San Diego County Office of Education * * * OVERRULED by Yuba City Unified School District (1995) PERB Decision No. 1095 * * * (PERB 0880E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS CHAPTER #568,
Charging Party,
v.
SAN DIEGO COUNTY OFFICE OF
EDUCATION,
Respondent.
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) 	Case 	No. 	LA-CE-2894
PERB Decision No. 	880
May 21, 1991
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Appearance: 	Littler, Mendelson, Fastiff & Tichy by William Wood
Merrill, Attorney, for San Diego County Office of Education.
Before Hesse, Chairperson; Shank and Camilli, Members.
DECISION
CAMILLI, Member: 	This case is before, the Public Employment
Relations 	Board 	(PERB or Board) on appeal by the San Diego County
Office of Education 	(County or COE) from a PERB administrative
law judge's 	(ALJ) denial of its Motion to Dismiss the complaint
based upon deferral to a prior arbitration award.
The California 	School Employees Association and its Chapter
#568 	(CSEA or Association) 	filed a charge on August 	22, 	1989,
alleging violations of the Educational Employment Relations Act
(EERA) 	section 	3543.5 (a) and 	(b).1 A complaint was issued on
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(a) and 	(b) state:
It shall be unlawful 	for a public 	school
employer to do any of the following:
* * * OVERRULED by Yuba City Unified School District
(1995) PERB Decision No. 1095 * * *

June 	1,
	1990,
	alleging
	COE
	violated
	EERA
	section
	3543.5(a)
	and
(b)
	by.changing
	the
	shift
	of
	six
	employees
	(night 	custodians)
because
	of
	their
	attempt
	to 	receive
	a
	shift 	differential
	payment
under
	the
	parties'
	collective
	bargaining
	agreement
	(CBA
	or
Agreement)
. 2 On
	June
	19, 	1990,
	the
	County
	filed
	its
	answer,
	and
alleged
	as
	an
	affirmative
	defense
	that
	the
	unfair 	practice
	charge
was
	improperly
	before
	PERB
	because
	all
	allegations
	contained
therein
	were
	a
	matter 	of
	contract
	interpretation
	and
	charging
(a)
	Impose
	or
	threaten 	to
	impose
	reprisals
on
	employees,
	to 	discriminate 	or
	threaten 	todiscriminate 	against
	employees,
	or 	otherwise
to
	interfere
	with,
	restrain,
	or
	coerce
employees
	because
	of
	their
	exercise 	of
	rights
guaranteed
	by
	this
	chapter.
	For
	purposes 	of
this
	subdivision,
	"employee"
	includes
	an
applicant 	for
	employment
	or
	reemployment.
(b)
	Deny
	to
	employee
	organizations
	rights
guaranteed
	to
	them 	by
	this
	chapter.
CSEA
	originally
	alleged
	a
	violation
	of
	section 	3543.5(c), 	but
	on
June 	1, 	1990,
	the
	Los
	Angeles 	Regional
	Office 	of
	PERB
	received
	a
letter
	from
	CSEA
	which,
	although
	it
	was
	called
	a
	first
	amended
charge, 	expressed
	a
	desire 	to
	withdraw,
	without
	prejudice, 	the
allegation
	of
	a
	violation
	of
	section
	3543.S(c).
2
It
	is
	alleged
	that
	the 	Association 	asserted 	the
	employees'
right 	to 	receive
	a
	shift 	differential
	under
	the
	newly
	negotiated
Article
	15.2.2 	of 	the
	CBA,
	which
	reads:
Notwithstanding
	section
	15.2.1
	above,
	when
	at
least
	1/2
	of
	an 	employee's
	regularly 	assigned
work
	shift 	is
	between
	9
	p.m. 	and
	6
	a.m.
inclusive,
	he
	shall 	receive
	a
	shiftdifferential
	of 	seven 	and
	one-half 	percent
(7 	1/2%)
	in 	addition 	to 	his 	hourly
	rate 	of
pay
	for 	the 	entire 	shift.
It
	is 	further 	alleged 	that
	COE,
	in 	retaliation 	for 	this 	protected
activity,
	and
	in 	violation 	of
	EERA
	sections 	3543.S(a) 	and
	(b),
subsequently 	changed
	the 	employees'
	shift
	such
	that 	the
	employees
would
	not
	be
	entitled 	to
	a
	shift 	differential
	under 	theagreement. 
2

party
	had
	failed
	to
	exhaust
	its
	contractual
	remedies.
	On
	that
same
	day,
	COE
	also
	filed
	a
	motion
	to
	dismiss
	under
	EERA
	section
3541.5
3
and
	PERB
	Regulation
	32646.
4
In
	the
	motion
	to
	dismiss,
3
section
	3541.5
	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
	agreementbetween
	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
	shallissue
	a
	complaint
	on
	the 	basis
	of
	a
	timely
filed
	charge,
	and
	hear
	and
	decide
	the 	case
	on
the 	merits
..
Otherwise,
	it
	shall
	dismiss 	thecharge.
4PERB
	Regulations
	are 	codified
	at
	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq.
	PERB
	Regulation
32646
	states, 	in 	pertinent 	part:
(a)
	If
	the 	respondent 	believes
	that
	issuanceof 	the 	complaint
	is
	inappropriate
	either
because
	the 	dispute
	is
	subject 	to 	final
	and
binding
	arbitration, 	or
	because 	the 	charge
	is
untimely, 	the 	respondent
	shall 	assert
	such
	a
defense
	in
	its
	answer 	and
	may 	move
	to
	dismiss
the 	complaint, 	specifying 	fully 	the 	legal
	and
factual 	reasons 	for
	its
	motion.
(b)
	If 	the
	Board 	agent 	determines
	that 	thedefenses 	raised
	by
	the 	respondent 	pursuant 	to
3

the
	County
	argued
	that
	the
	charge 	should
	be
	deferred 	to
arbitration
	as
	all
	allegations
	contained
	therein
	are 	subject
	to
final
	and
	binding
	arbitration
	under
	the
	parties'
	CBA. 	A
grievance
	was
	alleged 	to
	be
	currently
	pending
	on
	these 	matters.
On
	August 	29,
	1990,
	the
	ALJ
	issued
	an
	order
	denying
respondent's
	motion
	to
	dismiss 	complaint.
	On
	September 	12, 	1990,
COE
	filed
	an
	appeal
	of 	the
	ALJ's
	order
	denying
	its
	motion,
	a
request 	for
	a
	stay
	of 	the 	hearing
	and
	a
	request 	for
	an
	expedited
appeal. 	In
	its
	appeal, 	the
	County
	stated,
	for 	the
	first
	time,
that
	an
	arbitration
	award 	had
	been
	issued
	on
	August 	24, 	1990.
Until
	th~s 	appeal, 	the
	ALJ
	was
	unaware
	of
	the
	issuance 	of 	the
arbitration
	award.
On
	September 	12, 	1990,
	with
	the 	appeal, 	the
	County
	filed
	a
motion
	for 	reconsideration
	of
	the 	order
	denying 	motion
	to
	dismiss
and
	a
	request 	for
	continuance 	of
	the 	hearing.
	On
	September 	14,
1990,
	the
	ALJ
	issued
	an Order 	denying
	the
	County's
	motion 	and
	its
request 	for
	a
	continuance 	of 	the 	hearing.
On
	September 	14, 	1990,
	COE
	filed
	with 	the
	Board
	itself
	a
motion
	for 	prehearing 	determination
	that 	collateral
	estoppel
applies 	to 	the
	prior 	arbitration
	award 	and
	also
	a
	request 	for
continuance 	of 	hearing.
	On
	September 	18, 	1990,
	the
	Board, 	on
	its
section
	32646(a)
	do
	not 	require 	dismissal 	of
the 	complaint, 	the
	Board
	agent
	shall
	deny
	the
respondent's
	motion,
	specifying 	the 	reasons
for 	the 	denial.
	The 	Board
	agent's 	denial 	of
respondent's
	motion
	to 	defer
	an
	unfair
practice
	charge 	to 	final
	and 	binding
arbitration
	may
	be 	appealed 	to 	the
	Board
itself 	in 	accordance 	with 	the 	appeal
procedures 	set 	forth 	in 	section
	32635.
4

