Opinion
C088389
12-09-2019
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1021, Plaintiff and Appellant, v. COUNTY OF SAN JOAQUIN, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STK-CV-UAW-2018-009165)
Petitioner Service Employees International Union, Local 1021 (SEIU), appeals from the trial court's denial of its petition to confirm two arbitration awards involving disciplinary actions taken against a County of San Joaquin (County) employee represented by SEIU. SEIU argues the trial court erred in denying its petition and requests that we award it attorney fees given the County's refusal to comply with the awards. We agree the trial court erred in denying the petition and remand for further proceedings, including a determination as to whether SEIU is entitled to attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
In 2011 Terry Kitaguchi began working for the County. In January 2016 the County issued a disciplinary action of 30 days' suspension without pay. While Kitaguchi served the suspension, the County issued additional discipline in the form of a 15-pay period reduction. SEIU, on Kitaguchi's behalf, exercised its right to submit the disciplinary actions to final, binding arbitration (the record does not include the specific language SEIU used to request arbitration). The parties consolidated the disciplinary actions to be heard by a single arbitrator, Nancy Hutt, and they stipulated the matter was properly before her.
In September 2017, after the previous disciplinary actions but before the arbitration on those actions occurred, the County dismissed Kitaguchi from employment. SEIU requested arbitration on behalf of Kitaguchi "according to section 6, 7, and 8 of the County [C]ivil [S]ervice rule 18 and the current MOU between SEIU and San Joaquin County." The SEIU retained counsel to represent Kitaguchi, and the parties mutually selected Katherine Thomson to act as arbitrator.
As suggested by SEIU's request for arbitration, the right of an SEIU member to appeal disciplinary actions arises under both the County Civil Service Rules and Regulations (Civil Service Rules) and a Memorandum of Understanding (MOU) agreed to by the County and SEIU.
San Joaquin County Code
The San Joaquin County Code codified the creation of the Civil Service Commission (Commission) and authorized the Commission to adopt rules to carry out the provisions of the code. (SJ County Code, ch. 1, §§ 2-5000 through 2-5018.) In turn, the Commission created the Civil Service Rules.
Civil Service Rule 18 governs dismissal, suspension, demotion, or reduction of salary as it relates to County employees, including procedures for challenging disciplinary actions. Rule 18, section 3 provides: "The employee, within seven (7) calendar days after the order is furnished to the employee, may appeal the order in writing to the Director of Human Resources. The employee, in making the appeal, shall designate in writing whether the matter will be heard by the Civil Service Commission in accordance with Section[s] 4, 4.1, 5, and 8 of this Rule or whether the matter will be submitted to binding arbitration in accordance with Sections 6, 7, and 8 of this Rule."
Sections 4, 4.1, and 5 of rule 18 establish rules for hearings before the Commission, withdrawing an appeal, and the Commission's findings.
Section 6 of rule 18 states: "When an employee designates the matter to be determined by arbitration, the timing and procedure of such arbitration shall be established by agreement of the parties to the arbitration. Unless otherwise agreed, the arbitrator shall be selected from a list of five (5) individuals. Each party shall name two (2) such individuals and the fifth individual shall be a member of the State Office of Administrative Hearings. The parties then shall use a striking procedure to select the arbitrator. . . . The costs of the arbitration shall be borne equally by the parties."
Section 7 of rule 18 provides: "If an award by an arbitrator requires action by the Civil Service Commission or the Board of Supervisors before it can be placed in effect, the Director of Human Resources will recommend to the appropriate body that it act to make such award effective."
Section 8 of rule 18 states: "An employee shall have the employee's appeal determined by the Civil Service Commission or by arbitration but an employee shall not have the right to have the matter determined by both the Civil Service Commission and arbitration and a matter determined by one procedure may not be appealed through the alternate procedure. The determination by the Civil Service Commission or by arbitration is final and binding upon the parties and any appeal therefrom shall be to a court of competent jurisdiction within ninety (90) days of the decision of the Civil Service Commission or arbitrator."
