Yuba City Unified School District (PERB 1095E)

STATE OF CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
LY SEAL OF THE "STER
GRE
YUBA CITY UNIFIED EDUCATION
ASSOCIATION, CTA/NEA,
Charging Party,
v.
YUBA CITY UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1519
PERB Decision No. 	1095
April 27, 	1995
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Appearances: 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for Yuba City Unified Education Association, 	CTA/NEA;
Pinnell 	& Kingsley by Wendi L. 	Ross, 	Attorney, 	for Yuba City 	Unified
School District.
Before Blair, 	Chair; 	Garcia and Caffrey, Members.
DECISION
CAFFREY, Member: 	This case is before the Public Employment
Relations Board 	(PERB or Board) 	on exceptions 	filed by the Yuba 	City
Unified Education Association, 	CTA/NEA 	(Association) 	to a 	proposed
decision of a PERB administrative law judge 	(ALJ). 	The 	ALJ 	found
that 	the Yuba City Unified School 	District (District) 	did not violate
section 3543.5(a),(b) 	and 	(c) 	of the Educational 	Employment
Relations Act 	(EERA)1 as alleged by the Association,
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 states, 	in pertinent 	part:
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

when 	it 	changed the 	tenor of 	an 	"activity" 	period 	to 	that 	of 	a
quasi-academic 	course 	and made 	related modifications 	to 	the
1992-93 	schedule 	resulting 	in a 	change 	in the 	structure 	of 	some
teacher preparation periods.
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.
(c) 	Refuse or fail 	to meet 	and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the proposed decision, 	the hearing transcript, 	the
arbitrator's 	opinion and award, 	and the 	submissions 	of 	the
parties. 	In accordance with the 	following discussion, 	the Board
sets aside 	the proposed decision of 	the ALJ, 	defers 	to the
arbitrator's 	award, 	and dismisses 	the unfair practice 	charge 	and
complaint.
BACKGROUND
Procedural 	and 	Factual 	Background
In the 	late 	1970's, 	the Gray Avenue 	Intermediate 	School
(Gray Avenue) 	had a 	daily 	lunchtime 	activity period 	in which 	the
teachers 	supervised a number 	of 	sports 	and activities 	which were
not purely academic. 	In the mid-19 80's, 	the principal, 	concerned
with the way both teachers, and students 	were handling 	the period,
decided 	to modify 	the 	activity program by 	including 	a 	one-day-a-
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week homeroom. 	The homeroom time was 	to give 	students 	an
opportunity 	to 	learn how to 	take 	tests 	and 	improve 	their social
skills, 	among other things.
For 	1990-91, 	the activity period was 	restructured once
again, 	based 	in part 	on 	concerns 	for student behavioral 	problems
and a 	lack of 	interaction between teachers 	and students. 	Relying
on a 	State Department 	of 	Education publication 	created 	for middle
school 	students, 	the principal attempted to address 	these
concerns 	by 	substituting 	a 	new homeroom/study hall 	period 	for 	the
activity 	period.
The Association did not 	demand to bargain 	this 	change, 	but
several 	teachers 	believe 	they 	received a 	commitment 	from the
principal 	that 	this 	new concept would not 	turn 	into a 	teaching
period. 	The principal 	denies making such a 	commitment.
Following 	the 	changes 	made by 	the principal 	to 	the 	activity
period, 	problems 	still existed, 	some of which were the result of
the 	schedule. 	While 	half 	the 	students 	attended the 	study
hall/study 	skills 	period, 	the 	other half 	attended 	lunch and 	then
the 	two groups 	switched after 35 minutes. 	During the 	switch,
many students 	cut 	class 	and remained out 	in the 	lunch area.
Although a majority of 	the 	teachers 	were 	teaching 	study 	skills
during these periods, 	others 	had limited 	involvement with 	the
students.
