State of California, Department of the Youth Authority (PERB 0749S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	CORRECTIONAL 	PEACE
OFFICERS 	ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA, 	DEPARTMENT
OF 	THE 	YOUTH AUTHORITY,
Respondent.
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) 	Case No. S-CE-363-S
PERB Decision No. 	749-S
June 28, 1989
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Appearances: 	Shelley Lytle, 	Senior Hearing Representative, 	for
California Correctional 	Peace Officers Association; 	Department of
Personnel Administration by Joan Branin, 	Legal Counsel, 	for State
of California, 	Department of the Youth Authority.
Before Hesse, 	Chairperson; 	Craib and Camilli, Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB 	or Board) 	on appeal by the
charging party, 	California Correctional 	Peace Officers
Association 	(CCPOA or Association) 	of 	the Board agent's
dismissal.1 The Association alleges 	that 	the 	Board 	agent
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1The Association filed its appeal on October 	17, 	1988. 	On
January 	6, 	1989, 	nearly three months after its 	initial appeal,
PERB received CCPOA's 	Request to Amend. 	The facts 	alleged 	in its
Request 	to Amend 	involve 	the ratification process 	of 	the 	198 7-88
collective bargaining agreement. 	CCPOA does 	not 	state 	any
reasons 	for 	its 	delay in 	filing the Request to Amend or that 	it
was 	previously unaware that 	the 	1987-88 	collective bargaining
agreement had 	not 	been ratified 	at 	the 	time 	the 	initial 	appeal
was 	filed.
Due to the 	long delay and the 	fact that the 	status 	of 	the
ratification process 	should have been known to 	CCPOA at 	the 	time
of 	the 	initial 	appeal, 	the Board will 	not consider CCPOA's
Request to Amend in its determination of this case. 	However, 	the
Board notes 	that the 	fact that there was 	a memo 	indicating that
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improperly decided 	that 	the 	allegations 	in the unfair practice
charge 	must 	be deferred to 	arbitration under Lake 	Elsinore 	School
District 	(1987) 	PERB Decision No. 	646.
For the reasons 	stated below, 	the Board affirms 	in part and
reverses 	in part 	the 	Board agent's 	dismissal.
FACTS
On November 	19, 	1987, 	CCPOA filed an unfair practice charge
alleging 	that 	the California 	Department 	of 	the 	Youth Authority
(CYA) 	violated section 3519(a) 	of the Ralph C. 	Dills Act 	(Dills
Act) 	by ordering that Bob Weaver, 	an institutional parole agent
at DeWitt Nelson Youth Training Center 	(DeWitt), 	not be permitted
to work overtime 	in reprisal 	for 	engaging 	in protective 	activity;
specifically, 	the filing of a grievance on May 	13, 	1987.2 On
May 	13, 	1987, 	Weaver filed a grievance against the management at
the 	1985-87 	collective 	bargaining agreement 	remained 	in 	effect
until 	ratification of 	the 	1987-88 	collective bargaining 	agreement
does 	not repudiate the express 	terms 	of the 	1987-88 	collective
bargaining agreement, which state, 	in pertinent part:
18.03 	Settlement Agreement	. .
All provisions 	of 	this 	Memorandum of
Understanding 	shall 	become 	effective 	on
--July 1------, 	1987. 	except those specifically
designated by other dates. 	. 	. 	.
18.04 Term
a. 	This Agreement 	shall 	remain in full 	force
and effect from July 	1, 	1987 	through June 	30,
1988.
2For purposes 	of 	the 	Board's 	review of 	the 	Board 	agent's
dismissal, 	the Board, 	like the Board agent, 	assumes that the
charging party's 	allegations 	in 	its 	unfair practice 	charge 	are
true. 	(San Juan Unified School District 	(1977) 	EERB Decision No.
12. 	Prior to January 1, 	1978, 	PERB was known as the Educational
Employment 	Relations 	Board.)
2
-- ----------
2

DeWitt 	for denying parole agents 	the use of 	overtime. 	On or
about June 	1, 	1987, 	Weaver prevailed on the May grievance, 	and
overtime hours 	for parole 	agents were returned. 	Subsequent 	to
winning 	the 	grievance, 	Weaver was 	informed by an assistant
superintendent 	at Dewitt 	that he was 	not permitted to work any
overtime. 	On June 	16, 	1987, 	Weaver filed a grievance that the
denial 	of overtime use violated Article XII, 	section 	12.05 	and
Article V, 	section 	5.03 	of 	the 	collective bargaining agreement
between CCPOA and the 	state. 	On October 28, 	1987, 	CYA denied the
June 	grievance 	at the 	fourth response 	level.
