Lancaster Elementary School District (PERB 0358E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TEACHERS ASSOCIATION OF LANCASTER,
Charging Party, Case No. LA-CE-1616
Vv. PERB Decision No. 358

LANCASTER ELEMENTARY SCHOOL DISTRICT, November 23, 1983

Respondent.

eet ne See ne et eet et Se et et

Appearances: Charles R. Gustafson, Attorney for Teachers
Association of Lancaster; Steven C. Babb, Attorney (O'Melveny &
Myers) for Lancaster Elementary School District.

Before Tovar, Jaeger and Morgenstern, Members,
DECISION

MORGENSTERN, Member: The Teachers Association of Lancaster
(Association) appeals the attached decision of the Los Angeles
regional attorney of the Public Employment Relations Board
(PERB or Board). In that determination, the regional attorney
dismissed the Association's charge that the Lancaster
Elementary School District (District) violated subsections
3543.5(a), (b) and (c) of the Educational Employment Relations
Act (EERA) by unilaterally adopting a new policy regarding

employees' leaves for jury duty.1l

1EERA is codified at Government Code section 3540 et seq.

FACTUAL 	SUMMARY AND PROCEDURAL 	HISTORY
On August 	3, 	1982, 	the Association 	filed 	its 	first 	unfair
practice 	charge. 	That 	charge 	concerned 	alleged 	changes 	in 	the
school 	calendar 	and 	changes 	in 	the 	special 	education 	program.
The 	District 	allegedly 	declined 	to 	n~gotiate 	as 	to 	these 	topics
because 	it 	believed 	them 	to 	be 	outside 	the 	scope 	of
representation.	representation.
On August 	13, 	1982, 	the 	District 	asserted 	that 	the
Association's 	charge 	was 	untimely 	because 	the 	conduct
complained 	of 	occurred 	more 	than 	six 	months 	prior 	to 	the 	filing
of 	the 	charge.
On 	October 	4, 	1982, 	the 	Association 	filed 	an 	amended 	charge
which 	it 	deemed 	to 	supersede 	the 	initial 	charge. 	The 	amended
charge 	reiterated 	the 	earlier 	allegations 	and 	added 	that, 	as 	of
May 	1982, 	it 	learned 	that 	the 	District 	had 	implemented 	a 	new
evaluation 	procedure 	and 	a 	new 	policy 	regarding 	jury duty 	leave.
On 	November 	16, 	1982, 	the 	Association 	filed 	a 	second
amended 	charge, 	also 	said 	to 	supersede 	the 	previous 	charge
filed 	in October. 	In 	its 	second 	amended 	charge, 	the
Association 	contended 	that 	the 	District 	unilaterally 	altered
the 	policy 	regarding 	jury 	duty 	leave. 	Although 	implemented
during 	the 	1980-81 	school 	year, 	the 	Association 	claimed 	that 	it
first 	learned 	of 	the 	revised 	policy 	near 	the 	end 	of 	the 	1981-82
school 	year. 	In 	paragraph 	F 	of 	its 	charge, 	the 	Association
asserted 	as 	follows:
The 	District 	and 	the 	Association 	have 	agreed
in 	writing 	to 	submit 	this 	matter 	to PERB. 	A

copy 	of 	said 	writing 	is 	attached 	hereto
marked 	Exhibit A.
The 	attached 	document, 	signed 	by 	the 	parties 	on November 	9,
1982, 	reads 	as 	follows:	1982, reads as follows:
Memorandum of Agreement
As 	a 	part 	of 	the 	1982 	Amendments 	to 	the
July 	1, 	1978 	Agreement, 	the Association
agrees 	to 	withdraw 	the 	Unfair 	Practice
Charge 	submitted 	on July 	12, 	1982, 	and
amended 	on October 	4, 	1982, 	except 	for 	the
single 	issue 	of 	the 	District's 	policy 	and
procedure 	regarding 	jury 	duty 	leave.	procedure regarding jury duty leave.
The 	parties 	agree 	to 	allow PERB 	to 	hear 	and
determine 	if 	the 	District 	committed 	an
Unfair 	Practice 	by Herbert 	D. 	Bartelt Jr.,
Ed.D 	instituting 	a 	new memorandum 	entitled
Verification 	of 	Jury Duty Procedures 	to
Principals 	and 	School Secretaries 	dated
September 	1, 	1981.	September 1, 1981.
On March 	17, 	1983, 	PERB's 	regional 	attorney 	advised 	the
parties 	that 	the 	Association's 	charge 	was 	dismissed. 	The 	basis
for 	the 	dismissal 	rests 	on 	the 	regional 	attorney's
determination 	that, 	because 	the 	complained-of 	conduct 	is
prohibited 	by 	provisions 	of 	the 	parties' 	negotiated 	agreement,
the 	matter 	should 	be 	deferred 	to 	the 	contractual 	binding
arbitration 	proceedings.
Two 	documents 	are 	attached 	to 	the 	dismissal 	letter. 	The
first 	is 	a 	letter 	from 	the 	District, 	dated 	November 	23, 	1982,
advising 	the PERB 	regional 	attorney, 	inter 	alia, 	that 	its
position:
.•• 	was 	communicated 	to 	the 	Association 	at
the 	time 	that 	the 	Memorandum of Agreement
attached 	as 	Exhibit 	A to 	the 	Second 	Amended
Charge 	was 	agreed 	to 	by 	the 	parties.
3

