Preview
1 KERIANNE R. STEELE, Bar No. 250897
WEINBERG, ROGER & ROSENFELD
2 A Professional Corporation
1375 55th Street
3 Emeryville, California 94608
Telephone (510) 337-1001
4 Fax (510) 337-1023
E-Mail: courtnotices@unioncounsel.net
5 ksteele@unioncounsel.net
6 TIFFANY L. CRAIN, Bar No. 306663
WEINBERG, ROGER & ROSENFELD
7 A Professional Corporation
431 I Street, Suite 201
8 Sacramento, California 95814
Telephone (916) 443-6600
9 Fax (916) 442-0244
E-Mail: courtnotices@unioncounsel.net
10 tcrain@unioncounsel.net
11 Attorneys for Petitioner SEIU LOCAL 1021
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
IN AND FOR THE COUNTY OF NAPA
14 SERVICE EMPLOYEES INTERNATIONAL Case No. 22CV000832
UNION, LOCAL 1021,
15 SEIU LOCAL 1021’S SUPPLEMENTAL
Petitioner, REPLY BRIEF IN SUPPORT OF
16 PETITION TO COMPEL
v. ARBITRATION
17
COUNTY OF NAPA, Date: October 27, 2022
18 Time: 8:30 a.m.
Respondent. Dept.: A
19 Judge: Hon. Cynthia P. Smith
20
21
22
23
24
25
26
27
28
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
431 I Street, Suite 201
SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL
Sacramento, California 95814
(916) 443-6600
ARBITRATION CASE NO. 22CV000832
1 I. INTRODUCTION
2 SEIU Local 1021 has demonstrated its entitlement to arbitration under California Code of
3 Civil Procedure section 1281.2.
II. LEGAL ARGUMENT
4
A. THE COUNTY IS ASKING THIS COURT TO RESOLVE FACTUAL
5 DISPUTES THAT MUST BE DECIDED BY AN ARBITRATOR
6 The County is trying to litigate its entire case by way of declarations filed with this Court.
7 There are factual disputes in this case that must be presented to the arbitrator, not to this Court.
8 For example, whether SEIU Local 1021 pursued the express allegation in its grievance
9 pertaining to “night differential back pay” is a factual dispute the arbitrator must decide. The
10 Court cannot accept as truth the contention of Chief Deputy County Counsel Sherri Kaiser that “I
11 concluded that SEIU had abandoned the aspect of the Davis grievance pertaining to night shift
12 differential.” (Supplemental Declaration of Sherri Kaiser (“Kaiser Decl.”), ⁋6.) There are no
13 documents in the record evidencing SEIU Local 1021’s withdrawal of that allegation in the
14 grievance. To the contrary, the record contains an email from SEIU Local 1021 Field
15 Representative, Monique Wild, advancing the entire grievance to arbitration. (Petition, Exh. I.) In
16 the absence of correspondence from the Union withdrawing some aspect of a grievance, an
17 employer cannot unilaterally determine that an allegation contained within a grievance is
18 abandoned.
19 The County is also requesting this Court rather than an arbitrator decide various contract
20 interpretation disputes, such as whether the County’s rebuke of the employee Katina Davis for
21 allegedly violating an overtime policy constitutes “discipline” under the Memoranda of
22 Understanding (“MOUs”). Ironically, the Step 2 grievance response the County attaches to the
23 Kaiser Declaration likely constitutes a “Letter of Reprimand,” i.e., discipline under Section 9.1 of
24 the parties’ MOUs, in that it is a written admonishment of Ms. Davis for allegedly violating the
25 overtime policy coupled with a threat that future instances of violation(s) will lead to discipline.
