Preview
UA fk wR
Cc om I a
10
1
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ANDREW J. KAHN
State Bar No. 129776
AMY DUNNING
State Bar No, 171408
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION
2045 Lundy Avenue
San Jose, California 95131
(408) 473-1000
Fax (408) 954-0948
Attorneys for
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, and its DELTA VALLEY
CHAPTER No, 821
STATE OF CALIFORNIA SUPERIOR COURT
COUNTY OF SAN JOAQUIN
LAUREEN THOMPSON ) Case No.: STK-CV-LOCT-2021-0000038
)
Plaintiff, )
) REQUEST FOR JUDICIAL NOTICE IN
v. ) SUPPORT OF DEMURRER
) .
CALIFORNIA SCHOOL EMPLOYEES )
ASSOCIATION, et al., ) Hearing Date: MAY 1 9. 2021
) Time: @too AM
Defendants. ) Department: 10B
) Judge: Hon. Carter Holly
2
d
)
Pursuant to California Evidence Code sections 452 and 453, Defendant California School
Employees Association and its Chapter No. 821 (“CSEA”) hereby requests that this Court take
judicial notice of the exhibits identified below, offered in support of its demurrer to the Complaint.
The authenticity of these exhibits is established through the declaration of Amy Dunning, which is
attached hereto as Exhibit D.
A demurrer tests the legal sufficiency of the complaint. The complaint is reviewed de novo
to determine whether it alleges facts sufficient to state a cause of action. The court accepts as true
-1-
REQUEST FOR JUDICAL NOTICE ISO DEMURRER
BY FAXfo Oo YN Hw
10
ul
12
13
14
15
16
7
18
19
20
21
22
23
24
25
26
27
28
all material facts alleged in the complaint, and also considers matters that may be judicially noticed.
(Blank v, Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58].)
Evidence Code section 451 lists matters that must be judicially noticed, whereas Evidence
Code section 452 lists matters that may be judicially noticed. Matters specified in Evidence Code
section 452 must be judicially noticed if a party requests it, provided the party gives sufficient notice
to each adverse party to prepare to meet the request, and furnishes the court with sufficient
information to enable it to take judicial notice of the matter. (Evid. Cade § 453, subds. (a) & (b))
Exhibit A is the Arbitration Award and Opinion in which Arbitrator Norman Brand denied
the Plaintiff's grievance. The document is relevant to assessing whether Plaintiff's duty of fair
Tepresentation cause of action, which centers on CSEA’s representation of the Plaintiff in the
arbitration, is sufficient to state a claim. The document is also relevant to assessing whether
Plaintiff's cause of action to enforce the collective bargaining agreement is an attempt to seek
judicial review of the allegations that were arbitrated without first filing to vacate or correct the
arbitration award.
Plaintiff refers to the arbitration award in the Complaint, where she alleges that Defendants
“cause loss of arbitration.” She also attached excerpts from the transcript of the arbitration hearing.
The authenticity of the arbitration award is therefore not in dispute.
Judicial notice of the arbitration award is proper under Evidence Code section 452(d).
Courts may take judicial notice of arbitration awards. (See, e.g., Greenspan v. LADT, LLC, 191
Cal.App.4"" 486, 525, 121 Cal. Rptr. 3d 118 (2011) [approved of the trial court taking judicial notice
of an arbitration award in determining whether an individual could be added to a judgment as a
judgment debtor]; Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2021) 60
Cal.App.5" 327, 334, 274 Cal. Rptr. 3d 493 [granting request for judicial notice of arbitration award
involving wage overpayment].)
Therefore, CSEA asks the Court to take judicial notice of Exhibit A.
Exhibit B is the State of California’s Public Employment Relations Board (“PERB”)
regional attorney's Dismissal Letter w/attached Letter of Warning for the Plaintiff's unfair practice
charge against CSEA in PERB case No. SA-CO-638-E. The statements contained within the PERB
-2-
REQUEST FOR JUDICAL NOTICE ISO DEMURRERa DW Bh wWN
dismissal letter and letter of warning describe Plaintiff's allegations that CSEA’s conduct during the
arbitration of her grievance violated the Educational Employment Relations Act (“EERA”),
Government Code section 3540 et seq. The PERB regional attorney dismissed the charge without
issuing a complaint, and Plaintiff is now pursuing those allegations in her Complaint before this
Court. The document is relevant because it shows Plaintiff previously made the same allegations in
a PERB charge that she now makes in the complaint. It is relevant to assessing whether Plaintiff's
causes of action in the Complaint are preempted by PERB’s exclusive jurisdiction to resolve claims
concerning the breach of the duty of fair representation under the EERA.
Taking judicial notice of PERB proceedings is proper under Evidence Code section 452(c).
(See, El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 950.)
Therefore, CSEA asks the Court to take judicial notice of Exhibit B.
Exhibit C is the PERB Board's Decision affirming the PERB regional attomey’s dismissal
of the Plaintiff's unfair practice charge against CSEA in No. SA-CO-638-E. The document
represents the final decision in the PERB administrative process that Plaintiff previously pursued
against CSEA. The document is relevant to assessing whether the Plaintiff’s causes of action in the
Complaint are preempted by PERB’s exclusive jurisdiction to resolve claims concerning the breach
of the duty of fair representation under the EERA, and whether the only judicial remedy available to
the Plaintiff following the PERB Board’s final decision was to file a petition for traditional mandate
in the trial court against PERB, (£/ Rancho Unified School Dist. v. National Education Ass’n,
supra, 33 Cal.3d 946, 950.) Judicial notice is proper under Evidence Code section 452(c) as an
official government act. Therefore, CSEA asks the Court to take judicial notice of Exhibit C.
For these reasons, CSEA respectfully asks this Court to take judicial notice of the
arbitration decision (Exhibit A), the PERB regional attomey’s dismissal letter w/attached letter of
warning (Exhibit B), and the PERB Board’s decision affirming the dismissal (Exhibit C).
Respectfully submitted,
April 13, 2021 SNOH,
Amy Dunning
Attorney for Defendants
-3-
REQUEST FOR JUDICAL NOTICE ISO DEMURRERExhibit
AIn the Matter of an Arbitration Between
California School Employees AWARD & OPINION
Association, Chapter 821
~ and - NB 3934
fctri CSMCS ARB 18-0089
Ss
Stockton Unified School District CSEA RD-ARB-821-01-17
(Grievance: Thompson Out of
Class Pay)
Arbitrator: Norman Brand, Esq.
Appearances:
For California School Employees Association, Chapter 821
Casey Thompson, Labor Relations Representative
For Stockton Unified School District
Dannis Woliver Kelley
by Marie A. Nakamura, Esq.
Nia D. Franklin, Esq.
Date: July 10, 2019Background
On August 21, 2017, the California School Employees Association (“Union”) filed
’ a Level 1 grievance on behalf of Ms. Laureen Thompson (“Grievant”) with the Stockton
Unified School District ("District"). The parties were unable to resolve this dispute at the
lower steps of the grievance procedure and the Union moved it to arbitration on April 5,
2018. By agreement of the parties, the Arbitrator held a hearing in Stockton, CA on April
1, 2019. Both parties were present at the hearing and the District was represented by
counsel. Each had a full opportunity to examine and cross-examine witnesses, present
evidence, and argue its position. Neither party objected to the conduct of the hearing.
A court reporter recorded the proceedings. At the close of the hearing the parties asked
to file post-hearing briefs. The Arbitrator declared the hearing closed when he received
the last brief on June 7, 2019.
Issues
The parties did not stipulate an issue at the hearing.
The Union proposed the following issue:
Did the District violate Article 8.7 by failing to pay Grievant for working out
of classification?
The District did not dispute this issue, but asserts two preliminary issues:
1. Did the conduct underlying the grievance occur prior to the expiration of
the collective bargaining agreement (“CBA”)?
2. Was the grievance timely filed?Contract Language
8.7 Compensation for Bargaining Unit Members Working Out of Classification
Bargaining unit members assigned temporarily for five (5) or more workdays out
of fifteen (15) calendar days to a position with a higher classification shall receive
the next higher amount on the new salary range for whatever time (s)he fills
this temporary position. Only those bargaining unit members designated in writing
by the appropriate director/principal will be considered "assigned" to a position with
a higher salary classification. In no event shall an employee working out of
Classification receive less than five percent (5%) above his/her regular rate of
Pay. (ld)
Reclassification
8.13.1 "Reclassification" means the upgrading of a position to a higher
classification as a result of increased duties and responsibilities
permanently assigned to a position which are not attributed to a sudden or
short-term change, which are performed by the bargaining unit
member.
8.13.4 Reclassification Committee
8.13.4.1 A "Reclassification Committee" shall be composed of Three (3) management
appointees, one (1) of which shall be the Director of Classified Personnel,
Three (3) CSEA appointee's, one of which shall be the CSEA Chapter
President. Each group can bring one (1) expert in the event that further
clarification is needed. In the event of a tie, one (1) neutral appointee shall be
selected by mutual agreement between the District and CSEA to break the tie.
Every attempt shall be made to find a neutral appointee at no cost to the
Parties. However, if there is a cost for the neutral appointee, it shall be
mutually borne by both parties.
8.13.4.14 The Committee shall be charged with collaborating and
fecommending the appropriate revisions, modification or creation of
new job descriptions, the appropriate title of the position(s),
classification designation, and the Step and Range of the
employee(s) placement and the date in which reclassification takes
effect which may be retroactive and/or delayed.
8.13.4.4 The Committee shall have the authority to adopt, reject, or modify the submitted
reclassification request, and/or recommend the creation of a new position
and/or reclassification, and the accompanying job description and salaryplacement. All Committee members shall sign the Committee's decision
which shall be binding upon the parties.
8.13.4.7 The Committee's recommendation is final and binding.
ARTICLE XVIII GRIEVANCE PROCEDURE
18.1 Definition
A grievance is a dispute regarding the interpretation, application, or violation
involving a specific term or provision of this collective agreement. A grievant is
either a bargaining unit member directly affected by the dispute or the Association
on behalf of a specifically named bargaining unit member who otherwise qualifies
as a grievant.
183.L.1 The wiitten grievance shall be presented within forty-five (45)
calendar days after the bargaining unit member knows or
should reasonably have known of the occurrence which
gives rise to the dispute.
