Fremont Union High School District (PERB A248E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FREMONT 	EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
V.
FREMONT UNION 	HIGH 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-1557
Administrative 	Appeal
PERB 	Order 	No. 	Ad-248
September 	24, 	1993
Appearances: 	Ramon 	E. 	Romero, 	Attorney, 	for 	Fremont 	Education
Association, 	CTA/NEA; 	Zampi 	and 	Associates 	by 	Joseph 	P. 	Zarnpi
and 	Gerald B. 	Determan, 	Attorneys, 	for 	Fremont 	Union High 	School
District.
Before 	Blair, 	Chair; 	Hesse 	and 	Caffrey, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	appeal 	by 	the 	Fremont 	Union
High 	School 	District 	(District) 	to 	the 	PERB 	administrative 	law
judge's 	(ALJ) 	denial 	of 	the 	District's 	motion 	to 	dismiss 	the
unfair 	practice 	complaint 	and 	defer 	the 	matter 	to 	arbitration
under 	the 	Educational 	Employment 	Relations 	Act 	(EERA) 	section
3541.S(a) (2) . 1
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the 	Government 	Code. 	Section 	3541.S(a) (2) 	states, 	in
pertinent 	part, 	that 	the 	Board 	shall 	not:
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.

The 	Board 	has 	carefully 	reviewed 	the 	ALJ's 	order 	denying
the 	motion 	to 	dismiss, 	the 	District's 	appeal 	of 	the 	ALJ's 	order,
and 	the 	Fremont 	Education Association, 	CTA/NEA's 	(Association)
response 	to 	the 	District's 	appeal. 	On 	July 	19 	and 	September 	17,
1993, 	the 	District 	also 	filed 	supplements 	to 	its 	reply 	to 	the
Association's 	response 	to 	the 	appeal. 2
BACKGROUND
On 	April 	24, 	1992, 	the 	Association 	filed 	a 	charge 	alleging
that 	the 	District 	retaliated 	and 	discriminated 	against 	an
employee, 	George 	St. 	Clair 	(St. 	Clair), 	in violation 	of 	EERA
section 	3543.5(a) 	and 	(b) . 3
2PERB 	Regulations 	32646 (b) "and 	32635 	provide 	for 	the 	filing
of 	an 	appeal 	within 	20 	days 	of 	the 	denial 	of 	deferral. 	PERB
regulations 	are 	codified 	at 	California 	Code 	of 	Regulations, 	title
8, 	section 	31001 	et 	seq. 	The 	District 	timely 	filed 	its 	appeal.
However, 	there 	is 	no 	provision 	in 	PERB 	regulations 	which 	allows
additional 	filings 	after 	the 	expiration 	of 	the 	filing 	deadline.
Such 	a 	filing 	is 	handled 	according 	to 	PERB Regulation 	32136 	which
states:
A late 	filing 	may be 	excused 	in 	the
discretion 	of 	the 	Board 	for 	good 	cause 	only.
A late 	filing 	which 	has 	been 	excused 	becomes
a 	timely 	filing 	under 	these 	regulations.
As 	the 	District 	made 	no 	showing 	of 	good 	cause, 	the 	late 	filed
documents 	were 	not 	considered by 	the 	Board.
3Section 	3543.5 	states, 	in pertinent 	part:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to 	do 	any 	of 	the 	following:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	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
2

On 	September 	8, 	1992, 	PERB 	issued 	a 	complaint 	which 	alleged
that 	St. 	Clair 	engaged 	in many 	activities 	protected by 	EERA. 	He
served 	as 	building 	representative 	at 	Homestead 	High 	School 	during
the 	1985-86 	and 	1987-88 	school 	years; 	on March 	5, 	1991, 	he 	filed
a 	claim 	for 	damages 	against 	the 	District 	in 	order 	to 	remedy 	his
alleged 	loss 	of 	preferential 	rehire 	rights; 	and 	on May 	21, 	1991,
he 	addressed 	the 	District 	board 	of 	trustees 	in 	support 	of 	the
Association's 	bargaining 	position. 	The 	complaint 	alleges
that, 	because 	of 	St. 	Clair's 	protected 	activity, 	the 	District
retaliated against 	him by 	issuing 	two 	negative 	evaluations 	and
did 	not 	re-employ 	him 	for 	the 	1992-93 	school 	year.
At 	the 	time 	he 	issued 	the 	complaint, 	the 	PERB 	regional
attorney also 	issued 	a 	letter 	in which 	he 	refused 	to 	dismiss 	and
defer 	the 	matter 	to 	arbitration 	because 	the 	employer's 	conduct
was 	not 	prohibited by 	the 	contract. 	On 	September 	29, 	1992, 	the
District 	filed 	its 	answer and 	a 	motion 	to 	dismiss 	the 	complaint
and 	defer 	it 	to 	arbitration. 	On January 	8, 	1993, 	the 	ALJ 	denied
the 	District's 	motion 	on 	the 	ground 	that 	the 	parties' 	collective
bargaining 	agreement 	(agreement) 	does 	not 	contain 	language 	which
prohibits 	the 	District 	from 	engaging 	in 	the 	conduct 	alleged 	in
the 	complaint.
