Santa Ana Unified School District (PERB A263E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SANTA ANA EDUCATORS ASSOCIATION,

Charging Party, Case No. LA-CE-3382
Vv. Administrative Appeal
SANTA ANA UNIFIED SCHOOL DISTRICT, PERB Order No. Ad-263

Respondent. December 1, 1994

ee ee ee ee ee

Appearances: California Teachers Association by Charles R.
Gustafson, Attorney, for Santa Ana Educators Association; Breon,
O’Donnell, Miller, Brown & Dannis by Claudia P. Madrigal,
Attorney, for Santa Ana Unified School District.
Before Blair, Chair; Caffrey, Garcia and Johnson, Members.
DECISION

BLAIR, Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by the Santa Ana
Unified School District (District) of a PERB administrative law
judge’s (ALJ) denial (attached hereto) of its motion to dismiss
and defer to arbitration the Santa Ana Educators Association's
(Association) unfair practice charge.' In its charge, the

Association alleged that the District violated section 3543.5 (a)

and (b) of the Educational Employment Relations Act (HERA) .?

'TIn Santa Ana Unified School District (1994) PERB Order
No. Ad-256, the Board ordered a stay of the hearing pending
resolution of the District’s appeal.

"FERA is codified at Government Code section 3540 et seq.
Section 3543.5 states, in pertinent part:

Tt 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.
(b} 	Deny
	to
	employee
	organizations 	rights
guaranteed 	to
	them by
	this 	chapter.
The
	Board
	has 	reviewed
	the
	entire
	record
	in
	this
	matter,
including
	the
	District's
	appeal
	and
	the
	Association's
	response
thereto.
	The
	Board
	finds 	the
	ALJ's
	determination
	to
	be
	free
	of
prejudicial 	error
	and
	adopts
	it
	as 	the
	decision
	of
	the
	Board
itself
	together
	with 	the
	discussion
	below.
DISTRICT'S
	APPEAL
On
	appeal, 	the
	District
	contends
	that
	the
	ALJ
	erred
	when
she
	refused 	to 	defer
	this
	matter
	to
	arbitration
	arguing
	that
this
	dispute
	is
	arguably
	covered
	by
	Article
	6.11.1
	of 	the
parcies' 	collective
	bargaining
	agreement
	(CBA).
	The
	District
relies
	on
	United
	Food
	and
	Commercial 	Workers 	Union.
	Local
	770
	v.
Geldin
	Meat
	Company
	(9th
	Cir.
	1994)
	13
	F.3d
	1365
	[145
	LRRM
	2206]
(United
	Food),
	in
	support 	of
	its
	assertion 	that
	where
	a
	contract
is
	susceptible 	to
	more
	than
	one
	interpretation,
	it
	is
	for 	the
arbitrator
	to
	interpret
	the
	CBA.
	The
	District
	urges 	the
	Board
to
	modify
	its
	long
	standing
	deferral
	standard
	set
	out
	in
Lake
	Elsinore
	School
	District
	(1987)
	PERB
	Decision
	No. 	646
to
	conform
	with 	the
	court's 	ruling 	in
	United
	Food.
The
	District 	additionally 	asserts 	that 	the 	Association
conceded
	that
	the 	matter
	is
	arguably 	prohibited
	by
	the
	agreement
2

because
	it
	filed
	a
	grievance
	alleging
	a
	violation
	of
Article
	6.11.1.
DISCUSSION
EERA
	section
	3541.S(a)
	provides, 	in
	pertinent 	part,
	that
PERB
	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.
In
	Lake
	Elsinore
	School
	District,
	supra,
	PERB
	Decision
No.
	646,
	the
	Board
	held
	that 	this
	section 	established
	a
jurisdictional
	rule 	requiring
	that
	a
	charge
	be
	dismissed
	and
deferred 	to
	arbitration
	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.
	Further, 	the
	Board has
	held
	that 	deferral
is 	jurisdictional,
	not
	discretionary.
In
	Los
	Angeles
	Unified
	School
	District
	(1990)
	PERB
	Decision
No.
	860,
	the
	Board
	determined
	that
	the 	exercise
	of
	PERB's
jurisdiction 	is
	not 	precluded 	unless 	the
	conduct
	alleged 	to
	be 	an
unfair 	practice 	is
	arguably 	prohibited
	by
	the
	parties'
	agreement.
Relying
	on
	United
	Food,
	the
	District
	contends
	that
if
	a
	contract 	provision
	is 	susceptible 	to
	more
	than
	one
interpretation,
	PERB
	must
	defer 	the 	matter 	to 	allow 	an
	arbitrator
to 	determine 	whether 	the 	provision 	is 	subject 	to 	arbitration.
3