Memorandum of Understanding
In the relevant MOU, the County and SEIU agreed to various terms and conditions regarding the employment of members of the Trades, Labor, and Institutional Bargaining Unit. The MOU addresses disciplinary actions against SEIU employees as follows:
"19.1. Applicability [¶] . . . [¶] To initiate disciplinary action against a permanent, Civil Service employee, the appointing authority must follow the provisions of Civil Service Rule 18. The appointing authority must submit to the employee a written notice of intent to take disciplinary action and file a copy with the Human Resources Division. The notice must state specifically the reason(s) for the action and explain the employee's 'Skelly' rights of appeal.
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
"19.2. Request for Hearing [¶] The employee may appeal the proposed action and request a hearing by responding in writing to the appointing authority within seven (7) calendar days of receipt of the notice. Upon receipt of a timely response, the appointing authority shall schedule and conduct a 'Skelly' hearing as soon as possible. [¶] . . . [¶]
"19.7. Appeal of Order of Disciplinary Action [¶] The employee, within seven (7) calendar days after the order is furnished to the employee, may appeal the order in writing to the Director of Human Resources. The employee, in making the appeal, shall designate in writing whether the matter will be heard by the Civil Service Commission or whether the matter will be submitted to binding arbitration. In accordance with the provisions of Civil Service Rule 18, selection of one appeal method shall exclude the possibility of appeal through the alternate procedure on the same issue. [¶] Appeal and arbitration hearings shall be conducted in accordance with Civil Service Rule 18." (Italics added.)
The concluding paragraph of the MOU states:
"20. ENTIRE AGREEMENT [¶] Except as otherwise specifically provided herein, the [MOU] fully and completely incorporates the understanding of the parties hereto regarding the provisions contained in this MOU. The parties, for the term of this Agreement, do not waive the obligation to negotiate with respect to any practice, subject, or matter within the scope of bargaining not specifically referred to or covered in this Agreement. In the event the County proposes a change in any practice, subject, or matter which is within the scope of bargaining and is not covered by this Agreement, the County will give the Union advance written notice of the proposal and will, upon request of the Union, meet and confer with the Union concerning the proposal."
Arbitration Background
The Hutt arbitration took place one week before the Thomson arbitration in February 2018. In May Hutt issued an opinion and award sustaining Kitaguchi's grievance in part and denying it in part. It found the 30-day suspension without pay disproportionate to the rule violations, and it reduced the suspension to seven days without pay. It also reduced the 15-pay period reduction to seven pay periods.
In June Thomson issued an opinion and award sustaining Kitaguchi's grievance in part. It stated the arbitration "arises pursuant to the agreement between [County] and [SEIU], under which [Thomson] was selected as Arbitrator pursuant to Section 19.7 of the contract between the parties and Civil Service Rule 18 , and under which this award is final and binding on the parties." (Italics added.) The parties stipulated that the matter was properly before Thomson and agreed "that the Arbitrator will retain jurisdiction over the award resulting from [the] proceeding for a period of 12 months for purpose of resolving any dispute over implementation of the remedy, if any, but not to reconsider the merits of the decision, which is final."
The award found the County only had cause for a 30-day suspension, not termination. And it ordered the County to reinstate Kitaguchi and make him whole, subject to the 30-day suspension, with backpay, interest, benefits, seniority, and other emoluments of employment.
Procedural Background
A dispute arose regarding the arbitrators' awards, and SEIU filed a petition in superior court to confirm the awards pursuant to Code of Civil Procedure section 1286, a provision of the California Arbitration Act (Arbitration Act). In opposition, the County argued section 1286 was not the proper statute for confirming the awards because the arbitrations arose out of Civil Service Rule 18. Therefore, according to the County, the awards were administrative orders challengeable only via a writ of administrative mandate pursuant to section 1094.5.
Further undesignated statutory references are to the Code of Civil Procedure.
The trial court denied SEIU's petition to confirm, stating: "Rule 18, subsection 8 provides that the determination by arbitration is final and binding and any appeal therefrom shall be to a court of competent jurisdiction."