On 	January 	14, 	1993, 	the 	District 	appealed 	the 	ALJ's 	denial
of 	its 	motion 	arguing 	that 	deferral 	to 	arbitration was 	required
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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because 	the 	alleged 	discrimination 	is 	prohibited by 	the
agreement. 	The 	District 	discusses 	other 	issues 	in 	its 	appeal
which 	were 	not 	brought 	by 	proper motion 	and 	in which 	the 	ALJ
declined 	to 	join pursuant 	to 	PERB 	Regulation 	32200. 	Thus, 	the
only 	issue 	before 	the 	Board 	is 	whether 	this 	matter must 	be
deferred 	to 	the 	arbitration process 	on 	the 	ground 	that 	the
alleged violative 	conduct 	is 	prohibited by 	the 	parties'
agreement.
DISCUSSION
EERA 	section 	3541_. 5 (a) 	provides, 	in 	pertinent 	part, 	that
PERB 	shall 	not:
Issue 	a 	complaint 	against 	conduct 	also
prohibited by 	the 	provisions 	of 	the
[collective 	bargaining 	agreement 	in 	effect]
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.
In 	Lake 	Elsinore 	School 	District 	(1987) 	PERB 	Decision
No. 	646, 	PERB 	held 	that 	this 	section 	established 	a 	jurisdictional
rule 	requiring 	that 	a 	charge 	be 	dismissed 	and 	deferred 	if: 	(1)
the 	grievance 	machinery 	of 	the 	agreement 	covers 	the 	matter 	at
issue 	and 	culminates 	in 	binding 	arbitration; 	and 	(2) 	the 	conduct
complained 	of 	in 	the 	unfair 	practice 	charge 	is 	prohibited by 	the
provisions 	of 	the 	agreement 	between 	the 	parties. 	(Ibid.) 	For
example, 	in 	Los 	Angeles 	Community 	College 	District 	(1989) 	PERB
Decision No. 	761, 	where 	an 	employee 	alleged 	that 	the 	district 	had
discriminated 	against 	him 	for 	pursuing 	protected 	activity, 	the
Board 	found 	specific 	language 	in 	the 	parties' 	agreement 	which
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prohibited 	the 	alleged violative 	conduct. 	In 	that 	case, 	the
agreement 	stated 	that 	the 	district 	agreed 	to 	"comply with 	all
federal 	and 	state 	laws 	regarding 	non-discrimination." 	The 	Board
stated 	that 	EERA 	is 	a 	state 	law 	that 	prohibits, 	among 	other
things, 	discrimination 	against 	employees 	because 	of 	their
exercise 	of 	rights 	guaranteed by 	EERA. 	In 	Los 	Angeles 	Unified
School 	District 	(1990) 	PERB 	Decision 	No. 	860, 	the 	Board made 	it
clear 	that 	the 	exercise 	of 	PERB's 	jurisdiction 	is 	not 	precluded
unless 	the 	alleged 	unfair 	practice 	is 	arguably prohibited by 	the
parties' 	agreement. 	Accordingly, 	it 	is 	not 	sufficient 	for 	the
agreement 	to 	merely 	cover 	or 	discuss 	the 	matter. 	The 	conduct
alleged 	to 	be 	an 	unfair 	practice must 	be 	prohibited.
In 	this 	case, 	the 	District 	proposes 	two 	theories 	by which
the 	parties' 	agreement 	prohibits 	the 	alleged violative 	conduct.
First, 	the 	agreement 	expressly 	incorporates 	EERA. 	Second, 	the
conduct 	complained 	of 	is 	prohibited by 	section 	5.2 	of 	the
agreement, 	entitled 	"Personal 	Freedom," 	as 	discrimination 	against
employees 	for 	exercising 	"constitutional 	rights 	of 	citizenship"
or 	engaging 	in 	"political 	activities."
As 	to 	its 	"incorporation" 	theory, 	the 	District 	suggests 	that
the 	agreement 	expressly 	incorporates 	EERA 	in Article 	1.2 	which
states:
This 	Agreement 	is 	entered 	into 	pursuant 	to
Chapter 	10.7, 	Sections 	3540 	through 	3549 	of
the 	Government 	Code.
In 	addition, 	the 	District 	cites 	Article 	2, 	sections 	2.3 	and 	2.3.2
·which state 	that 	the 	District's 	powers, 	rights, 	and 	authority
5

to 	dismiss 	employees 	are 	"subject 	to 	the 	provisions 	of 	the 	law."
