Preview
1 ANDREW J. KAHN Electronically Filed
State Bar No. 129776 Superior Court of California
2 AMY DUNNING County of San Joaquin
State Bar No. 171408 2021-09-30 14:12:37
3 CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION Clerk: Kristy Kobus
2045 Lundy Avenue
4 San Jose, California 95131
(408) 473-1000 Demurrer
5 Fax (408) 954-0948 11/04/2021 09:00 AM in 10B
6 Attorneys for
CALIFORNIA SCHOOL EMPLOYEES
7 ASSOCIATION, and its DELTA VALLEY
CHAPTER No. 821
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STATE OF CALIFORNIA SUPERIOR COURT
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COUNTY OF SAN JOAQUIN
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12
LAUREEN THOMPSON ) Case No.: STK-CV-LOCT-2021-0000038
13 )
Plaintiff, )
14 ) REQUEST FOR JUDICIAL NOTICE IN
v. ) SUPPORT OF DEMURRER TO
15 ) AMENDED COMPLAINT
CALIFORNIA SCHOOL EMPLOYEES )
16 ASSOCIATION, et al., )
) Hearing Date:
17 Defendants. ) Time:
) Department: 10B
18 ) Judge: Hon. Erin Guy Castillo
)
19 )
20 Pursuant to California Evidence Code sections 452 and 453, Defendant California School
21 Employees Association and its Chapter No. 821 (“CSEA”) hereby requests that this Court take
22 judicial notice of the exhibits identified below, offered in support of its demurrer to the Amended
23 Complaint. The authenticity of these exhibits is established through the declaration of Amy
24 Dunning, which is attached hereto as Exhibit E.
25 A demurrer tests the legal sufficiency of the complaint. The complaint is reviewed de
26 novo to determine whether it alleges facts sufficient to state a cause of action. The court accepts
27 as true all material facts alleged in the complaint, and also considers matters that may be
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REQUEST FOR JUDICAL NOTICE ISO DEMURRER TO AMENDED COMPLAINT
1 judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d
2 58].)
3 Evidence Code section 451 lists matters that must be judicially noticed, whereas Evidence
4 Code section 452 lists matters that may be judicially noticed. Matters specified in Evidence Code
5 section 452 must be judicially noticed if a party requests it, provided the party gives sufficient
6 notice to each adverse party to prepare to meet the request, and furnishes the court with sufficient
7 information to enable it to take judicial notice of the matter. (Evid. Code § 453, subds. (a) & (b).)
8 Exhibit A is the State of California’s Public Employment Relations Board (“PERB”)
9 regional attorney's Dismissal Letter w/attached Letter of Warning for the Plaintiff’s unfair
10 practice charge against CSEA in PERB case No. SA-CO-639-E. The statements contained within
11 the PERB dismissal letter and letter of warning describe Plaintiff’s allegations that CSEA
12 violated the Educational Employment Relations Act (“EERA”), Government Code section 3540
13 et seq. when it breached its duty of fair representation over Plaintiff’s involuntary transfer. The
14 PERB regional attorney dismissed the charge without issuing a complaint, and Plaintiff is now
15 pursuing those allegations in her Amended Complaint before this Court. The document is
16 relevant because it shows Plaintiff previously made the same allegations in a PERB charge that
17 she now makes in the Amended Complaint. It is relevant to assessing whether Plaintiff’s causes
18 of action in the Amended Complaint are preempted by PERB’s exclusive jurisdiction to resolve
19 claims concerning the breach of the duty of fair representation under the EERA.
20 Taking judicial notice of PERB proceedings is proper under Evidence Code section
21 452(c). (See, El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946,
22 950.) Therefore, CSEA asks the Court to take judicial notice of Exhibit A.
23 Exhibit A.1 is the PERB Board's Decision affirming the PERB regional attorney’s
24 dismissal of the Plaintiff’s unfair practice charge against CSEA in No. SA-CO-639-E. The
25 document represents the final decision in the PERB administrative process that Plaintiff
26 previously pursued against CSEA. The document is relevant to assessing whether the Plaintiff’s
27 causes of action in the Complaint are preempted by PERB’s exclusive jurisdiction to resolve
28 claims concerning the breach of the duty of fair representation under the EERA, and whether the
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REQUEST FOR JUDICAL NOTICE ISO DEMURRER TO AMENDED COMPLAINT
1 only judicial remedy available to the Plaintiff following the PERB Board’s final decision was to
2 file a petition for traditional mandate in the trial court against PERB. (El Rancho Unified School
3 Dist. v. National Education Ass’n, supra, 33 Cal.3d 946, 950.) Judicial notice is proper under
4 Evidence Code section 452(c) as an official government act. Therefore, CSEA asks the Court to
5 take judicial notice of Exhibit A.1.
6 Exhibit B is the PERB regional attorney's Dismissal Letter w/attached Letter of Warning
7 for the Plaintiff’s unfair practice charge against CSEA in PERB case No. SA-CO-633-E. The
8 statements contained within the PERB dismissal letter and letter of warning describe Plaintiff’s
9 allegations that CSEA violated the EERA when CSEA representatives met with the employer on
10 Plaintiff’s evaluation without her presence or knowledge. The PERB regional attorney dismissed
11 the charge without issuing a complaint, and Plaintiff is now pursuing those allegations in her
12 Amended Complaint before this Court. The document is relevant because it shows Plaintiff
13 previously made the same allegations in a PERB charge that she now makes in the Amended
14 Complaint. It is relevant to assessing whether Plaintiff’s causes of action in the Amended
15 Complaint are preempted by PERB’s exclusive jurisdiction to resolve claims concerning the
16 breach of the duty of fair representation under the EERA.
17 Taking judicial notice of PERB proceedings is proper under Evidence Code section
18 452(c). (See, El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946,
19 950.) Therefore, CSEA asks the Court to take judicial notice of Exhibit B.
20 Exhibit B.1 is the PERB Board's Decision affirming the PERB regional attorney’s
21 dismissal of the Plaintiff’s unfair practice charge against CSEA in No. SA-CO-633-E. The
22 document represents the final decision in the PERB administrative process that Plaintiff
23 previously pursued against CSEA. The document is relevant to assessing whether the Plaintiff’s
24 causes of action in the Complaint are preempted by PERB’s exclusive jurisdiction to resolve
25 claims concerning the breach of the duty of fair representation under the EERA, and whether the
26 only judicial remedy available to the Plaintiff following the PERB Board’s final decision was to
27 file a petition for traditional mandate in the trial court against PERB. (El Rancho Unified School
28 Dist. v. National Education Ass’n, supra, 33 Cal.3d 946, 950.) Judicial notice is proper under
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REQUEST FOR JUDICAL NOTICE ISO DEMURRER TO AMENDED COMPLAINT
1 Evidence Code section 452(c) as an official government act. Therefore, CSEA asks the Court to
2 take judicial notice of Exhibit B.1.
3 Exhibit C is the PERB regional attorney's Dismissal Letter w/attached Letter of Warning
4 for the Plaintiff’s unfair practice charge against CSEA in PERB case No. SA-CO-630-E. The
5 statements contained within the PERB dismissal letter and letter of warning describe Plaintiff’s
6 allegations that CSEA violated the EERA when CSEA declined to approve arbitration on
7 Plaintiff’s arbitration then changed its mind. The PERB regional attorney dismissed the charge
8 without issuing a complaint, and Plaintiff is now pursuing those allegations in her Amended
9 Complaint before this Court. The document is relevant because it shows Plaintiff previously
10 made the same allegations in a PERB charge that she now makes in the Amended Complaint. It
11 is relevant to assessing whether Plaintiff’s causes of action in the Amended Complaint are
12 preempted by PERB’s exclusive jurisdiction to resolve claims concerning the breach of the duty
13 of fair representation under the EERA.
