Union Negotiations in the California Superior Courts:
Should the Court Executive Officer sit at the Bargaining Table?
Tammy L Grimm
Court Executive Officer
OVERVIEW
The purpose of this paper is to explore whether the California Superior Courts should have their Court
Executive Officer, who serves as the decision maker in union negotiations, physically sit and actively
participate at the bargaining table. As a current Court Executive Officer, (hereinafter referred to as CEO), I will
share my perspective on this issue, as well as insight from colleagues and human resource professionals in the
judicial branch, examining the pros and cons of having the CEO at the bargaining table. To assist in illustrating
my rationale, I will utilize my own personal observations and experiences that occurred during a successful
and historic health care and retirement reform negotiation that I was responsible for in 2013- while not sitting
at the table. Before I delve into these matters, I will first give a brief history of the California Superior Courts
and the role of the CEO.
THE CALIFORNIA SUPERIOR COURTS AND ADMINISTRATIVE OFFICE OF THE COURTS
At present, there are 58 Superior Courts in California- one in each County. In June 1998, California
constituents, under Proposition 2201, voted in favor of a constitutional amendment that merged hundreds of
Superior and Municipal Courts, each with their own unique jurisdiction and rules. All of these courts were
consolidated into one Superior Court for each of the 58 counties, with the Superior Court having full authority
and jurisdiction over all civil and criminal matters.2
This “unification”3 effort in California has resulted in the nation’s largest court system, serving more
than 8.5 million cases each year4. Each of the new “unified” Superior Courts has flexibility in the control and
maintenance of their personnel, budget, and organizational structure, although they are overseen by the
Judicial Council, which is the governing body of the California Courts. The California Constitution allows the
1
Courts. Superior and Municipal Court Consolidation. California Proposition 220- California Law. (2008).
Summary Analysis by the Office of Legislative Analyst for Proposition 220 (2008). In University of California, Hastings College of the
Law UC Hastings Scholarship Repository, at http://repository.uchastings.edu/ca_ballot_props
3
Analysis of Trial Court Unification in California: Final Report (September 2000)- submitted to the Administrative Office of the Courts
by the American Institutes for Research, at http://www.courts.ca.gov/documents/928rept.pdf
4
2013 Court Statistics Report: Statewide Caseload Trends, report submitted to the Judicial Council. Available at
http://www.courts.ca.gov/documents/2013-Court-Statistics-Report.pdf
2
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Judicial Council to create and implement policy guidelines to the 58 County Superior Courts as well as adopt
and revise California Rules of Court in the area of court administration, practice, and procedure.5 The Judicial
Council performs its constitutional and other functions with the support of its staff agency, the Administrative
Office of the Courts (hereinafter referred to as the AOC).6 It is through the AOC that the 58 Superior Courts
are able to receive essential resources and crucial support services such as legal opinions, legislative advocacy,
policy clarifications, financial allocations, emergency funding, statutory interpretation, etc. One area in which
the AOC significantly supports the Superior Courts is in labor negotiations, providing free access to a
professional team of talented and experienced human resource personnel who are available to travel to each
County, at the request of the CEO, to assist a Superior Court as the Chief Negotiator for the Court during union
meetings and negotiations.
THE COURT EXECUTIVE OFFICER (CEO)
Within each of the 58 Superior Courts, there is a statutory leadership position entitled “Court Executive
Officer.” This position is like the City Manager, Superintendent, or County Administrative Officer in other
public sectors; the CEO is tasked with responsibilities ranging from oversight and leadership over personnel,
budget, labor negotiations, contracting, technology, jury management, calendaring, etc. Rule 10.610 of the
California Rules of Court7 outlines the responsibilities and duties of the Court Executive Officer, which include,
for purposes of this paper, the following:
(b) Acting under the direction of the presiding judge, the court executive officer is responsible
for overseeing the management and administration of the nonjudicial operations of the court
and allocating resources in a manner that promotes access to justice for all members of the
public, provides a forum for fair and expeditious resolution of disputes, maximizes the use of
judicial and other resources, increases efficiency in court operations, and enhances services to
the public.8
(c)…the court executive officer must perform the following duties….
