San Ramon Valley Unified School District (PERB 0854E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN 	RAMON VALLEY 	UNIFIED 	SCHOOL
DISTRICT,
Charging 	Party,
v.
SAN RAMON VALLEY EDUCATION
ASSOCIATION, CTA/NEA,
Respondent.
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) 	Case No. 	SF-CO-394
PERB 	Decision No. 	854
December 	7, 	1990
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Appearances: 	Lozano, 	Smith, 	Smith & Woliver by Loren A. 	Carr,
Attorney 	for San Ramon Valley 	Unified 	School 	District; 	Ramon E.
Romero, 	Attorney, 	for San Ramon Valley Education Association,
CTA/NEA.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal by the 	San
Ramon Valley Education Association, 	CTA/NEA 	(Association) 	of 	an
administrative 	law judge's 	(ALJ) 	denial 	of a motion to dismiss
and defer the 	complaint to binding arbitration. 	The 	complaint
alleges 	that 	the Association has 	failed 	and 	refused 	to 	bargain 	in
good faith by: 	(1) 	engaging in a two-day strike on April 	19 	and
20, 	1990 without formal notice to the District; 	and
(2) 	sponsoring a third day of strike on April 27, 	1990, 	thereby
engaging 	in an 	intermittent 	strike.
We have 	reviewed the 	entire 	record, 	including 	the ALJ's
Order 	(attached), 	Association's 	appeal and San Ramon Valley
Unified School 	District's 	(District) 	response, 	and affirm the
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ALJ's 	denial 	of 	the Association's 	motion to dismiss 	and defer 	the
complaint 	to 	binding 	arbitration.
ASSOCIATION'S 	APPEAL
In 	its 	argument that the 	conduct 	in the complaint 	is
arguably prohibited by the 	collective bargaining 	agreement 	(CBA),
the Association refers 	to 	its 	Unfair 	Practice Charge
No. 	SF-CE-1383 	filed against the District. 	In Unfair Practice
Charge No. 	SF-CE-1383, 	the Association alleges that the District
unlawfully 	issued 	notices 	of 	suspension to 	all 	bargaining 	unit
members who participated in the 	strike on April 	19, 	20 	and 27,
1990. 	After receiving a warning letter, 	wherein the regional
attorney 	dismissed 	and 	deferred 	the 	unfair practice 	charge 	to
binding 	arbitration, 	the Association withdrew the 	unfair practice
charge, 	without prejudice, 	and filed a grievance. 	An arbitration
on this 	grievance was 	scheduled to begin on September 	12, 	1990.
The Association 	states 	that 	the 	arbitrator will 	examine 	the
specific 	language of the CBA to decide whether: 	(1) 	the District
violated 	the 	CBA by 	issuing 	notices 	of 	suspension 	to 	bargaining
unit members who participated in the 	strike on April 	19, 	20 	and
27, 	1990; 	and 	(2) 	the bargaining unit members' 	participation in
the 	strike was 	protected under 	the 	CBA.
In 	support 	of 	its position that 	the 	strike 	conduct 	on
April 	19, 	20 and 27, 	1990 	is arguably prohibited by the CBA, 	the
Association cites 	to 	the 	following provisions 	of 	the CBA:
Article XXV, 	Discipline Less 	Than Dismissal; 	Article 	IV,
Nondiscrimination; 	Article VII, 	Employee Rights; 	and Article X,
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Grievance 	Procedure. 	Article XXV provides 	for a 	comprehensive
disciplinary policy 	and procedure which 	authorizes 	the 	District
to discipline bargaining unit members 	only 	for 	"just 	cause" 	and
requires 	progressive discipline 	"except 	for conduct which 	is 	of
such a nature that 	it 	injures 	or threatens 	to 	injure the 	safety
of pupils 	or other employees, 	or causes 	substantial disruption of
the 	educational program." 	Article 	IV prohibits 	the 	District 	from
discriminating 	against 	bargaining unit 	members who participate 	in
"legitimate activities" 	of the Association. 	Article VII
specifically protects 	the 	right 	of 	Association bargaining 	unit
members 	to participate 	in 	"legitimate activities" 	of 	the
Association. 	Finally, 	Article X defines a 	"grievance" 	as 	"an
alleged violation, 	misinterpretation, 	or misapplication of the
term of 	the 	contract which directly affects 	a member(s) 	of 	the
bargaining unit."