••• 	the 	District 	is 	willing 	to 	waive 	any
contentions 	of 	timeliness 	if 	this 	matter 	is
submitted 	to 	arbitration 	and 	is 	willing 	to
proceed to arbitration forthwith.	proceed 	to 	arbitration 	forthwith.
The 	second 	document, 	dated 	December 	7, 	1982, 	is 	from 	the
District 	to 	the 	Association 	confirming 	the 	District's
willingness to waive	willingness 	to 	waive
any 	and 	all 	procedural 	or 	other 	contentions
regarding 	the 	arbitrability of 	the
above-captioned 	case, 	and 	that 	the 	District
is 	willing 	to 	proceed 	forthwith 	to 	arbitrate
the 	merits 	of 	whether 	or 	not 	its 	policy
••• 	violates 	the 	collective 	bargaining
agreement 	between 	the 	District 	and 	the
Teachers Association 	of 	Lancaster.
The 	Association 	submitted 	the 	instant 	appeal 	of 	the
dismissal 	of 	the 	unfair 	practice 	charge 	on April 	6, 	1983. 	It
asserts 	that 	the 	contract 	does 	not 	specifically 	cover 	the
dispute 	and 	that 	the 	District 	stipulated 	that 	the 	instant
charge 	should 	be 	submitted 	to PERB.	charge should be submitted to PERB.
In 	its 	response 	to 	the 	Association's 	appeal 	dated 	April 	22,
1983, 	the 	District 	argues 	that 	the 	dispute 	involves 	the
interpretation 	given 	to 	the 	language 	of 	the 	negotiated
agreement 	and 	that 	its 	agreement 	to 	submit 	the 	matter 	to PERB
was 	no more 	than 	an 	agreement 	to 	submit 	the 	matter 	to PERB's
normal 	complaint 	processing 	procedures, 	including 	an 	assessment
of 	the 	applicability 	of 	the 	deferral 	to 	arbitration 	provision
found 	in EERA. 	The 	District 	alleges 	that, 	at 	the 	time 	the
memorandum of 	understanding 	was 	signed, 	it 	verbally 	advised 	the
4

Association 	that 	it 	would 	urge 	PERB 	to 	defer 	the 	dispute 	to
arbitration.
DISCUSSION
In 	pertinent 	part, 	subsection 	3541.S(a) 	of EERA 	prohibits
the 	Board 	from 	issuing 	a 	complaint
against 	conduct 	also 	prohibited 	by 	the
provisions 	of 	the 	agreement 	between 	the
parties 	until 	the 	grievance 	machinery 	of 	the
agreement, 	if 	it 	exists 	and 	covers 	the
matter 	at 	issue, 	has 	been 	exhausted, 	either
by 	settlement 	or 	binding 	arbitration ••
The Board 	has 	applied 	this 	provision 	and 	has 	deferred 	to
arbitration 	when 	the 	contract 	covers 	the 	matter 	at 	issue 	in 	the
unfair 	practice 	charge 	(Stockton 	Unified 	School 	District
(11/3/80) 	PERB 	Decision No. 	143; 	John 	Swett 	Unified 	School
District 	(12/21/81) 	PERB 	Decision No. 	188) 	and 	where 	the
negotiated 	procedure 	culminates 	in 	binding 	arbitration
(Pittsburg 	Unified 	School 	District 	(3/15/82) 	PERB 	Decision
No. 	199).
In 	the 	instant 	case, 	the 	conditions 	of 	subsection 	3541.S(a)
are 	satisfied. 	The 	parties' 	negotiated 	agreement 	culminates 	in
binding 	arbitration 	and 	the 	Association's 	dispute 	concerns 	the
application 	of 	the 	contractual 	provision 	regarding 	leaves 	of
re	absence 	for 	jury 	duty.t2 	With	gard to this issue, the	regard 	to 	this 	issue, 	the
2Article 	XX, 	section 	4 	of 	the 	contract 	provides 	for
personal 	leaves 	of 	absence 	for 	employees 	called 	to 	jury 	duty.
Section 	4.3 	states:

