Filed 3/13/13 City of San Jose v. Internat. Assn. of Firefighters Local 230 CA6 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

CITY OF SAN JOSE, 

Plaintiff and Respondent, 

v. 

INTERNATIONAL ASSOCIATION OF 

FIREFIGHTERS LOCAL 230, 

Defendant and Appellant. 

 H037197 

 (Santa Clara County 

 Super. Ct. No. CV075858) 

Defendant, International Association of Firefighters, Local 230 (Local 230) is an 

employee organization representing the firefighters employed by plaintiff, City of San 

Jose (City). In the course of labor negotiations between the parties, Local 230 offered 

two bargaining proposals related to City’s Police and Fire Department Retirement Plan 

(Plan), a defined benefit pension plan established for eligible police and fire department 

retirees. One of the proposals sought to ensure that police and fire participants were 

equally represented on the board that administers the Plan. The other concerned the 

manner in which the Plan tracks factors used to evaluate the Plan’s funding status. City 

refused to negotiate the two proposals, maintaining that they do not fall within the scope 

of mandatory bargaining as defined by City’s charter. The trial court held that both 

proposals were moot since negotiations had long since been finalized and, as to the first 

proposal, a new City ordinance gave the two departments equal representation on the 

Plan’s administrative board. On the merits the trial court found that City had no duty to 
2 

bargain because neither proposal related to wages, hours, or other terms and conditions of 

employment. 

We agree that the first proposal is moot. City’s new ordinance gave Local 230 

exactly what it sought--equal representation. As to the second proposal, we disagree with 

the trial court. As Local 230 describes it, the second proposal seeks to track data and 

determine the cost of benefits for firefighter participants separately from police 

participants. That proposal is not moot; it presents a continuing actual controversy. And, 

since the cost of benefits is related to the availability of benefits, the proposal is one 

about which City must negotiate. Accordingly, we shall reverse.1

I. FACTUAL AND PROCEDURAL BACKGROUND

In January 2004, City and Local 230 commenced negotiations for a new 

memorandum of agreement (MOA) establishing terms of employment for City 

firefighters. Negotiations reached impasse on certain points and the parties initiated 

procedures prescribed by San Jose City Charter section 1111 (section 1111). Section 

1111 requires City to “negotiate in good faith with the recognized fire and police 

department employee organizations on all matters relating to the wages, hours, and other 

terms and conditions of City employment . . .” and calls for compulsory interest 

arbitration when the parties are unable to resolve disputes over such issues.2

 Arbitration 

 1

 We solicited supplemental briefing to ascertain the parties’ view as to the effect 

of the June 2012 passage of Measure B, a pension modification initiative, upon this 

appeal. The parties agree that passage of the initiative does not affect their arguments. 

2

 Section 1111 provides, in pertinent part, as follows: 

 “The City, through its duly authorized representatives, shall negotiate in good faith 

with the recognized fire and police department employee organizations on all matters 

relating to the wages, hours, and other terms and conditions of City employment, 

including the establishment of procedures for the resolution of grievances submitted by 

either employee organization over the interpretation or application of any negotiated 

agreement including a provision for binding arbitration of those grievances. Unless and 

until agreement is reached through negotiations between the City and the recognized 

employee organization for the fire or police department or a determination is made 

(continued) 
3 

of the unresolved issues commenced in 2006. Local 230 offered a number of bargaining 

proposals; City refused to bargain over proposals 26 and 28. 

Proposal 26 involves the makeup of the Police and Fire Department Retirement 

Board (Board), the body that administers the Plan. At the time Local 230 made the 

proposal, the Board was made up of one employee from the fire department, one 

employee from the police department, one retiree from either the fire or police 

departments, and four outside members. Since there was only one retiree member, one of 

the departments always had an additional representative on the Board. Accordingly, 

Local 230 proposed: “There shall be the same number of firefighter representatives to 

the [Board] active and retired, as the police officers, active and retired.” 

