Singletary v. Local 18 of the Int'l Bhd. of Elec. Workers
| Decision Date | 21 November 2012 |
| Docket Number | B231388 |
| Citation | 151 Cal.Rptr.3d 107,212 Cal.App.4th 34 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Richard SINGLETARY et al., Plaintiffs and Appellants, v. LOCAL 18 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant and Respondent. |
OPINION TEXT STARTS HERE
APPEAL from a judgment of the Superior Court of Los Angeles County, Ernest M. Hiroshige, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC409839)
Law Offices of Leo James Terrell and Leo James Terrell for Plaintiffs and Appellants Richard Singletary, Randall Baker, and James Butts.
Schwartz, Steinsapir, Dohrmann & Sommers, Robert M. Dohrmann and D. William Heine, Los Angeles, for Defendant and Respondent Local 18 of the International Brotherhood of Electrical Workers.
Plaintiffs appeal dismissal of their claim for breach of the duty of fair representation and breach of contract and collective bargaining agreement against Local 18 of the International Brotherhood of Electrical Workers (Local 18). Plaintiffs are security guards for the City of Los Angeles, Department of Water and Power (DWP) and claim that Local 18 failed to ensure that overtime was fairly allotted among the security guards. The trial court dismissed the matter for lack of subject matter jurisdiction, finding that under the Meyer–Milias–Brown Act (MMBA), Government Code section 3509, subdivision (d),1 the City's Employee Relations Board (ERB) had exclusive jurisdiction to consider their claims.
On appeal, plaintiffs contend that the Employee Relations Board did not have exclusive subject matter jurisdiction, and that even if it did, they have exhausted their administrative remedies. Defendant Local 18 cross-appeals the trial court's denial of its motion for sanctions pursuant to Code of Civil Procedure section 128.7 based upon plaintiffs' filing of a frivolous claim. We affirm.
Plaintiffs are employees of the City of Los Angeles, Department of Water and Power. The plaintiffs are also members of Local 18. Randall Baker is a principal security guard and James A. Butts and Richard Singletary are senior security guards.
The terms and conditions of plaintiffs' employment are governed by a memorandum of Understanding (MOU) between DWP and Local 18 which was in effect from October 1, 2005 to September 30, 2010. Article 9.5(a) of the MOU provided that overtime would be divided “as equally as possible among those persons available for work in the same position at the same location or reporting to the same immediate supervisor.” The Department had a policy of assigning “overtime to those with the least amount of accumulated overtime first”; such persons were those “within 40 hours of the lowest accumulated total on the Accumulative Overtime Log” (AOTL).
Plaintiffs asserted that Local 18 failed in its duty to ensure that DWP equally disseminated overtime hours. Another principal security officer at DWP received 635.0 hours of overtime during a one year period ending March 5, 2006, while plaintiff Baker only received 104.9 hours of overtime (with 48 hours declined) for the same period. Plaintiffs Butts and Singletary had similar complaints about the amount of overtime they received.
Pursuant to the MOU Appendix D, Local 18 and DWP agreed to the establishment of a Joint Labor/Management Committee (JLMC). The committee has an equal number of members from Local 18 and DWP, and is the forum in which plaintiffs and their colleagues address grievances about the terms and conditions of their employment.
Many members of Local 18 complained about the problem to their union representative, Gus Corona, during 2007 and 2008. In December 2007, a security officer complained to Corona that the JLMC was “a joke” because it did not meet regularly, had not achieved the goals it set out to achieve, and did not get anything done. To plaintiff Baker, Corona responded on November 17, 2008: The members continued to complain about Corona.
Section 3507, subdivision (a) of the Government Code authorizes public agencies to adopt rules and regulations to implement the provisions of the MMBA, and in 1971, the City adopted an Employee Relations Ordinance (ERO) for this purpose. (§ 3507, subd. (a); see L.A. Admin. Code, § 4.800 et seq.)
On May 12, 2009, plaintiffs, Butts, Baker and Singletary filed an unfair practice charge with the California Public Employment Relations Board (PERB), alleging a violation of the MMBA. All three sought an order directing DWP and Local 18 to comply with article 9.5 and appendix D of the MOU.
On June 17, 2009, Robert Bergeson, the executive director of ERB responded to plaintiffs' claims before ERB,2 and advised plaintiffs that the facts alleged in their claims did not amount to a prima facie violation of the ERO because the ERO governed interference claims and discrimination claims; although the claims might constitute a valid grievance under the MOU, they did not violate the ERO.