During the 	1991-92 	school year, 	the Gray Avenue principal
held 	several 	staff meetings 	with 	teachers 	at which he proposed
changes 	to 	the 	study hall/study skills period in 	1992-93. 	At
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some 	of 	these meetings, 	teachers 	indicated that any such changes
would be negotiable. 	While 	this 	issue was 	not 	definitively-
addressed, 	the decision was made 	that 	for the 	1992-93 	school
year, 	the 	study hall/study 	skills 	period would be modified 	to a
study 	skills/advisory period, 	and 	related modifications 	would be
made 	to the 	school 	schedule.
As a result 	of 	the 	change, 	teachers were 	required to teach a
specified curriculum of 	study skills, 	i.e., 	note taking, 	test
taking hints, 	etc. 	The schedule modifications added 30 minutes
to 	each 	teacher's 	workday 	for 	the 	increased academic
responsibilities 	of 	the 	study hall/advisory class. 	Furthermore,
there was 	an 	increase of 	teaching 	time 	in each of 	the 	class
periods.
This modification in the work 	schedule 	led 	to 	a decrease 	in
break time, 	a decrease in the amount of passing time, 	a
modification of 	preparation periods 	and a 	significant 	increase 	in
the overall 	amount 	of 	instructional 	time. 	Much of 	this 	increase
was 	directly attributable 	to 	the 	implementation 	of 	the 	study
skills/advisory 	period.
The 	District 	and 	the Association are parties 	to 	a 	collective
bargaining agreement 	(CBA) 	with a term of July 1, 	1990 	through
June 30, 	1993. 	Article IV, 	Section E, 	states:
The middle 	school 	teaching day will 	be 	the
equivalent 	of 	a minimum of 	300 minutes 	of
classroom instruction, 	and the 	remaining 	time
in 	the 	school 	day 	shall 	be utilized 	for
planning, 	evaluating, 	preparing, 	and
obtaining materials. 	In the event of
extenuating 	circumstances, 	the administrator
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shall 	assign personnel 	as 	conditions
necessitate.
The parties 	are also 	signatories 	to a 	"Letter of
Understanding" 	dated August 26, 	1983, 	which expresses 	the
parties' 	intent 	concerning 	"the Gray Avenue 	School 	teaching day."
The Letter of Understanding states, 	in pertinent part:
The 	five-period day 	referred 	to 	in 	the
Agreement 	and embodied 	in Article 	III,
Section E, 	Hours, 	refers to periods of 50
minutes 	or less 	in time, 	plus 	the 3 0-minute
instructional activity period. 	Further, 	the
intent 	of 	the Agreement 	is 	for the
Administration 	to design a 	schedule 	that
would accommodate periods 	not 	to 	exceed 	50
minutes 	in length.
There 	is 	also a 	Letter of 	Understanding signed 	in March and
April 	1985, 	relative 	to a grievance 	filed by an 	individual 	Gray
Avenue teacher. 	Within the letter, 	the parties agreed that 	they
would:
. 	. 	. 	meet to discuss the discrepancy in the
teaching day at 	Gray Avenue 	School 	with 	the
current 	contract 	of 	300 minutes per day.
During their discussions, 	they will 	resolve
the 	issue of the minimum of 	3 00 minutes of
instructional 	time by 	computing 	the 	current
length of 	the 	school 	day and how it must 	be
adjusted to meet 	that 	requirement 	for 	the
next 	school year.
The 	CBA also 	includes 	a 	grievance 	procedure 	which 	culminates
in binding arbitration 	(Article VIII).
On July 31, 	1992, 	the Association filed a grievance over
"the principal's 	assignment 	of 	an advisory period 	to 	the unit
members 	at Gray Avenue School." 	The grievance alleged that 	the
following 	CBA provisions 	had been violated, 	misapplied 	or
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misinterpreted: 	Article IV - 	Hours, 	Section E; 	Article VI 	-
Procedures 	for 	the 	Evaluation of 	Certificated Employees,
Section A and D; 	Article XV 	- 	Class 	Size, 	Section A and C;
Article 	IX 	- 	Salaries; 	Article X 	-Extra Pay for Extra Duty;
Article XIX 	- 	Complaints 	Concerning School 	Personnel/Public
Charges; 	Article XXI 	- Non-Discrimination; 	and Appendix A -
Teacher Duties 	and Responsibilities.