Proposal 28 is aimed at the manner in which the Board tracks certain actuarial 

data. In the past, City had jointly negotiated retirement benefits with the police and fire 

departments and the two departments had the same retirement benefits. Local 230 

wanted to continue the joint negotiation but City held separate negotiations with the San 

Jose Police Officers Association (POA) in 2006, which resulted in police department 

employees having retirement benefits that are different from those available to fire 

department employees. Because of the difference, Local 230 offered proposal 28, which 

is: “The costing methodology for new and/or separate retirement benefit enhancements 

for police and fire participants shall be through subaccounts separately tracking benefits, 

 

through the arbitration procedure hereinafter provided, no existing benefit or condition of 

employment for the members of the fire department or police department bargaining unit 

shall be eliminated or changed. 

 “All disputes or controversies pertaining to wages, hours, or terms and conditions 

of employment which remain unresolved after good faith negotiations between the City 

and either the fire or police department employee organization shall be submitted to a 

three-member Board of Arbitrators upon the declaration of an impasse by the City or by 

the recognized employee organization involved in the dispute.” 
4 

assets, payments and experience and requiring separate assumptions between police and 

fire.” 

City maintained that section 1111 does not require negotiation of either proposal. 

City filed a complaint for declaratory and injunctive relief, stating, “City contends that 

Items 26 and 28 proposed by [Local 230] are not arbitrable in that such proposals do not 

impact the wages, hours, or terms and conditions of the bargaining unit and are not 

mandatory subjects of bargaining.” City’s complaint went on to allege that proposal 28 

usurped the authority and discretion of the Board and, even if both proposals were subject 

to mandatory bargaining, they could not be the subject of the current arbitration since the 

POA was not a party. Local 230 filed a counter-petition to compel arbitration of the two 

proposals. 

The trial court dismissed the case after concluding that intervenor, Public 

Employment Relations Board (PERB), had exclusive initial jurisdiction. Local 230 

appealed that ruling. This court held that under Government Code section 3509, 

subdivision (e), the court, not PERB, had jurisdiction. (City of San Jose v. International 

Assn. of Firefighters, Local 230 (2009) 178 Cal.App.4th 408, 425.) Accordingly, the 

judgment of dismissal was reversed and the matter returned to the trial court. 

Meanwhile, City and Local 230 had reached agreement on other issues and a new 

MOA, omitting any agreement on proposals 26 and 28, had been finalized in August 

2007. That MOA expired June 30, 2009. On December 3, 2010, after resolution of the 

first appeal, the trial court denied Local 230’s motion to compel arbitration of proposals 

26 and 28. The court concluded that the dispute was moot since the MOA in which Local 

230 had sought to include the proposals had been finalized and expired. Proposal 26 was 

moot for the additional reason that City had recently adopted an ordinance that changed 

the composition of the Board, increasing the number of members from seven to nine, 

including one active employee and one retiree from each of the two member departments, 

giving the two departments the equal representation Local 230 had proposed. The court 
5 

also considered the merits of the proposals and concluded that they were not subject to 

arbitration under section 1111 because they did not relate to wages, hours, or working 

conditions. 

On December 10, 2010, in the course of negotiations for a new MOA, Local 230 

informed City that it considered the two proposals to be applicable to the ongoing 

negotiations. City again refused to negotiate the proposals, citing the trial court’s ruling 

on the merits in its order denying Local 230’s petition to compel arbitration. 

The trial court entered judgment in favor of City on June 21, 2011. The court did 

not issue a separate judicial declaration but incorporated by reference its order denying 

the petition to compel arbitration. This timely appeal followed. 

II. DISCUSSION

A. Legal Framework 

1. Section 1111 

The substantive issue before us is whether proposals 26 and 28 are encompassed 

by section 1111’s mandatory bargaining requirement. Section 1111, which requires City 

to negotiate with employee representatives and to arbitrate unresolved disputes over 

“wages, hours, and other terms and conditions of City employment,” tracks the language 

of the Meyers-Milias-Brown Act (MMBA), which, in turn, is patterned after the National 

Labor Relations Act (NLRA). Because of the parallel language and purpose of these 

laws, we may look to cases interpreting them for guidance in determining the scope of 

section 1111’s mandatory bargaining requirement. (Cf. Fire Fighters Union v. City of 

Vallejo (1974) 12 Cal.3d 608, 615-617 (Fire Fighters Union).) 

