San Francisco Community College District (PERB A258E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SAN FRANCISCO COMMUNITY COLLEGE
DISTRICT FEDERATION OF TEACHERS,
LOCAL 2121, Case No. SF-CE-448

Charging Party, Administrative Appeal

Vv. PERB Order No. Ad-258

SAN FRANCISCO COMMUNITY COLLEGE August 3, 1994

DISTRICT,

Respondent.

Nee ee ee ee ee ee ee ee ee ee ee

Appearances: Robert J. Bezemek, Attorney, for San Francisco
Community College District Federation of Teachers, Local 2121;
Liebert, Cassidy & Frierson, by Jeffrey Sloan and Leslie M.
Mitchell, Attorneys, for San Francisco Community College
District.

Before Carlyle, Garcia, and Johnson, Members.

DECISION
GARCIA, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by the San Francisco
Community College District Federation of Teachers, Local 2121
(Federation) of the deputy general counsel’s administrative
determination (attached), in which he declined to enforce an
order pursuant to the Educational Employment Relations Act (EERA)

section 3542(d).! That order was issued as part of the decision

‘BRERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. EERA section 3542(d) reads, in pertinent
part:

If the time to petition for extraordinary
relief from a board decision has expired, the
board may seek enforcement of any final

in
	San
	Francisco
	Community
	College
	District
	(1982)
	PERB
	Decision
No,
	278
	(San
	Francisco).
2
The
	Board
	has 	reviewed
	the 	deputy
general
	counsel's 	administrative
	determination, 	the
	Federation's
appeal, 	the
	response
	filed
	by
	the
	District,
	and
	the
	entire
	record
in
	this
	case.
	We
	concur
	in
	the
	deputy
	general
	counsel's 	decision
not
	to
	enforce
	the
	1982
	order
and
	hereby
	affirm
	the
	decision
	in
accordance 	with
	the 	discussion
	below.
decision 	or 	order 	in
	a
	district
	court 	of
appeal 	or
	a
	superior 	court 	in 	the
	district
where
	the 	unit
	determination 	or 	unfair
practice
	case 	occurred.
	The
	board
	shall
respond
	within
	10
	days
	to
	any
	inquiry
	from
	a
party 	to
	the
	action
	as
	to
	why
	the
	board 	has
not 	sought
	court
	enforcement 	of 	the
	finaldecision 	or 	order.
	If
	the 	response
	does
	not
indicate 	that 	there
	has 	been 	compliance 	with
the 	board's 	final 	decision 	or 	order, 	theboard
	shall
	seek 	enforcement 	of 	the
	finaldecision 	or 	order
	upon
	the 	request 	of 	the
party.
	[Emphasis
	added.]
FEDE.RATION'S 	APPEAL
On
	appeal, 	the 	Federation
	argues
	that
	the
	Board
	should
enforce 	the
	1982
	order
	because
	the
	language
	of
	that
	order
11
clearly 	states
	that
	the
	District
	must
	cease
	and
	desist
	from
refusing 	to
	arbitrate
	all
	arbitrability
	questions."
	The
Federation
	claims
	that
	thE-::
	District
	was
	under
	the
	obligation 	to
arbitrate
	since 	the 	contract
	language
	at
	issue
	has 	remained
	the
same
	over 	the 	years.
	If
	the 	Board's 	order 	in
	San
	Francisco
	is
	to
2
0n March 	11, 	1994,
	the 	Federation 	requested 	that 	the 	deputy
general 	counsel 	enforce 	the
	1982
	order 	pursuant 	to
	EERA
	section
3542(d) 	because 	the
	San
	Francisco
	Community
	College
	District(District) 	refused 	to 	arbitrate 	certain 	grievances.
2