14 Taking judicial notice of PERB proceedings is proper under Evidence Code section
15 452(c). (See, El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946,
16 950.) Therefore, CSEA asks the Court to take judicial notice of Exhibit C.
17 Exhibit D is the PERB regional attorney's Dismissal Letter w/attached Letter of Warning
18 for the Plaintiff’s unfair practice charge against CSEA in PERB case No. SA-CO-624-E. The
19 statements contained within the PERB dismissal letter and letter of warning describe Plaintiff’s
20 allegations that CSEA violated the EERA when CSEA failed to file a grievance on the SUSD
21 Principal making up rules, failed to take action on the Principal watching her, failed to represent
22 her adequately when she was locked out of the breakroom, failed to respond when the District
23 told her to postpone additional grievances, and presented her with an insulting settlement on her
24 arbitration. The PERB regional attorney dismissed the charge without issuing a complaint, and
25 Plaintiff is now pursuing those allegations in her Amended Complaint before this Court. The
26 document is relevant because it shows Plaintiff previously made the same allegations in a PERB
27 charge that she now makes in the Amended Complaint. It is relevant to assessing whether
28 Plaintiff’s causes of action in the Amended Complaint are preempted by PERB’s exclusive
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REQUEST FOR JUDICAL NOTICE ISO DEMURRER TO AMENDED COMPLAINT
1 jurisdiction to resolve claims concerning the breach of the duty of fair representation under the
2 EERA.
3 Taking judicial notice of PERB proceedings is proper under Evidence Code section
4 452(c). (See, El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946,
5 950.) Therefore, CSEA asks the Court to take judicial notice of Exhibit D.
6 For these reasons, CSEA respectfully asks this Court to take judicial notice of Exhibit A,
7 Exhibit A.1, Exhibit B, Exhibit B.1, Exhibit C, and Exhibit D.
8
9 Respectfully submitted,
10
11 Dated: September 30, 2021 ______________________________
ANDREW J. KAHN
12 AMY DUNNING
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Attorneys for CSEA
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REQUEST FOR JUDICAL NOTICE ISO DEMURRER TO AMENDED COMPLAINT
Exhibit
A
STATE OF CALIFORNIA GAVIN NEWSOM, Governor
Sacramento Regional Office
1031 18th Street
Sacramento, CA, 95811-4124
Telephone: (916) 591-3166
Fax: (916) 327-6377
April 23, 2021
Laureen Thompson
P.O. Box 6366
Stockton, CA 95206
Re: Laureen Thompson v. California School Employees Association Chapter 821
Unfair Practice Charge No. SA-CO-639-E
DISMISSAL LETTER
Dear Ms. Thompson:
The above-referenced charge was filed with the Public Employment Relations Board
(PERB or Board) on September 19, 2019. Laureen Thompson (Charging Party)
alleges that the California School Employees Association-Chapter 821 (CSEA or
Respondent) violated sections 3543.6(a) and (d), 3543.8(a), and 3544.9 of the
Educational Employment Relations Act (EERA or Act) 1 by failing to represent
Charging Party over violations of a collective bargaining agreement.
Charging Party was informed in the attached Warning Letter dated January 11, 2021
(Warning Letter), that the above-referenced charge did not state a prima facie case.
Charging Party was advised that, if there were any factual inaccuracies or additional
facts that would correct the deficiencies explained in that letter, the charge should be
amended. Charging Party was further advised that, unless the charge was amended
to state a prima facie case or withdrawn on or before January 26, 2021, the charge
would be dismissed.
Charging Party filed a first amended charge (FAC) on January 26, 2021. CSEA filed a
verified position statement to the FAC on February 17, 2021. 2
1 EERA is codified at Government Code section 3540 et seq. PERB’s
Regulations are codified at California Code of Regulations, title 8, section 31001 et
seq. The text of the EERA and PERB Regulations may be found at www.perb.ca.gov.
2 A Board agent may rely on a respondent’s factual allegations that are
undisputed or not refuted by the charging party, and which are in compliance with
PERB Regulation 32620(c), which requires that any response to a charge be signed
under penalty of perjury with a declaration that the response is true and complete to
Unfair Practice Charge No. SA-CO-639-E
April 23, 2021
Page 2
The original charge contained allegations regarding the Stockton Unified School
District’s (District) involuntary transfer of Charging Party from Stockton High School to
Stagg High School, and that CSEA breached its duty of fair representation by failing to
take Charging Party’s grievance regarding the transfer to arbitration. The FAC
reiterates these allegations, contains additional allegations regarding the involuntary
transfer, and new allegations regarding CSEA’s representation of Charging Party in
various employment actions taken by the District against Charging Party, including
claims that she was working out-of-class and did not receive retroactive pay.
In addition to EERA sections 3543.6(a) and (d), 3543.8(a), and 3544.9 alleged in the
original charge to have been violated by CSEA, the FAC further alleges violations of
EERA sections 3543.6(b) and 3543.5.
For the reasons discussed below, the FAC fails to cure the deficiencies identified in
the Warning Letter to state a prima facie case that CSEA breached its duty of fair
representation.
Summary of Allegations 3
1. Miscellaneous background facts
For the school years 2015-2016 and 2016-2017, Charging Party worked at Stockton
High School with Principal Marianne Santella, “where there were no issues of contract
violations, [ ] EERA violations, hostile environment, discrimination and retaliation.”
Charging Party was able to use the office break room with no problems during the
2016-2017 school year.
the best of respondent’s knowledge. (Santa Maria Joint Union High School District
(2015) PERB Decision No. 2445, citing Service Employees International Union #790
(Adza) (2004) PERB Decision No. 1632-M; see Chula Vista Elementary School District
(2003) PERB Decision No. 1557.) To the extent there are any factual disputes, those
questions are properly resolved through PERB’s hearing process. (Golden Plains
Unified School District (2002) PERB Decision No. 1489.)
3 Exhibits attached to the FAC include a July 17, 2018 level 1 contract
grievance filed by Charging Party over her involuntary transfer, the District’s August 8,
2018 level 1 grievance response, the District’s September 4, 2018 level 2 grievance
response, and various articles of the District’s and CSEA’s 2016–2019 collective
bargaining agreement (CBA). This summary contains some of the information
contained in these exhibits.
Unfair Practice Charge No. SA-CO-639-E
April 23, 2021
Page 3
During the 2017-2018 school year, Charging Party “endured multiple contract
violations, intimidation, hostile environment, discrimination, bullying, violation against a
whistleblower and retaliation carried out by the [District].” Charging Party filed 13
complaints and grievances against the District, including for Charging Party being
locked out of the office break room from August 27, 2017 to June 6, 2018. CSEA was
aware of these actions taken by the District against Charging Party and advised her to
continue documenting the incidents.
In March 2018, Charging Party began filing unfair practice charges with PERB, and
complaints with the Department of Fair Employment Housing. The District and
Principal Santella were upset with Charging Party over these filings.
2. Involuntary transfer
On May 1, 2018, Charging Party received written notice from the District that when
she returned to work on July 17, 2018, for the 2018-2109 school year, she would be
assigned to Stockton High School. From June 6, 2018 to July 17, 2018, neither the
District nor CSEA notified Charging Party that she was going to be transferred to
Stagg High School.
On July 17, 2018, Charging Party returned to work for the new school year. At
approximately 8:56 a.m., Charging Party received a telephone call from the District’s
Director of Labor Relations Claudia Moreno-Rabago, who told Charging Party to
“leave the office now[,] we are [i]nvoluntary [t]ransferring you. We will meet with you
later regarding the transfer.” Moreno-Rabago informed Charging Party that the
meeting was scheduled for 12:00 p.m., and that her union would be present at the
meeting. Charging Party informed Moreno-Rabago that she would be contacting her
union.
