) solicitations; (2) distribution of literature; and (3) displays of writings or images. Personnel Rule 17.3.1 contains a lead-in sentence followed by four paragraphs containing restrictions. The first of these four paragraphs addresses solicitations by employees while on Court’s property by stating:

"[1] Employees of the Court may not solicit during working hours for any purpose unless pre-approved by the CEO [Court Executive Officer]. Working time is defined in the following section." (Italics added.)

The "following section" is Personnel Rule 17.3.2, which defines "working time" as follows:

"Working time includes the working time of both the employee doing the soliciting and distributing and the employee to whom the soliciting is being directed. Working time does not include break periods, meal periods, or any other specified periods during the workday when employees are properly not engaged in performing their work tasks."

The second and third paragraphs following the lead-in sentence of Personnel Rule 17.3.1 address the distribution of literature by employees by stating:

"[2] Employees of the Court may not distribute literature during working time for any purpose. Working time is defined in the following section.

"[3] Employees of the Court may not distribute literature at any time for any purpose in working areas."

The second paragraph’s prohibition of distributions is limited to "working time."

As a result, the practical reach of the third paragraph’s "any time" prohibition is limited to distributions that occur during nonworking time . Those nonworking time distributions are barred "in working areas."

The fourth paragraph of Personnel Rule 17.3.1 addresses the display or writing and images by employees on Court’s property: "[4] Employees of the Court may not display writings or images that are not published by the Court in work areas that are visible to the public."

In sum, these provisions prohibit employees from (1) wearing clothing or adornments with writings or images, including pins, lanyards and other accessories; (2) soliciting during working hours for any purpose without prior Court approval; (3) distributing literature (a) during working time and (b) during nonworking time in working areas; and (4) displaying writings or images not published by Court in work areas visible to the public.

Evidence Regarding the Code of Ethics for Court’s Employees

In addition to the disputed regulations, Court presented evidence demonstrating that employees were already subject to a code of ethics for court employees. The Code of Ethics for the Court Employees of California (Code of Ethics) contains an introductory paragraph that states in part:

"A fair and independent court system is essential to the administration of justice in a democratic society. Exemplary conduct by court employees inspires public confidence and trust in courts, and conveys the values of impartiality, equity, and fairness that bring integrity to the court’s work. Further, court employees are expected to adhere to a high standard of ethical behavior."

The Code of Ethics contains 12 tenets. The first tenet directs Court’s employees to "[p]rovide impartial and evenhanded treatment of all persons." Other tenets address how Court’s employees should appear to members of the public. For instance, the sixth tenet directs Court’s employees to "[a]void any appearance of impropriety that might diminish the integrity and dignity of the court." The seventh tenet directs Court’s employees serving the public to provide accurate information about court processes without "appearing to favor one side of a case."

The Code...