Wu v. Public Employment Relations Bd.

Filed 12/28/22; Certified for Publication 1/19/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
REBECCA WU, C092640
Plaintiff and Appellant, (Super. Ct. No. 34-2019-
80003289-CU-WM-GDS)
v.
PUBLIC EMPLOYMENT RELATIONS BOARD,
Defendant and Respondent;
TWIN RIVERS UNITED EDUCATORS,
Real Party in Interest and Respondent.
This case involves our review of the Public Employment Relations Board’s
(Board) refusal to file an unfair labor practice complaint on behalf of plaintiff Rebecca
Wu, a substitute teacher representing herself in propria persona, against real party in
interest Twin Rivers United Educators (Union), a teachers’ union. In her unfair practice
charge filed with the Board, Wu alleged the Union breached its duty to represent her in
1
her claim against Twin Rivers Unified School District (School District), wherein she
claimed to be misclassified as a substitute teacher. The Board declined to file a
complaint against the Union based on Wu’s charge because Wu, as a substitute teacher,
was not entitled to union representation given that substitute teachers were excluded from
representation by virtue of the collective bargaining agreement between the Union and
the School District.
In cases involving the Board’s refusal to file an unfair practice complaint, our
review is limited to whether the Board violated the Constitution, misinterpreted a statute,
or exceeded its authority. (International Assn. of Fire Fighters, Local 188, AFL-CIO v.
Public Employment Relations Bd. (2011) 51 Cal.4th 259, 271 (Fire Fighters).) Wu
argues she has a constitutional right to union representation as a misclassified teacher and
as a substitute teacher. She further argues she has a statutory right to representation by
the Union that could not be circumvented by a collective bargaining agreement.
We disagree with Wu that she has a constitutional or statutory right to
representation by the Union as an alleged misclassified employee or as a substitute
teacher. Accordingly, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
In her unfair practice charge filed with the Board, Wu alleged she was a substitute
teacher and home hospital instructor with the School District. While the School District
classified her as a substitute teacher, Wu alleged her position as a home hospital
instructor required a different classification under the Education Code. She sought to
remedy this problem with the School District and contacted the Union for representation
in doing so. The Union declined to represent Wu because she was classified as a
substitute teacher and substitute teachers are excluded from the Union’s membership per
the collective bargaining agreement between the Union and the School District. Wu
alleged that, because she was a teacher under the Education Code, she was entitled to
representation by the Union in the dispute with the School District as to her demand to be
2
placed into the proper classification. Because the Union refused to represent her, Wu
argued, the Union breached its duty of fair representation to her.
The Board’s general counsel dismissed Wu’s charge finding that, because Wu was
classified as a substitute teacher, she was excluded from the bargaining unit the Union
represented. Further, “[a]lthough [Wu] alleges the [School] District misclassified her, the
facts are that she was classified as a substitute. Accordingly, [the Union] did not owe
[Wu] any duty to represent her.” Wu filed an appeal with the Board. The Board adopted
its general counsel’s dismissal letter as its decision and ordered Wu’s unfair practice
charge dismissed without leave to amend.
Wu filed a petition for preemptory writ of mandate pursuant to Code of Civil
Procedure sections 1085 and 1086 against the Board as respondent and the Union as real
party in interest. Wu alleged the Board erred because it ignored the Education and
Employment Relations Act1 (Act) when finding she did not have a right to union
membership as a misclassified employee or a substitute teacher.
The Union demurred to the petition and the Board later joined in that demurrer.
The trial court sustained the demurrer without leave to amend because Wu did not “state
a claim for relief that [the Board] committed an error falling within the International
Assn. of Fire Fighters exceptions when it dismissed [Wu]’s unfair practice charge.”
Wu appeals.
DISCUSSION
On review of an order sustaining a demurrer without leave to amend, we exercise
independent judgment in assessing whether the petition states a cause of action as a
matter of law. (Walgreen Co. v. City and County of San Francisco (2010)
185 Cal.App.4th 424, 433.) “ ‘ “We treat the demurrer as admitting all material facts
1 Government Code section 3540 et seq. Further undesignated section references
are to the Government Code.
3
properly ple[d], but not contentions, deductions or conclusions of fact or law. [Citation.]
We also consider matters which may be judicially noticed.” ’ ” (Zelig v. County of Los
Angeles (2002) 27 Cal.4th 1112, 1126.) “We affirm if any ground offered in support of
the demurrer was well taken but find error if the plaintiff has stated a cause of action
under any possible legal theory. [Citations.] We are not bound by the trial court’s stated
reasons, if any, supporting its ruling; we review the ruling, not its rationale.”
(Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631.) It is appellant’s burden to
affirmatively demonstrate the trial court committed an error justifying reversal.
(Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
I
Wu’s Claims Are Reviewable To The Extent They Challenge The
Board’s Ruling On Constitutional And Statutory Grounds
Wu contends the trial court should have reviewed her constitutional and statutory
challenges to the Board’s order. She argues Fire Fighters was wrongly decided and
judicial review of Board determinations to not issue a complaint should be unlimited.
She also argues her challenges to the Board’s determination fall within the recognized
exceptions articulated in Fire Fighters. We agree Wu’s statutory challenge is reviewable,
as is her constitutional challenge to the extent she raised one in the trial court. We do not
address Wu’s claim that Fire Fighters was wrongly decided because we are bound by our
Supreme Court’s precedent even if we disagree with its holding. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Our Supreme Court has noted that, generally, the Board’s decision to decline to
issue a complaint is not reviewable. (Fire Fighters, supra, 51 Cal.4th at pp. 267-268.)
Our Supreme Court, however, held that the Legislature did not preclude trial courts from
exercising traditional mandate jurisdiction to consider challenges to such Board
determinations. (Id. at p. 271.) “[A] superior court may exercise mandamus jurisdiction
to determine whether [the Board’s] decision violates a constitutional right, exceeds a
4
specific grant of authority, or is based on an erroneous statutory construction. We stress,
however, that it remains true that a refusal by [the Board] to issue a complaint . . . is not
subject to judicial review for ordinary error, including insufficiency of the evidence to
support the agency’s factual findings and misapplication of the law to the facts, or for
abuse of discretion. Also, to avoid undue interference with the discretion that the
Legislature has intended [the Board] to exercise, courts must narrowly construe and
cautiously apply the exceptions we here recognize.” (Ibid.)
Applying this standard, our Supreme Court analyzed the Board’s refusal to issue a
complaint against the City of Richmond for instituting layoffs when it was alleged that
the Board’s refusal to file a complaint was based on an erroneous construction of the
governing act. (Fire Fighters, supra, 51 Cal.4th at pp. 271-277.) While our Supreme
Court found it had jurisdiction to consider the claim, it concluded the Board’s refusal to
file the complaint was not the result of an erroneous statutory construction because, under
the governing act, the institution of layoffs did not constitute an unfair labor practice
when done for financial reasons. (Id. at p. 277.)
With this rule and example in mind, we look to the trial court’s order, which
provides that Wu did not “state a claim for relief that [the Board] committed an error
falling within the International Assn. of Fire Fighters exceptions when it dismissed
[Wu]’s unfair practice charge.” From this language, it is unclear whether the trial court
considered the substance of Wu’s arguments or simply believed it lacked jurisdiction to
rule on those substantive arguments. In the end, however, it does not matter on what
ground the trial court sustained the demurrer because Wu cannot demonstrate the trial
court erred by rejecting her arguments that the Union owed her a duty of fair
representation.
5
II
Wu Does Not Have A Constitutional Right To Be Represented By The Union
Wu contends, for the first time on appeal, that she has a constitutional right to
union representation under the Sixth Amendment and the Fourteenth Amendment to the
United States Constitution. We note that this contention is forfeited because Wu did not
assert it in the trial court. “[I]t is fundamental that a reviewing court will ordinarily not
consider claims made for the first time on appeal which could have been but were not
presented to the trial court.” (Asbestos Claims Facility v. Berry & Berry (1990)
219 Cal.App.3d 9, 26.) “Appellate courts are loath to reverse a judgment on grounds that
the opposing party did not have an opportunity to argue and the trial court did not have an
opportunity to consider.” (JRS Products, Inc. v. Matsushita Electric Corp. of America
(2004) 115 Cal.App.4th 168, 178.)
Regardless, Wu has not demonstrated she is entitled to union representation
through a constitutional mandate. Regarding her Sixth Amendment argument, Wu cites
to Gideon v. Wainwright (1963) 372 U.S. 335. Wu’s reliance on this authority is
misplaced. The Sixth Amendment, as well as Gideon, pertains to a person’s right to
representation during a criminal trial, and thus does not support her claim that she is
entitled to union representation whenever she has a dispute with her school-district
employer. (Gideon, at pp. 339-340, 343-345.)
