Alameda County Superintendent of Schools (PERB 0747E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	ALACO CHAPTER
NO. 615,
Charging 	Party,
v.
ALAMEDA 	COUNTY 	SUPERINTENDENT
OF SCHOOLS,
Respondent.
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) 	Case No. 	SF-CE-934
PERB Decision No. 	747
June 	27, 	1989
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Appearances; 	Patti Roberts, 	Field Representative, 	for California
School 	Employees Association and its ALACO Chapter No. 	615;
Breon, 	Galgani, 	Godino & O'Donnell by Margaret E. 	O'Donnell,
Attorney, 	for Alameda County Superintendent of 	Schools.
Before Porter, 	Craib and Camilli, 	Members.
DECISION
PORTER, 	Member: 	This matter is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by both
parties 	to 	the proposed decision of 	a PERB 	administrative 	law
judge 	(ALJ). 	The ALJ found that the Alameda County
Superintendent of 	Schools 	(Respondent) 	violated 	section
3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act 	(EERA)1 when it refused to bargain a reduction in hours, 	and
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 provides, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
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discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise of 	rights
guaranteed by this 	chapter.
(b) 	Deny to employee organizations rights
guaranteed to 	them by 	this 	chapter.
(c) 	Refuse or fail to meet and negotiate 	in
good 	faith with 	an exclusive 	representative.
when 	it 	dealt directly with 	the 	affected 	group 	of 	represented
employees.
At 	the 	start of 	the 	formal hearing, 	the ALJ raised the 	issue
of whether the matter was 	subject to deferral, 	and directed the
parties 	to 	submit briefs 	addressing this 	issue.2 In his proposed
decision, 	the ALJ 	refused to defer on the 	ground that 	the
Respondent 	failed to 	raise deferral 	in 	its 	answer or by a 	motion
to dismiss 	the 	complaint. 	Consequently, 	the ALJ 	concluded that
Respondent waived 	its 	right to 	raise the deferral 	objection.
DISCUSSION
Initially, 	it must be noted that the ALJ 	issued his
proposed decision in this 	matter prior to the Board's 	issuance 	of
Lake Elsinore School District 	(1987) 	PERB Decision No. 	646.3 In
2The Respondent, 	in its brief, 	argued essentially that the
subject matter of 	this 	case was 	covered by the 	contract wherein
a 	grievance procedure 	culminating 	in binding 	arbitration was
established. 	Respondent 	claimed that 	this 	matter was 	clearly
subject to deferral, 	a nonwaivable 	jurisdictional defense which
could be 	raised 	appropriately 	at 	any 	stage 	of 	the proceeding.
Accordingly, 	the Respondent requested that the ALJ dismiss 	the
instant 	case 	for 	lack of 	PERB 	jurisdiction. 	The 	charging party
argued that Respondent 	failed to raise deferral, 	an affirmative
defense, 	in a timely manner.
3See also Eureka City School District 	(1988) 	PERB Decision
No. 702.
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Lake Elsinore, 	at pages 	17-33, 	the Board held that the
mandatory language of EERA section 	3541.5(a)(2)4 establishes
a 	jurisdictional 	rule requiring 	that 	a 	charge be 	dismissed 	and
deferred 	if 	the 	conditions 	set 	forth 	in 	section 	3541.5(a)(2)
exist, 	and 	expressly overruled prior Board precedent 	holding 	that
such deferral was 	discretionary.5 Furthermore, 	the 	Board noted
in Lake Elsinore that, 	since the matter was 	jurisdictional, 	it
was 	not 	subject to waiver.
In the 	instant case, 	we agree with the ALJ's 	finding that
the 	reduction 	in hours 	dispute 	and 	the 	related bypassing 	claim
are 	arguably 	covered by 	language 	contained 	in the parties'
4Section 3541.5(a)(2) 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice charge, 	except that the board
shall 	not do either of 	the 	following:
(2) 	issue 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. 	However, 	when the charging
party demonstrates 	that 	resort 	to 	contract
grievance procedure would be 	futile,
exhaustion 	shall 	not be necessary.