Under the MMBA, the phrase “ ‘ “wages, hours, and other terms and conditions of 

employment” ’ ” is to be liberally construed, consistent with the “ ‘generous 

interpretation’ ” federal courts have applied to the same phrase in the NLRA. (Social 

Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 

391.) Under the NLRA, the duty to bargain applies to “issues that settle an aspect of the 
6 

relationship between the employer and employees.” (Chemical Workers v. Pittsburgh 

Glass (1971) 404 U.S. 157, 178.) Some management decisions, such as decisions about 

advertising or products design, have such an attenuated effect upon the 

employer/employee relationship they are never subject to the duty to bargain. (First 

National Maintenance Corp. v. NLRB (1981) 452 U.S. 666, 676-677.) Other decisions 

are not primarily about an aspect of the employment relationship but may have impacts 

that must be negotiated depending upon the facts. (Id. at p. 677.) A third category of 

decisions are those that directly impact the employment relationship, such as decisions 

about schedules or workplace rules. These are always mandatory subjects of bargaining. 

(Ibid.) Retirement benefits fall within this last category. “[T]he future retirement 

benefits of active workers are part and parcel of their overall compensation.” (Chemical 

Workers v. Pittsburgh Glass, supra, at p. 180.) Thus, it is generally true that a proposal 

affecting employees’ retirement benefits is subject to the mandatory bargaining 

requirement. 

2. Justiciability 

Before we consider whether a proposal could affect retirement benefits, or any 

other terms and conditions of employment, we must decide whether the controversy is 

one that we may resolve. A court may decide only justiciable controversies. (County of 

San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 813; 3 Witkin, Cal. 

Procedure (5th ed. 2008) Actions, § 21, pp. 84-86.) To be justiciable, a controversy must 

be ripe for adjudication. “A controversy is ‘ripe’ when it has reached, but has not passed, 

the point that the facts have sufficiently congealed to permit an intelligent and useful 

decision to be made.” (California Water & Telephone Co. v. County of Los Angeles

(1967) 253 Cal.App.2d 16, 22.) Moot cases are at the other end of the justiciability 

spectrum. Moot cases are “[t]hose in which an actual controversy did exist but, by the 

passage of time or a change in circumstances, ceased to exist.” (3 Witkin, Cal. 

Procedure, supra, Actions, § 21, p. 86.) A case is moot when “the question addressed 
7 

was at one time a live issue in the case,” but has been deprived of life “because of events 

occurring after the judicial process was initiated.” (Younger v. Superior Court (1978) 21 

Cal.3d 102, 120.) When events render a case moot, the court, whether trial or appellate, 

should generally dismiss it. (Wilson & Wilson v. City Council of Redwood City (2011) 

191 Cal.App.4th 1559, 1575.) 

Local 230 insists that the instant dispute is not moot because City’s declaratory 

relief action described an actual controversy over whether section 1111 requires 

proposals 26 and 28 to be arbitrated. But a declaratory relief action is not exempt from 

the justiciability analysis. Code of Civil Procedure section 1060 provides for declaratory 

relief “in cases of actual controversy relating to the legal rights and duties of the 

respective parties.” The “ ‘actual controversy’ ” to which this section refers is one 

“which admits of definitive and conclusive relief by judgment within the field of judicial 

administration, as distinguished from an advisory opinion upon a particular or 

hypothetical state of facts. The judgment must decree, not suggest, what the parties may 

or may not do.” (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 

117; see also, American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728, 741.) 

Cases “in which parties seek a judicial declaration on a question of law, though no actual 

dispute or controversy ever existed between them requiring the declaration for its 

determination,” are unripe and not justiciable. (3 Witkin, Cal. Procedure, supra, Actions, 

§ 21, p. 85.) 