On February 	5, 	1988, 	CCPOA filed an amended unfair practice
charge, 	which 	incorporated the original 	unfair practice 	charge
allegations 	filed on November 	19, 	1987, 	and additionally alleged
that 	DeWitt 	had discriminated 	against Weaver 	in reprisal 	for 	the
filing of 	the May and June 	grievances 	regarding overtime. 	On
August 	18, 	1987, 	Weaver filed a grievance regarding the receipt
of 	the memorandum changing Weaver's work 	schedule. 	The 	grievance
alleged 	that 	the work 	schedule 	change 	violated Article XI,
section 	11.14 	of 	the 	1985-87 	collective bargaining agreement.3
Commencing August 31, 	1987, 	Weaver's work schedule was 	changed
from working 	8:00 	a.m. 	to 	5:00 	p.m., 	Monday through Friday, 	to
working one 	late night 	every week with the hours 	of 	1:00 p.m. 	to
10:00 p.m.
3Article XI, 	section 	11.14 	is 	identical 	in both the 	1985-87
and 	1987-88 	collective bargaining 	agreements.
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On September 30, 	1988, 	pursuant to the Board's decision in
Lake Elsinore School District, 	supra. 	PERB Decision No. 	646, 	the
Board 	agent 	dismissed the 	entire 	unfair practice 	charge.
Specifically, 	the Board agent 	stated that Article V, 	section 	5.03
of 	the 	collective bargaining agreement, 	with the 	effective dates
of July 	1, 	1987 through June 30, 	1988, 	directly covered the
allegations 	of discrimination or reprisal, 	and that the
collective 	bargaining 	agreement 	culminated 	in binding
arbitration.
DISCUSSION
The 	present 	appeal 	involves 	alleged 	discriminatory 	conduct
by the 	state 	against Weaver due 	to his 	engaging 	in protected
activity 	(the filing of a grievance on May 	13, 	1987). 	In Lake
Elsinore, 	the Board held that 	section 3541.5(a) 	of the
Educational Employment Relations Act 	(EERA), 	which contains
language 	identical to section 3514.5(a) 	of the Dills Act,
established 	a 	jurisdictional 	rule 	requiring that 	an unfair
practice 	charge 	be 	dismissed 	and deferred 	to 	final 	and binding
arbitration 	if 	the 	allegations 	in the unfair practice 	charge 	are
directly 	covered by 	the provisions 	of 	collective 	bargaining
agreement between the parties. 	The Board held that, 	by its
choice of prohibitory language in section 3541.5(a) 	of EERA, 	the
Legislature 	plainly 	expressed 	that 	the 	parties 	contractual
procedures 	for binding arbitration, 	if 	covering the matter at
issue, 	precludes 	the Board's 	exercise of 	jurisdiction.
Irrespective 	of 	respondent's willingness 	to waive procedural
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defenses 	in the grievance-arbitration process, 	PERB has 	no
legislative 	authority to 	exercise 	its 	jurisdiction until 	or
unless 	the 	grievance process 	is 	exhausted 	either by 	arbitration
award 	or 	settlement 	or 	futility 	is 	demonstrated.4 (Eureka 	City
School District 	(1988) 	PERB Decision No. 	702, 	p. 	7.)
In determining whether the 	allegations 	in an unfair practice
charge must be deferred to 	arbitration, 	the Board must 	first
examine 	the 	applicable 	language 	in the 	collective 	bargaining
agreements. 	In the present case, 	there are two applicable
collective bargaining agreements: 	(1) 	collective bargaining
agreement with the 	effective dates 	of 	July 	1, 	1985 	through June
30, 	1987; 	and 	(2) 	collective bargaining agreement with the
effective dates of July 	1, 	1987 through June 30, 	1988. 	Both
collective 	bargaining agreements 	have 	identical 	provisions 	for
final 	and binding arbitration. 	However, 	the Protected Activity
provisions differ. 	Article V, 	section 5.03 	of the 	1985-87
collective 	bargaining agreement 	states:
The 	state 	and the union 	shall 	not 	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 	the
State 	Employer-Employee 	Relations 	Act
(SEERA).
Requested remedy 	for violation of 	this
section 	shall 	be 	addressed 	through the 	Public
Employment Relations 	Board 	(PERB) 	and 	shall
not be 	subject 	to the 	grievance and
arbitration procedure 	contained 	in this
Agreement.
4In this 	case, 	futility was 	not raised by either party.
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In contrast, 	Article V, 	section 5.03 	of the 	1987-88 	collective
bargaining 	agreement 	states:
The 	state and the union 	shall 	not 	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 the
State 	Employer-Employee 	Relations 	Act
(SEERA).
Requested 	remedy 	for violation 	of 	this
section 	shall 	either be 	through the 	Public
Employment Relations 	Board 	(PERB) 	or through
the 	arbitration procedure 	contained 	in this
agreement. 	In either case, 	there shall be
only one bite 	of 	the apple and 	a decision in
one 	forum 	shall 	act 	as 	collateral 	estoppel 	in
the other forum, 	except 	if one 	forum defers
to the other.
