Preview
1 Robert D. Links (SBN 61914)
SLOTE, LINKS & BOREMAN, LLP
2 1 Embarcadero Center, Suite 400 ELECTRONICALLY
San Francisco, CA 94111-3619 F I L E D
3 Superior Court of California,
County of San Francisco
Telephone: (415) 393-8001
4 Fax: (415) 294-4545 07/19/2019
Email: bo@slotelaw.com Clerk of the Court
BY: EDNALEEN ALEGRE
5 Deputy Clerk
Attorneys for Petitioner
6 UNITED ADMINISTRATORS
OF SAN FRANCISCO
7
8 SUPERIOR COURT OF CALIFORNIA
9 CITY & COUNTY OF SAN FRANCISCO
10 UNLIMITED JURISDICTION—CIVIL
11 UNITED ADMINISTRATORS No. CPF-19-516729
OF SAN FRANCISCO,
12 PETITIONER’S REPLY
Petitioner, MEMORANDUM IN SUPPORT OF
13 PETITION TO COMPEL ARBITRATION
vs.
14 LAW & MOTION DEPARTMENT
SAN FRANCISCO UNIFIED SCHOOL Hearing Date: July 30, 2019
15 DISTRICT, Reservation # 06270730-08
Time: 9:30 AM
16 Place: Civic Center Courthouse
Respondent. 400 McAllister Street
17 Room 302
San Francisco, CA 94102
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19 I. Introduction.
20 The response submitted by the respondent SFUSD misses the fundamental reality of this
21 dispute, which concerns (1) the reassignment of Patricia Dieterich-Theel to a position lower in
22 pay and prestige; (2) the fact that “reassignment policies” are within the statutorily defined scope
23 of representation set forth in section 3543.2 of the Government Code; (3) the parties have
24 negotiated reassignment policies in their collective bargaining agreement; (4) the parties’
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PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD
IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729
1 agreement contains an arbitration clause (see Petition at Exhibit A, Article 11.4) that clearly
2 stipulates application of the Rules of the American Arbitration Association; and (5) the AAA
3 Rules, in turn, assign all of the disputed issues to an arbitrator as opposed to a judge. For those
4 reasons, the petition should be granted.
5 II. The “at will” cases cited by the SFUSD do not apply in this context.
6 The SFUSD spends a great deal of time trying to convince the court that school
7 administrators serve at the pleasure of the governing board of education. See Opp. Memo at pp.
8 4-7. That argument only goes so far: none of the cases cited involved a reassignment under a
9 collective bargaining agreement. Indeed, several of them either were decided prior to the
10 negotiation of such agreements pursuant to the Education Employment Relations Act, which
11 took effect on July 1, 1976 and/or involved events that occurred prior to that statute’s effective
12 date. For example, the District cites Thompson v. Modesto High School Dist. (1977) 19 Cal.3d
13 620, 623 (events in 1972); Whisman v. San Francisco Unified School District (1978) 86
14 Cal.App.3d 782, 788 (events in 1975); Grant v. Adams (1977) 69 Cal.App.3d 127, 130 (events in
15 1974); Barton v. Governing Board (1976) 60 Cal.App.3d 476, 478 (events in 1975) ; Hentschke
16 v. Sink (1973) 34 Cal.App.3d 19 (events in 1971-72). These cases do not shed light on collective
17 bargaining issues, much less the applicability of an arbitration clause in a collective bargaining
18 agreement.
19 III. The District is wrong on the issue of arbitrabilitiy.
20 When the SFUSD discusses the issue or arbitrability (Opp. Memo. at p. 7-12), the
21 discussion centers on two themes. First, the District contends that the issues presented here
22 cannot be the subject of a collective bargaining agreement—relying on decisions that voided
23 provisions in a negotiated collective bargaining agreement that conflicted with the state
24 Education Code (see Opp. Memo. At p. 7-8). A second theme is that that petitioner UASF and
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PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD
IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729
1 the individual grievant (Patricia Dieterich-Theel) did not follow the pre-arbitration steps set forth
2 in the governing collective bargaining agreement. The District is wrong on both counts.
3 (a) The collective bargaining agreement is not preempted; in fact,
“reassignment polices” are a specifically enumerated subject within the
4 scope of representation.