The issues presented here span the justiciability spectrum. As we shall explain 

below, the dispute over proposal 26, the Board composition proposal, is moot; the dispute 

over the arbitrability of a proposal involving the makeup of the Board, generally, is 

unripe; and the dispute over the arbitrability of proposal 28, the “data tracking” proposal, 

is a continuing actual controversy that we may resolve. 
8 

B. Proposal 26–Retirement Board Composition 

Local 230’s original proposal 26 is unquestionably moot. The proposal was to 

give the police and fire departments equal representation on the Board. City’s new 

ordinance gave the two departments equal representation. That dispute is resolved. The 

trial court was correct to deny Local 230’s petition to compel arbitration of this proposal. 

Local 230 maintains that City’s ordinance did not moot the proposal since City 

also increased the total number of positions on the Board, which diluted the voting power 

of the fire department representatives.3

 But proposal 26 was very specific in proposing 

only equal representation. Local 230’s argument is, in effect, that any proposal relating 

to the composition of the Board is subject to the bargaining requirement of section 1111. 

And, indeed, City has argued that the makeup of the Board is not a subject about which it 

must bargain. Clearly, the parties do have a continuing controversy over the arbitrability 

of a proposal relating to the composition of the Board. That dispute is not moot; but it is 

not ripe. The cases cited by both sides make that clear. 

In Local 964, United Brotherhood of Carpenters and Joiners (1970) 181 NLRB 

948, 952, a union demanded that an employer association select its trustees for a multiemployer trust fund from a particular category of employers. The union failed to show 

that the proposal could have even an arguable relationship to employee benefits. (Id. at p. 

952, fn. 15.) Accordingly, the employer was entitled to refuse to negotiate the demand. 

(Id. at p. 952.) 

 3

 As City pointed out at oral argument, the change did not dilute the voting power 

of the two employee organizations. As originally composed, the Board had three 

employee positions out of seven, or 43 percent. As revised, it had four employee 

positions out of nine, or 44 percent. As to the firefighters only, their original voting 

power was one out of seven (14 percent) whenever the retiree member was from the 

police department. Under the new ordinance the firefighters are guaranteed two out of 

nine positions, or 22 percent. 
9 

In contrast, in Oakland Unified School Dist. v. Public Employment Relations Bd. 

(1981) 120 Cal.App.3d 1007 (Oakland Unified), a case decided under the Educational 

Employment Relations Act (Gov. Code, § 3540), the employer had unilaterally changed 

health plan administrators, which deprived employees of advantages provided by the 

previous administrator, Blue Cross, such as guaranteed admission to Blue Cross member 

hospitals outside the area. (Oakland Unified, supra, at pp. 1012-1014.) Even though the 

change did not affect health care coverage, it did result in the loss of other benefits and, 

therefore, the decision “had a material impact on the terms and conditions of 

employment” and should have been negotiated. (Id. at p. 1014.) 

As demonstrated by these two cases, a proposal relating to the makeup or identity 

of the administrative body that oversees a benefit fund is a mandatory subject of 

bargaining if it is shown that the proposal has some connection to benefits or other terms 

and conditions of employment. It is a fact-driven inquiry and cannot be decided as a 

matter of law. We recognize that in the present case we are concerned with prearbitration 

bargaining and not with a challenge to conduct by an employer, as was the case in 

Oakland Unified, supra, 120 Cal.App.3d 1007. As Local 230 has argued, we are bound 

to interpret bargaining proposals broadly, allowing the facts, proposals, and concessions, 

to be fully developed and explored in the arbitration proceedings. (Fire Fighters Union,

supra, 12 Cal.3d at p. 615.) But since there is no specific proposal before us, there is 

nothing to interpret; the parties are seeking, in effect, an advisory opinion that could only 

be based upon speculation or hypothetical facts. This court cannot provide definitive and 

conclusive relief. Accordingly, the issue is not one either the trial court or this court can 

decide. 