On November 24, 	1992, 	the Association filed the instant
unfair practice 	charge, 	alleging that 	the 	change 	in the 	study
hall/study 	skills period 	implemented 	for 	the 	1992-93 	school 	year
constituted a unilateral 	change 	in violation of 	EERA
section 	3543.5. 	The 	charge also alleges 	that 	the daily schedule
of 	teachers 	at Gray Avenue was unilaterally changed, 	also 	in
violation of 	EERA. 	The 	charge 	specifically references 	the 	1983
and 1985 	letters 	of understanding.
On December 22, 	1992, 	the District 	requested PERB to defer
the unfair practice 	charge 	to the parties' 	contractual 	grievance
and arbitration process 	in accordance with EERA section 	3541.5.2
2EERA section 3541.5 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the board
shall 	not 	do either of 	the 	following:
(2) 	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.
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On December 24, 	1992, 	by agreement of the parties, 	the charge was
placed 	in abeyance pending 	the 	completion of 	the 	arbitration
process 	resulting from the Association's July 31, 	1992,
grievance.
On April 	17, 	1993, 	the Association requested that 	the charge
be taken out of abeyance. 	On May 10, 	1993, 	the office of PERB's
general 	counsel 	issued a 	complaint 	charging 	that 	the District
violated EERA section 3543.5(a), 	(b) 	and 	(c) 	when it changed the
study hall 	to 	require a 	designed 	teaching 	curriculum, 	and made
associated changes to the schedule. 	Also, 	on May 10, 	1993, 	a
Board agent 	issued a 	letter 	refusing 	to 	defer 	the matter 	to 	the
parties' 	contractual grievance and arbitration process. 	The
letter noted 	that 	the 	Board 	in Lake 	Elsinore School 	District
(1987) 	PERB Decision No. 	646 	(Lake Elsinore) 	held that EERA
section 	3541.5(a) 	establishes 	a 	jurisdictional 	rule 	requiring
that a charge be dismissed and deferred if: 	(1) 	the grievance
machinery of 	the parties' 	CBA 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 parties' 	CBA. 	The Board agent 	concluded that under Lake
Elsinore 	the 	conduct 	complained 	of 	by 	the Association 	is 	not
arguably prohibited by the parties' 	CBA and 	refused 	to dismiss
and defer 	the 	charge.
On May 28, 	1993, 	the District 	filed with PERB its answer to
the 	complaint, 	denying the Association's 	allegations 	and 	filing
several 	affirmative defenses. 	The District 	also moved that 	"the
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issue 	of 	the 	activity period at 	Gray Avenue 	Intermediate 	School
be deferred" 	to the arbitration process. 	The District asserted
that 	an arbitration hearing 	on the 	issue was 	scheduled 	for
June 7, 	1993.
On June 	3, 	1993, 	an informal 	conference was held with a PERB
ALJ 	in an attempt 	to 	reach voluntary 	settlement, 	but 	the parties
were unable 	to 	resolve 	their differences.
The Arbitrator's Award
On June 7, 	1993, 	an arbitration hearing was conducted. 	In
his October 12, 	1993, 	opinion and award, 	the arbitrator traces
the 	development 	of 	the activity period 	from its 	initiation 	in
1979, 	through the modifications which occurred 	in 1992-1993 	and
formed the basis 	of 	the Association's 	grievance. 	The arbitrator
also 	traces 	the 	development 	of 	the 	CBA language 	affecting hours
found in Article 	IV, 	Section E.
The 	arbitrator 	concludes 	that 	the 	introduction of 	the 	study
skills/advisory class, 	and the 	related changes 	in teacher
schedules, 	are permitted by Article 	IV, 	Section E of 	the CBA
which 	calls 	for a 	teaching day 	"of 	a minimum of 	300 minutes 	of
classroom instruction." 	The 	arbitrator 	concludes 	that 	"Even with
the 	1992-93 	scheduling changes, 	teaching 	time at Gray remained
below the 	contract minimum." 	The arbitrator finds 	that 	the 	1983
"Letter of Understanding" 	predates 	the adoption of 	the 	"300
minutes" 	language 	in CBA Article IV, 	Section E, 	and was designed
to 	clarify a 	clause 	which appeared 	in prior agreements 	between
the parties. 	With respect to the 1985 	letter, 	the arbitrator
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distinguishes 	it as 	an 	individual 	grievance 	settlement, 	and notes
that 	it 	contains 	language 	indicating that 	the parties would
discuss 	the 	300-minute minimum instructional 	day. 	The 	arbitrator
concludes 	that 	the District's 	actions 	were not 	inconsistent 	with
this language.