regional 	attorney 	appropriately 	referred 	to 	the 	standards 	forregional attorney appropriately referred to the standards for
deferral articulated by the National Labor Relations Board in	deferral 	articulated 	by 	the National 	Labor 	Relations 	Board 	in
Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] and	Collyer 	Insulated 	Wire 	(1971) 	192 	NLRB 	837 	[77 	LRRM 	1931] 	and
adopted by PERB in Dry Creek Joint Elementary School District	adopted 	by PERB 	in 	Dry 	Creek Joint Elementary School 	District
(7/21/80) PERB Order No. Ad-8la. She correctly concluded that	(7/21/80) 	PERB 	Order 	No. 	Ad-8la. 	She 	correctly 	concluded 	that
the parties were operating within a stable bargaining	the 	parties 	were 	operating 	within 	a 	stable 	bargaining
relationship and that the contractual language lies at the	relationship 	and 	that 	the 	contractual 	language 	lies 	at 	the
center of the parties' dispute. With regard to the remaining	center 	of 	the 	parties' 	dispute. 	With 	regard 	to 	the 	remaining
Collyer condition, the regional attorney found the DistrictCollyer 	condition, 	the 	regional 	attorney 	found 	the 	District
ready and willing to proceed to arbitration, waiving all	ready 	and 	willing 	to 	proceed 	to 	arbitration, 	waiving 	all
procedural 	defenses. 	In 	support 	of 	this 	conclusion, 	she 	citedprocedural defenses. 	In support of this conclusion, she cited
the documents attached to her decision in which the District	the 	documents 	attached 	to 	her 	decision 	in which 	the 	District
indicated its willingness to proceed to arbitration.	indicated 	its 	willingness 	to 	proceed 	to 	arbitration. 	(See	(See
pp. 3-4, supra.)pp. 	3-4, 	supra.)
The 	issue 	raised 	by 	the 	instant 	case 	concerns 	the 	fact 	that
the 	regional 	attorney's 	dismissal 	does 	not 	mention 	or 	attach
any 	significance 	to 	the 	document 	executed 	by 	the 	parties 	on
November 	9, 	1982, 	which, 	on 	its 	face, 	purports 	"to 	allow PERB
It 	is 	the 	responsibility of 	the 	member 	to
report 	to 	work 	whenever 	the 	member 	is 	not
required 	to 	attend 	jury duty 	service.
The 	Association 	contends 	that 	this 	language 	does 	not
require 	employees 	to 	report 	to 	work 	when 	they 	have 	reported 	for
jury 	duty 	but 	have 	been 	excused. 	It 	urges 	that 	the 	contract
covers 	those 	situations 	where 	an 	employee 	is 	on 	call 	for 	jury
duty 	but 	does 	not 	actually 	report 	for 	jury 	duty 	that 	day. 	The	The
Association 	argues 	that 	the 	past 	practice 	and 	bargaining
history 	support 	its 	interpretation.
66

to 	hear 	and 	determine 	if 	the 	District 	committed 	an 	Unfair
Practice 	•••• "
In 	the 	Association's 	view, 	the 	agreement 	clearly 	and
unambiguously 	establishes 	the 	District's 	willingness 	to 	resort
to PERB's 	unfair 	practice 	procedures 	rather 	than 	the 	grievance
machinery 	to 	resolve 	this 	dispute. 	The 	plain 	meaning 	of 	the
language, 	however, 	does 	not 	so 	provide. 	To 	the 	contrary, 	the
document 	does 	not 	refute 	the 	District's 	contention 	that 	the
agreement 	merely 	expresses 	its 	willingness 	to 	submit 	the 	matter
to PERB's 	normal 	complaint 	processing 	procedure. 	The 	document
itself 	neither 	expressly 	nor 	impliedly 	precludes 	the 	District
from 	raising 	the 	deferral 	argument 	or 	any 	other 	defenses 	before
PERB.
In 	balance, 	since 	the 	Collyer 	deferral 	standards 	are
satisfied 	by 	the 	circumstances 	in 	this 	case, 	the 	onus 	rests
with 	the Association 	to 	establish 	the 	District's 	waiver. 	With
the 	burden 	so 	placed, 	the 	plain meaning 	of 	the 	document 	should
be 	respected. 	Because 	it 	does 	not 	include 	language 	waiving 	the
District's 	defenses, 	it 	should 	not 	be 	read 	as 	foreclosing 	the
District 	from 	asserting 	its 	deferral 	defense.
ORDER
While 	the 	regional 	attorney 	failed 	to 	consider 	the 	parties'
memorandum, 	our 	analysis 	of 	that 	document 	does 	not 	disturb 	the
result 	reached. 	Accordingly, 	rather 	than 	remand 	the 	dispute
for 	review 	in 	light 	of 	the 	agreement, 	we AFFIRM 	the 	regional
attorney's 	decision 	to 	dismiss 	the 	charge 	and 	defer
7