(3) Contracts. Negotiate contracts on behalf of the court…9
THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF INYO- HISTORY OF UNION
5
Article VI, section 6, California Constitution. Also see California Rule of Court 10.1, subsections (a) –(c).
California Rule of Court 10.1, subsection (d).
7
California Rule of Court 10.610.
8
Id at section (b).
9
Id at section (c)(3).
6
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The Superior Court of California, County of Inyo is a small, rural, geographically remote two-judge court
in the Eastern Sierra. With two Court branches (Bishop and Independence), the County’s 18,000 citizens are
still often isolated from access to justice since the County is the second largest in land acres in the state, and
the third largest geographically derived County in the nation. Often, citizens of Death Valley- or Inyo
communities bordering Nevada- will have to drive five hours to get to the nearest courthouse. As an example
of the isolation and remoteness of this California County, imagine the nearest major airport being 5 hours
south and the nearest Walmart being 3 hours away by car!
The Superior Court of California, County of Inyo has 18 staff, with fourteen represented by the AFSCME
union under one “court” bargaining unit. The remaining four employees are managers exempt from union
representation. This court has historically applied and implemented all decisions made in union negotiations
upon the managers/non-represented employees. Therefore, if the union negotiates for a pay increase, or the
Court receives partial payment of health benefits by employees, the CEO will almost always implement the
same agreement upon the Managers.
Over the past years, the staff of the Superior Court of California, County of Inyo has been fortunately
exempt from the highly-publicized statewide budget crisis and judicial branch deficit. This was due to solid
fiscal oversight, sound resource management, and a healthy reserve kept by the Court’s administration. When
the Judicial Branch called for all court employees statewide to furlough, Inyo did not. This is because the
Court could afford to pay for the furlough days out of the Court’s pot of reserves. Further, through 2013, Inyo
was one of the only courts in the state of California that managed to fund, at 100%, the cost health care,
dental care, vision, and retirement for their employees and their families.
With a healthy reserve and no financial issues, the fact is that union negotiations with the Court, up
through 2013, had always resulted in positive incentives for employees with virtually no concession or benefit
to the Court. Prior negotiations were for wage increases and additional holidays, with nothing given back to
the Court. The last time the Court-union met was in late 2010, with my predecessor serving as decision
maker, when a three year Memorandum of Understanding (hereinafter referred to as MOU) was negotiated,
giving 7% to staff over a three year period. There were no concessions given to the Court. It was with this
knowledge- and a very different set of financial circumstances- that I entered negotiations in 2013 to deal with
the contract expiration of the three year MOU.
THE NEGOTIATIONS: LATE 2013
Why negotiate? In late 2013, the Court’s three year MOU was getting ready to expire with AFSCME.
In addition, the fiscal forecast had dramatically changed. The Governor swept $1.5 million from Inyo Court’s
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reserves the prior year, and had ordered those Courts with reserves to deplete their savings accounts by June
30, 2014.10 The Governor decided that the Courts should parallel the funding of other public agencies, which
are not permitted to keep a reserve account of more than 1% of their allotment.11 Therefore, as CEO, I had to
prepare my court by reducing and spending down our reserve and coaching staff on how we would best stay
within the annual allocation allotted by the Governor’s Budget each year, starting in 2014.
In addition, the Governor cut the Judicial Branch budget dramatically, causing a deficit of $80,000
minimum for Inyo that I needed to make up somewhere. Times were changing, and the only option I could
professionally see- besides laying people off- was to turn to the union to ask for health and retirement
contributions from its member employees. With this, I began to prepare for the negotiations.
Authority to negotiate? Unlike several public sector leaders, the Court CEO is unique in that he/she is
given full authority by the Presiding Judge and bench to negotiate and make all financial assertions on behalf
of the Court- without having to consult a council, board, or other public group prior to making a final decision.
In preparation for this negotiation, I prepared my bottom line and ideas in writing and presented them to the
Judges. I had come up with an amount that I was willing to spend to get the reform efforts I needed. My
judges gave me full authority to make decisions up to the threshold that I presented, which allowed me to
make instantaneous decisions in the negotiations process.