The
	District
	argues
	in
	essence
	for
	the
	Board
	to
	modify
	its
standard 	for
	determining
	whether
	a
	dispute
	must 	be
	deferred
to
	arbitration
	by
	adopting
	the
	court's
	"readily 	susceptible"
standard
	in
	United
	Food.
In
	United
	Food,
	the
	union
	filed
	a
	petition
	to
	compel
	the
employer
	to
	arbitrate
	the
	union's
	grievance
	that
	the
	employer
failed
	to
	provide
	its
	employees
	with
	health
	insurance 	as 	promised
in 	the
	parties'
	CBA.
	The
	lower
	court
	denied
	the
	petition 	stating
that
	the 	union's
	charge
	was
	not
	arbitrable
	under
	the
	CBA.
	In
reversing,
	the
	court
	found
	that
	the
	CBA
	was
	"readily 	susceptible"
to
	an
	interpretation 	that
	would
	cover
	the
	union's 	dispute.
	The
court
	concluded
	that
	the
	employer 	had
	not
	established
	with
"positive
	assurance"
	that
	the
	CBA
	was
	not
	susceptible 	to
	an
interpretation
	covering 	the 	dispute.
In
	determining
	whether
	deferral
	is
	appropriate,
	the
	policy
considerations 	for
	PERB
	and
	a
	court
	faced 	with
	a
	request
	to
compel
	arbitration
	are
	different.
	When 	PERB
	considers 	whether
a
	charge
	must 	be
	deferred 	to
	arbitration,
	it
	determines 	which
forum,
	PERB
	or
	an
	arbitrator,
	has
	jurisdiction
	over 	the
	dispute.
T11e
	Board
	is
	guided
	in
	this
	determination
	by
	specific 	statutory
criteria
	which
	governs
	PERB's
	jurisdictional 	authority.
	The
District's
	call 	to
	adopt
	a
	different
	standard 	ignores 	the
	fact
that
	PERB's
	deferral 	standard
	is
	based
	in 	statute.
	In 	applying
the 	broader 	standard, 	the 	court 	in
	United
	Food
	does 	not
	interpret
the
	EERA
	or
	any
	other
	comparable
	statute.
	The
	District 	provides
no
	satisfactory 	explanation
	why
	the 	Board 	should 	abandon
	its
4

5
statutory
	deferral
	standard.
	Accordingly,
	it
	would 	be
	improper
for
	the
	Board
	to
	adopt
	this
	broad
	deferral
	standard
	and
	the
	Board
declines
	to
	do
	so.
The
	District
	also
	contends
	that
	the
	charge
	must
	be
	deferred
because
	by
	filing
	a
	grievance
	alleging
	a
	violation
	of
	Article
6.11.1,
	the 	Association
	conceded
	that
	the
	matter
	is
	arguably
prohibited
	by
	the
	agreement.
In
	State
	Center
	Community
	College
	District
	(1994)
	PERE
	Order
No.
	Ad-255,
	the
	Board
	stated 	that:
The
	positions
	taken
	by
	the
	parties 	at
	various
stages
	of
	a
	case
	are
	not
	dispositive
	of
PERB's
	authority 	to
	determine 	whether
	a
charge
	must 	be
	dismissed
	and
	deferred 	to
arbitration.
Rather, 	the
	Board
	independently
	reviews
	the 	provisions
	of
	the
parties'
	CBA
	to
	determine 	whether
	the
	complained
	of 	conduct
	is
arguably
	prohibited.
	(Id.)
	Accordingly,
	the
	District's
	argument
is 	rejected.
ORDER
The 	Board
	hereby
	AFFIRMS
	the
	ALJ's
	order
	denying
	the
	motion
to 	dismiss
	and
	defer 	the 	charge. 	Accordingly, 	the
	Board
	lifts
the
	stay
	of 	hearing
	and
	REMANDS
	this
	case
	to 	the 	Chief
Administrative
	Law
	Judge
	to
	be
	processed
	in
	accordance 	with
	PERB
regulations.
Members
	Caffrey
	and 	Johnson
	joined 	in 	this
	Decision.
Member
	Garcia's 	dissent 	begins
	on page 	6.
5

GARCIA,
	Member,
	dissenting:
	The
	Public
	Employment
	Relations
Board
	(PERE)
	does
	not
	have
	jurisdiction
	over
	this
	case 	because
the 	Educational
	Employment
	Relations
	Act
	(EERA), 	PERE
	precedent,
and
	California 	policy
	expressed
	through
	Supreme
	Court
	decisions
clearly
	mandate
	that
	the
	case
	be
	sent 	to
	arbitration.
	Simply
stated,
	the
	law
	in 	California
	directs
	a
	case
	to
	arbitration
	when
the
	collective
	bargaining
	agreement
	(CBA
	or
	agreement) 	between
the
	parties
	contains
	a
	broad
	arbitration
	clause
	which
	permits 	the
arbitrator
	to
	apply
	and
	interpret
	the 	provisions
	of 	the 	grievance
agreement.
	Only
	specific
	clauses
	can
	exclude
	a
	dispute
	from
	a
broad
	arbitration
	clause.
PERE
	is
	compelled
	to
	direct 	this
	case
	to
	arbitration
	because
California 	policy
	and 	law
	favoring
	that 	position
	is
	even
	stronger
than
	the 	federal 	policy.
	A
	review 	of
	the
	history
	of
	federal
	and
California
	arbitration
	policy 	in 	labor
	relations
	cases
	is
	helpful
to 	understanding 	the
	mandate.
Although
	none
	of
	California's
	public 	sector 	labor
	relations
statutes
	are
	copies 	of 	the 	National
	Labor
	Relations
	Act
	(NLRA),
our
	statutes 	select
	and 	combine
	principles 	established
	by
	the
National
	Labor
	Relations
	Board
	(NLRB),
	with 	provisions 	designed
to
	accommodate
	public
	employment
	in 	California.
1	
Both
	PERB
	and
reviewing 	courts 	turn 	for 	instruction 	to
	precedent
	established
1
See 	Zerger, 	Cal. 	Public 	Sector
	Labor
	Relations
	(1989)
Chapter 	2,
	section 	2.01, 	page 	3, 	footnote 	4,
	citing 	Pacific
	Legal
Foundation v.
	Brown 	(1981) 	29
	Cal.3d 	168, 	173, 	176-177,
[172
	Cal.Rptr. 	487]. 
6