the 	parties' 	dispute 	to 	the 	contractual 	binding 	arbitration
procedure.
Members Tovar 	and 	Jaeger 	joined 	in 	this 	Decision.
8

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' STAi':	TATE OF CALIFORNIA	CF ·:.i.uFO~r-u ...
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HEADOURS
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CEASE DEUXMCJIAN, Governor	cf,:~ !:'lf.Ui<r;1p1 ~ ,Ge>"'frqor
PU~;uc El,\PLOYJ'vH:NT RElATlONS BOARD
Los Angeles Regional Office
3-470 Wilshire Blvd., Suite 1001
Los Angeles, California 90010
(213) 736-3127
March 17, 	1983
Mr. Charles Gustafson
California Teachers Association	California Teac.r:ers Asscx::iation
P.	P.O. Box 92888	0. Box 92883
Los Angeles, CA 90009	!L"S Angeles, CA 	90009
Mr . Steven Babb	~. Steven Babb
O'Melveny & Myers
400 South Hope Street
Los Angeles, CA 90071-2899
RE: DISMISSAL OF UNFAIR PRACTICE CHARGE	RE: DI&'\'JISSAL OF UNFAIR PFACI'ICE CHAB3E
Teachers Association of Lancaster v.	Teachers Association of Lancaster v.
Lancaster Elementary School District, LA-CE-1616	Lancaster Elementarv School District, LA.-C'E-1616
Dear Parties:	~ar Parties:
Pursuant to section 3541. 5 (a) (2) 	of the Employer-Employee Relations
Act (EERA) and Public	li
,
Jl...ct 	(EEAA) 	and Pub 	c E.."ilployment Relations Board 	(PERB) 	Regulation
section 32620 (b) (5) 	the above-captioned charge is hereby	section 32620(b) {5)1, 	the above-captioned charge is hereby
dismissed a~d deferred to arbitration under the collective
ca!'gainir..g agreement in effect between the parties.
The Charging Party, Teachers Association of Lancaster (Association)
alleges that Respondent, Lancaster Elementary School District
(District) violated sections 3543.5(a), (b) and (c) of the EERA by
milaterally implementing a new policy and procedure regarding jury
duty leave. Under the new policy employees who report to jury duty 	duty
in the I'!Drning and shortly thereafter are excused fran such duty for
the remainder of the day, are required to reJ?C)rt back to YrDrk. 	The
Association alleges that the implementation of this policy in late
Spring 1982 was a departure fran past practice, which did not
require that employees refX)rt back to work after finishing 	jury duty
under such circurrstances.
lReferences to the EERA are to Government Cc<le sections 3540
et seq. PE.RB Regulations are codified in California Administrative
Code, Title 8.