The Association asserts 	that 	a 	strike which 	causes
"substantial disruption of 	the 	educational 	program" 	is 	arguably
prohibited 	by 	the 	CBA because 	the 	District 	may be 	authorized 	to
discipline bargaining unit 	members 	who 	engaged 	in 	such 	conduct.
In 	summary, 	the arbitrator will decide whether the 	strike of
April 	19, 	20 and 27, 	1990 	constituted either a 	"substantial
disruption of 	the 	educational program" 	or 	"legitimate 	activity"
of 	the Association. 	The Association asserts 	that the CBA
arguably protects 	the 	strike 	if 	it 	is 	a 	"legitimate 	activity" 	of
w
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the Association or may prohibit 	the 	strike 	if 	it 	is 	a
"substantial 	disruption of 	the 	educational 	program."1
Further, 	the Association criticizes 	the ALJ's 	order 	stating
that 	the ALJ 	failed 	to 	comprehend 	the Association's 	argument.
While the ALJ 	focused on whether the 	conduct, 	i.e. 	failing to
negotiate 	in good 	faith, 	is 	arguably prohibited by the CBA, 	the
Association contends 	that 	a 	strike 	is 	arguably protected by
Articles 	IV and VII 	of 	the CBA. 	The Association also 	contends
that 	a 	strike 	is 	arguably prohibited by Article XXV because 	it
may 	authorize 	the 	District 	to 	discipline 	bargaining unit 	members
who 	engaged 	in a 	strike 	that 	causes 	a 	"substantial disruption of
the 	educational 	program."
In addition, 	the Association 	states 	that 	the ALJ has 	added
another prong to the Board's 	deferral 	test, 	articulated 	in Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646, 	by
focusing 	upon an artificial 	distinction between 	"striking" 	and
"bad 	faith bargaining." 	Specifically, 	the Association asserts
that 	striking 	is 	the 	conduct 	alleged to be unlawful 	and that 	the
ALJ 	erroneously 	found 	that 	a 	matter 	cannot 	be 	deferred 	to
arbitration if the parties' 	CBA is 	silent as to the commitments
by 	either party 	to 	bargain 	in good 	faith.
Finally, 	the Association asserts 	that the 	formal hearing 	in
this 	case 	should be 	stayed pending 	the 	arbitration 	of 	the
In deciding this 	appeal, 	the Board does 	not reach the 	issue
of whether the parties 	may 	include 	a provision 	in the CBA
expressly 	sanctioning 	strike 	activities 	as 	protected 	conduct.
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grievance or, 	in the alternative, 	that the Board 	should 	stay the
arbitration of 	the 	grievance pending 	the 	Board's 	final 	decision.
At the very 	least, 	the Association asserts 	the 	Board 	should 	stay
its 	formal hearing pending 	its decision on this 	appeal.2
DISTRICT'S 	OPPOSITION
Initially, 	the District argues 	that pursuant to 	section
3541.5 	of the Educational Employment Relations Act 	(EERA)3 and
San Diego Teachers Association v. 	Superior Court 	(1979) 	24 Cal.3d
1, 	PERB has 	initial 	exclusive 	jurisdiction to determine whether
the 	strike was 	an unfair practice. 	As PERB, 	and not an
arbitrator, 	has 	jurisdiction to determine whether the
Association's 	strike 	conduct violated EERA, 	the 	District
concludes 	that 	it 	is 	clear that PERB has 	exclusive 	jurisdiction
over this dispute.
The 	District 	also 	asserts 	that 	there 	is 	no provision 	in the
CBA which 	covers 	the 	issue 	of whether 	the Association 	committed
an unfair practice 	by 	failing 	or 	refusing to bargain 	in good
faith. 	Rather, 	the Articles 	quoted by the Association all 	relate
to 	individual 	employee 	rights 	and have 	no bearing 	on the
Association's 	conduct.
It is also important, 	argues the District, 	to distinguish
the 	issues 	involved 	in the 	complaint 	from those presented 	in 	the
20n September 	10, 	1990, 	the Board, 	on its own motion, 	stayed
the hearing 	in case no. 	SF-CO-394 pending 	its 	decision on the
Association's 	appeal. 	(San Ramon Valley Unified School 	District
(1990) 	PERB Order No. 	Ad-212.)
3EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
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arbitration. 	The 	arbitration 	involves 	the 	issue 	of whether the
District's 	proposed 	suspension of 	individual 	employees 	violates
the CBA. 	In contrast, 	the unfair practice 	case 	involves 	the
issue 	of whether 	the Associations's 	conduct 	violated 	its 	duty to
bargain 	in good 	faith. 	As 	there 	is 	no provision in the CBA which
covers 	the 	failure or refusal 	to bargain in good faith, 	the
District 	concludes 	that deferral 	is 	not appropriate.
DISCUSSION
In Lake Elsinore School District, 	supra, 	PERB Decision
No. 	646, 	the Board held that 	section 3541.5(a) 	of EERA
4Section 3541.5(a) 	of EERA states:
(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:
(1) 	Issue a complaint 	in respect of any charge
based 	upon 	an 	alleged unfair practice 	occurring 	more
than six months prior to 	the 	filing of 	the 	charge.
(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. 	The board 	shall 	have discretionary
jurisdiction to 	review the 	settlement 	or arbitration
award 	reached pursuant 	to 	the 	grievance 	machinery
solely 	for the purpose of determining whether 	it 	is
repugnant to the purposes 	of 	this 	chapter. 	If 	the
board 	finds 	that 	the 	settlement 	or arbitration award 	is
repugnant to the purposes of this 	chapter, 	it 	shall
issue 	a 	complaint on the basis 	of 	a 	timely 	filed
charge, 	and hear and decide the case on the merits.
Otherwise, 	it 	shall dismiss the charge. 	The board
shall, 	in determining whether the 	charge was 	timely
filed, 	consider the 	six-month 	limitation 	set 	forth 	in
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established 	that 	an unfair practice 	charge 	must be 	dismissed 	and
deferred 	to 	final 	and binding arbitration 	if 	the 	allegations 	in
the unfair practice 	charge 	are directly 	covered by the provisions
of 	the 	collective bargaining 	agreement between the parties. 5 The
Board held 	that, 	by 	its 	choice 	of prohibitory 	language 	in 	section
3541.5(a) 	of 	EERA, 	the 	Legislature plainly expressed that 	the
parties' 	contractual procedures 	for binding arbitration, 	if
covering the matter at 	issue, 	preclude the Board's 	exercise of
jurisdiction. 	Irrespective of 	respondent's willingness 	to waive
procedural defenses 	in the grievance-arbitration process, 	PERB
has 	no 	legislative 	authority 	to 	exercise 	its 	jurisdiction until
or unless the grievance process 	is 	exhausted, 	either by
arbitration award or 	settlement, 	or 	if 	futility 	is 	demonstrated.
(Eureka City School District 	(1988) 	PERB Decision No. 	702.)
this 	subdivision to have been tolled during the 	time 	it
took the 	charging party 	to 	exhaust 	the 	grievance
machinery.
Subsequent 	to 	the 	Board's 	decision 	in Lake 	Elsinore 	School
----·	District, 	supra	--, 	section 3541.5(a) 	of EERA was amended effective
January 1, 	1990.
To 	determine whether 	the 	allegations 	in an unfair practice
charge must be deferred to arbitration, 	the Board must 	first
examine 	the applicable 	language 	in the CBA. 	In the present 	case,
the Association argues 	that 	four provisions 	of 	the CBA warrant
5While 	the District 	is 	correct 	that 	PERB has 	initial
exclusive 	jurisdiction to determine whether a 	strike 	is 	an unfair
practice, 	section 3541.5(a) 	of EERA also precludes PERB 	from
exercising 	its 	jurisdiction when the 	conduct 	is 	also prohibited
by the provisions 	of the CBA, 	and the CBA has 	a provision for
binding 	arbitration.
.. a
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deferral 	to 	arbitration. 	One of 	these provisions 	is Article X,
Grievance Procedure, 	which defines 	"grievance" 	and provides 	that
the decision of 	the arbitrator 	shall 	be 	final 	and binding.6 The
remaining provisions 	involve 	the 	disciplinary policy
(Article XXV), 	Nondiscrimination (Article IV), 	and Employee
Rights 	(Article VII.)
