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Bernardino Public Employees Association and
Court of California San
Arbitrator: Allen Pool
Citation: 2004 NAC 101
ALLEN POOL, Arbitrator
Case No. 10-21-03
ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES
Bernardino Public Employees Association
Court of California
Court Reporters Reimbursement
This Arbitration arose pursuant to Agreement between the San Bernardino
Public Employees Association, hereinafter referred to as the “Association”,
and the Superior Court of California County of San Bernardino, hereinafter
referred to as the “Court”, under which C. ALLEN POOL was selected by the
parties to serve as the Arbitrator. The
Parties stipulated that the matter was properly before the Arbitrator and that
his decision shall be final and binding.
hearing was held in the City of San Bernardino on October 21, 2003 at which time
the parties were afforded the opportunity, of which they availed themselves, to
examine and cross-examine witnesses and to introduce relevant evidence,
exhibits, and argument. The
witnesses were duly sworn and no transcript was made of the hearing.
Written closing arguments were timely received and then exchanged between
the parties via the Arbitrator on November 29, 2003 at which time the record was
San Bernardino Public Employees Association
433 North Sierra Way
San Bernardino, Calif. 92404
N. Freifeld, Esq.
Price & Radulovich, LLP
1301 Marina Village Parkway, Suite 310
Alameda, Calif. 94501
Whether the Court violated the “Tuition Reimbursement and Membership Dues”
article of the Memorandum of Understanding (MOU) by its denial of CCRA and/or
COCRA reimbursement requests by Grievants Laura Echols, Peggy Ogaz, and Leisha
Hendrix; and if so, what shall be the remedy?
PROVISION OF THE AGREEMENT
Reimbursement and Membership Dues
conjunction with SBPEA, the Court has established for each representation unit a
tuition reimbursement and membership dues procedure to encourage all employees
to purse educational opportunities and involvement in
organizations to enhance their contribution as Court employees and assist
in their career development. Both
parties recognize the importance of continued quality improvement and strongly
encourage the utilization of opportunities assisted by this Article.
Tuition funding and reimbursement programs shall be administered by the
Court Personnel Manager.
Unit member shall receive tuition reimbursement in excess of the limitation
determined by the Internal Revenue Service.
Eligibility for reimbursement is contingent upon an approved course or
seminar, completed with, where applicable, a grade of “C” or better or
“pass” when taken on a pass/fail basis, except in extenuating circumstances
where such a situation as verifiable illness prevents an individual from
completing a course.
2. Support Services and Supervisory
Court will establish a fund of $10,000 on each July 1 and January 1 for use by
employees in a regular position in the Support Services and Supervisory Units
with a least twelve (12) months of Court service.
This fund will be administered by the Court Personnel Unit and will be
available for use on a first-come, first-served basis for 100% reimbursement of
tuition and community college registration fees for career development courses
or to reimburse membership dues in professional organizations; provided such
expenditure enhances furtherance of Court goals and is previously approved by
the Court Personnel Unit.
3. Management Unit
Court agrees to budget five hundred dollars ($500.00) each fiscal year for each
employee in a regular position budgeted more than forty (40) hours per pay
period to reimburse employees for tuition costs incurred for job-related
education or career development or for the payment of membership dues in
professional organization(s); providing such expenditure enhances furtherance of
Court or continuing education goals. Approved
memberships may be paid for directly by the Court at the employee’s request or
the employee may be reimbursed.
for such reimbursement must be approved in advance by the Court Personnel
Manager or designee and shall not be paid increments less than ten dollars
($10.00) per fiscal year.
4. Professional Unit
Court agrees to budget five hundred dollars ($500.00) each fiscal year, for each
employee in a regular position budgeted more than forty (40) hours per pay
period to reimburse employees for tuition costs incurred for job-related
education or career development or to reimburse membership dues in professional
organization(s); provided such expenditure enhances furtherance of Court or
continuing education goals.
Court agrees to reimburse employees for required certificates and the mandatory
portion of State Bar dues.
for reimbursement must be approved in advance by the Court Executive Officer or
designee and shall not be paid in increments less than 10 dollars ($10.00) per
fiscal year. Employee initiated
education or career development shall not be considered as time actually worked
for purposes of computing overtime and normally shall not occur during regular
work hours except that which has prior approval of the Court Executive Officer
backdrop against which the dispute in this matter evolved and which led to this
arbitration was California’s budget crisis of the Fiscal Year 2002-2003.