March 17, 1983
IA-CE-1616
Page 2
My investigation of the charge revealed the following. The Association
and the District are parties to a collective bargaining agreern2nt
originally effective July 1, 	1978 through June 30, 1981, and thereafter
extended through June 30, 1983. 	Article XX Section 4 of this agreerrent
provides for personal leaves of absence for employees called to jury
duty. 	Section 4.3 of this Article states that:
4.3 	It is the resp::,nsibility of the member of report to
\oi'Ork whenever 	the rnenber is not required to attend jury duty
service.
The District contends t.hat t.11is language supports 	its policy governing
unit members who are ex...'"'1.lSed fran jury duty for 	the day. 	'I'he Association
oontends that this language •...,a5 intended to apply only to those
situations where an employee is not required to rep::>rt at all for 	jury
duty on a given day, and t.Jiat by its action the District departed fran
past practice with regard to leave policy.
Article VI, Section 1.0 of the collective bargaining agreement defines a
grievance as:	grievance as:
(1) 	a staternent/clai:n by a teacher or group of teachers
covered hereby, 	that the District has violated an express
term of this Agreement and that by reason of such violation
the teacher(s) 	rights ~ave been adversely aff2cted •••
Article VII, Section 1.0 provides in pertinent part:
a
Section 5.0 of Article VI provides:
t
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{
I
Article VII, Section 1.0 provides in p:rtinent part:
Grievances which are not settled pursuant to Article VI, 	and
which ti.tie Associaticn desires to contest further, 	and which
involv~ the interpretation or application of thE! Express
terms of this Agrearent, shall be submitted to arbitration
as provided in this Article, but only if the Association
gives written notice to the District of its desire to
arbitrate the Grieva"'lCe within ten 	(10) 	working days after
the termination of Level II of the Grievance procedure.
Section 5.0 of Article VI provides:
the decision of the arbitrator within the limits herein
prescribed shall be final and binding ufCn the parties to
the dispute.

~.arch 17, 	1983
TA-CZ-1616
Page 3
M
Based on the facts stated aro.,e and section 3541.5 (a) 	of the EERA, 	the
charge must be dismissed and deferred to arbitration und~r 	the collective
bargaining agreement.
Section 3541.5 (a) 	states in ~rtinent part:
•••the board shall not do either of the following: . .	the ooard shall not do either of the following:.
(2)	{2) issue a complaint against conduct also prohibited by	issue a canplaint against conduct also prohibited by
the provisions of the agreement between the parties until	the provisions of ti.~e agre~nt between the parties until
the grievance rr.achinery of the agreement, 	if it exists andthe grievance machinery of the agreement, if it exists and
covers the matter at issue, has been exhausted, either by	covers the matter at issue, has been exhausted, eiti.11er by
settlement or binding arbitration.	settlement or binding arbitration.
P.ERB R.Egulation 32620(b}{5) 	requires the P.oard agent processing the
charg':! to "(d)ismiss the charge or any part thereof as provided in
Section 32630 if 	• 	• 	• 	it is determined that a caiplaint may not be
issued in light of Government Code sections 3514.5, 3541.5 or 3563.2 or
because a dispute arising t.mder EEERA is subject to final and binding
arbitration." In Dry Creek Joint Elementary School District (7/21/80) {7/21/80)
PERS Order No. Ad-8la, 	the Public Employment Relations Board 	(PERB)
explained that:
[WJhile there is no st.atutory deferral requirement
Litp0sed on the National Labor Relations Board
{hereafter NLRB) , 	that agency has voluntarily adopted
such a FOlicy l::::oth with regard to post-arbitral and
pr:e-arbitral award situations. 	(Footnote emitted.)
EERA section 3541.5 (a) 	essentially codifies the :p:>lic-y
develope3 by t.,e NLRB regarding def~rral to arbitration
proceedings and awards. 	It is appropriate, 	therefore,
to lo--Jk for guidance to the private sector. 	(Footnote
to Fire Fighters Union v. City of Vallej~ 	(1974) 	12
Cal.3d 608.)
192	In Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] and	In Collyer Insulated Wire 	(1971) 	NLRB 837 	[77 LRRM 19311 	and
subsequent cases, the NLRB articulated standards under which deferral is	subsequent cases, 	the N".LRB articulated standards under which deferral is
appropriate in prearbitral situations. 	These requirements are:	appropriate in prearbitral situations. These requirements are: (1) the 	(1) 	the
dispute must arise within a stable collective bargaining relationship	dispute must arise within a stable collective bargaining relationship
where there is no enmity by the respondent toward the charging party; (2)	where there is no enmity by the respondent toward the charging party; 	(2)
the respondent must be ready and willing to proceed to arbitration and	the respondent must be ready and willing to proceed to arbitration and
must waive contract-based procedural defenses; and (3) the contract andIll.lSt wa:ive contract-based procedural defenses; 	and 	(3) 	the contract and
its meaning must lie at the center of the dispute.	its meaning must lie at the center of the dispute.
'Ihese standards are met with respect to the charge in this case. 	First,
no evidence has been prcduced to indicate that the parties are not
q?erating within a stable collective bargaining relationship. 	Second, by
letters fran its representative, Steven Babb, dated November 23, 1982 and
December 7, 	1982, 	(Exhibits 1 and 2) 	the respondent has indicated its
willingness to proceed to arbitration and to waive all procedural
c-:fenses.
(