26 (Kaiser Decl., ⁋7, Exh. B, p. 2 (“[P]olicy is clear that all overtime must be preapproved… any
27 future instances of working overtime without pre-approval will lead to discipline,” emphasis in
28 original; see Petition, Exhs. A and B, Section 9.1, p. 4.) That is exactly what a Letter of
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1
431 I Street, Suite 201
SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL
Sacramento, California 95814
(916) 443-6600
ARBITRATION CASE NO. 22CV000832
1 Reprimand is, even if the term “Letter of Reprimand” was not used in the correspondence to the
2 employee. The arbitrator is the neutral decider of such a factual dispute of whether discipline has
3 issued, whether it was improper, and whether a remedy is owed to Ms. Davis. In any event, Ms.
4 Davis is not the only employee covered by the class action grievance. The Union need not allege
5 specific instances of discipline in a class action grievance to be entitled to a “make whole” relief
6 for “[a]ll SEIU Local 1021 bargaining unit members.” (Quoting Petition, Exh. E.)
7 The County also wants to litigate via declaration the extensive back-and-forth between the
8 parties regarding potential (and ultimately unsuccessful) resolution of the matters grieved.
9 Witnesses should present live testimony, subject to direct and cross-examination, regarding the
10 nature of the grievance-related meetings and written communications. The arbitrator should
11 decide which claims were properly asserted in the grievance and pursued all the way to
12 arbitration, which claims constitute a violation of the MOUs, and which proven violations still
13 require a remedy.
14 The reason the factual record in this Petition to Compel proceeding is becoming unwieldy
15 is because these factual issues should not be presented to or decided by this Court. They should
16 be proffered to an arbitrator in an orderly fashion through the calling of live witnesses and the
17 admission of exhibits into evidence.
18
B. THE COUNTY CANNOT MEET ITS BURDEN OF PROVING SEIU
19 LOCAL 1021 WAIVED ITS RIGHT TO ARBITRATION
20 SEIU Local 1021 has met its burden of proving the grievance is arbitrable under the terms
21 of the contract. In contrast, the County cannot meet its burden of proving SEIU Local 1021
22 waived its right to arbitration. “In determining whether a matter is subject to arbitration, courts
23 apply the presumption in favor of arbitration…and generally invoke ordinary rules of contract
24 interpretation…Doubts as to whether an arbitration clause applies to a particular dispute are to be
25 resolved in favor of sending the parties to arbitration. The court should order them to arbitrate
26 unless it is clear the arbitration clause cannot be interpreted to cover the dispute. (Amalgamated
27 Transit Union Local 1277 v. Los Angeles County Metropolitan Authority (2003) 107 Cal.App.4th
28 673, 684.) The California Supreme Court has held “a waiver of arbitration is not to be lightly
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
2
431 I Street, Suite 201
SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL
Sacramento, California 95814
(916) 443-6600
ARBITRATION CASE NO. 22CV000832
1 inferred” and that “no single test delineates the nature of the conduct of a party that will constitute
2 such a waiver.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal4th 951, 982.)
3 The County claims the “Other Administrative or Court Procedures” provision in the
4 MOUs was triggered when plaintiffs filed a lawsuit in federal court alleging a violation of the
5 Fair Labor Standards Act (“FLSA”). The County cites Section 10.5 of the MOU for this premise.
6 Section 10.5 of the MOU states:
7 A complaint is not grievable if it is a matter which is being or has
been processed under some other administrative or court procedure,
8 either internal or external.
9 (Petition, Exhs. A and B, Section 10.5, p. 5.)
10 The key phrase in Section 10.5 is “complaint.” It is necessary to refer back to the
11 definition of “grievance” in the MOUs to understand the meaning of the contractual term
12 “complaint.” Section 10.2 of the MOUs defines “grievance” as:
13
[A] complaint over the interpretation, application, or compliance
14 with established Personnel Rules and Policies, or this MOU, or an
allegation by an employee or group of employees that County has
15 taken disciplinary action without just cause.
16 (Petition, Exhs. A and B, Section 10.2.)