5The Court 	of Appeal 	affirmed the 	Board's 	Lake 	Elsinore
decision 	in Elsinore Valley Education Association. 	CTA/NEA v,
PERB 	(Lake Elsinore School District) 	(July 28, 	1988) 	E5078
(nonpub. 	opn.).
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agreement.6 Moreover, 	the dispute 	is properly a 	subject 	for
grievance/arbitration, 	and the 	contract provides 	for binding
arbitration as 	the 	final 	step of the grievance procedure.
Accordingly, 	the 	statutory proscription contained 	in 	section
3541.5(a) 	requires 	dismissal 	of the currently pending unfair
practice 	charge 	for 	lack of 	jurisdiction.
6Our dissenting 	colleague 	asserts 	that 	the 	subject 	matter
at 	issue here 	is 	not 	covered by the 	contract grievance machinery.
In support of 	this 	claim, 	the dissent 	interprets 	and relies 	upon
a 	section of 	the parties' 	agreement that was neither raised nor
addressed by the parties 	to 	this 	dispute 	in response 	to 	the ALJ's
specific 	order to brief 	the 	issue 	of deferral 	to 	arbitration.
The 	Respondent 	contended 	that 	the 	contract 	grievance 	machinery
covered 	the 	subject 	matter at 	issue 	and 	that the matter 	should
be deferred. 	The charging party did not dispute this; 	instead,
its 	sole 	contention was 	that 	Respondent 	had waived deferral 	by
failing to raise 	it as 	an affirmative defense 	in a timely manner.
The ALJ, 	by way of 	footnote, 	noted the existence of this
contractual proviso, 	but stated that, 	in the absence of the
parties 	raising the 	issue and/or offering evidence 	as 	to 	its
meaning and their intent, 	he declined to engage 	in the
interpretation of 	this 	ambiguous 	contract 	language. 	We
will 	likewise refrain from doing 	so 	for the 	same 	reasons.
That the meaning of 	the provision is 	unclear and ambiguous
was 	recognized by the ALJ and, 	in fact, 	is 	further highlighted by
the dissenting opinion. 	After 	stating that the provision 	"on its
face" 	precludes 	claims 	cognizable under EERA from being 	subject
to arbitration, 	the dissent goes on to 	state that this 	is 	the
"most reasonable 	interpretation," 	and 	is preferable to a 	literal
interpretation of 	the 	section which would also preclude pure
contract 	claims 	from arbitration. 	Asserting that 	a particular
interpretation 	is 	the 	"most reasonable 	interpretation"
necessarily 	implies 	that the 	section must be 	subject to more
than one 	interpretation and, 	therefore, 	is ambiguous 	and cannot
be 	clear 	"on its 	face." 	We do not think it appropriate 	to
speculate as 	to 	the meaning of 	contract 	language which the
parties 	themselves 	do 	not 	even 	find applicable 	to this 	dispute.
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ORDER
Based upon the 	foregoing, 	the 	unfair practice 	charge 	in Case
No. 	SF-CE-934 	is hereby DISMISSED.
Member Camilli 	joined 	in this 	decision.
Member Craib's 	dissent begins 	on page 	6.
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Member Craib, 	dissenting: 	I do not agree that this 	case
must be deferred to arbitration. 	As 	explained below, 	my review
of 	the parties' 	contract has 	revealed that the grievance
machinery does 	not 	"cover the matter at 	issue" 	as 	required by
Educational Employment Relations Act 	(EERA) 	section 	3541.5,
subdivision 	(a)(2). 	Consequently, 	the Public Employment
Relations 	Board 	(PERB or Board) 	does have 	initial 	jurisdiction to
address 	the merits 	of this 	dispute.