In essence, 	the Association argues 	that 	since the 	issues 	in
the 	arbitration were deferrable,7 the 	allegations 	in the present
unfair practice charge are also deferrable. 	However, 	the 	fact
that 	the 	issues 	in the 	arbitration were deferred by a 	regional
attorney when 	filed 	as 	allegations 	in an unfair practice 	charge
does 	not mean that 	the 	allegations 	in the present unfair practice
charge must 	also be deferred. 	The 	issues 	and 	allegations 	are 	not
identical. 	The 	arbitration 	involves 	allegations 	against the
District 	that 	it 	issued notices 	of 	suspension to 	certain
bargaining unit members 	in violation of 	the CBA. 	In determining
whether 	the 	District was 	justified 	in 	issuing 	the 	suspension
notices, 	the arbitrator will decide whether: 	(1) 	the bargaining
6There 	is 	no dispute that 	the CBA 	includes 	a provision that
the 	decision of 	the 	arbitrator 	shall be 	final 	and binding upon
the parties. 	(Article X, 	Section G(3).)
70n April 	30, 	1990, 	the allegations 	in Unfair Practice
Charge No. 	SF-CE-1383, 	involving the District's 	threat to 	suspend
bargaining unit members who participated 	in a 	strike, 	were
deferred 	to 	arbitration. 	The 	regional 	attorney determined 	that
Articles 	IV(A) 	and VII 	of the parties' 	CBA covered the dispute
raised by the unfair practice 	charge. 	Upon receipt 	of 	this
letter, 	the Association withdrew Unfair Practice Charge
No. 	SF-CE-1383, 	without prejudice, 	and filed a grievance on
behalf 	of 	all 	bargaining unit members who 	received 	suspension
notices.
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unit members' 	participation in the 	strike violated the CBA
because 	it 	caused a 	"substantial 	disruption of 	the 	educational
program;" 	or 	(2) 	the bargaining unit members' 	participation in
the 	strike was 	a 	"legitimate activity" 	of the Association.
The 	allegations 	in the present unfair practice 	charge do 	not
involve the employees' 	conduct in striking, 	or the District's
conduct 	in issuing 	suspension notices. 	Rather, 	the 	issue 	is 	the
Association's 	conduct. 	Specifically, 	whether the 	strike of
April 	19, 	20, 	and 27, 	1990 constitutes bad faith bargaining in
violation of 	section 3543.6(c) 	of 	EERA. 	While the Association
argues 	that 	a 	strike which 	causes 	"substantial 	disruption of 	the
educational program" 	may be prohibited by the CBA, 	and a 	strike
which 	is 	a 	"legitimate activity" 	of 	the Association may be
protected by the CBA, 	the applicable provisions 	of 	the CBA do 	not
address 	the 	issue of whether a 	strike 	is 	evidence of bad 	faith
bargaining. 	Rather, 	Articles 	IV and VII 	involve a determination
of whether 	certain 	activities 	by 	individual 	employees 	are
protected. 	Similarly, 	Article XXV authorizes 	the District to
discipline 	individual 	employees 	for 	specific 	activities. 	The
Board 	finds 	it 	is 	significant 	that 	the applicable provisions 	of
the CBA do not 	involve the Association's 	conduct, 	and that the
CBA is 	silent 	in regard to 	strike conduct or the parties' 	duty to
bargain 	in good 	faith.8
88Some CBAs 	do 	contain provisions 	that 	the parties 	shall 	meet
and negotiate 	in good 	faith. 	In Calipatria 	Unified 	School
District 	(1989) 	PERB Order No. 	Ad-193, 	the parties' 	CBA contained
a provision 	setting 	forth the 	negotiation procedures, 	including 	a
provision that the 	District 	shall 	meet and negotiate 	in good
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faith with the Association on negotiable 	items. 	However, 	the
Board did not defer the 	complaint, 	as 	the allegations 	involved 	in
the 	unfair practice 	charge 	alleged 	that 	the 	District 	failed 	or
refused to participate 	in good 	faith 	in the 	impasse procedures.
Finally, 	the Association's 	argument 	that 	the ALJ 	failed to
comprehend 	its 	argument 	and 	erroneously 	added 	a 	third prong 	to
the Board's 	deferral test 	in Lake Elsinore 	School 	District,
supraf 	PERB Decision No. 	646 are without merit.
- -
Accordingly, 	as 	the Association's 	strike 	conduct or its duty
to bargain in good 	faith are 	not 	covered by the CBA, 	the 	Board
finds 	that 	the present dispute 	is 	not deferrable 	to binding
arbitration and 	that 	the 	complaint 	should not 	be dismissed.