We 	find 	that 	these 	passing 	references 	to 	EERA and 	some
unidentified 	"provisions 	of 	law" 	do 	not 	incorporate 	into
the 	contract 	rights 	guaranteed 	to 	employees 	and 	employee
organizations 	by 	EERA. 	The 	parties' 	failure 	to 	unambiguously
include 	EERA protections 	in 	the 	agreement 	does 	not 	support 	an
argument 	that 	they 	intended 	to 	convey 	those 	rights 	or 	to 	subject
them 	to 	the 	contractual 	grievance 	procedure. 	The 	mere 	mention
that 	the 	agreement 	is 	entered 	into 	"pursuant 	to" 	EERA's 	statutory
framework 	and 	the 	insertion 	of 	the 	language 	"subject 	to 	the
provisions 	of 	the 	law11 do 	not 	equal 	the 	incorporation 	of 	rights.
The 	plain meaning 	of 	the 	provisions 	cited 	require 	that 	the
incorporation 	theory 	be 	rejected.
The 	contention 	that 	the 	conduct 	complained 	of 	is 	prohibited
by 	the 	personal 	freedom 	section 	of 	the 	agreement 	is 	equally
unpersuasive. 4
Article 	5, 	section 	5.2 	of 	the 	agreement 	reads 	as 	follows:
Personal 	Freedom
The 	Employer 	is 	not 	concerned with 	the
personal 	life 	of 	any member 	of 	the 	Unit,
4The 	District 	cites 	Ofsevit 	v. 	Trustees 	of 	California 	State
University 	and 	Colleges 	(1978) 	21 	Cal.3d 	763 	and 	City 	of 	Madison
Joint 	School 	District 	No. 	8, 	et 	al. 	v. 	Wisconsin 	Employment
Relations 	Commission 	(1976) 	429 	U.S. 	167 	in 	support 	of 	its
contention 	that 	its 	conduct 	is 	covered by 	section 	5.2 	of 	the
agreement. 	These 	cases 	do 	not 	address 	the 	issue 	before 	us. 	In
both Madison 	and 	Ofsevit 	the 	plaintiff 	alleged 	a 	violation 	of 	his
First 	Amendment 	rights' outside 	of 	the 	context 	of 	a 	collective
bargaining 	agreement. 	Thus, 	these 	cases 	give 	us 	no 	guidance 	in
determining 	whether 	the 	language 	in 	section 	5.2 	prohibits 	conduct
which 	discriminates 	against 	employees 	because 	they 	have 	engaged
in 	employment-related union 	activity.
6

unless 	it 	prevents 	the 	member 	from 	performing
the 	member's 	assigned 	functions. 	The
employee 	is 	entitled 	to 	full 	constitutional
rights 	of 	citizenship, 	and 	the 	member's
religious 	or 	political 	activities 	are 	not
grounds 	for 	discipline 	or 	discrimination
with 	respect 	to 	the 	member's 	professional
employment, 	as 	long 	as 	he/she 	does 	not
violate 	any 	local, 	state, 	or 	federal 	law.
We 	interpret 	this 	section 	to 	mean 	that 	the 	employer 	is 	prohibited
from 	becoming 	involved with 	the 	employee's 	personal 	life. 	When
considered 	in 	the 	context 	of 	the 	entire 	agreement, 	this 	section
is 	most 	reasonably 	interpreted 	to 	provide 	protections 	for 	actions
that 	are 	focused 	away 	from 	the 	work place 	and 	involve 	personal
choices 	of 	political 	affiliation 	and 	religious 	belief. 	The 	clear
focus 	of 	this 	section 	is 	not 	on 	employment-related 	issues.
Unlike 	the 	agreement 	in 	Los 	Angeles 	Community 	College 	District,
supra, 	PERB 	Decision No. 	761, 	this 	section 	does 	not 	include
language 	which 	specifically prohibits 	discrimination.
The 	complaint 	alleges 	that 	the 	District 	discriminated
against 	St. 	Clair because 	he: 	(1) 	served 	as 	building
representative, 	(2) 	filed 	a 	damage 	claim 	concerning 	preferential
rehire 	rights, 	and 	(3) 	addressed 	the 	board 	of 	trustees 	concerning
the 	Association's 	bargaining 	position. 	These 	activities 	were 	not
personal 	in 	nature, 	but 	took 	place 	at 	work 	and 	directly 	concerned
his 	employment.
The 	Board 	finds 	that 	this 	section was 	intended 	to 	address
only 	activities 	involving 	the 	employee's 	personal.life 	and
was 	not 	intended 	to 	cover 	activities 	related 	to 	the 	work 	place.