under 	NLRB 	decisions. 2 	A brief 	overview 	of 	the 	federal 	precedent
on 	pre-arbitration 	deferral 	is' helpful 	to 	understanding
California 	law 	and 	policy.
Under 	the 	Labor 	Management 	Relations 	Act 	the 	NLRB 	was
granted 	broad 	quasi-legislative 	and 	quasi-judicial 	powers.
Employing 	that 	authority 	the 	NLRB 	voluntarily 	adopted 	a 	policy
that 	favored 	arbitration 	of 	disputes. 	The 	United 	States 	Supreme
Court 	reviewed 	that 	voluntary 	policy 	in a 	series 	of 	cases 	that
have 	become 	known 	as 	the 	Steelworkers 	Trilogy. 3 	In 	one 	of 	those
cases, 	Warrior, 	the 	Court 	adopted 	a 	strong 	policy 	favoring
arbitration 	of 	labor 	disputes 	whenever 	arbitrability 	was 	in
question 	by 	stating:
An 	order 	to 	arbitrate 	the 	particular
grievance 	should 	not 	be 	denied 	unless 	it 	may
be 	said 	with 	positive 	assurance 	that 	the
arbitration 	clause 	is 	not 	susceptible 	to 	an
interpretation 	that 	covers 	the 	asserted
dispute. 	Doubts 	should 	be 	resolved 	in 	favor
of 	coverage. 	(Warrior, 	supra, 	at 	582 	and
583.)
Under 	federal 	law, 	including 	NLRB 	decisions, 	regardless 	of
whether 	it 	is 	clear 	or 	uncertain 	that 	an 	agreement 	provides 	for
arbitration 	of 	the 	disputed 	subject, 	the 	case 	is 	given 	to 	the
arbitrator 	for 	further 	decision 	regarding 	matters 	of 	contract
2 Id., 	section 	2.02, 	page 	4, 	footnote 	1, 	citing 	cases
involving 	use 	of 	NLRA 	precedent.
3 Steelworkers 	v. 	American 	Mfg. 	Co. 	(1960) 	363 	U.S. 	564
[46 	LRRM 	2414]; 	Steelworkers 	v. 	Warrior 	& Gulf 	Navigation 	Co.
(1960) 	363 	U.S. 	574 	[46 	LRRM 	2416] 	(Warrior); 	and 	Steelworkers 	v.
Enterprise 	Wheel 	& 	Car 	Corp. 	(1960) 	363 	U.S. 	593 	[46 	LRRM 	2423].
7

interpretation.
4	
The
	arbitrator
	then 	decides
	whether
	the
agreement 	covers
	the
	subject 	matter
	and
	who
	has
	standing
	to
participate
	in
	arbitration.
	In
	other
	words,
	except
	in 	rare
	or
unusual
	cases, 	the 	courts
	and
	quasi-judicial
	agencies
	such
	as 	the
NLRB
	and
	PERB
	should
	first
	determine 	whether
	the
	contract
provides 	for
	arbitration,
	and
	if
	so, 	they
	turn
	the 	matter
	over
	to
the
	arbitrator
	to
	interpret
	the
	scope
	of
	the
	arbitration,
	unless
there
	is
	clear
	evidence
	that
	this
	was
	not 	the
	result
	the
	parties
intended.
The
	California
	Supreme
	Court
	shortly 	thereafter
	adopted
	the
same
	policy 	in
	enforcement
	cases 	brought 	under
	California
arbitration 	statutes.
	For 	example,
	in
	Posner v.
	Grunwald-Marx,
Inc.
	(1961)
	56
	Cal.2d
	169
	[14
	Cal.Rptr.
	297),
	a
	case 	brought
under
	Code
	of
	Civil
	Procedure
	section
	1282
	to
	compel
	arbitration
of
	a
	labor 	dispute, 	the
	California
	Supreme
	Court
	stated 	that
California
	state
	policy
	is
	not
	substantially 	different
	from
federal 	policy 	to
	promote
	labor
	peace 	through
	arbitration.
	The
court 	held
	that,
	where
	the 	grievance 	procedure
	is
	not
	limited 	to
specific
	complaints, 	then
	all
	disputes
	which
	arise
	are
	covered
	if
a
	broad
	arbitration
	clause
	is
	in
	the 	agreement. 	Furthermore,
	it
4
See
	also
	Roy
	Robinson 	Chevrolet
	(1977) 	228
	NLRB
	828
[94 	LRRM
	1474)
8

