PERB Retains Exclusive Jurisdiction Over Most Unfair Practice Charges

CATEGORY: Client Update for Public Agencies, Public Education Matters
CLIENT TYPE: Public Education, Public Employers
DATE: Oct 07, 2021

Sharon Curcio worked for the Fontana Unified School District (District) as a teacher. While at work, Curcio learned that her personnel file included derogatory statements about her. Curcio asked to review these statements, but the District refused. Curcio then sought assistance from her union, the Fontana Teachers Association (FTA), and the California Teachers Association (CTA).

The FTA and CTA examined Curcio’s request and declined to provide her with an attorney. Curcio then filed an unfair practice charge with the Public Employees Relations Board (PERB) claiming that FTA and CTA breached their duties of fair representation and committed unfair practices in violation of the Educational Employment Relations Act (EERA).

In response, FTA argued that Curcio’s filing was untimely because CTA informed Curcio in May 2016 that it would not pursue her request. Curcio waited until December 2016 to file her charge.  FTA argued that the Government Code prohibits PERB from issuing a complaint more than six months after the filing of the charge. In addition, CTA argued that it did not breach a contractual duty by declining to provide Curcio with an attorney because it was not the exclusive representative of Curcio’s bargaining unit.  PERB dismissed Curcio’s charge and decided not to issue a complaint. After PERB upheld its decision on appeal, Curcio filed a writ petition in superior court alleging that PERB’s appellate decision was an abuse of discretion.

PERB responded, arguing that its decision not to issue a complaint was not subject to judicial review. PERB noted that in general, there is a bar on judicial review of a PERB decision not to issue a complaint. PERB further argued that while the Supreme Court has identified three exceptions to this bar, Curcio did not plead any of them. The trial court agreed with PERB.   Curcio, undeterred, appealed again.

At the Court of Appeal, Curcio argued that PERB’s exclusive jurisdiction to determine whether to issue a complaint is merely a rule of exhaustion of administrative remedies and that she met that requirement.  FTA and CTA countered that PERB had exclusive jurisdiction to determine whether Curcio had alleged an unfair practice. The court agreed with FTA and CTA.

The Court of Appeal explained that Curcio was not required to pursue her claim before PERB as a matter of exhaustion of remedies, but rather as a requirement under the EERA.  This is because the EERA makes PERB the exclusive forum for these claims. PERB’s authority over unfair practices removed the superior court’s power to hear lawsuits alleging the same unfair practices.

When Curcio filed a petition with the superior court to review PERB’s denial of her unfair practice charge, the court ruled against her because she did not plead any one of the three exceptions to PERB’s jurisdiction. Then, when the superior court dismissed her petition, Curcio did not try to appeal it, thus making the decision final. Since Curcio did not appeal the ruling, the Court of Appeal reasoned it did not have jurisdiction to review the superior court’s decision that Curcio had not and could not plead one of the three exceptions. Therefore, the court concluded the superior court ruled correctly.  PERB’s decision should stand since PERB has exclusive jurisdiction to determine whether Curcio pleaded an unfair practice charge.

Curcio v. Fontana Teachers’ Ass’n, 2021 WL 4167860 (Cal. Ct. App. Aug. 23, 2021).


While this case dealt with exclusive jurisdiction under the EERA collective bargaining law, the MMBA, which applies to local agencies, also provides PERB with exclusive jurisdiction over unfair practice charges.  The MMBA at Government Code Section 3309.5 provides “The initial determination as to whether the charge of unfair practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board.”

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