Inglewood Unified School District (PERB 0821E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	INGLEWOOD
CHAPTER 	16,
Charging 	Party,
v.
INGLEWOOD 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-2912
PERB Decision No. 	821
June 27, 	1990
Appearance: 	Littler, 	Mendelson, 	Fastiff & Tichy by Jaffe D.
Dickerson, 	Attorney, 	for Inglewood Unified School District.
Before Hesse, 	Chairperson; 	Shank and Cunningham, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by the 	Inglewood
Unified 	School 	District 	(District) 	from an administrative 	law
judge's 	(ALJ) 	refusal to dismiss a complaint, 	filed by the
California 	School Employees Association 	(CSEA or Association),
and defer the 	underlying unfair practice 	charge 	to 	final 	and
binding 	arbitration. 	We have 	carefully reviewed the 	entire
record in this 	case, 	and reverse the ALJ's decision for the
reasons 	discussed below.
BACKGROUND
On November 27, 	1989, 	PERB issued a complaint on behalf of
the Association alleging that 	the 	District 	violated 	the
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Educational Employment Relations Act 	(EERA) 	section 3543.5(a),
(b) , 	and 	(c)1 by contracting out work of employees during a
3-week 	layoff 	in violation of 	the 	District's 	policy 	against
contracting out. 	The 	complaint 	arose out 	of 	an unfair practice
charge wherein CSEA alleged 	that 	the 	District 	violated 	an 	oral
agreement prohibiting 	contracting 	out 	the 	duties 	of 	employees 	who
were 	involved 	in a 	3-week 	layoff. 	The Association 	further
alleged 	the 	terms 	of 	this 	oral 	agreement were memorialized 	in a
memorandum, 	issued by the District to 	its principals 	and
department heads, 	entitled 	"Guidelines 	For The Three 	(3) 	Week
Classified 	Layoff 	Without 	Pay 	For The 	1988-1989 	Fiscal 	Year."
The pertinent 	language reads:
No 	substitutes, 	contracted services,
volunteer 	or 	additionally paid 	employees 	may
be 	used 	in the 	lay-off position during 	the
three 	(3) 	week lay-off.
On or about February 2, 	1990, 	the District 	filed its 	"Answer
and Motion to 	Dismiss 	and Defer to 	Binding Grievance
Arbitration," 	in which the 	District 	alleged that:
(a) 	CSEA and the District were parties 	to a written
collective 	bargaining 	agreement 	which 	contained 	a 	provision
relating 	to 	subcontracting:
20.1 	Restriction on Contracting Out: 	During
the life of this Agreement, 	the District
agrees 	that 	it will 	not use 	contracting out
to 	reduce 	the 	number of 	employees 	or the
number of 	assignments 	in the bargaining unit.
2
1JEERA	EERA 	is 	codified at Government Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code.
2

(b) 	The 	collective bargaining agreement 	contained a
grievance 	procedure 	ending 	in binding 	arbitration which 	covered
the dispute;
(c) 	CSEA's 	unfair practice 	charge 	admitted to both the
existence 	of 	the 	grievance procedure 	and 	the 	invoking 	of 	the
grievance procedure 	regarding 	the 	identical 	subject 	matter 	of 	the
complaint; 	and
(d) 	Dismissal 	of the 	complaint and deferral 	to arbitration
is 	required by 	PERB's 	ruling 	in Lake 	Elsinore 	School 	District
(1987) 	PERB Decision No. 	646.
On March 	12, 	1990, 	the ALJ denied the District's motion to
dismiss, 	ruling that the parties' 	collective bargaining agreement
did 	not 	cover 	the 	matter before him. 	The ALJ 	found 	that 	the
District was 	charged with violating 	a 	policy 	against 	contracting
out 	the work of 	employees who were 	on a 	3-week 	layoff, 	but 	that
the policy was 	not 	contained 	in the parties' 	collective
bargaining agreement, 	nor was 	there 	any 	indication that 	it was
incorporated 	in that 	agreement. 	The ALJ 	rejected 	the 	District's
contention that Article XX 	section 	20.1 	of 	the parties'
collective bargaining agreement was 	applicable, 	reasoning 	that
CSEA was 	not 	alleging 	the 	District 	contracted 	out 	unit work 	to
reduce 	the 	number of 	unit members 	or the 	number of 	assignments.