March 17, 	1983
LA-CE-1616
Page 4
Finally the issue raised !:Jy this charge that the District unilaterally
changed its jury duzy po~ icy for e-nployees released for 	t.11e day direc~y
Lr1volves an interpretation of Article XX, Section 4.3 of the collective
bargaining agreerrent. 	.?.ccordingly this charge must be deferred to
arbitration and dismissed.
Pursuant to.Public Einpla-jTIEnt Relations Board regulation 32635
{California Adminsitrat.i-;e Ccrle, 	title 8, party III), you may appeal the
refusal to issue a a:ruplaint 	(dismissal} 	to the Board itself.
Right to Appeal
You may obtain a 	review of this dismissal of the charge by filing an
appeal to the Board itself within twenty (20) calendar days after service 	service
of this Notice 	(section 32635(a). 	To be tim:ly filed, 	the original.and
five 	(5) 	copies of such afJP=al must be actually recei•1ed by the Board
itself before the close of business 	(5:00 p.m.) 	on April 6, 1983 or sent
by telegraph or certified Unites States mail postmarked not later 	than
April 6, 1983 	{section 32135). 	The Board's address is:
Public ETiployrnent Relations Board
103118t::i Street
Sacrarrento, CA 	95814
If you file a timely a?P=al of the refusal, any at.her party may file with
the executive assistant to the Board an original and five 	(5) 	copies of a
statement in opp'.)sition ""'ithin twenty 	(20} 	calendar days follcwing 	the
date of service of the Cl:!f'eal 	(section 32635(b}).
Service
All docrnnents authorized to be filed herein except for amendments to the
charge must also be "served" upon all parties to the proceeding, and a and a
"proof of service" must accompany the docurrent filed with the R..ogional
Office or 	the Board itself 	(see section 32140 for 	the requirE:.-d o:,ntents
and a sample form). 	'fue docurrents will be considered properly "ser-ved 11
when personally delivered or deposited in the first-class rrail postage
paid and properly addressed.
Extension of Time
A request for an exter.sion of time in which to file a document with the
Board itself must be Lr1 w-riting and filed with the executive assistant to
the Board at the previously noted address. 	A request for an extension in
.

March 17, 1983
IA-CE-1616
Page 5 5
which to file a document with the Regional Office should be addressed toto
t.,e Regional Attorney. 	A request for an extension must be filed at least
thr2e 	(3) 	calendar days !Jefore the expiration of the ti.rre required for
filing 	t.rie subject dOC'..tre!'lt. 	The request must indicate gCXXJ cause for
the r:osition of each o~~er party regarding the extension and shall be
accanpanied by proof of service of the request UfX)n each party 	(section
32132) -
Final Date
If no appeal is filed within the specified time limits, 	the dismissal
will become f iria.l when the time limits have e.>.-pired.
Vecy truly yours,
Dennis Sullivan
General Counsel
~<tw~
M
Marjorie J. Weinzweig	J. Weinzweig
Regional Attorney
~
MJTti:djm	JW:djm