ORDER
The Board hereby: 	(1) 	DISSOLVES the order for 	stay of
hearing 	(PERB Order No. 	Ad-212); 	(2) 	DENIES the Association's
request 	for 	stay; 	(3) 	DENIES the appeal of the ALJ's Order
denying 	the Association's 	motion to dismiss 	and defer 	the
complaint to binding arbitration; 	and 	(4) 	ORDERS the ALJ to
schedule 	a hearing on the merits 	of 	the 	complaint 	in Case
No. SF-CO-394.
Members 	Shank and Camilli 	joined 	in this 	Decision.
10

8TATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN RAMON VALLEY 	UNIFIED
SCHOOL 	DISTRICT,
Charging 	Party,
v.
SAN 	RAMON VALLEY 	EDUCATION
ASSOCIATION, 	CTA/NEA,
Respondent.
Case No. 	SF-CO-394
ORDER
Loren Carr, 	Lozano, 	Smith, 	Smith & Woliver for San Ramon Valley
Unified School District; 	Ramon E. 	Romero, 	attorney, 	for San Ramon
Valley Education Association, 	CTA/NEA.
INTRODUCTION
On March 	30, 	1990, 	the San Ramon Valley Unified School
District 	(District) 	filed 	an unfair practice 	charge 	against 	the
San Ramon Valley Education Association, 	CTA/NEA 	(Association).
The 	charge was 	amended twice, 	the 	last amended 	charge being 	filed
on April 	25, 	1990.* 	A regional 	attorney of 	the Public 	Employment
Relations 	Board 	(PERB or Board) 	issued a 	complaint on May 	29,
alleging 	that 	certain actions 	by 	the Association 	violated
Educational Employment Relations Act 	(EERA) 	section 3543.6(c).2
A timely 	answer was 	filed by the Association on June 	19, 	and
was 	amended on July 	3. 	In its 	answer, 	the Association alleged
1 Unless 	noted otherwise, 	all dates are 	1990.
2 The 	EERA 	is 	codified at Government Code 	3540 	et. 	seq.
Section 3543.6(c) 	reads, 	in relevant part:
It 	shall 	be unlawful 	for an employee organization to:
(c) 	Refuse 	or 	fail 	to meet 	and 	negotiate 	in 	good 	faith
with a public 	school 	employer of 	any 	of 	the 	employees
of which 	it 	is 	the exclusive representative.
)
)
)
)
)
)
)
)
)
)
)
______________ )

that 	the 	complaint 	should 	be 	dismissed 	as 	the 	alleged 	offenses
listed 	in 	the 	complaint 	should be 	deferred 	to 	binding
arbitration.
On August 	1, 	the Association 	filed a Motion to Dismiss
Complaint 	and 	Defer 	to 	Binding Arbitration. 	The 	District 	filed
timely opposition to the Motion on August 	8. 	The 	formal 	hearing
in this matter is 	scheduled for August 	16 arid 	17.3
DISCUSSION
The 	complaint 	in this 	case 	alleges 	that 	the Association violated
its 	duty to bargain 	in good 	faith.4 The 	conduct 	at 	issue 	is
striking. 	Specifically, 	on April 	19, 	20 and 27, 	the employees
represented by 	the Association 	engaged 	in 	a work 	stoppage,
providing 	no prior notice 	to 	the 	District 	of 	the 	strike. 	The
District 	alleges 	such action violates 	the duty to bargain 	in good
faith. 	The Association contends 	that 	this 	matter 	is 	arguably a
violation of 	the collective bargaining 	agreement, 	and 	is 	subject
to 	binding 	arbitration.
Under EERA 	section 	3541.5(a)(2)5 and 	the 	Board's 	decision 	in
Lake Elsinore School District 	(1987) 	PERB Decision No. 	646, 	PERB
3 An 	Informal 	Conference 	did 	not 	result 	in 	settlement 	of 	the
dispute.
4 See note 	1 	supra.
' . 	. 	. 	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. 	. 	. 	.
N2

has 	no 	jurisdiction to hear an unfair practice 	complaint 	if 	(1)
the 	conduct 	alleged 	to 	have 	violated 	EERA also violated 	the
parties' 	collective bargaining agreement; 	and 	(2) 	the agreement
provides 	for binding arbitration. 	The 	latter requirement has
indisputably been met as Article X, 	Section G(3) 	of the 	contract
provides 	that where 	a 	grievance proceeds 	to arbitration 	the
arbitrator's 	decision 	shall 	be 	final 	and binding.6
3. 	The decision of 	the arbitrator
shall 	be 	final 	and binding.