As was well known, the budget crisis had a significant impact on the
entire State including the California State Court System of which the San
Bernardino County Superior Court is a part and was not immune to the effects of
the crisis. Specifically, the
crisis prompted efforts by the state court system to find ways to conserve
resources and to increase revenues for the remainder of FY 2002-03 and for FY
In January of 2003, the State Judicial Council under the leadership of
the Chief Justice of the Supreme Court put forth several recommendations for
conserving resources and increasing revenues for remainder of FY 2002-03 and for
FY 2003-04. Included were two
recommendations that figured prominently in the instant case.
One was a proposal for legislation that would allow the state court
system greater use of electronic recording of trial court proceedings. According
to the Council, the estimated saving would amount to $36.5 million dollars.
The second was a recommendation for legislation that would give the trial
courts ownership of court reporting transcripts/transcriptions.
The estimated saving was placed at $5.5 million dollars.
Both the California Court Reporters Association (CCRA) and the California
Official Court Reporters Association (COCRA) came out in opposition to the
Judicial Council’s recommendations.
Both organizations also actively lobbied the state legislature against
the enactment of Judicial Council’s recommendations for legislation allowing
greater use of electronic recording of court proceedings and for trial court
ownership of court reporting transcripts/transcriptions.
In May of 2003, the Judicial Council’s proposals were defeated in the
Assembly’s Budget Committee, the Assembly, and in the Senate.
Sometime in February of 2003 the San Bernardino County Superior Court
became aware of the lobbying efforts of the CCRA and the COCRA to defeat passage
of the Judicial Council’s proposals concerning electronic recording and
ownership of transcripts. The
Court’s Chief Executive Officer, acting on the belief that tuition and dues
money from the two organizations was being used for purposes that did not
further the interests of the Courts goals, began denying reimbursement
applications for organizational dues and for tuition costs of seminars/workshops
sponsored by the two organizations.
On February 26, 2003 Peggy Ogaz applied for reimbursement for dues paid
to CCRA, $125.00. Her application
was denied. At the same time, Ms.
Ogaz also applied for reimbursement of the tuition costs for two seminars
sponsored by CCRA, $118.00. Those applications were also denied (Jt-2).
On February 13, 2003, Laura Echols applied for reimbursement of dues paid
to CCRA, $125.00. On March 5, 2003,
Ms. Echols was notified that her application not approved.
The reason given was the Court’s belief that membership dues for CCRA
included money for political activities (Jt-3).
On May 6, 2003, Leisha Hendrix applied for reimbursement of membership
dues paid to CCRA ($125.00) and to COCRA ($85.00).
Both applications for reimbursement were not approved.
The first was not approved on July 3, 2003. The reason given was “Organization dues support professional
lobbying”. The second was not
approved on June 3, 2003. The
reason given was “Lobbying activities supported” (Jt-1).
Grievances were filed by the three unit members Ms. Ogaz, Ms. Echols, and
Ms. Hendrix and were processed to this arbitration.
OF THE ASSOCIATION
The Court violated the Tuition and Membership Dues Reimbursement article
of the MOU when it denied reimbursement of tuition and or membership dues for
the Court Reporters, i.e. Laura Echols, Peggy Ogaz, and Leisha Hendrix. The
Court violated the application and intent of the language in the article. Both
the California Court Reporters Association (CCRA) and the California Official
Court Reporters Association (COCRA) are professional organizations with the goal
of improving and assisting court reporters in their career development.
The language of the MOU strongly encourages employees to utilize the
assisted opportunities and to pursue involvement in organizations that enhance
their contributions to the Court as employees and assist in their career
The MOU has no criteria for denial of tuition or dues reimbursement based
on political activities. The Court
was not concerned with the political activities of CCRA and COCRA until
legislation was proposed in early 2003 calling for the expanded use of
Electronic Recording in trial courts and the a change in ownership of
The grievance should be sustained and Court should be ordered to
immediately reimburse tuition fees
and membership dues to the grievants and any and all other reimbursements
requested by court reporters submitted prior to this arbitration award.
OF THE EMPLOYER
Court did not violate the Tuition Reimbursement and Membership Dues article of
the MOU with its denial of CCRA and/or COCRA reimbursement requests by grievants
Laura Echols, Peggy Ogaz, and Leisha Hendrix.
The language of the MOU is plain and the intent is obvious. The Court has
wide and broad discretion in determining whether to approve or not to approve
requests for reimbursement of tuition and membership dues.
The language allows the Court to unilaterally deny reimbursement if the
requested expenditure does not further Court goals.
Reimbursement is allowed only if the “expenditure enhances furtherance
of Court Coals”.
The Grievants requested reimbursement for expenditures to organizations
that actually opposed court fiscal goals. The
goals of CCRA and COCRA are in direct conflict with the Court’s goals. They aggressively opposed the Court’s interest in
alleviating the State’s funding reduction via the expanded use of Electronic
Recording and ownership of transcripts. The
Court did not abuse its discretion. The
Court reasonably denied the Grievants requests for
reimbursement of expenditures to support the lobbying activities of CCRA
and COCRA. The Grievance should be
focus of this case was the application and intent of the MOU’s article
relating to reimbursement of tuition fees and organizational dues.