The 	arbitrator also 	concludes 	that 	the District 	had not
violated 	the 	other CBA sections 	cited by 	the Association 	in 	its
grievance. 	The arbitrator finds 	that 	the schedule 	changes at
Gray Avenue 	did not 	result 	in unequal 	preparation 	time 	for
certain teachers, 	since teachers were able 	to 	"borrow" 	available
time 	to 	augment 	the provided preparation period.
The 	arbitrator notes 	that 	the Association had alleged an
unlawful 	unilateral 	change and 	"filed an unfair practice 	charge
against 	the District with respect 	to 	these 	same 	issues." 	With
regard to the 	teacher schedule 	changes, 	the arbitrator 	concludes
that 	"the 	exercise 	of management's 	authority to make 	the 	changes
at 	issue 	did not violate 	the 	contract 	as 	it 	exists." 	In a
footnote 	the arbitrator notes 	that 	he:
. 	. 	. 	declines to determine any unfair labor
practice issues 	in this 	context, 	as 	the
parties 	have not 	agreed 	to 	submit 	them for
determination. 	This Award is 	limited solely
to 	the 	contract 	question presented.
The 	arbitrator 	reaches 	the 	following 	conclusion 	in his
opinion 	and 	award:
The grievance 	is denied. 	The District did
not violate 	the Agreement when 	it 	implemented
a 	study 	skills/advisory 	class 	during 	the
1992-93 	school year, 	and made associated
scheduling 	changes.
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The ALJ's 	Proposed Decision
A hearing pursuant 	to 	the 	unfair practice 	charge was 	held
before a PERB ALJ on December 2 	and 3, 	1993, 	and February 15,
1994. 	During the hearing, 	the District 	renewed its motion to
defer 	the matter to 	the parties' 	grievance and arbitration
process. 	The District asserted that 	the application of 	the post-
arbitration 	deferral 	standard 	cited by 	the 	Board 	in 	San Diego
County Office of Education 	(1991) 	PERB Decision No. 	880
should 	result 	in deferral 	to 	the 	arbitrator's 	opinion and award.
The ALJ, 	noting 	that 	the 	arbitrator had specifically declined to
determine any unfair labor practices 	in his 	decision, 	denied the
District's motion. 	The ALJ took administrative notice 	of 	the
arbitrator's 	opinion and award.
The ALJ issued his proposed decision on June 30, 	1994. 	In
it, 	the ALJ traces 	the historical progression of 	the 	study hall
period 	from its 	beginnings 	in the 	late 	1970's 	to 	the 	1992-93
modifications 	which prompted 	the 	filing 	of 	the unfair practice
charge. 	The ALJ also 	traces 	the progression of 	the provision
affecting hours 	found in Article 	IV, 	Section E 	of 	the parties'
CBA, 	as well 	as 	changes 	in the daily schedule 	relating to
variations 	in the 	teacher 	instructional 	day.
The ALJ 	finds 	that 	the 	change 	in 	the 	tenor of 	the activity
period, 	although it 	increased the teachers' 	instructional
minutes, 	did not 	increase 	their workday beyond the 	level 	agreed
to 	in Article 	IV, 	Section E 	of 	the CBA. 	The ALJ also 	finds 	that
the 	related changes 	in the 	teacher schedule at Gray Avenue did
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not 	effectively shorten 	some 	teachers* 	preparation periods
because 	they were 	able 	to add other available 	time 	to achieve 	the
same 	level 	of preparation time. 	The ALJ concludes:
. 	. 	. 	there is insufficient evidence upon
which 	to 	find 	that 	the District violated 	the
Act, 	when it 	(1) 	changed the tenor of the
"activity" 	period to 	that 	of 	a quasi-academic
course, 	or 	(2) 	modified the 1992-93 	schedule
resulting 	in a 	change 	in 	the 	structure 	of
some 	teacher preparation periods 	at Gray
School.