Facts
Grievant began working as a Senior Office Assistant (Range 29) at Stockton
High School on January 20, 2016. (Tr. 24:20-23) Her supervisor was Principal Maryann
Santella. (Tr. 141:9-10) There was one other employee in the office, Stephanie
Salcedo, the Student Data Technician (Range 35). (Tr. 83:24-842) Salcedo, the former
Senior Office Assistant, had promoted to Student Data Technician. (Tr. 155:7-21)
Around the middle of April 2016 Grievant corresponded by email with Salcedo. On April
18, 2016 Salcedo provided Grievant a docx file “Request Auto populate November
2015,” saying: “This will come in handy ... | will guide you for a couple of months, until
you feel comfortable.” (U-2) On April 15 and 18 Salcedo sent Grievant a numbered listof directions with advice on how to do her job.’ According to Grievant, she asked
Salcedo to date and re-send the list on the 18" and Salcedo wrote "Here ya go © Just a
list to refer to, most of these we already went over. But just for your reference.” (U-2)?
According to Santella, who saw these emails for the first time at the hearing, “it sounds
like she [Salcedo] was guiding her and helping her, telling her that these type of things
will come in handy when you need to do this task.” (Tr. 157:21-24)
Grievant applied for reclassification on August 1, 2016, after having attended a
meeting about reclassification in May. (Tr. 41:4-6; D-4) She applied to be reclassified to
Attendance Technician (Range 33) and was reclassified to Student Data Tech (Range
35). (Tr. 63:8-15) She was reclassified to the higher classification because the District
was trying to keep parity in personne! allocations among the smaller schools. (Tr.
229:21-230:6) By letter dated May 19, 2017, the reclassification committee informed
Grievant she had been reclassified to Student Data Technician and that her new
classification would be effective on Board approval. (D-7) That approval came on July
10, 2017, with an effective date of July 1, 2017, after which Grievant began getting paid
in her new classification. (D-8, 9)
After learning of her reclassification Grievant created new time sheets for each
fwo week period between April 15, 2016 and June 2017 on which she wrote
“Reclassification approved 5/22/17." The time sheets include periods when school was
not in session and Grievant was on a leave of absence. (Tr. 77:19-79:11) She gave the
‘e.g. “7, Emergency and Registration cards — continue to go through them and make sure we have one
for every student enrolled. Run a student list and just compare every couple of months. Discard any that
are no longer enrolled.”
2 The list Grievant Included as part of U-2 is undated. Grievant included a dated copy of the list with her
application for reclassification. :time sheets to Santella to sign about July 21, 2017. (Tr. 48:20-23) What was written on
the time sheets at the time Grievant presented them to Santella, as well as why
Grievant told Santella she needed them signed, is in dispute.>
The parties have had two CBAs during the time involved in this dispute. The first
CBA expired on June 30, 2016. (J-10) A new CBA, effective July 1, 2016 to June 30,
2019 was not signed until December 2017. (J-11, App. Q)
Discussion
The Union makes three arguments. First, it asserts nothing in the evidence
contradicts Grievant's claim she performed work out of classification from April 15, 2016
to July 1, 2017. Second, there is no evidence reclassification nullifies a claim to out of
class compensation. Third, the grievance was timely filed because performing out of
classification work constituted a continuing violation until Grievant was reclassified on
July 1, 2017. Grievant timely filed her grievance over this continuing violation within 45
days of when she returned to work on July 21, 2017.
The District makes four arguments in support of its position the grievance is
untimely and lacks merit. First, it argues the grievance must be dismissed because it
was filed after the expiration of the CBA. The grievance does not meet any of the
criteria for permitting a grievance to be filed after expiration: a) it does not involve facts
and occurrences that arose before expiration; b) it does not involve an infringement on
3 Grievant was evasive when asked specific questions about what she wrote and when. (Tr. 45:25-48:9;
182:19-185:18) The original time sheets were never introduced. Santella was clear that the time sheets
did not have diagonal lines with “working out of class” printed on them when Grievant presented them for
signature. (Tr. 168:7-169:8) It is unnecessary to resolve this conflict in the testimony because the
grievance is untimely.rights that vested under the expired agreement; and, c) it does not involve a right that
survives expiration under normal contract principles.
Second, the grievance failed to file the grievance within 45 calendar days of
when she knew or should reasonably have known of the occurrence which gave rise to
the dispute. Grievant believed she was being required to work out of classification on
April 15, 2016 and did not file the grievance until August 21, 2017. Even if she did not
realize she was not being compensated for out of classification work until she got her
April or May 2016 paycheck, the grievance is over a year untimely. Finally, even if
Grievant was unaware of the conduct underlying the grievance until she filled out the
time sheets on May 22, 2017, the grievance was still untimely filed.
Third, the CBA only considers a bargaining unit member “designated in writing by
the appropriate director/principal" to be assigned to the position with a higher salary
classification. A written designation is a prerequisite to qualifying for out of class
compensation. Grievant's Principal gave her no written designation. Fourth, Grievant
never temporarily performed the work of a higher classification. The duties she
performed were all encompassed in her duties as a Senior Office Assistant.
The grievance must be denied for two reasons. First, it is untimely on its face.
Article 18.3.1.2 requires presenting a grievance “within forty-five (45) calendar days after
the bargaining unit member knows or should reasonably have known of the occurrence...” On
the grievance form Grievant lists the date on which she became aware of the violation
as 4-15-16. (J-1) That is 16 months before she filed the grievance. Additionally, in the
documentary evidence Grievant claims that between April 15 and 18, 2016 she
reviewed the list of duties Salcedo provided her and determined the duties were notwithin her job description. On April 18, “I then asked her [Salcedo] if Mrs. Santella wants
me to do this because | reviewed my job description over the weekend. She replied
“Yes.” (U-2, handwritten notes)* Grievant claims to have also told Santella on April 18,
2016 that the duties Salcedo sent her were “not in the job description.” (Tr. 33:6-10)
Grievant's testimony and the notes she wrote demonstrate she knew, or at least
believed, she was doing out of classification work on April 18, 2016. The grievance she
filed August 21, 2017 was untimely. The Union asserts, however, the grievance is timely
because performing the out of classification work constituted a continuing violation until
Grievant was actually reclassified on July 1, 2017. The Union provides no analysis or
argument in support of this assertion.
Second, the grievance must be denied because the untimely filing is not made
timely by the continuing violation doctrine. The continuing violation doctrine requires
Grievant, in part, to have a colorable argument the District violated the CBA. Grievant
fails to make any credible argument that the District violated Article 8.7. That Article
provides compensation for bargaining unit members who are “assigned temporarily” to
“a position with a higher classification." A bargaining unit member is “assigned” if, and
only if, that member is “designated in writing by the appropriate director/principal.” There
is no evidence of any writing in which Principal Santella designated Grievant to perform
the duties of a position in a higher classification. The only writing is Grievant's own note
4 Grievant testified that on April 18, 2016, after she asked Salcedo if Santella wanted her to do the duties
attached to the email, she said “Okay, I'll take them and look at my job description.” (Tr. 57:14-18) This is
one of many discrepancies in Grievant's testimony that argues against her credibility. She also testified
that on April 18, 2016 she told Santella she was doing work outside her job description. Santella denied
any conversation in which Grievant told her she was doing work outside her classification. (Tr. 158:24-
189:3) Santella was the more credible witness. Grievant's assertion she did not file an out of classification
grievance in April 2016 because Santella told her to ask for a reclassification is not credible. (Tr. 33:16-
19; 87:9-13)to herself that Salcedo told her Santella wanted her to do work listed on the document
entitled “Sr. office Assistant”. (D-4) Grievant's note to herself does not even arguably
fulfill Article 8.7’s requirement of a designation in writing from her Principal. Because
there is no evidence of a written designation, there is no colorable argument the District
violated Article 8.7 and no basis for asserting the grievance is timely under the
continuing violation doctrine.
Award
1, Some of the conduct that allegedly violated the CBA occurred
before the expiration of the 2013-2016 CBA.
2. The grievance over that conduct was not filed within 45 days of
when Grievant knew of it. The grievance fails to meet the procedural
requirement of Article 18.3.1.2.
2. There is no evidence of a contract violation that could be the
predicate for arguing this untimely grievance can be considered
because ofh the continuing violation doctrine.
3. The grievance is denied.
San Francisco, California Al lemngor Araya
July 10, 2019 Norman afandSTATE OF CALIFORNIA GAVIN NEWSOM, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Reglonal Office
1031 18th Street
Sacramento, CA, 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
March 10, 2020
Laureen Thompson
P.O. Box 6366
Stockton, CA 95206
Re: Laureen Thompson v. California State Employees Association-Chapter 821
Unfair Practice Charge No. SA-CO-638-E
DISMISSAL LETTER
Dear Parties:
The above-referenced charge was filed with the Public Employment Relations Board
(PERB or Board) on April 2, 2019. The charge was amended on July 5, 2019.
Laureen Thompson (Charging Party) alleges that the California State Employees
Association-Chapter 821 (CSEA or Respondent) violated sections 3544.9 and 3544.1,
subdivision (d) of the Educational Employment Relations Act (EERA or Act)’ by
breaching its duty of fair representation. On July 5, 2019, Charging Party filed a First
Amended Charge.
Charging Party was informed in the attached Waming Letter dated January 24, 2020,
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, Charging Party should amend the
charge. Charging Party was further advised that, unless Charging Party amended the
charge to state a prima facie case or withdrew it on or before February 7, 2020, the
charge would be dismissed.
On February 7, 2020, Charging Party filed a timely Second Amended Charge.
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.Unfair Practice Charge No. SA-CO-638-E
March 10, 2020
Page 2
FACTS AS ALLEGED
Original Charges
Charging Party's initial charge states the following in section 6.d. of the unfair practice
charge: “failure to full representation from the union CSEA 821 and failure to meet in a
timely manner for arbitration preparation. | disagree with their approach to my case.
Please see attached statement of facts.” Attached to the unfair practice charge form,
Charging Party provides the following additional allegations in pertinent part, verbatim
unless indicated: +
“[T]he week of March 18, 2019 through March 22, 2019[,] | was on
_ vacation. Stockton Unified School District was on spring break vacation.
Casey Thompson and Roderick Gaulman are aware of the calendar for
the school year. | responded to email on Sunday night to Casey
Thompson regarding arbitration set for April 1st 2019. | have not spoken
to them regarding this case (working out of class from 2016-2017) over 1
year ago. This will only aliow 7 days to préepare for arbitration. | asked
Casey in the email to reschedule because this is a short notice it does
not give enough time to discuss my case with them. March 25th[,] 2019
“to prepare for April 1st. This is contract violation of timely manner to
prepare for arbitration. Casey Thompson bluntly stated to me on phone,
“Laureen we are not rescheduling.”