He 	further found that, 	under the terms 	of 	the 	collective
bargaining 	agreement, 	an 	arbitrator would be 	empowered 	to 	apply
and 	interpret 	only 	the provisions 	of 	the 	collective 	bargaining
agreement 	and 	not 	the provisions 	of 	the 	alleged 	separate
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agreement and/or the policy 	in question. 	The ALJ then concluded
that, 	since 	there had been no 	showing that the provisions 	of 	the
separate 	agreement were 	subject 	to 	binding 	arbitration or 	that
the 	collective 	bargaining agreement 	covered 	the 	matter 	at 	issue
in the proceeding, 	the 	charge was 	not 	subject to dismissal 	and/or
deferral.
On March 28, 	1990, 	the District filed the 	instant appeal
together with a 	request 	for a 	stay of hearing, 	then 	scheduled 	for
April 	3, 	1990. 	The Board granted the 	stay of hearing 	in
Inglewood Unified School District 	(1990) 	PERB Order No. 	Ad-205.
In its 	appeal, 	the District primarily reiterates 	the arguments
made 	in 	its 	motion. 	The Association filed no response 	to the
appeal.
DISCUSSION
In Lake Elsinore School District, 	supra. 	PERB Decision
No. 	646, 	pp. 	17-33,2 the Board held that the mandatory language
of 	EERA 	section 	3541.5(a)(2) 	established a 	jurisdictional 	rule
requiring 	that 	a 	charge 	be 	dismissed 	and deferred 	if 	the
conditions 	set 	forth therein exist. 	Section 	3541.5(a)(2)
provides, 	in pertinent part, 	that:
Any employee, 	employee organization or
employer 	shall 	have the right 	to 	file an
unfair practice charge, 	except that the board
shall not 	. 	. 	. 	issue a complaint against
conduct 	also prohibited by 	the 	provisions 	of
the 	agreement between the parties 	until 	the
2The Court 	of Appeal 	affirmed the 	Board's 	Lake 	Elsinore
decision 	in Elsinore Valley 	Education Association. 	CTA/NEA v.
PERB 	(Lake Elsinore School District) 	(July 28, 	1988) 	E5078
(nonpub. 	opn.).
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grievance machinery of the agreement, 	if 	it
exists 	and covers the matter at issue, 	has
been exhausted, 	either by 	settlement or
binding 	arbitration.
(Emphasis 	added.)
Thus, 	in determining whether deferral is 	appropriate, 	we
must 	first decide whether 	the 	conduct 	underlying 	the 	unfair
practice 	charge 	is 	prohibited by the parties 	collective
bargaining 	agreement. 	Article XX 	section 	20.1 	of 	the 	collective
bargaining agreement, 	on its 	face, 	prohibits the District 	from
"us[ing] 	contracting out to reduce the number of 	employees 	or the
number of 	assignments 	in the bargaining unit." 	In finding that
the 	conduct 	in question was 	not 	covered by this 	contract
language, 	the ALJ reasoned that:
[T]he Charging Party does 	not here allege
that 	the 	Respondent 	contracted out unit work
to reduce the 	number of 	unit members 	or the
number of assignments. 	. 	. 	.
In its 	appeal, 	the District argues 	that its 	contracting out
during 	the period 	of 	the 	layoff 	for 	services 	usually performed by
unit employees does, 	at least temporarily, 	reduce the number of
assignments 	in the unit 	and 	is 	thus 	covered by Article XX 	section
20.1. 	The District also points 	out that the 	filing and partial
adjudication of a contract grievance by an employee, 	regarding
the 	identical 	subject matter of the 	charge, 	constitutes prima
facie 	evidence 	that the 	subject matter 	is 	covered by the
contract's 	grievance provisions.
un
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In Conejo Valley Unified 	School 	District 	(1984) 	PERB
Decision No. 	376,3 the Board considered the National 	Labor
Relations 	Board's 	decision in Roy Robinson Chevrolet 	(1977) 	228
NLRB 	828 	[94 	LRRM 	1474], 	in which the NLRB deferred to
arbitration a 	charge 	that 	the 	employer had 	closed part 	of 	its
operation and discharged 	its 	employees without 	first 	bargaining
with 	the union. 	The 	employer 	claimed that 	the 	contract 	gave 	it
the authority to take 	such action without negotiating, 	relying on
a 	provision 	that merely 	stated that 	the 	"employer 	shall 	have 	the
exclusive right to hire, 	suspend and discharge his 	employees."
Although 	the 	union had 	argued 	that 	the 	employer's 	interpretation
of 	the 	contract 	language 	seemed improbable, 	the NLRB nevertheless
deferred the matter, 	stating:
As to the dissenters' 	argument that there is
no 	contract provision which 	could 	even
arguably give 	color to Respondent's 	conduct,
we disagree. 	The Supreme Court 	said in
United Steelworkers 	of America v. 	Warrior &
Gulf Navigation Co.. 	363 U.S. 	582-583, 	46
LRRM 2416, 	that an order to arbitrate a
particular 	grievance 	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 of 	coverage." 	We believe
that 	the dispute here 	falls within that
standard 	and 	is 	therefore properly referable
to the parties' 	arbitration procedure.