On August 11, 2009, plaintiffs filed unfair practices claims with ERB.
On August 4, 2009, plaintiffs requested Bergeson's advisory opinion of whether ERB would have jurisdiction over a claim against Local 18 for failure to enforce the overtime provisions of the MOU. By telephone, Bergeson advised plaintiffs that the claim would be rejected, and confirmed this in writing on August 28, 2009.
On March 17, 2009, plaintiffs 3 filed a complaint against the City and Local 18 for violation of the duty of fair representation and breach of contract and breach of the collective bargaining agreement. On May 26, 2009, plaintiffs filed a first amended complaint alleging the same claims.
Local 18 demurred to the first amended complaint on the grounds the trial court lacked subject matter jurisdiction under section 3509 because that section gave ERB exclusive jurisdiction to determine whether a charge of the breach of the duty of fair representation was justified. The trial court sustained the demurrer with leave to amend, primarily finding ERB had exclusive jurisdiction over the action under section 3509, subdivision (d). 4
On August 20, 2009, plaintiffs filed a second amended complaint, alleging the same claims and further alleging they exhausted their administrative remedies. On September 4, 2009, Local 18 demurred, contending the ERB had exclusive initial jurisdiction to review unfair practices claims, and that courts would exercise limited appellate jurisdiction after review by ERB; in any event, plaintiffs failed to exhaust their administrative remedies with ERB because ERB had not formally ruled on their claims, and plaintiffs could not state a claim that Local 18 had acted in bad faith.
The court overruled the demurrer on December 2, 2009. The court found there was no dispositive authority that plaintiffs were required to exhaust administrative remedies “under these circumstances where the issue of exclusive jurisdiction is not definite and where the statutory language of [section] 3509 can be read to support either party's position.”
At the mandatory settlement conference held April 30, 2010, the trial court suggested that Local 18 filed a pretrial motion on the subject matter jurisdiction issue.
On May 10, 2010, Local 18 moved to dismiss the action based on lack of subject matter jurisdiction, contending ERB had exclusive initial jurisdiction of the matter under section 3509, subdivision (d) of the MMBA. After receiving supplemental briefing on the issue of exhaustion of administrative remedies, the trial court granted the motion, finding the matter within the exclusive initial jurisdiction of ERB.5
On November 12, 2010, Local 18 moved for sanctions pursuant to Code of Civil Procedure section 128.7 on the grounds plaintiffs had no factual basis for their overtime claims; they failed to file a grievance with Local 18, as required by the MOU; and they had no evidence of bad faith conduct by Local 18. The trial court denied the motion for sanctions, finding a factual issue existed whether Local 18's conduct was in bad faith.
Plaintiffs argue that ERB does not have exclusive initial jurisdiction over their unfairrepresentation claims because section 3509, subdivision (d) makes no reference to exclusivity, but merely grants to ERB the authority to engage in proceedings concerning unit determinations, elections, unfair practices, regardless of the exclusive jurisdiction granted to PERB elsewhere in the statute. Further, even if ERB had exclusive initial jurisdiction, plaintiffs exhausted their administrative remedies, thus permitting them to proceed in superior court. Respondents contend that when the legislature enacted section 3509, subdivision (d), it did not intend to give the courts jurisdiction over enforcement of MMBA violations handled by ERB. Rather, the same jurisdictional rules apply to ERB as apply to PERB: namely, PERB (and ERB) have exclusive initial jurisdiction, with appellate review by the courts. (§§ 3509, subd. (d), 3509.5.)
Although the trial court overruled the demurrer, it granted Local 18's evidentiary motion to dismiss the second amended complaint for lack of subject matter jurisdiction. We consider de novo a motion to dismiss for lack of subject matter jurisdiction where the question is purely one of law. (See McKee v. Orange Unified School Dist. (2003) 110 Cal.App.4th 1310, 1316, 2 Cal.Rptr.3d 774.) Where the question depends on findings of fact, we apply the substantial evidence test if the facts are disputed. (See J.H. McKnight Ranch, Inc. v. Franchise Tax Bd. (2003) 110 Cal.App.4th 978, 983, 2 Cal.Rptr.3d 339.) If the facts are undisputed, we resolve the question as a matter of law. (See Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1181, 127 Cal.Rptr.2d 706.)
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