CSEA job steward Donna Taves told Charging Party that CSEA was not aware of the
transfer and instructed Charging Party not to meet with Moreno-Rabago until CSEA
receives notice and Charging Party is given an opportunity to meet and discuss the
transfer as provided for under the CBA. Taves postponed the meeting because CSEA
was not provided notice of the transfer. Charging Party filed a grievance over the
involuntary transfer, alleging that this “forced verbal capricious involuntary transfer”
violated CBA sections 1, 4, 4.4, 4.4, 4.4.1, 4.4.2, 4.4.3, 6, 6.1, 6.2, 13.5.1, and 13.5.2.
CSEA Steward Taves sent an e-mail message to Moreno-Rabago requesting that
pursuant to CBA Article 13.5 thru 13.5.2, the meeting scheduled for that day be
rescheduled for a later date. Taves also requested that written notice of the reason for
Unfair Practice Charge No. SA-CO-639-E
April 23, 2021
Page 4
Charging Party’s involuntary transfer be provided to Charging Party and CSEA. On
July 17, 2018, Moreno-Rabago provided the reason for the District transferring
Charging Party in an e-mail message to Charging Party and her union representative.
Moreno-Rabago also agreed to reschedule the meeting for the next day, July 18,
2018. In the District’s level 1 grievance response, Moreno-Rabago admitted that
Charging Party was not provided written notice of her involuntary transfer.
The July 18 meeting was attended by Charging Party, CSEA Steward Taves, CSEA
Labor Representative Casey Thompson, Moreno-Rabago, and a District Personnel
Analyst. At the meeting, Moreno-Rabago informed Charging Party that she was being
transferred based on District needs because Stagg High School needed a Student
Data Technician to assist the registrar.
The Student Data Technician position at Stagg High School had been vacant for one
and one-half years prior to the transfer. Stockton High School was also short staffed,
and Charging Party worked in the front office alone. Charging Party’s position at
Stockton High School did not get filled until three months after her transfer.
The District did not offer the transfer first to the employee with the highest seniority.
Kathy Davis, a Student Data Technician who had higher seniority than Charging Party,
had requested to be transferred from Stockton High prior to Charging Party’s
involuntary transfer. The District denied Davis’ request. The District also has the
ability to request a substitute employee if help is needed, but did not request a
substitute employee to work at Stagg High School.
3. CSEA’s non-responsiveness
In February 2018, the principal at Stockton High School “filed a false statement letter
of concern for insubordination [against Charging Party]. CSEA did nothing.”
In March 2018, Moreno-Rabago sent an e-mail message to Charging Party, which
stated “I am now in receipt of 5 grievances and ask you [ ] to postpone filing any future
grievances until we can meet.” The District did not schedule any meetings regarding
these grievances. CSEA Labor Representative Casey Thompson was copied on the
e-mail, but did not respond or assist Charging Party.
In April 2018, the principal at Stockton High School included false statements in
Charging Party’s evaluation, which was placed in Charging Party’s personnel file.
Charging Party was not given an opportunity to review or comment on the evaluation.
Charging Party filed a grievance/complaint over the evaluation. The District’s Director
Unfair Practice Charge No. SA-CO-639-E
April 23, 2021
Page 5
of Labor Relations Moreno-Rabago and CSEA’s Labor Representative Thompson did
not follow the CBA’s evaluation procedures by having a private meeting without
Charging Party’s knowledge, and by removing the evaluation from Charging Party’s
personnel file.
4. Retroactive pay
In March 2017, the District violated the CBA by not compensating Charging Party for
working out-of-class. On June 1, 2017, the District violated the CBA by not providing
Charging Party with retroactive pay for a reclassification. On August 27, 2017, after
Charging Party requested retroactive pay for working out-of-class and for a
reclassification, the principal at Stockton High School “began a hostile environment,
contract violations, discrimination, retaliation [ ].” CSEA did not request out-of-class
pay on behalf of Charging Party. Charging Party also made several requests to CSEA
Labor Representatives Roderick Gaulman and Casey Thompson to include the
reclassification as part of her working out-of-class grievance, but they ignored her
requests and “caused the loss of [Charging Party’s] arbitration.”
Discussion
Standing
Charging Party was informed in the Warning Letter that Charging Party lacked
standing to pursue violations of sections 3543.6(a), 3543.6(d), and 3543.8(a). The
FAC contains no additional facts to demonstrate that Charging Party has standing.
Accordingly, these allegations are dismissed.
Section 3543.5
The FAC newly alleges that CSEA violated section 3543.5, which makes it unlawful for
a public school employer to engage in certain conduct. The FAC identifies the District
as Charging Party’s employer. Because CSEA is not a public school employer, this
allegation is dismissed.
Duty of Fair Representation
Charging Party alleges that CSEA breached its duty of fair representation guaranteed
by section 3544.9 and thereby violated section 3543.6(b), by failing to pursue
Charging Party’s grievance to arbitration regarding her involuntary transfer.
Unfair Practice Charge No. SA-CO-639-E
April 23, 2021
Page 6
As explained to Charging Party in the Warning Letter, while the duty of fair
representation imposed on the exclusive representative extends to grievance
handling 4 (Fremont Unified District Teachers Association, CTA/NEA (King) (1980)
PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB
Decision No. 258), to state a prima facie case of a breach of this duty Charging Party
must show that the Respondent’s conduct was arbitrary, discriminatory, or in bad faith.
United Teachers of Los Angeles (Collins), supra, PERB Decision No. 258.) Moreover,
mere negligence or poor judgment in handling a grievance does not constitute a
breach of the union’s duty. (Ibid.) In order to state a prima facie case of arbitrary
conduct violating the duty of fair representation, a Charging Party must at a minimum
include an assertion of sufficient facts from which it becomes apparent how or in what
manner the exclusive representative’s action or inaction was without a rational basis
or devoid of honest judgment. (Reed District Teachers Association, CTA/NEA (Reyes)
(1983) PERB Decision No. 332.)
Charging Party was further advised that CSEA may exercise its discretion to
determine how far to pursue a grievance on an employee’s behalf as long as it does
not arbitrarily ignore a meritorious grievance or process a grievance in a perfunctory
fashion, and CSEA is not required to process an employee’s grievance if the chances
for success are minimal. (United Teachers of Los Angeles (Collins), supra, PERB
Decision No. 258.) A disagreement between a grievant and the union as to whether a
grievance should proceed to arbitration does not establish a breach of the duty of fair
representation where a union has made an honest, reasonable determination that the
grievance lacks merit. (Service Employees International Union Local 1000, California
State Employees Association (Burnett) (2007) PERB Decision No. 1914-S.)
Thus, to state a prima facie case Charging Party has the burden of demonstrating that
CSEA’s decision not to pursue Charging Party’s grievance to arbitration was
arbitrary—without a rational basis or devoid of honest judgment—discriminatory, or in
bad faith. The FAC fails to include additional facts to meet this burden.
4 The Warning Letter requested that Charging Party allege facts, or include a
complete copy of the grievance and arbitration provisions, demonstrating that only
CSEA can take the grievance to arbitration. Attached to the FAC are various
provisions of the CBA between the CSEA. CSEA has a duty of fair representation
regarding Charging Party’s grievance because after review of these provisions it
appears that only CSEA may elevate a grievance to arbitration. (United Teachers Los
Angeles (Le Mere) (2018) PERB Decision No. 2581.)