own
	motion,
	ordered
	a
	stay
	of
	the
	hearing
	pending
	resolution
	of
this
	appeal.
	(San 	Diego 	County
	Office
	of
	Education
	(1990)
	PERB
Order
	No.
	Ad-213.)
The
	ALJ's
	orders
	and
	the
	parties'
	papers,
	both
	in
	support 	of
and
	in
	opposition
	to
	the
	motion,
	analyzed
	this
	case
	as
	a
pre-arbitration 	deferral
	matter.
	The
	ALJ
	issued
	two
	orders,
utilizing
	a
	pre-arbitration
	analysis 	in
	both.
	In 	the 	order
denying
	respondent's
	motion
	to
	dismiss 	complaint,
	the
	ALJ
concluded
	that
	the 	section
	(b)
	violation
	was
	not
	deferrable,
	as
the
	parties'
	Agreement
	neither 	prohibited 	the
	conduct
	alleged 	to
deny
	the 	Association's
	right
	to 	represent
	its
	members
	nor 	allowed
the 	Association 	to
	enforce
	its
	own
	contractual
	rights
	by
	filing
	a
grievance. 	(State 	of 	California
	(Department
	of
	Parks
	and
Recre~tion)
	(1990)
	PERB
	Decision
	Nos.
	810-S 	and 	810a-S.
(Parks
	and
Recreation);
	State
	of 	California 	(California
	Department
	of
Forestry
	and
	Fire 	Protection)
	(1989)
	PERB
	Decision
	Nos.
	734-S 	and
734a-S
	(Forestry
	and
	Fire 	Protection);
	Temple
	City 	Unified
	School
District
	(1989)
	PERB
	Decision
	No.
	782; 	Temple
	City 	Unified
	School
District
	(1989)
	PERB
	Order
	No.
	Ad-190.)
The
	ALJ
	found
	that
	the
	(a)
	violation
	was
	not
	deferrable
because
	the Association 	could 	not
	assert
	the 	bargaining
	unit
members'
	protected 	rights
	by
	filing
	a
	grievance.
	The
	ALJ's
analysis 	of 	the
	(a)
	violation 	takes 	into
	account 	the 	fact 	that
the 	grievance, 	although
	it
	asserted 	the 	rights 	of 	individual
employees,
	was
	filed 	in 	the
	name
	of 	the 	Association.
	The ALJ
rejected
	COE's 	argument
	that,
	under 	South
	Bay 	Union 	School
5

District
	(1990)
	PERB
	Decision
	No.
	791,
	affirmed
	sub
	nom.,
	South
Bay
	Union
	School
	District
	v.
	Public
	Employment
	Relations
	Board
(1991)
	228
	Cal.App.3d
	502
	(
__
	Cal.Rptr.
__
]i
	and
	Chula
	Vista
City
	School
	District
	(1990)
	PERB
	Decision
	No.
	834, 	employee
organizations
	have
	a
	statutory 	right
	to
	file
	grievances
	in
	their
own
	name
	notwithstanding
	contractual
	language.
	The
	ALJ
distinguished
	those 	cases
	on
	the 	basis
	that:
	(1)
	both 	cases
determined 	only
	that
	the
	employer's
	insistence 	to
	impasse
	on
	a
proposal
	rejecting
	the 	exclusive
	representative's 	right 	to
	file
	a
grievance
	in
	its
	own
	name,
	a
	non-mandatory
	subject 	of 	bargaining,
violated
	EERA
	section
	3543.5(c);
	and 	(2)
	neither
	case
	presented
the 	question 	of
	deferral
	of
	an
	exclusive
	representative's
	charge
that 	retaliation
	conduct
	violated
	employee
	rights.
	In
	addition,
the
	ALJ
	questioned whether
	the
	arbitrator
	had
	the
	power
	to
	go.•
outside 	the 	contract
	and
	rely
	on
	the 	Association's
	statutory
right 	to
	file
	the 	grievance
	in
	its
	own
	name
	as
	asserting
bargaining
	unit
	employees'
	rights 	to
	be
	free
	from
	reprisals
	under
EERA
	section 	3543.5(a).
In 	the 	order
	denying
	respondent's
	motion
	for
reconsideration, 	the
	ALJ
	responded
	to 	the
	arbitration
	award,
	but
nonetheless
	utilized 	pre-arbitration 	deferral
	cases
	and
	concepts
to 	analyze 	the 	issues. 	Preliminarily, 	the
	ALJ
	noted
	that
	the
arbitrator, 	in 	finding 	the 	employer's 	conduct 	did 	not
	constitute
a
	reprisal, 	failed 	to 	cite 	or 	rely
	upon
	section
	27.2 	of 	the
	CBA,
entitled
	"Nondiscrimination.
11
	This 	provision prohibits
	a
	broad
range 	of 	discrimination, 	including discrimination 	against
6

bargaining
	unit
	members
	for
	participation
	in 	legal
	Association
ac
t
1v1	
'
	't'
ies.
5
As
	concerned
	the
	(a)
	violation,
	the
	ALJ
	found
	that
	although
the
	award
	discussed
	the 	issue
	of
	reprisal
	against 	the
	employees
and
	concluded
	that
	there
	was 	no
	violation,
	the
	arbitrator
	did 	not
discuss 	the
	issue
	of 	the
	employees
1
	assertion
	of
	their
	rights
through
	the 	Association
	such
	as
	is
	alleged
	in
	the
	complaint
before
	PERB.
	Furthermore,
	the
	award
	did
	not
	contain
	an
	analysis
of
	CSEA 1 s
	right
	to
	assert
	the
	rights
	of
	its
	members
	to 	the
statutory
	protections
	of
	EERA
	section
	3543.S(a).
	The
	ALJ
concluded
	that
	the
	conduct
	alleged
	in
	the
	complaint
	is
	neither
prohibited
	by
	the
	Agreement
	nor
	a
	matter
	covered
	by
	the 	grievance
machinery
	of
	the
	CBA,
	and
	therefore
	dismissed
	the
	motion.
As
	concerned
	the
	(b)
	violation,
	the
	ALJ
	found
	that
	the
allegation 	that
	COE
	denied
	the 	Association
1 s
	representational
rights
	is
	not
	deferrable
	because
	the
	Agreement 	does
	not
	prohibit
the 	alleged
	conduct
	(i.e.,
	the 	denial 	of 	the 	Association
1 s
	right
5
section
	27.2
	states:
The
	Office
	and
	the
	CSEA
	agree
	that
	the
provisions 	of
	this
	Agreement
	shall
	apply
	to
all
	members
	of 	the 	bargaining
	unit
	without
discrimination,
	and
	in 	carrying 	out
	their
respective 	obligations
	under
	this
	Agreement,
neither 	party will 	discriminate 	against
	any
employee
	because 	of
	such
	individual
1 s
	race,
color, 	national 	origin, 	ancestry, 	religion,
socioeconomic
	status, 	marital 	status, 	or
membership
	in 	legally 	constituted
organizations,
	sex 	(including 	sexual
harassment), 	handicap 	or 	age,	
Q..t:
participation 	or 	non-participation 	in
legitimate
	Union
	activities.
(Emphasis 	added.) 
7