C. Proposal 28-Data Tracking 

We reach a different result with regard to the justiciability of proposal 28. We 

agree with the trial court that Local 230’s petition to compel arbitration of this proposal is 

moot to the extent it relates to the now-expired MOA. But City’s declaratory relief action 
10 

describes an actual controversy--whether proposal 28 is subject to section 1111’s 

arbitration requirement--that has never been resolved. The mere fact that the parties 

entered into some agreement “does not lead to a conclusion that the parties intended in 

that agreement to resolve this dispute.” (Oakland Unified, supra, 120 Cal.App.3d at p. 

1010.) Indeed, Local 230 resubmitted the proposal in 2010 and was again rebuffed by 

City so that the controversy continues. Thus, the question is not moot and, because there 

is a specific proposal at issue for which the court may provide definitive and conclusive 

relief by judgment, it is ripe for adjudication.4

On the merits, our first problem is deciding what proposal 28 means. The parties’ 

briefs contain two very different interpretations. City argues that proposal 28 seeks to 

change the actuarial cost method adopted by the Board, which, City maintains, is a 

decision that must be left to the Board. Local 230 insists that the proposal merely 

involves record-keeping; it seeks to have the Board track certain data separately for the 

two member departments, using whatever cost method the Board chooses to use. 

On its face, proposal 28 states that the “costing methodology for new and/or 

separate retirement benefit enhancements for police and fire participants shall be through 

subaccounts separately tracking benefits, assets, payments and experience and requiring 

separate assumptions between police and fire.” Neither side defines “costing 

methodology,” but as we understand it, “costing methodology” refers to the actuarial cost 

method (or funding method) adopted by plan administrators and utilized by actuaries in 

valuing a retirement plan. 

 4

 The question is one that is likely to come up again so long as City and the POA 

continue to negotiate retirement benefits on a bilateral basis. Thus, even if the proposal is 

technically moot, the issue is of sufficient importance and likely to evade review so that 

we exercise our discretion to consider it. (Conservatorship of Pamela J. (2005) 133 

Cal.App.4th 807, 815.) 
11 

 Actuaries predict the future financial operation of a retirement system by making 

assumptions regarding the variables in the system. (65 Ops.Cal.Atty.Gen. 571, 572 

(1982).) These variables include the age of the individuals entering and retiring from 

employment, life expectancy, compensation during active service, inflation factors, 

contributions, investment income, and benefits. The actuary takes these factors and, 

using the actuarial methods adopted by the plan’s administrative body, values the plan 

and makes projections to guide its administration. (Ibid.) 

One reason an actuary values a retirement plan is “to determine how much 

employers and employees should contribute to the plan during the upcoming year.”

(Funding Pensions and Retiree Health Care for Public Employees: A Report of the 

Public Employee Post-Employment Benefits Commission (2007) How to Read an 

Actuarial Valuation, p. 232 (Benefits Commission Report).)5

 As part of the valuation 

process, the actuary uses the cost method adopted by the plan to allocate a portion of the 

total present value of future benefits to each year of service. “The portion allocated to a 

year of active member service is the normal cost for that year. The normal cost is the 

basis for all the contribution and liability results in the valuation. . . . It can be thought of 

as the annual premium that the [sic] must be contributed to fund the benefit in the 

absence of any surplus or unfunded liability.” (Id. at p. 234.) That is, the cost method is 

used to determine what it will cost to provide the promised benefits. There is more than 

one cost method that actuaries use. In the present case, the Board has adopted the “entry 

age normal” method. 

Although City has approached the issue as if Local 230 were attempting to change 

the cost method the Board adopted, and argued below and in its brief on appeal, that it is 

not bound to negotiate such a proposal, City acknowledged at oral argument that proposal 

 5

 <http://www.pebc.ca.gov/images/files/final/080107_PEBCReport2007.pdf> [as 

of Mar. 13, 2013]. 
12 

28 does not contemplate changing the cost method. City concedes that the proposal seeks 

only to separately track data for the two participating departments.6

 Because both sides 

now agree that proposal 28 does not seek to change the Board’s selected cost method, we 

need not consider City’s argument that such a proposal is nonnegotiable.7

 

Proposal 28 seeks to have the selected cost method applied separately to the two 

groups of participants. According to Local 230, “[t]he effect of the proposal is to 

produce two plans within a plan, but with all parties preserving more options as to the 

future of the bargaining relationships.” Local 230 cites Carrier Corporation and Sheet 

Metal Workers Local 527 (1995) 319 NLRB 184 (Carrier), in supporting the position 

that proposal 28 is arbitrable. 