5 On the preemption point, the cases cited by the District (Bellflower Educ. Ass’n v.
6 Bellflower Unified Sch. Dist. (1991) 228 Cal.App.3d 805, and Board of Education of Round
7 Valley Unified Sch. Dist. (1996) 13 Cal.4th 269) dealt with a distinct issue – the dismissal of
8 probationary teachers – that is not within the scope of representation for collective bargaining.
9 See Cal. Gov’t Code § 3543.2(a)(dismissal of probationary teachers is not listed). Here, in sharp
10 contrast, we are dealing with a subject (reassignment policies) that is within the defined scope of
11 negotiation. Government Code section 3543(a) specifically lists “reassignment policies” as one
12 of the items the parties can negotiate. The section states in pertinent part (emphasis added):
13 The scope of representation shall be limited to matters relating to wages,
hours of employment, and other terms and conditions of employment.
14 “Terms and conditions of employment” mean health and welfare benefits
. . . leave, transfer and reassignment policies, safety conditions of
15 employment, class size, procedures to be used for the evaluation of
employees . . . procedures for processing grievances . . . the layoff of
16 probationary certificated school district employees . . . .
17 It is this code section that sets this dispute apart from the cases cited by the District.
18 (b) The Union followed the pre-arbitration steps.
19 The District’s argument about pre-arbitration procedure is also wide of the mark. Here
20 the Union did in fact follow the steps set out in the collective bargaining agreement. To be sure,
21 the parties have a dispute about whether the grievance was timely – but under the AAA Rules,
22 that is an issue for the arbitrator. The Union is entitled to make its case to a neutral arbitrator as
23 to why the underlying grievance should be considered timely under the parties’ agreement. Even
24 more fundamentally, however, the District misconstrues the reason the “follow-the-steps” clause
3
PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD
IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729
1 (Article 11.1.14) is included in the collective bargaining agreement. It is not designed as a trap
2 door or a bar to the arbitration of timeliness issues, but rather, as an assurance that the Union
3 cannot proceed to arbitration prematurely, without exhausting internal appellate steps that offer
4 the District additional chances to avoid arbitration. Here, petitioner UASF exhausted each of
5 those preliminary steps, but to no avail. Now is the time to allow the Union to make its case
6 before an arbitrator. In this regard, it is more than ironic that the District cites an arbitrator’s
7 ruling about the timeliness of a grievance (see Opp. Memo. at p. 11-12). The point is: in the
8 case cited by the District, it was an arbitrator who made the call, which is precisely the
9 procedure UASF bargained for and seeks to invoke. 1
10 IV. The AAA Rules apply.
11 The District’s purported limitation on the applicability of the AAA Rules is just not
12 accurate. The collective bargaining agreement provides that the parties will meet and confer for
13 the purpose of working together to select a panel of arbitrators – in effect providing their own
14 agreed-upon selection list that can rotate from grievance to grievance. See Exhibit A to the
15 Petition at Article 11.4.1. The parties have never selected a panel of arbitrators. The collective
16 bargaining agreement further provides that until a panel of arbitrators is selected, the AAA’s
17 rules will govern. Id. Presumably, once a panel of arbitrators is in place, the parties have the
18 option to meet, confer and then agree on a different set of rules to govern their arbitration (or,
19 they could simply continue using the AAA Rules).
20 But the parties’ agreement does not say that once a single arbitrator is selected for a given
21 case, there are no rules at all, or that suddenly the AAA Rules cease to apply. The true and
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The cited arbitration proceeding did not involve the subject contract, but rather, the teachers’
collective bargaining agreement. Needless to say, it does not bind UASF, which was not a party
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to that proceeding, nor a party to the agreement that was the subject of that proceeding.
4
PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD
IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729
1 reasonable meaning of the contract language is that the AAA Rules apply unless and until the
2 parties agree otherwise.
3 V. Construction of the parties’ agreement is for the arbitrator.
4 Of course, disputes over what the contract means are not for this court to decide. They are
5 for an arbitrator, as the authorities previously cited in petitioner’s opening memorandum
6 demonstrate. See Petitioner’s Opening Memorandum at pp. 4-7. The District’s assertion that the
7 subject grievance is not a grievance because the agreement only covers violations by
8 “management employees” suffers from this very flaw – it involves an issue for an arbitrator.