The 	allegations 	in the unfair practice 	charge 	of 	reprisal
against Weaver regarding the 	overtime 	issue, 	which were 	also
addressed in a grievance 	filed on June 	16, 	1987, 	are not directly
covered 	by the 	applicable 	collective bargaining 	agreement. 	The
1985-87 	collective 	bargaining 	agreement 	contains 	language which
specifically 	states 	that 	the 	imposition of 	reprisals 	on 	employees
or 	discrimination against 	employees 	because 	of 	their 	exercise 	of
rights 	guaranteed by the 	Dills Act 	shall 	not be 	subject 	to 	the
grievance 	and arbitration procedures 	of 	the 	collective bargaining
agreement. 	Consequently, 	the allegations 	that the 	state
discriminated 	against Weaver by prohibiting any overtime 	as 	a
result 	of 	his 	protected 	activity 	are 	not 	covered by 	the 	Protected
Activity provision of 	the 	collective bargaining 	agreement.
(Article V, 	section 	5.03.)
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The 	amended unfair practice 	charge 	includes 	allegations 	that
the 	state 	changed Weaver's 	work 	schedule 	in retaliation 	for 	his
protected activity 	(the 	filing of 	grievances 	on May 	13 	and
June 	16, 	1987). 	Weaver received a memorandum dated August 	5,
1987, 	informing Weaver of a change 	in his work schedule,
effective August 31, 	1987. 	On August 	18, 	1987, 	Weaver filed a
grievance regarding this 	change 	in his work schedule. 	The 	1987-
88 	collective 	bargaining agreement 	contains 	language 	that 	the
state 	and CCPOA 	shall 	not 	impose 	or 	threaten to 	impose 	reprisals
on 	employees 	or discriminate 	against 	employees 	because 	of 	their
exercise of 	rights 	guaranteed by the Dills Act. 	This provision
further 	states 	that 	the parties 	shall 	request 	a 	remedy 	for a
violation 	either 	through 	PERB 	or 	through 	the 	arbitration
procedure 	contained 	in the 	collective bargaining 	agreement. 	As
the provisions 	of 	the 	collective bargaining 	agreement prohibit
the 	alleged 	conduct 	in the unfair practice 	charge, 	the Board must
defer 	this 	allegation 	in the 	amended unfair practice 	charge 	to
final 	and binding 	arbitration.
The protected 	activity provision 	in the 	1987-88 	collective
bargaining agreement also 	states 	that a decision 	in one 	forum
shall act as 	collateral estoppel 	in the other forum, 	except 	if
one 	forum defers to the other. 	Pursuant to Lake Elsinore, 	the
Board does 	not have 	jurisdiction to 	issue 	a 	complaint 	against
conduct prohibited by the parties' 	collective bargaining
agreement prior to 	the 	exhaustion of 	the 	agreements 	final 	and
binding arbitration machinery. 	Further, 	where the Board 	is
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without 	jurisdiction, 	it 	is well 	established that the Board
cannot acquire 	jurisdiction by the parties' 	consent, 	agreement,
stipulation, 	or acquiescence, 	nor by waiver or estoppel. 	(See
------·Lake Elsinore, 	supra--·. 	PERB Decision 646, 	p. 	19.) 	Thus, 	the fact
that 	the 	above provision provides 	that the parties 	choose between
PERB 	and 	the 	grievance-arbitration procedure 	in 	the 	collective
bargaining 	agreement does 	not 	confer 	jurisdiction on PERB where
the 	allegations 	are 	also 	covered by 	the 	grievance-arbitration
procedures 	in the 	collective bargaining 	agreement.
In conclusion, 	pursuant to Lake Elsinore, 	the Board
dismisses 	the unfair practice 	allegations 	regarding 	the 	change 	in
Weaver's work 	schedule. 	As 	the unfair practice 	charge
allegations 	regarding the denial 	of 	overtime 	are 	not 	covered 	by
the 	1985-87 	collective bargaining agreement, 	the 	Board reverses
the 	Board agent's 	dismissal 	and remands 	these 	allegations 	to 	the
General Counsel 	to 	issue a complaint.
ORDER
The 	Board hereby REVERSES 	the 	Board 	agent's 	dismissal
regarding the denial 	of 	overtime allegations, 	and REMANDS 	these
allegations 	to the General 	Counsel. 	The Board ORDERS the General
Counsel 	to 	issue 	a 	complaint 	alleging a violation of 	section
3519(a) 	of the Ralph C. 	Dills Act. 	The Board hereby DISMISSES
the 	allegations 	regarding 	the work 	schedule 	change.
Member Camilli 	joined 	in the 	Decision.