Unfair Practice Charge No. SA-CO-639-E
April 23, 2021
Page 7
Charging Party filed a grievance over her involuntary transfer alleging violations of
CBA Article 13.5.1 and 13.5.2. Article 13.5.1 provides that the employer may
involuntarily transfer an employee for “work-related needs” of the District, but not for
disciplinary or capricious reasons. Article 13.5.2 provides that the District must give
an employee being involuntarily transferred written notice of the reasons for the
transfer, and to hold a meeting with the Human Resources Department regarding the
transfer.
As noted in the Warning Letter, CSEA concluded that the District did not violate the
CBA when it transferred Charging Party. CSEA’s Executive Board’s written response
denying Charging Party’s request to proceed to arbitration on her grievance stated
that the grievance alleging the District violated Article 13.5.1 “is without merit because
there is no evidence to contradict the District’s stated position that [Charging Party’s]
involuntary transfer from Stockton High School to Stagg High School on July 17, 2018,
was based exclusively on the work-related needs of the District.” Regarding the
alleged violation of Article 13.5.2, the response stated that “[w]ritten notice was
provided by Director of Labor Relations Claudia Moreno on July 17, 2018, and a
conference was held between [Charging Party], Moreno and CSEA representatives on
July 18, 201[8].”
Regarding the issue of notice, the FAC alleges that the District admitted in its level 1
grievance response that it provided Charging Party with verbal and “short” notice of
the transfer, and that between June 6, 2018 to July 17, 2018, the District nor CSEA
contacted Charging Party regarding her involuntary transfer.
While the charge allegations do demonstrate that Charging Party was first provided
verbal notice of the transfer, the allegations and exhibits further demonstrate that
CSEA intervened to ensure that Charging Party subsequently received written notice.
CSEA Steward Taves told Charging Party that CSEA was not aware of the transfer
and instructed Charging Party not to meet with the District until CSEA receives notice
and Charging Party is given an opportunity to meet and discuss the transfer as
provided for under the CBA. Taves sent an e-mail message to Moreno-Rabago
requesting that pursuant to the CBA, the meeting scheduled that day be rescheduled,
and that the District provide written notice of the reason for Charging Party’s
involuntary transfer. On July 17, 2018, Moreno-Rabago sent an e-mail to Charging
Party and her union representative providing the written reason for the involuntary
transfer. Moreno-Rabago also agreed to cancel the meeting scheduled that day and
rescheduled it for the next day, July 18, 2018. At the July 18 meeting attended by
Charging Party, CSEA Steward Taves, CSEA Labor Representative Casey
Thompson, and District representatives, the District informed Charging Party that she
Unfair Practice Charge No. SA-CO-639-E
April 23, 2021
Page 8
was being transferred based on District needs because Stagg High School needed a
Student Data Technician to assist the registrar. Thus, due to CSEA’s intervention,
Charging Party received written notice of her involuntary transfer. Moreover, the FAC
fails to show that there was a contractual timeframe within which the District was
required to provide Charging Party with written notice prior to the transfer.
The FAC next asserts that CSEA breached its duty of fair representation by accepting
the District’s rationale for transferring Charging Party without investigating or
researching the facts pointed out by Charging Party that show that the transfer was
“capricious” and violated CBA Article 13.5.1. The FAC alleges that Charging Party
pointed out to CSEA that Kathy Davis, a Student Data Technician with higher
seniority, had requested to be transferred from Stockton High prior to Charging Party’s
involuntary transfer, but that the District denied the request. The District also had the
ability to request a substitute employee if help is needed, but did not do so. The
Student Data Technician position at Stagg High School had been vacant for one and
one-half years prior to the transfer. Stockton High School was also in need of “work
related needs” due to short staff, and Charging Party worked in the front office alone.
Charging Party’s position at Stockton High School did not get filled until three months
after her transfer.
These allegations are contained in Charging Party’s July 19, 2019 appeal to CSEA
over its decision not to proceed to arbitration, which was attached to the original
charge. CSEA’s September 17, 2019 denial of Charging Party’s appeal notes that in
reaching its decision, CSEA’s Board of Directors reviewed and considered “all
evidence and reports.”
Even if CSEA failed to investigate or research these facts, Charging Party fails to
demonstrate that even if these facts were considered that CSEA’s decision not to
pursue the grievance to arbitration was arbitrary, discriminatory, in bad faith, without a
rational basis or devoid of honest judgment. (United Teachers of Los Angeles
(Collins), supra, PERB Decision No. 258; Reed District Teachers Association,
CTA/NEA (Reyes), supra, PERB Decision No. 332.)
Charging Party appears to assert that because another student data technician with
higher seniority had requested to be transferred from Stockton High prior to Charging
Party’s involuntary transfer, that the District should have transferred that employee
instead of Charging Party, and in failing to do so the transfer was “capricious.” The
FAC does not point to any CBA provision or District policy that requires seniority be
considered when involuntarily transferring employees. Nor does the FAC allege any
facts demonstrating that because the position at Stagg High School had been vacant
Unfair Practice Charge No. SA-CO-639-E
April 23, 2021
Page 9
for one and one-half years, that Stockton High School was short staffed, and that the
District failed to retain a substitute to work at Stagg High School, that the District’s
decision to transfer Charging Party was not based on District needs or violated the
CBA.
CSEA accepted the District’s reasons for transferring Charging Party, concluding the
District’s actions did not violate the CBA. CSEA in deciding not to take Charging
Party’s grievance to arbitration determined that the grievance was without merit. The
FAC fails to allege sufficient facts that CSEA’s actions regarding Charging Party’s
grievance breached the duty of fair representation. Thus, this allegation is dismissed.
Timeliness of new allegations
The FAC contains new allegations regarding CSEA’s representation of Charging Party
in various employment actions taken by the District against Charging Party.
Charging Party was advised in the Warning Letter that she has the burden to allege
facts showing that the unfair practice charge was timely filed; i.e., that the alleged
unfair practice occurred no more than six months prior to the filing of the charge. (Los
Angeles Unified School District (2007) PERB Decision No. 1929; City of Santa
Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited from issuing a
complaint with respect to any charge based upon an alleged unfair practice occurring
more than six months prior to the filing of the charge. (Coachella Valley Mosquito and
Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have
known, of the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.)
The original charge concerning Charging Party’s involuntary transfer was filed on
September 19, 2019. When a charging party amends an unfair practice charge and
thereby adds new allegations, the statute of limitations for the newly-added allegations
is generally the six months prior to the date the charging party filed the amended
charge, unless the new allegations relate back to the allegations in the initial charge,
or another recognized exception applies. (County of Santa Barbara (2012) PERB
Decision No. 2279-M.) “An amended charge relates back to the initial charge only
when it clarifies facts originally alleged in the initial charge or adds a new legal theory
based on facts originally alleged in the initial charge.” (Ibid.) Thus, any new
allegations contained in the FAC related to Charging Party’s involuntary transfer
occurring prior to March 19, 2019, are outside of EERA’s six-month statute of
limitations, and subject to dismissal. However, for new allegations that do not relate
Unfair Practice Charge No. SA-CO-639-E
April 23, 2021
Page 10
back to the involuntary transfer and where no other recognized exception applies, the
six-month statute of limitations runs from the date the amended charge was filed.
(Ibid.) The amended charge was filed on January 26, 2021. Thus, any new
allegations that do not relate back to the allegations regarding Charging Party’s
involuntary transfer occurring prior to July 26, 2020, are outside of EERA’s six-month
statute of limitations.