9 Parenthetically, the notion that the school board is not bound by the agreement is a stunning
10 point. Does that mean that if the District, through its governing board, decides not to comply
11 with the salary schedule set forth in the collective bargaining agreement, the union can’t grieve
12 it? Such an absurd result flies in the face of common sense and traditional labor law principles.
13 Collective bargaining agreements bind employers. The District’s approach should be rejected by
14 the court. Under the section 1281.2 of the Code of Civil Procedure, once the agreement to
15 arbitrate is proven – which it has been – these issues should be referred to the arbitrator for
16 resolution. Indeed, as noted previously (Petitioner’s Opening Memo. at p. 2), “an order to
17 arbitrate . . . may not be refused on the ground that the petitioner’s contention lacks substantive
18 merit.” Cal. Code Civ. Proc. § 1281.2.
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PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD
IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729
1 VI. Conclusion.
2 For these reasons, and the reasons stated in UASF’s opening memorandum, the petition
3 to compel arbitration should be GRANTED.
4 Dated: July 19, 2019 SLOTE, LINKS & BOREMAN, LLP
5
By: _____________________________
6 Robert D. Links
Attorneys for Petitioner
7 UNITED ADMINISTRATORS
OF SAN FRANCISCO
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PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD
IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729
1 CERTIFICATE OF SERVICE
2 The undersigned hereby certifies under the penalty of perjury of the laws of the State of
3 California that on July 19, 2019, he caused a true and correct copy of the attached
4 PETITIONER’S REPLY MEMORANDUM IN SUPPORT OF PETITION TO COMPEL
5 ARBITRATION to be served by email, fax transmission, and regular first class mail (in addition
6 to e-service provided by a court approved vendor), on:
7 William Michael Quinn, Esq.
Sr. Deputy Counsel
8 San Francisco Unified School District
555 Franklin Street, 3rd Floor
9 San Francisco, CA 94102
10 Email: quinnm@sfusd.edu
Fax: 415-241-6371
11
12 ________________________________
Robert D. Links
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PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD
IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729
Preview
1 Robert D. Links (SBN 61914) SLOTE, LINKS & BOREMAN, LLP 2 1 Embarcadero Center, Suite 400 ELECTRONICALLY San Francisco, CA 94111-3619 F I L E D 3 Superior Court of California, County of San Francisco Telephone: (415) 393-8001 4 Fax: (415) 294-4545 07/19/2019 Email: bo@slotelaw.com Clerk of the Court BY: EDNALEEN ALEGRE 5 Deputy Clerk Attorneys for Petitioner 6 UNITED ADMINISTRATORS OF SAN FRANCISCO 7 8 SUPERIOR COURT OF CALIFORNIA 9 CITY & COUNTY OF SAN FRANCISCO 10 UNLIMITED JURISDICTION—CIVIL 11 UNITED ADMINISTRATORS No. CPF-19-516729 OF SAN FRANCISCO, 12 PETITIONER’S REPLY Petitioner, MEMORANDUM IN SUPPORT OF 13 PETITION TO COMPEL ARBITRATION vs. 14 LAW & MOTION DEPARTMENT SAN FRANCISCO UNIFIED SCHOOL Hearing Date: July 30, 2019 15 DISTRICT, Reservation # 06270730-08 Time: 9:30 AM 16 Place: Civic Center Courthouse Respondent. 400 McAllister Street 17 Room 302 San Francisco, CA 94102 18 19 I. Introduction. 20 The response submitted by the respondent SFUSD misses the fundamental reality of this 21 dispute, which concerns (1) the reassignment of Patricia Dieterich-Theel to a position lower in 22 pay and prestige; (2) the fact that “reassignment policies” are within the statutorily defined scope 23 of representation set forth in section 3543.2 of the Government Code; (3) the parties have 24 negotiated reassignment policies in their collective bargaining agreement; (4) the parties’ 1 PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729 1 agreement contains an arbitration clause (see Petition at Exhibit A, Article 11.4) that clearly 2 stipulates application of the Rules of the American Arbitration Association; and (5) the AAA 3 Rules, in turn, assign all of the disputed issues to an arbitrator as opposed to a judge. For those 4 reasons, the petition should be granted. 5 II. The “at will” cases cited by the SFUSD do not apply in this context. 