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Service Employees International Union, Local 1021 v. San Joaquin County

December 28, 2011

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1021, PLAINTIFF AND APPELLANT,
v.
SAN JOAQUIN COUNTY, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of San Joaquin County, Elizabeth Humphreys, Judge. (Super. Ct. No. 39201000247523CUPTSTK)

The opinion of the court was delivered by: Hoch , J.

CERTIFIED FOR PUBLICATION

Reversed.

Service Employees International Union, Local 1021 (SEIU), appeals from the trial court's denial of its petition to compel respondent San Joaquin County (County) to arbitrate whether the County wrongfully terminated the employment of Robert Riedinger. The County refused to participate in arbitration after learning that Riedinger applied for and began receiving retirement benefits while the parties were selecting an arbitrator. The trial court denied SEIU's petition on grounds that the Memorandum of Understanding (MOU) between the County and SEIU did not contain an agreement between the County and its former employees to arbitrate disciplinary actions and Riedinger's retirement deprived the arbitrator of jurisdiction.

SEIU contends the County agreed to arbitrate disciplinary actions in an MOU between the parties. SEIU further argues that Riedinger's acceptance of retirement benefits did not divest the arbitrator of power to hear the matter.

We conclude that the County and SEIU agreed in the MOU to arbitrate disciplinary actions for employees who elect arbitration instead of a hearing with the Civil Service Commission. Rather than having "jurisdiction" over a claim as do courts or administrative tribunals, an arbitrator has a contractually granted power to decide a matter consistent with the parties' agreement. Here, Riedinger's application for retirement benefits did not constitute a waiver of his right to arbitrate and did not deprive the arbitrator of power to decide the disciplinary action (employment termination). Accordingly, we reverse the trial court's order denying the petition to compel arbitration.

FACTUAL AND PROCEDURAL HISTORY

MOU Between the County and SEIU

In an MOU dated December 12, 2006, the County and SEIU agreed to various terms and conditions regarding the employment of members of the Trades, Labor, and Institutional Bargaining Unit. The MOU addresses disciplinary actions against SEIU employees as follows:

"19.1. Applicability [¶] . . . [¶] To initiate disciplinary action against a permanent, Civil Service employee, the appointing authority must follow the provisions of Civil Service Rule 18. The appointing authority must submit to the employee a written notice of intent to take disciplinary action and file a copy with the Human Resources Division. The notice must state specifically the reason(s) for the action and explain the employee's 'Skelly'[*fn1 ] rights of appeal.

"19.2. Request for Hearing [¶] The employee may appeal the proposed action and request a hearing by responding in writing to the appointing authority within seven (7) calendar days of receipt of the notice. Upon receipt of a timely response, the appointing authority shall schedule and conduct a "Skelly" hearing as soon as possible. [¶] . . . [¶]

"19.7. Appeal of Order of Disciplinary Action [¶] The employee, within seven (7) calendar days after the order is furnished to the employee, may appeal the order in writing to the Director of Human Resources. The employee, in making the appeal, shall designate in writing whether the matter will be heard by the Civil Service Commission or whether the matter will be submitted to binding arbitration. In accordance with the provisions of Civil Service Rule 18, selection of one appeal method shall exclude the possibility of appeal through the alternate procedure on the same issue. [¶] Appeal and arbitration hearings shall be conducted in accordance with Civil Service Rule 18."*fn2 (Italics added.)

The concluding paragraph of the MOU states:

"20. SUPERSESSION AND MODIFICATION CLAUSE [¶] Except as may hereinafter be agreed to in writing, and except for the San Joaquin County Employer-Employee Relations Policy, this [MOU] contains the sole and entire agreement between the parties. It supersedes any and all other previous [MOUs] between the parties and incorporates by reference all such previous memoranda between the designated representatives of members of this representation unit and the County and also supersedes and incorporates by reference any and all Resolutions and Board orders adopted by the San Joaquin County Board of Supervisors which were adopted to implement any [MOU] between the designated representatives of members of this representation unit and the County . . . . No waiver or modification of this agreement or any covenant, condition or limitation herein contained shall be valid unless in writing and duly executed by the parties hereto; no officer, employee or agent of the County has any authority to waive or modify this agreement or any covenant, condition or limitation herein contained without the express prior approval of the San Joaquin County Board of Supervisors or its designee."

Riedinger's Termination

Prior to termination of his employment, Riedinger worked as a Craft Worker III in the County's Facilities Management Division. In that capacity, Riedinger was represented by SEIU. According to the County, Riedinger stole approximately $250 worth of County-owned recyclable material in November 2008. Riedinger admitted the theft to his supervisor and then had four days of unexcused absence from his job.

A Skelly hearing was held on February 10, 2009. On February 18, 2009, the County issued an order of dismissal terminating Riedinger from employment.

On February 20, 2009, SEIU, on behalf of Riedinger, informed the County's director of human resources that it was "requesting Arbitration for the decision to uphold the discipline of termination that was received by [] Riedinger . . . ."

In March 2009, Riedinger filed an application for service retirement that was approved with an effective date of February 23, 2009. In April 2009, Riedinger started to receive monthly retirement allowance payments.

More than a year passed before the County sent notice to arbitrator David Gaba on May 5, 2010, to inform him: "We are pleased to inform you that you have been selected by our County Counsel and the law firm [representing SEIU] as the arbitrator to hear" the matter of Riedinger's termination from employment. A week later, the County informed ...


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