1

Filed 5/8/19 ; pub. order 6/ 6 /19 (see end of opn.) Reposted to provi de correct filed date on pub order

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

AMALGAMATED TRANSIT UNION, LOCAL 276 et al.,

Pl aintiffs and Appellants,

v. SAN JOAQUIN REGIONAL TRANSIT DISTRICT,

Defendant and Respondent. C086260 (Super. Ct. No. STK

- CV

UWM

- 2016

- 0009596)

This case involves the interpretation of provisions of the San Joaquin Regional
Transit District Act (Pub. Util. Code, § 50000, et seq.) (Act) 1 relating to the composition and selection of some members of the retirement board. Amalgamated Transit Union, Local 276 and its president, Alan Wagner (collectively, the Union) brought this mandamus petition agai nst the San Joaquin Regional Transit District (the District),

1 Further undesignated statutory references are to the Public Utilities Code.2

alleging the Union has the right to fill by appointment a vacancy on the District’s retirement board, to ensure labor

- management parity, as the Union claims is required by
section 99159. The Di strict proposes to conduct an election by all emplo yees (not only union members) to fill the vacancy, as it claims is required by an earlier statute, section 50150. The trial court denied the petition and the Union timely appealed. After hearing oral arg ument, we vacated submission and ordered supplement al briefing, reserving the option to order further argument if we deemed it necessary. We do not. After considering all the briefing and argument, we find the Union’s position more persuasive. It harmon izes the two statutes, avoids any constitutional qu estion, and is in accord with the use of the term “representative” in federal labor law and the long

standing practice of the parties

-- the only parties affected by the two statutes. Accordingly, we revers e.

LEGAL AND FACTUAL BACKGROUND The Act was passed in 1963. (See Stats. 1963, ch. 839, § 1, p. 2050.) The District was created in part to secure federal transportation funds, the acceptance of which came with certain federal obligations, including certa in labor protections. (See Stockton Metropolitan T

ransit Dist. v. Amalgamated Transit Union (1982) 132 Cal.App.3d 203 , 207

- 208, 212; Stats. 2003, ch. 845, § 1(b), p. 6231.) The original legislation provided that the District “ shall create a retirement board of not more than five members, at least two m embers of which shall be the elected representatives of the employees , to administer the retirement system, and shall define its powers and duties and the tenure of the members. ” (§ 50150, italics added; Stats. 1963, ch. 839, ch. 1, p. 2050.) This provis ion of the Act has never been amended. In 2003 the legislature added section 99159. Section 99159 provides in part: “(a) Any retirement system established or maintained pursuant to this division for em ployees of a transit
district who are members of a unit appropriate for collective bargaining shall be maintained pursuant to a collective bargaining agreement and this section. [¶] (b)3

Notwithstanding any other provision of this division, the retiremen t system and the funds of the system shall be manag ed and administered by a retirement board composed of equal representation of labor and management .” 2 (Italics added.) In an uncodified part of the 2003 legislation, the Legislature explained the
evolut ion of public transit systems “through the takeove r and consolidation of private transit operations,” the need to ensure “strong standards of fiduciary duty” for retirement
boards

-- in part emphasizing the importance that boards be comprised of “equal

repr esentation of labor and management” and be administ ered consistent with federal
labor law

-- and referenced the passage of Proposition 162 (described, post ), which requires that public pension boards be “independent of the public agency governing board.” (S tats. 2003, ch. 845, § 1, p. 6231.) Proposition 16 2, the California Pension Protection Act of 1992, referenced in the 2003 legislation, was adopted at the November 3, 1992, General Election. As we explained in Westly v. Board of Administration (2003) 105 Cal.App.4th 1095, Proposition
162 amended the Cali fornia Constitution in part to prevent legislative interference with retirement funds and expanded the duties and powers of retirement boards, which were to have plenary authority and responsibility for th e investment of moneys and administration of the pa rticular retirement system, to be exercised to protect participants
and beneficiaries. ( I

d . at pp. 1100

- 1102 & fns. 6

- 8, pp. 1110

- 1112; see also California State Employees’ Assn. v. Board of Administratio n (2003) 113 Cal.App.4th 137, 144

- 145 [Proposition 162 was in part designed to ensure retirement boards trustees were “ ‘free from political meddling and intimidation’ ” and “ ‘to prevent political “packing” of retirement boards’ ”].) A key provision of P roposition 162 provides in full as follows:

2 Both sections 50150 and 99159 are in division 1 0 of the Public Utilities Code.4 “Wit h regard to the retirement board of a public pension or retirement system which includes in its composition elected employee members, the number, terms, and method of selection or removal of members of the retirement board which were required by law or oth erwise in effect on July 1, 1991, shall not be changed, amended, or modified by the Legislature unless the change, amendment, or modification enacted by the Legislature is ratified by a majority vote of th e electors of the jurisdiction in which the partici pants of the system are or were, prior to retirement, employed.” (Cal. Const., art. XVI, § 17, subd. (f).) The District has a retirement plan, restated effective June 20, 2014 (the Plan). The
Plan was s ubject to collective bargaining between the Distric t and the Union. The Plan provides for the administration by the Retirement Board (the Board), “which shall be composed of five (5) members, two (2) members as representatives of [the District] (one being a member of the [District’s] Board of Directors an d one Non

- Represented Employee representative) and two (2) representatives of the Union, and one Umpire Member (who shall only participate as a member of the Retirement Board when there is a
deadlock vote of the other four members).” After a Union repres entative left the Board, the Union president appointed a new Union representative to the Board. The District took the position that the Union did not have authority to unilaterally appoint members to the Board; instead, the employee representatives must b e elected by all employees (union and non

- union) of the District. The District cited section 50150 as authority for its position. The District proposed to
hold an election for the vacant Board seat. All employees would be eligible to nominate
him or her self, another district employee, or a non

- employee. The person receiving the most votes would be elected to fill the vacancy on the Board. The Union objected to this proposal, arguing it was contrary to the negotiated provisions of the Plan and the provi sions of section 99159. Further, the Union had learned the District passed bylaws for the Plan and objected that only the Board could adopt such bylaws.5

The Union filed a petition for a writ of mandate seeking to compel the District to comply with sect ion 99159, ordering the District to cease and desist from purporting to enact bylaws or otherwise interfering with the administration of the Plan, and for a temporary restraining order, temporary injunctio n, and permanent injunction to prevent
the District from holding any election for the seats of Union members on the Board. The trial court denied the Union’s petition and the Union timely filed this appeal from the judgment

. DISCUSSION
I
Burden for Rel ief and Standard of Review “There are two essentia l requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part o f the petitioner to the performance of that duty. [Citation.]” ( California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) Mandate is the appropriate remedy to enforce a mandatory statutory duty. ( N ewland v. Kizer (1989) 209 Cal.App.3d 647, 655

- 656. ) The facts are not disputed, and the parties generally agree the case presents issues of statutory interpretation to be reviewed de novo by this court. We agree with the parties. (See, e.g., C

alifornia C orrectional S upervisors O rganization, Inc. v. Dep artment of Corrections (2002) 96 Cal.App.4th 824, 827.)
II Interpretation of Sections 50150 and 99159 The Union contends it alone is authorized to fill the vacancy on the Board because section 99159 requi res “a retirement board composed of equal represent ation of labor and management .” ( Id ., subd. (b).) The District contends section 50150 requires an election by all employees to fill the vacancy because the enacting legislation requires the6

District to “ create a retirement board of not more than five mem bers, at least two members of which shall be the elected representatives of the employees .” The Union has two responses to the District’s position. First, it contends section 99159, as the later statute, supersedes section 50150. In response, the Distri ct contends that under article XVI, section 17(f) of the California Constitution, the Legislature could not change “the method of selection” of members of the Board because it included “elected employee me mbers.” The Union’s second argument is that the tw o statutes, sections 50150 and 99159, should be harmonized and “elected representatives of the employees” in section 50150 should be read to mean Union appointed Board members. The Union asserts this
inte rpretation of the statute is reflected in the terms of the Plan and we should defer to the interpretation of the statute by the parties affected by it. “Still greater judicial deference is accorded to a contemporaneous administrative interpretation ‘long acquiesced in by all persons who could possibly hav e an interest in the matter.’ ” ( Jacobs, Malcolm &
Burtt v. Voss (1995) 33 Cal.App.4th 1399, 1405, fn. 3.) At oral argument, the Union expanded upon this second argument, asserting that “elected repres entatives of the employees” was a synonym for Union representative. 3

3 “ ‘T erm s of art are words having specific, precise meaning in a given specialty .’ ” ( People v. Gonzales (2017) 2 Cal.5th 858, 871, fn. 12 .) The Union has not directed us to, nor have we found, anything that indicates th e term “elected representatives of the employees” i s a term of art in the labor context. Nonetheless, courts sometimes use the term to describe the union elected to represent the employees. (See, e.g., N. L. R. B. v. Wooster Div. of Borg

