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




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                    THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                        ----




AMALGAMATED TRANSIT UNION, LOCAL 276                                       C086260
et al.,
                                                                    (Super. Ct. No. STK-CV-
                  Plaintiffs and Appellants,                          UWM-2016-0009596)

         v.

SAN JOAQUIN REGIONAL TRANSIT DISTRICT,

                  Defendant and Respondent.




         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 against the San Joaquin Regional Transit District (the District),



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

                                                         1
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 long-
standing 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)

                                              2
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.

                                                3
               “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.




                                             4
       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

                                               5
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.)

                                               6
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.)

                                              7
         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

                                              8
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

                                               9
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.




                                             10
                                      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.




                                             11
Filed 6/7/19
                              CERTIFIED FOR PUBLICATION




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (San Joaquin)
                                              ----




AMALGAMATED TRANSIT UNION, LOCAL 276                            C086260
et al.,
                                                         (Super. Ct. No. STK-CV-
                 Plaintiffs and Appellants,                UWM-2016-0009596)

        v.                                               ORDER CERTIFYING
                                                           OPINION FOR
SAN JOAQUIN REGIONAL TRANSIT DISTRICT,                     PUBLICATION

                 Defendant and Respondent.                  [NO CHANGE IN
                                                              JUDGMENT]




                                              12
       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.




                                            13
                               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.




                                         14