17 The term “complaint” in Section 10.5 is therefore synonymous with the MOUs’ definition
18 of “grievance” in Section 10.2. Due to the definition of “grievance” in Section 10.2, an employee
19 or the Union cannot grieve an allegation that the County violated the FLSA.1 The FLSA is not a
20 County Personnel Rule, nor a County Policy, nor a provision of an MOU. The only reasonable
21 interpretation of Section 10.5 is that an employee or the Union cannot grieve an alleged violation
22 of a County Personnel Rule, County Policy or MOU that “is being or has been processed” in a
23 different forum. The FLSA lawsuit does not pertain to violations of a County Personnel Rule,
24 County Policy or an MOU provision.
25 Additionally, Section 10.5 seems to only extinguish the right to file a grievance if the
26 other administrative court procedure has already concluded or is already underway at the time the
27
1
SEIU Local 1021 included a reference to the FLSA in the grievance in err. SEIU Local 1021 is not seeking to
28
arbitrate an FLSA claim.
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
3
431 I Street, Suite 201
SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL
Sacramento, California 95814
(916) 443-6600
ARBITRATION CASE NO. 22CV000832
1 employee or the Union files the grievance. It does not apply to a grievance that was already filed
2 and already pending at the time a lawsuit or other action is filed.
3 Moreover, Section 10.5 does not include the term “arbitration” at all. Section 10.5 focuses
4 on grievability, not arbitrability. Section 10.5 is concerned with the earliest stage of the grievance
5 procedure, when the grievance is initiated. Therefore, Section 10.5 does not defeat a demand to
6 arbitrate that is made after a lawsuit or other action is pending.
7 The County’s claim that Section 10.5 is implicated because both the grievance and FLSA
8 lawsuit pertain to the generic subject of “pre-shift work” or involve “the same core issues” is
9 meritless. Contrary to the County’s logic, the key term that must be interpreted in Section 10.5 of
10 the MOUs is “complaint,” not “matter.” The MOUs clearly define the term “complaint” to be
11 synonymous with “grievance.” Even the County concedes in its supplemental brief that the term
12 “matter” in Section 10.5 of the MOU refers to a “complaint…” (County’s Supplemental Brief in
13 Opposition, p. 8.)
14 For the foregoing reasons, the County has not demonstrated waiver under the facts of this
15 case.
16
C. THE COUNTY IS MAKING AN “ELECTION OF REMEDIES”
17 ARGUMENT IN DISGUISE
18 The County is making an “election of remedies” argument without conceding so. The
19 election of remedies doctrine is viewed with disfavor and has been replaced in part with the
20 defense of equitable estopped. (Baker v. Superior Court (1983) 150 Cal.App.3d 140, 144-145.)
21 “[A]n election of remedies is the choice by a plaintiff to an action of one of two or more
22 coexisting remedial rights, where several such rights arise out of the same facts, but the term has
23 been generally limited to a choice by a party between inconsistent remedial rights, the assertion of
24 one being necessarily repugnant to or a repudiation of the other.” (Denevi v. LGCC (2044) 121
25 Cal.App.4th 1211, 1217-1218.) On the facts of this case, the Court should not find that SEIU
26 Local 1021 has made an election of remedies. SEIU Local 1021 is not a party to the FLSA
27 litigation, as even the County has acknowledged. (Kaiser Decl., ⁋10, Exh. D, p. 7 (“[T]he Union
28 is not a party to this lawsuit.”).) Additionally, the doctrine of “election of remedies” does not
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
4
431 I Street, Suite 201
SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL
Sacramento, California 95814
(916) 443-6600
ARBITRATION CASE NO. 22CV000832
1 apply here because the plaintiffs’ pursuit of that litigation is not repugnant to or a repudiation of
2 the grievance procedure.