We 	find 	that 	section 	5.2 	of 	the 	agreement 	does 	not 	meet 	the
7

requirements 	set 	forth 	in 	Los 	Angeles 	Unified 	School 	District,
supra, 	PERB 	Decision No. 	860, 	as 	it 	does 	not 	arguably 	prohibit
discrimination against 	employees 	for 	participation 	in 	conduct
protected by 	EERA.
ORDER
The 	Board AFFIRMS 	the 	ALJ's 	order 	denying 	the 	District's
motion 	to 	dismiss 	and 	defer 	this 	case 	to 	arbitration. 	Consistent
with 	this 	ruling, 	we 	REMAND 	this 	case 	to 	the 	Chief 	Administrative
Law 	Judge 	to 	be 	processed 	in 	accordance 	with 	PERB 	regulations.
Member 	Caffrey 	joined 	in 	this 	Decision.
Member 	Hesse's 	concurrence 	begins 	on 	page 	9.
8

Hesse, 	Member, 	concurring: 	I 	concur 	in 	the 	disposition made
by 	the 	majority. 	I 	write 	separately 	to 	clearly and 	concisely
state 	my 	position.
I 	have 	reviewed 	the 	entire 	record 	in 	this 	case, 	including
the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
administrative 	law 	judge's 	(ALJ) 	order denying 	the 	motion 	to
dismiss, 	the 	Fremont 	Union 	High 	School 	District's 	(District)
appeal 	of 	the 	order 	denying 	the 	motion 	to 	dismiss, 	the 	Fremont
Education Association, 	CTA/NEA's 	(Association) 	response 	to 	the
District's 	appeal, 	the 	District's 	reply 	to 	the 	Association's
response 	to 	the 	appeal 	and 	the 	District's 	supplemental 	filing
received 	by 	PERB 	on July 	19, 	1993. 1 	For 	the 	reasons 	outlined
1PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq.
This 	appeal 	is 	governed 	by 	the 	procedures 	provided 	in 	PERB
regulation 	32646 	and more 	importantly, 	regulation 	32635.
Regulation 	32635 	allows 	the 	respondent 	in 	this 	case 	to 	file 	an
appeal 	with 	the 	Board 	itself 	within 	20 	days 	of 	the 	date 	of
service 	of 	the 	ALJ's 	ruling. 	The 	charging 	party may 	file 	a
statement 	of 	opposition 	with 	20 	days 	following 	the 	date 	of
service 	of 	the 	respondent's 	appeal.
Here, 	the 	Association 	filed 	a 	statement 	of 	opposition 	to 	the
District's 	appeal 	within 	20 	days. 	Thereafter, 	the 	District
submitted a 	response 	to 	the 	Association's 	opposition 	to 	the
appeal. 	The 	District 	then augmented 	the 	record 	by 	filing 	a
supplemental 	filing 	approximately 	5 	months 	later. 	The
Association 	did 	not 	file 	an 	objection 	to 	the 	District's 	reply
brief 	and 	supplemental 	filing.
PERB 	regulations 	do 	not 	address 	whether a 	reply 	brief 	or 	any
supplemental 	filing 	may 	be 	submitted under 	the 	circumstances 	in
this 	case. 	Indeed, 	PERB 	regulations 	neither 	expressly 	permit 	nor
prohibit 	supplemental 	filings 	following 	the 	filing 	of 	exceptions
and 	responses 	to 	the 	exceptions. 	In 	fact, 	regulation 	32320(a) (2)
provides 	the 	Board 	itself 	with 	some 	latitude 	to 	take 	additional
information. 	As 	the 	District 	has 	raised 	issues 	of 	interest, 	I
have 	considered 	both 	filings 	as 	an 	aid 	in 	ruling 	on 	the 	issues
9

below, 	I 	would 	deny 	the 	District's 	appeal 	of 	the 	ALJ's 	ruling 	on
the 	motion 	to 	dismiss.
DISCUSSION
In 	this 	case, 	the 	charge 	alleges 	that 	the 	District 	violated
the 	Educational 	Employment 	Relations 	Act 	(EERA or Act) 	section
3543.S(a) 	by 	discriminating 	and 	retaliating 	against 	George 	St.
Clair 	(St. 	Clair) 	and violated 	section 	3543.5(b) 2 by 	interfering
with 	the 	Association's 	rights. 	The 	District 	argues 	that 	the
charge 	must 	be 	deferred 	to 	binding 	arbitration under 	the 	parties'
agreement 	because 	the 	conduct 	which was 	alleged 	to 	have 	violated
those 	provisions 	of 	EERA, 	is 	also 	prohibited by 	the 	terms 	of
raised 	in 	the 	appeal.
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to 	the
Government 	Code. 	Section 	3543.S(a) 	and 	(b) 	provide, 	in 	pertinent
part:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to 	do 	any 	of 	the 	following:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	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.