O'MELVENY & MYERS
400 SOUTH HOPE STREET . 	1800 CENTURY PARK EAST
LOS ANGELES. CALIFSON4 90067589
LOS ANGELES CALIFORNIA 10971-2592 	TELEPHONE 12131 353-9790
TELEX 67:409,
310 NEWPORT CENTER OHFIVE
TELEx 10% 24 10 01 AY ' ZWEWOOHT BEACH. CAUGONIA 92060-0479
CLESMONE (7141 760-9600 . (2131 869-8500
TELEX (7141 720-1307 10901 - 742-2089 um
O'MELVENY 	~:MYERS 	l. ,t '· ..-. '. -
400 SOUTH HOPE S1TFli!cEi 1 ; . ·
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LOS Ar.GELES. :::AL:FOR'ltA-,~S\'7.T-2_59,i ~.	
. - ',, •.. - ...., 	TE.LEX 6? ◄ 0<;, 1
1403 M SERECT N. W
TELKamONE ING2 4
TELEX 49-612
PLACE BC LA CONCORDE
PARIS B' FRANCE
CLEPHONE 265 39-33
TELEX 342-680715
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Te::1..e:x a42~s~071S
OUR FILE NUMBER
481,001-11
N
2
1
Marjorie Weinzweig, Esq.
R
Public Employment Relations Board
3470 Wilshire Boulevard, Suite 1001
Los 	Angeles, 	California 	90010
R
D
November	ovember
23rd	3rd
19 8 2	9 	8 	2
Marjorie Neinzweig, 	Esq.
Regional 	Attorney
Public 	Employment 	Relations 	Board
3470 	Wilshire 	Boulevard, 	Suite 	1001
Re 	Teachers Association 	of 	Lancaster	e
v.v. 	Lancaster 	Elementary 	School
District, 	Case No. 	LA-CE-1616
Dear Ms. 	Weinzweig:	ear Ms. Weinzweig:
In 	response 	to 	your 	letter of 	November 	18 	regarding
the 	above-captioned matter, 	it 	is 	the 	position 	of 	the
Lancaster 	Elementary 	School 	District 	{the 	"District") 	that
PERB 	is 	prohibited 	from 	issuing 	a 	complaint 	in 	this 	matter
at 	this 	time 	because 	of 	the 	restrictions 	imposed 	by 	Government
Code§ 	3541.S{a) (2}.
The 	Second Amended 	Charge 	in 	this 	case 	alle~es
that 	the 	District violated 	the 	Rodda 	Act 	by unilaterally
implementing 	a 	new 	policy 	and 	procedure 	regarding 	jury
duty 	leave. 	As 	I 	understand 	it, 	the 	charge 	specifically
relates 	to 	a 	situation 	in which 	a 	unit 	member 	reports 	to
jury duty 	in 	the morning 	and 	thereafter 	is 	excused 	from 	such
duty 	for 	the 	remainder 	of 	the 	day 	after having 	served 	only
a 	short 	period 	of 	time 	or 	no 	time 	on 	the 	jury. 	The 	District's
policy under 	these 	circumstances 	has 	been 	to 	require 	thepolicy under these circumstances has been to require the
employee 	to 	report 	back 	to 	work 	after being 	excused 	from
jury duty. 	It 	appears 	to 	be 	the 	position 	of 	the 	Teachers
Association 	of 	Lancaster 	(the 	"Association") 	that 	this 	policy
is 	a 	recent 	change 	and 	that 	under 	prior 	policy 	a· unit m~r:tber
was 	not 	required 	to 	report 	back 	to 	work 	in 	these 	circumstances.
Article 	XX, 	Section 	4.3 	of 	the 	collective 	bargaining
agreement 	between 	t.~e 	District 	and 	the 	Association, 	a 	~opy 	of
which 	is 	already 	on 	file 	with 	PERE, 	provides:
"It 	is 	the 	responsibility 	of 	the mernber 	to
report 	to 	work 	whenever 	the 	member 	is 	not
required 	to 	attend 	jury duty 	service."
EXHIBIT IR' -f lf l 13 I T 	i

#2 - Marjorie Weinzweig, Esq. - 11/23/82
arbitration forthwith.
S
f
#2 	- 	~arjorie 	Weinzweig, 	Esq. 	- 	11/23/82
It 	is 	the 	District's 	position 	that 	this 	language
fully 	supports 	its 	policy 	governing 	unit 	members 	who 	are
excused 	from 	jury 	duty. 	Of 	course, 	it 	is 	possible 	that
the 	District's 	reading 	of 	this 	section may 	be 	erroneous,
but 	this 	is 	precisely 	the 	sort 	of 	issue which 	should be
initially 	determined by 	an 	arbitrator 	pursuant 	to
Article VII 	of 	the 	agreement.
Accordingly, 	because 	the 	conduct complained 	of
by 	the Association 	in 	the 	Second 1'..mended Charge 	is 	the
subject of 	Section 	4.3 	of 	Article XX 	of 	the 	agreement,
the 	District 	submits 	that 	PERB 	is 	prohibited 	from 	issuing
a 	complaint 	at 	this 	time 	until 	the 	parties 	have 	exhausted
the 	grievance machinery 	of 	the 	agreement, 	as 	is 	set 	forth
in 	Government 	Code§ 	3541.S(a) (2). 	The District's 	position
in 	this 	matter was 	communicated 	to 	the 	Association at 	the
time 	that 	the Memorandum 	of 	Agreement 	attached 	as 	Exhibit A
to 	the 	Second Amended Charge was 	agreed 	to 	by 	the 	parties.
As 	I 	mentioned 	to 	you 	earlier, 	the 	District 	is 	willing 	to
waive 	any 	contentions 	of 	timeliness 	if 	this 	matter 	is
submitted 	to 	arbitration 	and 	is 	willing 	to 	proceed 	to
arbitration 	forthwith.
Sincerely yours,Sincerely yours,
Staren C. Ball~~ 	C. 	S,~
s&ven C. 	Babb
for 	O'MELVENY 	& MYERS
SCB/rc
cc: 	Charles 	R. 	Gustafson, 	Esq.