to
	represent
	its
	members).
	The
	ALJ
	based
	her 	conclusion
	on
	the
following
	facts:
	(1)
	the 	Association
	cannot
	enforce
	its
	own
contractual
	rights
	through
	the
	grievance 	procedure;
	(2)
	the
"Association
	rights••
	section
	of
	the
	collective
	bargaining
agreement
	(Article
	IV)
	does
	not 	address
	protected
	employee·
rights;
	and 	(3)
	the
	nondiscrimination
	section
	of
	the
	collective
bargaining
	agreement
	applies
	only
	to
	employees.
	The
	ALJ
	stated
that
	the
	Board
	has
	deferred
	a
	section
	(a)
	charge 	alone
	where
	the
contract 	prohibits
	only
	the
	violation
	of
	employee
	rights
	and
	not
those 	of 	the 	Association.
	(Parks
	and
	Recreation;
	Forestry
	and
Fire 	Protection.)
Based upon
	a
	review
	of
	the
	entire
	record, 	the
	Board
	hereby
reverses 	the
	ALJ's
	orders
	on
	both
	motions
	for 	the
	reasons
	set
forth
	below.
DISCUSSION
Where
	an
	arbitration
	award
	has
	issued
	which
	covers
	a
	matter
at
	issue 	in
	a
	complaint 	before
	PERB,
	the 	determination 	as
	to
whether
	the
	complaint 	should 	be
	dismissed
	in
	whole
	or 	in 	part
should
	be 	based
	upon
	a
	post-arbitration
	repugnancy
	analysis
	as
opposed
	to
	a
	pre-arbitration deferral 	analysis.
	Under
	section
3541.S(a)
(2)
	of
	EERA, 6
where 	an
	arbitration
	award
	has 	been
reached 	pursuant 	to 	the 	grievance 	machinery
	of 	the
	parties'
	CBA,
the 	Board's
	jurisdiction 	to
	review 	such 	award
	is
	"solely 	for 	the
purpose 	of 	determining whether
	it
	is
	repugnant 	to 	the 	purposes 	of
this 	chapter." 	Furthermore, 	the 	Board's
	jurisdiction 	in 	this
6
see 	footnote 	3, 	supra. 
8

regard
	is
	discretionary,
	as
	opposed
	to
	the
	mandatory
jurisdictional
	requirement 	concerning
	pre-arbitration deferral
matters.
	(EERA
	sec. 	3541.5(a)(2), 	supra.) 	In
	Lake
	Elsinore
School
	District
	(1987)
	PERB
-Decision
	No.
	646,
	(July
	28, 	1988,
affd.
	nonpub.
	opn., 	4th
	Dist.
	Court
	of
	Appeal)
	(Lake
	Elsinore)
the
	Board
	stated:
In 	reading
	section
	3541.5
	as
	a
	whole,
	while
the
	first
	proviso
	is
	intended
	to
	operate
	as
	a
jurisdictional 	limitation
	on
	the
	Board's
authority 	to 	issue
	a
	complaint
	where
	thematter
	is
	covered
	by
	the
	parties'
	grievanceprocedures
	and
	binding
	arbitration,
	the
statute
	goes
	on
	to 	vest 	the
	Board
	with
discretionary
	jurisdiction
	to
	(1)
	review
	such
arbitration
	and
	settlement
	awards
	for
repugnancy
	and
	(2),
	if
	the
	Board
	finds
repugnancy,
	to 	issue
	a
	complaint.
(Lake
	Elsinore,
	supra,
	PERB
	Decision
	No.
	646,
at
	pp.
	25-26.)
In
	accord 	with
	the
	above,
	the
	first
	determination.
in
	a
	case
such 	as
	this
	should
	be whether
	the
	arbitration
	award
	covers
	the
matter
	at
	issue.
	If
	so,
	the
	Board 	must
	utilize
	a
	post-
arbitration
	repugnancy
	analysis 	to
	determine 	whether,
	in
	its
discretion,
	the
	Board
	should
	exercise
	jurisdiction.
1.
	Alleged
	violation
	of
	EERA
	section
	3543.5{a).
In
	Dry
	Creek
	Joint
	Elementary 	School
	District
	(1980)
	PERB
Order
	No.
	Ad-81a,
	the
	Board
	adopted
	the 	standard 	enunciated
	by
the 	National
	Labor
	Relations
	Board
	(NLRB)
	in 	the 	cases 	of
Spielberg 	Manufacturing
	Company
	(1955)
	112
	NLRB
	1080 	[36
	LRRM
1152]
	(Spielberg)
	and
	Collyer 	Insulated
	Wire 	(1971)
	192
	NLRB
	837
(77
	LRRM
	1931]
	(Collyer) 	for 	post-arbitration 	deferral.
	The
9

Spielberg/Collyer
	standards
	for
	determining
	whether
	deferral
should 	apply
	are
	as 	follows:
1.
	The
	matters
	raised 	in
	the
	unfair
practice
	charge
	must
	have 	been
	presented
	to
and
	considered
	by
	the
	arbitrator;
2.
	The
	arbitral
	proceedings
	must
	have 	been
fair
	and
	regular;
3.
	All
	parties
	to 	the
	arbitration
proceedings
	must
	have
	agreed
	to
	be
	bound 	by
the
	arbitral
	award; 	and
4.
	The
	award 	must
	not
	be
	repugnant
	to 	theNational
	Labor
	Relations
	Act, 	as
	interpreted
by
	the
	NLRB.
(Dry
	Creek
	Joint
	Elementary 	School
	District,
supra,
	p . 	4 . )
In
	Olin 	Corporation
	(1984)
	268
	NLRB
	573
	[115
	LRRM
	1056]
(Olin), 	the
	NLRB
	stated:
	"It
	hardly
	needs
	repeating
	that
	national
policy 	strongly
	favors 	the 	voluntary
	arbitration,
·of
disputes.
11
(Olin, 	supra,
	p. 	574.)
7
The
	NLRB
	then
	stated:
. 	we
	adopt
	the
	following 	standard
	for
deferral 	to
	arbitration
	awards.
	We
	would
find
	that
	an
	arbitrator
	has
	adequately
considered 	the 	unfair 	labor 	practice
	if
	(1)
the 	contractual 	issue
	is
	factually 	parallel
to 	the
	unfair
	labor
	practice 	issue,
	and 	(2)
the
	arbitrator
	was
	presented 	generally with
the 	facts 	relevant 	to 	resolving 	the 	unfairlabor
	practice.
	[Fn.
	omitted.] 	In
	thisrespect, 	differences,
	if
	any, 	between
	the
contractual
	and
	statutory
	standards 	of 	review
should 	be 	weighed 	by
	the
	Board 	as
	part
	of
	its
determination 	under
	the 	Spielberg 	standards
of 	whether 	an 	award
	is 	"clearly
	repugnant"
	tothe
	Act
....
	Unless
	the
	award
	is
	"palpably
7
see 	also 	the
	U.S. 	Supreme
	Court 	cases 	referred 	to 	as 	"the
Steelworkers 	Trilogy," 	Steelworkers 	v. 	American 	Manufacturing
Company
	(1960)
	363 	U.S. 	564 	[46
	LRRM
	2414]; 	Steelworkers 	v.
Warrior 	and 	Gulf 	Navigation
	Company 	(1960) 	363 	U.S. 	574 	[46
	LRRM
2416;
	Steelworkers 	v. 	Enterprise
	Wheel 	and 	Car 	Corporation 	(1960)363 	U.S. 	593 	[46
	LRRM
	2423]. 
10

wrong,"
	[Fn.
	omitted.]
	i.e.,
	unless 	the
arbitrator's
	decision
	is
	not
	susceptible 	to
an
	interpretation
	consistent
	with
	the
	Act,
	we
will
	defer.
(Id.,
	p.
	574.)
The
	NLRB
	further 	stated
	that
	it:
.	
would
	require
	that
	the
	party
	seeking
	to
have
	the
	Board
	[NLRB]
	reject
	deferral
	and
consider 	the
	merits 	of
	a
	given 	case
	show
	that
the
	above
	standards
	for
	deferral
	have
	not
been met. 	Thus,
	the
	party
	seeking
	to
	have
the
	Board
	[NLRB]
	ignore
	the 	determination 	of
an
	arbitrator
	has
	the
	burden
	of
	affi~matively
demonstrating
	the 	defects
	in
	the
	arbitral
process
	or
	award. 	[Fn.
	omitted.
] 8
(Id.,
	p.
	574.)
To
	determine 	whether
	the
	arbitration
	award
	meets
	the
standards 	enunciated
	in
	Spielberg·and Olin,
	we
	must
	first
	look
	to
the
	award.
	The
	facts
	at
	issue 	in
	the
	arbitration
	were
	as
follows.
	Six
	custodians
	asserted
	that
	the
	County
	violated 	the
CBA
	when
	it
	changed
	their 	shift
	to
	begin
	one
	hour
	earlier
	in
order 	to
	avoid 	having
	to
	pay
	a
	shift 	differential
	required
	under
the
	Agreement.
	The
	County 	became 	aware
	of 	the 	asserted
applicability
	of
	the 	contractual 	provisions
	only
	when
	the
employees 	sought
	to
	enforce
	their 	rights
	under
	the 	contract 	to
receive 	the
	shift 	differential
	payment.
	It
	was
	claimed
	that
	the
COE
	was
	"guilty 	of
	failing 	to 	negotiate 	in
	good
	faith
	and
imposing
	reprisals
	and
	discriminating 	against 	the 	custodians 	for
gaining
	a
	night
	shift 	differential."
	It
	was
	furthe~
	claimed
	the
County 	"changed
	the 	custodians' 	hours
	to
	deny 	them 	wage,
	hour 	and
8
In 	determining 	the 	appropriate 	burden 	of 	proof, 	the
	NLRB
overruled
	its
	previous 	decision 	in
	Suburban 	Motor
	Freight
	(1980)247
	NLRB
	146 	[103
	LRRM
	1113].
11