Further, Wu has not established a property interest in her position as a substitute
teacher or as a misclassified employee such that the Union owes her a duty of
representation. Wu acknowledges that the School District provided her with a procedure
to challenge its classification of her employment. Wu has not explained how that
procedure fails to comply with due process or how union representation during that
procedure is vital to ensuring she is heard by the School District. (See generally
Goldberg v. Kelly (1970) 397 U.S. 254, 263-265 [procedural due process requires an
evidentiary hearing before a government agency can terminate essential resources that
6
have provided the basis upon which the recipient has subsisted].) Accordingly, Wu
cannot demonstrate she has a constitutional right to union representation as a substitute
teacher or as a misclassified employee.
III
Wu Does Not Have A Statutory Right To Be Represented By The Union
In her petition for writ of mandate and in her appellate briefing, Wu contends the
Act extends a union’s duty of fair representation to misclassified and substitute teachers
in addition to full-time classroom teachers. Not so.
California law permits state employees “to select one employee organization as
the exclusive representative of the employees in an appropriate unit, and to permit the
exclusive representative to receive financial support from those employees who receive
the benefits of this representation.” (§ 3512.) It is “unlawful for an employee
organization to: [¶] . . . [¶] . . . [i]mpose or threaten to impose reprisals on employees,
to discriminate or threaten to discriminate against employees, or otherwise to interfere
with, restrain, or coerce employees because of their exercise of rights guaranteed by [the
Act].” (§ 3543.6, subd. (b).) The exclusive representative must “fairly represent each
and every employee in the appropriate unit.” (§ 3544.9.) Breach of a union’s duty to
fairly represent a member constitutes an unfair practice. (Paulsen v. Local No. 856 of
Internat. Brotherhood of Teamsters (2011) 193 Cal.App.4th 823, 830-831.)
We defer to the Board’s interpretation of the Act unless the interpretation is
erroneous. (Fire Fighters, supra, 51 Cal.4th. at pp. 269-270.) This standard “allows
courts to correct a clearly erroneous construction of the [Act] by [the Board] when that
erroneous construction potentially affects a large class of cases and threatens to frustrate
an important policy that the [Act] was enacted to further. Judicial review under this
ground furthers the Legislature’s purpose in creating the [Board] and defining the scope
of its authority.” (Ibid.)
7
Wu contends that because she worked the same hours and performed the same
functions as a represented classroom teacher, the Union is required to represent her under
the Act. The Board disagreed. Necessary to the Board’s finding was that section 3544.9
extends a union’s duty of fair representation to employees classified into the unit it
represents and not to employees claiming to belong in the unit by virtue of their
employment duties. This is not an erroneous interpretation of section 3544.9.
“The purpose of the [Act] is set forth in section 3540: ‘to promote the
improvement of personnel management and employer-employee relations within the
public school systems in . . . California by providing a uniform basis for recognizing the
right of public school employees to join organizations of their own choice, to be
represented by such organizations in their professional and employment relationships
with public school employers, to select one employee organization as the exclusive
representative of the employees in an appropriate unit, and to afford certificated
employees a voice in the formulation of educational policy.’ ” (San Mateo City School
Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 855-856, superseded by
statute on other grounds as stated in California School Employees Assn. v. Bonita United
School Dist. (2008) 163 Cal.App.4th 387.) The Act “shall not supersede other provisions
of the Education Code and the rules and regulations of public school employers which
establish and regulate tenure or a merit or civil service system or which provide for other
methods of administering employer-employee relations, so long as the rules and
regulations or other methods of the public school employer do not conflict with lawful
collective agreements.” (§ 3540.)
The Board’s interpretation furthers these stated purposes by providing certainty to
the Union and the school-district employer of the employees subject to the collective
bargaining unit between them. As Wu acknowledges, the Union has no control over the
classification of any given teacher upon a teacher’s hiring. That job is left to the school
district that hired the teacher. (Ed. Code, § 44916.) Thus, if the Union was empowered
8
to determine the classification of teachers by virtue of its placing them into a specific unit
of representation, the Union could potentially change the tenure, merit, or civil service
rules applicable to teachers simply by placing them into a specific unit of representation
that excludes the classification given to them by the school district. This was something
the Act explicitly declared was outside its purpose. (§ 3540.)
Wu’s reliance on Steele v. Louisville & N. R. Co. (1944) 323 U.S. 192 is
misplaced. Wu relies on this case to support her claim the Legislature intended the duty
of fair representation to extend to employees performing work similar to union members.
