Los Angeles Unified School District (PERB 0218E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LOS 	ANGELES 	CITY AND 	COUNTY 	SCHOOL
EMPLOYEES 	UNION, 	LOCAL 	99, 	SERVICE
EMPLOYEES 	INTERNATIONAL 	UNION, 	AFL/CIO,
Charging 	Party,
v.
LOS 	ANGELES 	UNIFIED SCHOOL 	DISTRICT,
Respondent.
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Case 	No. 	LA-CE-1126
PERB 	Decision 	No. 	218
June 	30, 	1982
Appearances: 	Jeff 	Paule, 	Attorney 	(Geffner 	& Satzman) 	for
Los 	Angeles 	City 	and 	County 	School 	Employees 	Union, 	Local 	99,
Service 	Employees 	International 	Union, 	AFL/CIO; 	Steven 	C. 	Babb
and 	Joel 	M. 	Grossman, 	Attorneys 	(O'Melveny 	& Myers) 	for
Los 	Angeles 	Unified 	School 	District.
Before 	Gluck, 	Chairperson; 	Tovar 	and 	Morgenstern, 	Members.
DECISION
This 	case 	comes 	before 	the 	Public 	Employment 	Relations
Board 	(PERB) 	pursuant 	to 	its 	rule 	32654(h), 	(i) 	and 	(j) 1 	and
the 	Educational 	Employment 	Relations 	Act 	(EERA)
lpERB 	rules 	are 	codified 	at 	California Administrative
Code, 	title 	8, 	section 	31000 	et 	seq.
Rule 	32654 (h), 	(i) 	and 	(j) 	provide:
(h) 	The 	Board 	shall 	conduct 	a 	hearing 	on
the 	repugnancy 	claim. 	After 	the 	close 	of
the 	hearing, 	a 	Board 	agency 	shall 	issue 	a
recommendation 	to 	the 	Board 	itself 	regarding
the 	repugnancy 	claim. 	The 	recommendation
shall 	be 	concurrently 	served 	on 	all
parties. 	Each 	party 	may 	file 	with 	the 	Board

subsection 	3541.S(a).2 	The 	hearing 	officer 	recommended 	that
PERB 	defer 	to 	the 	arbitration 	award 	which 	ruled 	that 	the 	Los
Angeles 	Unified 	School 	District 	(District) 	had 	not 	violated 	the
itself 	a 	response 	to 	the 	recommendation 	of
the 	Board 	agent 	within 	20 	days 	following 	the
date 	of 	service 	of 	the 	recommendation. 	The
response 	shall 	be 	filed 	with 	the 	Executive
Assistant 	to 	the 	Board. 	Service 	and 	proof
of 	service 	of 	the 	response 	pursuant 	to
Section 	32140 	are 	required. 	The
recommendation 	of 	the 	Board 	agent 	together
with 	any 	responses 	filed 	pursuant 	to 	this
Section 	and 	the 	case 	record 	shall 	be
submitted 	to 	the 	Board 	itself 	for 	a 	decision.
(i) 	If 	the 	grievance 	award 	is 	found 	to 	be
repugnant, 	the 	Board 	itself 	shall 	remand 	the
case, 	ordering 	the 	issuance 	of 	a 	complaint
and 	the 	processing 	of 	the 	charge 	accordingly.
(j) 	If 	the 	award 	is 	found 	not 	to 	be
repugnant, 	the 	Board 	itself 	shall 	refuse 	to
issue 	a 	complaint 	and 	dismiss 	the 	charge.
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540, 	et
seq. 	All 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	noted.
Section 	3541.S(a) 	provides 	in 	pertinent 	part:
.•• 	The 	board 	shall 	have 	discretionary
jurisdiction 	to 	review 	such 	settlement 	or
arbitration 	award 	reached 	pursuant 	to 	the
grievance 	marchinery 	solely 	for 	the 	purpose
of 	determining 	whether 	it 	is 	repugnant 	to
the 	purposes 	of 	this 	chapter. 	If 	the 	board
finds 	that 	such 	settlement 	or 	arbitration
award 	is 	repugnant 	to 	the 	purposes 	of 	this
chapter, 	it 	shall 	issue 	a 	complaint 	on 	the
basis 	of 	a 	timely 	filed 	charge, 	and 	hear 	and
decide 	the 	case 	on 	the 	merits; 	otherwise, 	it
shall 	dismiss 	the 	charge.
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contract 	when 	it 	unilaterally 	changed 	the 	reporting 	locations
of 	certain 	bus 	drivers. 	For 	the 	reasons 	which 	follow, 	we
affirm 	the 	hearing 	officer's 	recommendation.