3 Additionally, the doctrine of election of remedies concerns the election of “remedies,” not
4 the election to seek relief in a certain forum. When a person has two alternate forums in which to
5 pursue a grievance and pursues relief in both forums, it is common to stay one of the proceedings
6 while the other continues and on the conclusion of one proceeding to address issues of claim and
7 issue preclusion in the stayed proceeding. (California Code of Civil Procedure section 430.10(c);
8 Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787-788 and 791-792; see
9 also AICCO, Inc. v. Insurance Co. of North America (2001) 90 Cal.App.4th 579, 594.) Given that
10 claim preclusion or issue preclusion (res judicata or collateral estoppel) are substantive
11 affirmative defenses, an arbitrator should decide their validity at the appropriate time. (In re
12 Fireside Bank Cases (2010 187 Cal.App.4th 1120, 1131 (“the preclusive effect of a prior
13 judgment is determined by the court in which it is asserted”).)
14 Ironically, although the County raises the specter of inconsistent rulings or double-
15 recovery, it was the County that opposed the plaintiffs’ request for stay in the FLSA litigation.
16 (See Kaiser Decl., ⁋10, Exh. D (the County explained its basis for opposing plaintiffs’ anticipated
17 request for stay: “[A]ny such motion [for stay] would be meritless since the Union is not a party
18 to this lawsuit, and thus the outcome of any grievance proceedings would not have any preclusive
19 impact here…”.)
20 The County should be prohibited from asserting explicitly or implicitly a defense of
21 “election of remedies” in this petition to compel arbitration proceeding.
22 III. CONCLUSION
23 SEIU Local 1021 respectfully requests that the petition to compel arbitration be granted.
24 Dated: October 19, 2022 WEINBERG, ROGER & ROSENFELD
A Professional Corporation
25
26
By: Kerianne R. Steele
27 Attorneys for Petitioner SEIU LOCAL 1021
154201\1309288
28
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
5
431 I Street, Suite 201
SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL
Sacramento, California 95814
(916) 443-6600
ARBITRATION CASE NO. 22CV000832
1 PROOF OF SERVICE
(CCP §1013)
2
I am a citizen of the United States and resident of the State of California. I am employed
3
in the County of Alameda, State of California, in the office of a member of the bar of this Court,
4
at whose direction the service was made. I am over the age of eighteen years and not a party to
5
the within action.
6
On October 19, 2022, I served the following documents in the manner described below:
7
SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION
8 TO COMPEL ARBITRATION
9 (BY U.S. MAIL) I am personally and readily familiar with the business practice of
Weinberg, Roger & Rosenfeld for collection and processing of correspondence for
10 mailing with the United States Postal Service, and I caused such envelope(s) with
postage thereon fully prepaid to be placed in the United States Postal Service at
11 Sacramento, California.
12 (BY MESSENGER SERVICE) by consigning the document(s) to an authorized
courier and/or process server for hand delivery on this date.
13
(BY OVERNIGHT MAIL) I am personally and readily familiar with the business
14 practice of Weinberg, Roger & Rosenfeld for collection and processing of
correspondence for overnight delivery, and I caused such document(s) described herein
15 to be deposited for delivery to a facility regularly maintained by United Parcel Service
for overnight delivery.
16
(BY ELECTRONIC SERVICE) By electronically mailing a true and correct copy
17 through Weinberg, Roger & Rosenfeld’s electronic mail system from
smizuhara@unioncounsel.net to the email addresses set forth below.
18
(BY PERSONAL DELIVERY) I caused such envelope to be delivered by hand to the
19 offices of each addressee below.
20
On the following part(ies) in this action:
21
Ms. Ruth M. Bond
22 Mr. Steve Cikes
Renne Public Law Group
23 350 Sansome Street, Suite 300
San Francisco, CA 94104
24 Email: rbond@publiclawgroup.com
scikes@publiclawgroup.com
25
I declare under penalty of perjury under the laws of the United States of America that the
26 foregoing is true and correct. Executed on October 19, 2022, at Sacramento, California.