In Steele, the United States Supreme Court determined whether the Railway Labor Act
imposed on a union, acting under its authority “as the exclusive bargaining representative
of a craft or class of railway employees, the duty to represent all the employees in the
craft without discrimination [based on] their race.” (Steele, at pp. 193-194.) The
Supreme Court concluded that the Railway Labor Act required the union to represent all
employees during labor negotiations whose job classification fell within the class of
employees represented by the union regardless of the employees’ race or official union
membership. (Id. at pp. 194, 204.)
We note the Supreme Court was interpreting a different act when concluding
Congress (not the California Legislature) intended unions to represent all members of a
craft when negotiating with an employer. Further, the Supreme Court’s holding applies
to a union’s duty to represent all employees, regardless of union membership, during
labor negotiations with an employer (Steele v. Louisville & N. R. Co., supra, 323 U.S. at
p. 199), not to represent nonmember employees during individual disputes with an
employer. A union’s duties are different in these situations, at least under the Act. (See
§§ 3543, subd. (b), 3543.1, subd. (a).) Finally, in Steele, the union refused to represent
employees classified into union positions based on their race. (Id. at pp. 193-194.) Race
is irrelevant to labor negotiations and does not meaningfully distinguish one employee
from another in that context. Job classification, on the other hand, as is the case here,
9
does meaningfully distinguish employees from one another and is relevant to determining
an appropriate unit of employees under the Act. (§ 3545.) Thus, Steele does not support
Wu’s contention that the Legislature intended for the Act to extend a union’s duty of fair
representation to misclassified employees.
Wu also contends she is entitled to union representation given her status as a
substitute teacher. The Board and the Union point out that the Board has repeatedly and
consistently permitted substitute teachers to be excluded from bargaining units containing
teacher members. Neither the Board nor the Union, however, provide us with an
analytical framework from which to conclude the Act provides for such an outcome.
Regardless, upon our own analysis, we conclude it is not an erroneous interpretation of
the Act to find that the Act permits substitute teachers to be excluded from units in which
classroom teachers belong.
Section 3545, subdivision (a) provides: “In each case where the appropriateness
of the unit is an issue, the board shall decide the question on the basis of the community
of interest between and among the employees and their established practices including,
among other things, the extent to which such employees belong to the same employee
organization, and the effect of the size of the unit on the efficient operation of the school
district.” Subdivision (b) provides that “[i]n all cases: [¶] . . . [a] negotiating unit that
includes classroom teachers shall not be appropriate unless it at least includes all of the
classroom teachers employed by the public school employer” with certain exceptions not
applicable here. (§ 3545, subd. (b)(1).)
The Board has interpreted this section “as creating a rebuttable presumption that
all classroom teachers should be placed in the same unit. To rebut the presumption, [the
Union] has the burden to show that its proposed unit is more appropriate than one
including day-to-day substitutes, based on three factors [contained in subdivision (a)]:
(1) community of interest; (2) established practices . . . ; and (3) employer efficiency.”
(St. HOPE Public Schools (2018) PERB Order No. Ad-472 [43 PERC ¶ 86, pp. 4-5].)
10
The Board’s construction provides for exceptions to the general rule that all classroom
teachers (including substitutes) must be represented by the same union. The fact that
there are exceptions demonstrates, at least in the Board’s view, that the Act does not
require a union to represent substitute teachers when it represents other types of
classroom teachers.
This is not a clearly erroneous construction of section 3545. Subdivision (b)’s
seemingly broad mandate applicable to “all cases” is tempered by subdivision (a)’s more
nuanced approach when the appropriateness of a unit is at issue in an individual case.
Only then does the Board consider the relevant employee groups’ community of interest,
established practices, and employer efficiency. The Board put it perfectly in Peralta
Community College District: “There can be no dispute that a primary purpose of the
[Act] is to promote improved employer-employee relations through the medium of
collective negotiations. We believe it to be well established that productive and
stabilizing bilateral decision-making is dependent, in part, on the essential cohesiveness
and compatibility of the various employee constituents of the negotiating unit. While
differences and disagreements are unavoidable and are to be expected, they cannot be so
severe, so out of joint, as virtually to promise disruption and final frustration of the
negotiating process. Certainly, this is the import of the statutory requirement of
community of interest and the reason for the preoccupation with that criterion in the
pertinent literature.
“A literal interpretation of [section 3545, subdivision] (b)(1) is unlikely to serve
the statutory purpose if resulting units, designed to be the vehicles for advancing the
legislative aspiration, prove instead to be the dissension-torn carriers of the system’s
failures. Thus, other theories have been developed.