FACTS
Local 	99 	of 	the 	Service 	Employees 	International 	Union,
AFL/CIO, 	(SEIU), 	the 	exclusive 	representative 	of 	the 	District's
bus 	drivers, 	concluded 	a 	collective 	bargaining 	agreement 	with
the 	District 	in August 	1979. 	Article 	XI 	of 	the 	agreement
provides 	for 	a 	detailed 	system 	of 	bidding 	for 	bus 	routes 	to 	be
assigned 	the 	driver~, 	but 	contains 	this 	caveat:
1.10 	Notwithstanding 	the 	foregoing,
[bidding 	procedures] 	adjustments 	or
assignment 	changes 	may 	be 	made 	when
necessary 	for 	the 	best 	interests 	of 	the
District.
Shortly 	after 	the 	agreement 	was 	signed 	and 	the 	bidding
concluded, 	the 	District 	unilaterally 	altered 	two 	parking
locations 	of 	buses 	which, 	in 	turn, 	altered 	the 	reporting
locations 	of 	the 	grievant 	and 	required 	him 	to 	drive 	further 	to
work. 	A grievance 	was 	filed 	over 	this 	alleged 	contract
violation 	on 	November 	19, 	1979. 	Three 	months 	later, 	SEIU 	filed
an 	unfair 	practice 	charge 	alleging 	that 	the 	District 	had
violated 	EERA 	subsections 	3543. 5 (a), 	(b) 	& 	(c) 3 	by
3subsections 	3543. 5 	(a), 	(b) 	and 	(c) 	state:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
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unilaterally 	changing 	the 	"hours, 	wages, 	and 	other 	terms 	and
conditions 	of 	employment 	when 	it 	changed 	the 	parking
locations 	of 	the 	buses." 	This 	charge 	was 	held 	in 	abeyance
pending 	the 	outcome 	of 	the 	binding 	arbitration.
The 	arbitration 	occurred 	in April 	1980, 	and 	the 	award
issued 	the 	following 	August, 	exonerating 	the 	District 	by
finding 	that 	the 	contract 	permitted 	the 	change. 	The 	stipulated
issue 	presented 	to 	the 	arbitrator 	was, 	"Did 	the 	District
violate 	Articl- 	I 	of 	the 	collective 	bargaining 	agreement 	when
it 	changed 	the 	parking 	location 	of 	the 	grievant 	after 	he 	had
received 	his 	1979-80 	route 	assignments?"
The 	arbitrator 	found, 	based 	on 	credibility 	determinations,
that 	1) 	a 	major 	factor 	in 	route 	selection 	is 	parking 	locationt
2) 	the 	District 	warned 	drivers 	after 	bidding 	that 	changes 	in
their 	route 	may 	occur; 	3) 	changes 	in 	parking 	locations 	had
occurred 	in 	the 	past; 	and 	4) 	although 	the 	union 	had 	expressed
some 	concern 	at 	the 	bargaining 	table 	over 	the 	breadth 	of
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.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
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discretion 	reposed 	in 	the 	District 	by 	the 	language, 	"when
necessary 	for 	the 	best 	interest 	of 	the 	District," 	it
nevertheless 	agreed 	to 	this 	language. 	Finally, 	the 	arbitrator
found 	that, 	because 	the 	District 	needed 	to 	find 	more 	parking
spaces 	for 	its 	expanding 	bus 	fleet, 	the 	change 	was 	necessary
for 	the 	best 	interest 	of 	the 	District.
Dissatisfied 	with 	this 	award, 	SEID 	reactivated 	its 	unfair
practice 	charge 	claiming 	that 	the 	award 	was 	repugnant 	to EERA
because 	the 	arbitrator 	failed 	to 	consider 	and 	resolve 	the
underlying 	unfair 	and 	because 	the 	award 	is 	contrary 	to PERB 	law
on 	unilateral 	change 	and 	waiver. 	A repugnancy 	hearing 	was 	held
by 	a 	PERB 	hearing 	officer 	who 	concluded 	that 	the 	issues 	which
the 	arbitrator 	considered 	and 	resolved 	were 	substantially
parallel 	to 	the 	statutory 	issues 	and 	that 	award 	was 	not
inconsistent 	with 	the 	law 	on 	waiver 	and 	therefore 	not 	repugnant
to EERA.