Member Craib's 	concurrence and dissent begins 	on page 	9.
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Member Craib, 	concurring and dissenting: 	I 	concur with my
colleagues 	that 	a 	complaint 	should 	issue 	as 	to 	the 	allegations
regarding the denial of overtime. 	However, 	I 	cannot agree with
the dismissal 	of 	the 	charge which 	arises 	out of 	the 	change 	in
Weaver's work schedule. 	The majority 	fails 	to address 	the 	chief
difference between the 	facts 	in Lake 	Elsinore 	School 	District
(1988) 	PERB Decision No. 	646 	and those currently before the
Board.
In Lake Elsinore, 	the Public 	Employment Relations 	Board
(PERB 	or Board) 	held that the 	jurisdiction of 	the Board to hear
unfair 	labor practice charges, 	where the conduct 	complained of
was 	also a violation of the parties' 	collective bargaining
agreement, 	was 	limited. 	If the parties 	agreed that resolution of
the 	dispute would be determined by binding arbitration, 	PERB must
defer jurisdiction to the parties' 	arbitration procedure; 	thus,
PERB was divested of 	its 	jurisdiction because of the parties' 	own
agreement. 	Key to the analysis 	in Lake Elsinore was 	section
3541.5, 	subdivision 	(a) 	of the Educational Employment Relations
Act which provides 	in pertinent part:
[T]he board shall not 	. 	. 	. 	issue a complaint
against 	conduct 	also prohibited by the
provisions 	of 	the agreement between the
parties 	until 	the 	grievanc
,\ e machinery of 	the
agreement, 	if 	it exists and covers the matter
at issue, 	has been exhausted, 	either by
settlement or binding arbitration. 	. 	. 	.
Implicit 	in this 	holding 	is 	the recognition that absent 	the
parties' 	agreement 	opting 	for binding arbitration which divests
the Board of 	jurisdiction, 	PERB has 	a 	statutory obligation to
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process 	an unfair 	labor practice 	regardless 	of whether 	the
conduct 	is 	also prohibited by 	the 	collective 	bargaining
agreement. 	In other words, 	PERB retains 	jurisdiction, 	absent the
parties' 	agreement to the contrary. 	This 	is the critical 	factor
in this 	case which the majority 	fails 	to address.
There 	is 	no disagreement 	that during the 	1985-1987 	contract,
exclusive 	jurisdiction 	for processing 	discrimination 	claims 	was
with 	PERB. 	The parties 	specifically provided that 	the
[r]equested remedy . 	. 	. 	shall be addressed
through the 	Public 	Employment 	Relations 	Board
(PERB) 	and shall not be 	subject to the
grievance 	and 	arbitration procedure 	contained
in this Agreement.
This 	language 	did not 	confer 	jurisdiction over discrimination
claims 	on PERB, 	but 	rather recognized that 	PERB has 	statutory
obligation to process 	such 	claims. 	The parties 	merely removed
discrimination 	claims 	from the 	grievance 	and arbitration process.
An 	election of 	remedies 	for discrimination claims 	was
provided 	in the parties' 	1987-1988 	agreement. 	The party
requesting 	a 	remedy 	for discrimination may 	seek redress 	either
through PERB or the 	arbitration procedure 	in the 	agreement. 	The
majority 	indicates 	that 	PERB does 	not 	have 	jurisdiction to 	issue
a 	complaint prior 	to 	the 	exhaustion of 	binding 	arbitration and
that 	the parties 	cannot 	confer 	jurisdiction on PERB, 	citing Lake
Elsinore. 	(Majority Decision at p. 	7.) 	Pursuant to Lake
Elsinore, 	these statements are correct, 	but unfortunately, 	do not
address 	the 	specifics 	of 	this 	case. 	If the requesting party does
not 	elect 	arbitration as 	the 	forum 	in which to 	adjudicate 	the
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alleged discrimination, 	PERB 	is 	not divested of 	jurisdiction.
Only when the 	grievance 	machinery 	of 	the 	agreement 	exists 	and
covers 	the matter at 	issue, 	must PERB defer 	jurisdiction to 	the
arbitration procedure. 	In all other cases, 	PERB has 	a 	statutory
obligation to process discrimination complaints. 	The majority
has 	not 	explained why the parties 	cannot 	agree 	to 	retain their
statutory 	right 	to 	seek redress 	for discrimination 	claims 	from
PERB, 	as well as provide an alternative optional 	forum. 	By
making binding arbitration an option, 	the parties 	have 	not
- - ----·
elected 	to 	have 	their 	grievance 	and 	arbitration machinery 	cover
every discrimination claim. 	Arguments 	to the 	contrary are
without merit.
The parties 	have a 	right 	to 	expect 	this 	Board to 	fulfill 	its
statutory duties which, 	in this 	case, 	requires that the Board
process this 	charge.
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