have
	its
	intended
	prospective
	effect,
	the
	District
	cannot
	refuse
to
	arbitrate
	certain
	grievances
	in
	1994.
	The
	District's
	action
undermines
	the 	Board's
	authority
	and
	has
	led 	to
	a
	plethora
	of
unnecessary
	litigation
	in
	a
	variety
	of
	forums.
	Finally, 	the
Federation
	argues,
	"The
	proper place
	to
	resolve
	arbitrability
questions
	under
	this
	collective
	bargaining
	agreement
	was
arbitration
	in
	1982, 	and
	is
	with
	arbitration
	today."
DISTRICT'S
	RESPONSE
In
	response, 	the
	District
	argues
	that
	enforcement 	of
	the
1982
	order
	is
	inappropriate
	because
	the 	present
	case
	is
substantively
	different
	than
	that
	presented 	to 	the
	Board
	in
	San
Francisco.
	The
	District's
	position
	is
	that
	the 	order
	does
	not
apply
	to
	the
	facts
	of
	this
	case 	because
	the
	conduct
	now
complained 	of
	by
	the 	Federation 	(the
	District's
	refusal 	to
arbitrate
	certain
	grievances 	based
	on
	contract
	language
3 )
	is
entirely
	new
	and
	unrelated 	to 	that
	disputed
	in
	1982
	(the
District's
	refusal 	to
	arbitrate
	other
	grievances 	based
	on
	an
Education
	Code
	section).
	The
	contract
	interpretation 	issue
	was
not 	considered
	in
	San
	Francisco,
	and
	the
	interpretation
	of
	that
section
	is
	properly 	before 	the 	Superior 	Court, 	not
	PERB. 	The
San
	Francisco 	decision 	addressed 	the 	limited 	question 	of 	whether
the 	Education
	Code
	pre-empted 	the 	contractual 	grievance 	procedure
3
The
	District 	refers 	to 	Article
	22.C.1, 	regarding
timeliness,
	which 	was
	not
	at 	issue 	in 	the 	prior decision. 	That
section 	of 	the 	collective bargaining 	agreement
	states 	that
	a
"[g]rievant
	who
	fails 	to
	comply
	with 	the 	established 	time
	limits
at
	any 	step 	shall 	forfeit 	all 	rights 	for 	that 	grievance 	to
further 	application 	of 	this 	Grievance 	Procedure."
3

with
	regard
	to
	employee
	suspensions,
	whereas
	the
	current 	case
involves
	the
	arbitrability
	of 	the
	District's
	failure
	to
	reemploy
probationary
	employees.
ISSUE.
Should
	PERB
	exercise
	its
	discretionary 	authority 	to 	enforce
the
	1982
	order?
DISCUSSION
EERA
	section
	3542
	grants
	PERB
	authority 	to
	use
	its
discretion
	to
	enforce
	orders.
	For
	the
	reasons
	stated
	below,
	we
affirm
	the
	deputy
	general
	counsel's 	decision
	not
	to
	use
	the
	1982
order
	to 	join
	a
	dispute
	that
	is
	presently
	heading
	for
	resolution
in
	two
	separate
	forums.
4
First,
	the
	deputy
	general
	counsel
	and
	the
	Board 	have
examined
	the 	facts
	and
	legal
	arguments
	involved
	in
	earlier
case
	versus 	the 	present 	dispute.
	Based 	on
	our 	review
	we
	agree
with
	the
	deputy
	general 	counsel's
	conclusion
	that
	the
	two
disputes
	differ 	significantly.
	Therefore,
	it
	is
	not
	appropriate
t.".J	
allow 	the
	1982
	order 	to
	dictate 	the
	outcome
	in
	a
	different
case 	today.
Second,
	to 	enforce 	the
	1982
	order
	would
	allow
	it
	to
overpower
	possible
	District
	defenses 	regarding 	issues
	not
addressed 	in
	1982.
	As
	the
	District
	properly 	argues
	in
	its
4
The 	two
	cases 	are
	San
	FrqJ1cisg_9 	Community
	College
	District
v. 	Helen
	Lew,
	et 	al.,
	San
	Francisco 	Superior 	Court 	CaseNo.
	958078,
	in
	which
	a
	preliminary 	injunction 	has 	been 	issued,
and
	a
	pending
	PERB
	unfair 	practice 	charge, 	Case 	No. 	SF-CE-1699
(filed
	March 	9, 	1994).
4

response
	to
	the
	Federation's
	appeal, 	the
	prior
	order
	was
	based
	on
a
	different
	factual 	issue
	and
	involved
	resolution
	of
	a
	different
legal 	issue.
	To
	deprive 	the
	District
	of
	the
	ability
	to
	respond
to
	new
	factual
	and
	legal 	issues
	today
	would
	potentially
	deny
	them
a
	full
	and
	fair
	hearing.
	For
	that
	reason,
	it
	is
	also
inappropriate 	to
	use 	an
	unrelated 	order 	to
	resolve 	the
	matter.
For
	the
	reasons
	stated
	above,
	we
	do
	not 	accept 	the
Federation's
	contention
	that
	the 	Board's
	refusal 	to 	exercise
	its
statutory 	discretion 	in
	this
	case
	will
	undermine
	the 	Board's
authority
	to
	do
	so
	in 	other
	cases
	that
	involve
	different 	facts.
ORDER
We
	hereby
	AFFIRM
	the
	deputy
	general
	counsel's 	April
	15,
	1994
administrative
	determination
	in
	Case
	No.
	SF-CE-448.
Members
	Carlyle
	and 	Johnson
	joined
	in 	this
	Decision.
5

STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of
the
General Counsel
103
1 1
8th
Street
Sacramento,
CA
95814-4174
(916) 322-3198
April
	15,
	1994
Robert
	J.
	Bezemek
The
	Latham
	Square
	Building
1611
	Telegraph
	Avenue,
	Suite
	936
Oakland,
	California
	94612
Leslie	
M.	
Mitchell
LIEBERT,
	CASSIDY	
&	
FRIERSON
49
	Stevenson
	Street,
	Suite
	1050
San
	Francisco,
	California
	94105-2909
)	
PETE
WILSON, /Suvemar
Re:
	San
	Francisco
	Community
	College
	District
	Federation 	of
Teachers,
	Local
	2121
	v.
	San
	Francisco
	Community
	College
District
Request
	for
	Enforcement
	of
	PERB
	Decision
No. 	278
Dear
	Parties:
On
March
	11,
	1994 	I
	received
	a
	request 	for
	enforcement
	of
	San
Francisco
	Community
	College
	District
	(1982)
	PERB
	Decision
	No. 	278
from
	the
	San
	Francisco
	Community
	College
·District
	Federation 	ofTeachers
	(Federation).
	The
	Federation
	asserts 	that
	the
	San
Francisco
	Community
	College
	District
	(District)
	is
	violating
	thecease
	and
	desist
	order 	of
	PERB
	Decision
	No. 	278
	by
	declaring 	null
and
	void 	lawfully 	negotiated 	provisions
	of
	the
	collectivebargaining
	agreement 	and
	refusing 	to
	process 	grievances 	of
bargaining
	unit
	members
	represented
	by
	the 	Federation.
	The
Federation 	seeks
	PERB
	enforcement
	of 	the 	cease
	and
	desist
	orderpursuant 	to
	Government 	Code
	Section
	3542(d) . 1
1 Government 	Code
	Section
	3542(d)
	reads
	in 	pertinent 	part:
If
	the 	time
	to 	petition 	for 	extraordinary
relief
	from 	a
	board 	decision
	has 	expired, 	theboard
	may
	seek 	enforcement 	of
	any
	finaldecision 	or 	order 	in 	the
	district
	court 	ofappeal 	or
	a
	superior 	court 	in 	the
	district
where
	the 	unit 	determination 	or 	unfair
practice 	case 	occurred.
	The
	board
	shall
respond within
	10 	days
	to
	any
	inquiry
	from a
party 	to 	the 	action 	as 	to
	why
	the 	board has
not 	sought 	court 	enforcement 	of 	the 	finaldecision 	or 	order. 	If 	the 	response 	does 	not
indicate 	that 	there 	has 	been 	compliance 	with
the 	board's 	final 	decision 	or order, 	the
board 	shall 	seek 	enforcement 	of 	the 	final
decision 	or 	order upon 	the 	request 	of 	the

)
On March 	14, 	1994 	I 	notified 	the 	parties 	by 	letter 	that 	(1) 	the
District 	would 	have 	ten 	days 	to 	respond 	to 	the 	request 	and 	(2)
the 	Federation 	would 	then 	have 	ten 	additional 	days 	in which 	to
file 	a 	reply. 	On March 	23, 	1994 	the 	District 	responded. 	It
provided additional 	information 	on March 	31, 	April 	4, 	7, 	12, 	and
13. 	The 	Federation 	replied 	on March 	30, 	1994 	and 	supplied
additional 	information 	on March 	21, 	April 	6, 	7, 	8 	and 	11, 	1994.
party.
PERB 	Decision No. 	278
In 	1980v 	the 	Federation 	filed 	an 	unfair practice 	charge 	against
the 	District 	alleging 	that 	it 	violated 	the 	EERA by 	refusing 	to
process 	a 	grievance 	involving 	a 	suspension 	of 	an 	instructor. 	The
District 	asserted 	that 	(1) 	the 	Education 	Code 	governed 	the 	matter
at 	issue 	and 	(2) 	the 	Federation 	had 	failed 	to 	exhaust 	the
grievance 	procedure 	and 	should have 	filed 	a 	motion 	to 	compel
arbitration 	in 	the 	Superior 	Court 	under 	EERA Section 	3548.7. 2
The 	administrative 	law 	judge 	found 	that 	the 	District's 	position
that 	the 	grievance 	procedure 	could 	not 	be 	used 	to 	process 	a
suspension grievance 	based 	on 	the 	Education 	Code 	was 	without
merit. 	The 	ALJ 	found 	that 	"to 	the 	extent 	the 	District 	refused 	to
arbitrate 	Fuller's 	suspension 	grievance 	and 	honor 	those
provisions 	which 	had not 	been 	found 	to 	be 	in 	conflict 	with 	the
Education 	Code, 	it 	breached 	its 	obligation 	to 	negotiate 	in 	good
faith 	in violation 	of 	Section 	3543.S(c) . 11 	In 	the 	remedy 	section
of 	the 	proposed decision 	the 	ALJ 	stated:
... 	it 	has 	been 	found 	that 	the 	District 	refused 	to
process 	a 	grievance 	to 	arbitration 	under 	the 	terms 	of
the 	collective 	bargaining 	agreement. 	In 	doing 	so, 	the
District 	unilaterally 	refused 	to 	recognize 	valid
provisions 	in 	the 	negotiated agreement 	thus 	changing
t.hat 	agreemer1t 	in violation 	of 	Sections 	3543. 5 (a), 	(b)
and 	(c). 	It 	is 	appropriate 	to 	order 	the 	District 	to
cease 	and 	desist 	from 	all 	such activities 	in 	the
future, 	and 	to 	recognize 	and honor 	the 	terms 	of 	the
negotiated 	agreement 	in accordance 	with 	this 	proposed
decision.
Accordingly, 	the 	ALJ's 	proposed 	order 	states 	that 	the 	District
shall:
1. 	CEASE AND DESIST 	FROM:
2 	The 	grievance 	provisions 	of 	the 	1978-1981 	contract 	between
the 	Federation and 	District 	are 	effectively 	identical 	to 	those
contained 	in 	the 	contract 	presently 	in 	effect.
2