27
Stephanie Mizuhara
28
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
431 I Street, Suite 201
Sacramento, California 95814
(916) 443-6600
PROOF OF SERVICE
Preview
1 KERIANNE R. STEELE, Bar No. 250897 WEINBERG, ROGER & ROSENFELD 2 A Professional Corporation 1375 55th Street 3 Emeryville, California 94608 Telephone (510) 337-1001 4 Fax (510) 337-1023 E-Mail: courtnotices@unioncounsel.net 5 ksteele@unioncounsel.net 6 TIFFANY L. CRAIN, Bar No. 306663 WEINBERG, ROGER & ROSENFELD 7 A Professional Corporation 431 I Street, Suite 201 8 Sacramento, California 95814 Telephone (916) 443-6600 9 Fax (916) 442-0244 E-Mail: courtnotices@unioncounsel.net 10 tcrain@unioncounsel.net 11 Attorneys for Petitioner SEIU LOCAL 1021 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 IN AND FOR THE COUNTY OF NAPA 14 SERVICE EMPLOYEES INTERNATIONAL Case No. 22CV000832 UNION, LOCAL 1021, 15 SEIU LOCAL 1021’S SUPPLEMENTAL Petitioner, REPLY BRIEF IN SUPPORT OF 16 PETITION TO COMPEL v. ARBITRATION 17 COUNTY OF NAPA, Date: October 27, 2022 18 Time: 8:30 a.m. Respondent. Dept.: A 19 Judge: Hon. Cynthia P. Smith 20 21 22 23 24 25 26 27 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 431 I Street, Suite 201 SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL Sacramento, California 95814 (916) 443-6600 ARBITRATION CASE NO. 22CV000832 1 I. INTRODUCTION 2 SEIU Local 1021 has demonstrated its entitlement to arbitration under California Code of 3 Civil Procedure section 1281.2. II. LEGAL ARGUMENT 4 A. THE COUNTY IS ASKING THIS COURT TO RESOLVE FACTUAL 5 DISPUTES THAT MUST BE DECIDED BY AN ARBITRATOR 6 The County is trying to litigate its entire case by way of declarations filed with this Court. 7 There are factual disputes in this case that must be presented to the arbitrator, not to this Court. 8 For example, whether SEIU Local 1021 pursued the express allegation in its grievance 9 pertaining to “night differential back pay” is a factual dispute the arbitrator must decide. The 10 Court cannot accept as truth the contention of Chief Deputy County Counsel Sherri Kaiser that “I 11 concluded that SEIU had abandoned the aspect of the Davis grievance pertaining to night shift 12 differential.” (Supplemental Declaration of Sherri Kaiser (“Kaiser Decl.”), ⁋6.) There are no 13 documents in the record evidencing SEIU Local 1021’s withdrawal of that allegation in the 14 grievance. To the contrary, the record contains an email from SEIU Local 1021 Field 15 Representative, Monique Wild, advancing the entire grievance to arbitration. (Petition, Exh. I.) In 16 the absence of correspondence from the Union withdrawing some aspect of a grievance, an 17 employer cannot unilaterally determine that an allegation contained within a grievance is 18 abandoned. 19 The County is also requesting this Court rather than an arbitrator decide various contract 20 interpretation disputes, such as whether the County’s rebuke of the employee Katina Davis for 21 allegedly violating an overtime policy constitutes “discipline” under the Memoranda of 22 Understanding (“MOUs”). Ironically, the Step 2 grievance response the County attaches to the 23 Kaiser Declaration likely constitutes a “Letter of Reprimand,” i.e., discipline under Section 9.1 of 24 the parties’ MOUs, in that it is a written admonishment of Ms. Davis for allegedly violating the 25 overtime policy coupled with a threat that future instances of violation(s) will lead to discipline. 26 (Kaiser Decl., ⁋7, Exh. B, p. 2 (“[P]olicy is clear that all overtime must be preapproved… any 27 future instances of working overtime without pre-approval will lead to discipline,” emphasis in 28 original; see Petition, Exhs. A and B, Section 9.1, p. 4.) That is exactly what a Letter of WEINBERG, ROGER & ROSENFELD A Professional Corporation 1 431 I Street, Suite 201 SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL Sacramento, California 95814 (916) 443-6600 ARBITRATION CASE NO. 22CV000832 1 Reprimand is, even if the term “Letter of Reprimand” was not used in the correspondence to the 2 employee. The arbitrator is the