The article was only one of many included in their first MOU, a four-year
agreement reached in March 2001. It
should be noted that this was a time before the emergence of California’s
budget crisis which served as a backdrop in this dispute.
Collective bargaining agreements like other contracts are never complete.
Unfortunately, gaps are frequently present.
Because of this, application of the terms of the agreement necessitates
good faith efforts on the part of both parties in carrying out the terms of the
agreement. Normally, when
there are disputes concerning application or the intent of the parties, the
disputes are resolved through continued negotiations, a product of the grievance
procedure. Sometimes, though, the
parties, unable to reach a negotiated resolution concerning the application
and/or intent of the language, turn to arbitration to bring closure to the
In determining the intent of
the parties, it is often necessary to look at the circumstances prevalent at the
time the language was written. In this instance, some of the circumstances were
obvious. For one, the agreed upon
language was a clear recognition by the Court of the worth and value of the
Court’s employees. This
recognition led to the willingness of the Court to take an active role in
fostering the continuing education and career development of its employees.
The agreed upon language also clearly pointed to its primary purpose;
that was, to encourage Court’s employees to take advantage of continuing
educational opportunities and to become involved in professional organizations.
The Court, in conjunction with Union, agreed to provide financial
assistance to its employees through establishment of a fund for reimbursement of
tuition fees and dues which would act as an incentive.
With respect to members of the Support and Supervisory Unit, the
financial support was substantial. The
Court agreed to put into a fund the sum of $10,000 on each July 1st.
and January 1st (Jt-4,
With respect to reimbursement of fees, the Court agreed to expend money
from the fund to reimburse employees for community college tuition and
registration fees for courses taken and completed with a minimum grade, etc.
The Court also agreed to expend money for fees associated with work
related seminars. With respect to
dues, the Court agreed to expend money from the fund to reimburse employees for
membership dues paid to professional organizations.
The language of the article did not include a list of approved courses or
seminars. The language did include
a requirement that reimbursement was contingent prior approval of the course or
the seminar by the Court’s Personnel Unit.
The reason was obvious. The
Court would only approve courses or seminars whose content was obviously related
to an employee’s job.
Approval or non approval be would be determined on a case-by-case basis.
This was a direct and reasonable control by the Court to insure that the
content of a course and of a seminar would be work related.
It stands to reason, therefore, the Court, for example, would
likely not approve reimbursement for a course in pottery or woodworking.
Approval would be granted if the content of course or seminar was within
the concept and framework of continuing education.
The language of the article did not name any professional organizations
for which the Court would or would not expend money from the fund for
reimbursement of dues. The absence
was conspicuous and allows the Court another means of exercising reasonable
control over the expenditure of funds. Common
sense would be that reimbursement of dues would be limited to membership in work
related professional organizations. (For example, membership in the National
Audubon Society would hardly qualify.)
The evidence record showed that there was in existence at the time,
Spring 2001, several professional organizations acceptable to the Court.
Included were the two organizations featured in this arbitration, the
CCRA and the COCRA. According to
the agreed to language the Court was obligated to and did strongly encourage its
employees to become involved in these two professional organizations for the
reason that involvement would enhance their career development and contribute to
their effectiveness as employees of the Court.
The language of the article made it clear that not every employee would
be entitled to reimbursement of tuition fees and dues. The eligibility
requirements were clearly stated. To
be a recipient, an employee must be in a regular position and have been an
employee of the Court for at lease twelve (12) months.
Finally, the language included the criterion that employees would be
reimbursed “provided such expenditure enhances the furtherance of Court
The language of the article did not specify the Court’s goals.
It was obvious, though, that at the time the article was written,
it was a goal of the Court to encourage it’s employees to participate in some
type of work related continuing career improvement program by taking courses,
attending, seminars, and involvement in a professional organization.
It was also a goal of the Court to financially assist the employees in
these endeavors. Beyond that, the
evidence record was void of any mention of other known or obvious Court goals at
the time the parties agreed to the language of the article in question.
The Court argued that the phrase “provided such expenditure enhances
the furtherance of Court goals” was an acknowledgement of the Court’s broad
discretion in approving or not approving applications for reimbursement.
The Court was correct. It
does have broad discretion. The key
question is whether that discretion is boundless or are there some restrictions,
limits on the Court’s discretion to prevent abuse?
The answer is yes. There are
Arbitrators routinely give deference to an employer’s authority to
exercise discretion in a case such as this.