Charging Party's first amended charge states in section 6.d: “Amendmént/additional
information: Failure of full representation from CSEA 821 Union and failure to meet in
a timely manner for arbitration preparation. | disagree with their approach to my
case.” Attached to the unfair practice charge form, Charging Party provides the
following additional allegations In pertinent part, verbatim unless indicated otherwise:
“WHAT: A bias act against a woman (African American) questioning and
seeking what is rightfully due to me. Recurring violation to unfair lack of
representation fram CSEA to a paying union member....After a full day of
arbitration on April 1, 2019J,] it was made aware by CSEA representative
Roderick Gaulman that [I] was eligible for both retro pay of working out of
class and reclassification. | requested CSEA representative to request
all the dividends due to me, Which would be the $4254.00 (the dollar
amount difference in my pay change) | continued to debate [] the
$1900.00 Casey Thompson calculated for the working out of class. | was
reclassified from range 29 to range 35 approx, $2.29 hourly difference. |Unfair Practice Charge No. SA-CO-638-E
March 10, 2020
Page 3
requested to review the brief prior to submission to the arbitrator by both
CSEA representatives; to confirm a mutual understanding among both
parties. However, my request was Ignored by Casey Thompson. Casey
Thompson suggested an error in his briefing which was filed to the
arbitrator. [DJeductions of money from my vacation break & maternity
leave (used saved accrued sick time) which | was entitled to at the
higher dollar amount: due to the reclassification and working out of
class. He failed to implement what | was seeking after requesting him to
do so on several occasions.
PRIMA FACIE: On March 22, 2018 during mediation | requested the
$4500.00 retro pay for the difference in the pay [I] was reclassified to.
Roderick Gaulman tried to convince me to accept the district offer of a
global settlement of $1000.00 and to cancel all my grievances and
complaints against the district; stated In the response to this case #SA-
CO-638-E, Now Casey filed a brief only requesting $1093.70 and
subtract dates/pay from the signed timesheets that were signed by the
principal-Maryann Saniella.
[In] July 2018[,] | filed another unfair practice charge against CSEA
because they attempted to violate the union contract after | refused the
$1000.00, by giving me a written statement to NOT move forward with
the binding arbitration. Thereafter in August 2018[,] they decided to
move forward with the arbitration that took place on April 1, 2019.
HOW: Met with Casey Thompson on Thur. March 27, 2019 (one year
later) for 40 minutes during my lunch break to prep for arbitration on
Mon. April 1, 2019. During the arbitration it was found that Stockton
Unified School District could have done a reorganization to change the
office staff and organized it: so we would be working out of class. It was
also found that | was entitled to Retro for working out of class as well as
retro for the reclassification because | had to wait for the reclassification
process in order to be reclassified. Those points were clearly pointed out
numerous times during the arbitration that the district is aware of what
they can do to adjust the Staffing which they failed to do so. This is
called REORGANIZATION. The contract language does not state |
cannot request retro pay for working out of class nor is it in the language,
no retro/back pay for the reclassification. | explain[ed] to the
judge/arbitrator that these breaks, vacation dates and maternity leave
are taken out of my leave bank; they are not free days off and it isUnfair Practice Charge.No. SA-CO-638-E
March 10, 2020
Page 4
mandatory to take those dates off. Therefore[,] | was paid at a lower rate
instead of a higher rate which | should have been paid. So why would
CSEA representative NOT request what is actually due to me. This is
merely violation of representation, retaliation, bad faith and
bias/discrimination toa woman requesting and fighting for justice.”
Second Amended Charge
The Second Amended Charge states in pertinent part:
“This charge was filed timely APRIL 2019, regarding LACK OF
REPRESENTATION OF PREPARATION FOR ARBITRATION SET FOR
APRIL 2, 2019. The negligence of Roderick Gauiman and Casey
Thompson breaches the duty of CSEA ByLaws and fair representation
which put my arbitration at stake for retro pay.for working out of class
and retro pay for reclassification. CSEA 821 are paid millions of dollars
to represent the CSEA members to the fullest. | pay union dues yearly to
CSEA 821 for representation. 19 Articles of the CSEA 821 contract were
violated. THEY STOLE MONEY FROM ME. | PAID UNION DUES AS
A MEMBER FOR YEARS. THEY DEPRIVED ME OF MONEY DUE TO
ME FOR THE RECLASSIFICATION RETRO PAY, | was only allowed
30 minutes during my junch on March 28, 2019 to discuss the arbitration
set for April 2, 2019. Rod Gaulman and Casey Thompson (labor rep’s)
- were not timely in the preparation for the arbitration, they were not fully
prepared, they refused and did not include the employees legal rights
to retro pay for reclassification Article 8.13.4.2.3 of the CSEA
bargain agreement. Substantial evidence of reclassification was written
on timesheets signed by the principal for payment, and text messages
providing evidence regarding the principal refusing to sign the PA (prior -
authorization): but was not included in the opening statement nor the
brief filed. by Casey Thompson. This was requested by the MEMBER
(LAUREEN THOMPSON) on several occasions. If allowed appropriate
time to prepare for the arbitration these articles would not have been
missed. In reviewing the recordings from the arbitration; the District
(Stockton Unified School District) witnesses LIED on the stand with a few .
‘key points regarding PA (Prior Authorization to change the position) and
this was the first for someone to request the retro for reclassification.
These facts should've been used in Casey Thompson brief to fight the
case, as requested by the member (Laureen Thompson)Unfair Practice Charge No. SA-CO-638-E
March 10, 2020
Page 5
Who: Roderick Gaulman, Sr. Labor Representative and Casey
Thompson, Labor Representative for California School Employees
Association (CSEA 821)
When: March 28, 2019 pre arbitration meeting. Arbitration set for April
2, 2019
What: Roderick Gaulman and Casey Thompson disregarded the
California ByLaws as a Sr. Labor Representative thus, violating their
duties and responsibilities as Representatives of CSEA 821. Their
arbitrary, discriminatory and bad faith conduct violated the duties of fair
representation: by, not allowing time to prepare for arbitration, devoid of
honest judgement use of all sustancial [sic] CSEA 821 contract
agreement information, suggesting deduction of the mandatory leave
usage (school breaks, vacation and maternity accrued sick leave) which
should've been paid at the higher salary. (SUGGESTING OF
STEALING MONEY FROM ME). It was told to me by Casey Thompson,
“it took this long to find the arbitrator to hear the case’.
How: Violating my rights as a dues paying member of CSEA 821;
not allowing me time to meet, review and prepare for arbitration in a
timely manner, Roderick Gaulman and Casey Thompson did not
horning [sic] the California ByLaws as a representative, violation of
NOT HONORING 49 School Employees Association 821 contract
ARTICLES,
FOLLOWING CSEA 821 CONTRACT ARTICLES:
Preamble, Article | Recognition, Article Ill Dues & Service Fees
3.1.1, 3.1.2, 3.3.6 amount of the service fees, Article VI definitions,
6.3 Classification, 6.11 Paid Status, VIII Pay & Allowance, 8.1 Rate of
Pay, 8.1.1, 8.7 Compensation for working out of class, 8.13
Reclassification, 8.13.2, 8.13.4.2.3, Article XI Holidays, 11.1, XV
Leaves 15.3.1, 15.3.2, 15.3.4
Conclusion
My rights as yearly dues paying member of the CSEA contract was
breached and violated by CSEA Labor Representatives Roderick
Gaulman and Casey Thompson. Their conduct of bias actions to
ignore/refuse was member is seeking, lack of representation, timely,
arbitrary, discriminatory and bad faith Jeopardized my arbitrationUnfair Practice Charge No. SA-CO-638-E
March 10, 2020
Page 6
regarding retro pay for working out of class and retro pay for
reclassification. They should be penalized/charged for their actions.
Again the member, Laureen Thompson, requested retro pay for
reclassification to be included into the arbitration for working out of class
on several occasions to the Labor Représentatives. These requests
prior to arbitration and tn the final brief prior to submission verbally as
well as emails.”
DISCUSSION .
A. The Charging Party’s Burden and Statute of Limitations
As discussed in the Warning Letter, a charging party should allege with specificity the
particular facts giving rise to a violation. (National Union of Healthcare Workers
(2012) PERB Decision No. 2249a-M.) Also, Charging Party was advised that mere
legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak
Unified Schoo! District (1991) PERB Decision No. 873.)
The Warning Letter also explained to Charging Party that it was her burden to include
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 Schoo! District (2007) PERB Decision No. 1929; City of Santa
Barbara (2004) PERB Decision No. 1628-M.) Charging Party filed the original charge
on April 2, 2019. Thus, the allegations surrounding the March 22, 2018 mediation and
the July 2018 written statement are untimely and barred by the statute of limitations
because they occurred before October 2, 2018.
B. Breach of Contract
As discussed in the Warning Letter dated January 24, 2020, PERB is without
jurisdiction to enforce contracts between CSEA and the Stockton Unified School
District (District), (County of Sonoma (2012) PERB Decision No. 2242-M.) Charging
Party was advised that she lacked standing to assert that CSEA breached the contract
.With the District by unilaterally changing terms and conditions of employment.
Charging Party alleges in the Second Amended Charged that CSEA breached the
following contract provisions: Preamble, Article | Recognition, Article Ill Dues &
Service Fees 3.1.1, 3.1.2, 3.3.6 amount of the service fees, Article VI definitions, 6.3
Classification, 6.11 Paid Status, Vill Pay & Allowance, 8.1 Rate of Pay, 8.1.1, 8.7
Compensation for working out of class, 8.13 Reclassification, 8.13.2, 8.13.4.2.3,Unfair Practice Charge No. SA-CO-638-E
March 10, 2020
Page 7
Article XI Holidays, 11.1, XV Leaves 15.3.1, 15.3.2, 15.3.4. Charging Party is not a
party to the agreement between CSEA and the District. Accordingly, Charging Party’s
allegations that CSEA failed or refused to honor the provisions of bargaining
agreement are dismissed because Charging Party lacks standing to do so and
enforcement of the contract is outside PERB’s jurisdiction.