6 The SFUSD spends a great deal of time trying to convince the court that school 7 administrators serve at the pleasure of the governing board of education. See Opp. Memo at pp. 8 4-7. That argument only goes so far: none of the cases cited involved a reassignment under a 9 collective bargaining agreement. Indeed, several of them either were decided prior to the 10 negotiation of such agreements pursuant to the Education Employment Relations Act, which 11 took effect on July 1, 1976 and/or involved events that occurred prior to that statute’s effective 12 date. For example, the District cites Thompson v. Modesto High School Dist. (1977) 19 Cal.3d 13 620, 623 (events in 1972); Whisman v. San Francisco Unified School District (1978) 86 14 Cal.App.3d 782, 788 (events in 1975); Grant v. Adams (1977) 69 Cal.App.3d 127, 130 (events in 15 1974); Barton v. Governing Board (1976) 60 Cal.App.3d 476, 478 (events in 1975) ; Hentschke 16 v. Sink (1973) 34 Cal.App.3d 19 (events in 1971-72). These cases do not shed light on collective 17 bargaining issues, much less the applicability of an arbitration clause in a collective bargaining 18 agreement. 19 III. The District is wrong on the issue of arbitrabilitiy. 20 When the SFUSD discusses the issue or arbitrability (Opp. Memo. at p. 7-12), the 21 discussion centers on two themes. First, the District contends that the issues presented here 22 cannot be the subject of a collective bargaining agreement—relying on decisions that voided 23 provisions in a negotiated collective bargaining agreement that conflicted with the state 24 Education Code (see Opp. Memo. At p. 7-8). A second theme is that that petitioner UASF and 2 PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729 1 the individual grievant (Patricia Dieterich-Theel) did not follow the pre-arbitration steps set forth 2 in the governing collective bargaining agreement. The District is wrong on both counts. 3 (a) The collective bargaining agreement is not preempted; in fact, “reassignment polices” are a specifically enumerated subject within the 4 scope of representation. 5 On the preemption point, the cases cited by the District (Bellflower Educ. Ass’n v. 6 Bellflower Unified Sch. Dist. (1991) 228 Cal.App.3d 805, and Board of Education of Round 7 Valley Unified Sch. Dist. (1996) 13 Cal.4th 269) dealt with a distinct issue – the dismissal of 8 probationary teachers – that is not within the scope of representation for collective bargaining. 9 See Cal. Gov’t Code § 3543.2(a)(dismissal of probationary teachers is not listed). Here, in sharp 10 contrast, we are dealing with a subject (reassignment policies) that is within the defined scope of 11 negotiation. Government Code section 3543(a) specifically lists “reassignment policies” as one 12 of the items the parties can negotiate. The section states in pertinent part (emphasis added): 13 The scope of representation shall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment. 14 “Terms and conditions of employment” mean health and welfare benefits . . . leave, transfer and reassignment policies, safety conditions of 15 employment, class size, procedures to be used for the evaluation of employees . . . procedures for processing grievances . . . the layoff of 16 probationary certificated school district employees . . . . 17 It is this code section that sets this dispute apart from the cases cited by the District. 18 (b) The Union followed the pre-arbitration steps. 19 The District’s argument about pre-arbitration procedure is also wide of the mark. Here 20 the Union did in fact follow the steps set out in the collective bargaining agreement. To be sure, 21 the parties have a dispute about whether the grievance was timely – but under the AAA Rules, 22 that is an issue for the arbitrator. The Union is entitled to make its case to a neutral arbitrator as 23 to why the underlying grievance should be considered timely under the parties’ agreement. Even 24 more fundamentally, however, the District misconstrues the reason the “follow-the-steps” clause 3 PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729 1 (Article 11.1.14) is included in the collective bargaining agreement. It is not designed as a trap 2 door or a bar to the arbitration of timeliness issues, but rather, as an assurance that the Union 3 cannot proceed to arbitration prematurely, without exhausting internal appellate steps that offer 4 the District additional chances to avoid arbitration. Here, petitioner UASF exhausted each of 5 those preliminary steps, but to no avail. Now is the time to allow the Union to make its case 6 before an arbitrator. In this regard, it is more than ironic that the District cites an arbitrator’s 7 ruling about the timeliness of a grievance (see Opp. Memo. at p. 11-12). The point is: in the 8 case cited by the District, it was an arbitrator who made the call, which is precisely the 9 procedure UASF bargained for and seeks to invoke. 