DISCUSSION
In 	Dry Creek 	Joint 	Elementary 	School 	District 	(7/21/80)
PERB 	Order 	No. 	Ad-8la, 	this 	Board 	adopted 	the 	standard 	employed
by 	the 	National 	Labor 	Relations 	Board 	(NLRB) 	in 	determining
en 	ral 	to 	an 	arbitration 	award 	is 	iate.4 	See
Speilberg 	Mfg. 	Co. 	(1955) 	112 	NLRB 	1080 	[36 	LRRM 	1152]. 	se
4Fire 	Fighters 	Union 	v. 	City 	of Vallejo 	(1974) 	12 	Cal.3d
[31 	LRRM 	2548].
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standards 	are: 	1) 	The 	unfair 	practice 	issues 	must 	have 	been
presented 	to 	and 	considered 	by 	the 	arbitrator; 	2) 	the 	arbitral
proceeding 	must 	have 	been 	fair 	and 	regular; 	3) 	the 	parties 	must
have 	agreed 	to 	be 	bound; 	and 	4) 	the 	decision 	of 	the 	arbitrator
must 	not 	have 	been 	"clearly 	repugnant 	to 	the 	purposes 	and
policies 	of 	the 	Act."
SEIU 	contends 	that 	the 	first 	and 	fourth 	factors 	of 	the 	test
have 	not 	been met.
A. 	The 	Arbitrator's 	Consideration 	of 	the 	Unfair 	Practice 	Issues
The 	NLRB 	has 	recently 	ruled 	that 	it 	will 	defer 	to
arbitration 	awards 	where 	there 	is 	"parallelism" 	between 	the
unfair 	practice 	issue 	and 	the 	contractual 	issue, 	provided 	the
arbitrator 	has 	considered 	all 	of 	the 	evidence 	relevant 	to 	the
unfair. 	Bay 	Shipbuilding 	Corp. 	(1980) 	25 	NLRB 	809 	[105 	LRRM
1376]; 	Atlantic 	Steel 	Co. 	(1979) 	245 	NLRB 	107 	[102 	LRRM 	1247].
In 	Bay 	Shipbuilding, 	_supra, 	the 	employer 	unilaterally
changed 	insurance 	carriers 	during 	the 	term 	of 	the 	collective
bargaining 	agreement. 	After 	considering 	the 	bargaining 	history
and 	plain 	meaning 	of 	the 	contract, 	the 	arbitrator 	found 	that
the 	contract 	permitted 	the 	employer 	to 	change 	insurance
carriers. 	In 	deferring 	to 	this 	award, 	the 	NLRB 	observed 	that
although 	the 	arbitrator 	specifically 	stated 	that 	he 	was 	not
deciding 	whether 	the 	employer 	had 	violated 	the 	National 	Labor
Relations 	Act, 	he 	nevertheless 	made 	factual 	findings 	in 	the
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course 	of 	resolving 	the 	contractual 	issues 	which 	resolve 	the
unfair 	practice 	issues. 	The 	board 	continued:
The 	pivotal 	unfair 	labor 	practice 	issue
herein 	is 	whether 	Respondent's 	change 	of
insurance 	carriers 	constituted 	a
modification 	of 	the 	contract 	or 	was 	simply
an 	action 	permitted 	by 	the 	contract. 	Here
the 	arbitrator 	found 	that 	the 	contract
permitted 	the 	Company 	to 	change 	carriers, 	a
determination 	he 	clearly 	had 	the 	authority
to 	make. 	As 	the 	action 	was 	permitted 	by 	the
contract, 	it 	does 	not 	constitute 	a
modification 	of 	the 	contract 	and 	is 	not
unilateral 	action 	in 	violation 	of 	the 	Act.
Thus, 	the 	arbitrator 1 s 	factual 	determination
of 	the 	meaning 	of 	the 	contract 	has 	resolved
the 	unfair 	labor 	practice 	issues 	herein.
In 	this 	case, 	the 	arbitral 	and 	statutory 	issues 	are 	clearly
parallel; 	both 	turn 	on 	whether 	the 	District 	had 	the 	right 	to
unilaterally 	change 	the 	bus 	parking 	locations. 	The 	arbitrator
clearly 	found 	that 	the 	contract 	authorized 	the 	changes 	when
necessary 	for 	the 	best 	interest 	of 	the 	District. 	Necessarily,
the 	union 	had 	waived 	its 	right 	to 	negotiate 	over 	the 	change.5
It 	is 	also 	clear 	that 	the 	arbitrator 	was 	presented 	with 	and
considered 	all 	of 	the 	evidence 	relevant 	to 	the 	unfair. 	The
union 	relies 	on 	the 	bargaining 	history 	to 	argue 	that 	the
implied 	waiver 	clause, 	Section 	1.10, 	was 	intended 	by 	the
5The 	award 	does 	not 	address 	itself 	to 	the 	alleged
3543.S(a) 	and 	(b) 	violations, 	but 	the 	charge 	does 	not 	state 	any
facts 	which 	would 	support 	a 	finding 	of 	(a) 	and 	(b) 	violations
independent 	of 	the 	(c). 	They 	are 	clearly 	being 	alleged 	as
derivative 	violations, 	and 	are 	implicitly 	resolved 	by 	the
determination 	of 	the 	unilateral 	change 	issue.