“One theory simply turns its back on [section 3545, subdivision] (b)(1) and would
establish teacher units solely on the basis of the statutory criteria in [subdivision] (a).
This approach, unfortunately, ascribes to the Legislature, in creating [subdivision] (b)(1),
11
the commission of a meaningless act, a conclusion abhorrent to standard principles of
statutory construction and devoutly to be avoided here.
“Another approach to the dilemma of section 3545 is to concede that all classroom
teachers must be in the same unit–and then to define classroom teachers in a manner
which satisfies one’s own view of which teachers should be included in the unit. This, as
we understand it, is the circular reasoning of [some Board decisions] which has given us
a parochial definition limiting the statutory embrace to those considered to be the ‘core’
of the district’s faculty.
“[¶] . . . [¶]
“Section 3545 remains a burdensome provision. . . . [¶] There seems to be little
doubt that the Legislature meant to minimize the dispersion of school district faculty into
unnecessary negotiating units. It is apparent that unit configurations based on
geographical, or campus considerations, or split along lines of academic disciplines and
teaching specializations are proscribed by [subdivision] (b)(1). But that is not to say that
the Legislature rejected the possibility that critical, negotiation-related differences
between groups of teachers might compel unit separation. We believe that to reduce
those possibilities the Legislature directed this Board to combine all classroom teachers
into a single unit except where an issue of appropriateness is raised and the requirements
of [subdivision] (a), which are then invoked, leave the Board with no other option.”
(Peralta Community College District (1978) PERB Dec. No. 77 [2 PERC ¶ 2214, pp. 7-
10], underscoring & fns. omitted.)
We agree with this reasoning, especially considering the nature of substitute
teachers. There are drastic differences in the Education Code between permanent and
substitute teachers that weaken their community of interest or severely effect employer
efficiency. For example, “[i]n the case of permanent and probationary employees, the
employer’s power to terminate employment is restricted by statute. Substitute and
temporary employees, on the other hand, fill the short range needs of a school district and
12
generally may be summarily released.” (Taylor v. Board of Trustees (1984) 36 Cal.3d
500, 504-505.) Indeed, the Board noted in St. HOPE Public Schools, that substitute and
regular teachers share enough of the same working conditions to establish a community
of interest with one another, but the community of interest is weakened by disparate pay
structures and the limited schedule of substitute teachers. (St. HOPE Public Schools,
supra, PERB Order No. Ad-472, p. 5.)
Accordingly, it is not an erroneous statutory construction to find that section 3545
allows for the exclusion of substitute teachers from representation by teachers’ unions.
Because section 3545 does not require the Union to represent substitute teachers, the
Board properly found Wu’s status as a substitute teacher excluded her from
representation by the Union by virtue of the collective bargaining unit between the Union
and the School District. Whether substitute teachers should be included within the unit
the Union represents is not a question before us. That question would be addressed by
the Board in a unit modification petition. (See Hemet Unified School District (1990)
PERB Dec. No. 820 [14 PERC ¶ 21132, pp. 1-2, fn. 1].) We hold only that the Board did
not commit constitutional or statutory error by finding the Union did not breach its duty
of fair representation to Wu when it refused to represent her as a misclassified employee
or as a substitute teacher.
13
DISPOSITION
The trial court’s order is affirmed. The parties shall bear their own costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/
Robie, Acting P. J.
We concur:
/s/
Hull, J.
/s/
Duarte, J.
14
Filed 1/19/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
REBECCA WU, C092640
Plaintiff and Appellant, (Super. Ct. No. 34-2019-
80003289-CU-WM-GDS)
v.
ORDER CERTIFYING
PUBLIC EMPLOYMENT RELATIONS BOARD, OPINION FOR
PUBLICATION
Defendant and Respondent;
TWIN RIVERS UNITED EDUCATORS,
Real Party in Interest and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County,
Shellyanne Wai Ling Chang, Judge. Affirmed.
Rebecca Wu, in pro. per., for Plaintiff and Appellant.
J. Felix De La Torre, Wendi L. Ross, Laura Z. Davis, David S. Crossen, for
Defendant and Respondent.
Jacob F. Rukeyser, for Real Party in Interest and Respondent.
1
THE COURT:
The opinion in the above-entitled matter filed on December 28, 2022, was not
certified for publication in the Official Reports. For good cause, it now appears that the
opinion should be published in the Official Reports and it is so ordered.
BY THE COURT:
/s/
Robie, Acting P. J.
/s/
Hull, J.
/s/
Duarte, J.
2