The parties' 	1983-84 	agreement contains the 	following
provision at 	section 	7.6.2.3, 	under the heading 	"Powers 	of 	the
Arbitrator":
He/she 	shall have 	no power to 	rule on any of
the 	following:
Any 	claim or 	complaint 	for which there 	is
another remedial procedure 	or 	course
established by 	law or by 	regulations 	having
the 	force of law, 	including the Rules and
Regulations 	of 	the Office of 	the Alameda
County 	Superintendent 	of 	Schools 	Personnel
Commission.
On 	its 	face, 	this provision precludes 	an arbitrator 	from hearing
a 	claim 	cognizable under EERA, 	for the 	filing 	of 	an unfair
practice 	charge with 	the 	PERB 	clearly represents 	"another
remedial 	procedure 	or course 	established by 	law or by
regulation 	. 	. 	. 	." 	Thus, 	a dispute which is otherwise within
1section 	7.6.2.3, 	if 	read 	literally and out of 	context,
would 	also preclude 	the 	arbitrator 	from hearing 	a pure 	contract
claim, 	for 	such a claim could be pursued 	in the 	courts. 	However,
when viewed in context, 	such a reading is nonsensical, 	for 	it
would preclude arbitration altogether. 	Instead, 	the most
reasonable 	interpretation is 	one where the 	arbitrator has 	the
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usual 	authority to hear a 	claim based on the 	contract, 	except
where 	the 	claim 	is 	also 	cognizable 	in another 	forum under a
theory 	of 	law not based on contract 	enforcement.
the 	jurisdiction of 	PERB 	is 	simply not 	subject 	to arbitration
under the parties' 	contractual 	grievance machinery.
Consequently, 	in this case, 	EERA section 3541.5, 	subdivision
(a)(2), 	does not apply and PERB may properly exert 	initial
jurisdiction.2
While 	the reductions 	in hours were 	announced prior to 	the
expiration of the 	1983-84 	contract, 	they were not 	implemented
until after its 	expiration. 	However, 	the 	subsequent 	contract
(effective July 	1, 	1984 to June 30, 	1985, 	but not executed until
July 	15, 	1985), 	contained a 	section 7.6.2.3 	identical to that
contained in the 	1983-84 	contract. 	Moreover, 	both contracts
contained the 	following provision, 	at 	section 	7.6.2.11:
Any 	action which 	could have 	resulted 	in 	the
filing of a grievance, 	occuring 	[sic] 	during
the period between the 	termination date 	of
this Agreement and the 	effective date of a
new Agreement, 	. 	. 	. 	shall be processed under
the applicable 	Rules 	and Regulations 	of 	the
Office 	of 	the Alameda County 	Superintendent
of 	Schools 	Personnel 	Commission.
Given the use of the term 	"effective date," 	it 	is 	not 	clear 	if
this 	provision applies where 	there 	is 	a gap between the
expiration date of 	the old contract and the 	execution date 	of 	a
2The administrative 	law judge, 	in his proposed decision,
noted the 	content of 	section 	7.6.2.3, 	but was 	unwilling to
consider it without extrinsic 	evidence of the parties' 	intent. 	I
believe that approach to be mistaken, 	for not only 	is 	the
provision clear enough on its 	face, 	but PERB 	should not refuse to
consider 	issues 	which 	could affect 	its 	jurisdiction to 	resolve
the dispute.
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new contract which contains 	a 	retroactive 	effective date. 	In any
event, 	it 	is 	of no 	import whether 	section 	7.6.2.3 	or 	section
7.6.2.11 	applies 	to the dispute herein, 	for under neither
provision can it be 	said that the parties' 	contractual 	grievance
machinery 	"covers 	the matter at 	issue" 	and 	ends 	in binding
arbitration, 	as 	required 	for deferral pursuant 	to 	EERA 	section
3541.5, 	subdivision 	(a)(2). 	Accordingly, 	the Board does have
jurisdiction to address 	the merits 	of this 	dispute.
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