A126633 Trial Court Marin County Superior Court Trial Judge Honorable Verna Adams (Marin County Super. Ct. No. CV091167)
The opinion of the court was delivered by: Rivera, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Plaintiffs Kathleen Paulsen and others*fn2 appeal a judgment entered after the trial court sustained without leave to amend the demurrer of defendants Local No. 856 of the International Brotherhood of Teamsters (Local 856) and Joe Martinelli to plaintiffs' putative class action complaint. They contend on appeal that their action was not subject to the exclusive initial jurisdiction of the Public Employment Relations Board (PERB). We affirm.
Our standard of review when considering a challenge to an order granting a demurrer is well settled. " ' "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] . . . [W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] . . ." (Sanchez v. Truck Ins. Exchange (1994) 21 Cal.App.4th 1778, 1781.)
Plaintiffs allege they are current, former, and retired deputy probation officers employed by the County of Marin (the County), and members of Local 856. According to the complaint, Local 856, its agent Martinelli--who had primary authority to represent plaintiffs at the County--and the union leadership entered into a secret deal with the County (a) not to negotiate overtime compensation for plaintiffs and the proposed class although defendants knew plaintiffs were working more than 40 hours a week and were not exempt under the Fair Labor Standards Act of 1938 (29 U.S.C § 201 et seq.) (FLSA); (b) to conceal plaintiffs' right to overtime compensation from them; (c) to misrepresent to plaintiffs and the proposed class that they were "professionals" and therefore exempt from overtime compensation, although defendants knew they were not exempt; and (d) to encourage the union's officers to lie to its membership about the members' rights to overtime compensation under the FLSA. Plaintiffs alleged that defendants continued to conceal plaintiffs' entitlement to overtime compensation from 1995 until March 2009, when the complaint was filed.
Plaintiffs further allege that, in a November 6, 2006, meeting of persons representing the County and the Local 856 (including Martinelli), and a group of Probation Department employees (including plaintiffs), the County announced it might have been " 'out of compliance' " with the FLSA with respect to paying the deputy probation officers overtime, and advised plaintiffs to discuss the matter with their union if they had questions. Plaintiffs discussed the matter with Martinelli, who said defendants did not know anything about the issue, but that defendants would investigate and take appropriate action to grieve the process. However, defendants did nothing to assist plaintiffs and the proposed class members.
In their first cause of action, for breach of the duty of fair representation, plaintiffs allege defendants owed plaintiffs a duty of fair representation, including a duty to disclose material facts that could affect the terms and conditions of employment; that between 1994 and 2007, they knew or should have known that plaintiffs were nonexempt employees who were statutorily entitled to overtime pay and that the use of " 'professional hours' " was a scheme or artifice to defraud plaintiffs of their right to overtime; that defendants conspired with the County to deprive plaintiffs of overtime compensation; and that during that time period defendants engaged in a pattern and practice of breaching the duty of fair representation toward plaintiffs and other proposed class members by (1) wrongfully classifying plaintiffs during negotiations and interactions with the County and plaintiffs as exempt employees, (2) entering into an undisclosed secret agreement with the County to deprive plaintiffs of overtime benefits, (3) failing to disclose to plaintiffs their right to overtime, (4) misleading plaintiffs into believing they were not entitled to overtime compensation and that such compensation could not be negotiated, and (5) engaging in unreasonable conduct.
In their second cause of action, for common law breach of fiduciary duty, plaintiffs allege that defendants, as union representatives, owed plaintiffs fiduciary duties and obligations in all dealings, and that they breached their duty in acting as described in the earlier allegations of the complaint.
In their third cause of action, for fraudulent concealment, plaintiffs allege that from 1994 through the present, defendants knew that plaintiffs were not exempt employees under the FLSA, that plaintiffs were working a significant amount of overtime under the guise of " 'professional hours' " without compensation, that they were entitled to overtime compensation, and that the use of " 'professional hours' " was a scheme or artifice to defraud plaintiffs of overtime compensation; that defendants intentionally, maliciously, and recklessly concealed these facts from plaintiffs and took active steps to cover up their right to overtime pay and benefits; and that plaintiffs were unaware of the facts and relied on defendants' representations to their detriment.
Defendants demurred to the complaint. The trial court sustained the demurrer to each cause of action without leave to amend on the ground it lacked subject matter jurisdiction. In doing so, it ruled: "The 1st Cause of Action for breach of the duty of fair representation falls within the exclusive jurisdiction of the Public Employment Relations Board as an 'unfair labor practice.' [Citations.] Plaintiffs are not exempt from PERB jurisdiction pursuant to Government Code [section] 3511, because they are defined as 'peace officers' in Penal Code [section] 830.5[, subdivision] (a), not Penal Code [section] 830.1. Plaintiffs' further contention, that PERB does not have jurisdiction to hear class action claims, is not supported by their cited authorities available to the court. [¶] The 2nd and 3rd Causes of Action are also within PERB's exclusive jurisdiction, because 'the essence' of these claims is a breach of the duty of fair representation. [Citation.]" The trial court dismissed the complaint and entered judgment in favor of defendants.