The key issue here, 	however, 	is whether the conduct that 	is
subject of the complaint, 	i.e. 	failing to negotiate 	in good
faith, 	is also prohibited by the contract.
The Association 	alleges 	that 	striking 	is 	arguably prohibited
by two 	separate 	section of 	the contract. 	Article 	IV, 	Section A,
NONDISCRIMINATION 	reads:
A. 	Regarding 	the 	administration of 	the
provisions of this Agreement, 	neither
the 	District 	nor the Association 	shall
discriminate 	against 	any 	office 	or
employee 	of 	the 	District 	in violation of
the law; 	on the basis of race, 	color,
creed, age, 	sex, 	national origin,
political affiliation, 	domicile, 	martial
status, 	physical handicap, 	or membership
or participation 	in 	the 	legitimate
activities 	of 	a 	recognized 	employee
organization. 	(Emphasis 	added.)
Article VII, 	EMPLOYEE RIGHTS 	likewise reads:
All 	employees 	shall have 	the 	right to become
members 	and participate 	in 	legitimate
activities 	of 	employee 	organizations.
Conversely, 	all 	employees 	shall have the
right 	not to be 	become members 	or not to
participate 	in 	such 	organizational
activities.
33

The Association alleges 	that the 	issue of whether 	striking
is 	a 	"legitimate activity" 	of 	the recognized employee
organization is at the heart of this dispute, 	and 	since 	contract
interpretation 	is 	a matter 	for arbitration, 	the 	issue 	should be
deferred.
The Association's argument, 	however, 	is not persuasive. 	The
District's 	charge 	alleges 	a 	violation 	of 	duty 	to bargain 	in 	good
faith. 	The 	conduct of 	striking 	is not the 	final 	issue. 	Nor 	is
it 	merely 	to be determined whether 	such 	conduct 	is 	a 	legitimate
activity of an employee organization. 	Rather, 	this 	case must
resolve whether the Association's 	conduct, 	either per 	se or 	in
the 	totality of 	the 	circumstances, 	evidenced bad 	faith
bargaining. 	The 	contract 	is 	silent as 	to 	commitments 	by 	either
party to bargain 	in good 	faith. 	Thus, 	this matter cannot be
deferred.
Furthermore, 	the Association misreads 	the 	collective
bargaining agreement. 	The 	sections 	cited above, 	EMPLOYEE 	RIGHTS
and NONDISCRIMINATION, 	deal with 	employee 	and Association 	rights
and protection. 	Striking, 	if 	it is not a 	"legitimate activity,"
is 	not prohibited by the contract. 	Instead, 	employees who 	engage
in activity that 	is 	not 	"legitimate" 	merely lose 	the protection
of 	these 	sections. 	Such an argument would be 	raised by the
District 	in response to 	an unfair 	filed by the Association. 	This
dispute, 	however, 	involves the District's rights vis-a-vis 	the
Association's 	conduct. 	Thus, 	the matter is 	still 	not covered by
contract, 	and is not deferrable.
A
	4

Pursuant to California Administrative Code, 	title 	8,
section 	32305, 	this 	Order 	shall become 	final unless 	a party 	files
a 	statement 	of 	exceptions with the 	Board 	itself 	at 	the
headquarters 	office 	in Sacramento within 	20 	days 	of 	service 	of
this Decision. 	In accordance with PERB Regulations, 	the
statement 	of 	exceptions 	should 	identify 	by page 	citation 	or
exhibit number the portions of the record, 	if 	any, 	relied upon
for 	such 	exceptions. 	See California Administrative Code,
title 	8, 	section 	32300. 	A document 	is 	considered 	"filed" 	when
actually received before 	the 	close 	of 	business 	(5:00 p.m.) 	on the
last day 	set 	for 	filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United 	States 	mail, 	postmarked 	not 	later
than the last day set for filing 	. 	. 	. 	." 	See California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of 	exceptions
and 	supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to this 	proceeding. 	Proof of 	service 	shall
accompany 	each 	copy 	served 	on a party 	or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 	8, 	sections
32300, 	32305 and 32140.
ORDER.
The 	Motion to 	Dismiss 	the Complaint 	and 	Defer 	to Arbitration
is hereby DENIED.
August 8, 	1990
MARTHA 	GEIGER
Administrative 	Law 	Judge
5