THE BIG QUESTION: SHOULD THE CEO DECISION-MAKER SIT AT THE TABLE?
After contacting the AOC, I was surprised to learn that no written policy or legal opinion exists
regarding CEOs sitting at the bargaining table; however, both the labor negotiators and legal professionals at
the AOC strongly urged me against it. In surveying my CEO colleagues, I was surprised to learn that only one
CEO of the 58 courts always sat at the table and served as Chief Negotiator, while the other 57 said they would
bring in an AOC negotiator every time rather than enter the negotiations themselves. Originally considering
direct negotiation with the union, the statistics and advice of the AOC steered me towards concluding that I
needed assistance with the process.
With that, I requested and brought in an experienced, trustworthy, and respected negotiator from the
AOC. During the negotiations, I sat in my office and the Negotiator consulted with me during caucuses and
breaks, or when a decision needed to be finalized. The result was exceptional- our Court was able to obtain,
for the first time ever, pension and health care contributions from the members, assisting the Court with the
sudden fiscal deficit it faced. The Court and Union came to a three year MOU, with contributions for health
10
“Governor Sweeps Funds Out From Under California’s 58 Trial Courts,” by Maria Dinzeo, Courthouse News Service, Wednesday,
December 5, 2012.
11
See InFocus: the Judicial Branch Budget Crisis- Financing the California Courts at www.courts.ca.gov
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and pension plans increasing 2% each fiscal year for the members. The negotiation worked out perfectly for
the Court, and the member employees received one-time payouts from our reserve account to help offset
these increases.
About two days after the negotiations, two union staff who sat at the table with the Business Agent,
approached and asked why I didn’t “show my face” at the negotiations since my leadership platform is that I
am an “open door” leader who wants staff to be informed and come to me with problems. They were
appalled that I didn’t have the “decency to dignify and participate in the process,” as one Clerk stated. These
comments got me pondering the role of CEO at the bargaining table. As a Court Executive Officer with
decision-making power, should I have been at the bargaining table? Did I lose any respect from staff by not
being there? With these questions, I examined the pros and cons of having Court Executive Officers
participate in the process by physically sitting at the bargaining table.
PROS AND CONS OF THE CEO DECISION MAKER BEING AT THE BARGAINING TABLE
The CEO’s presence builds rapport and relationships with staff and union. PRO. There is no doubt
about it- sitting at the bargaining table most likely would have stopped the comments I received and the
negative perceptions staff. It is unfortunate that not sitting at the bargaining table challenged my leadership
platform, and had employees questioning my management philosophy. Sitting at the table, in the eyes of the
represented employees, seemed to be linked to how I valued their work and their contributions to the Court.
Having the labor negotiator quote my sincere thanks and recognition of employee hard work was not enoughthey wanted to hear it straight from the CEO.
CEO Hector Gonzalez of the Superior Court of California, County of Mono is currently the only CEO in
California who prefers to serve as the Main Negotiator in his collective bargaining negotiations.12 Mono,
another small two-judge court in the Eastern Sierra, has fewer employees than Inyo. In my conversations with
Mr. Gonzalez over the years, and in a candid statement via email on September 9, 2014, CEO Gonzalez is
adamant that the CEO’s direct bargaining with the union is the key to a successful Court-Union relationship,
and that is why he continues to ignore AOC advice to have a separate labor representative.13 He shared with
me that he has an excellent relationship with the union representative, and because of that, he feels his Court
has not had any major issues or attacks from the union.14 He states that he feels that unions often view
outside labor negotiators as “hired guns” who cannot adequately or effectively comprehend our court needs,
12
Email between Tammy L. Grimm, (Court Executive Officer- Superior Court) and Hector Gonzalez, CEO (Superior Court of California,
County of Mono). September 9, 2014.
13
Id.
14
Id.