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their 	agreement. 3
The 	Board 	has 	granted 	deferral 	in 	cases 	where 	the 	parties
have 	chosen 	to 	include 	the 	rights 	granted 	by 	statute 	in 	their
contract 	and 	have 	done 	so by 	expressly 	repeating 	the 	statutory
language 	or 	incorporating 	it 	by 	reference. 	In 	this 	case,
however, 	while 	the 	parties 	were 	free 	to 	do 	so, 	their 	contract
does 	not 	include 	or 	expressly 	incorporate 	the 	rights 	granted 	by
EERA 	section 	3543.S(a) 	and 	(b). 	While 	I 	do 	not 	adopt 	the
reasoning 	of 	the 	ALJ 	suggesting 	that 	deferral 	will 	never 	be
ordered 	absent 	the 	inclusion 	of 	EERA 	language 	in 	the 	parties 1
agreement, 	I 	find 	that 	the 	parties 1 	failure 	to 	unambiguously
include 	EERA protections 	in 	the 	contract 	is 	a 	strong 	indication
that 	they 	did 	not 	intend 	to 	convey 	those 	rights 	or 	subject _them
to 	the 	contractual 	grievance 	procedure.
I 	reject 	the 	District's 	argument 	that 	the 	contract 	clauses
which merely mention 	the 	Government 	Code 	provisions 	that 	codify
EERA, 	can 	reasonably 	be 	read 	to 	incorporate 	substantive 	rights
and 	protections. 	Mere 	mention 	that 	the 	contract 	is 	entered 	into
"pursuant 	to" 	the 	Act 1 s 	statutory 	framework 	does 	not 	equal 	the
incorporation 	of 	rights. 	Similarly, 	I 	reject 	the 	District's
3As 	noted 	in 	the 	Board majority 	decision, 	section 	1.2 	of 	the
agreement 	states 	that 	the 	agreement 	is 	entered 	into 	pursuant 	to
Chapter 	10.7, 	Sections 	3540 	through 	3549 	of 	the 	Government 	Code.
Also 	cited 	is 	section 	2.1 	of 	the 	agreement 	(which 	recognizes 	the
Association 	as 	the 	exclusive 	representative 	"as 	defined 	in
Chapter 	10.7, 	Sections 	3540 	through 	3549.3 	of 	Division 4 	of 	Title
1 	of 	the 	Government 	Code 	and Article 	2 	of 	this 	Agreement.") 	and
section 	16.1.1 	(which 	defines 	the 	Act 	to 	mean 	"Chapter 	10.7,
Sections 	3540 	through 	3549.3 	of 	Division 	4 	of 	Title 	1 	of 	the
Government 	Code 	of 	the 	State 	of 	California.").
11

assertion 	that 	the 	language 	"subject 	to 	provisions 	of 	law 11 	found
in Article 	2, 	section 	2.3.2, 4 	is 	sufficient 	to 	confer 	on
employees 	the 	right 	to 	engage 	in 	activities 	protected 	by 	EERA
free 	from 	retaliation 	or 	to 	confer 	on 	the 	Association 	the 	right
to 	represent 	employees 	in 	their 	employment 	relations. 	Without
more, 	the 	vague 	reference 	to 	"provisions 	of 	law" 	is 	too 	tenuous 	a
basis 	on which 	to 	conclude 	that 	the 	parties' 	contract 	covers 	the
matter 	at 	issue 	in 	this 	unfair 	practice. 5
4Article 	2, 	sections 	2.3 	and 	2.3.2 	provide, 	in 	pertinent
part:
2.3 	Employer
The 	District 	... 	hereby 	retains 	and
reserves 	unto 	itself, 	as 	limited 	only by 	the
terms 	and provisions 	of 	this 	Agreement, 	all
powers, 	rights, 	authority, 	duties, 	and
responsibilities 	conferred upon 	and vested 	in
it 	by 	the 	laws, 	Constitution 	of 	the 	State 	of
California, 	and 	the 	Constitution 	of 	the
United 	States, 	including, 	but 	without
limiting 	the 	generality 	of 	the 	foregoing, 	the
rights:
2.3.2 	Subject 	to 	the 	provisions 	of 	the 	law,
to 	hire 	all 	employees, 	to 	determine 	their
qualifications 	and 	conditions 	for 	their
continued 	employment, 	or 	their 	dismissal 	or
demotion, 	and 	to 	promote 	employees.