C. Duty of Fair Representation
As discussed in the Warning Letter, Charging Party must show that CSEA’s conduct
was arbitrary, discriminatory, or in bad faith in order to state a prima facie violation of
EERA section 3543.6(b). The Warning Letter advised Charging Party that
a breach of the duty of fair representation is not stated merely because the union
makes evidentiary and argumentation errors at arbitration. (See, ¢.9., United
Teachers-Los Angeles (Farrar) (1990) PERB Decision No. 797, at pp. 5-6 [failure to
introduce every favorable document or to raise every argument deemed significant by
grievant is not a breach of duty of fair representation].) The Warming Letter further
advised Charging Party, regarding the alleged lack of preparation for and handling of
the arbitration, that none of allegations in the original and Frist Amended Charge
demonstrated that CSEA acted in “reckless disregard” of Charging Party's rights. (See
Dutrisac v. Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, 1272 [“a union’s
negligence breaches the duty of fair representation tn “cases in which the individual
interest at stake is strong and the union's failure to perform a ministerial act
completely extinguishes the employee's right to pursue his claim’].) The Warning
Letter advised Charging Party that her allegations that Respondent did not provide
enough time to prepare for the arbitration and did not provide Charging Party with a
copy of the post-hearing brief prior to submission, did not show how or in what manner
CSEA's actions are without a rational basis or devold of honest judgment. (See, e.g.,
United Teachers-Los Angeles (Farrar), supra, PERB Decision No. 797.) Charging
Party reiterates in the Second Amended Charge that CSEA failed to introduce :
evidence or argue for the reclassification during the arbitration and this was due to a
lack of preparation. However, as advised in the Warning Letter, CSEA is afforded
wide latitude in its representation of its members, and disagreement with a union’s
strategy does not necessarily demonstrate conduct without a rational basis or devoid
of honest Judgment. (National Union of Healthcare Workers (2012) PERB Decision
No, 2249-M.) Charging Party was further advised that CSEA does not breach its duty
of fair representation by erroneously interpreting a collective bargaining agreement
when the interpretation is reasonable. (California Schoo! Employees Association
(Dunn) (2009) PERB Decision No. 2028.) As provided inthe Waring Letter, it
appears Charging Party and Thompson clearly disagreed over how best to present
Charging Party’s case and disagreed on the amount of the remedy; however, thereUnfair Practice Charge No. SA-CO-638-E
March 10, 2020
Page 8
are no allegations to show that Thompson, Gaulman, or CSEA acted in bad faith, or in
an arbitrary or discriminatory manner. The Second Amended Charge does not include
any additional facts to support Charging Party's allegations that CSEA’s preparation
for and handling of her arbitration was without a rational basis or devoid of honest
judgment. Accordingly, the allegations regarding a breach of the duty of fair
representation is dismissed.
D. PERB’s Limited Jurisdiction
As advised in the Warning Letter, Charging Party's allegations regarding
discrimination related to race and/or gender must be dismissed because PERB lacks
jurisdiction over such violations. (Alum Rock Union Elementary School District (2005)
PERB Decision No, 1748.) Accordingly, these allegations are dismissed.
E. Section 3544.1(d)
As advised In the Warning Letter, Charging Party does not have standing to allege a a
violation of section 3544.1, subdivision (d) of EERA. (State of California (Department
of Corrections) (1993) PERB Decision No. 972-S,) Because Charging Party does not
have standing to bring a charge alleging a violation of section 3544.1, subdivision (d),
this allegation dismissed. .
Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal
of the charge by filing an appeal to the Board itself within twenty (20) calendar days
after service of this dismissal. (Cal. Code Regs., tit. 8, § 32635, subd. (a).) Any
document filed with the Board must contain the case name and number, and the
original and five (5) copies of all documents must be provided to the Board.
A document is considered “filed” when actuaily received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov.
Code, § 11020, subd. (a).) A document is also considered “filed” when received by
facsimile transmission before the close of business together with a Facsimile
Transmission Cover Sheet which meets the requirements of PERB Regulation
32135(d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, §
32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
The Board’s address is:Unfair Practice Charge No. SA-CO-638-E
March 10, 2020
Page 9
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-9425
If you file a timely appeal of the refusal to issue a complaint, any other party may file
with the Board an original and five coples of a statement in opposition within twenty
(20) calendar days following the date of service of the appeal. (Cal. Code Regs., tit. 8,
§ 32635, subd. (b).)_
Service
All documents authorized to be filed herein must also be “served” upon all parties to
the proceeding, and a “proof of service” must accompany each copy of a document
served upon a party or filed with the Board itself. (See Cal. Code Regs., tit. 8,
§ 32140 for the required contents.) The document will be considered properly
“served” when personally delivered or deposited in the mail or deposited with a
delivery service and properly addressed. A document may also be concurrently
served via facsimile transmission on all parties to the proceeding. (Cal. Code Regs.,
tit. 8, § 32135, subd. (c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself,
must be in writing and filed with the Board at the previously noted address. A request
for an extension must be filed at least three (3) calendar days before the expiration of
the time required for filing the document. The request must indicate good cause for
and, if known, the position of each other party tegarding the extension, and shall be
accompanied by proof of service of the request upon each party. (Cal. Code Regs.,
tit. 8, § 32132.)Unfair Practice Charge No. SA-CO-638-E
March 10, 2020
Page 10
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final
when the time limits have expired.
Sincerely,
J. Felix De La Torre
General Counsel
cdl» ——
” Gamal Binon
Regional Attorney
CKB
Attachment
cc: Alex Leenson, Staff Attorney
California Schoo! Employees Association2
STATE OF CALIFORNIA GAVIN NEWSOM, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
D> Sacramento Regional Office
& 1031 18th Street
Sacramento, CA, 95811-4124
‘Telephone: (916) 327-7242
Fax: (916) 327-6377
January 24, 2020
Laureen Thompson.
P.O. Box 6366
Stockton, CA 95206
Re: Laureen Thompson v. California State Employees Association-Chapter 821
Unfair Practice Charge No, SA-CO-638-E
WARNING LETTER
Dear Ms. Thompson:
The above-referenced charge was filed with the Public Employment Relations Board (PERB or
Board) on April 2, 2019. The charge was amended on July 5, 2019. Laureen Thompson
(Charging Party) alleges that the California State Employees Association-Chapter 821 (CSEA
or Respondent) violated sections 3544.9 and 3544.1, subdivision (d) of the Educational
Employment Relations Act (EERA or Act)! by breaching its duty of fair representation.
FACTS AS ALLEGED
Charging Party’s initial charge states the following in section 6.d. of the unfair practice charge:
“failure to full. representation from the union CSEA 821 and failure to meet in a timely manner
for arbitration preparation. I disagree with their approach to my case. Please see attached
statement of facts.” Attached to the unfair practice charge form, Charging Party provides the
following additional allegations in pertinent part, verbatim unless indicated:
“{TThe week of March 18, 2019 through March 22, 2019[,] I was on vacation.
Stockton Unified School District was on spring break vacation. Casey
Thompson and Roderick Gaulman are aware of the calendar for the school year.
I responded to email on Sunday night to Casey Thompson regarding arbitration
set for April 1st 2019. I have not spoken to them regarding this case (working
out of class from 2016-2017) over 1 year ago. This will only allow 7 days to
prepare for arbitration. I asked Casey in the email to reschedule because this is
a short notice it does not give enough time to discuss my case with them. March
25th[,] 2019 to prepare for April 1st, This is contract violation of timely manner
1 RERA is codified at Goverament 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 ERA
and PERB Regulations may be found at www.perb.ca.gov.Unfair Practice Charge No. SA-CO-638-E
January 24, 2020
Page 2
to prepare for arbitration. Casey Thompson bluntly stated to me on phone,
“Laureen we are not rescheduling.” :
Charging Party’s first amended charge states in section 6.d.: “Amendment/additional
information: Failure of full representation from CSEA 821 Union and failure to meet in a
timely manner for arbitration preparation. I disagree with their approach to my case.”
Attached to the unfair practice charge form, Charging Party provides the following additional
allegations in pertinent part, verbatim unless indicated otherwise:
“WHAT: A bias act against a woman (African American) questioning and
seeking what is rightfully due to me. Recurring violation to unfair lack of
representation from CSBA to a paying union member....After a full day of
arbitration on April 1, 2019[,] it was made aware by CSEA representative
Roderick Gaulman that [I] was eligible for both retro pay of working out of
class and reclassification. I requested CSEA representative to request all the
dividends duc to me. Which would be the $4254,00 (the dollar amount
difference in my pay change) I continued to debate [] the $1900.00 Casey
Thompson calculated for the working out of class. I was reclassified from range
29 to range 35 approx. $2.29 hourly difference. I requested to review the brief
prior to submission to the arbitrator by both CSEA representatives; to confirm a
mutual understanding among both parties. However, my request was ignored by
Casey Thompson. Casey Thompson suggested an error in his briefing which
was filed to the arbitrator. [D]eductions of money from my vacation break &
maternity leave (used saved accrued sick time) which I was entitled to at the
higher dollar amount: due to the reclassification and working out of class. He
failed to implement what J was seeking after requesting him to do so on several °
occasions.
PRIMA FACIE: On March 22, 2018 during mediation I requested the $4500.00
retro pay for the difference in the pay [I] was reclassified to, Roderick Gaulman
tried to convince me to accept the district offer of a global settlement of
$1000.00 and to cancel all my grievances and complaints against the district;
stated in the response to this case #SA-CO-638-E. Now Casey filed a brief only
requesting $1093.70 and subtract dates/pay from the signed timesheets that were
signed by the principal Maryann Santella.
[In] July 2018[,] I filed another unfair practice charge against CSEA because
they attempted to violate the union contract after I refused the $1000.00, by
giving me a written statement to NOT move forward. with the binding
arbitration. Thereafter in August 2018[,] they decided to move forward with the
arbitration that took place on April 1, 2019.Unfair Practice Charge No. SA-CO-638-E
January 24, 2020
Page 3
HOW: Met with Casey Thompson on Thur. March 27, 2019 (one year later) for
40 minutes, during my lunch break to prep for arbitration on Mon. April 1, 2019.
During the arbitration it was found that Stockton Unified School District could
have done a reorganization to change the office staff and organized it: so we
would be working out of class. It was also found that I was entitled to Retro for
working out of class as well as retro for the reclassification because J had to wait
for the reclassification process in order to be reclassified. Those points were
clearly pointed out numerous times during the arbitration that the district is
aware of what they can do to adjust the Staffing which they failed to do so. This
is called REORGANIZATION. The contract language does not state I cannot
request retro pay for working out of class nor is it in the language, no retro/back
pay for the reclassification. I explain[ed] to the judge/arbitrator that these
breaks, vacation dates and maternity leave are taken out of my leave bank; they
are not free days off and it is mandatory to take those dates off. Therefore[,] I
was paid at a lower rate instead of a higher rate which I should have been paid.
So why would CSBA representative NOT request what is actually due to me.
This is merely violation of representation, retaliation, bad faith and
bias/discrimination to a woman requesting and fighting for justice.”
