Monday, March 21, 2011
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Court Throws Out Representation Suit Against Union
Only PERB Can Decide Whether Union Breached Its Duties to Members, Panel Says
By KENNETH OFGANG, Staff Writer
A claim that a public employee union failed to properly represent members of a bargaining unit must be decided in the first instance by the Public Employee Relations Board, rather than the courts, the First District Court of Appeal ruled Friday.
Div. Four affirmed a Marin Superior Court judge’s dismissal of a putative class action brought by 17 current and former deputy probation officers in Marin County. The plaintiffs claimed that Local No. 856 of the International Brotherhood of Teamsters conspired with the county to prevent them from obtaining overtime compensation.
The complaint included causes of action for breach of the duty of fair representation, common law breach of fiduciary duty, and fraudulent concealment. 0The plaintiffs alleged that the union was aware as early as 1994 that the deputy probation officers were working more than 40 hours per week and were not “professionals” within the meaning of the Fair Labor Standards Act, which would make them exempt from overtime.
In sustaining demurrers to all three causes of action, Judge Verna Adams ruled that she lacked jurisdiction under the Meyers-Milias-Brown Act, which governs public sector labor relations in California. Adams said the claims fell under a section of the act giving PERB exclusive jurisdiction, subject to judicial review, of all unfair labor practice claims under the act.
On appeal, the plaintiffs argued alternatively that they fell under a section of the act exempting claims by peace officers from PERB’s jurisdiction, that breach of the duty of fair representation is not an unfair labor practice, and that their second and third causes of action fell outside of PERB’s jurisdiction because they were common-law tort claims.
Justice Maria Rivera, however, said the trial judge was correct in ruling that the plaintiffs failed to state a cause of action under any theory.
Government Code Sec. 3511, Rivera said, clearly states that claims are exempt from PERB’s initial jurisdiction when they involve “persons who are peace officers as defined in Section 830.1 of the Penal Code.” Deputy probation officers are not defined as peace officers by that section, and the fact that they are so defined under another section of the code is irrelevant, the justice concluded.
Breach of the duty of fair representation, Rivera went on to say, is an unfair labor practice because PERB has said so in published decisions, to which the court must defer.
The justice acknowledged that a case cited by Adams in her ruling for the lower court, Anderson v. California Faculty Assn. (1994) 25 Cal.App.4th 207, deals with the Higher Education Employer-Employee Relations Act, which unlike the MMBA explicitly makes breach of the duty of fair representation an unfair labor practice. But the lack of such an explicit provision in the MMBA makes no difference in light of PERB’s interpretation and regulations implementing the MMBA, she said.
In an unpublished portion of the opinion, Rivera said PERB’s jurisdiction extended to what the plaintiffs sought to plead as tort claims, because they arose from the same essential facts as the fair representation cause of action.
The case is Paulsen v. Local No. 856 of International Brotherhood of Teamsters, 11 S.O.S. 1470.
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