The following allegations from the FAC do not relate back to the allegations contained
in the original charge, and occurred prior to July 26, 2020: 1) CSEA was aware of
grievances/complaints filed by Charging Party against the District, including Charging
Party being locked out of the office break room from August 27, 2017 to June 6, 2018;
2) in February 2018, CSEA took no action when the principal at Stockton High School
“filed a false statement letter of concern for insubordination”; 3) CSEA Labor
Representative Casey Thompson did not respond or assist Charging Party following a
March 2018 e-mail from the District requesting that Charging Party postpone filing
future grievances until a meeting could be scheduled; 4) the District and CSEA did not
follow the CBA’s evaluation procedures regarding an April 2018 evaluation of
Charging Party; and 5) in or about August 2017, CSEA’s labor representatives ignored
Charging Party’s requests to seek out-of-class pay and to include a reclassification as
part of her working out-of-class grievance, and also caused the loss of Charging
Party’s arbitration. 5 As this alleged conduct occurred outside the statute of limitat
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1 ANDREW J. KAHN Electronically Filed State Bar No. 129776 Superior Court of California 2 AMY DUNNING County of San Joaquin State Bar No. 171408 2021-09-30 14:12:37 3 CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION Clerk: Kristy Kobus 2045 Lundy Avenue 4 San Jose, California 95131 (408) 473-1000 Demurrer 5 Fax (408) 954-0948 11/04/2021 09:00 AM in 10B 6 Attorneys for CALIFORNIA SCHOOL EMPLOYEES 7 ASSOCIATION, and its DELTA VALLEY CHAPTER No. 821 8 9 STATE OF CALIFORNIA SUPERIOR COURT 10 COUNTY OF SAN JOAQUIN 11 12 LAUREEN THOMPSON ) Case No.: STK-CV-LOCT-2021-0000038 13 ) Plaintiff, ) 14 ) REQUEST FOR JUDICIAL NOTICE IN v. ) SUPPORT OF DEMURRER TO 15 ) AMENDED COMPLAINT CALIFORNIA SCHOOL EMPLOYEES ) 16 ASSOCIATION, et al., ) ) Hearing Date: 17 Defendants. ) Time: ) Department: 10B 18 ) Judge: Hon. Erin Guy Castillo ) 19 ) 20 Pursuant to California Evidence Code sections 452 and 453, Defendant California School 21 Employees Association and its Chapter No. 821 (“CSEA”) hereby requests that this Court take 22 judicial notice of the exhibits identified below, offered in support of its demurrer to the Amended 23 Complaint. The authenticity of these exhibits is established through the declaration of Amy 24 Dunning, which is attached hereto as Exhibit E. 25 A demurrer tests the legal sufficiency of the complaint. The complaint is reviewed de 26 novo to determine whether it alleges facts sufficient to state a cause of action. The court accepts 27 as true all material facts alleged in the complaint, and also considers matters that may be 28 -1- REQUEST FOR JUDICAL NOTICE ISO DEMURRER TO AMENDED COMPLAINT 1 judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 2 58].) 3 Evidence Code section 451 lists matters that must be judicially noticed, whereas Evidence 4 Code section 452 lists matters that may be judicially noticed. Matters specified in Evidence Code 5 section 452 must be judicially noticed if a party requests it, provided the party gives sufficient 6 notice to each adverse party to prepare to meet the request, and furnishes the court with sufficient 7 information to enable it to take judicial notice of the matter. (Evid. Code § 453, subds. (a) & (b).) 8 Exhibit A is the State of California’s Public Employment Relations Board (“PERB”) 9 regional attorney's Dismissal Letter w/attached Letter of Warning for the Plaintiff’s unfair 10 practice charge against CSEA in PERB case No. SA-CO-639-E. The statements contained within 11 the PERB dismissal letter and letter of warning describe Plaintiff’s allegations that CSEA 12 violated the Educational Employment Relations Act (“EERA”), Government Code section 3540 13 et seq. when it breached its duty of fair representation over Plaintiff’s involuntary transfer. The 14 PERB regional attorney dismissed the charge without issuing a complaint, and Plaintiff is now 15 pursuing those allegations in her Amended Complaint before this Court. The document is 16 relevant because it shows Plaintiff previously made the same allegations in a PERB charge that 17 she now makes in the Amended Complaint. It is relevant to assessing whether Plaintiff’s causes 18 of action in the Amended Complaint are preempted by PERB’s exclusive jurisdiction to resolve 19 claims concerning the breach of the duty of fair representation under the EERA. 20 Taking judicial notice of PERB proceedings is proper under Evidence Code section 21 452(c). (See, El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 22 950.) Therefore, CSEA asks the Court to take judicial notice of Exhibit A. 23 Exhibit A.1 is the PERB Board's Decision affirming the PERB regional attorney’s 24 dismissal of the Plaintiff’s unfair practice charge against CSEA in No. SA-CO-639-E. The 25 document represents the final decision in the PERB administrative process that Plaintiff 26 previously pursued against CSEA. The document is relevant to assessing whether the Plaintiff’s 27 causes of action in the Complaint are preempted by PERB’s exclusive jurisdiction to resolve 28 claims concerning the breach of the duty of fair representation under the EERA, and whether the -2- REQUEST FOR JUDICAL NOTICE ISO DEMURRER TO AMENDED COMPLAINT 1 only judicial remedy available to the Plaintiff following the PERB Board’s final decision was to 2 file a petition for traditional mandate in the trial court against PERB. (El Rancho Unified School 3 Dist. v. National Education Ass’n, supra, 33 Cal.3d 946, 950.) Judicial notice is proper under 4 Evidence Code section 452(c) as an official government act. Therefore, CSEA asks the Court to 5 take judicial notice of Exhibit A.1. 6 Exhibit B is the PERB regional attorney's Dismissal Letter w/attached Letter of Warning 7 for the Plaintiff’s unfair practice charge against CSEA in PERB case No. SA-CO-633-E. The 8 statements contained within the PERB dismissal letter and letter of warning describe Plaintiff’s 9 allegations that CSEA violated the EERA when CSEA representatives met with the employer on 10 Plaintiff’s evaluation without her presence or knowledge. The PERB regional attorney dismissed 11 the charge without issuing a complaint, and Plaintiff is now pursuing those allegations in her 12 Amended Complaint before this Court. The document is relevant because it shows Plaintiff 13 previously made the same allegations in a PERB charge that she now makes in the Amended 14 Complaint. It is relevant to assessing whether Plaintiff’s causes of action in the Amended 15 Complaint are preempted by PERB’s exclusive jurisdiction to resolve claims concerning the 16 breach of the duty of fair representation under the EERA. 17 Taking judicial notice of PERB proceedings is proper under Evidence Code section 18 452(c). (See, El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 19 950.) Therefore, CSEA asks the Court to take judicial notice of Exhibit B. 20 Exhibit B.1 is the PERB Board's Decision affirming the PERB regional attorney’s 21 dismissal of the Plaintiff’s unfair practice charge against CSEA in No. SA-CO-633-E. The 22 document represents the final decision in the PERB administrative process that Plaintiff 23 previously pursued against CSEA. The document is relevant to assessing whether the Plaintiff’s 24 causes of action in the Complaint are preempted by PERB’s exclusive jurisdiction to resolve 25 claims concerning the breach of the duty of fair representation under the EERA, and whether the 26 only judicial remedy available to the Plaintiff following the PERB Board’s final decision was to 27 file a petition for traditional mandate in the trial court against PERB. (El Rancho Unified School 28 Dist. v. National Education Ass’n, supra, 33 Cal.3d 946, 950.) Judicial notice is proper under -3- REQUEST FOR JUDICAL NOTICE ISO DEMURRER TO AMENDED COMPLAINT 1 Evidence Code section 452(c) as an official government act. Therefore, CSEA asks the Court to 2 take judicial notice of Exhibit B.1. 