was
	noted
	that
	proceeding
	to
	arbitrate 	is
	evidence
	that
	the
dispute
	is 	arbitrable.
5	
The
	court
	stated:
This 	being 	so,
	the
	federal
	rule 	to
	the
	effect
that
	in
	such
	cases
	all
	disputes
	as
	to
	the
meaning,
	interpretation
	and
	application
	of
any
	clause
	of
	the
	collective
	bargaining
agreement,
	even
	those
	that
	prima
	facie
	appear
to
	be
	without
	merit,
	[footnote
	omitted]
	are
the
	subject
	of
	arbitration,
	is
	adopted
	by
this
	court.
	(Id.
	at
	184.)
In 	another
	California
	Supreme
	Court
	case,
	O'Malley
	v.
Wilshire
	Oil
	Co. 	(1963)
	59
	Cal.2d
	482
	(O'Malley),
	the
	court
confirmed
	California's
	adoption 	of
	the
	federal 	rules:
Although
	the
	issue 	in
	Posner
	did
	not 	involve
interstate
	commerce
	and
	therefore
	did
	not
necessarily
	invoke
	the
	federal 	rule
	as
described
	by
	the 	United
	States
	Supreme
	Court,
we
	nevertheless
	as
	a
	matter
	of
	policy
followed
	the 	federal
	approach.
	We
	held
	that
the
	trial
	court, 	instead
	of 	confining
	itself
to 	the 	issue
	of 	whether
	the 	dispute
	was
subject 	to
	arbitration,
	improperly 	passed
upon
	the 	merits
	of
	the
	issue.
	[Id.
	at
	487.J
The
	court
	went 	on
	to
	state, 	citing
	the
	U.S.
	Supreme
	Court
case 	of 	Warrior
	that:
In 	the
	absence 	of
	any
	express 	provisionexcluding
	a
	particular
	grievance
	from
arbitration,
	we
	think
	only 	the
	most
	forceful
evidence 	of
	a
	purpose
	to
	exclude 	the 	claim
from
	arbitration
	can
	prevail, 	particularly
where,
	as 	here, 	the 	exclusion 	clause
	is
	vague
and
	the
	arbitration
	clause 	quite
	broad.[O'Malley,
	supra,
	citing
	Warrior
	at
	491.]
5
The
	court 	recognized 	the 	well-established 	principle 	of
contract 	interpretation 	that 	the 	actions 	of 	the 	parties
	can 	be
evidence 	of
	their 	intent
	and 	the 	case 	would
	support 	the 	exception
raised
	by 	the 	Santa
	Ana
	Unified 	School
	District 	(District) 	in
this 	case. 
9

Those 	cases 	make 	it 	clear 	that 	federal 	policy 	and 	the 	law 	of
California 	are 	consistent 	and 	California 	has 	gone 	further 	by
adopting 	statutes 	that 	mandate 	deferral 	to 	an 	arbitrator 	in 	labor
relations 	cases 	where 	the 	parties 	to 	the 	dispute 	agreed 	on
arbitration.
In 	1978, 	the 	California 	legislature 	adopted 	the 	EERA
jurisdictional 	statute 	(EERA 	section 	3541.5, 	which mandates
deferral 	of 	arbitrable 	cases) 	and 	other 	EERA 	provisions 	which
expressly 	direct 	parties 	to 	the 	arbitration 	statutes 	under 	the
Code 	of 	Civil 	Procedure. 6
6See, 	e.g., 	EERA 	section 	3548.5, 	which 	provides 	that:
A public 	school 	employer 	and 	an 	exclusive
representative 	who 	enter 	into 	a 	written
agreement 	covering matters 	within 	the 	scope
of 	representation 	may 	include 	in 	the
agreement 	procedures 	for 	final 	and 	binding
arbitration 	of 	such 	disputes 	as 	may 	arise
involving 	the 	interpretation, 	application, 	or
violation 	of 	the 	agreement.
See 	also, 	EERA 	section 	3548.6, 	which 	provides 	that:
If 	the 	written 	agreement 	does 	not 	include
procedures 	authorized 	by 	Section 	3548.5, 	both
parties 	to 	the 	agreement 	may 	agree 	to 	submit
any 	disputes 	involving 	the 	interpretation,
application, 	or 	violation 	of 	the 	agreement 	to
final 	and 	binding 	arbitration 	pursuant 	to 	the
rules 	of 	the 	board.
And 	see 	EERA 	section 	3548.7, 	which 	provides 	that:
Where 	a 	party 	to 	a 	written 	agreement 	is
aggrieved 	by 	the 	failure, 	neglect, 	or 	refusal
of 	the 	other 	party 	to 	proceed 	to 	arbitration
pursuant 	to 	the 	procedures 	provided 	therefor
in 	the 	agreement 	or 	pursuant 	to 	an 	agreement
made 	pursuant 	to 	Section 	3548.6, 	the
aggrieved 	party 	may 	bring 	proceedings
pursuant 	to 	Title 	9 	(commencing 	with 	Section
10