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employees, and operations enough to effectively negotiate on behalf of the Court. 15 For these reasons, he is
unwavering in his decision to continue to sit at the table and also to maintain open communication with the
union representatives at least once a month to update them about potential personnel issues, grievances, and
employment matters.16
The CEO’s attendance indicates their commitment to the negotiation process, interest in the
negotiations, and dignity of the situation. PRO. After negotiations, a represented Court Clerk asked me why I
was not “caring enough” to show up to the union negotiations. She did not accept that I was in the building
and involved in the process outside the room. It was apparent that being at the table was, in this clerk’s mind,
a direct link to my sincerity. She believed that I would have been able to help the union understand the
Court’s financial plight better if I personally explained the fiscal documents disseminated through my labor
negotiator. She wanted to see the emotion about the situation on my face to give credibility to the fiscal
reality. She urged me to think about being a more “hands-on” leader in the negotiation process, ironically,
when asked if my presence would have changed the outcome of the situation, she stated that she didn’t
believe it would have at all, and they would have voted the same way.
The CEO who sits at the table can often immediately confirm or explain basic facts asked by the
Union, including number of layoffs, fiscal forecast, management decisions, current policies, etc. PRO. Often
in negotiations, the union will have questions that they want the CEO or court to answer. These could be
simple questions about number of layoffs that have or will occur, the Court’s financial allocation in the
upcoming year, how many employees are in a particular classification, the reasoning behind a recent
management decision that involved personnel, etc. All of these questions can be most likely answered quickly
by the present CEO, saving time.
CEOs make daily decisions impacting the court employees/union membership; these decisions are
not always popular, and may impact the perception or treatment of the CEO who sits at the bargaining
table. CON. Being a CEO is not an easy position; we must do what is right for the organization and make
extremely difficult choices in the Court’s best interest which often impacts staff. CEOs are often viewed as the
“mouthpiece” of the organization, and often have to deliver the “bad” or “unpopular” news to the employees.
15
16
Id.
Id.
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Employees sometimes view CEOs, after making an unpopular decision, as overpaid leaders who are just
bureaucrats who make their lives extra hard and don’t understand what they do on.
For example, a CEO in another Court recently moved two of her least-senior employees from one court
location to another based on court statistics and filings. It was clear to my colleague based on thorough
evaluation and analysis, that this work location needed more assistance, especially since it had come to her
attention that the location had a ten day processing backlog. Moving the two employees was not popular
with the employees and many staff harbored ill feelings towards this CEO. At the time of negotiations a few
weeks later, this CEO was still not as “well-liked” by the union membership as she had been prior to her
reorganizational decision. It is possible this CEO’s presence could invoke “undesirable thoughts” of
management. According to Scott Gardner, Human Resources Manager at the AOC, “many times, a poorlyreceived CEO, sitting at the bargaining table, just puts a negative image in the heads of the union team, which
makes them less likely to thoughtfully consider a deal.”17
CEOs are tasked with oversight of all nonjudicial functions in an organization- not just labor
negotiations. Devoting and carving out appropriate time to adequately and effectively complete the
negotiation process could be problematic. CON. CEOs are busy people. When I am “off” work, I am really
not off. I have my tablet and cell phone with me 24 hours a day, including on the bed nightstand! My day
consists of problems with Court community partners, personnel, budget, legislative initiatives, facilities
management, procurement, jury, court calendaring , and committee involvement- to name a few. For a
California Court CEO to carve out days of dedicated, non-interrupted time to sit at a table and negotiate
without disruption would be difficult.
The negotiation for health care and pension reform went on for 22 hours over three days. During this
time I was in my office putting out fires for other court-related issues. I cannot fathom how any of my
colleagues or I could commit, in good faith, this many hours to sit at the bargaining table without severe
detriment to o court operations. It would be unfair to the process if the CEO at the bargaining table had to
continuously “step out” of the room to take calls, handle issues, or cancel portions of the negotiations due to
other workplace complications. In the alternative, it would not be fair to the Court to have me “speed along”
the process due to my need to get back to other tasks, or due to my impatience with the process.
17
Email between Tammy L. Grimm, (Court Executive Officer- Superior Court) and Scott Gardner (Human Resources Manager,
Administrative Office of the Courts). September 9, 2014.