DISCUSSION
I
Standard of Review
"We subject the trial court's rulings and the underlying award to different standards of review. To the extent the trial court made findings of fact in confirming the award, we affirm the findings if they are supported by substantial evidence. [Citation.] To the extent the trial court resolved questions of law on undisputed facts, we review the trial court's rulings de novo. [Citation.]" (Cooper v. Lavely & Singer Professional Corp. (2014) 230 Cal.App.4th 1, 11-12 (Cooper).) The trial court did not resolve disputed facts in deciding this matter, and therefore de novo review applies to the court's denial of SEIU's petition to confirm.
II
Procedure for Confirming Arbitration Awards
SEIU claims the trial court erred by denying its petition to confirm the arbitration awards. It contends the arbitrations arose out of the MOU, a contractual agreement between SEIU and the County, and therefore the court must confirm the awards pursuant to the Arbitration Act absent particular circumstances. SEIU also argues the arbitration awards are not administrative orders subject to review under section 1094.5 because the parties chose to arbitrate their disputes rather than appeal them to the Commission.
The County disagrees and contends the arbitrations took place pursuant to sections 6, 7, and 8 of Civil Service Rule 18, not the MOU, and therefore the awards are administrative orders reviewable by the superior court via a writ of administrative mandate pursuant to section 1094.5. We agree with SEIU.
A. Principles of Arbitration and the Arbitration Act
"California has a strong policy of favoring arbitration as an expeditious method of resolving disputes. As our high court has noted, 'the Legislature has expressed a "strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution." ' [Citations.] 'Consequently, courts will " 'indulge every intendment to give effect to such proceedings.' " ' " (Service Employees Internat. Union, Local 1021 v. County of San Joaquin (2011) 202 Cal.App.4th 449, 456 (SEIU).) Specifically related to the labor context, "California has a strong public policy favoring collective bargaining agreements, or MOU's, in the public employment sector." (Social Services Union v. Alameda County Training & Employment Bd. (1989) 207 Cal.App.3d 1458, 1465.)
Nonjudicial arbitration "is governed by the California Arbitration Act (§ 1280 et seq.) . . . , 'a comprehensive, all-inclusive statutory scheme applicable to all written agreements to arbitrate disputes.' [Citation.] Contractual arbitration awards, if valid, are presumed to be binding and final." (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1218.) " 'The statutes set forth procedures for the enforcement of agreements to arbitrate (. . . §§ 1281.2-1281.95), establish rules for the conduct of arbitration proceedings except as the parties otherwise agree (. . . §§ 1282-1284.2), describe the circumstances in which arbitrators' awards may be judicially vacated, corrected, confirmed, and enforced (. . . §§ 1285-1288.8), and specify where, when, and how court proceedings relating to arbitration matters shall occur (. . . §§ 1290-1294.2).' [Citation.]" (Cooper, supra, 230 Cal.App.4th at pp. 10-11.)
The Arbitration Act requires courts to confirm arbitration awards except under very narrow circumstances (discussed post). (§ 1286.) "Judicial intervention in the private arbitration process is strictly limited because the parties have agreed to 'bypass the judicial system' [citation] and submit their dispute to 'nonjudicial resolution by an independent third person or persons' [citation]. By agreeing to arbitration, parties anticipate a relatively speedy, inexpensive and final resolution, one that may be based on ' "broad principles of justice," ' rather than strictly the rule of law. [Citation.]" (Toal v. Tardif, supra, 178 Cal.App.4th at p. 1218.)
"Expanding the availability of judicial review of such decisions 'would tend to deprive the parties to the arbitration agreement of the very advantages the process is intended to produce.' [Citations.]" (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10 (Moncharsh).) "Ensuring arbitral finality thus requires that judicial intervention in the arbitration process be minimized." (Ibid.) "By ensuring that an arbitrator's decision is final and binding, courts simply assure that the parties receive the benefit of their bargain." (Ibid.)
In Cheng-Canindin v. Renaissance Hotel Associates (1996) 50 Cal.App.4th 676 at pages 687-688, the court discussed what attributes a dispute resolution procedure must have for the procedure to be considered arbitration under the Arbitration Act. The court identified three necessary elements: "[A]lthough arbitration can take many procedural forms, a dispute resolution procedure is not an arbitration unless there is a third party decision maker, a final and binding decision, and a mechanism to assure a minimum level of impartiality with respect to the rendering of that decision." (Ibid.)