working
	conditions
	acquired 	during
	negotiations."
	The
	grievance
.also 	stated 	that
	"the
	nexus"
	between"the
	negotiations
	and
	the
County's
	actions
	was
	well
	established.
The
	arbitrator
	stated
	the
	pertinent
	issues
	before
	him
	as
follows:
.	
did 	the
	County
	Office/Employer
	violateArticles
	I, 	II,
	VIII,
	X
or
	XV
	of
	the
collective
	bargaining
	agreement?
If
	so,
	what
	is
	the 	appropriate
	remedy?
9
The
	arbitrator
	characterized 	the 	Association's 	position
	as
claiming
	that
	the
	employer
	violated 	the
	collective
	bargaining
agreement
	by
	failing
	to 	negotiate 	in
	good
	faith
	and
	imposing
reprisals
	against 	the 	grievants 	for
	asserting
	their
	contract
rights.
The
	arbitration
	award
	states, 	in pertinent 	part:
While
	I
	did 	not 	find
	as 	very
	persuasive 	the
Employer's 	arguments
	that
	the 	decision 	to
change
	the
	hours
	was
	based
	upon
	earlier
considerations 	or
	of
	other 	business
conditions 	nevertheless
	I
	do
	not 	agree
	that
because
	the
	hours
	were 	changed
	as
	a
	result
	of
the
	demand
	for
	shift 	differential 	that 	thisconstituted
	a
	violation
	of 	the
	Agreement.
	To
the 	contrary,
	as
	articulated
	by
	the
	Employer,
I
	found
	persuasive
	that
	the 	decision 	to
change
	the
	hours
	was
	predicated
	on
	the 	basisof
	economics,
	i.e.
	to
	save
	money .
.	
the 	complaints
	and
	grievances
	by
	thecustodians 	brought
	to
	light
	an
	additional
economic
	liability
	which 	had
	not 	been
contemplated
	by
	either 	party
	under
	this
agreement.
9
The
	cited provisions 	of 	the
	Agreement 	concern 	thefollowing: 	Art.
	I,
	Agreement;,Art.
	II,
	Recognition; 	Art. 	VIII,Transfer/Reassignment; 	Art.
	X,
	Hours
	of
	Employment;
	Art.
	XV,
Salary. 
12

...
	the
	evidence
	does
	demonstrate
	that
there
	was
	a
	legitimate
	budgetary 	concern, 	as
a
	result
	of 	the
	unintended
	result
	of
	this
language,
	and
	also 	the
	absence
	of
	any
	other
intent
	by
	the
	Employer
	to
	have
	retaliated
against 	these 	individuals
	seeking
	their
benefits.
	On
	this
	record
	I 	am
	satisfied 	that
the
	change
	was
	made,
	not 	as
	a
	form
	of
reprisal
	or
	punishment
	but
	rather
	by
	an
attempt
	by
	the
	Employer
	to
	reduce
	the
unexpected
	additional 	cost
	of 	the
	2.5%
	extra
shift 	differential.
	Since
	this
	was
	an
unintended
	result
	of
	the 	negotiated
	language,as
	acknowledged
	by
	the
	Union
	witnesses
	also,
I
	could 	not
	find
	that
	the
	Employer
1 s
	actions
constituted
	improper
	action
	on
	its
	part
	or
more
	particularly
	a
	violation
	of 	the
collective
	bargaining
	agreement.
	Simply
	put,the
	Employer
	consistent
	with
	its
	obligations
under
	Article
	X,
	gave
	the
	requisite
	notice
and
	then
	made
	the
	change
	in
	the
	schedule.
Under
	the
	standards
	set 	forth 	in
	Spielberg
	and
	Olin,
	the
Board
	finds
	that
	the 	issue
	decided
	in
	the
	arbitration
	award
	is
factually 	parallel
	to 	the
	unfair 	labor
	practice 	issue
	before
u S .
10
In 	the
	arbitration
	award,
	the
	arbitrator
	stated 	the 	issue,
in 	part,
	to
	be whether
	the
	County 	imposed
	reprisals
	and
discriminated 	against 	the 	custodians 	for 	attempting 	to 	gain
	a
night
	shift 	differential.
	The
	arbitrator
	found
	that
	the
	County
1 s
actions 	did 	not
	constitute
	a
	reprisal,
	but, 	rather,
	were
	in
keeping 	with
	its
	rights
	and
	obligations
	under
	the
	parties
1 	CBA.
We
	note
	that 	section
	27.2 	of 	the
	Agreement,
	prohibiting
discrimination,
	was
	not
	cited 	in 	the 	grievance 	or 	the
	arbitration
award
	as
	one
	of 	the 	sections 	alleged 	to
	be
	violated.
•
10
we
	note 	that
	no
	party 	contends
	that 	the 	arbitrationproceedings 	were 	not
	fair
	and
	regular, 	or 	that 	the 	parties 	did
not 	agree 	to 	be 	bound 	by
	the 	award.
13

Nonetheless,
	the
	Board
	finds
	that
	the 	issue
	decided
	by
	the
arbitrator 	is
	factually
	parallel
	to
	the
	unfair
	labor
	practice
alleged
	in
	the
	complaint.
In
	Teledyne
	Industries.
	Inc.
	(-1990)
	300
	NLRB
	No. 	99
[
__
	LRRM
	__
),
	the
	NLRB
	addressed
	a
	case
	similar 	to
	the 	case
currently
	before
	the
	Board.
	In
	Teledyne
	Industries.
	Inc.,
	supra,
the
	NLRB
	rejected
	the
	NLRB
	judge
1 s
	determination
	that
	the
arbitration
	award
	was
	repugnant
	to
	the
	purposes
	of 	the 	National
Labor
	Relations
	Act
	(NLRA).
	In
	that
	case, 	the
	arbitrator
	found
persuasive 	the
	employer
1 s
	response
	to 	the
	claim 	of
reprisal/discrimination.
	The
	employer
	claimed
	that
	the
	employee
was
	insubordinate
and 	had
	broken
	work
	rules
	and
	was
	discharged
for
	that
	reason
	and
	not
	because
	of
	his
	union
	activities.
	The
NLRB
	judge
	refused
	to 	defer 	to 	the
	arbitration
	award,
	stating
that
	the
	arbitrator
	had
	not
	been
	presented with
	an
	issue
	under
the
	NLRA
	and
	therefore 	the 	issues
	were
	not
	parallel.
	The
	judge
also
	determined
	that
	the
	arbitrator
	had
	decided
	significantly
different
	issues
	because
	he
	was
	never 	asked
	to
	review
	the
employee
1 s
	discharge 	in 	light
	of 	the 	nondiscrimination 	clause
under
	the 	applicable 	contract.
11
In
	that
	case, 	the
	NLRB
	found
	that
	the 	contractual 	issue
	was
factually 	parallel 	to 	the 	unfair 	labor 	practice 	issue.
	The
factual 	questions 	the
	arbitrator
	decided were: 	(1) 	whether
	the
verbal 	warning 	issued 	to 	the
	employee, 	which
	precipitated 	the
11
The
	applicable 	contract provision
	was 	a
	general
nondiscrimination 	clause 	very 	similar 	to 	the
	one
	at 	issue 	in 	thecase 	before 	us. 	(See 	fn. 	4, 	supra.)
14