)
a.
	Refusing
	to 	negotiate
	in
	good
	faith
	with
	the
exclusive
	representative,
	San
	Francisco
	Community
College
	Federation 	of
	Teachers,
	Local
	2121,
	CFT/AFT,
AFL-CIO,
	under
	the
	Educational
	Employment
	Relations
	Act
by
	unilaterally
	declaring 	lawfully 	negotiated
provisions
	of
	a
	collective
	bargaining
	agreement
	null
and
	void
	and
	refusing 	to
	process 	grievances 	of
bargaining
	unit
	members,
	represented
	by
	the 	exclusive
representative,
	under
	those
	provisions.
These
	provisions
	of
	the
	proposed
	decision
	were
	not 	appealed
	to
the
	Board and
	thus
	became
	final
	as
	to
	the
	parties
	pursuant
	to
	the
Board
	order
	in
	PERB
	Decision
	No.
	278.
The
	Present
	Dispute
The
	underlying
	issues
	in
	this
	case 	concern
	Helen
	Lew, 	a
probationary
	instructor 	in
	the
	Biology Department, 	and
	Raymond
Chamberlain,
	a
	probationary
	instructor 	in
	the
	Chemistry
Department.
	Both
	instructors
	were
	hired
	in
August
	1991
	and
	were
evaluated
	after 	their 	third
	and
	fourth
	semester 	of
	teaching
	by
tenure
	review 	committees.
	Article
	9(c)
	of 	the
	parties'
	present
collective
	bargaining
	agreement
3	
requires
	a
	third
	semester
evaluation
	by
	the 	tenure
	review
	committee 	which must
	recommend
	tothe
	district
	board whether
	the 	probationary
	faculty
	member
	should
be
	re-employed
	for 	the
	following
	academic
	year.
	A
recommendation
not
	to
	re-employ
	must 	be
	made
	by
	a
	committee
	vote
	which
	is
unanimous
	or 	within
	one
	vote 	of
	unanimous.
Following
	Lew's
	third
	semester 	(Fall
	1992)
	evaluation, 	her 	tenure
committee
	recommended
	unanimously
	that
	she 	not
	be 	re-employed
	forthe
	1993-94 	academic
	year
	due
	to 	substantial
	teaching
deficiencies.
	A
letter
	indicating
	this
	was
	sent 	to
	Ms. 	Lew
	on
February
	22,
	1993
	by
	Frances
	Lee,
	the
	District;s
	Acting
Chancellor.
	Following 	Chamberlain's
	third
	semester 	(Fall
	1992)
evaluation his
	tenure
	review 	committee
	recommended
	by
	a
	4-1 	vote
that
	he 	not
	be 	re-employed
	for 	the
	1993-94 	academic
	year
	due
	to
deficiencies 	in 	his
	knowledge
	of 	general 	chemistry.
	A
letter
	to
this 	effect
	was
	sent 	to
	Mr.
	Chamberlain 	on
	February 	22.
	On
February
	24
	the
	District
	Board adopted
	res9lutions 	stating 	that
they
	would
	not 	re-employ
	Ms. 	Lew
	or
Mr.
	Chamberlain
	for 	the
	1993-94
	school 	year.
	A
copy
	of 	the 	Board's
	resolution
	was
	forwarded
to 	the 	instructors
	by
	separate
	letters
	dated
	March 	2 	from
	Acting
Chancellor
	Lee.
The
	Federation 	grieved 	the
	District
	Board's 	actions
	on March 	26.
On May 	27
	the 	Federation's 	grievances
	were
	discussed by
	the
3 The
	parties' 	present 	contract 	has 	the 	effective 	dates 	of
July 	1,
	1992 	through 	June 	30, 	1994.
3