O'MELVENY & MYERS
400 SOUTH MOPE STREET 	1600 CENTURY NAME CAST
405 ANGELES. CAUGONIA $3657-929
ICS ANGELES, CALIFORNIA 90071 2899 TELEx 67.4097
TELEPHONE (2131 609.5000 610 NEWPORT CENTER DRIVE
NEWBORT BEACH, CALIFORNIA 92060-0429	TELEX 67-4122 	CLEPHONE (7141 760-9600 . (2:31 609-6090
O'MELVENY 	& 	MYERS"
.. - -'- _ ) :_ ..;·.C?~ ANGELE:S. CAi.J,OR:silA 90071 2899
:~.~•~/ :; .....,;._;_ :::i:--~.("LE:P..,_O,._.E (Zl3l 669•6000
tl O"'. 	Cl· ~I• 'BZTELEX 67•4122
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EilO N~WPOFH C'ENfEq =i~l\1£'.
~E-~ORT BEACH, ~L1=-o~N-1A 92660-~9
TE:LE:?r-tONE 17141 760•9600 · (2131 689•6000
T£L~x <714> 7Z0-•397 ;oo~, . ?42-zoaa um
1095 ~ STRICT, N N
WAS- ND DV D C. 27:19 9057
Andv2 1252 <374300
PLANE DE LA CONCORDE
P-415 8". FRANCE
TELEPHONE 245 39-33
"E-EX d42.56075
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Dec 7 11 09 PM '82 	TELEX (714) 720397 :Do3) . 742-2088 urn
D
1 26,577-27
Charles R. Gustafson, Esq.
Teachers Association of Lancaster
5757 West Century Blvd., Suite #400
P.O. Box 92888
Los Angeles, California 90009
Case No. LA-CE-1616
Dear Mr. Gustafson:
the District and the Teachers Association of Lancaster.
Sincerely yours,
Steven C. Ball
S
fo
r
DeceTil!)er
ecember7th
7th1 	9 	8 	2
9 8 2
Charles 	R. 	Gustafson, 	Esq.
Teachers 	Association 	of 	Lancaster
5757 	West 	Century 	Blvd., 	Suite 	#400
P.O. 	Box 	92888
Los 	Angeles, 	California 	90009
OUR FILE: NUM96:R
OUR FILE NUMBER
26,577-27
Re 	Teachers Association 	of 	Lancaster
Re Teachers Association of Lancaster	v. 	Lancaster 	Elementary 	School 	District,
v.Case	Lancaster Elementary School District,	No. 	LA-CE-·1616-
Dear 	Mr. 	Gustafson:
As 	a 	followup 	to 	my 	November 	23 	letter 	to 	Marjorie
WeinzweigAs a followup to my November 23 letter to Marjorie	in 	connection 	with 	the 	above-captioned 	case, 	a 	copy
Weinzweig in connection with the above-captioned case, a copy	of which 	was 	sent 	to 	you, 	this 	will 	confirm 	that 	the
of which was sent to you, this will confirm that the	Lancaster 	Elementary 	School 	District 	is 	willing 	to 	waive
Lancaster Elementary School District is willing to waive	any 	and 	all 	procedural 	or 	other 	contentions 	regarding 	t~e
any and all procedural or other contentions regarding the	arbitrability 	of 	the 	above-captioned 	case, 	and 	":.ha.t 	-':he
arbitrability of the above-captioned case, and that the	District: 	is 	willing 	to 	proceed 	forthwith 	to 	arbitrate 	the
District is willing to proceed forthwith to arbitrate the	merits 	of 	whether 	or 	not 	its 	policy 	of 	requiring 	unit
merits of whether or not its policy of requiring unit	members 	to 	report 	back 	to 	work 	after 	being 	excused 	from 	jury
members to report back to work after being excused from jury	duty 	violates 	the 	collective 	bargaining 	agreement 	between
duty violates the collective bargaining agreement betweenthe 	District 	and 	the 	Teachers 	Association 	of 	Lancaster.
Sincerely yours,
~~C.~---'
Steven 	Babb 	·
for 	O'MELVENY 	& MYERS
C.
SCB/rc
SCB/rccc: 	Marjorie 	Weinzweig
cc: Marjorie Weinzweig
EXHIBIT 2