1280) 	of 	Part 	3 	of 	the 	Code 	of 	Civil
Procedure 	for 	a 	court 	order 	directing 	that
the 	arbitration proceed 	pursuant 	to 	the
procedures 	provided 	therefor 	in 	such
agreement 	or 	pursuant 	to 	Section 	3548.6.
A close 	examination 	of 	PERB 	precedent 	on 	resolving 	questions
of 	arbitrability 	reveals 	that 	PERB 	confirmed 	and 	adopted 	the 	test
of 	arbitrability 	identified 	in 	the 	California 	and 	federal 	cases
reviewed 	above. 	For 	example, 	in 	Inglewood 	Unified 	School
District 	(1990) 	PERB 	Decision 	No. 	821 	(Inglewood), 	PERB 	expressly
adopted 	the 	federal 	"not 	susceptible" 	language, 	making 	PERB
policy 	synonymous 	with 	the 	standard 	in Warrior 	and 	adopted 	by 	the
California 	Supreme 	Court. 	In 	Inglewood, 	after 	referring 	to 	the
language 	employed 	in Warrior, 	PERB 	stated:
We 	cannot 	conclude 	that 	Article 	XX 	section
20.1 	is 	not 	susceptible 	to 	an 	interpretation
that 	would 	allow 	an 	arbitrator 	to 	resolve
this 	dispute. 	We 	find 	that 	the 	District's
contracting 	out 	during 	the 	3-week 	layoff
period 	is 	arguably 	prohibited 	by 	the 	language
in 	Article 	XX 	section 	20.1 	of 	the 	parties[']
collective 	bargaining 	agreement.
(Inglewood 	at 	p. 	7.)
It 	is 	obvious 	that 	PERB 	condensed 	the 	Warrior 	standard 	into
the 	paraphrase 	"arguably 	prohibited." 	This 	is 	confirmed 	in
Riverside 	Community 	College 	District 	(1992) 	PERB 	Order 	No. 	Ad-229
(Riverside), 	where 	PERB 	stated 	that:
Further, 	the 	Board 	has 	previously 	noted
California's 	strong 	policy 	in 	favor 	of
arbitration. 	[Citation 	omitted.] 	In
[Inglewood], 	the 	Board 	found 	that 	arbitration
should 	not 	be 	denied 	'unless 	it 	may 	be 	said
with 	positive 	assurance 	that 	the 	arbitration
clause 	is 	not 	susceptible 	of 	an
interpretation 	that 	covers 	the 	asserted
dispute. 	Doubts 	should 	be 	resolved 	in 	favor
11

of
	coverage.'
	..
	The
	Board
	thereforeaffirms
	the
	ALJ's
	finding
	that
	the
	CBA's
grievance
	machinery
	covers
	the 	matter
	at
issue.
	[Riverside
	at
	p.
	4.]
The
	majority
	opinion manipulates
	the 	paraphrase
	"arguably
prohibited"
	in
	a
	subjective
	manner
	to
	avoid
	California
	law 	which
mandates
	deferral
	to
	arbitration.
7	
Thoughtful 	review 	of
	the
	PERE
decisions 	in
	Inglewood
	and
	Riverside
	will
	lead
	an
	objective
	court
to
	conclude
	that
	the 	majority
	opinion
	does
	not
	reflect
	California
law
	or
	PERE
	precedent.
There
	is
	no
	need
	for
	PERB
	to
	specifically
	adopt 	United
	Food
and 	Commercial 	Workers 	Union,
	Local
	77
	v. 	Geldin
	Meat
	Company
(1994)
	13
	F.3d
	1365
	[145
	LRRM
	2206]
	since
	that
	case 	simply
reflects
	existing
	state
	law 	and
	policy.
	However,
	the
	majority
opinion
	is
	wrong
	in
	its
	unintelligible
	attempt
	to
	discredit
United
	Food
	as
	inconsistent
	with
	California
	law
	when
	it
	refers
	to
an
	undefined
	"deferral 	standard,"
	"broader
	standard,"
	"statutory
deferral
	standard"
	and 	"broad
	deferral
	standard"
	in
	an
	attempt 	to
explain
	away
	differences
	between
	federal
	and
	California
	law 	and
policy.
In 	the 	case 	before 	us, 	the
	agreement 	between
	the
	parties
plainly 	indicates
	the
	parties' 	intentions
	with 	regard 	to
questions
	of
	arbitrability:
If
	any
	question
	arises
	regarding 	the
arbitrability
	of
	a
	grievance, 	the 	party
raising
	the 	question 	of
	arbitrability
	may,
7
This 	case 	and 	the 	recent
	PERB
	decision 	in
	Monterey
Peninsula 	Unified 	School
	District
	(1994)
	PERB
	Order
	No.
	Ad-262
illustrate
	the 	abuse
	I
	warned
	against 	in
	my
	dissent 	in 	StateCenter
	Community
	College 	District
	(1994) 	PERB
	Order
	No.
	Ad-255.
12