However, arbitrators routinely rule that an employer’s use of such
discretion will not be upheld if the employer acted in a manner that was
unreasonable, arbitrary, or capricious. In
this instance, the Court contended there was no abuse of power and that it was
reasonable to deny the three grievants applications for reimbursement of tuition
fees and dues. The reason
given was because the two professional organizations, CCRA and COCRA had engaged
in political lobbying activities that did not further the goals of the Court.
Determining the intent of the parties can be complicated at times.
Such was the case in this instance. The arbitrator was expected to divine
the intent of the parties when reality was that the parties never contemplated
the particular issue that arose. Up
until February 2002, the Court did not concern itself with the political
activities of the CCRA and the COCRA. The Court began to deny reimbursement applications where CCRA
and COCRA were involved only after the Court learned that the organizations were
in opposition to and were actively lobbying the legislature to defeat the
Judicial Council’s recommendation for legislation to allow expanded use of
Electronic Recordings in trial courts and for a change in ownership of
time the parties agreed to their MOU, March 2001, both the CCRA and the COCRA
had a known history of opposing and lobbying against legislation that would, in
its opinion, adversely affect their membership. Over
the past several years, since 1980, eleven bills were submitted to the
legislature to permit expanded the use of Electronic Recording in the trial
courts. In each instance, both or
one of the organizations lobbied aggressively to defeat the bills.
They were successful in every instance (E-3, p.1).
The point is that the organizations had a track record showing aggressive
lobbying activities where the proposed legislation was deemed to be undesirable
to its membership. This had to have
been known to the Court at the time the MOU and the language of article in
question were agreed upon. Apparently
the Court was not uncomfortable at the time with the political activities of
CCRA and COCRA. If the Court had
real concerns at the time, language addressing the matter could have been
included in the article.
Court also made a distinction between different methods of political lobbying.
The Court’s Deputy Chief Executive Officer, during direct and cross
examination, testified that applications for reimbursement for dues in another
professional organization, the California Court Clerks Association (CCA) were
still being approved. The Deputy’s testimony was that the CCA does not oppose
recommended legislation that it only responds to enacted legislation.
However, the literature of the CCA clearly states that it will, on behalf
of its members, take positions on pending legislation and actively oppose what
is considered to be undesirable legislation (A-1, p2, A-2, p. 1, A-3, p. 6).
When this was pointed out, the Deputy’s response was that CCA members
lobby and that the CCA does not hire professional lobbyists to work against the
interests of the Court. The
conclusion to be drawn was that the Court was being selective in its choice of
proposed legislation to be a basis for not approving reimbursement applications.
The act of CCRA and COCRA hiring professional lobbyists was of real
concern to the Court. The act was
spoken of at least twice during testimony by the Deputy CEO.
The Court illustrated its concern by putting into evidence a page from
the COCRA website showing the pictures and résumés the two hired lobbyists
(E-8). This was obviously a
significant factor in the Deputy’s decision to not approve the applications
for reimbursement. The conclusion
to be drawn was that political lobbying by an organization’s members would be
permissible to the Court but lobbying with hired professionals was not
permissible. For the Court to condone one method and not the other was not
reasonable. It was arbitrary and an
abuse of power.
A pivotal question was whether the Court acted unreasonably when it
unilaterally changed the terms of the agreement and decided to deny applications
for reimbursement for reasons not related to the continuing education and career
enhancement goals expressed in the agreed to language of the article in
question. Yes, it was unreasonable and arbitrary. The Court was not concerned with the political actions of the
CCRA and the COCRA at the time the MOU was agreed to in March 2001.
However, the Court later became concerned and viewed political lobbying
as a problem as of February 2002. Since
this was an issue not contemplated in March 2001, a better approach for the
Court would have been to return to the bargaining table.
the reasons discussed in the above, the decision of the Arbitrator is that the
Court violated the “Tuition Reimbursement and Membership Dues” article of
the Memorandum of Understanding by its denial of CCRA and/or COCRA reimbursement
requests by Grievants Laura Echols, Peggy Ogaz, and Leisha Hendrix.
The Grievance is sustained.
Grievance is sustained. The Court violated the “Tuition Reimbursement and
Membership Dues” article of the Memorandum of Understanding by its denial of
CCRA and/or COCRA reimbursement requests by Grievants Laura Echols, Peggy Ogaz,
and Leisha Hendrix.
The Court is ordered to immediately reimburse tuition fees and membership
dues to the Grievants and any and all other like reimbursements requested by
court reporters submitted prior to this Arbitration Award.
The Arbitrator retains jurisdiction in this matter to resolve any dispute
that may arise in implementing the remedy.
ALLEN POOL, Arbitrator
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