conference
	room
	"disciplinary"
	meeting,
	was
	proper;
	and 	(2)
.whether
	and
	to
	what
	degree
	the
	employee's
	insubordinate
	conduct
during
	the
	meeting
	warranted
	his
	discharge.
	The
	NLRB
	found:
...
	the 	factual
	questions 	considered
	by
	the
arbitrator
	are
	virtually
	coextensive with
those
	that
	would
	be
	considered
	by
	the
	Board
[NLRB]
	in
	a
	decision
	on
	the
	statutory
question 	regardless
	of
	whether
	the
	General
Counsel's 	theory 	of 	the
	violation
	was
	that
Goodwin's
	discipline
	was
	motivated
	by
	his
assertedly 	protected
	union 	conduct
	at
	thetoolshed with
	Jones
	or
	during
	the
	conference
room
	meeting,
	or
	by
	his 	status
	as
	a
	union
steward.
(Teledyne
	Industries,
	supra,
	p.
	7.)
The
	case
	before
	us
	is
	strikingly 	similar 	to
	that
	of
	Teledyne
Industries, 	Inc.,
	supra. 	In
	the 	present
	case, 	the
	County
responded
	to 	the
	allegation
	of 	discrimination
	by
	stating 	that
	the
alleged
	adverse
	action
	(i.e.,
	changing
	the 	custodians'
	shifts)
was
	not
	a
	violation
	of 	the 	contract,
	but
	was
	in
	accord 	with
	the
parties'
	Agreement, 	and,
	was
	not 	motivated
	by
	discrimination.
The
	ALJ
	in 	this
	case 	accepted 	the
	employer's
	version 	of 	the
	facts
as
	true,
	as 	did 	the
	NLRB
	judge
	in 	the
	Teledyne
	case,
	and
therefore
	found
	there
	was 	no
	violat~on 	of 	the 	contract.
Under
	the 	standards 	enunciated
	in
	Novato
	Unified
	School
District
	(1982)
	PERB
	Decision
	No. 	210
	(Novato),
	the
	elements
which 	must 	be 	proven
	in
	a
	discrimination 	action 	are:
	(1)
	that
the
	employee 	engaged
	in protected 	activity;
	(2)
	that 	the
	employer
had 	knowledge
	of
	such
	participation;
	(3)
	that 	the
	employer 	took
adverse 	action 	against 	the
	employee; 	and 	(4)
	that 	the 	action
	was
motivated, 	or
	would
	not 	have 	been 	taken, 	but 	for 	the 	protected
activity. 
15

The
	arbitrator's
	determination,
	which
	credited
	the
	County's
justification
	for
	its
	action,
	took
	into
	consideration 	the
	same
factual
	issues
	which
	the
	Board 	would
	consider
	under
	a
	Novato
analysis.
	Therefore,
	the
	Board
	finds
	that
	the 	issues
	decided
	by
the
	arbitration
	award
	are
	factually
	parallel
	to
	the
	allegations
of
	the
	complaint.
The
	Board
	further
	finds
	that
	the
	arbitrator
	was
	presented
generally
	with
	the
	facts 	relevant 	to 	resolving 	the
	unfair 	labor
practice
	charge.
	The
	evidence
	relevant 	to 	the 	contract
	violation
alleged
	in
	the
	arbitration,
	including
	evidence 	of
	the
	Couhty
1 s
justification
	for
	its
	action,
	is
	the
	same
	evidence
	which 	would 	be
relevant 	to
	a
	claim
	of
	discrimination/reprisal
	before
	PERB.
Furthermore,
	the
	Board
	cannot
	find,
	based
	upon
	the
	entire
record 	before 	us,
	that
	the
	award
	is
	"palpably
	wrong"
	i.e.,
	that
the
	arbitrator
1 s
	decision
	is
	"not
	susceptible 	to
	an
interpretation
	consistent
	with
	the
	Act." 	(Olin, 	supra, 	p. 	574.)
Accordingly,
	the
	Board
	finds
	that
	the
	arbitration
	award
	is
	not
repugnant
	to
	EERA,
	and,
	therefore, 	defers 	to 	the
	award, 	and
affirms 	the 	dismissal 	of 	the
	charged
	violation
	of
	EERA
	section
3543.S(a).
2.
	Alleged
	violation
	of
	EERA
	section
	3543.S(b).
The
	allegation 	of
	a
	violation
	of 	section
	3543.S(b)
	was
	not
raised 	before 	the
	arbitrator
	nor 	decided
	in 	the 	arbitration
award. 	Although
	the 	arbitration
	award
	refers 	to 	the
"Association's 	position," 	there
	was
	no 	evidence 	taken, 	nor
determination
	made,
	concerning 	the 	alleged 	violation 	of 	the
16

Association
1 s
	right
	to 	represent
	its
	members
	under
	EERA
	section
3543.S(b).
	Thus,
	with
	respect 	to
	the
	EERA
	section
	3543.S(b)
allegation,
	a
	pre-arbitration
	analysis 	applies.
In 	the
	pre-arbitration deferral
	cases 	of 	Forestry
	and
	Fire
Protection
	and
	Parks
	and
	Recreation, 	the
	Board
	held:
...
	where
	conduct
	allegedly
	violates
	both
employee 	and
	employee
	organization
	rights,
and
	the
	parties'
	collective
	bargaining
agreement
	only
	prohibits
	the
	violation
	of
employee
	rights,
	only
	the
	employee
	charge
should
	be
	deferred.
(Parks
	and
	Recreation, 	supra, 	p.
	6,
	citing
Forestry
	and
	Fire 	Protection, 	supra.)
The
	analysis 	applied
	by
	the 	majority
	in
	Parks
	and
	Recreation
is
	instructive
	for
	purposes
	of 	determining
	the 	propriety
	of
deferring
	the
	3543.S(a) 	charge while
	remanding
	the
	(b)
	charge
	to
an
	ALJ
	for
	hearing. 	In
	that
	case, 	the
	CBA
	defined
	11
grievance"
	to
include
	a
	dispute
	between
	the 	Association
	and
	the 	State
"involving 	the
	interpretation, 	application, 	or
	enforcement
	of 	the
express
	terms
	of
	this
	Contract."
	(Emphasis
	added.)
	While
	the
CBA
	did 	contain 	express
	terms
	incorporating, 	in
	essence, 	the
employee
	rights
	guaranteed
	by
	section
	3519(a)
	of 	the
	Ralph
	C.
Dills
	Act
	(Dills 	Act),
12
the
	CBA
	did 	not 	incorporate 	the
	language
12
Ralph
	C.
	Dills
	Act
	is
	codified
	at
	Government
	Code
	section
3512
	et
	seq. 	In
	Parks
	and
	Recreation, 	the
	parties'
	Memorandum
	ofUnderstanding,
	section 	2.6, 	provided:	
·
The
	state
	and
	CAUSE
	shall
	not
	impose
	or
threaten 	to
	impose
	reprisals
	on 	employees,
	to
discriminate 	or 	threaten 	to 	discriminate
against
	employees
	or 	otherwise
	interferewith,
	restrain 	or 	coerce 	employees 	because 	of
the 	exercise 	of
	their 	rights
	under 	the
	Ralph
C.
	Dills
	Act 	or
	any
	right 	given by
	thiscontract. 
17