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The CEO is not usually a skilled, professional negotiator who knows all the tricks, tactics, and
posturing that often is exposed at the bargaining table. CON. While I have a Master’s Certificate in Dispute
Resolution and a law degree, I would not assert that I am ready to negotiate a contract on behalf of my Court.
I recognize that the union Business Representative sitting across from me does this for a living. It was this
point that drove my decision to ask the AOC to bring in a skilled negotiator into my Court. Why not utilize the
available resources of a skilled, experienced, trained negotiator when they are available, free of charge,
through the AOC? These AOC negotiators have been in the business for decade. They are trained to work
with union representatives and write and negotiate acceptable contracts.
An inexperienced CEO at the bargaining table can result in expensive mistakes to the Court- and to
the CEO’s reputation. CON. I admit, if I were forced to bargain right now, I’d be lost. What could happen?
Most likely the union negotiator would do all the talking and I’d do the listening. But I would also be nervous
because inexperience could result in costly mistakes that could impact the Court. What if I showed all my
cards too soon? What if I got to my bottom line too fast? What if I answered questions that shouldn’t be
answered? What if I didn’t follow proper procedure about putting agreements in writing and relied on the
union’s scribe and notes? What if I didn’t understand what the union representative was asking, and then,
due to a misunderstanding, we failed to reach agreement? Inexperience can mean mistakes. Mistakes can
ruin reputation. I feel that if bargaining is not your primary job, you probably shouldn’t be engaging in itespecially if it means money to your organization or impacts your employees. Money, costs to employees,
savings to the employer, and reputation are all at stake.
A CEO at the Bargaining Table can cause confusion as to who is the “official spokesperson” for the
Court. CON. If I would have sat at the bargaining table, I still would have resolved to bring in a professional
negotiator to serve as my official spokesperson. This might have confused staff, as they are accustomed to
deferring their questions and waiting for direction from me. If I were to sit at the table and not answer,
instead referring to my spokesperson, the union and employees may view me as being rude and ineffectual. I
am sure that the CEO’s presence in the room can be equally problematic for the professional
negotiator/spokesperson who would have to fend off the union’s attempts to bypass him or her to get to the
CEO.
Union members and representatives like to use negotiations to be “heard”- this often involves
attacking past decisions and current leadership of the Court, which places the CEO in the direct fire of
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personal and professional attacks at the bargaining table. CON. When the Court asks for concessions of
employee/members, the union often tries to discredit management decisions and leadership and blame the
financial and organizational state of the Court on the CEO.18 While this can happen with the CEO present or
not, the union is more likely to be candid and open in comments and not hold back on what they wish to state
with the CEO is not present.19
Six years ago, I sat in on a Court union negotiation in a Northern California Court. The CEO, who was
not present, was called a “devil,” “inept,” “a waste of breath,” “hopeless,” “a bungling fool,” and an “unskilled
idiot.” These comments can affect the direction of the talks if stated directly to a CEO. It might even obstruct
the overall outcome of the negotiation process. It is best if the union can candidly vent without the CEO
present.
The CEO, as ultimate decision maker, is also placed on the spot and expected to have immediate
answers when serving as Chief Negotiator at the bargaining table. Con. When sitting directly across from
the union in negotiations as the Court’s decision maker, it doesn’t come across very well if the CEO cannot
answer every question posed by the union. The Union expects a prompt response. It is a little difficult to say
“I don’t know the answer to that” or “I’ll get back to the union on that issue” when you are the one making
those decisions. And, if you do, this portrays a type of weakness of the CEO to the staff. 20 Instead, the CEO is
almost forced to make an instant decision which could be poorly thought out. 21
There is an advantage to the CEO by having a labor negotiator run the process: the labor negotiator
can tell the union that a proposal or idea needs to be taken back to the CEO. 22 This gives the negotiator
leeway in the negotiations and a chance to strategically advance negotiations.23 This also provides the CEO
time to reflect on and analyze the proposal before responding to the Union.
A CEO sitting at the bargaining table will be blamed for errors or issues with the MOU. CON. If a
mistake is made in an MOU, or if the union feels that what it signed is in someway unfair, the blame will be
placed on the CEO who was leading at the bargaining table. However, hiring a professional negotiator deflects
18
Id.