B. Section 1094.5
Section 1094.5, subdivision (a) authorizes the issuance of a writ of administrative mandate "for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal . . . ."
In deciding a petition for writ of administrative mandate challenging an administrative decision, "the trial court is authorized to (1) examine whether the decision maker proceeded in excess of jurisdiction; (2) whether there was a fair trial; and (3) whether there was any prejudicial abuse of discretion because of a failure to proceed as required by law, the order or decision was not supported by the findings, or the findings were not supported by the evidence. The court is also authorized to consider the weight of the evidence." (American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 259 (Metro), citing § 1094.5, subds. (b) & (c).)
In Metro, supra, 126 Cal.App.4th at page 259, the court distinguished final, binding arbitration reviewable pursuant to the Arbitration Act from administrative decisions reviewable via administrative mandate pursuant to section 1094.5. The court concluded that a grievance procedure providing for a final appeal to a neutral hearing officer was not an arbitration reviewable by the Arbitration Act, despite language stating the hearing officer's decision was "final and binding," because the applicable MOU expressly stated the hearing officer's decision was appealable pursuant to section 1094.5. (Metro, at p. 259.) The court explained, "A hearing officer's decision is not final and binding where it is reviewable by a trial court under Code of Civil Procedure section 1094.5." (Ibid., italics added.)
C. Analysis
1. The Arbitration Award Was Not An Administrative Decision
Here, the grievance procedures set forth in the MOU and Civil Service Rule 18 satisfy each of the required elements for an arbitration. Neutral arbitrators presided over each proceeding, the MOU and Civil Service Rule 18 provided that the arbitrations would be final and binding on the parties, and there were substantial procedures in place to assure a minimum level of impartiality with respect to the rendering of the decision.
Nevertheless, the County contends the arbitration awards were administrative decisions, arguing that the proceedings arose exclusively by way of Civil Service Rule 18, sections 6, 7, and 8. But the record does not support the argument that the proceedings here arose exclusively out of the Civil Service Rules rather than the MOU. While the County emphasizes that SEIU requested arbitration "according to section 6, 7, and 8 of the County [C]ivil [S]ervice Rule 18," it discounts the remainder of the request: "and the current MOU between SEIU and San Joaquin County." SEIU expressly invoked the MOU, which is a negotiated contractual agreement between SEIU and the County authorizing County employees subject to disciplinary actions to pursue "binding arbitration." The County points to no evidence suggesting that the Hutt arbitration proceeded exclusively under the Civil Service Rules and not pursuant to the MOU. Given California's strong public policy favoring collective bargaining agreements and arbitration generally as expeditious methods of resolving disputes, we agree with SEIU that the arbitrations here arose out of the MOU.
Precedent dictates that review of final, binding arbitration awards arising out of an MOU are subject to review under the Arbitration Act. SEIU, supra, 202 Cal.App.4th 449 involved the same parties and a nearly identical MOU. (Id. at pp. 452-453.) The County discharged an employee, SEIU requested arbitration, and the employee subsequently retired. (Id. at p. 454.) The County refused to arbitrate the dispute because the employee had retired. (Id. at pp. 454-455.) SEIU filed a petition to compel arbitration. (Id. at p. 455.) The trial court denied SEIU's petition, concluding that the MOU did not contain an agreement to arbitrate disputes of former employees and that an arbitrator appointed pursuant to the MOU or the Civil Service Rules would not have jurisdiction over an employee who had retired. (Ibid.)
On appeal, we concluded the MOU constituted an agreement between the parties and the agreement allowed SEIU members to elect arbitration as a vehicle to challenge an unfavorable result in a Skelly hearing. (SEIU, supra, 202 Cal.App.4th at pp. 456-457.) We observed that the County and SEIU "could have agreed to make the civil service commission the exclusive forum for an SEIU member's appeal after a Skelly hearing." (Id. at p. 457.) But the MOU "clearly shows that the County and SEIU agreed to allow union employees to elect binding arbitration for the appeal of their disciplinary actions." (Ibid.)