3 Exhibit C is the PERB regional attorney's Dismissal Letter w/attached Letter of Warning 4 for the Plaintiff’s unfair practice charge against CSEA in PERB case No. SA-CO-630-E. The 5 statements contained within the PERB dismissal letter and letter of warning describe Plaintiff’s 6 allegations that CSEA violated the EERA when CSEA declined to approve arbitration on 7 Plaintiff’s arbitration then changed its mind. The PERB regional attorney dismissed the charge 8 without issuing a complaint, and Plaintiff is now pursuing those allegations in her Amended 9 Complaint before this Court. The document is relevant because it shows Plaintiff previously 10 made the same allegations in a PERB charge that she now makes in the Amended Complaint. It 11 is relevant to assessing whether Plaintiff’s causes of action in the Amended Complaint are 12 preempted by PERB’s exclusive jurisdiction to resolve claims concerning the breach of the duty 13 of fair representation under the EERA. 14 Taking judicial notice of PERB proceedings is proper under Evidence Code section 15 452(c). (See, El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 16 950.) Therefore, CSEA asks the Court to take judicial notice of Exhibit C. 17 Exhibit D is the PERB regional attorney's Dismissal Letter w/attached Letter of Warning 18 for the Plaintiff’s unfair practice charge against CSEA in PERB case No. SA-CO-624-E. The 19 statements contained within the PERB dismissal letter and letter of warning describe Plaintiff’s 20 allegations that CSEA violated the EERA when CSEA failed to file a grievance on the SUSD 21 Principal making up rules, failed to take action on the Principal watching her, failed to represent 22 her adequately when she was locked out of the breakroom, failed to respond when the District 23 told her to postpone additional grievances, and presented her with an insulting settlement on her 24 arbitration. The PERB regional attorney dismissed the charge without issuing a complaint, and 25 Plaintiff is now pursuing those allegations in her Amended Complaint before this Court. The 26 document is relevant because it shows Plaintiff previously made the same allegations in a PERB 27 charge that she now makes in the Amended Complaint. It is relevant to assessing whether 28 Plaintiff’s causes of action in the Amended Complaint are preempted by PERB’s exclusive -4- REQUEST FOR JUDICAL NOTICE ISO DEMURRER TO AMENDED COMPLAINT 1 jurisdiction to resolve claims concerning the breach of the duty of fair representation under the 2 EERA. 3 Taking judicial notice of PERB proceedings is proper under Evidence Code section 4 452(c). (See, El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 5 950.) Therefore, CSEA asks the Court to take judicial notice of Exhibit D. 6 For these reasons, CSEA respectfully asks this Court to take judicial notice of Exhibit A, 7 Exhibit A.1, Exhibit B, Exhibit B.1, Exhibit C, and Exhibit D. 8 9 Respectfully submitted, 10 11 Dated: September 30, 2021 ______________________________ ANDREW J. KAHN 12 AMY DUNNING 13 Attorneys for CSEA 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- REQUEST FOR JUDICAL NOTICE ISO DEMURRER TO AMENDED COMPLAINT Exhibit A STATE OF CALIFORNIA GAVIN NEWSOM, Governor Sacramento Regional Office 1031 18th Street Sacramento, CA, 95811-4124 Telephone: (916) 591-3166 Fax: (916) 327-6377 April 23, 2021 Laureen Thompson P.O. Box 6366 Stockton, CA 95206 Re: Laureen Thompson v. California School Employees Association Chapter 821 Unfair Practice Charge No. SA-CO-639-E DISMISSAL LETTER Dear Ms. Thompson: The above-referenced charge was filed with the Public Employment Relations Board (PERB or Board) on September 19, 2019. Laureen Thompson (Charging Party) alleges that the California School Employees Association-Chapter 821 (CSEA or Respondent) violated sections 3543.6(a) and (d), 3543.8(a), and 3544.9 of the Educational Employment Relations Act (EERA or Act) 1 by failing to represent Charging Party over violations of a collective bargaining agreement. Charging Party was informed in the attached Warning Letter dated January 11, 2021 (Warning Letter), that the above-referenced charge did not state a prima facie case. Charging Party was advised that, if there were any factual inaccuracies or additional facts that would correct the deficiencies explained in that letter, the charge should be amended. Charging Party was further advised that, unless the charge was amended to state a prima facie case or withdrawn on or before January 26, 2021, the charge would be dismissed. Charging Party filed a first amended charge (FAC) on January 26, 2021. CSEA filed a verified position statement to the FAC on February 17, 2021. 2 1 EERA is codified at Government Code section 3540 et seq. PERB’s Regulations are codified at California Code of Regulations, title 8, section 31001 et seq. The text of the EERA and PERB Regulations may be found at www.perb.ca.gov. 2 A Board agent may rely on a respondent’s factual allegations that are undisputed or not refuted by the charging party, and which are in compliance with PERB Regulation 32620(c), which requires that any response to a charge be signed under penalty of perjury with a declaration that the response is true and complete to Unfair Practice Charge No. SA-CO-639-E April 23, 2021 Page 2 The original charge contained allegations regarding the Stockton Unified School District’s (District) involuntary transfer of Charging Party from Stockton High School to Stagg High School, and that CSEA breached its duty of fair representation by failing to take Charging Party’s grievance regarding the transfer to arbitration. The FAC reiterates these allegations, contains additional allegations regarding the involuntary transfer, and new allegations regarding CSEA’s representation of Charging Party in various employment actions taken by the District against Charging Party, including claims that she was working out-of-class and did not receive retroactive pay. In addition to EERA sections 3543.6(a) and (d), 3543.8(a), and 3544.9 alleged in the original charge to have been violated by CSEA, the FAC further alleges violations of EERA sections 3543.6(b) and 3543.5. For the reasons discussed below, the FAC fails to cure the deficiencies identified in the Warning Letter to state a prima facie case that CSEA breached its duty of fair representation. Summary of Allegations 3 1. Miscellaneous background facts For the school years 2015-2016 and 2016-2017, Charging Party worked at Stockton High School with Principal Marianne Santella, “where there were no issues of contract violations, [ ] EERA violations, hostile environment, discrimination and retaliation.” Charging Party was able to use the office break room with no problems during the 2016-2017 school year. the best of respondent’s knowledge. (Santa Maria Joint Union High School District (2015) PERB Decision No. 2445, citing Service Employees International Union #790 (Adza) (2004) PERB Decision No. 1632-M; see Chula Vista Elementary School District (2003) PERB Decision No. 1557.) To the extent there are any factual disputes, those questions are properly resolved through PERB’s hearing process. (Golden Plains Unified School District (2002) PERB Decision No. 1489.) 3 Exhibits attached to the FAC include a July 17, 2018 level 1 contract grievance filed by Charging Party over her involuntary transfer, the District’s August 8, 2018 level 1 grievance response, the District’s September 4, 2018 level 2 grievance response, and various articles of the District’s and CSEA’s 2016–2019 collective bargaining agreement (CBA). This summary contains some of the information contained in these exhibits. Unfair Practice Charge No. SA-CO-639-E April 23, 2021 Page 3 During the 2017-2018 school year, Charging Party “endured multiple contract violations, intimidation, hostile environment, discrimination, bullying, violation against a whistleblower and retaliation carried out by the [District].” Charging Party filed 13 complaints and grievances against the District, including for Charging Party being locked out of the office break room from August 27, 2017 to June 6, 2018. CSEA was aware of these actions taken by the District against Charging Party and advised her to continue documenting the incidents. In March 2018, Charging Party began filing unfair practice charges with PERB, and complaints with the Department of Fair Employment Housing. The District and Principal Santella were upset with Charging Party over these filings. 