Tarkington v. California Unemployment Insurance Appeals Board (Albertson’s Inc.)
(Labor and Employment Law)
Filed March 12, 2009, Second District, Div. One
Cite as 2009 SOS 2081

Doctrine of Equitable Tolling Applies to Parties’ Second Petition

Upon contract negotiations, United Food and Commercial Workers (UFCW) labor union and workers from Albertson’s Ralphs Grocery Co. (Ralphs) and The Vons Company, Inc. (Vons) agreed to act as one bargaining unit and consider a strike against one grocer as a strike against all three grocers.

Workers from the Food 4 Less Food Co., a fourth grocer which was not a party to the negotiations, also agreed to share all revenues and losses resulting from a strike by the union or a lockout by one or more of the grocers. When Vons employees went on strike, Albertson‟s and Ralphs announced lock out all of their union employees except the pharmacists.

During the lockout, both Albertson‟s and Ralphs encouraged some of the employees to either resign from their union membership or return to work under false names and social security numbers.

The strike against Vons and the lockouts by Albertson‟s and Ralphs ended when the three grocers reached a contract. Consequently, employees from Albertson‟s and Ralphs filed claims with the California Employment Development Department (EDD) for unemployment insurance benefits during the 18-week lockout period. However, EDD denied their claims holding that the issue fell within the realm of Unemployment Insurance Code section 1262.

Two Albertson's employees, Gayle Tarkington and Joel Straub (petitioners), appealed the denial to the California Unemployment Insurance Appeals Board (CUIAB).

CUIAB through a decision penned by Administrative Law Judge F.G. Knipe (ALJ Knipe) ruled that employees were ineligible for unemployment benefits. ALJ Knipe also issued an identical decision for Ralphs employees denying employment benefits.

When the Board panel members of CUIAB affirmed ALJ Knipe’s decision, petitioners filed for a writ of written mandate in Los Angeles Superior Court. The petition was considered as a class action against CUIAB and named real parties Albertson’s and Ralphs.

Albertson’s demurred to the petition raising the following issues:

1. Misjoinder of claims against Albertson’s and Ralphs,
2. Class allegations were vague and broad and failed to describe an ascertainable class with a community of interest, and
3. Failure to exhaust administrative remedies

The trial court sustained the demurrer.

Consequently, petitioners filed another petition for mandate against CUIAB and Albertsons as the real party in interest. The trial court again sustained Albertson’s demurrer to such petition as it was time-barred. The trial court opined that petitioners must specifically plead equitable tolling to overcome dismissal.

When petitioners amended their case to include equitable tolling, Albertson’s demurred and filed a motion to strike which the trial court sustained. Hence, this instant appeal.

The California Appeal Court Second Appellate District reversed the trial court’s decision based on the following grounds:

1. Doctrine of equitable tolling
   
   The doctrine of equitable tolling was applied to second petition since the first petition gave employer timely notice. Consequently, it tolled the running of the six-month period.
   
   Moreover, the claims raised in both petitions were similar enough that investigation of the first would put employer in a position to fairly defend the second. Further, petitioners acted reasonably and in good faith in filing the second claim.


2. Administrative remedies had already been exhausted
   
   The class action included members who have already exhausted their administrative remedies. In fact, Tarkington and Straub appealed EDD’s decision to ALJ Knipe. When ALJ Knipe denied their appeal, they went to the CUIAB. The decisions of both ALJ Knipe and the CUIAB squarely addressed the issue of whether Albertson’s employees fell within the ambit of section 1262 hence not entitled to unemployment benefits.
   
   The appeal court cited the case of Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247 whrein the Supreme Court held that to require all putative class to exhaust their remedies “would serve no additional useful purpose” because “nothing more could effectuate the policy of the exhaustion doctrine.”
   
   Hence, trial court acted prematurely in making determinations pertaining to class suitability on demurrer.