DISCUSSION
A. The Charging Party’s Burden
PERB Regulation 32615(a)(5) requires that an unfair practice charge include a “clear and
concise statement of the facts and conduct alleged to constitute an unfair practice.” In doing
so, a charging party should allege with specificity the particular facts giving rise to a violation.
(National Union of Healthcare Workers (2012) PERB Decision No. 2249a-M.) The charging
party may do this by alleging sufficient facts describing the “who, what, when, where and
how” of an unfair practice. (State of California (Department of Food and Agriculture) (1994)
PERB Decision No. 1071-S (Dept. of Food and Agriculture), citing United Teachers-Los
Angeles (Ragsdale) (1992) PERB Decision No. 944.) Such allegations should focus on the
elements of the prima facie case. Mere legal conclusions are not sufficient to state a prima
facie case. (Ibid.; Charter Oak Uni
Preview
UA fk wR Cc om I a 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANDREW J. KAHN State Bar No. 129776 AMY DUNNING State Bar No, 171408 CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION 2045 Lundy Avenue San Jose, California 95131 (408) 473-1000 Fax (408) 954-0948 Attorneys for CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION, and its DELTA VALLEY CHAPTER No, 821 STATE OF CALIFORNIA SUPERIOR COURT COUNTY OF SAN JOAQUIN LAUREEN THOMPSON ) Case No.: STK-CV-LOCT-2021-0000038 ) Plaintiff, ) ) REQUEST FOR JUDICIAL NOTICE IN v. ) SUPPORT OF DEMURRER ) . CALIFORNIA SCHOOL EMPLOYEES ) ASSOCIATION, et al., ) Hearing Date: MAY 1 9. 2021 ) Time: @too AM Defendants. ) Department: 10B ) Judge: Hon. Carter Holly 2 d ) Pursuant to California Evidence Code sections 452 and 453, Defendant California School Employees Association and its Chapter No. 821 (“CSEA”) hereby requests that this Court take judicial notice of the exhibits identified below, offered in support of its demurrer to the Complaint. The authenticity of these exhibits is established through the declaration of Amy Dunning, which is attached hereto as Exhibit D. A demurrer tests the legal sufficiency of the complaint. The complaint is reviewed de novo to determine whether it alleges facts sufficient to state a cause of action. The court accepts as true -1- REQUEST FOR JUDICAL NOTICE ISO DEMURRER BY FAXfo Oo YN Hw 10 ul 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 all material facts alleged in the complaint, and also considers matters that may be judicially noticed. (Blank v, Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58].) Evidence Code section 451 lists matters that must be judicially noticed, whereas Evidence Code section 452 lists matters that may be judicially noticed. Matters specified in Evidence Code section 452 must be judicially noticed if a party requests it, provided the party gives sufficient notice to each adverse party to prepare to meet the request, and furnishes the court with sufficient information to enable it to take judicial notice of the matter. (Evid. Cade § 453, subds. (a) & (b)) Exhibit A is the Arbitration Award and Opinion in which Arbitrator Norman Brand denied the Plaintiff's grievance. The document is relevant to assessing whether Plaintiff's duty of fair Tepresentation cause of action, which centers on CSEA’s representation of the Plaintiff in the arbitration, is sufficient to state a claim. The document is also relevant to assessing whether Plaintiff's cause of action to enforce the collective bargaining agreement is an attempt to seek judicial review of the allegations that were arbitrated without first filing to vacate or correct the arbitration award. Plaintiff refers to the arbitration award in the Complaint, where she alleges that Defendants “cause loss of arbitration.” She also attached excerpts from the transcript of the arbitration hearing. The authenticity of the arbitration award is therefore not in dispute. Judicial notice of the arbitration award is proper under Evidence Code section 452(d). Courts may take judicial notice of arbitration awards. (See, e.g., Greenspan v. LADT, LLC, 191 Cal.App.4"" 486, 525, 121 Cal. Rptr. 3d 118 (2011) [approved of the trial court taking judicial notice of an arbitration award in determining whether an individual could be added to a judgment as a judgment debtor]; Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2021) 60 Cal.App.5" 327, 334, 274 Cal. Rptr. 3d 493 [granting request for judicial notice of arbitration award involving wage overpayment].) Therefore, CSEA asks the Court to take judicial notice of Exhibit A. Exhibit B is the State of California’s Public Employment Relations Board (“PERB”) regional attorney's Dismissal Letter w/attached Letter of Warning for the Plaintiff's unfair practice charge against CSEA in PERB case No. SA-CO-638-E. The statements contained within the PERB -2- REQUEST FOR JUDICAL NOTICE ISO DEMURRERa DW Bh wWN dismissal letter and letter of warning describe Plaintiff's allegations that CSEA’s conduct during the arbitration of her grievance violated the Educational Employment Relations Act (“EERA”), Government Code section 3540 et seq. The PERB regional attorney dismissed the charge without issuing a complaint, and Plaintiff is now pursuing those allegations in her Complaint before this Court. The document is relevant because it shows Plaintiff previously made the same allegations in a PERB charge that she now makes in the complaint. It is relevant to assessing whether Plaintiff's causes of action in the Complaint are preempted by PERB’s exclusive jurisdiction to resolve claims concerning the breach of the duty of fair representation under the EERA. Taking judicial notice of PERB proceedings is proper under Evidence Code section 452(c). (See, El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 950.) Therefore, CSEA asks the Court to take judicial notice of Exhibit B. Exhibit C is the PERB Board's Decision affirming the PERB regional attomey’s dismissal of the Plaintiff's unfair practice charge against CSEA in No. SA-CO-638-E. The document represents the final decision in the PERB administrative process that Plaintiff previously pursued against CSEA. The document is relevant to assessing whether the Plaintiff’s causes of action in the Complaint are preempted by PERB’s exclusive jurisdiction to resolve claims concerning the breach of the duty of fair representation under the EERA, and whether the only judicial remedy available to the Plaintiff following the PERB Board’s final decision was to file a petition for traditional mandate in the trial court against PERB, (£/ Rancho Unified School Dist. v. National Education Ass’n, supra, 33 Cal.3d 946, 950.) Judicial notice is proper under Evidence Code section 452(c) as an official government act. Therefore, CSEA asks the Court to take judicial notice of Exhibit C. For these reasons, CSEA respectfully asks this Court to take judicial notice of the arbitration decision (Exhibit A), the PERB regional attomey’s dismissal letter w/attached letter of warning (Exhibit B), and the PERB Board’s decision affirming the dismissal (Exhibit C). Respectfully submitted, April 13, 2021 SNOH, Amy Dunning Attorney for Defendants -3- REQUEST FOR JUDICAL NOTICE ISO DEMURRERExhibit AIn the Matter of an Arbitration Between California School Employees AWARD & OPINION Association, Chapter 821 ~ and - NB 3934 fctri CSMCS ARB 18-0089 Ss Stockton Unified School District CSEA RD-ARB-821-01-17 (Grievance: Thompson Out of Class Pay) Arbitrator: Norman Brand, Esq. Appearances: For California School Employees Association, Chapter 821 Casey Thompson, Labor Relations Representative For Stockton Unified School District Dannis Woliver Kelley by Marie A. Nakamura, Esq. Nia D. Franklin, Esq. Date: July 10, 2019Background On August 21, 2017, the California School Employees Association (“Union”) filed ’ a Level 1 grievance on behalf of Ms. Laureen Thompson (“Grievant”) with the Stockton Unified School District ("District"). The parties were unable to resolve this dispute at the lower steps of the grievance procedure and the Union moved it to arbitration on April 5, 2018. By agreement of the parties, the Arbitrator held a hearing in Stockton, CA on April 1, 2019. Both parties were present at the hearing and the District was represented by counsel. Each had a full opportunity to examine and cross-examine witnesses, present evidence, and argue its position. Neither party objected to the conduct of the hearing. A court reporter recorded the proceedings. At the close of the hearing the parties asked to file post-hearing briefs. The Arbitrator declared the hearing closed when he received the last brief on June 7, 2019. Issues The parties did not stipulate an issue at the hearing. The Union proposed the following issue: Did the District violate Article 8.7 by failing to pay Grievant for working out of classification? The District did not dispute this issue, but asserts two preliminary issues: 1. Did the conduct underlying the grievance occur prior to the expiration of the collective bargaining agreement (“CBA”)? 2. Was the grievance timely filed?Contract Language 8.7 Compensation for Bargaining Unit Members Working Out of Classification Bargaining unit members assigned temporarily for five (5) or more workdays out of fifteen (15) calendar days to a position with a higher classification shall receive the next higher amount on the new salary range for whatever time (s)he fills this temporary position. Only those bargaining unit members designated in writing by the appropriate director/principal will be considered "assigned" to a position with a higher salary classification. In no event shall an employee working out of Classification receive less than five percent (5%) above his/her regular rate of Pay. (ld) Reclassification 8.13.1 "Reclassification" means the upgrading of a position to a higher classification as a result of increased duties and responsibilities permanently assigned to a position which are not attributed to a sudden or short-term change, which are performed by the bargaining unit member. 8.13.4 Reclassification Committee 8.13.4.1 A "Reclassification Committee" shall be composed of Three (3) management appointees, one (1) of which shall be the Director of Classified Personnel, Three (3) CSEA appointee's, one of which shall be the CSEA Chapter President. Each group can bring one (1) expert in the event that further clarification is needed. In the event of a tie, one (1) neutral appointee shall be selected by mutual agreement between the District and CSEA to break the tie. Every attempt shall be made to find a neutral appointee at no cost to the Parties. However, if there is a cost for the neutral appointee, it shall be mutually borne by both parties. 8.13.4.14 The Committee shall be charged with collaborating and fecommending the appropriate revisions, modification or creation of new job descriptions, the appropriate title of the position(s), classification designation, and the Step and Range of the employee(s) placement and the date in which reclassification takes effect which may be retroactive and/or delayed. 8.13.4.4 The Committee shall have the authority to adopt, reject, or modify the submitted reclassification request, and/or recommend the creation of a new position and/or reclassification, and the accompanying job description and salaryplacement. All Committee members shall sign the Committee's decision which shall be binding upon the parties. 8.13.4.7 The Committee's recommendation is final and binding. ARTICLE XVIII GRIEVANCE PROCEDURE 18.1 Definition A grievance is a dispute regarding the interpretation, application, or violation involving a specific term or provision of this collective agreement. A grievant is either a bargaining unit member directly affected by the dispute or the Association on behalf of a specifically named bargaining unit member who otherwise qualifies as a grievant. 183.L.1 The wiitten grievance shall be presented within forty-five (45) calendar days after the bargaining unit member knows or should reasonably have known of the occurrence which gives rise to the dispute. Facts Grievant began working as a Senior Office Assistant (Range 29) at Stockton High School on January 20, 2016. (Tr. 24:20-23) Her supervisor was Principal Maryann Santella. (Tr. 141:9-10) There was one other employee in the office, Stephanie Salcedo, the Student Data Technician (Range 35). (Tr. 83:24-842) Salcedo, the former Senior Office Assistant, had promoted to Student Data Technician. (Tr. 155:7-21) Around the middle of April 2016 Grievant corresponded by email with Salcedo. On April 18, 2016 Salcedo provided Grievant a docx file “Request Auto populate November 2015,” saying: “This will come in handy ... | will guide you for a couple of months, until you feel comfortable.” (U-2) On April 15 and 18 Salcedo sent Grievant a numbered listof directions with advice on how to do her job.’ According to Grievant, she asked Salcedo to date and re-send the list on the 18" and Salcedo wrote "Here ya go © Just a list to refer to, most of these we already went over. But just for your reference.” (U-2)? According to Santella, who saw these emails for the first time at the hearing, “it sounds like she [Salcedo] was guiding her and helping her, telling her that these type of things will come in handy when you need to do this task.” (Tr. 157:21-24) Grievant applied for reclassification on August 1, 2016, after having attended a meeting about reclassification in May. (Tr. 41:4-6; D-4) She applied to be reclassified to Attendance Technician (Range 33) and was reclassified to Student Data Tech (Range 35). (Tr. 63:8-15) She was reclassified to the higher classification because the District was trying to keep parity in personne! allocations among the smaller schools. (Tr. 229:21-230:6) By letter dated May 19, 2017, the reclassification committee informed Grievant she had been reclassified to Student Data Technician and that her new classification would be effective on Board approval. (D-7) That approval came on July 10, 2017, with an effective date of July 1, 2017, after which Grievant began getting paid in her new classification. (D-8, 9) After learning of her reclassification Grievant created new time sheets for each fwo week period between April 15, 2016 and June 2017 on which she wrote “Reclassification approved 5/22/17." The time sheets include periods when school was not in session and Grievant was on a leave of absence. (Tr. 77:19-79:11) She gave the ‘e.g. “7, Emergency and Registration cards — continue to go through them and make sure we have one for every student enrolled. Run a student list and just compare every couple of months. Discard any that are no longer enrolled.” 2 The list Grievant Included as part of U-2 is undated. Grievant included a dated copy of the list with her application for reclassification. :time sheets to Santella to sign about July 21, 2017. (Tr. 48:20-23) What was written on the time sheets at the time Grievant presented them to Santella, as well as why Grievant told Santella she needed them signed, is in dispute.> The parties have had two CBAs during the time involved in this dispute. The first CBA expired on June 30, 2016. (J-10) A new CBA, effective July 1, 2016 to June 30, 2019 was not signed until December 2017. (J-11, App. Q) Discussion The Union makes three arguments. First, it asserts nothing in the evidence contradicts Grievant's claim she performed work out of classification from April 15, 2016 to July 1, 2017. Second, there is no evidence reclassification nullifies a claim to out of class compensation. Third, the grievance was timely filed because performing out of classification work constituted a continuing violation until Grievant was reclassified on July 1, 2017. Grievant timely filed her grievance over this continuing violation within 45 days of when she returned to work on July 21, 2017. The District makes four arguments in support of its position the grievance is untimely and lacks merit. First, it argues the grievance must be dismissed because it was filed after the expiration of the CBA. The grievance does not meet any of the criteria for permitting a grievance to be filed after expiration: a) it does not involve facts and occurrences that arose before expiration; b) it does not involve an infringement on 3 Grievant was evasive when asked specific questions about what she wrote and when. (Tr. 45:25-48:9; 182:19-185:18) The original time sheets were never introduced. Santella was clear that the time sheets did not have diagonal lines with “working out of class” printed on them when Grievant presented them for signature. (Tr. 168:7-169:8) It is unnecessary to resolve this conflict in the testimony because the grievance is untimely.rights that vested under the expired agreement; and, c) it does not involve a right that survives expiration under normal contract principles. Second, the grievance failed to file the grievance within 45 calendar days of when she knew or should reasonably have known of the occurrence which gave rise to the dispute. Grievant believed she was being required to work out of classification on April 15, 2016 and did not file the grievance until August 21, 2017. Even if she did not realize she was not being compensated for out of classification work until she got her April or May 2016 paycheck, the grievance is over a year untimely. Finally, even if Grievant was unaware of the conduct underlying the grievance until she filled out the time sheets on May 22, 2017, the grievance was still untimely filed. Third, the CBA only considers a bargaining unit member “designated in writing by the appropriate director/principal" to be assigned to the position with a higher salary classification. A written designation is a prerequisite to qualifying for out of class compensation. Grievant's Principal gave her no written designation. Fourth, Grievant never temporarily performed the work of a higher classification. The duties she performed were all encompassed in her duties as a Senior Office Assistant. The grievance must be denied for two reasons. First, it is untimely on its face. Article 18.3.1.2 requires presenting a grievance “within forty-five (45) calendar days after the bargaining unit member knows or should reasonably have known of the occurrence...” On the grievance form Grievant lists the date on which she became aware of the violation as 4-15-16. (J-1) That is 16 months before she filed the grievance. Additionally, in the documentary evidence Grievant claims that between April 15 and 18, 2016 she reviewed the list of duties Salcedo provided her and determined the duties were notwithin her job description. On April 18, “I then asked her [Salcedo] if Mrs. Santella wants me to do this because | reviewed my job description over the weekend. She replied “Yes.” (U-2, handwritten notes)* Grievant claims to have also told Santella on April 18, 2016 that the duties Salcedo sent her were “not in the job description.” (Tr. 33:6-10) Grievant's testimony and the notes she wrote demonstrate she knew, or at least believed, she was doing out of classification work on April 18, 2016. The grievance she filed August 21, 2017 was untimely. The Union asserts, however, the grievance is timely because performing the out of classification work constituted a continuing violation until Grievant was actually reclassified on July 1, 2017. The Union provides no analysis or argument in support of this assertion. Second, the grievance must be denied because the untimely filing is not made timely by the continuing violation doctrine. The continuing violation doctrine requires Grievant, in part, to have a colorable argument the District violated the CBA. Grievant fails to make any credible argument that the District violated Article 8.7. That Article provides compensation for bargaining unit members who are “assigned temporarily” to “a position with a higher classification." A bargaining unit member is “assigned” if, and only if, that member is “designated in writing by the appropriate director/principal.” There is no evidence of any writing in which Principal Santella designated Grievant to perform the duties of a position in a higher classification. The only writing is Grievant's own note 4 Grievant testified that on April 18, 2016, after she asked Salcedo if Santella wanted her to do the duties attached to the email, she said “Okay, I'll take them and look at my job description.” (Tr. 57:14-18) This is one of many discrepancies in Grievant's testimony that argues against her credibility. She also testified that on April 18, 2016 she told Santella she was doing work outside her job description. Santella denied any conversation in which Grievant told her she was doing work outside her classification. (Tr. 158:24- 189:3) Santella was the more credible witness. Grievant's assertion she did not file an out of classification grievance in April 2016 because Santella told her to ask for a reclassification is not credible. (Tr. 33:16- 19; 87:9-13)to herself that Salcedo told her Santella wanted her to do work listed on the document entitled “Sr. office Assistant”. (D-4) Grievant's note to herself does not even arguably fulfill Article 8.7’s requirement of a designation in writing from her Principal. Because there is no evidence of a written designation, there is no colorable argument the District violated Article 8.7 and no basis for asserting the grievance is timely under the continuing violation doctrine. Award 1, Some of the conduct that allegedly violated the CBA occurred before the expiration of the 2013-2016 CBA. 2. The grievance over that conduct was not filed within 45 days of when Grievant knew of it. The grievance fails to meet the procedural requirement of Article 18.3.1.2. 2. There is no evidence of a contract violation that could be the predicate for arguing this untimely grievance can be considered because ofh the continuing violation doctrine. 3. The grievance is denied. San Francisco, California Al lemngor Araya July 10, 2019 Norman afandSTATE OF CALIFORNIA GAVIN NEWSOM, Governor PUBLIC EMPLOYMENT RELATIONS BOARD Sacramento Reglonal Office 1031 18th Street Sacramento, CA, 95811-4124 Telephone: (916) 327-7242 Fax: (916) 327-6377 March 10, 2020 Laureen Thompson P.O. Box 6366 Stockton, CA 95206 Re: Laureen Thompson v. California State Employees Association-Chapter 821 Unfair Practice Charge No. SA-CO-638-E DISMISSAL LETTER Dear Parties: The above-referenced charge was filed with the Public Employment Relations Board (PERB or Board) on April 2, 2019. The charge was amended on July 5, 2019. Laureen Thompson (Charging Party) alleges that the California State Employees Association-Chapter 821 (CSEA or Respondent) violated sections 3544.9 and 3544.1, subdivision (d) of the Educational Employment Relations Act (EERA or Act)’ by breaching its duty of fair representation. On July 5, 2019, Charging Party filed a First Amended Charge. Charging Party was informed in the attached Waming Letter dated January 24, 2020, 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, Charging Party should amend the charge. Charging Party was further advised that, unless Charging Party amended the charge to state a prima facie case or withdrew it on or before February 7, 2020, the charge would be dismissed. On February 7, 2020, Charging Party filed a timely Second Amended Charge. 