of
	the
	Dills
	Act
	section
	3519(b),
	making
	it
	unlawful
	for
	the
state
	to
	deny
	rights
	to.employee
	organizations.
	Thus,
	the
	right
the
	Association
	was
	asserting
	before
	PERB
	under
	section
	3519(b)
of 	the 	Dills
	Act
	(the
	right
	to
	be
	free
	from
	interference
	in
representing
	its
	members
	at
	investigatory
	interviews)
	was
	not
specifically
	grievable
	by
	the 	Association
	under
	the
	CBA.
Consequently, 	while
	the 	section
	3519(a)
	charge
	was
	properly
deferrable,
	the
	requirement
	for
	deferral 	that
	the
	"grievance
machinery
	of
	the
	agreement
	...
	cover
	the 	matter
	at
	issue
11
	was
not
	satisfied
	in
	Parks
	and
	Recreation with 	regard
	to
	the
3519.S(b) 	charge.
	The
	fact
	that
	the
	same
	facts
	gave
	rise
	to
	both
the
	3543.S(a)
	and 	(b)
	violations
	did 	not
	compel
	a
	result 	that
both 	charges 	should
	have 	been
	deferred 	in
	Parks
	and
	Recreation.
The
	conduct
	underlying 	the
	(a)
	violation
	was
	a
	denial 	of
	the
employee's
	right
	to
	have
	a
	representative
	at
	an
	investigatory
interview; 	the
	grievance 	procedure
	in
	the
	CBA
	was
	specifically
available 	to 	the
	employee
	to
	remedy
	that
	interference
	with
	an
employee
	right.
	The
	conduct
	underlying 	the
	(b}
	violation
	was
	the
denial 	of 	the 	Association's 	right 	to 	represent 	the
	employee
	at
	an
investigatory 	interview; 	the 	grievance 	procedure
	was
	not
specifically 	available 	to 	the 	Association 	to
	remedy
	a
	denial 	of
that 	right.
In 	the 	instant
	case, 	the 	charged
	violation 	of 	Association
rights
	was
	based 	on
	the 	fact 	that 	the 	alleged 	reprisals 	against
member
	employees 	followed 	the 	Association's 	attempt 	to 	enforce
	a
contractual 	provision.
	The
	CBA
	does 	not 	provide 	the 	Association
18

with 	access
	to
	binding
	arbitration
	to
	litigate
	the
	Association's
protected
	right
	to 	represent ~ts
	members.
	(Dills
	Act,
	section
3515.5;
	EERA,
	section
	3543.1.)
Since,
	in
	this
	case, 	the
	arbitration
	award
	covers
	only
	the
(a)
	allegation,
	and
	does
	not
	concern
	the
	(b)
	allegation,
	and
	the
contract
	does
	not 	provide 	the 	Association with
	a
	remedy
	for 	the
alleged
	violation
	of
	its
	own
	rights,
	the
	Board
	will
	not
	defer 	the
(b)
	allegation,
	but
	will
	remand
	to
	the
	Chief
	ALJ
	to
	allow
	for
	a
hearing
	on
	the
	(b)
	violation.
CONCLUSION
As
	to
	the 	alleged"violation
	of
	EERA
	section
	3543.S(a),
because
	the
	Board
	finds
	that
	the
	arbitration
	award
	covers
	the
matter
	at
	issue
	and
	is
	not 	repugnant
	to 	the
	purposes 	of
	the
	EERA,
the
	Board
	will
	defer 	to 	the
	arbitration
	award.
As
	concerns
	the 	alleged
	violation
	of
	EERA
	section
	3543.5(b),
the
	Board
	finds
	that 	this
	issue
	was
	not
	raised
	and
	decided
	by
	the
arbitration
	award.
	Furthermore,
	the
	Board
	has
	held
	that
	where
conduct
	is
	alleged 	to 	violate
	both
	employee 	and 	employee
organization
	rights,
	and
	the
	parties' 	collective
	bargaining
agreement 	covers 	only
	employee
	rights,
	only 	the
	allegation
concerning
	employee
	rights 	is
	deferred 	to 	arbitration.
Therefore, 	the
	Board
	will
	not 	defer 	to 	the
	arbitration
	award
	nor
dismiss 	the 	alleged 	violation 	of
	EERA
	section 	3543.S(b).
ORDER
The
	motion
	to 	dismiss 	as
	to 	the 	alleged 	violation 	of
	EERA
section 	3543.5(a)
	is
	GRANTED. 	As
	to 	the 	alleged 	violation 	of
19

EERA
	section
	3543.S(b),
	the
	motion
	to
	dismiss
	is
	DENIED,
	and
	the
case
	is
	REMANDED
	to
	the
	Chief
	Administrative
	Law
	Judge
	to
	proceed
to
	a
	hearing
	in
	accord.with
	PERB
	rules
	and
	regulations.
Member
	Shank
	joined
	in
	this
	Decision.
Chairperson 	Hesse's
	concurrence 	begins
	on
	page
	21.
20

Hesse,
	Chairperson, 	concurring:
	While
	I
	agree 	with
	the
majority's
	analysis
	and
	conciusion 	regarding 	the 	alleged
violation
	of
	section
	3543.5(a)
	of 	the
	Educational
	Employment
Relations
	Act
	(EERA
	or
	Act)
1 , 	I
	write 	separately
	to
	express
	my
reasons
	for 	refusing 	to 	defer 	the 	alleged
	violation
	of
	section
3543.5(b).
As
	stated
	by
	the 	majority, 	the 	alleged
	violation
	of
	section
3543.5(b)
	was
	not
	raised
	or
	considered
	in 	the
	arbitration.
Accordingly,
	this
	alleged
	violation
	is
	properly
	remanded
	to 	the
Chief
	Administrative
	Law
	Judge
	(Chief
	ALJ)
	to
	proceed
	to
	a
hearing.
	However,
	the
	Public
	Employment
	Relations 	Board's
	(PERB
or
	Board)
	deferral
	of 	the 	alleged 	section
	3543.5(a)
	violation
	and
remand
	of 	the 	alleged 	section
	3543.5(b)
	violation 	raises
	an
important
	issue.
The
	Board 	must
	resolve 	the
	dilemma
	of 	multiple
	forums
	where
the 	alleged 	violation
	of
	section
	3543.S(a) 	should
	be
	dismissed
and
	deferred 	to 	arbitration,
	while
	the 	alleged
	violation
	of
section
	3543.S(b) 	should 	be
	heard
	by
	PERB.
	Presently, 	there 	are
two
	PERB
	cases 	involving
	this
	same
	issue 	in
	a
	pre-arbitration
deferral 	situation.
	In
	State 	of 	California 	(California
Department
	of 	Forestry
	and
	Fire 	Protection)
	(1989)
	PERB
	Decision
No.
	734-S
	(Forestry
	and
	Fire 	Protection), 	the
	Board
	dismissed 	the
alieged 	violation 	of 	section
	3519(a)
	of 	the
	Ralph
	C.
	Dills
	Act
1EERA
	is 	codified 	at
	Government 	Code
	section
	3540
	et
	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the
	Government 	Code.
21

(Dills
	Act)
2 ,
	and
	ordered
	the
	General
	Counsel
	to 	issue
	a
.complaint
	alleging
	a
	violation
	of
	section
	3519(b)
	of
	the
	Dills
Act.
	However,
	in
	Forestry
	and
	Fire 	Protection, 	the
	Board
	was
confronted with
	two
	employer
	statements
	which
	allegedly
interfered
	with
	the
	employees'
	rights
	and 	employee
	organization's
rights.
	The
	Board 	found
	one
	of
	the 	alleged
	statements
	was
directed
	toward
	the
	employee
	organization
	and,
	therefore,
	stated
a
	prima
	facie
	case 	of
	interference
	with 	the
	employee
organization's 	rights 	in 	violation
	of
	section
	3519(b)
	of
	the
Dills.Act.
	With
	regard
	to
	the 	alleged
	violation
	of
	section
3519(a)
	of 	the
	Dills
	Act,
	the
	Board 	found
	that
	the 	other
statement
	interfered
	with
	the
	employees'
	rights.
	As
	the
collective
	bargaining
	agreement 	covered
	the 	dispute 	raised
	by
this
	allegation,
	and
	culminated
	in
	binding
	arbitration,
	the
	Board
dismissed
	and
	deferred 	thi~
	allegation 	to
	arbitration.
In 	State
	of
	California
	(Department
	of
	Parks
	and
	Recreation)
(1990)
	PERB
	Decision
	No.
	810-S
	(Parks
	and
	Recreation), 	the
	Board
dismissed 	the 	alleged 	violation
	of 	section
	3519(a),
	and
	ordered
the
	General 	Counsel
	to 	issue
	a
	complaint
	on
	the 	alleged
	violation
of 	section
	3519(b). 	In 	Parks
	and
	Recreation, 	the 	unfair 	practice
charge
	alleged
	that
	the
	Department
	of 	Parks
	and
	Recreation
(Department)
	violated 	section
	3519(a) 	and 	(b)
	of 	the 	Dills
	Act 	by
denying 	one
	of
	its
	members
	the 	right 	to 	representation
	at
	a
meeting 	with
	a
	department 	superintendent. 	Pursuant 	to
	Lake
2
Ralph
	C.
	Dills
	Act
	is 	codified 	at
	Government 	Code
	section
3512
	et
	seq. 	Unless 	otherwise 	indicated,
	all 	statutoryreferences 	herein 	are 	to 	the
	Government 	Code.
22

