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Filed 5/8/19; pub. order 6/6/19 (see end of opn.)

Reposted to provide 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.,

Plaintiffs and Appellants,

v.

SAN JOAQUIN REGIONAL TRANSIT DISTRICT,

Defendant and Respondent.

C086260

(Super. Ct. No. STK-CVUWM-2016-0009596)

This case involves the interpretation of provisions of the San Joaquin Regional 

Transit District Act (Pub. Util. Code, § 50000, et seq.) (Act)1relating 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 against 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 District proposes to conduct an election by all employees (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 argument, we vacated submission and ordered supplemental 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 harmonizes the two statutes, avoids any constitutional question, and is in 

accord with the use of the term “representative” in federal labor law and the longstanding practice of the parties--the only parties affected by the two statutes. 

Accordingly, we reverse.

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 certain labor protections. (See Stockton 

Metropolitan Transit 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 members 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 provision 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 employees 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) 
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Notwithstanding any other provision of this division, the retirement system and the funds 

of the system shall be managed 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 

evolution of public transit systems “through the takeover 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 

representation of labor and management” and be administered 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.” (Stats. 2003, ch. 845, § 1, p. 6231.)

Proposition 162, 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 California 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 the investment of moneys and 

administration of the particular retirement system, to be exercised to protect participants 

and beneficiaries. (Id. at pp. 1100-1102 & fns. 6-8, pp. 1110-1112; see also California 

State Employees’ Assn. v. Board of Administration (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 Proposition 162 provides in full as follows: 

 

2

 Both sections 50150 and 99159 are in division 10 of the Public Utilities Code.
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“With 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 otherwise 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 the 

electors of the jurisdiction in which the participants 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 subject to collective bargaining between the District 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 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 the Retirement Board when there is a 

deadlock vote of the other four members).” 

After a Union representative 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 be 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 herself, 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 provisions 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. 
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The Union filed a petition for a writ of mandate seeking to compel the District to 

comply with section 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 injunction, 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 Relief and Standard of Review

“There are two essential 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 of 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. (Newland 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., California Correctional Supervisors Organization, Inc. v. Department 

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 requires “a retirement board composed of equal representation 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 the 
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District to “create a retirement board of not more than five members, 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 District 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 members.”

The Union’s second argument is that the two 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 

interpretation 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 have 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 representatives of the employees” was a synonym for Union representative.3 

 

3

 “ ‘Terms 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 the term “elected representatives of the 

employees” is 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. (1958) 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 the Union as the validly elected representative of Dixon'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 Board as the employees' elected representative”], italics added.)
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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 made clear the parties emphasize different words in the 

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 “representative” 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 designated 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 Union argues that a union 

becomes the employees’ representative 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 Authority 

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; Fire 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 ordinarily be presumed that the Legislature intended that the language as 

used in the later enactment would be given a like interpretation.” (Los Angeles 

Metropolitan Transit Authority, at pp. 688-689.)
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The District argues the plain meaning of the term “elected representatives of the 

employees” should be used and 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 bargaining, 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 and labor organization.” (Ibid.) 

We do not find the language of section 50120 determinative. That section comes 

into play only if there is a union and collective bargaining. The District must have a 

retirement 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 which 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, the court’s 

role is to harmonize the law.” (Stone Street 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 sections 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 representation. But it 
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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 member of 

the Union (or even an employee of the District). 

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 by the electorate under article XVI, section 17(f) of 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 be construed, if possible, to avoid constitutional issues.” (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-established 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 respect. And a contemporaneous interpretation long acquiesced 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 employed by the legislature, in favor of sustaining such 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.)

The 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] (one being a member of the [District’s] Board of 

Directors 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 the 
10

Retirement Board when there is a deadlock 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 requirements. We note there are significant 

differences between 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 election 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 the selection of Board 

members. The trial court erred in denying the Union’s petition for writ relief.
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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.
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Filed 6/6/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(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-CVUWM-2016-0009596)

ORDER CERTIFYING 

OPINION FOR 

PUBLICATION

[NO CHANGE IN 

JUDGMENT]
2

THE COURT:

The opinion in the above-entitled matter filed May 8, 2019, was not certified for 

publication in the Official Reports. For good cause it appears now that the opinion 

should be published in the Official Reports and it is so ordered.

BY THE COURT:

 /s/

Mauro, Acting P. J.

 /s/

Duarte, J.

 /s/

Renner, J.
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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. Asterlin 

for Defendant and Respondent San Joaquin Regional Transit District.