POSITIONS 	OF THE 	PARTIES
The Association 	filed 	exceptions 	to 	the ALJ's 	decision
asserting 	that 	the 	ALJ 	incorrectly 	interpreted 	the meaning 	of
Article 	IV, 	Section E of the parties' 	CBA. 	The Association also
alleges 	that 	the ALJ 	incorrectly 	determined 	that 	the 	schedule
changes 	at 	Gray Avenue 	had not 	unilaterally altered 	the
preparation periods 	of 	certain teachers.
The District 	responds 	to the Association's 	exceptions, 	and
also 	excepts 	to 	the ALJ's 	decision 	that 	the matter was 	not
subject 	to deferral 	to the parties' 	contractual 	grievance and
arbitration process. 	The District 	also 	requests 	that 	the Board
award attorneys' 	fees 	to the District 	in this 	case, 	arguing that
the Association's 	pursuit 	of 	this matter after unfavorable
decisions 	by 	the 	arbitrator and 	the ALJ 	is 	"without 	arguable
merit, 	frivolous, 	vexatious, 	dilatory, 	pursued in bad faith or
otherwise an abuse 	of process." 	(Los Angeles Unified School
District 	(1993) 	PERB Decision No. 	1013 	(Los Angeles).)
The Association responds 	that 	this 	case does 	not meet 	the
deferral 	standard established by 	the Board 	in Lake 	Elsinore. 	The
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Association notes 	that 	the 	arbitrator had 	specifically 	declined
to decide any unfair practice 	charge 	issues which are 	"better
suited 	to a 	PERB 	hearing." 	The Association also 	opposes 	the
District's request 	for attorneys' 	fees.
DISCUSSION
In 	cases 	in which an arbitration award 	covers 	a matter at
issue 	in a 	complaint before 	PERB, 	a post-arbitration repugnancy
analysis 	is 	conducted 	to 	determine whether 	the 	complaint 	should
be 	dismissed and deferred 	to 	the 	arbitration award. 	Therefore,
the Association's 	argument 	that 	this matter 	is 	not 	subject 	to
deferral 	under the 	Board's 	pre-arbitration deferral 	standard,
enunciated in Lake Elsinore, 	is misplaced.
EERA section 3541.5 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the board
shall 	not 	do either of 	the 	following:
(2) 	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. 	However, 	when the charging
party demonstrates 	that 	resort 	to 	contract
grievance procedure would be 	futile,
exhaustion shall 	not be necessary. 	The board
shall 	have 	discretionary 	jurisdiction 	to
review the 	settlement 	or arbitration award
reached pursuant 	to 	the 	grievance machinery
solely 	for 	the 	purpose 	of 	determining whether
it 	is 	repugnant 	to the purposes 	of 	this
chapter. 	If the board finds 	that 	the
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
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the merits. 	Otherwise, 	it shall dismiss the
charge.
(Emphasis 	added.)
Unlike 	the mandatory 	jurisdictional 	requirement 	governing pre-
arbitration deferral matters, 	in a post-arbitration context 	the
Board's 	jurisdiction 	is 	discretionary and 	limited 	solely 	to 	a
determination 	of 	whether 	the 	arbitration award 	is 	repugnant 	to
the purposes 	of 	EERA.
In Dry Creek Joint 	Elementary School 	District 	(1980) 	PERB
Order No. 	Ad-81a 	(Dry Creek), 	the Board adopted the post
arbitration deferral 	standard 	enunciated by 	the 	National 	Labor
Relations 	Board 	(NLRB) 	in Spielberg Manufacturing 	Company 	(1955)
112 NLRB 	1080 	[36 	LRRM 1152] 	(Spielberg) 	and Collyer Insulated
Wire 	(1971) 	192 NLRB 837 	[77 LRRM 1931]. 	Under this 	standard,
the Board will 	exercise 	its 	discretionary 	jurisdiction 	to 	dismiss
and defer a 	complaint 	to 	the arbitrator's 	award if: 	(1) 	the
matters 	raised 	in 	the unfair practice 	charge were presented 	to
and considered by the arbitrator; 	(2) 	the arbitral proceedings
were 	fair and regular; 	(3) 	all parties 	to the arbitration
proceedings agreed to be bound by the arbitral 	award; 	and 	(4) 	the
award 	is 	not 	repugnant 	to 	the purposes 	of 	the 	EERA.