13
upon
	request,
	have
	such
	question
	first
	ruled
upon
	and
	decided
	by
	an
	arbitrator
	prior
	to
any
	other
	hearing
	on
	the 	merit
	of
	the
grievance
	which
	would
	thereafter
	be
	conducted
by
	a
	second
	and
	different
	arbitrator.
(CBA,
	Art.
	6.10.3.)
Furthermore,
	Article
	6.10.6
	describes 	the
	powers 	and
limitations
	of
	the
	arbitrator:
The
	function
	of
	the
	arbitrator
	shall
	be
	to
hold
	a
	hearing
	concerning
	the 	grievance
	and
to
	render
	a
	written
	decision
(CBA,
	Art.
	6.10.6.1.)
The
	arbitrator
	shall
	have
	no 	power
	to
	alter,
amend,
	change, 	add
	to,
	or
	subtract
	from 	any
of
	the
	terms
	of
	this
	Agreement
	or 	the
	written
policies, 	rules,
	regulations
	and
	procedures
of
	the
	District
	but
	shall
	determine 	only
whether
	or
	not
	there
	has 	been
	a
	violation,
misinterpretation,
	or 	misapplication
	of
	this
Agreement.
	[CBA,
	Art. 	6.10.6.2]
In
	this
	case, 	the
	parties
	agree
	that
	the 	grievance
	agreement
culminates 	in 	binding
	arbitration
	and
	neither 	party
	identifies
	a
provision
	of
	the
	agreement
	which
	specifically
	excludes
	the
dispute
	from
	arbitration.
The
	conclusion
	is
	inescapable
	that 	this
	case 	should 	be
forwarded
	to
	an
	arbitrator
	for
	interpretation
	and
	application
	of
the 	contract 	provisions.
	PERB
	has
	no 	power
	to
	determine
	the
merits
	of 	the 	dispute
	and
	the
	Board
	majority
	is
	not 	following 	the
law.
	The
	District
	should 	proceed
	to 	court 	to 	obtain
	a
	proper
result.
13

(
STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SANTA
	ANA
	EDUCATORS
	ASSOCIATION,
Charging
	Party,
V.
SA.."'ITA
	ANA
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
Case
	Nos. 	LA-CE-3382
ORDER
	DENYING MOTION
	TO
DISMISS
	AND
	DEFERRAL
	TO
~.RBITRATION
PROCEDURAL
	HISTORY
On
	December 	3, 	1993,
	the 	Santa
	Ana
	Educators
	Association
(SAEA)
	filed
	an
	unfair 	practice
	charge
	against
	the
	Santa
	Ana
Unified
	School
	District 	(District).
	The
	charge
	alleges 	that
	the
District
	made
	an
	unlawful
	threat
	against
	its
	employee,
	Gregory
Katz, 	and
	thereafter
	terminated
	him
	as
	assistant
	boys
	varsity
basketball
	coach 	because
	he
	raised
	concerns 	about
	class 	size
	at
his
	school
	site
	and
	threatened 	to
	file
	a
	grievance
	about
	the
class 	size 	issue.
During
	the 	investigation
	of
	this
	charge by 	the 	Office 	of
	the
General
	Counsel
	of 	the 	Public
	Employment
	Relations
	Board
	(PERB
	or
Board), 	the
	District
	contended
	that
	the 	charge 	should
	be
dismissed
	and
	deferred 	to 	arbitration.
PERB
	issued
	a
	Complaint 	on 	December
	24, 	1993,
	alleging 	that
the
	District's
	conduct 	described
	above 	amounted
	to 	interference
with 	protected 	rights
	and
	retaliation 	in 	violation
	of
	section
3543.S(a) 	and 	(b)
	of 	the 	Educational
	Employment
	Relations 	Act
1

2
(
(EERA
	or
	Act)
. 1 	On
	the
	same
	date,
	PERB
	issued
	a
	letter
	denying
the
	District's
	request
	for
	deferral 	to
	arbitration
	on
	the
	ground
that
	the
	conduct
	alleged 	in
	the
	charge
	is
	arguably
	not
	prohibited
by
	the
	parties'
	collective
	bargaining
	agreement
	(CBA).
The
	District 	filed
	a
	timely
	Answer 	on
	January
	13,
	1994,
denying 	unlawful
	conduct
	and
	asserting
	various
	affirmative
defenses.
An
	informal 	conference
	on 	March
	4, 	1994,
	failed
	to
	resolve
the
	dispute.
On
	April
	28, 	1994,
	the
	District 	filed
	a
	Motion
	to
	Dismiss
Unfair 	Practice
	Charge,
	with
	the 	undersigned.
	On
	April
	29,
	1994,
SAEA
	was
	directed 	to,
	and
	did,
	file
	a
	written
	response
	to
	the
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
	reads,
	in 	relevant
	part:
3543.5.
	INTERFERENCE 	WITH 	EMPLOYEES' 	RIGHTS
PROHIBITED
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.
2

motion
	to
	dismiss
	on
	May
	10, 	1994,
	opposing
	deferral
	and
dismissal.
23
	The
	formal
	hearing
	in
	this
	matter
	is
	scheduled
	for
	May
and
	24,
	1994.
FACTUAL
	BACKGROUND"
SAEA
	is
	the 	exclusive
	representative
	of
	a
	unit
	of
certificated
	employees
	of
	the
	District.
	SAEA
	and
	the
	District
that
	are
	parties
	to
	a
	CBA
	that
	contains
	a
	grievance
	procedure
provides 	for
	final
	and
	binding
	arbitration.
3
In
	September,
	1993,
	Gregory
	Katz
	(Katz),
	an
	SAEA
	unit
member,
	voiced 	concerns 	with
	Principal
	Thomas
	Reasin 	(Reasin)
about
	class 	size
	at
	his
	school
	site.
	On
	September
	20,
	1993, 	Katz
sent
	an 	E-mail
	to
	Reasin
	which 	ended 	by
	stating:
I
	am
	also
	sending
	this
	to 	[sic.]
	E-mail
	to
our
union 	reps
	[SAEA
	representatives]
	Mr.
Terhune 	and
	Mr.
	Jurgenson
	in
	preparation 	for
a
	grievance 	of
	inequality
	if
	this
	issue
	is
not 	resolved
	soon.
to
	On
	September 	21,
	1993, 	Reasin
	sent
	an 	E-mail
	response
Katz
	stating:
2
In 	deciding
	whether
	to 	dismiss
	an
	unfair 	practice
	charge
	on
the
	ground
	that
	it
	fails
	to
	state
	a
	prirna
	facie 	violation 	of 	the
EERA,
	all
	the
	essential 	facts 	alleged 	in
	the
	charge 	and
	the
supplemental 	pleadings 	are
	assumed
	to
	be
	true.
	(San
	Juan 	Unified
School
	District
	(1977)
	PERB
	Decision
	No.
	12.)
3
0fficial
	notice 	is
	taken 	of 	the
	SAEA-SAUSD
	(District)
Agreement 	maintained 	in 	the
	Los
	Angeles 	Regional 	Office 	of 	the
PERB.
	This 	Agreement 	has
	a
	term 	from
	July 	1, 	1992,
	through
June 	30, 	1994.
3