 6

 At oral argument City argued, for the first time, that proposal 28 is moot because 

the Board already tracks data separately. City asked this court to take judicial notice of 

City’s Municipal Code section 3.36.1520, which, City claims, calls for the separate 

tracking Local 230 has proposed. We allowed Local 230 to submit a supplemental brief 

responding to the new argument and request for judicial notice. In its supplemental brief 

Local 230 maintains that we should treat City’s new argument as waived. For reasons of 

fairness, we agree that a point raised as late in the process as this one was should be 

considered waived. (Transcontinental Ins. Co. v. Insurance Co. of State the of 

Pennsylvania (2007) 148 Cal.App.4th 1296, 1309.) Accordingly, we decline to consider 

City’s mootness argument and deny the request for judicial notice because the material is 

not relevant to any issue on appeal. (People ex rel. Lockyer v. Shamrock Foods Co. 

(2000) 24 Cal.4th 415, 422, fn. 2 [any matter to be judicially noticed must be relevant to 

a material issue].) 

7

 In 1990, the Board recommended switching to the entry age normal method. 

After receiving the Board’s recommendation, City directed its staff to meet and confer 

with representatives of the police and fire departments on the recommendation. Local 

230 maintains that City acknowledged then that such a proposal was a mandatory subject 

of bargaining and, therefore, that it is estopped from taking the opposite position now. 

Local 230 does not attempt to describe the elements of estoppel and offers no other 

authority for the contention so that we may reject it for that reason alone. (Dills v. 

Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) Furthermore, since 

Local 230 insists that its proposal is not intended to change the cost method, the argument 

is beside the point. 
13 

In the Carrier case, the NLRB held that the employer’s unilateral decision to 

merge several retirement plans into one, without involving or informing the union, was 

an unfair labor practice. The opinion noted that “changes involving pension plans 

generally are considered mandatory subjects of bargaining” and typically have a 

significant effect upon benefits. But the employer argued that since the merger did not 

result in any changes to benefit levels, or benefit administration, the changes were 

insufficient to require negotiation. (Carrier, supra, 319 NLRB at p. 193.) The NLRB 

rejected the argument. The merger at issue involved the consolidation of numerous 

smaller plans into one large plan, resulting in $4 million to $6 million in savings for the 

employer and a retirement plan that was 35-percent overfunded. (Id. at pp. 193-194.) 

These positive effects had a significant impact upon the employees’ terms and conditions 

of employment--their retirement fund was on a sounder financial footing and their 

employer enjoyed significant savings, part of which could have been included in contract 

negotiations for future benefits had the union been informed of the merger. (Id. at p. 

193.) 

City argues that Local 230 has not shown that its proposal would have any effect 

upon retirement benefits. City cites the rule that an action by an employer falls within the 

scope of representation only if it has “a significant effect on the ‘wages, hours, and other 

terms and conditions of employment’ of the bargaining-unit employees.” (Building 

Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 659.) As 

Local 230 points out, however, the cases in which that test was developed were cases in 

which the employer had taken unilateral action that was subsequently challenged by the 

employee organization as an unfair labor practice. (See, e.g., Claremont Police Officers 

Assn. v. City of Claremont (2006) 39 Cal.4th 623, 638.) The present case involves a 

preliminary decision as to the scope of interest arbitration. In that situation we must keep 

in mind the dynamic nature of the arbitration process. (Fire Fighters Union, supra, 12 