- Warner Corp . (19 58) 356 U.S. 342, 344 [union “was certified by the Board to the [Company] as the elected representative of an appropriate unit of the company's employees .”], italics added; N.L.R.B. v. Dixon Industries, Inc . (10th Cir. 1983) 700 F.2d 595, 597 [“certified t he Union as the validly elected representative of D ixon's employees in the production and maintenance department.”], italics added; N.L.R.B. v. Pinkerton ’ s, Inc . (6th Cir. 1980) 621 F.2d 1322, 1324 [“ordering it to bargain with the union certified by the B oard as the employees' elected representative ”], it alics added.)7

The District was not present at oral argument. We requested supplemental briefing on five specific questions designed to address the Union’s second argument. Supplemental briefing ma de clear the parties emphasize different words in t he phrase “elected representatives of the employees.” The Union puts the focus on “representative,” while the District stresses “elected.” In supplemental briefing, the Union argues the term “representat ive” in the labor law context typically refers to a labor union which has been elected to represent employees. It cites various provisions of the federal National Labor Relations Act of 1935 (NLRA) (29 U.S.C. § 151 et seq.), in which the term is so used. (E.g., 29 U.S.C. § 151 [policy of United States to protect the exercise of workers of “designation of representatives of their own choosing”]; 29 U.S.C. § 157 [employees have right “to bargain collectively through representatives of their own choosing”]; 29 U.S.C. § 159, subd. (a) [“ Representatives design ated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees ”].) The Un ion argues that a union becomes the employees’ repr esentative through an election, thus the employee’s elected representative is a union. The Union relies on cases that have turned to the NLRA and cases interpreting it to interpret California labor laws . (See, e.g., Los Angeles Metropolitan Transit Aut hority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 688

- 689 overruled in part by County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564; F ire Fighters Union v . City of Vallejo (1974) 12 Cal.3d 608, 617; Rae v. BARTSPA (1980) 114 Cal.App.3d 147, 152.) “When legislation has been judicially construed and a subsequent statute on the same or an analogous subject is framed in the identical language, it will ordinari ly be presumed that the Legislature intended that t he language as used in the later enactment would be given a like interpretation.” ( Los Angeles Metropolitan Transit Authority, at pp. 688

- 689.)8

The District argues the plain meaning of the term “elected representatives of the employees” should be used an d an election by all employees of the District is required. It notes that section 50120, subdivision (b)(2)(A), describing the composition of the arbitration board to resolve disputes in collective bargai ning, does not call for elected
members and refers specifically to union representatives. “The arbitration board shall be composed of two representatives of the transit board, two representatives of the labor organization, and a fifth member to be agreed upon by the representatives of the transit
board an d labor organization.” ( Ibid .) We do not find the language of s ection 50120 determinative. That section comes into play only if there is a union and collective bargaining. The D istrict must have a

re tirement board even if there is no union. If there were no union, the employees’ representative would have to be elected by the employees and section 99159 would not apply

. “We do not construe statutes in isolation. Rather, we read every statute taking into
consideration the entire scheme of law of whic h it is part. In doing so, the whole statutory scheme may be harmonized and retain effectiveness.” ( People v. Bush (2016) 245 Cal.App.4th 992, 1003.) “If two seemingly inconsistent statutes conflict, th e court’s role is to harmonize the law.” ( Stone St reet Capital, LLC v. California State Lottery
Com. (2008) 165 Cal.App.4th 109, 118.) Section 99159 requires, for retirement systems subject to collective bargaining, that the retirement board be “composed of equal representation of labor and management.” (§ 99159, subd. (b).) The parties agree that in this collective bargaining context, the term “labor” refers to the union. We join that agreement.
The District contends there is no conflict between sect ions 50150 and 99159
because section 99159 does not speak to the method of selecting employee representatives to the Board. It appears to assume that an election by all employees (including those in management of the District) will result in Union represe ntation. But it9

is unclear to us how there can be “equal representation of labor [the Union] and management” if the labor representatives are chosen in part by employees who are not members of the Union and the elected person may be someone who is not a m ember of the Union (or even an employee of the Dist rict). The District argues accepting the Union’s interpretation alters the method of selection of Board members from the election required by section 50150. It contends such a change must be approved b y the electorate under article XVI, section 17(f) o f the state constitution. The District’s interpretation, however, does not give effect to section 99159. In deciding between the two proposed interpretations, we consider “the maxim
that a statute must b e construed, if possible, to avoid constitutional i ssues.” ( People v.
Brown (1993) 6 Cal.4th 322, 335.) The Union’s position gives full effect to both section 50150 and section 99159 without raising constitutional concerns. Finally, we consider the past practice in the District. “It is a well