(
Greg.
	Believe
	it
	or 	not, 	we're
	on
	the
	same
team.
	However,
	regarding
	your
	threat
	to
	go
to
	Terhune/Jurgensen
	and
	file
	a
	grievancE,
	I
understand
	that
	you
	need
	to
	do 	what
	you
	need
to
	do.
	Just 	don't
	burn 	your
	bridges
	in
	the
process!
There
	was 	a
	further
	exchange
	of
	E-mail 	messages 	between 	Katz
	and
Reasin
	on
	September
	21, 	1993.
On
	October
	20, 	1993,
	Reasin
	relieved
	Katz 	from
	his
	position
as
	assistant
	varsity
	boys
	basketball
	coach.
	Katz
	filed
	a
grievance,
	dated
	October
	26, 	1993,
	charging
	that
	the
	District
violated 	Article
	6.11.1 	of
	the
	CBA
	in
	reprisal
	for 	his
	union
activity.
	Article
	6.11.1 	provides
	that:
No
	reprisals
	of
	any
	kind
	shall
	be
	taken 	by
any
	party 	to
	this
	procedure
	against
	any
party,
	any
	witness,
	any
	representative,
	or
any
	other
	participant 	in
	the 	grievance
procedure
	by
	reason 	of
	such
	participation.
The
	District
	denied
	the 	grievance
	at
	Level
	II
	and
	Level
	III
of
	the
	grievance
	procedure,
	on 	December
	3, 	1993, 	and
	January
	18,
1994,
	respectively,
	as 	not 	being
	grievable 	within 	the
	intent
	of
Article
	6.11.1
DISCUSSION
In
	deferral 	to 	arbitration
	cases,
	PERB
	is
	bound by 	Lake
Elsinore
	School
	District
	(1987)
	PERB
	Decision
	No. 	646 	(Lake
Elsinore).)
	In
	Lake
	Elsinore, 	the
	Board
	held
	that
	EERA
	section
3541.S(a)
(2) 4
denies
	jurisdiction 	to
	PERB
	over matters 	involving
4
Section
	3541.S(a)
(2)
	provides 	in pertinent 	part, 	that
	PERB
shall 	not:
Issue
	a
	complaint 	against
	conduct 	also
prohibited
	by 	the 	provisions 	of 	the 	agreement
between 	the 	parties 	until 	the 	grievance
4

conduct 	arguably
	prohibited
	by
	the
	parties'
	CBA
	until
	the
grievance
	machinery 	of
	the
	agreement,
	if
	it
	exists
	and
	covers
	the
matter
	at
	issue,
	has 	been
	exhausted
	either
	by
	settlement
	or
	by
binding
	arbitration.
	Further, 	the
	Board
	held
	that 	deferral
	is
jurisdictional,
	not
	discretionary.
machinery 	of 	the 	agreement,
	if 	it
	exists
	and
covers 	the 	matter 	at 	issue,
	has 	been
exhausted,
	either
	by
	settlement 	or 	binding
arbitration
....
In
	this
	case 	the
	complaint
	alleges
	that
	the
	District
	made 	a
threat
	that 	interfered
	with
	Katz'
	exercise
	of
	rights 	protected
	by
EERA
	and,
	because 	of 	such
	activities, 	retaliated
	against
	him by
terminating
	him 	from
	his
	assistant
	boys
	basketball
	coaching
position
	in
	violation
	of
	section
	3543.5(a).
The
	District
	argues
	that
	the 	essence 	of 	the 	underlying
charge
	is
	a
	dispute
	regarding
	whether
	the
	District 	retaliated
against
	Katz
	in 	violation
	of
	Article
	6.11.1
	of
	the
	CBA
	for
threatening 	to
	file
	a
	grievance,
	and
	that
	no
	right 	protected
	by
EERA
	is
	at
	issue.
	As
	an
	arguable
	contract 	dispute,
	the
	District
maintains, 	the 	matter
	is
	subject 	to 	the 	contractual
	grievance
procedure.
SAEA
	takes 	the
	position 	that
	the
	reprisal
	charge
	is
	the
	only
element 	of 	the 	complaint 	arguably 	covered
	by
	the
	CBA.
	However,
since 	Article
	6.11.1
	only
	prohibits 	reprisals
	against
	a
"participant 	in
	the 	grievance 	procedure
	by
	reason 	of 	such
participation,"
	it
	is
	not
	clear 	that 	the
	CBA
prohibits 	reprisals
against
	Katz
	since 	arguably
	he
	never
	became 	a
	participant 	in
	the
5