In Olin Corporation 	(1984) 	268 NLRB 573 	[115 	LRRM 1056]
(Olin Corporation), 	the NLRB further described its 	standard for
deferral 	to 	an arbitrator's 	award:
. 	. 	. 	we adopt the following standard for
deferral 	to arbitration awards. 	We would
find 	that 	an arbitrator 	has 	adequately
considered the unfair labor practice 	if 	(1)
the 	contractual 	issue 	is 	factually parallel
to the unfair labor practice 	issue, 	and 	(2)
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the 	arbitrator was 	presented 	generally with
the 	facts 	relevant 	to 	resolving 	the unfair
labor practice. 	[Fn. 	omitted.] 	In this
respect, 	differences, 	if any, 	between the
contractual 	and 	statutory 	standards 	of 	review
should be 	weighed by 	the 	Board as 	part 	of 	its
determination under 	the 	Spielberg 	standards
of whether an award 	is 	"clearly repugnant" 	to
the Act. 	. 	. 	. Unless the award is "palpably
wrong," 	[Fn. 	omitted.] 	i.e., 	unless the
arbitrator's decision 	is 	not 	susceptible 	to
an 	interpretation 	consistent with the Act, 	we
will 	defer.
The 	NLRB 	further stated 	that 	it:
. 	. 	. 	would require that the party seeking to
have 	the Board 	[NLRB] 	reject deferral 	and
consider 	the merits 	of a given case 	show that
the 	above 	standards 	for deferral 	have 	not
been met. 	Thus, 	the party seeking to have
the Board 	[NLRB] 	ignore the determination of
an arbitrator has 	the burden of 	affirmatively
demonstrating 	the 	defects 	in 	the 	arbitral
process or award. 	[Fn. 	omitted.]
Applying 	the 	Dry Creek post-arbitration deferral 	standard 	to
the 	instant 	case, 	the Board concludes 	that 	this matter should be
dismissed and 	deferred 	to 	the 	arbitrator's 	award which 	resulted
from the parties' 	contractual 	grievance and arbitration process.
First, 	it 	is 	clear that 	the matters 	raised in the unfair
practice 	charge 	were 	presented 	to 	and 	considered by 	the
arbitrator. 	In both contexts, 	the 	issue 	involves whether the
District 	acted properly 	in 	changing 	the 	nature 	of 	the 	study
hall/activity period, 	and 	in making 	related 	schedule
modifications 	for the 	1992-93 	school year. 	Furthermore, 	the
facts 	considered by 	the 	arbitrator 	in 	resolving 	the 	issue 	are
identical 	to 	those 	relevant 	to 	resolving 	the unfair practice
charge.
14

The Association argues 	that 	the arbitrator's 	statement 	in a
footnote 	that 	he 	"declines 	to determine 	any unfair labor practice
issues" 	should lead 	the Board 	to decide 	that deferral 	is 	not
appropriate 	in this 	case. 	A mere 	statement by an arbitrator 	is
not dispositive 	of 	the Board's 	exercise 	of 	its 	jurisdiction under
EERA. 	The NLRB dealt with a 	similar circumstance 	in Bay
-
Shipbuilding Corp. 	(1980) 	251 NLRB 809 	[105 LRRM 1376], 	in which
it 	considered deferral 	to 	an award by an arbitrator who
specifically 	stated 	that 	he 	was 	not 	deciding whether 	the 	National
Labor Relations 	Act 	had been violated. 	Concluding 	that 	the
arbitrator's 	factual 	findings 	clearly paralleled 	those 	presented
by the unfair labor practice, 	the NLRB deferred to 	the
arbitrator's 	award 	irrespective 	of 	his 	statements. 	Similarly in
this 	case, 	the arbitrator considered facts 	identical 	to those
presented by the unfair practice 	charge. 	Therefore, 	despite 	the
arbitrator's 	statement, 	the 	first prong of 	the 	test described in
Dry 	Creek 	and amplified 	in Olin 	Corporation 	for deferral 	to
arbitration awards 	has been met, 	and the Board concludes 	that 	the
arbitrator adequately 	considered 	the matters 	raised 	in 	the 	unfair
labor practice 	charge.
