Dry Creek Joint Elementary School District (PERB A081E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
DRY
	CREEK TEACHERS
	ASSOCIATION,
Charging
	Party,
v.
DRY
	CREEK
	JOINT
	ELEMENTARY
SCHOOL
	DISTRICT,
Respondent.
-----------------
) 	Case
	No. 	S-CE-139
PERB
	Order
	No. 	Ad-81
ADMINISTRATIVE
	APPEAL
RE:
	PETITION
	FOR
REACTIVATION,
FINDING
	OF
	REPUGNANCY,
	IMMEDIATE
HEARING
	BY
	THE
	BOARD
	ITSELF,
	AND
OTHER
	EXPEDITED
	RELIEF
	INCLUDING
POINTS
	AND
	AUTHORITIES
March
	6,
	1980
)
)
)
)
)
)
)
)
)
)
)
)
Appearances:	
Marcus
	Vanderlaan
	and
	Mark
	D.
	Millard, 	Attorneys 	for
Dry
	Creek Teachers
	Association;
	Douglas
	A.
	Lewis,
	Attorney
	for
Dry
	Creek
	Joint
	Elementary 	School
	District.
Before
	Gluck,
	Chairperson;
	Gonzales 	and 	Moore, 	Members.
ORDER
This 	case
	comes
	to 	the 	Public
	Employment
	Relations
	Board
	upon
a
	request
	by
	the 	charging
	party
	to
	"reactivate" 	unfair 	practice
proceedings
	which 	have 	been
	in
	abeyance
	since
	August
	of
	1978,
pending 	completion
	of
	binding
	arbitration.
	The 	Board
	itself
	takes
jurisdiction
	of 	this
	matter 	for 	the 	purpose 	of 	determining whether
the
	arbitrator's
	award
	is
	repugnant 	to 	the 	purposes 	of 	the
Educational
	Employment
	Relations 	Act. 	This
	action 	is
	taken 	because
this 	is
	a
	case 	of
	first
	impression, 	there 	is
	no
	apparent
	statute
of 	limitation 	to 	apply 	to 	post-arbitration 	processing 	of
	a
	charge
1
filed 	prior 	to 	arbitration,
	and
	there 	are 	at 	present
	no
	procedural
1
see 	Government 	Code 	section 	3541.S(a), 	of 	the 	EducationalEmployment 	Relations 	Act 	(hereafter 	EERA):

regulations
	which
	can
	guide
	the
	parties
	or 	Public
	Employment
Relations
	Board
	staff.
We
	have
	considered 	the
	"Petition
	for 	Reactivation"
	and
the
	Answer
	and
	issue
	this
	interim order
	pursuant
	thereto.
	A
final
	decision
	and
	order
	will
	be
	issued
	at
	a
	later
	date.
	It
	is
the 	determination
	and
	ORDER
of
	this
	Board
	that:
1)	
The
	general
	counsel
	conduct 	an
	immediate
	investigation
and/or 	hegring 	of 	the 	charging
	pa~ty's
	claim
	that
	the
arbitration
	award
	is
	repugnant 	to 	the 	purposes
	of
	EERA.
(a)
	Any
	employee, 	employee
	organization, 	or
employer
	shall
	have
	the
	right
	to
	file
	an
	unfair 	practice
charge, 	except
	that
	the
	bo~rd
	shall
	not
	do
	either
	ofthe 	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 	such
	settle-
ment
	or
	arbitration
	award
	reached 	pursuant 	to 	thegrievance machinery
	solely 	for 	the 	purpose
	of 	deter-
mining whether
	it
	is
	repugnant 	to 	the 	purposes
	of 	this
chapter.
	If
	the 	board 	finds
	that
	such
	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 	this 	subdivision 	to 	have 	been
	tolledduring 	the 	time
	it
	took 	the 	charging 	party 	to 	exhaust
the 	grievance machinery.
2

2) 	The
	general
	counsel
	is
	to
	submit
	to 	the
	Board
	itself
the
	record
	of
	any
	proceeding 	undertaken,
	his 	findings,
and
	his
	recommendation 	on
	this
	matter.
3)	
In
	view
	of
	the 	foregoing, 	the
	unfair 	practice
	hearing
scheduled
	on
	Thursday,
	March 	6, 	1980
	is
	cancelled.
PER
	CURIAM
3