2. Involuntary transfer On May 1, 2018, Charging Party received written notice from the District that when she returned to work on July 17, 2018, for the 2018-2109 school year, she would be assigned to Stockton High School. From June 6, 2018 to July 17, 2018, neither the District nor CSEA notified Charging Party that she was going to be transferred to Stagg High School. On July 17, 2018, Charging Party returned to work for the new school year. At approximately 8:56 a.m., Charging Party received a telephone call from the District’s Director of Labor Relations Claudia Moreno-Rabago, who told Charging Party to “leave the office now[,] we are [i]nvoluntary [t]ransferring you. We will meet with you later regarding the transfer.” Moreno-Rabago informed Charging Party that the meeting was scheduled for 12:00 p.m., and that her union would be present at the meeting. Charging Party informed Moreno-Rabago that she would be contacting her union. CSEA job steward Donna Taves told Charging Party that CSEA was not aware of the transfer and instructed Charging Party not to meet with Moreno-Rabago until CSEA receives notice and Charging Party is given an opportunity to meet and discuss the transfer as provided for under the CBA. Taves postponed the meeting because CSEA was not provided notice of the transfer. Charging Party filed a grievance over the involuntary transfer, alleging that this “forced verbal capricious involuntary transfer” violated CBA sections 1, 4, 4.4, 4.4, 4.4.1, 4.4.2, 4.4.3, 6, 6.1, 6.2, 13.5.1, and 13.5.2. CSEA Steward Taves sent an e-mail message to Moreno-Rabago requesting that pursuant to CBA Article 13.5 thru 13.5.2, the meeting scheduled for that day be rescheduled for a later date. Taves also requested that written notice of the reason for Unfair Practice Charge No. SA-CO-639-E April 23, 2021 Page 4 Charging Party’s involuntary transfer be provided to Charging Party and CSEA. On July 17, 2018, Moreno-Rabago provided the reason for the District transferring Charging Party in an e-mail message to Charging Party and her union representative. Moreno-Rabago also agreed to reschedule the meeting for the next day, July 18, 2018. In the District’s level 1 grievance response, Moreno-Rabago admitted that Charging Party was not provided written notice of her involuntary transfer. The July 18 meeting was attended by Charging Party, CSEA Steward Taves, CSEA Labor Representative Casey Thompson, Moreno-Rabago, and a District Personnel Analyst. At the meeting, Moreno-Rabago informed Charging Party that she was being transferred based on District needs because Stagg High School needed a Student Data Technician to assist the registrar. The Student Data Technician position at Stagg High School had been vacant for one and one-half years prior to the transfer. Stockton High School was also short staffed, and Charging Party worked in the front office alone. Charging Party’s position at Stockton High School did not get filled until three months after her transfer. The District did not offer the transfer first to the employee with the highest seniority. Kathy Davis, a Student Data Technician who had higher seniority than Charging Party, had requested to be transferred from Stockton High prior to Charging Party’s involuntary transfer. The District denied Davis’ request. The District also has the ability to request a substitute employee if help is needed, but did not request a substitute employee to work at Stagg High School. 3. CSEA’s non-responsiveness In February 2018, the principal at Stockton High School “filed a false statement letter of concern for insubordination [against Charging Party]. CSEA did nothing.” In March 2018, Moreno-Rabago sent an e-mail message to Charging Party, which stated “I am now in receipt of 5 grievances and ask you [ ] to postpone filing any future grievances until we can meet.” The District did not schedule any meetings regarding these grievances. CSEA Labor Representative Casey Thompson was copied on the e-mail, but did not respond or assist Charging Party. In April 2018, the principal at Stockton High School included false statements in Charging Party’s evaluation, which was placed in Charging Party’s personnel file. Charging Party was not given an opportunity to review or comment on the evaluation. Charging Party filed a grievance/complaint over the evaluation. The District’s Director Unfair Practice Charge No. SA-CO-639-E April 23, 2021 Page 5 of Labor Relations Moreno-Rabago and CSEA’s Labor Representative Thompson did not follow the CBA’s evaluation procedures by having a private meeting without Charging Party’s knowledge, and by removing the evaluation from Charging Party’s personnel file. 4. Retroactive pay In March 2017, the District violated the CBA by not compensating Charging Party for working out-of-class. On June 1, 2017, the District violated the CBA by not providing Charging Party with retroactive pay for a reclassification. On August 27, 2017, after Charging Party requested retroactive pay for working out-of-class and for a reclassification, the principal at Stockton High School “began a hostile environment, contract violations, discrimination, retaliation [ ].” CSEA did not request out-of-class pay on behalf of Charging Party. Charging Party also made several requests to CSEA Labor Representatives Roderick Gaulman and Casey Thompson to include the reclassification as part of her working out-of-class grievance, but they ignored her requests and “caused the loss of [Charging Party’s] arbitration.” Discussion Standing Charging Party was informed in the Warning Letter that Charging Party lacked standing to pursue violations of sections 3543.6(a), 3543.6(d), and 3543.8(a). The FAC contains no additional facts to demonstrate that Charging Party has standing. Accordingly, these allegations are dismissed. Section 3543.5 The FAC newly alleges that CSEA violated section 3543.5, which makes it unlawful for a public school employer to engage in certain conduct. The FAC identifies the District as Charging Party’s employer. Because CSEA is not a public school employer, this allegation is dismissed. Duty of Fair Representation Charging Party alleges that CSEA breached its duty of fair representation guaranteed by section 3544.9 and thereby violated section 3543.6(b), by failing to pursue Charging Party’s grievance to arbitration regarding her involuntary transfer. Unfair Practice Charge No. SA-CO-639-E April 23, 2021 Page 6 As explained to Charging Party in the Warning Letter, while the duty of fair representation imposed on the exclusive representative extends to grievance handling 4 (Fremont Unified District Teachers Association, CTA/NEA (King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258), to state a prima facie case of a breach of this duty Charging Party must show that the Respondent’s conduct was arbitrary, discriminatory, or in bad faith. United Teachers of Los Angeles (Collins), supra, PERB Decision No. 258.) Moreover, mere negligence or poor judgment in handling a grievance does not constitute a breach of the union’s duty. (Ibid.) In order to state a prima facie case of arbitrary conduct violating the duty of fair representation, a Charging Party must at a minimum include an assertion of sufficient facts from which it becomes apparent how or in what manner the exclusive representative’s action or inaction was without a rational basis or devoid of honest judgment. (Reed District Teachers Association, CTA/NEA (Reyes) (1983) PERB Decision No. 332.) Charging Party was further advised that CSEA may exercise its discretion to determine how far to pursue a grievance on an employee’s behalf as long as it does not arbitrarily ignore a meritorious grievance or process a grievance in a perfunctory fashion, and CSEA is not required to process an employee’s grievance if the chances for success are minimal. (United Teachers of Los Angeles (Collins), supra, PERB Decision No. 258.) A disagreement between a grievant and the union as to whether a grievance should proceed to arbitration does not establish a breach of the duty of fair representation where a union has made an honest, reasonable determination that the grievance lacks merit. (Service Employees International Union Local 1000, California State Employees Association (Burnett) (2007) PERB Decision No. 1914-S.) Thus, to state a prima facie case Charging Party has the burden of demonstrating that CSEA’s decision not to pursue Charging Party’s grievance to arbitration was arbitrary—without a rational basis or devoid of honest judgment—discriminatory, or in bad faith. The FAC fails to include additional facts to meet this burden. 4 The Warning Letter requested that Charging Party allege facts, or include a complete copy of the grievance and arbitration provisions, demonstrating that only CSEA can take the grievance to arbitration. Attached to the FAC are various provisions of the CBA between the CSEA. CSEA has a duty of fair representation regarding Charging Party’s grievance because after review of these provisions it appears that only CSEA may elevate a grievance to arbitration. (United Teachers Los Angeles (Le Mere) (2018) PERB Decision No. 2581.) Unfair Practice Charge No. SA-CO-639-E April 23, 2021 Page 7 Charging Party filed a grievance over her involuntary transfer alleging violations of CBA Article 13.5.1 and 13.5.2. Article 13.5.1 provides that the employer may involuntarily transfer an employee for “work-related needs” of the District, but not for disciplinary or capricious reasons. Article 13.5.2 provides that the District must give an employee being involuntarily transferred written notice of the reasons for the transfer, and to hold a meeting with the Human Resources Department regarding the transfer. As noted in the Warning Letter, CSEA concluded that the District did not violate the CBA when it transferred Charging Party. CSEA’s Executive Board’s written response denying Charging Party’s request to proceed to arbitration on her grievance stated that the grievance alleging the District violated Article 13.5.1 “is without merit because there is no evidence to contradict the District’s stated position that [Charging Party’s] involuntary