- establish ed rule of statutory construction that ‘ “[t]he contemporaneous and practical construction of a statute by those whose duty it is to carry it into effect, while not controlling, is always given great respe ct. And a contemporaneous interpretation long acqu iesced in by all persons who could possibly have an interest in the matter, has been held to be sufficient to justify a court in resolving any doubt it might have as to the meaning of ambiguous language em ployed by the legislature, in favor of sustaining s uch long unquestioned interpretation.’ ” [Citation.] Under these circumstances, the administrative practice will be upheld ‘ “unless it is clearly erroneous or unauthorized.” ’ [Citations.]” ( Steelgard , Inc. v. Jannsen (1985) 171 Cal.App.3d 79, 88.)
T he District admits that previously the Union sat on the Board. This practice is reflected in the negotiated Plan that sets the five

- member board as “two (2) members as representatives of [the District] (o ne being a member of the [District’s] Board of
Dire ctors and one Non

- Represented Employee representative) and two (2) representatives of the Union, and one Umpire Member (who shall only participate as a member of the10

Retirement Board when there is a deadlo ck vote of the other four members).” The
District explains that new and more experienced Board members with experience managing retirement plans, including the County’s, have questioned whether the current structure of the Board met legislative requiremen ts. We note there are significant
differences betw een the composition of a county retirement board and that of the District’s Board. Under the County Employees Retirement Law of 1937, two of the members of the retirement board are “ active members of the association elected by it within 30 days after the retirement system becomes operative in a manner determined by the board of supervisors .” (Gov. Code, § 31520; see also § 31520.1, subd. (a) [same except excluding safety members].) There is no provision for a union representative. Harmonizing and giving effect to sections 50150 and 99159, avoiding any constitutional questions, and taking into consideration the interpretation of “representative” in federal labor law and the past practices of the parties, we conclude
section 50150 does not authorize an ele ction by all of the District’s employees to fill the vacancy of a Union representative on the Board. Accordingly, the District had no authority to call for such an election or to pass bylaws regarding th e selection of Board
members. The trial court erre d in denying the Union’s petition for writ relief.11 DISPOSITION The judgment denying the Union’s petition for a writ of mandate is reversed . The superior court is ordered to grant the petition for a writ directing the District to comply
with section 99159 , ordering the District to cease holding any elections for Union seats on the Board and from purporting to enact bylaws or otherwise interfering with the administration of the Plan. The District shall pay the Union’s costs of this appeal. (Cal.
Rules of Court, rule 2.278(a).)

/s/ Duarte, J.

We concur:

/s/ Mauro, Acting P. J.

/s/ Renner, J.1

Filed 6/ 6 /19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRIC T

(San Joaquin)

----

AMALGAMATED TRANSIT UNION, LOCAL 276 et al., Plaintiffs and Appellants,

v. SAN JOAQUIN REGIONAL TRANSIT DISTRICT,

Defendant and Respondent. C086260 (Super. Ct. No. STK

- C V

UWM

- 2016

- 0009596)

ORDER CERTIFYING OPINION FOR P UBLICATION
[NO CHANGE IN JUDGMENT]2

THE COURT: The opinion in the above

- entitled matter filed May 8 , 201 9 , was not certified for publication in the Official Reports. For good cause it appears now tha t the opinion should be published in the Official R eports and it is so ordered.

BY THE COURT:

/s/ Mauro, Acting P. J.

/s/ Duarte , J.

/s/ Renner , J.3 EDITORIAL LISTING

APPEAL from a judgment of the Superior Court of San Joaquin County, Carter P. Holly, Judge

. Judgment reversed with directions. Neyhart, Anderson, Flynn & Grosboll and Benjamin K. Lunch for Plaintiffs and Appellants Amalgamated Transit Union, Local 276 and Alan Wagner.

Palmer Kazanjian Wohl Hodson, Treaver K. Hodson, and Alexandra M. Asterl in for Defendant and Respondent San Joaquin Regional Transit District.