neutral decider of such a factual dispute of whether discipline has 3 issued, whether it was improper, and whether a remedy is owed to Ms. Davis. In any event, Ms. 4 Davis is not the only employee covered by the class action grievance. The Union need not allege 5 specific instances of discipline in a class action grievance to be entitled to a “make whole” relief 6 for “[a]ll SEIU Local 1021 bargaining unit members.” (Quoting Petition, Exh. E.) 7 The County also wants to litigate via declaration the extensive back-and-forth between the 8 parties regarding potential (and ultimately unsuccessful) resolution of the matters grieved. 9 Witnesses should present live testimony, subject to direct and cross-examination, regarding the 10 nature of the grievance-related meetings and written communications. The arbitrator should 11 decide which claims were properly asserted in the grievance and pursued all the way to 12 arbitration, which claims constitute a violation of the MOUs, and which proven violations still 13 require a remedy. 14 The reason the factual record in this Petition to Compel proceeding is becoming unwieldy 15 is because these factual issues should not be presented to or decided by this Court. They should 16 be proffered to an arbitrator in an orderly fashion through the calling of live witnesses and the 17 admission of exhibits into evidence. 18 B. THE COUNTY CANNOT MEET ITS BURDEN OF PROVING SEIU 19 LOCAL 1021 WAIVED ITS RIGHT TO ARBITRATION 20 SEIU Local 1021 has met its burden of proving the grievance is arbitrable under the terms 21 of the contract. In contrast, the County cannot meet its burden of proving SEIU Local 1021 22 waived its right to arbitration. “In determining whether a matter is subject to arbitration, courts 23 apply the presumption in favor of arbitration…and generally invoke ordinary rules of contract 24 interpretation…Doubts as to whether an arbitration clause applies to a particular dispute are to be 25 resolved in favor of sending the parties to arbitration. The court should order them to arbitrate 26 unless it is clear the arbitration clause cannot be interpreted to cover the dispute. (Amalgamated 27 Transit Union Local 1277 v. Los Angeles County Metropolitan Authority (2003) 107 Cal.App.4th 28 673, 684.) The California Supreme Court has held “a waiver of arbitration is not to be lightly WEINBERG, ROGER & ROSENFELD A Professional Corporation 2 431 I Street, Suite 201 SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL Sacramento, California 95814 (916) 443-6600 ARBITRATION CASE NO. 22CV000832 1 inferred” and that “no single test delineates the nature of the conduct of a party that will constitute 2 such a waiver.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal4th 951, 982.) 3 The County claims the “Other Administrative or Court Procedures” provision in the 4 MOUs was triggered when plaintiffs filed a lawsuit in federal court alleging a violation of the 5 Fair Labor Standards Act (“FLSA”). The County cites Section 10.5 of the MOU for this premise. 6 Section 10.5 of the MOU states: 7 A complaint is not grievable if it is a matter which is being or has been processed under some other administrative or court procedure, 8 either internal or external. 9 (Petition, Exhs. A and B, Section 10.5, p. 5.) 10 The key phrase in Section 10.5 is “complaint.” It is necessary to refer back to the 11 definition of “grievance” in the MOUs to understand the meaning of the contractual term 12 “complaint.” Section 10.2 of the MOUs defines “grievance” as: 13 [A] complaint over the interpretation, application, or compliance 14 with established Personnel Rules and Policies, or this MOU, or an allegation by an employee or group of employees that County has 15 taken disciplinary action without just cause. 16 (Petition, Exhs. A and B, Section 10.2.) 