Id.
20
Email between Tammy L. Grimm, (Court Executive Officer- Superior Court) and Michael Guevara (Human Resources Senior
Manager, Administrative Office of the Courts). September 3, 2014.
21
Email between Tammy L. Grimm, (Court Executive Officer- Superior Court) and Scott Gardner (Human Resources Manager,
Administrative Office of the Courts). September 9, 2014.
22
Id.
23
Id.
19
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this blame away from the CEO and to the negotiating team providing some protection for the Court CEO’s
reputation.24
Possible claims for retaliatory employment actions rise when CEOs sit at the bargaining table, versus
a non-Court professional negotiator. CON. When court employees/union members are present in
negotiations, sometimes emotions get heated and can result in unforeseen eruptions. These employees often
use these documented outbursts as a “shield” for acting out in the workplace. 25 According to Michael
Guevara, Senior Manager of Human Resources for the AOC, “if you are at the table and experience first hand
their outbursts or have their anger directed to you, then at some point- for legitimate reasons- the employee
is disciplined, the union will take every opportunity to claim it is a retaliatory act based upon protected union
activity (bargaining). “26
The CEO, if sitting at the bargaining table, may be the direct target of any persistent hostility and
animosity consequential from the labor negotiation, thus negatively influencing future labor relations. CON.
During demanding, and at times unpleasant negotiations, an underlying animosity can often occur between
the union and court leadership. Scott Gardner, Labor Relations Manager for the AOC states, “if the CEO is at
the table during the entire process, the CEO becomes the villain, and the union will remember what the CEO
‘put the employees through’.”27 According to Gardner, who has negotiated collective bargaining agreements
for 25 years, it is best if, after a hard negotiation, that tension can be guided towards the chief negotiator, not
the CEO.28 Hiring or employing the services of a professional negotiator allows them to take on the persona
non grata of “bad guy”- insulating the CEO somewhat from the conflict.29 If the CEO is the target of the
animosity, the CEO will have a harder time than the professional negotiator, who can leave at the conclusion
of the negotiations.30 The CEO has to remain in the organization, with bad feelings lingering and infecting the
workplace.31
CONCLUSION
24
Id.
Email between Tammy L. Grimm, (Court Executive Officer- Superior Court) and Michael Guevara (Human Resources Senior
Manager, Administrative Office of the Courts). September 9, 2014.
26
Id.
27
Email between Tammy L. Grimm, (Court Executive Officer- Superior Court) and Scott Gardner (Human Resources Manager,
Administrative Office of the Courts). September 9, 2014.
28
Id.
29
Id.
30
Id.
31
Id.
25
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There are pros and cons to negotiating a labor contract. As a new CEO, I originally considered direct
negotiation with the union in an attempt to preserve relationships and to assist with my open door policy,
which consists of open and honest communication with my staff. However, after examining the pros and cons
of having the CEO sit at the bargaining table, and having gone through the negotiation process with the
assistance of a skilled AOC negotiator, I would definitely side with the majority of Courts in California and state
that a trained negotiator running the process is a necessity in the best interests of the Court, Union, and all
participants. Negotiations can be emotionally charged, and it is better for professional, skilled negotiators to
handle the negotiation process to insulate the Court from a variety of issues.
Submitted by:
Tammy L. Grimm
Court Executive Officer
THROUGH JULY 31, 2014:
Superior Court of California, County of Inyo
301 W Line Street
Bishop, CA 93514
(760) 920-8110
[email protected]
AS OF NOVEMBER 10, 2014:
Superior Court of California, County of Imperial
939 West Main Street
El Centro, CA 92243
(760) 482-2200 work/(760) 604-4336 cell
[email protected]
**The author wishes to thank communications and insight shared on this topic by the following individuals:
Michael Guevara, Senior Manager, Human Resources, Administrative Office of the Courts
Scott Gardner, Manager, Human Resources, Administrative Office of the Courts
Hector Gonzalez, Court Executive Officer, Superior Court of California- County of Mono
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