Public Sector Case Notes

• Jurisdiction: California,United States
• Author: By Kerianne Steele and Ann Surapruik
• Publication year: 2022
• Citation: Vol. 36 No. 2

PUBLIC SECTOR CASE NOTES

By Kerianne Steele and Ann Surapruik

Kerianne Steele is a shareholder with Weinberg, Roger & Rosenfeld, where she represents unions and employees, primarily in the public sector. Ann Surapruik is an Associate with Weinberg, Roger & Rosenfeld. She represents and advises public sector unions in all aspects of labor and employment law. The authors can be contacted at (213) 380-2344 or at ksteele@unioncounsel.net and surapruik@unioncounsel.net.

COURT OF APPEAL AFFIRMS PERB'S EXCLUSIVE JURISDICTION OVER UNFAIR PRACTICES

Curcio v. Fontana Teachers Ass'n, CTA/NEA, 68 Cal. App. 5th 924 (2021)

A teacher asked her union, the Fontana Teachers Association (FTA) and the California Teachers Association (CTA), for help in obtaining complaint letters contained in her personnel file. She subsequently filed an unfair practice charge with the Public Employment Relations Board (PERB or Board) alleging that the FTA and CTA breached their duties of fair representation and engaged in unfair practices, in violation of the Educational Employment Relations Act (EERA or the Act).

PERB's Office of General Counsel dismissed the charge as untimely, and the Board upheld dismissal of the charge. The teacher petitioned to the superior court alleging that PERB's decision was an abuse of discretion, and sought a writ of mandate ordering the Board to issue a complaint against the FTA and CTA. The following months, she then filed a verified and amended petition for writ of mandate.

PERB demurred, arguing that its decision not to issue a complaint is not subject to judicial review except in three narrow circumstances articulated by the California Supreme Court, none of which the teacher pleaded. The trial court agreed with PERB, and dismissed the petition with prejudice and without leave to amend. Petitioner did not appeal this order.

However, the trial court later granted the teacher, who was now represented by counsel, leave to file a verified second amended petition for writ of mandate. In her second amended petition, the teacher argued defendants FTA and CTA breached their duty of fair representation and breached the collective bargaining agreement between FTA and the district when they declined to appoint an attorney to represent her and pursue her request to obtain derogatory statements in her personnel file. The FTA and CTA demurred, arguing among other things, that EERA provides PERB with exclusive jurisdiction over violations of the Act and its decision of whether to issue a complaint in response to a charge. In opposition, the teacher asserted that PERB has initial exclusive jurisdiction and that she had exhausted her administrative remedies by filing the charge and appealing PERB's decision not to issue a complaint. The teacher also argued that her second amended petition sufficiently pled facts alleging one exception to the general rule prohibiting judicial review of PERB's decision not to issue a complaint. When the trial court sided with the FTA and CTA and sustained the demurrer, the teacher appealed to the Court of Appeal.

The appellate court affirmed. On appeal, the Court rejected the teacher's argument that the pursuit of her claims before PERB was a matter of administrative exhaustion, confirming instead that PERB "was the exclusive forum for her to pursue [her claims]." In other words, a party may not file a lawsuit in superior court alleging the same unfair practice that was filed with the Board. In its decision, the Court further affirmed that PERB's "exclusive jurisdiction extends to all alleged violations of the Act," and that this authority "divests" the superior courts of jurisdiction over lawsuits alleging the same unfair practice. The California Supreme Court has previously articulated three narrow...