5 In 	the 	District's 	July 	19, 	1993 	supplemental 	filing, 	the
District 	places 	too 	great 	an 	emphasis 	on 	Los 	Angeles 	Community
College 	District 	(1989) 	PERB 	Decision No. 	761. 	In 	that 	case, 	the
Board 	summarily 	affirmed 	a 	Board 	agent's 	decision 	to 	defer 	to
arbitration, 	a 	charge 	alleging 	retaliation 	based 	on 	a 	contract
provision 	in which 	the 	District 	specifically agreed 	to 	comply
with 	all 	state 	laws 	regarding 	nondiscrimination. 	In 	deferring
the 	charge, 	the 	Board 	agent 	noted 	that 	EERA 	is 	a 	state 	law 	that
prohibits 	discrimination. 	In 	contrast, 	the 	parties' 	contract 	in
this 	case makes 	no 	reference 	to 	anti-discrimination 	laws 	or 	to
any 	other 	substantive 	statutory 	rights. 	Los 	Angeles 	Community
College 	District, 	suQra, 	does 	not 	compel 	deferral 	where 	the
contract 	contains 	a 	general 	reference 	to 	"provisions 	of 	law" 	or
12

Turning 	specifically 	to 	the 	EERA 	3543.5(a) 	charge, 	I 	reject
the 	District's 	contention 	that 	St. 	Clair's 	activity 	as 	a 	building
representative 	and his 	presentation before 	the 	Bo~rd 	of 	Trustees
was 	conduct 	arguably prohibited by 	the 	personal 	freedom provision
of 	the 	contract. 6
First, 	the 	language 	of 	Article 	5, 	section 	5.2 	does 	not
expressly 	confer 	broad 	constitutional 	protections 	of 	free 	speech
and 	assembly, 	as 	the 	District's 	argument 	assumes. 	The 	clause,
entitled 	"personal 	freedom," 	indicates 	that 	the 	employer 	is
unconcerned 	with 	an 	employee's 	personal 	life. 	It 	states 	that 	an
employee 	is 	entitled 	to 	"full 	constitutional 	rights 	of
citizenship" 	and 	that 	a 	member's 	religious 	or political
activities 	will 	not 	be 	grounds 	~or 	discipline 	or 	discrimination.
When 	considered as 	a 	whole, 	this 	provision 	is 	most 	reasonably
read 	to 	provide 	protections 	for 	actions 	that 	have 	nothing 	to 	do
with 	the 	work 	environment, 	but 	involve 	personal 	issues 	of
political 	affiliation 	and 	religious 	beliefs. 	The 	clear 	focus 	of
to 	statutory provisions 	that 	codify 	EERA.
6The 	provision, 	Article 	5, 	section 	5.2, 	entitled 	"Personal
Freedom, " 	states:
The 	Employer 	is 	not 	concerned with 	the
personal 	life 	of 	any member 	of 	the 	Unit,
unless 	it 	prevents 	the 	member 	from performing
the 	member's 	assigned 	functions. 	The
employee 	is 	entitled 	to 	full 	constitutional
rights 	of 	citizenship, 	and 	the 	member's
religious 	or political 	activities 	are 	not
grounds 	for 	discipline 	or 	discrimination 	with
respect 	to 	the 	member's 	professional
employment, 	as 	long 	as 	he/she 	does 	not
violate 	any 	local, 	state, 	or 	federal 	law.
13

the 	clause 	is 	not 	on 	the 	employment-related 	issues 	in which 	a
union 	would 	be 	involved, 	but 	on 	an 	employee's 	activities 	that 	are
personal 	in 	nature 	and do 	not 	legitimately 	involve 	the 	employer.
The 	contract 	does 	not 	incorporate 	broad 	constitutional 	rights.
Rather, 	within 	the 	context 	of 	an 	employee's 	personal 	life, 	the
contract 	protects 	"full 	constitutional 	rights 	of 	citizenship."
When 	that 	language 	is 	read 	in 	the 	context 	of 	the 	entire 	clause
with 	references 	to 	religious 	and 	political 	activity, 	it 	seems
apparent 	that 	the 	parties 	intended 	to 	protect 	activities, 	such 	as
voting, 	involvement 	in partisan 	political 	activities 	and 	party
affiliations, 	an 	opinion 	expressed by 	the 	PERE 	regional 	attorney.
The 	proviso 	of 	section 	5.2, 	which 	places 	restrictions 	on 	an
employee's 	personal 	life 	if 	it 	prevents 	any 	bargaining 	unit
member 	from 	performing 	his 	or her 	assigned 	tasks, 	conforms 	to
this 	interpretation.