17 The term “complaint” in Section 10.5 is therefore synonymous with the MOUs’ definition 18 of “grievance” in Section 10.2. Due to the definition of “grievance” in Section 10.2, an employee 19 or the Union cannot grieve an allegation that the County violated the FLSA.1 The FLSA is not a 20 County Personnel Rule, nor a County Policy, nor a provision of an MOU. The only reasonable 21 interpretation of Section 10.5 is that an employee or the Union cannot grieve an alleged violation 22 of a County Personnel Rule, County Policy or MOU that “is being or has been processed” in a 23 different forum. The FLSA lawsuit does not pertain to violations of a County Personnel Rule, 24 County Policy or an MOU provision. 25 Additionally, Section 10.5 seems to only extinguish the right to file a grievance if the 26 other administrative court procedure has already concluded or is already underway at the time the 27 1 SEIU Local 1021 included a reference to the FLSA in the grievance in err. SEIU Local 1021 is not seeking to 28 arbitrate an FLSA claim. WEINBERG, ROGER & ROSENFELD A Professional Corporation 3 431 I Street, Suite 201 SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL Sacramento, California 95814 (916) 443-6600 ARBITRATION CASE NO. 22CV000832 1 employee or the Union files the grievance. It does not apply to a grievance that was already filed 2 and already pending at the time a lawsuit or other action is filed. 3 Moreover, Section 10.5 does not include the term “arbitration” at all. Section 10.5 focuses 4 on grievability, not arbitrability. Section 10.5 is concerned with the earliest stage of the grievance 5 procedure, when the grievance is initiated. Therefore, Section 10.5 does not defeat a demand to 6 arbitrate that is made after a lawsuit or other action is pending. 7 The County’s claim that Section 10.5 is implicated because both the grievance and FLSA 8 lawsuit pertain to the generic subject of “pre-shift work” or involve “the same core issues” is 9 meritless. Contrary to the County’s logic, the key term that must be interpreted in Section 10.5 of 10 the MOUs is “complaint,” not “matter.” The MOUs clearly define the term “complaint” to be 11 synonymous with “grievance.” Even the County concedes in its supplemental brief that the term 12 “matter” in Section 10.5 of the MOU refers to a “complaint…” (County’s Supplemental Brief in 13 Opposition, p. 8.) 14 For the foregoing reasons, the County has not demonstrated waiver under the facts of this 15 case. 16 C. THE COUNTY IS MAKING AN “ELECTION OF REMEDIES” 17 ARGUMENT IN DISGUISE 18 The County is making an “election of remedies” argument without conceding so. The 19 election of remedies doctrine is viewed with disfavor and has been replaced in part with the 20 defense of equitable estopped. (Baker v. Superior Court (1983) 150 Cal.App.3d 140, 144-145.) 21 “[A]n election of remedies is the choice by a plaintiff to an action of one of two or more 22 coexisting remedial rights, where several such rights arise out of the same facts, but the term has 23 been generally limited to a choice by a party between inconsistent remedial rights, the assertion of 24 one being necessarily repugnant to or a repudiation of the other.” (Denevi v. LGCC (2044) 121 25 Cal.App.4th 1211, 1217-1218.) On the facts of this case, the Court should not find that SEIU 26 Local 1021 has made an election of remedies. SEIU Local 1021 is not a party to the FLSA 27 litigation, as even the County has acknowledged. (Kaiser Decl., ⁋10, Exh. D, p. 7 (“[T]he Union 28 is not a party to this lawsuit.”).) Additionally, the doctrine of “election of remedies” does not WEINBERG, ROGER & ROSENFELD A Professional Corporation 4 431 I Street, Suite 201 SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL Sacramento, California 95814 (916) 443-6600 ARBITRATION CASE NO. 22CV000832 1 apply here because the plaintiffs’ pursuit of that litigation is not repugnant to or a repudiation of 2 the grievance procedure. 