Elsinore
	School
	District
	(1987)
	PERB
	Decision
	No.
	646
	and
~'Forestry
	and
	Fire 	Protection, 	the
	Board
	held
	11
where
	conduct
allegedly 	violates
	both
	employee 	and 	employee
	organization
rights,
	and
	the
	parties'
	collective
	bargaining
	agreement
	only
prohibits
	the
	violation
	of
	employee
	rights,
	only
	the
	employee
charge 	should
	be
	deferred.
11
In 	State
	of 	California
	(Department:
of
	Parks
	and
	Recreation)
(1990)
	PERB
	Decision
	No.
	810a-S,
	the
	Department
	requested
reconsideration
	of
	PERB
	Decision
	No.
	810-S.
	As
	the 	request 	did
not
	claim
	that
	the
	Board's
	decision
	contained
	prejudicial 	errors
df
	fact
	or
	newl~
discovered 	evidence
	or
	law,
	the
	Board
	denied
	the
request 	for 	reconsideration.
	However,
	I
	wrote
	a
	dissent 	to
	PERB
Decision
	No.
	810a-S.
	In
	my
	dissent,
	I
	found
	that
	the
	Board
	agent
properly
	dismissed
	and
	deferred 	to
	arbitration,
	the
	allegations
that
	the
	Department
	violated 	section
	3519(a) 	and 	(b)
	of
	the 	Dills
Act
	by
	denying
	representation
	at
	an
	investigatory 	interview.
Pursuant
	to
	Lake
	Elsinore
	School
	District,
	supra,
	PERB
	Decision
No.
	646,
	I
	concluded
	that
	the 	alleged
	conduct
	(the 	Department's
denial 	of 	representation
	at
	an
	investigatory 	interview)
	was
arguably 	prohibited
	by
	the
	parties' 	collective
	bargaining
agreement,
	which 	had
	a
	grievance 	procedure 	culminating
	in
	binding
arbitration.
3 I
	concluded
	the 	fact 	that
	the
	same
	conduct
	may
constitute
	a
	violation
	of 	section
	3519(b),
	in 	addition 	to 	section
3519(a), 	cannot 	be 	used
	to 	defeat 	the 	jurisdictional 	bar 	of
3
The
	collective 	bargaining 	agreement 	also 	included
	a
provision 	defining 	the 	exclusive 	representative 	as
	a
	grievant.
23

section
	3514.S(a)
(2).
	As
	the
	same
	conduct
	was
	alleged
	to
	violate
section
	3519(a)
	and 	(b)
	of 	the
	Dills
	Act,
	the
	Board's
	issuance 	of
a
	complaint
	alleging
	a
	violation
	of
	section
	3519(b)
	was
	contrary
to 	the
	mandatory
	language
	of
	section
	3514.S(a)
(2)
	of 	the
	Dills
Act
	and
	contrary
	to
	the
	Board's 	holding
	in
	Lake
	Elsinore
	School
District,
	sup~a~
	PERB
	Decision
	No.
	646.
	In 	essence, 	the
	Board
issued
	a
	complaint
	against
	conduct
	arguably
	prohibited
	by
	the
collective
	bargaining
	agreement.
Finally,
	I
	also 	distinguished
	Parks
	and
	Recreation
	from
	the
Board's
	decision
	in
	Forestry
	and
	Fire 	Protection. 	In Forestry
and
	Fire 	Protection, 	the
	Board
	was
	confronted with
	two
	alleged
employer
	statements.
	One
	statement
	allegedly
	interfered
	with
	the
employees'
	rights,
	while 	another 	statement
	allegedly
	interfered
with 	the
	employee
	organization's 	rights.
	With
	regard
	to
	the
alleged
	statement
	directed
	toward
	the
	employee
	organization, 	the
Board 	found
	the
'allegation 	constituted
	a
	prima
	facie
	case 	of
interference
	with
	the
	employee
	organization's 	rights
	in 	violation
of 	section
	3519(b)
	of 	the
	Dills
	Act.
	The
	Board
	dismissed
	the
alleged 	statement
	directed
	toward
	the
	employees'
	rights
	as
	this
conduct
	was
	arguably
	prohibited
	by
	the
	parties' 	collective
bargaining
	agreement. 	Thus,
	unlike
	Parks
	and
	Recreation, 	the
Board
	did 	not 	find 	the
	same
	conduct
	was
	arguably 	prohibited
	by
the
	parties' 	collective 	bargaining 	agreement 	and
	also ~onstituted
a
	prima
	facie 	violation 	of 	the 	Dills
	Act.
Unlike
	pre-arbitration deferral,
	where
	deferral 	is
mandatory, 	the 	present 	case 	involves 	post-arbitration deferral
24

where
	the
	Board
	has
	discretionary
	jurisdiction.
	(See
	EERA
section
	3541.5(a)
	and
	Lake
	Elsinore
	School
	District,
	supra,
	PERB
Decision
	No.
	646,
	pp.
	25-26.)
	Although
	the
	arbitration
	and
	the
PERB
	proceeding
	may
	involve
	the
	same
	conduct,
	the 	issues 	are
different.
	The
	arbitration
	involved
	reprisal/discrimination
against
	the
	employees,
	while
	the
	PERB
	hearing
	will
	involve
interference
	with
	the
	employee
	organization's
	rights.
	Further,
the 	California
	School
	Employees
	Association
	and
	its
Chapter 	#568's 	(Association) 	only
	forum
	is
	PERB. 	As
	the
collective
	bargaining
	agreement
	did
	not 	provide
	the 	Association
.with
	the
	right
	to 	grieve, ·the
arbitrator
	did 	not 	adequately
consider 	the
	allegations 	in
	the
	unfair 	practice
	charge~
4
Denying
the 	Association
	its
	right
	to 	allege
	a
	violation
	of
	section
4
one
	could 	argue
	that
	since 	the 	Association
	has
	a
	statutory
right
	to 	grieve, 	the 	Association
	has 	an
	additional
	forum
	under
the
	collective
	bargaining
	agreement.
	In
	a
	pre-arbitrationdeferral
	case,
	this
	argument
	could
	result 	in 	deferral
	if
	the
conduct
	was
	arguably
	prohibited
	by
	the
	collective
	bargaining
agreement.
	However, 	many,
	if
	not
	all,
	arbitrators
	would
	refrain
from
	entertaining 	the 	exclusive
	representative's
	grievance
	where
such
	grievances
	were
	not 	included
	in 	the 	collective
	bargainingagreements.
	If
	an
	arbitrator
	did
	entertain
	such
	a
	grievance, 	the
arbitrator
	would
	be
	acting 	in
	excess 	of
	his 	authority.
	(See 	San
Jose 	Federation
	etc.
	Teachers 	v.
	Superior Court
	(1982)
	132
Cal.App.3d 	861,
	865 	[183
	Cal.Rptr.
	410]; 	Shulman, 	Reason.
Contract,
	and
	Law
	in
	Labor
	Relations
	(1955)
	68
	Harvard
	Law
	Review
99, 	1016;
	Elkouri	
&	
Elkouri,
	How
Arbitration
	Works
	(4th 	ed.
	1985)
pp. 	373-375.)
In
	a
	post-arbitration deferral 	case, 	the
	Board 	has
discretionary 	jurisdiction 	to
	review 	the 	arbitration
	award
	todetermine 	whether
	it
	is
	repugnant 	to 	the 	purposes 	of
	EERA.
	In
the 	present 	case, 	the 	Association 	did 	not
	file
	the 	grievance
	andwas
	not·a party 	to 	the 	arbitration.
	As
	the 	Association's 	rights
were 	not 	considered
	by
	the 	arbitrator,
	I
	would 	not 	defer 	the
Association's 	allegations 	that 	the
	San 	Diego 	County
	Office 	of
Education 	violated 	section 	3543.5(b).
25