(
grievance
	procedure,
	never 	having
	actually 	filed
	a
	grievance.
Thus,
	the
	key
	portion
	of
	the
	Lake
	Elsinore
	test,
	as
	it
pertains
	to
	this
	case,
	is
	that
	the
	conduct
	at
	issue
	must
	be
arguably
	prohibited
	by
	the
	language
	of
	the
	CBA.
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.
	(Fremont 	Union 	High
	School
	District
	(1993)
	PERB
Order
	No.
	Ad-248
	(Fremont).)
In
	Los
	Angeles
	Qommunity
	Qollege
	District
	(1989)
	PERB
Decision
	No.
	761, 	where
	an 	employee
	alleged 	that
	the
	district
	had
discriminated 	against
	him
	for
	pursuing
	protected
	activity,
deferral
	was
	ordered
	because
	the
	Board 	found
	specific
	language
	in
the
	parties'
	agreement
	which
	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.
Here,
	Article
	6.11.1 	does
	not
	specifically
	discuss 	alleged
acts 	of 	interference,
	nor 	does
	this 	section, 	or
	any
	other
provision 	of 	the
	CBA,
	appear 	to 	incorporate 	directly 	or
indirectly 	into 	the
	CBA,
	rights 	guaranteed 	to
	employees 	and
6

employee
	organizations
	by
	EERA.
	(Fremont.)
	Inasmuch
	as
	the
interference 	al:egations
	are
	arguably 	not
	prohibited
	by
	the
	CBA
or
	subject 	to
	the 	contractual
	grievance 	procedure,
	deferral
	is
inappropriate.
Deferral
	of
	the
	discrimination/retaliation 	allegation
	is
also 	inappropriate.
	This
	conclusion
	is
	reached
	for
	the
	same
reasons
	set
	forth
	in 	the
	PERB
	Regional
	Attorney's
	December
	24,
1993,
	letter,
	denying
	the
	District's
	request 	to
	dismiss
	and
	defer
the
	reprisal
	allegation 	to
	arbitration.
	This 	conclusion
	is
supported
	by
	evidence 	of
	the
	District's
	Level
	II
	and 	Level
	III
responses
	to
	Katz' 	October
	26, 	1993,
	grievance
	which
	indicated
that 	Article
	6.11.1
	does
	not 	apply
	to
	Katz'
	reprisal
	claim
	since
no
	grievance
	was
	actually
	filed
	on
	the
	initial
	(class 	size)
issue.
	It
	is
	further
	concluded
	that 	Article
	6.11.1
	of
	the
	CBA
does
	not
	meet
	the
	requirements
	discussed
	in
	Fremont,
	since
	it
arguably
	does
	not
	prohibit 	discrimination 	against
	employees
	for
participation
	in
	conduct
	protected
	by
	EERA.
PERB
	is,
	there:ore,
	the 	appropriate
	forum
	for
	this 	dispute.
ORDER
For
	all
	the 	above-stated 	reasons,
	the
	District's
	request 	to
defer
	this
	matter 	to
	arbitration
	and
	dismiss 	the 	complaint,
	is
DENIED.
	The
	formal
	hearing
	will
	proceed 	as 	scheduled.
RIGHT
	TO
	APPEAL
Pursuant 	to 	California
	Code
	of 	Regulations,
	title
	8,
section
	32646(b), 	respondent
	may
	obtain
	a
	review 	of
	this
	Order 	by
filing
	an 	appeal 	to 	the 	Board
	itself 	at 	the 	headquarters
	office
7

\
in
	Sacramento
	within
	20
	calendar
	days
	of
	service
	of
	this
	Order.
(Cal.
	Code
	of 	Regs.,
	title
	8,
	section
	32635(a)
.)
	A
document
	is
considered
	"filed"
	when
	actually
	received 	before 	the
	close
	of
business
	(5:00
	p.m.)
	on
	the
	last
	day
	set
	for
	filing
	11
•••
	or
when
	sent
	by
	telegraph 	or
	certified
	or
	Express 	United
	States
mail,
	postmarked
	not
	later
	than 	the
	last
	day
	set
	for
	filing
	.
. "
	(See
	Cal.
	Code
	of 	Regs.,
	tit.
	8,
	sec.
	32135;
	Code
	Civ.
	Proc.,
sec.
	1013
	shall
	apply.)
All
	documents
	authorized 	to
	be
	filed
	herein
	must
	also
	be
"served"
	concurrently
	with
	its
	filing
	upon
	each
	party
	to
	this
proceeding.
	Proof 	of
	service
	shall
	accompany
	each
	copy
	served
	on
a
	party
	or
	filed
	with 	the
	Board
	itself.
	(See
	Cal.
	Code
	of
	Regs.,
tit.
	8,
	secs.
	32300,
	32305
	and 	32140.)
DATE: 	May
	19,
	1994
8
W.
	Jean
	Thomas
Administrative
	Law
	Judge