Second, 	the 	District's 	reliance 	on Ofsevit 	v. 	Trustees 	of
Cal. 	State 	University 	& 	Colleges 	(1978) 	21 	Cal.3d 	763 	[148
Cal.Rptr. 	1], 	to 	broaden 	the 	application 	of 	section 	5.2 	is
misplaced. 	In 	that 	case, 	the 	Supreme 	Court 	found 	substantial
evidence 	to 	support 	the 	lower 	court's 	conclusion 	that 	the
University had 	denied 	reappointment 	to 	a 	lecturer 	in 	retaliation
for 	his 	exercise 	of 	his 	First 	Amendment 	rights. 7 	While 	the
7The 	Supreme 	Court 	cited 	the 	findings 	and 	conclusions 	upon
which 	the 	lower 	court 	based 	its 	opinion: 	(1) 	that 	the 	plaintiff
was 	a 	member 	of 	and participated 	in 	the 	activities 	of 	the
American 	Federation of. Teachers; 	(2) 	was 	an 	outspoken 	academic
employee 	in 	favor 	of 	the 	political 	activities 	of 	students 	and
academic 	employees 	in 	connection 	with 	a 	student 	and 	faculty
strike; 	(3) 	that 	the 	termination 	of 	the 	plaintiff 	was 	an
14

plaintiff's 	union 	activities 	are 	included, 	the 	Court 	ruled 	that
it 	was 	the 	plaintiff's 	outspoken political 	alignments 	within 	the
polarized 	department 	that 	triggered 	his 	dismissal 	and 	that 	this
decision violated 	the 	plaintiff's 	rights 	under 	the 	First
Amendment.
Based 	on my 	reading 	of 	the 	case, 	I 	do 	not 	find 	Ofsevit,
supra, 	to 	support 	the 	broad 	conclusion 	advanced by 	the 	District
that 	union 	activities 	are 	synonymous 	with 	political 	activities.
Ofsevit 	was 	decided 	well 	before 	the 	enactment 	of 	the 	Higher
Education 	Employer-Employee 	Relations 	Act, 	when 	there 	was 	no
statute 	granting 	State 	University 	lecturers 	the 	right· to
participate 	in 	union 	activity. 	Indeed, 	Ofsevit 	concluded 	that
the 	lecturer's 	outspoken political 	activity 	-- 	a 	small 	part 	of
which 	involved 	union 	activities 	-- 	was 	the 	reason 	for 	the
University's 	failure 	to 	reappoint 	him and 	that 	conduct 	violated
his 	First 	Amendment 	rights. 	If 	anything, 	the 	case 	stands 	for 	the
conclusion 	that 	union 	activity 	is 	conduct 	protected by 	the 	First
Amendment. 	That 	does 	not 	advance 	the 	District's 	argument
because, 	as 	noted 	above, 	the 	personal 	freedom 	provision 	in 	the
parties' 	contract 	does 	not 	explicitly 	grant 	broad 	First 	Amendment
rights.
The 	District 	also 	relies 	on 	City 	of 	Madison 	Joint 	School
District 	No. 	8 v. 	Wisconsin 	Employment 	Relations 	Commission
expression 	of 	official 	dissatisfaction 	with 	his 	political
alignments 	as 	they 	related 	to 	the 	structure 	and 	organization 	of
the 	Department 	of 	Social Work 	Education; 	and 	(4) 	was 	a 	denial 	of
his 	First Amendment 	rights.
15

(1976) 	429 	U.S. 	167 	[50 	L.Ed.2d 	376, 	97 	S 	Ct. 	421]. 	In 	that
case, 	the 	U.S. 	Supreme 	Court 	struck down 	an 	order 	of 	the
Wisconsin 	Employment 	Relations 	Commission 	directing 	the 	school
board 	to 	cease 	and 	desist 	from permitting 	any 	employees 	but 	union
officials 	from 	appearing 	and 	speaking 	at 	school 	board meetings 	on
matters 	subject 	to 	collective 	bargaining. 	The 	Court 	held 	that
the 	Commission's 	order, 	which 	prohibited 	speech by 	teachers 	on
matters 	subject 	to 	collective 	bargaining., 	deprived 	them 	of 	their
First 	Amendment 	right 	to 	address 	the 	school 	board.
Like 	the 	ruling 	in 	Ofsevit, 	the 	Court's 	conclusion 	in 	City
of 	Madison, 	supra, 	does 	not 	support 	the 	District's 	position 	that
the 	parties' 	contract 	protects 	St. 	Clair 	from 	discipline 	or
discrimination 	based 	on 	his 	comments 	to 	the 	Board. 	As 	noted
above, 	the 	contract 	does 	not 	confer 	First 	Amendment 	rights, 	but
confines 	itself 	to 	the 	"full 	constitutional 	rights 	of
citizenship," 	a 	phrase 	I 	interpret 	to mean 	rights 	such as 	voting
and 	political 	activity. 	City 	of 	Madison 	is 	firmly 	based 	on 	free
speech_ rights 	and 	focuses 	on 	the 	constitutionality 	of 	the
Commission's 	order. 	It 	cannot 	be 	expanded 	to 	equate 	speech 	at
the 	board meeting 	with political 	activities 	or 	the 	constitutional
rights 	of 	citizenship 	mentioned 	in 	the 	parties' 	contract.