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.Unfair Practice Charge No. SA-CO-638-E March 10, 2020 Page 2 FACTS AS ALLEGED Original Charges Charging Party's initial charge states the following in section 6.d. of the unfair practice charge: “failure to full representation from the union CSEA 821 and failure to meet in a timely manner for arbitration preparation. | disagree with their approach to my case. Please see attached statement of facts.” Attached to the unfair practice charge form, Charging Party provides the following additional allegations in pertinent part, verbatim unless indicated: + “[T]he week of March 18, 2019 through March 22, 2019[,] | was on _ vacation. Stockton Unified School District was on spring break vacation. Casey Thompson and Roderick Gaulman are aware of the calendar for the school year. | responded to email on Sunday night to Casey Thompson regarding arbitration set for April 1st 2019. | have not spoken to them regarding this case (working out of class from 2016-2017) over 1 year ago. This will only aliow 7 days to préepare for arbitration. | asked Casey in the email to reschedule because this is a short notice it does not give enough time to discuss my case with them. March 25th[,] 2019 “to prepare for April 1st. This is contract violation of timely manner to prepare for arbitration. Casey Thompson bluntly stated to me on phone, “Laureen we are not rescheduling.” Charging Party's first amended charge states in section 6.d: “Amendmént/additional information: Failure of full representation from CSEA 821 Union and failure to meet in a timely manner for arbitration preparation. | disagree with their approach to my case.” Attached to the unfair practice charge form, Charging Party provides the following additional allegations In pertinent part, verbatim unless indicated otherwise: “WHAT: A bias act against a woman (African American) questioning and seeking what is rightfully due to me. Recurring violation to unfair lack of representation fram CSEA to a paying union member....After a full day of arbitration on April 1, 2019J,] it was made aware by CSEA representative Roderick Gaulman that [I] was eligible for both retro pay of working out of class and reclassification. | requested CSEA representative to request all the dividends due to me, Which would be the $4254.00 (the dollar amount difference in my pay change) | continued to debate [] the $1900.00 Casey Thompson calculated for the working out of class. | was reclassified from range 29 to range 35 approx, $2.29 hourly difference. |Unfair Practice Charge No. SA-CO-638-E March 10, 2020 Page 3 requested to review the brief prior to submission to the arbitrator by both CSEA representatives; to confirm a mutual understanding among both parties. However, my request was Ignored by Casey Thompson. Casey Thompson suggested an error in his briefing which was filed to the arbitrator. [DJeductions of money from my vacation break & maternity leave (used saved accrued sick time) which | was entitled to at the higher dollar amount: due to the reclassification and working out of class. He failed to implement what | was seeking after requesting him to do so on several occasions. PRIMA FACIE: On March 22, 2018 during mediation | requested the $4500.00 retro pay for the difference in the pay [I] was reclassified to. Roderick Gaulman tried to convince me to accept the district offer of a global settlement of $1000.00 and to cancel all my grievances and complaints against the district; stated In the response to this case #SA- CO-638-E, Now Casey filed a brief only requesting $1093.70 and subtract dates/pay from the signed timesheets that were signed by the principal-Maryann Saniella. [In] July 2018[,] | filed another unfair practice charge against CSEA because they attempted to violate the union contract after | refused the $1000.00, by giving me a written statement to NOT move forward with the binding arbitration. Thereafter in August 2018[,] they decided to move forward with the arbitration that took place on April 1, 2019. HOW: Met with Casey Thompson on Thur. March 27, 2019 (one year later) for 40 minutes during my lunch break to prep for arbitration on Mon. April 1, 2019. During the arbitration it was found that Stockton Unified School District could have done a reorganization to change the office staff and organized it: so we would be working out of class. It was also found that | was entitled to Retro for working out of class as well as retro for the reclassification because | had to wait for the reclassification process in order to be reclassified. Those points were clearly pointed out numerous times during the arbitration that the district is aware of what they can do to adjust the Staffing which they failed to do so. This is called REORGANIZATION. The contract language does not state | cannot request retro pay for working out of class nor is it in the language, no retro/back pay for the reclassification. | explain[ed] to the judge/arbitrator that these breaks, vacation dates and maternity leave are taken out of my leave bank; they are not free days off and it isUnfair Practice Charge.No. SA-CO-638-E March 10, 2020 Page 4 mandatory to take those dates off. Therefore[,] | was paid at a lower rate instead of a higher rate which | should have been paid. So why would CSEA representative NOT request what is actually due to me. This is merely violation of representation, retaliation, bad faith and bias/discrimination toa woman requesting and fighting for justice.” Second Amended Charge The Second Amended Charge states in pertinent part: “This charge was filed timely APRIL 2019, regarding LACK OF REPRESENTATION OF PREPARATION FOR ARBITRATION SET FOR APRIL 2, 2019. The negligence of Roderick Gauiman and Casey Thompson breaches the duty of CSEA ByLaws and fair representation which put my arbitration at stake for retro pay.for working out of class and retro pay for reclassification. CSEA 821 are paid millions of dollars to represent the CSEA members to the fullest. | pay union dues yearly to CSEA 821 for representation. 19 Articles of the CSEA 821 contract were violated. THEY STOLE MONEY FROM ME. | PAID UNION DUES AS A MEMBER FOR YEARS. THEY DEPRIVED ME OF MONEY DUE TO ME FOR THE RECLASSIFICATION RETRO PAY, | was only allowed 30 minutes during my junch on March 28, 2019 to discuss the arbitration set for April 2, 2019. Rod Gaulman and Casey Thompson (labor rep’s) - were not timely in the preparation for the arbitration, they were not fully prepared, they refused and did not include the employees legal rights to retro pay for reclassification Article 8.13.4.2.3 of the CSEA bargain agreement. Substantial evidence of reclassification was written on timesheets signed by the principal for payment, and text messages providing evidence regarding the principal refusing to sign the PA (prior - authorization): but was not included in the opening statement nor the brief filed. by Casey Thompson. This was requested by the MEMBER (LAUREEN THOMPSON) on several occasions. If allowed appropriate time to prepare for the arbitration these articles would not have been missed. In reviewing the recordings from the arbitration; the District (Stockton Unified School District) witnesses LIED on the stand with a few . ‘key points regarding PA (Prior Authorization to change the position) and this was the first for someone to request the retro for reclassification. These facts should've been used in Casey Thompson brief to fight the case, as requested by the member (Laureen Thompson)Unfair Practice Charge No. SA-CO-638-E March 10, 2020 Page 5 Who: Roderick Gaulman, Sr. Labor Representative and Casey Thompson, Labor Representative for California School Employees Association (CSEA 821) When: March 28, 2019 pre arbitration meeting. Arbitration set for April 2, 2019 What: Roderick Gaulman and Casey Thompson disregarded the California ByLaws as a Sr. Labor Representative thus, violating their duties and responsibilities as Representatives of CSEA 821. Their arbitrary, discriminatory and bad faith conduct violated the duties of fair representation: by, not allowing time to prepare for arbitration, devoid of honest judgement use of all sustancial [sic] CSEA 821 contract agreement information, suggesting deduction of the mandatory leave usage (school breaks, vacation and maternity accrued sick leave) which should've been paid at the higher salary. (SUGGESTING OF STEALING MONEY FROM ME). It was told to me by Casey Thompson, “it took this long to find the arbitrator to hear the case’. How: Violating my rights as a dues paying member of CSEA 821; not allowing me time to meet, review and prepare for arbitration in a timely manner, Roderick Gaulman and Casey Thompson did not horning [sic] the California ByLaws as a representative, violation of NOT HONORING 49 School Employees Association 821 contract ARTICLES, FOLLOWING CSEA 821 CONTRACT ARTICLES: Preamble, Article | Recognition, Article Ill Dues & Service Fees 3.1.1, 3.1.2, 3.3.6 amount of the service fees, Article VI definitions, 6.3 Classification, 6.11 Paid Status, VIII Pay & Allowance, 8.1 Rate of Pay, 8.1.1, 8.7 Compensation for working out of class, 8.13 Reclassification, 8.13.2, 8.13.4.2.3, Article XI Holidays, 11.1, XV Leaves 15.3.1, 15.3.2, 15.3.4 Conclusion My rights as yearly dues paying member of the CSEA contract was breached and violated by CSEA Labor Representatives Roderick Gaulman and Casey Thompson. Their conduct of bias actions to ignore/refuse was member is seeking, lack of representation, timely, arbitrary, discriminatory and bad faith Jeopardized my arbitrationUnfair Practice Charge No. SA-CO-638-E March 10, 2020 Page 6 regarding retro pay for working out of class and retro pay for reclassification. They should be penalized/charged for their actions. Again the member, Laureen Thompson, requested retro pay for reclassification to be included into the arbitration for working out of class on several occasions to the Labor Représentatives. These requests prior to arbitration and tn the final brief prior to submission verbally as well as emails.” DISCUSSION . A. The Charging Party’s Burden and Statute of Limitations As discussed in the Warning Letter, a charging party should allege with specificity the particular facts giving rise to a violation. (National Union of Healthcare Workers (2012) PERB Decision No. 2249a-M.) Also, Charging Party was advised that mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified Schoo! District (1991) PERB Decision No. 873.) The Warning Letter also explained to Charging Party that it was her burden to include 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 Schoo! District (2007) PERB Decision No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) Charging Party filed the original charge on April 2, 2019. Thus, the allegations surrounding the March 22, 2018 mediation and the July 2018 written statement are untimely and barred by the statute of limitations because they occurred before October 2, 2018. B. Breach of Contract As discussed in the Warning Letter dated January 24, 2020, PERB is without jurisdiction to enforce contracts between CSEA and the Stockton Unified School District (District), (County of Sonoma (2012) PERB Decision No. 2242-M.) Charging Party was advised that she lacked standing to assert that CSEA breached the contract .With the District by unilaterally changing terms and conditions of employment. Charging Party alleges in the Second Amended Charged that CSEA breached the following contract provisions: Preamble, Article | Recognition, Article Ill Dues & Service Fees 3.1.1, 3.1.2, 3.3.6 amount of the service fees, Article VI definitions, 6.3 Classification, 6.11 Paid Status, Vill Pay & Allowance, 8.1 Rate of Pay, 8.1.1, 8.7 Compensation for working out of class, 8.13 Reclassification, 8.13.2, 8.13.4.2.3,Unfair Practice Charge No. SA-CO-638-E March 10, 2020 Page 7 Article XI Holidays, 11.1, XV Leaves 15.3.1, 15.3.2, 15.3.4. Charging Party is not a party to the agreement between CSEA and the District. Accordingly, Charging Party’s allegations that CSEA failed or refused to honor the provisions of bargaining agreement are dismissed because Charging Party lacks standing to do so and enforcement of the contract is outside PERB’s jurisdiction. C. Duty of Fair Representation As discussed in the Warning Letter, Charging Party must show that CSEA’s conduct was arbitrary, discriminatory, or in bad faith in order to state a prima facie violation of EERA section 3543.6(b). The Warning Letter advised Charging Party that a breach of the duty of fair representation is not stated merely because the union makes evidentiary and argumentation errors at arbitration. (See, ¢.9., United Teachers-Los Angeles (Farrar) (1990) PERB Decision No. 797, at pp. 5-6 [failure to introduce every favorable document or to raise every argument deemed significant by grievant is not a breach of duty of fair representation].) The Warming Letter further advised Charging Party, regarding the alleged lack of preparation for and handling of the arbitration, that none of allegations in the original and Frist Amended Charge demonstrated that CSEA acted in “reckless disregard” of Charging Party's rights. (See Dutrisac v. Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, 1272 [“a union’s negligence breaches the duty of fair representation tn “cases in which the individual interest at stake is strong and the union's failure to perform a ministerial act completely extinguishes the employee's right to pursue his claim’].) The Warning Letter advised Charging Party that her allegations that Respondent did not provide enough time to prepare for the arbitration and did not provide Charging Party with a copy of the post-hearing brief prior to submission, did not show how or in what manner CSEA's actions are without a rational basis or devold of honest judgment. (See, e.g., United Teachers-Los Angeles (Farrar), supra, PERB Decision No. 797.) Charging Party reiterates in the Second Amended Charge that CSEA failed to introduce : evidence or argue for the reclassification during the arbitration and this was due to a lack of preparation. However, as advised in the Warning Letter, CSEA is afforded wide latitude in its representation of its members, and disagreement with a union’s strategy does not necessarily demonstrate conduct without a rational basis or devoid of honest Judgment. (National Union of Healthcare Workers (2012) PERB Decision No, 2249-M.) Charging Party was further advised that CSEA does not breach its duty of fair representation by erroneously interpreting a collective bargaining agreement when the interpretation is reasonable. (California Schoo! Employees Association (Dunn) (2009) PERB Decision No. 2028.) As provided inthe Waring Letter, it appears Charging Party and Thompson clearly disagreed over how best to present Charging Party’s case and disagreed on the amount of the remedy; however, thereUnfair Practice Charge No. SA-CO-638-E March 10, 2020 Page 8 are no allegations to show that Thompson, Gaulman, or CSEA acted in bad faith, or in an arbitrary or discriminatory manner. The Second Amended Charge does not include any additional facts to support Charging Party's allegations that CSEA’s preparation for and handling of her arbitration was without a rational basis or devoid of honest judgment. Accordingly, the allegations regarding a breach of the duty of fair representation is dismissed. D. PERB’s Limited Jurisdiction As advised in the Warning Letter, Charging Party's allegations regarding discrimination related to race and/or gender must be dismissed because PERB lacks jurisdiction over such violations. (Alum Rock Union Elementary School District (2005) PERB Decision No, 1748.) Accordingly, these allegations are dismissed. E. Section 3544.1(d) As advised In the Warning Letter, Charging Party does not have standing to allege a a violation of section 3544.1, subdivision (d) of EERA. (State of California (Department of Corrections) (1993) PERB Decision No. 972-S,) Because Charging Party does not have standing to bring a charge alleging a violation of section 3544.1, subdivision (d), this allegation dismissed. . Right to Appeal Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal of the charge by filing an appeal to the Board itself within twenty (20) calendar days after service of this dismissal. (Cal. Code Regs., tit. 8, § 32635, subd. (a).) Any document filed with the Board must contain the case name and number, and the original and five (5) copies of all documents must be provided to the Board. A document is considered “filed” when actuaily received during a regular PERB business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).) A document is also considered “filed” when received by facsimile transmission before the close of business together with a Facsimile Transmission Cover Sheet which meets the requirements of PERB Regulation 32135(d), provided the filing party also places the original, together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.) The Board’s address is:Unfair Practice Charge No. SA-CO-638-E March 10, 2020 Page 9 Public Employment Relations Board Attention: Appeals Assistant 1031 18th Street Sacramento, CA 95811-4124 (916) 322-8231 FAX: (916) 327-9425 If you file a timely appeal of the refusal to issue a complaint, any other party may file with the Board an original and five coples of a statement in opposition within twenty (20) calendar days following the date of service of the appeal. (Cal. Code Regs., tit. 8, § 32635, subd. (b).)_ Service All documents authorized to be filed herein must also be “served” upon all parties to the proceeding, and a “proof of service” must accompany each copy of a document served upon a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required contents.) The document will be considered properly “served” when personally delivered or deposited in the mail or deposited with a delivery service and properly addressed. A document may also be concurrently served via facsimile transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, § 32135, subd. (c).) Extension of Time A request for an extension of time, in which to file a document with the Board itself, must be in writing and filed with the Board at the previously noted address. A request for an extension must be filed at least three (3) calendar days before the expiration of the time required for filing the document. The request must indicate good cause for and, if known, the position of each other party tegarding the extension, and shall be accompanied by proof of service of the request upon each party. (Cal. Code Regs., tit. 8, § 32132.)Unfair Practice Charge No. SA-CO-638-E March 10, 2020 Page 10 Final Date If no appeal is filed within the specified time limits, the dismissal will become final when the time limits have expired. Sincerely, J. Felix De La Torre General Counsel cdl» —— ” Gamal Binon Regional Attorney CKB Attachment cc: Alex Leenson, Staff Attorney California Schoo! Employees Association2 STATE OF CALIFORNIA GAVIN NEWSOM, Governor PUBLIC EMPLOYMENT RELATIONS BOARD D> Sacramento Regional Office & 1031 18th Street Sacramento, CA, 95811-4124 ‘Telephone: (916) 327-7242 Fax: (916) 327-6377 January 24, 2020 Laureen Thompson. P.O. Box 6366 Stockton, CA 95206 Re: Laureen Thompson v. California State Employees Association-Chapter 821 Unfair Practice Charge No, SA-CO-638-E WARNING LETTER Dear Ms. Thompson: The above-referenced charge was filed with the Public Employment Relations Board (PERB or Board) on April 2, 2019. The charge was amended on July 5, 2019. Laureen Thompson (Charging Party) alleges that the California State Employees Association-Chapter 821 (CSEA or Respondent) violated sections 3544.9 and 3544.1, subdivision (d) of the Educational Employment Relations Act (EERA or Act)! by breaching its duty of fair representation. FACTS AS ALLEGED Charging Party’s initial charge states the following in section 6.d. of the unfair practice charge: “failure to full. representation from the union CSEA 821 and failure to meet in a timely manner for arbitration preparation. I disagree with their approach to my case. Please see attached statement of facts.” Attached to the unfair practice charge form, Charging Party provides the following additional allegations in pertinent part, verbatim unless indicated: “{TThe week of March 18, 2019 through March 22, 2019[,] I was on vacation. Stockton Unified School District was on spring break vacation. Casey Thompson and Roderick Gaulman are aware of the calendar for the school year. I responded to email on Sunday night to Casey Thompson regarding arbitration set for April 1st 2019. I have not spoken to them regarding this case (working out of class from 2016-2017) over 1 year ago. This will only allow 7 days to prepare for arbitration. I asked Casey in the email to reschedule because this is a short notice it does not give enough time to discuss my case with them. March 25th[,] 2019 to prepare for April 1st, This is contract violation of timely manner 1 RERA is codified at Goverament 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 ERA and PERB Regulations may be found at www.perb.ca.gov.Unfair Practice Charge No. SA-CO-638-E January 24, 2020 Page 2 to prepare for arbitration. Casey Thompson bluntly stated to me on phone, “Laureen we are not rescheduling.” : Charging Party’s first amended charge states in section 6.d.: “Amendment/additional information: Failure of full representation from CSEA 821 Union and failure to meet in a timely manner for arbitration preparation. I disagree with their approach to my case.” Attached to the unfair practice charge form, Charging Party provides the following additional allegations in pertinent part, verbatim unless indicated otherwise: “WHAT: A bias act against a woman (African American) questioning and seeking what is rightfully due to me. Recurring violation to unfair lack of representation from CSBA to a paying union member....After a full day of arbitration on April 1, 2019[,] it was made aware by CSEA representative Roderick Gaulman that [I] was eligible for both retro pay of working out of class and reclassification. I requested CSEA representative to request all the dividends duc to me. Which would be the $4254,00 (the dollar amount difference in my pay change) I continued to debate [] the $1900.00 Casey Thompson calculated for the working out of class. I was reclassified from range 29 to range 35 approx. $2.29 hourly difference. I requested to review the brief prior to submission to the arbitrator by both CSEA representatives; to confirm a mutual understanding among both parties. However, my request was ignored by Casey Thompson. Casey Thompson suggested an error in his briefing which was filed to the arbitrator. [D]eductions of money from my vacation break & maternity leave (used saved accrued sick time) which I was entitled to at the higher dollar amount: due to the reclassification and working out of class. He failed to implement what J was seeking after requesting him to do so on several ° occasions. PRIMA FACIE: On March 22, 2018 during mediation I requested the $4500.00 retro pay for the difference in the pay [I] was reclassified to, Roderick Gaulman tried to convince me to accept the district offer of a global settlement of $1000.00 and to cancel all my grievances and complaints against the district; stated in the response to this case #SA-CO-638-E. Now Casey filed a brief only requesting $1093.70 and subtract dates/pay from the signed timesheets that were signed by the principal Maryann Santella. [In] July 2018[,] I filed another unfair practice charge against CSEA because they attempted to violate the union contract after I refused the $1000.00, by giving me a written statement to NOT move forward. with the binding arbitration. Thereafter in August 2018[,] they decided to move forward with the arbitration that took place on April 1, 2019.Unfair Practice Charge No. SA-CO-638-E January 24, 2020 Page 3 HOW: Met with Casey Thompson on Thur. March 27, 2019 (one year later) for 40 minutes, during my lunch break to prep for arbitration on Mon. April 1, 2019. During the arbitration it was found that Stockton Unified School District could have done a reorganization to change the office staff and organized it: so we would be working out of class. It was also found that I was entitled to Retro for working out of class as well as retro for the reclassification because J had to wait for the reclassification process in order to be reclassified. Those points were clearly pointed out numerous times during the arbitration that the district is aware of what they can do to adjust the Staffing which they failed to do so. This is called REORGANIZATION. The contract language does not state I cannot request retro pay for working out of class nor is it in the language, no retro/back pay for the reclassification. I explain[ed] to the judge/arbitrator that these breaks, vacation dates and maternity leave are taken out of my leave bank; they are not free days off and it is mandatory to take those dates off. Therefore[,] I was paid at a lower rate instead of a higher rate which I should have been paid. So why would CSBA representative NOT request what is actually due to me. This is merely violation of representation, retaliation, bad faith and bias/discrimination to a woman requesting and fighting for justice.” DISCUSSION A. The Charging Party’s Burden PERB Regulation 32615(a)(5) requires that an unfair practice charge include a “clear and concise statement of the facts and conduct alleged to constitute an unfair practice.” In doing so, a charging party should allege with specificity the particular facts giving rise to a violation. (National Union of Healthcare Workers (2012) PERB Decision No. 2249a-M.) The charging party may do this by alleging sufficient facts describing the “who, what, when, where and how” of an unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB Decision No. 1071-S (Dept. of Food and Agriculture), citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Such allegations should focus on the elements of the prima facie case. Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak Uni