transfer from Stockton High School to Stagg High School on July 17, 2018, was based exclusively on the work-related needs of the District.” Regarding the alleged violation of Article 13.5.2, the response stated that “[w]ritten notice was provided by Director of Labor Relations Claudia Moreno on July 17, 2018, and a conference was held between [Charging Party], Moreno and CSEA representatives on July 18, 201[8].” Regarding the issue of notice, the FAC alleges that the District admitted in its level 1 grievance response that it provided Charging Party with verbal and “short” notice of the transfer, and that between June 6, 2018 to July 17, 2018, the District nor CSEA contacted Charging Party regarding her involuntary transfer. While the charge allegations do demonstrate that Charging Party was first provided verbal notice of the transfer, the allegations and exhibits further demonstrate that CSEA intervened to ensure that Charging Party subsequently received written notice. CSEA Steward Taves told Charging Party that CSEA was not aware of the transfer and instructed Charging Party not to meet with the District until CSEA receives notice and Charging Party is given an opportunity to meet and discuss the transfer as provided for under the CBA. Taves sent an e-mail message to Moreno-Rabago requesting that pursuant to the CBA, the meeting scheduled that day be rescheduled, and that the District provide written notice of the reason for Charging Party’s involuntary transfer. On July 17, 2018, Moreno-Rabago sent an e-mail to Charging Party and her union representative providing the written reason for the involuntary transfer. Moreno-Rabago also agreed to cancel the meeting scheduled that day and rescheduled it for the next day, July 18, 2018. At the July 18 meeting attended by Charging Party, CSEA Steward Taves, CSEA Labor Representative Casey Thompson, and District representatives, the District informed Charging Party that she Unfair Practice Charge No. SA-CO-639-E April 23, 2021 Page 8 was being transferred based on District needs because Stagg High School needed a Student Data Technician to assist the registrar. Thus, due to CSEA’s intervention, Charging Party received written notice of her involuntary transfer. Moreover, the FAC fails to show that there was a contractual timeframe within which the District was required to provide Charging Party with written notice prior to the transfer. The FAC next asserts that CSEA breached its duty of fair representation by accepting the District’s rationale for transferring Charging Party without investigating or researching the facts pointed out by Charging Party that show that the transfer was “capricious” and violated CBA Article 13.5.1. The FAC alleges that Charging Party pointed out to CSEA that Kathy Davis, a Student Data Technician with higher seniority, had requested to be transferred from Stockton High prior to Charging Party’s involuntary transfer, but that the District denied the request. The District also had the ability to request a substitute employee if help is needed, but did not do so. The Student Data Technician position at Stagg High School had been vacant for one and one-half years prior to the transfer. Stockton High School was also in need of “work related needs” due to short staff, and Charging Party worked in the front office alone. Charging Party’s position at Stockton High School did not get filled until three months after her transfer. These allegations are contained in Charging Party’s July 19, 2019 appeal to CSEA over its decision not to proceed to arbitration, which was attached to the original charge. CSEA’s September 17, 2019 denial of Charging Party’s appeal notes that in reaching its decision, CSEA’s Board of Directors reviewed and considered “all evidence and reports.” Even if CSEA failed to investigate or research these facts, Charging Party fails to demonstrate that even if these facts were considered that CSEA’s decision not to pursue the grievance to arbitration was arbitrary, discriminatory, in bad faith, without a rational basis or devoid of honest judgment. (United Teachers of Los Angeles (Collins), supra, PERB Decision No. 258; Reed District Teachers Association, CTA/NEA (Reyes), supra, PERB Decision No. 332.) Charging Party appears to assert that because another student data technician with higher seniority had requested to be transferred from Stockton High prior to Charging Party’s involuntary transfer, that the District should have transferred that employee instead of Charging Party, and in failing to do so the transfer was “capricious.” The FAC does not point to any CBA provision or District policy that requires seniority be considered when involuntarily transferring employees. Nor does the FAC allege any facts demonstrating that because the position at Stagg High School had been vacant Unfair Practice Charge No. SA-CO-639-E April 23, 2021 Page 9 for one and one-half years, that Stockton High School was short staffed, and that the District failed to retain a substitute to work at Stagg High School, that the District’s decision to transfer Charging Party was not based on District needs or violated the CBA. CSEA accepted the District’s reasons for transferring Charging Party, concluding the District’s actions did not violate the CBA. CSEA in deciding not to take Charging Party’s grievance to arbitration determined that the grievance was without merit. The FAC fails to allege sufficient facts that CSEA’s actions regarding Charging Party’s grievance breached the duty of fair representation. Thus, this allegation is dismissed. Timeliness of new allegations The FAC contains new allegations regarding CSEA’s representation of Charging Party in various employment actions taken by the District against Charging Party. Charging Party was advised in the Warning Letter that she has the burden to allege facts showing that the unfair practice charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited from issuing a complaint with respect to any charge based upon an alleged unfair practice occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.) The limitations period begins to run once the charging party knows, or should have known, of the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177.) The original charge concerning Charging Party’s involuntary transfer was filed on September 19, 2019. When a charging party amends an unfair practice charge and thereby adds new allegations, the statute of limitations for the newly-added allegations is generally the six months prior to the date the charging party filed the amended charge, unless the new allegations relate back to the allegations in the initial charge, or another recognized exception applies. (County of Santa Barbara (2012) PERB Decision No. 2279-M.) “An amended charge relates back to the initial charge only when it clarifies facts originally alleged in the initial charge or adds a new legal theory based on facts originally alleged in the initial charge.” (Ibid.) Thus, any new allegations contained in the FAC related to Charging Party’s involuntary transfer occurring prior to March 19, 2019, are outside of EERA’s six-month statute of limitations, and subject to dismissal. However, for new allegations that do not relate Unfair Practice Charge No. SA-CO-639-E April 23, 2021 Page 10 back to the involuntary transfer and where no other recognized exception applies, the six-month statute of limitations runs from the date the amended charge was filed. (Ibid.) The amended charge was filed on January 26, 2021. Thus, any new allegations that do not relate back to the allegations regarding Charging Party’s involuntary transfer occurring prior to July 26, 2020, are outside of EERA’s six-month statute of limitations. The following allegations from the FAC do not relate back to the allegations contained in the original charge, and occurred prior to July 26, 2020: 1) CSEA was aware of grievances/complaints filed by Charging Party against the District, including Charging Party being locked out of the office break room from August 27, 2017 to June 6, 2018; 2) in February 2018, CSEA took no action when the principal at Stockton High School “filed a false statement letter of concern for insubordination”; 3) CSEA Labor Representative Casey Thompson did not respond or assist Charging Party following a March 2018 e-mail from the District requesting that Charging Party postpone filing future grievances until a meeting could be scheduled; 4) the District and CSEA did not follow the CBA’s evaluation procedures regarding an April 2018 evaluation of Charging Party; and 5) in or about August 2017, CSEA’s labor representatives ignored Charging Party’s requests to seek out-of-class pay and to include a reclassification as part of her working out-of-class grievance, and also caused the loss of Charging Party’s arbitration. 5 As this alleged conduct occurred outside the statute of limitat