3543.5(b) 	of
	EERA
	would 	be
	against 	the
	EERA
1 s
	purpose
	and
	policy
to
	promote
	the
	improvement
	of 	personnel
	management
	and
	employer-
employee
	relations
	within 	the 	public
	school
	systems
	in 	the
	State
of
	California
	(EERA
	section
	3540)
	and
	guarantee
	employee
organizations 	the
	right
	to 	represent
	their
	members
	in
	their
employment
	relations
	with
	public
	school
	employers
	(EERA
	section
3541.5(a)). 	Further, 	section
	3541.5(a)
	provides:
	11
[a]ny
employee,
	employee
	organization, 	or
	employer
	shall
	have
	the
	right
to
	file
	an
	unfair 	practice
	charge
	.
	11
	Finally, 	section
	3543.5
provides, 	in
	pertinent part:
	11
[i]t
	shall
	be
	unlawful
	for
	a
public
	school
	employer
	to
	.
	[d]eny
	to
	employee
	organizations
rights
	guaranteed
	to
	them 	by
	this
	chapter.
11
	If
	the
	Board
	were
	to
dismiss
	and
	defer 	the
	entire 	unfair 	practice
	charge
	to
arbitration,
	then
	the 	Association
	would 	be
	precluded
	from
protecting
	its
	statutory 	rights
	under
	EERA.
	Thus, 	even 	though
the
	PERB
	proceedings
	on
	the 	alleged 	violation
	of
	section
3543.5(b)
	may
	involve 	the
	same
	conduct 	as
	the
	arbitration
	(i.e.,
.alleged 	violation
	of 	section 	3543.5(a)),
	I
	find
	it
	would
	better
serve 	the 	policies
	and
	purposes
	of
	EERA
	to
	split
	the
	(a) 	and 	(b)
allegations
	and
	allow 	the 	Association 	to
	proceed
	on
	its
	alleged
violation
	of
	section
	3543.5(b) 	than
	deny
	the 	Association
	its
	only
forum
	to 	protect
	its
	statutory 	rights.
In 	conducting 	the
	PERB
	hearing,
	I
	would
	suggest
	that 	the
parties
	be
	required 	to 	introduce 	the 	transcripts
	from
	the
arbitration
	hearing 	into 	the
	PERB
	record.
	If
	the 	transcripts 	are
available, 	then 	the 	administrative
	law 	judge
	(ALJ)
	or hearing
26

officer
	would
	allow
	the
	parties
	to
	present
	witnesses
	and
.
introduce
	evidence
	to
	supplement
	the
	arbitration 	transcripts 	in
order
	to
	establish
	the 	alleged
	violation
	of
	section
	3543.S(b).
Such
	a
	requirement
	would
	promote
	judicial
	economy.
	In
	order
	to
determine
	whether
	any
	supplemental
	witnesses 	or
	evidence
	is
necessary, 	the
	ALJ
	or 	hearing
	officer
	should
	have
	the 	opportunity
to
	review
	the
	arbitration 	transcripts
	before
	the
	formal
	hearing.
5
The
	Chief
	ALJ
	or
	ALJ
	could
	require 	the
	parties
	to
	submit
	a
	copy
of
	the
	arbitration 	transcripts 	at
	the
	informal
	hearing
(settlement
	conference).
	If
	the
	transcripts
	are 	unavailable,
then
	the
	ALJ
	or
	hearing
	officer
	would
	allow
	the
	parties 	to
litigate
	the 	alleged
	violation
	of
	section
	3543.S(b)
	in
	its
entirety.
	Even
	if
	some
	duplication 	or
	waste
	of 	resour6es
occurred
	by
	conducting both
	an
	arbitration
	and
	PERB
	hearing,
	I
believe
	it
	is
	PERB's
	ultimate
	responsibility 	to 	administer 	the
EERA.
	If
	PERB
	were
	to
	allow
	the 	alleged
	(b)
	violation 	to
effectively
	disappear, 	then
	PERB
	would 	be
	derelict 	in
	its
	duties
and
	responsibilities
	under
	EERA.
Additionally,
	I
	would
	find
	that
	PERB
	is
	not
	bound 	by
	the
arbitration
	decision.
6
In 	the 	past, 	the
	Board
	held 	the
5
This 	procedure
	was
	successfully
	utilized
	by
	the
	ALJ
	and
parties 	in
	Regents
	of 	the 	University 	of 	California
	(Einheber)(1991)
	PERB
	Decision
	No.
	872-H.
6
The
	doctrine 	of
	collateral
	estoppel 	precludes
	a
	party 	to
	an
action
	from
	relitigating 	in
	a
	second 	proceeding, 	matters
litigated
	and
	decided 	in
	a
	prior
	proceeding. 	Generally,
collateral 	estoppel 	effect will
	be 	granted 	to
	an
	administrative
decision
	where
	it
	was 	made 	by 	an 	agency 	(1)
	acting 	in
	a
	judicialcapacity,
	(2)
	to 	resolve 	properly 	raised 	disputed 	issues 	of 	fact
where 	(3) 	the 	parties
	had
	a
	full 	opportunity 	to 	litigate
	those
27

(b)
	violation
	was
	the 	"derivative''
	of 	the
	(a)
	violation
	in
	cases
involving
	allegations
	of
	(a) 	and 	(b)
	violations.
	(See
	North
Sacramento 	School
	District
	(1982)
	PERB
	Decision
	No.
	264.) 	This
practice
	has 	been
	discontinued.
	Rather,
	the
	two
	violations 	are
independent.
	(The
	Regents
	of 	the 	University 	of
	California
(California
	Nurses
	Association)
	(1989)
	PERB
	Decision
	No.
	722-H,
p.
	lOi
	Santa 	Paula
	School
	District
	(1985)
	PERB
	Decision
	No.
	505,
pp. 	52-54i
	see
	also
	Novato
	Unified
	School
	District
	(1982)
	PERB
Decision
	No.
	210,
	p.
	21
	and
	Coast
	Community
	College
	District
(1982)
	PERB
	Decision
	No.
	251,
	pp.
	19-24.)
	Therefore,
	the
	fact
the
	arbitrator
	found
	the
	employer
	did 	not
	engage
	in
	any
	reprisal
or 	discrimination 	against 	the
	employees 	does
	not
	necessarily
	mean
the
	Board
	will
	dismiss 	the 	alleged
	(b)
	violation.
In 	conclusion,
	despite 	the
	fact 	that
	the
	PERB
	proceeding
	on
the 	alleged 	violation
	of
	section
	3543.5(b)
	will
	in~olve
	some
	of
the
	same
	conduct,
	witnesses
	and
	evidence 	as
	in
	the
	arbitration
hearing,
	I
	would 	remand
	the 	alleged 	violation
	of
	section
3543.5(b)
	to 	the
	Chief
	ALJ
	to
	proceed
	to
	a
	hearing.
	With
	regard
to
	the 	alleged 	violation
	of 	section 	3543.5(a),
	I
	would
	find
	that
the
	arbitrator's
	decision
	and 	award
	regarding 	the 	alleged
issues.
	(People 	v.
	Sims 	(1982)
	32
	Cal.3d
	468 	[186
	Cal.Rptr.
77].)
	However,
	arbitrators'
	awards
	are 	not
	judicial
	opinions
	and
are 	not
	bound 	by
	the
	restrictions
	of 	the 	judicial
	process.(Stead
	Motors
	of
	Walnut 	Creek 	v. 	Automotive 	Machinists
	Lodge
	No.
1173
	(9th
	Cir.,
	1989) 	886
	F.2d
	1200 	[132
	LRRM
	2689]
	cert.
	den.(1990) 	110
	S.Ct.
	2205;
	see 	also
	Regents 	of
	the 	University 	of
California
	(Berkeley) 	(1985)
	PERB
	Decision
	No.
	534-H.)
As
	an
	arbitrator's
	award 	does 	not 	qualify 	as 	an
administrative 	decision
	by 	an 	agency
	acting 	in
	a
	judicialcapacity, 	the 	doctrine 	of .collateral 	estoppel 	is 	inapplicable.
28

reprisal
	and
	discrimination
	was
	not
	repugnant
	to
	EERA.
Therefore,
	I
	would
	dismiss
	this
	allegation
	due
	to
	the 	existence
of 	the
	arbitration
	award.
29