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parties 	to 	operate 	more 	narrowly 	than 	it 	appeared 	on 	its 	face.
The 	arbitrator 	heard 	witnesses 	from 	both 	the 	union 	and 	the
District 	negotiators 	on 	this 	point 	and 	had 	the 	opportunity 	to
weigh 	their 	testimony. 	It 	is 	appropriate 	therefore 	that 	the
Board 	defer 	to 	his 	credibility 	determinations 	in 	this 	instance.
B. 	Clearly 	Repugnant 	to 	the 	Purposes 	and 	Policies 	of 	the 	Act:
The 	union 	also 	claims 	that 	the 	arbitrator's 	award 	is
repugnant 	to 	EERA 	because 	his 	finding 	of 	waiver 	was 	contrary 	to
the 	"clear 	and 	unmistakable" 	standard 	which 	this 	Board 	adopted
in Amador 	Valley 	Joint 	Union 	High 	School 	District 	(10/2/78)
PERB 	Decision No. 	74. 	Without 	passing 	on 	whether 	we 	would 	have
reached 	the 	same 	result 	as 	the 	arbitrator 	on 	the 	waiver
issue,6 	we 	find 	that 	his 	award 	is 	not 	clearly 	repugnant 	to
the 	purposes 	and 	policies 	of 	the 	Act. 	_Q!._Y Creek, 	s1:1pra.
6The 	possibility 	that 	this 	Board 	may 	have 	reached 	a
different 	conclusion 	in 	interpreting 	the 	parties' 	agreement 	and
the 	evidence 	does 	not 	render 	the 	award 	unreasonable 	or
repugnant. 	As 	the 	Court 	stated 	in 	Douglas Aircraft 	Co. 	v. 	NLRB
(1979) 	609 	F.2d 	352 	[102 	LRRM 	2811]:
" ••• 	If 	the 	reasoning 	behind 	an 	award 	is
susceptible 	of 	two 	interpretations, 	one
permissible 	and 	one 	impermissible, 	it 	is
simply 	not 	true 	that 	the 	award 	was 	clearly
repugnant 	to 	the 	Act 	•.• 	The 	reasoning 	if
ambiguous, 	could 	have 	been 	interpreted 	in 	a
non-repugnant 	way, 	and 	should 	have 	been 	in
order 	to 	give 	arbitration 	the 	'hospitable
acceptance' 	necessary 	if 	1 complete
effectuation 	of 	the 	Federal 	policy 	is 	to 	be
achieved. 1 11
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In 	finding 	the 	waiver, 	the 	arbitrator 	considered 	the 	plain
meaning 	of 	the 	contract, 	looking 	not 	only 	to 	the 	zipper 	clauses
and 	management 	rights 	section 	(which 	generally 	alone 	would 	not
be 	a 	sufficiently 	clear 	and 	unmistakable 	waiver), 	but 	to
evidence 	concerning 	the 	contractual 	bidding 	procedure 	itself,
bargaining 	history 	and 	past 	practices 	of 	the 	employer.?
Consequently, 	we 	accept 	the 	hearing 	officer's
recommendation 	and 	therefore 	direct 	that 	no 	complaint 	shall
issue, 	and 	the 	charge 	shall 	be 	dismissed.
ORDER
The 	unfair 	practice 	charge 	is 	hereby 	DISMISSED.
By:/ Harr¥ ~luck,'--ciiairperson 	Marty Morgensterrl, 	Member
Iren~~Tovar, 	Member
?compare 	Aeronca, 	Inc. 	(1980) 	253 	NLRB 	26 	[105 	LRRM
1541], 	where 	the 	NLRB 	refused 	to 	defer 	to 	an 	arbitrator 1 s
finding 	of 	waiver 	because 	he 	based 	it 	on 	the 	contract 	language
only 	and 	failed 	to 	consider 	other 	factors 	such 	as 	bargaining
history 	and 	past 	practices.
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