parties 	and 	led 	to 	a 	chancellor-level 	response 	of 	denial 	to 	Lew's
grievance 	on 	June 	8 	and 	to 	Chamberlain's 	grievance 	on 	June 	9.
Lew 	and 	Chamberlain were 	provided with 	fourth 	quarter 	evaluations
on May 	27 	and May 	20 	respectively. 4 	These 	evaluations 	were
grieved by 	the 	Federation on 	July 	8 	and 	denied 	by 	the 	District 	on
July 	20 	and 	21 	respectively.
On July 	13 	the 	Federation 	requested 	the 	District 	join 	the 	union
in 	stipulating 	that 	the 	deadline 	for 	demanding 	arbitration 	in 	the
Chamberlain 	and 	Lew 	grievances 	be 	extended 	to 	August 	1. 	This 	was
denied 	by 	the 	District 	via 	July 	16 	letter 	transmitted via
telephonic 	facsimile. 	On July 	20 	the 	District 	received 	an
amendment 	and 	particularization 	of 	Chamberlain's 	grievances. 	The
District 	responded 	to 	this 	document 	in 	a 	July 	22nd 	telefaxed
letter. 	Also 	on 	July 	22 	the 	Union 	requested 	the 	working 	papers
concerning 	these 	grievances. 	The 	District 	refused 	to 	provide 	the
papers. 	On 	July 	27 	the 	Federation 	filed 	a 	grievance 	over 	this
denial.
On July 	27 	the 	Federation sent 	the 	following 	letter 	to 	the
Di.strict:
To 	ensure 	that 	the 	District 	clearly understands 	the
intent 	of 	the 	Union 	to 	arbitrate 	the 	Chamberlain and
Lew grievances, 	we 	wish 	to 	reiterate 	that 	we 	are
demanding 	arbitration 	on 	the 	fourth 	semester, 	as 	well
as 	the 	third 	semester, 	evaluations 	of 	grievants
Chamberlain and 	Lew, 	including 	the 	amendment 	and
particularization of 	the 	Chamberlain 	grievances.
On August 	11 	the 	Federation 	requested 	the 	American Arbitration
Association 	(AAA) 	provide 	a 	list 	of 	arbitrators 	for 	the
Chainberlain 	and 	Lew 	grievances. 	On August 	16 	the 	District
notified 	the 	Federation and 	the 	AAA 	that 	it 	felt 	arbitration 	was
inappropriate 	for 	these 	grievances 	because 	they were 	untimely
filed. 	The 	District 	explained 	that 	the 	"working 	papers"
grievance 	should be 	denied 	arbitration 	because 	the 	underlying
grievances 	upon 	which 	it 	was 	based were 	untimely. 	Shortly
thereafter, 	a 	series 	of 	letters 	between 	the 	District's 	attorney,
the 	Federation and AAA were 	exchanged. 	The 	final 	decision 	of 	AAA
was 	to 	proceed with 	the 	arbitration unless 	both parties 	agreed 	to
withdraw 	it 	or 	the 	AAA was 	stayed by 	court 	order. 	The
arbitration 	was 	scheduled 	for 	May 	12, 	1994.
4 	In 	the 	fourth 	semester 	review Chamberlain's 	tenure 	review
comrnittee 	voted 	3-2 	to 	recommend 	that 	he 	not 	be 	reemployed. 	The
vote 	in 	the 	third 	semester 	review had been 	4-1. 	Lew's 	committee
vote 	did 	not 	change,
4