1 10 IV. The AAA Rules apply. 11 The District’s purported limitation on the applicability of the AAA Rules is just not 12 accurate. The collective bargaining agreement provides that the parties will meet and confer for 13 the purpose of working together to select a panel of arbitrators – in effect providing their own 14 agreed-upon selection list that can rotate from grievance to grievance. See Exhibit A to the 15 Petition at Article 11.4.1. The parties have never selected a panel of arbitrators. The collective 16 bargaining agreement further provides that until a panel of arbitrators is selected, the AAA’s 17 rules will govern. Id. Presumably, once a panel of arbitrators is in place, the parties have the 18 option to meet, confer and then agree on a different set of rules to govern their arbitration (or, 19 they could simply continue using the AAA Rules). 20 But the parties’ agreement does not say that once a single arbitrator is selected for a given 21 case, there are no rules at all, or that suddenly the AAA Rules cease to apply. The true and 22 23 1 The cited arbitration proceeding did not involve the subject contract, but rather, the teachers’ collective bargaining agreement. Needless to say, it does not bind UASF, which was not a party 24 to that proceeding, nor a party to the agreement that was the subject of that proceeding. 4 PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729 1 reasonable meaning of the contract language is that the AAA Rules apply unless and until the 2 parties agree otherwise. 3 V. Construction of the parties’ agreement is for the arbitrator. 4 Of course, disputes over what the contract means are not for this court to decide. They are 5 for an arbitrator, as the authorities previously cited in petitioner’s opening memorandum 6 demonstrate. See Petitioner’s Opening Memorandum at pp. 4-7. The District’s assertion that the 7 subject grievance is not a grievance because the agreement only covers violations by 8 “management employees” suffers from this very flaw – it involves an issue for an arbitrator. 9 Parenthetically, the notion that the school board is not bound by the agreement is a stunning 10 point. Does that mean that if the District, through its governing board, decides not to comply 11 with the salary schedule set forth in the collective bargaining agreement, the union can’t grieve 12 it? Such an absurd result flies in the face of common sense and traditional labor law principles. 13 Collective bargaining agreements bind employers. The District’s approach should be rejected by 14 the court. Under the section 1281.2 of the Code of Civil Procedure, once the agreement to 15 arbitrate is proven – which it has been – these issues should be referred to the arbitrator for 16 resolution. Indeed, as noted previously (Petitioner’s Opening Memo. at p. 2), “an order to 17 arbitrate . . . may not be refused on the ground that the petitioner’s contention lacks substantive 18 merit.” Cal. Code Civ. Proc. § 1281.2. 19 // 20 // 21 // // 22 // 23 // 24 5 PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729 1 VI. Conclusion. 2 For these reasons, and the reasons stated in UASF’s opening memorandum, the petition 3 to compel arbitration should be GRANTED. 4 Dated: July 19, 2019 SLOTE, LINKS & BOREMAN, LLP 5 By: _____________________________ 6 Robert D. Links Attorneys for Petitioner 7 UNITED ADMINISTRATORS OF SAN FRANCISCO 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 6 PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729 1 CERTIFICATE OF SERVICE 2 The undersigned hereby certifies under the penalty of perjury of the laws of the State of 3 California that on July 19, 2019, he caused a true and correct copy of the attached 4 PETITIONER’S REPLY MEMORANDUM IN SUPPORT OF PETITION TO COMPEL 5 ARBITRATION to be served by email, fax transmission, and regular first class mail (in addition 6 to e-service provided by a court approved vendor), on: 7 William Michael Quinn, Esq. Sr. Deputy Counsel 8 San Francisco Unified School District 555 Franklin Street, 3rd Floor 9 San Francisco, CA 94102 10 Email: quinnm@sfusd.edu Fax: 415-241-6371 11 12 ________________________________ Robert D. Links 13 14 15 16 17 18 19 20 21 22 23 24 7 PETITIONER’S REPLY MEMORANDUM UASF v. SFUSD IN SUPPORT OF PETITION TO COMPEL ARBITRATION SFSC No. CPF-19-516729