3 Additionally, the doctrine of election of remedies concerns the election of “remedies,” not 4 the election to seek relief in a certain forum. When a person has two alternate forums in which to 5 pursue a grievance and pursues relief in both forums, it is common to stay one of the proceedings 6 while the other continues and on the conclusion of one proceeding to address issues of claim and 7 issue preclusion in the stayed proceeding. (California Code of Civil Procedure section 430.10(c); 8 Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787-788 and 791-792; see 9 also AICCO, Inc. v. Insurance Co. of North America (2001) 90 Cal.App.4th 579, 594.) Given that 10 claim preclusion or issue preclusion (res judicata or collateral estoppel) are substantive 11 affirmative defenses, an arbitrator should decide their validity at the appropriate time. (In re 12 Fireside Bank Cases (2010 187 Cal.App.4th 1120, 1131 (“the preclusive effect of a prior 13 judgment is determined by the court in which it is asserted”).) 14 Ironically, although the County raises the specter of inconsistent rulings or double- 15 recovery, it was the County that opposed the plaintiffs’ request for stay in the FLSA litigation. 16 (See Kaiser Decl., ⁋10, Exh. D (the County explained its basis for opposing plaintiffs’ anticipated 17 request for stay: “[A]ny such motion [for stay] would be meritless since the Union is not a party 18 to this lawsuit, and thus the outcome of any grievance proceedings would not have any preclusive 19 impact here…”.) 20 The County should be prohibited from asserting explicitly or implicitly a defense of 21 “election of remedies” in this petition to compel arbitration proceeding. 22 III. CONCLUSION 23 SEIU Local 1021 respectfully requests that the petition to compel arbitration be granted. 24 Dated: October 19, 2022 WEINBERG, ROGER & ROSENFELD A Professional Corporation 25 26 By: Kerianne R. Steele 27 Attorneys for Petitioner SEIU LOCAL 1021 154201\1309288 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 5 431 I Street, Suite 201 SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION TO COMPEL Sacramento, California 95814 (916) 443-6600 ARBITRATION CASE NO. 22CV000832 1 PROOF OF SERVICE (CCP §1013) 2 I am a citizen of the United States and resident of the State of California. I am employed 3 in the County of Alameda, State of California, in the office of a member of the bar of this Court, 4 at whose direction the service was made. I am over the age of eighteen years and not a party to 5 the within action. 6 On October 19, 2022, I served the following documents in the manner described below: 7 SEIU LOCAL 1021’S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF PETITION 8 TO COMPEL ARBITRATION 9 (BY U.S. MAIL) I am personally and readily familiar with the business practice of Weinberg, Roger & Rosenfeld for collection and processing of correspondence for 10 mailing with the United States Postal Service, and I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States Postal Service at 11 Sacramento, California. 12 (BY MESSENGER SERVICE) by consigning the document(s) to an authorized courier and/or process server for hand delivery on this date. 13 (BY OVERNIGHT MAIL) I am personally and readily familiar with the business 14 practice of Weinberg, Roger & Rosenfeld for collection and processing of correspondence for overnight delivery, and I caused such document(s) described herein 15 to be deposited for delivery to a facility regularly maintained by United Parcel Service for overnight delivery. 16 (BY ELECTRONIC SERVICE) By electronically mailing a true and correct copy 17 through Weinberg, Roger & Rosenfeld’s electronic mail system from smizuhara@unioncounsel.net to the email addresses set forth below. 18 (BY PERSONAL DELIVERY) I caused such envelope to be delivered by hand to the 19 offices of each addressee below. 20 On the following part(ies) in this action: 21 Ms. Ruth M. Bond 22 Mr. Steve Cikes Renne Public Law Group 23 350 Sansome Street, Suite 300 San Francisco, CA 94104 24 Email: rbond@publiclawgroup.com scikes@publiclawgroup.com 25 I declare under penalty of perjury under the laws of the United States of America that the 26 foregoing is true and correct. Executed on October 19, 2022, at Sacramento, California. 27 Stephanie Mizuhara 28 WEINBERG, ROGER & ROSENFELD A Professional Corporation 431 I Street, Suite 201 Sacramento, California 95814 (916) 443-6600 PROOF OF SERVICE