Second, 	the arbitral proceedings 	appear to have been fair
and 	regular, 	and there 	is 	no assertion 	to 	the 	contrary by either
party.
Third, 	by the terms of the parties' 	CBA at Article VIII,
they have 	agreed 	to be bound by 	the 	arbitral 	award.
15

Fourth, 	and most 	importantly, 	the Board must determine
whether 	the 	arbitrator's 	award 	is 	repugnant 	to 	the purposes 	of
the 	EERA. 	Under the 	standard described 	in Spielberg and Olin
Corporation, 	unless 	the award is 	"palpably wrong" 	and not
susceptible 	to an 	interpretation consistent with EERA, 	the Board
will 	defer to the arbitrator's award. 	Furthermore, 	the Board has
stated 	that 	"The 	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." 	(Los Angeles Unified School District 	(1982) 	PERB
Decision No. 	218.) 	In this 	case, 	the Board finds nothing in the
arbitrator's 	award suggesting 	that 	it 	is 	repugnant 	to 	the
purposes 	of 	EERA. 	Additionally, 	the party seeking to have 	the
Board reject deferral, 	the Association, 	has not offered any
argument 	that would lead to 	the 	conclusion that 	it 	is. 	(Olin
Corporation.) 	Accordingly, 	the Board concludes 	that 	the
arbitrator's award is not 	repugnant 	to the purposes 	of 	EERA, 	and
the 	Board's 	standard 	for dismissing and deferring 	to 	that 	award
has been met.
Finally, 	the 	complaint 	issued as 	a result 	of 	the unfair
practice 	charge 	in this 	case 	alleges 	that 	the District's 	conduct
violated EERA section 3543.5(a), 	(b) 	and 	(c), 	involving the
rights 	of 	both 	individual 	employees 	and 	the 	exclusive
representative/employee 	organization. 	In a post-arbitration 	case
in which multiple violations 	were 	alleged based 	on 	the 	employer's
conduct, 	San Diego County office of Education, 	supra. 	PERB
16

Decision No. 	880, 	the Board reviewed the arbitrator's award and
determined 	that 	the 	alleged violation 	of 	employee 	organization
rights 	had not 	been 	raised before 	or decided by 	the 	arbitrator.
Accordingly, 	while 	the Board applied a post-arbitration deferral
analysis 	to 	the 	alleged violation of 	individual 	employee 	rights,
it 	concluded 	that 	a pre-arbitration deferral 	analysis 	under 	Lake
Elsinore must 	be applied 	to 	the 	alleged violation 	of 	employee
organization 	rights.
In a post-arbitration context, 	the Board declines 	to
continue 	the 	practice 	of 	applying dual 	jurisdictional 	standards
based on 	the 	section 	of 	the 	statute 	alleged 	to have been
violated, 	as was done in San Diego. 	Once an arbitration award
has 	been 	issued, 	the Board applies 	the post-arbitration deferral
standard it adopted in Dry Creek. 	Under that 	standard, 	the Board
determines 	if 	the 	contractual 	issue 	and the unfair practice 	issue
are 	factually parallel, 	and whether 	the arbitrator was presented
with 	the 	facts 	which are 	relevant 	to 	resolving 	the unfair
practice. 	Any differences 	between 	the 	contractual 	and 	statutory
standards 	of 	review are 	evaluated to determine 	if 	the
arbitrator's 	award 	is 	clearly repugnant 	to 	the purposes 	of 	EERA.