Thus, 	neither 	City 	of 	Madison nor 	Ofsevit 	support 	the
District's 	assertion 	that 	the 	EERA 	section 3543.S(a) 	allegation
must 	be 	deferred 	to 	arbitration 	under 	Lake 	Elsinore 	School
District 	(1987} 	PERB 	Decision No. 	646 	because 	St. 	Clair's 	role 	as
building 	representative 	or 	his 	presentation before 	the 	Board 	of
16

Trustees 	is 	conduct 	arguably 	covered 	by 	the 	parties' 	agreement. 8
The 	District's 	argument 	that 	the 	section 	3543.5(b) 	violation
is 	also 	covered by 	the 	terms 	of 	the 	contract9 is 	likewise
unpersuasive. 	First, 	the 	repeated 	assertion 	that 	reference 	to
Government 	Code 	sections 	which 	codify 	EERA demonstrate 	that 	EERA
protections 	are 	incorporated 	into 	the 	contract 	is 	fallacious.
The 	language 	cited by 	the 	District, 	such as 	section 	1.2, 	which
states 	that 	the 	contract 	was 	entered 	into 	"pursuant 	to 	sections
8The 	District's 	reliance 	on 	Pittsburgh 	Unified 	School
District 	v. 	California 	School 	Employees 	Association. 	(1985) 	166
Cal.App.3d 	875 	[213 	Cal.Rptr. 	34], 	does 	not 	advance 	its 	position.
In 	that 	case, 	the 	Court 	found 	no 	justification 	for 	the 	injunction
prohibiting 	California 	School 	Employees 	Association 	from
picketing 	and 	leafletting 	outside 	the 	business 	offices 	of 	school
board members. 	In 	reaching 	that 	decision, 	the 	Court 	concluded
that 	the 	conduct 	at 	issue 	in 	the 	injunction 	involved
constitutional 	considerations 	and 	was 	not 	an unfair 	practice
subject 	to 	PERB's 	exclusive 	jurisdiction.
Similarly, 	California 	Federation 	of 	Teachers 	v. 	Oxnard
Elementary 	Schools 	(1969) 	272 	Cal.App.2d 	514 	[77 	Cal.Rptr. 	497],
does 	not 	support 	the 	District's 	view. 	Oxnard 	concludes 	that 	the
provisions 	of 	the 	Winton 	Act 	regulating 	employer-employee
relations 	do 	not 	unconstitutionally 	impair 	the 	rights 	of
individuals 	to 	freedom 	of 	association and 	assembly.
9In 	further 	support 	of 	this 	claim, 	the 	District 	cites 	to
section 	6.2.1 	of 	the 	contract 	(definition 	of 	grievance 	as 	"a
claim by 	one 	or more 	members 	of 	the 	Unit 	or 	the 	Association 	of 	an
alleged violation, 	misinterpretation, 	or misapplication 	of 	the
terms 	and 	conditions 	of 	this 	Agreement"); 	section 	6.2.2
(definition 	of 	aggrieved 	as 	"a member 	of 	the 	Unit 	or 	the
Exclusive 	Representative 	asserting 	a 	grievance); 	and 	section
6.2.7 	(definition 	of 	a 	claim as 	"the 	assertion 	of 	a 	grievance 	by
one 	or 	more 	members 	of 	the 	Unit, 	the 	Association, 	or 	its
representative(s) ").
The 	contention made 	by 	the 	District 	in 	its 	September 	17,
1993 	supplemental 	filing 	is 	that 	by 	filing 	a 	unilateral 	change
grievance, 	the 	Association 	has 	admitted 	that 	violations 	of 	EERA
are 	grievable 	and 	therefore 	deferrable 	under Article 	2, 	section
2.3 	is 	unavailing 	and without 	merit.
17

3540 	through 	3549 	of 	the 	Government 	Code," 	in 	no 	way 	can 	be 	read
to 	incorporate 	the 	provisions 	of 	EERA 	that 	convey 	substantive
rights 	to 	employee 	organizations. 	Indeed, 	the 	District 	cites 	no
provision 	of 	the 	contract 	that 	arguably prohibits 	interference
with 	rights 	similar 	to 	those 	conferred 	to 	employee 	organizations
by EERA section 	3543.1.
The 	District's 	attempt 	to 	equate 	the 	Association's 	right 	to
file 	a 	grievance 	with 	the 	right 	to 	be 	free 	from 	interference 	is
likewise 	unavailing. 	The 	fact 	that 	the 	Association may 	file 	a
grievance 	cannot 	be 	converted 	into 	a 	substantive 	prohibition 	as
is 	established by 	EERA section 	3543.5(b).
18