In SEIU, as here, SEIU timely elected to arbitrate the disciplinary action pursuant to the MOU, which required that the arbitration proceed pursuant to the requirements in Civil Service Rule 18. (SEIU, supra, 202 Cal.App.4th at p. 457.) We concluded the parties' actions "confirmed that the MOU constitutes an agreement to arbitrate disciplinary actions upon timely election by the employee." (Ibid.) Therefore, we held, "the trial court erred in concluding that the MOU does not constitute an agreement to arbitrate disciplinary actions between the County and its employees who are represented by SEIU." (Ibid.)
In Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106, Zazueta appealed from a judgment sustaining a demurrer to his petition for writ of mandate pursuant to section 1094.5 and Government Code section 3309.5. Zazueta's employment was governed by an MOU that required binding arbitration. (Zazueta, at p. 109.) The arbitrator upheld Zazueta's termination. (Ibid.) Zazueta petitioned for a writ of mandate seeking judicial review of the decision, and the trial court sustained the County's demurrer without leave to amend. (Id. at p. 110.) The appellate court concluded section 1094.5 was inapplicable because Zazueta did not pursue administrative remedies before the board of supervisors, but instead pursued binding arbitration pursuant to the MOU. (Zazueta, at p. 110.) The court observed that judicial review of arbitration awards is limited to section 1286. (Zazueta, at p. 110.)
Together, SEIU and Zazueta demonstrate that the MOU is an agreement between the County and SEIU to arbitrate disputes and that section 1286 is the proper vehicle for confirming disputes arising from arbitration awards.
2. The Effect Of The Civil Service Rules Is Not What The County Argues
Further, even assuming the County is correct that the arbitrations arose exclusively out of the Civil Service Rules, the County does not explain why final, binding arbitration awards arising out of proceedings satisfying each of the required elements of an arbitration become administrative orders simply because the proceedings arose from the Civil Service Rules rather than the MOU.
In Porter v. Golden Eagle Insurance Company (1996) 43 Cal.App.4th 1282 (Porter), we analyzed a similar situation in which the Insurance Code required arbitration between a motorist and his insurance company regarding the application of the motorist's uninsured motorist insurance. (Id. at p. 1285-1286.) Following an arbitration award in his favor, the motorist filed a petition to confirm the award in the trial court. (Id. at p. 1286.) The trial court confirmed the award, and the insurance company appealed and argued the arbitrator failed to follow the law. (Id. at p. 1287.)
We held that arbitrations carried out under statutory compulsion were only reviewable under the limited grounds set forth in the Arbitration Act. (Porter, supra, 43 Cal.App.4th at p. 1290.) We observed that the Arbitration Act encompasses all " 'private,' 'contractual' arbitration, including that which is compelled by statute," and we determined that the Legislature would have had no reason to distinguish between arbitrations arising out of private contract and those stemming from statutory mandate "because it wished to encourage all such arbitration to the greatest extent possible." (Id. at p. 1289.)
We also observed, "the public policy underlying the encouragement of contractual arbitration applies equally to all forms of such arbitration. Whether parties go to arbitration because they have contracted to do so or because the Legislature has decided to make arbitration the primary means to resolve certain classes of dispute, the attributes of speed, efficiency, and economy which distinguish arbitration from the judicial process remain constant. Judicial review of the merits of arbitration awards would vitiate these attributes just as surely where arbitration is mandated by statute as where it is chosen by contract." (Porter, supra, 43 Cal.App.4th at p. 1289.)
The logic of Porter applies equally well here. We see no reason why the Legislature would intend to carve out an exception to the general rule of limited judicial review of arbitration awards simply because a final, binding arbitration occurs pursuant to the Civil Service Rules. The public policy considerations underlying the encouragement of arbitration--and the limitations on judicial review--apply equally well here whether the arbitrations arose out of the MOU or the Civil Service Rules.
The County contends Civil Service Rule 18 is an administrative order because section 8 of rule 18 provides for a 90-day appeal period, which is consistent with the period permitted for appealing administrative decisions under section 1094.6. We are not persuaded.