)
On
	January
	25,
	1994
	the
	District 	filed
	a
	complaint
	for 	injunctive
relief
	in
	the
	San
	Francisco 	Superior
	Court
	seeking
	to
	halt
	the
arbitration.
	The
	Federation 	counterclaimed 	seeking
	an
	order
compelling
	arbitration.
	A
hearing
	on
	this
	matter
	was
	held
	on
April
	8,
	1994
	and 	Judge
	Stuart
	Pollak 	issued
	the 	following
ruling:
Grant
	injunction
	and deny
	petition
	to
	compel
arbitration.
	The
	CBA
does
	not 	confer
	on
	the
	arbitrator
authority 	to
	determine
	arbitrability
	which
	therefore
	is
for
	the 	court
	to
	determine.
	Defendants
	did
	not
	demand
arbitration
	of
	their
	initial
	grievances 	within 	the
	15
day 	time
	period
	established
	by
	CBA
	22-E-3.1 	That
grievance
	was 	from
	the
	February
	24,
	1993
	decision
	not
to
	re-employ
	plaintiffs.
	The
	subsequently
	filed
grievances
	are
	from
	other decisions
	which
	are
	not
subject 	to
	an 	agreement
	to
	arbitrate.
	While
	the
	Board
of
	Trustees
	certainly
	had
	the
	authority 	to 	rescind 	the
February
	24
	decision
	based
	upon
	the 	4th 	semester
evaluations,
	its
	failure
	to
	do
	so
	is
	not
	the 	subject 	of
an
	agreement
	to
	arbitrate.
The
	Federation's 	allegations 	that
	the
	District
	refused
	to
	processthe
	Lew
	and 	Chamberlain
	grievances
	are 	also
	contained
	in
	Unfair
Practice
	Charge
	No. 	SF-CE-1699
	which
	was
	filed
	by
	the 	Federation
on March
	9, 	1994.
	The
	investigation
	concerning
	this
	charge 	has
not 	been 	completed.
	The
	basic 	theory 	of
	the
	case
	is
	that
	the
Federation's 	request 	to
	arbitrate
	the 	grievances
	is
	timelybecause 	the 	timelines 	for
	pursuing 	these 	grievances 	are 	described
in Article
	9 	-
	Evaluation.
	Article
	9
	has
	no
	time
	limit 	forrequesting
	arbitration after
	a
	decision
	by
	the 	Chancellor. 	This
is 	in
	contrast 	to Article
	22 	-
	Grievance 	Procedure
	which
	requires
that
	a
	timely 	request 	for
	arbitration
	must 	be
	filed
	within
	15
days
	of 	receipt
	of 	the 	Chancellor's 	decision.
FEDERATION POSITION
The
	Federation
	asserts 	that
	the
	District 	is
	refusing 	to
	arbitrate
grievances. 	This
	is
	the
	same
	conduct 	which 	was
	found
	to
	be
	inviolation
	of 	the
	statute 	in
	PERE
	Decision
	No. 	278.
	Accordingly,
PERE
	should 	enforce 	the 	cease
	and
	desist 	portion 	of
	that 	order
and
	require 	the
	District 	to 	arbitrate
	the
	Chamberlain and
	Lew
grievances.
DISTRICT 	POSITION
The
	District 	believes 	that
	enforcement 	of 	the
	1982
	order
	isinappropriate 	because
	this 	is
	primarily
	a
	question 	of 	contract
interpretation
	over which
	PERB
	does 	not 	have
	jurisdiction. 	In
addition 	the 	District
	argues 	that 	the 	cease 	and
	desist 	order 	in
PERE
	Decision
	No. 	278 	does 	not 	cover 	the 	facts 	of 	the 	presentcase. 
5