Cal.3d at p. 614.) 
14 

In interest arbitration, “ ‘the positions of the parties and their interaction with the 

arbitrator is in a state of constant flux. Proposals get modified and non-negotiable 

positions become negotiable as the parties sort out their priorities, develop understanding 

of the implications of their positions, and perceive alternative solutions which they may 

not previously have considered. To determine what is arbitrable and what is not against 

this changing context is a bit like trying a balancing act in the middle of a rushing 

torrent.’ ” (Fire Fighters Union, supra, 12 Cal.3d at pp. 614-615, quoting Grodin, 

California Public Employee Bargaining Revisited: The MMB Act in the Appellate Courts 

(1974) Cal. Pub. Employee Rel. No. 21, p. 17.) In determining the arbitrability of a 

prearbitration bargaining proposal, we exercise the utmost in judicial restraint in order to 

avoid congealing the arbitration into “ ‘fixed molds’ ” before the facts, proposals, and 

concessions, have been fully developed and explored in the arbitration proceedings. 

(Fire Fighters Union, supra, at p. 615.) 

Here we are not considering an action by an employer. We have before us a 

prearbitration bargaining proposal, the final shape of which has not been decided so that 

its actual effect cannot be known. A proposal to create a plan within a plan, as Local 230 

describes it, presents considerations similar to those in the Carrier case. Differences in 

variables pertaining to police and fire department participants could mean that the cost of 

benefits for the two groups would be different if determined separately. And, as Local 

230 points out, the cost of benefits affects the availability of and bargaining for benefits 

in the future. Thus, the proposal could impact retirement benefits. Given that potential 

we conclude that the proposal is subject to mandatory bargaining under section 1111. 

The proposal may be modified or rejected altogether as the parties sort out their priorities 

and develop an understanding of the ultimate effect of such a change. But we leave that 

to the parties and the arbitrator to work out. This “cautious judicial approach” does not 

risk undue expansion of the scope of representation since City may reject the resulting 

award if it invades City’s authority or otherwise exceeds the jurisdiction of the arbitrator. 
15 

(Fire Fighters Union, supra, 12 Cal.3d at p. 615, fn. 6; see also Code Civ. Proc., § 

1286.2, subd. (a)(4).) 

D. Participation of POA 

As we noted above, for many years prior to 2006 City had negotiated retirement 

benefits jointly with Local 230 and the POA. In litigation that preceded the 

commencement of this case, City sought an order compelling bilateral arbitration of 

retirement benefits between it and the POA; Local 230 sought an order compelling threeparty arbitration. The trial court granted City’s request and rejected Local 230’s. That is 

how the two departments have come to have differing retirement benefit schedules while 

participating in one retirement fund. 

City now insists that arbitration of Local 230’s proposals related to the Plan must 

be conducted on a tripartite basis. In effect, City maintains that it is not required to 

negotiate separately with Local 230. City cites no authority for its argument. Indeed, the 

law is to the contrary. (See, e.g., Boston Edison Co., 369 (1988) 290 NLRB 549, 555 

[refusing to bargain separately with union that had timely withdrawn from multilateral 

pension plan negotiations is an unfair labor practice].) And, as Local 230 argues, City is 

barred by the doctrine of judicial estoppel from asserting the opposite of the position 

upon which it prevailed in prior proceedings. (Ajaxo Inc. v. E*Trade Financial Corp. 

(2010) 187 Cal.App.4th 1295, 1314.) Accordingly, we reject the argument. 

III. CONCLUSION

To summarize, proposal 26 to alter the makeup of the Board to give police and fire 

department participants equal representation is moot. There is no other justiciable boardcomposition proposal before us. 

Proposal 28 is not moot. To the extent the proposal asks that data be tracked 

separately for police and fire department participants to create, in effect, a separate plan 

within a plan for the members of Local 230, the proposal could affect retirement benefits 

and is, therefore, arbitrable. 
16 

IV. DISPOSITION

The judgment is reversed. The trial court shall enter a new judgment consistent 

with the opinions expressed herein. The parties shall bear their own costs on appeal. 

 

Premo, Acting P.J. 

WE CONCUR: 

 

Bamattre-Manoukian, J. 

 

Grover, J.