In Metro, supra, 126 Cal.App.4th 247, the court resolved a seemingly conflicting provision of an MOU providing that a hearing officer's decision was "final and binding on the parties" but also "appeal[able] pursuant to . . . section 1094.5." (Id. at p. 258.) The court harmonized the conflicting provisions by concluding "final and binding" in the context of the MOU meant only that the hearing officer's decision was final and binding provided that neither party triggered trial court review pursuant to section 1094.5. (Metro, at p. 259.) But here, there are no conflicting provisions suggesting that the arbitrations are not final and binding. Neither the MOU nor the Civil Service Rules expressly state that final and binding arbitration awards are subject to review under section 1094.5. And given the strong public policy in favor of final, binding arbitration, we decline to conclude that the Civil Service Rules limiting the appeals period to 90 days is in any way equivalent to expressly providing for review of arbitration awards pursuant to section 1094.5.
3. Wrap Up
Based on the foregoing, we conclude that the instant arbitration awards are indeed arbitration awards subject to confirmation pursuant to the Arbitration Act. (Moncharsh, supra, 3 Cal.4th at pp. 12-13.)
Finally, we note the County made a request for judicial notice of its writ of administrative mandamus in footnote 4 of its respondent's brief. California Rules of Court, rule 8.252 states that a party seeking judicial notice by a reviewing court must serve and file a separate motion with a proposed order. We deny the County's request on procedural grounds. Moreover, given our holding, we observe the County's writ is an improper vehicle for challenging the instant arbitration awards.
IV
Remand
On remand and with respect to both arbitration awards, the trial court must determine whether to confirm, correct, or vacate the awards, or dismiss the petition. (See Moncharsh, supra, 3 Cal.4th at p. 33; Cooper, supra, 230 Cal.App.4th at p. 11.) The County contends that only the Thomson award is at issue here, but SEIU contests that assertion, and the County has not presented evidence to support it. Moreover, SEIU's petition for confirmation of the arbitration awards sought confirmation of both awards, and we are aware of no provision prohibiting confirmation of an award that has been paid in full. (See §§ 1285 ["Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award"]; 1286 ["If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding"; 1285.4 [petition to confirm award shall set forth substance of agreement to arbitrate and the name of the arbitrators, and it shall attach a copy of the award and opinion of the arbitrators].)
As we discussed ante, the Arbitration Act requires confirmation of arbitration awards except under narrow circumstances. (§ 1286.) The court may vacate an arbitration award where: (1) the award was procured by corruption, fraud or other undue means; (2) there was corruption in any of the arbitrators; (3) the rights of the party were substantially prejudiced by misconduct of a neutral arbitrator; (4) the arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; (5) the rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title; and (6) an arbitrator failed to disclose grounds for disqualification. (§ 1286.2.) The court may correct an award where there was an evident miscalculation, where the arbitrator exceeded her powers, or where the award is "imperfect in a matter of form, not affecting the merits of the controversy." (§ 1286.6.) Finally, the court may dismiss the proceeding "as to any person named as a respondent if the court determines that such person was not bound by the arbitration award and was not a party to the arbitration. (§1287.2.)
V
Attorney Fees
SEIU requests that we award it attorney fees because the County refused to abide by the arbitrators' awards. We decline to do so, but on remand the trial court must consider whether an attorney fees award is appropriate.
Attorney fees may be awarded by the trial court where there has been a threshold showing of bad faith. (See Carpenters Health & Welfare Trust Fund v. Acme Indus. (1990) 224 Cal.App.3d 187, 191.) Although SEIU points to International Union of Petroleum and Industrial Workers v. Western Industrial Maintenance (9th Cir. 1983) 707 F.2d 425 to support the proposition that we may order attorney fees, that case is inapposite. There, an employer appealed from the district court's award of attorney fees, and the appellate court affirmed the trial court's award. (Id. at p. 427.)
Here, the trial court did not award attorney fees, and whether a party has acted in bad faith is a determination for the trial court. (See Placentia Fire Fighters v. City of Placentia (1976) 57 Cal.App.3d 9, 25.) The court shall make that determination on remand.
DISPOSITION
The judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. Petitioner shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Krause, J.