DISCUSSION
Government
	Code
	section
	3542(d)
	is
	partially
	administered
	through
Section
	32980
	of
	PERB's
	regulations
	which
	reads
	in pertinent
part:
The
	General
	Counsel
	is
	responsible
	for
	determining
	that
parties
	have
	complied
	with
	final
	board
	orders.
	The
General
	Counsel
	or
	his
	designate
	may
	conduct 	an
inquiry,
	investigation, 	or
	hearing
	~nder
	Division
	1,
Chapter
	3
	of
	these
	regulations
	concerning
	any
compliance
	matter.
(a)
	In
	each
	case
	in
	which
	a
	compliance
investigation
	or 	hearing
	is
	conducted,
	a
	written
determination
	shall
	be
	served
	on
	the
	parties.
(b) 	A
determination
	based
	on
	an
	investigation
may
be 	appealed
	to
	the
	Board
	itself
	pursuant
	to
	Division
	1,
Chapter
	4,
	Article	
2	
of 	these 	regulations.
This
	request
	does
	not
	raise
	disputes
	of
	material
	facts
	and
	will
be
	decided 	based
	on
	the
	submissions 	of 	the
	parties.
	Los
	Angeles
Community
	College
	District
	(1984)
	PERB
	Decision
	No.
	411; 	Los
Angeles
	Unified
	School
	District
	(1993)
	PERB
	Order
	No.
	Ad-250.
There
	is
	no
	PERB
	precedent 	regarding
	when
	PERB
	orders 	should
	be
enforced
	in
	a
	situation
	such
	as
	this.
	There
	is
	no
	evidence
indicating 	that
	the 	cease
	and
	desist
	order
	was
	not 	promptly
complied
with
	by
	the
	District 	after
	the
	Board
	issued 	the 	decision
in
	1982. 	Here,
	the 	Federation 	seeks
	to
	compel
	arbitration 	in
1994
	by
	asking
	PERB
	to 	require 	the
	District
	to
	cease
	and
	desist
refusing 	to
	arbitrate
	based
	on
	an
	order 	issued
	in
	1982.
Due
	to
	the 	lack 	of
	PERB
	authority,
	the 	National
	Labor
	Relations
Act
	precedent 	should be 	reviewed.
5	
The
	National
	Labor
	Relations
Board 	Case 	Handling
	Manual
	issued
.April
	1989
	at
	Section
	10508.2
states 	in 	pertinent 	part:
Criteria 	for
	filing
	a
	new charge: 	Whether
	or 	not
	a	
new
charge 	covering 	the 	matters
	now
	being
	complained
	of
should
	be
	filed
	depends 	on
	the 	circumstances.
Ordinarily, 	the
	better 	practice
	is
	to 	suggest
	that
	a
new
	charge 	be
	filed 	in
	view
	of 	the 	fact 	that 	there 	has,
as 	yet,
	been
	no
	court
	enforcement 	of 	the
	Board
	order.Generally,
	a 	new
	charge 	should be
	filed
	when
	thecomplaint 	of 	non-compliance
	may
	also 	involve 	the
occurrence 	of
	a 	new
	unfair 	labor 	practice.
	For
5	
It 	is
	appropriate 	for
	PERB
	to 	take 	guidance 	from
	the
	NLRA
precedent
	when
	applicable 	to 	public 	sector 	labor 	relations
issues. 	Fire 	Fighters 	Union	
v,	
Ci_ty
	of 	VallJllQ 	(1974) 	12
	Cal.3d608, 	616.
6

)
example,
	when
	the
	respondent 	has 	been
	ordered
	to
	cease
and
	desist
	from
	interrogating
	its
	employees
	concerning
union
	activities,
	a
	new
	occurrence
	of
	8(a)
(1)
	conduct,
although 	considered 	as
	non-compliance
	with
	the 	cease-
and-desist
	provisions
	of
	the 	order,
	may
	also
	be
	a
	new
unfair
	labor
	practice 	violation.
	The
	new
	occurrence,
if
	meritorious
	cannot
	be 	remedied
	under
	the
	existing
board
	order
	which
	provisions
	cover 	only
	previously
found
	violations.
	Under
	these
	circumstances,
	a 	new
charge
	may
	be
	filed.
In
	this
	case 	the 	Federation
	filed
	a
	new
	charge
	alleging
violations
	based
	on
	the
	District's
	handling 	of 	the
	Chamberlainand
	Lew
	grievances.
	Under
	the 	guidelines
	of 	the
	NLRB,
	filing
	of
a
	new
	charge 	appears
	to
	be
	the
	preferred
	practice.
	If
	charging
party 	also
	seeks 	enforcement
	of
	a
	prior
	decision,
	it
	must
	be
shown
	that
	the
	decision
	prohibits
	the
	newly
	complained-of
conduct.
The
	first
	question
	is
	whether
	the
	presently-alleged
	conduct
	is
identical
	to 	that
	described
	in
	PERB
	Decision
	No.
	278.
	In
	PERB
Decision
	No.
	278
	the
	District's
	main
	contention
	was
	that
	a
grievance
	concerning
	the 	suspension
	of
	an
	employee
	was
	not
arbitrable
	because
	the 	grievance 	procedure
	had 	been
	superseded
	by
provisions
	of
	the
	Education
	Code. 	The
	ALJ
	and
	the
	Board
	found
that 	refusal 	to
	arbitrate
	a
	grievance 	based
	on
	this
	argument
	was
in 	fact
	a
	unilateral
	attempt
	to
	change
	the 	grievance 	procedure
	in
violation
	of 	the
	EERA.
	The
	cease
	and
	desist
	order
	in
	the
decision
	was
	directed 	to
	that
	conduct.
	I
	find
	that
	the 	cease
	and
desist
	order
	was
	limited 	to 	the
	District's
	refusal 	to 	process
grievances
	based
	on
	its
	unilateral
	determination
	that
	provisions
of
	the 	collective
	bargaining
	agreement 	were
	null
	and
void.
In 	the 	present
	situation
	the
	District
	argues
	that
	it
	is
	not
required 	to
	arbitrate
	the
	Chamberlain and
	Lew
	grievances 	because
the 	request 	to
	arbitrate
	was
	filed
	too
	late
	under
	Article
	22.
Without 	reaching 	the 	merits 	of 	the 	question 	over whether
	thegrievances 	and/or 	the 	requests 	for
	arbitration
	were
	timely,
	I
find
	that
	the
	District's
	position 	in
	the 	present 	case
	is
substantively 	different
	than
	that
	presented
	in
	Board
	Decision
	No.
278. 	There
	is
	no
	indication 	that 	the
	District 	is
	presentlyarguing
	that 	provisions 	of 	the
	agreement
	are 	null
	and
	void 	or
superseded
	by
	the 	Education
	Code.
	It 	is 	this 	activity 	that
	was
found
	to
	be
	in violation
	of 	the
	statute 	in
	PERB
	Decision
	No.
	278.
And
	it
	is 	this 	activity 	that 	the 	decision's
	cease 	and
	desistorder
	was
	designed 	to 	prevent.
Finding 	that 	the
	District's
	conduct 	regarding
	Mr.
	Chamberlain 	and
Ms. 	Lew
	is
	not 	covered by
	the 	cease 	and
	desist 	order 	contained 	in
PERB
	Decision
	No. 	278,
	I
	find
	it
	would 	be 	inappropriate 	toenforce 	that 	board 	decision and 	order. 	These 	issues 	should 	be
investigated 	as 	part 	of 	the 	newly
	filed 	unfair 	practice 	charge.
7

