Tracylyn Lopez (Lopez), a correctional officer and union representative at Salinas Valley State Prison (the prison), received a notice of adverse action for directing profanity at two other officers. She later posted materials from the disciplinary action on a union bulletin board near the main entrance to the prison. The posted materials revealed the nature of the discipline against Lopez, and the unique surnames of the other officers.
Department of Corrections and Rehabilitation and Department of Human Resources (collectively, CDCR) suspended Lopez for 60 workdays for the posting. Lopez appealed the discipline to the State Personnel Board (SPB), arguing the posting served as commentary on CDCR’s disciplinary practices, and was thus protected by the First Amendment. She also filed a contractual grievance alleging the discipline violated the memorandum of understanding (MOU) between respondent California Correctional Peace Officers Association (CCPOA) and the State of California, which incorporates the Ralph C. Dills Act (Gov. Code, § 3512 et seq.; Dills Act) and prohibits retaliation for engaging in protected activities. CCPOA, which represents correctional officers, sought arbitration of the grievance on Lopez’s behalf. This appeal arises at the intersection between these proceedings.
The SPB ruled for CDCR in October 2020. The SPB acknowledged Lopez’s right to express opinions about disciplinary matters, but found the posting fostered a “code of silence,” and thus constituted an inexcusable neglect of duty and failure of good behavior (§ 19572, subds. (d) & (t)), which justified the 60-workday suspension. Whether the discipline constituted retaliation for engaging in protected activity under the MOU and Dills Act was not an issue before the SPB. That issue was reserved for the arbitration proceedings, which took place some 18 months later.
An arbitrator entered an award in favor of Lopez and CCPOA in June 2022. The arbitrator sustained the grievance, finding CDCR violated the MOU by discriminating and interfering with protected speech and representational activity. She rejected CDCR’s argument that Lopez lost any potential protection by promoting an unlawful objective (i.e., fostering the code of silence). She also found CDCR punished Lopez for the protected activity, and failed to show it would have imposed the same penalty regardless of that protected activity. Accordingly, the arbitrator ordered CDCR to rescind the notice of adverse action for the posting, make Lopez whole by issuing backpay and restoring any other benefits and rights lost as a result of the 60-workday suspension, and post a notice at the prison stating CDCR discriminated and interfered with Lopez’s and CCPOA’s protected union activities under the MOU. In so doing, the arbitrator effectively offset the 60-workday suspension reviewed and approved by the SPB.
CDCR filed a petition to vacate or correct the arbitration award. (Code Civ. Proc., §§ 1285, 1286.2, & 1286.6.) CCPOA responded with a counter petition to confirm the award. (Code Civ. Proc., § 1285.) The trial court denied CDCR’s petition to vacate the arbitration award and CCPOA’s counter petition to confirm the award. However, the trial court granted CDCR’s petition to correct the award and struck the portion ordering CDCR to rescind the notice of adverse action for the posting and make Lopez whole by issuing backpay and restoring any other benefits and rights lost as a result of the suspension.
CCPOA appeals, arguing the trial court erred in granting CDCR’s alternative petition to correct the award. Specifically, CCPOA argues the trial court erred in concluding the arbitrator exceeded her powers in entering the award, and thus lacked statutory authority to correct it. We agree. Accordingly, we will reverse the judgment denying the petition to confirm the arbitrator’s award and granting the petition to correct the award, and remand with instructions to enter a new judgment confirming the award as issued by the arbitrator.
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