(Conejo Valley, 	supra. 	at p. 	6, 	emphasis in
original, 	quoting Roy Robinson Chevrolet.
supra.)
3Overruled 	on other grounds 	in Lake 	Elsinore 	School
District, 	supra, PERB Decision No. 	646, p. 	31, 	footnote 13.
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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. 	The 	fact 	that 	the Association was 	aware
that 	one 	of 	its 	members 	filed a 	grievance 	over the 	contracting
out and 	that the District 	acted upon the 	grievance, 	confirms 	that
CSEA 	at 	least 	recognized the possibility 	that 	the 	District's
conduct 	violated 	the 	collective 	bargaining 	agreement. 4
Having 	determined 	that 	the 	conduct 	underlying 	the 	unfair
practice 	charge 	is 	arguably prohibited by the 	collective
bargaining agreement, 	we must next decide whether the agreement
provides 	for 	resolution of 	the dispute by 	final 	and binding
arbitration. 	There 	is 	little question that the agreement, 	on
its face 	(Article XVII, 	sec. 	17.2), 	contains a grievance
procedure 	that results 	in 	final 	and binding arbitration. 	Whether
CSEA has 	standing 	under 	the 	agreement 	to 	utilize 	that procedure
to resolve the 	instant dispute 	is 	less 	clear.
4In its 	charge, 	CSEA admits 	the grievance procedure has been
invoked 	in relation to the matter of 	the 	charge 	and 	that 	it 	ends
in binding arbitration. 	Although the 	grievance was 	filed 	in the
name 	of 	an individual rather than in the name 	of 	the Association,
as noted infra. 	we find that, 	under the agreement, 	the
Association, 	at 	least arguably, 	has 	the right to 	file a grievance
in 	its 	own name 	challenging the 	contracting out.
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Article XVII 	(entitled 	"Grievance Procedure"), 	section
.17.1.1 	of 	the parties' 	collective bargaining agreement defines
"grievance" 	as follows:
[A]ny complaint of an employee, 	employees, 	or
CSEA 	involving 	the 	interpretation,
application, 	or alleged violation of 	this
A g r e e m e n t . . . .
Article XVII, 	section 17.1.5, 	which defines 	"grievant,"
provides, 	in pertinent part:
The Association may be 	the 	grievant 	on
Association rights, 	payroll deductions,
negotiation procedures 	and 	zipper.
Article VI 	(entitled 	"Organizational 	Rights"), 	section 	6.1
provides, 	in pertinent part:
CSEA 	shall have the 	following rights 	in
addition to the 	rights 	contained 	in any other
portion of this Agreement: 	. . . 	[a list of
rights follows, 	including, 	but not limited to
a right of access, 	right to use mailboxes 	and
bulletin boards, 	right to use 	institutional
facilities, 	right to review employee's
personnel files, 	etc.]
(Emphasis 	added.)
As 	Article VI 	section 	6.1 	does 	not 	limit 	the Association's
rights, 	but 	expressly 	states 	the Association has 	rights 	contained
in other portions 	of the 	collective bargaining agreement, 	the
Association arguably has 	the 	right 	to 	file a grievance based on a
violation of Article XX 	section 20.1.
While 	the above 	contract provisions 	are 	somewhat 	ambiguous,
for purposes 	of deciding the 	appropriateness 	of 	deferral 	in this
case, 	we 	find that the Association arguably has 	the right to 	file
a 	grievance 	in its 	own name 	to 	challenge 	the District's 	alleged
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violation of Article XX 	section 	20.1 	of the 	agreement.5
Accordingly, 	the 	complaint 	should be dismissed under EERA 	section
3541.5(b) 	for lack of 	jurisdiction.6
ORDER
For the above 	stated reasons, 	the Board hereby REVERSES 	the
denial 	of 	the motion to dismiss 	and defer and DISMISSES 	the
complaint issued in Case No. 	LA-CE-2912.
Chairperson Hesse 	and Member Cunningham 	joined 	in this 	Decision.
5We 	note 	too 	that the 	District has 	taken the position that
the 	instant dispute 	is 	subject to the grievance procedure.
6As we decide that the charge 	is deferrable, 	we do not
address 	the District's 	contention that the allegations 	in the
complaint 	fail 	to 	constitute 	a 	change 	in policy or past practice
and are, 	therefore, 	insufficient to 	state a prima facie case of
unilateral 	change.
9