}
Right
	of
	Appeal
An
	appeal 	of
	this
	decision
	to
	the
	Board
	itself
	may
	be
	made
	within
ten
	(10)
	calendar
	days
	following
	the 	date 	of
	service
	of
	this
decision
	(PERB
	regulation
	32360).
	To
	be
	timely
	filed,
	the
original
	and
	five
	(5)
	copies 	of
	any
	appeal
	must
	be
	filed
	with 	the
Board
	itself
	at
	the
	following 	address:
MEMBERS,	
PUBLIC	
EMPLOYMENT	
RELATIONS
	BOARD
1031
	18th
	Street,
	Suite
	200
Sacramento,
	CA
	95814-4174
A
document
	is
	considered
	"filed"
	when
	actually
	received
	before
the
	close
	of
	business
	(5:00 	p.m.)
	on
	the
	last
	day
	set
	for
	filing,
"·
	..
	or
	when
	sent
	by
	telegraph or
	certified
	or
	Express
	United
States
	mail,
	postmarked
	not
	later
	than
	the
	last
	day
	set 	for
filing
	...
n	
(regulation
	32135).
	Code
	of
	Civil
	Procedure
section
	1013
	shall
	apply.
The
	appeal
	must
	state
	the
	specific
	issues
	of 	procedure,
	fact,
	law
or
	rationale 	that
	are
	appealed
	and
	must
	state
	the
	grounds
	for
	the
appeal
	(regulation
	32360(c)).
	An
	appeal
	will
	not
	automatically
prevent 	the
	Board
	from
	proceeding
	in
	this
	case.
	A
party
	seeking
a·stay
of
	any
	activity
	may
	file
	such
	a
	request 	with
	its
administrative
	appeal,
	and must
	include
	all
	pertinent 	facts
	and
justifications
	for 	the 	request 	(regulation
	32370).
If
	a
	timely
	appeal
	is 	filed,
	any
	other 	party
may
	file
	with 	the
Board
	an
	original
	and
	five
	(5)
	copies 	of
	a
	response
	to
	the 	appeal
within 	ten
	(10)
	calendar
	days
	following 	the
	date 	of
	service
	of
the 	appeal 	(regulation
	32375).
Servic~
All
	documents
	authorized 	to
	be
	filed
	herein
	must
	also
	be
	"served"
upon
	all
	parties
	to 	the 	proceeding
	and 	on
	the
	Sacramento
	regional
office.
	A
	"proof 	of 	service"
	must 	accompany
	each
	copy
	of
	a
document
	served
	upon
	a
	party 	or
	filed
	with 	the
	Board
	itself
	(see
regulation
	32140
	for 	the 	required 	contents
	and
	a
	sample
	form).
The
	document
	will
	be
	considered 	properly
	11
served
11
	when
	personally
delivered 	or 	deposited 	in 	the
	first-class
	mail 	postage 	paid
	and
properly 	addressed.
Sincerely 	yours,
/f/4/
~~
Robert
	Thompson
Deputy 	General 	Counsel
RGT:nmm
8