In a post-arbitration context, 	the Board's discretionary
jurisdiction 	is 	limited 	solely 	to 	a 	repugnancy 	review of 	the
arbitration award. 	This precludes 	the application of 	the 	Lake
Elsinore mandatory 	jurisdictional 	standard which 	governs 	pre-
arbitration deferral 	matters.
-
17

Accordingly, 	the Board hereby overrules 	San Diego and 	its
progeny 	to 	the 	extent 	that 	they 	conclude 	that 	the 	Board may apply
dual 	jurisdictional 	standards 	in a post-arbitration 	context.
Attorney 	Fees
The 	Board does 	not 	find the Association's 	appeal 	of 	the
ALJ's proposed decision to be 	"without 	arguable merit, 	frivolous,
vexatious, 	dilatory, 	pursued in bad faith or otherwise an abuse
of 	the process." 	(Los Angeles.) 	Accordingly, 	the District's
request 	that 	PERB award attorneys' 	fees 	and costs 	is 	hereby
denied.
CONCLUSION
The 	Board 	finds 	that 	the arbitrator's 	award 	is 	not 	repugnant
to the purposes 	of 	EERA and, 	therefore, 	dismisses and defers 	the
matter 	to 	the arbitrator's 	award.
ORDER
The 	complaint 	and unfair practice 	charge 	in 	Case
No. 	S-CE-1519 	are hereby DISMISSED.
Chair Blair 	joined 	in 	the Decision.
Member Garcia's 	concurrence and dissent begins 	on page 	19.
18

GARCIA, 	Member, 	concurring and dissenting: 	I 	concur in the
result 	that 	the Yuba City Unified School 	District 	(District) 	did
not 	commit 	an unfair labor practice. 	The District's unilateral
exercise 	of 	contractual 	rights 	was 	consistent with the 	terms 	of
the 	collective bargaining agreement 	(CBA) 	between the parties.
Due 	to 	a 	continuing misinterpretation 	of 	Lake 	Elsinore
School District 	(1987) 	PERB Decision No. 	646 	(Lake Elsinore) 	and
the paraphrase 	"arguably prohibited," 	Public 	Employment 	Relations
Board 	(PERB or Board) 	agents 	fail 	to properly analyze and defer
disputes 	that 	are 	covered by 	contracts 	and 	subject 	to a 	grievance
agreement. 	The 	error was 	repeated 	in this 	case when a 	complaint
issued 	charging 	the District 	with violations 	of 	the 	Educational
Employment Relations Act 	(EERA) 	section 3543.5(a), 	(b) 	and 	(c) ;
in essence 	the District 	was 	charged with an unlawful 	unilateral
change 	to a past practice. 	In the Board agent's view, 	the CBA
between the parties 	did not 	"arguably prohibit" 	the 	issues 	raised
by 	the 	Yuba 	City Unified 	Education Association, 	CTA/NEA
(Association).
In analyzing 	the dispute, 	the 	Board agent properly referred
to Lake Elsinore 	for guidance, 	which held that:
[EERA section 3541.5] 	is 	intended to operate
as a jurisdictional limitation . 	. 	. where
the matter 	is 	covered by the parties'
grievance procedures 	and binding
arbitration. 	. 	. 	. 	[Id. 	p. 25;
emphasis 	added.]
That unanimous 	opinion also states 	that:
. 	. 	. 	the Legislature plainly expressed that
the parties' 	contractual procedures for
binding arbitration, 	if 	covering the matter
19

at 	issue, 	precludes 	this Board's exercise of
jurisdiction. 	(Id.. 	p. 	31; 	emphasis added.)
-
The 	opinion goes 	on to state 	that:
. 	. 	. 	section 3541.5(a) 	precludes this
Board's 	exercise 	of 	jurisdiction where 	the
disputed 	issue 	is 	covered by the parties'
contractual 	grievance-arbitration
p r o c e d u r e s . . . .
(Emphasis 	added.)
Nowhere 	in Lake 	Elsinore 	does 	the paraphrase 	"arguably
prohibited" 	appear; 	its meaning 	is 	found by reading two other
cases1 which 	conclude 	that where 	the 	subject matter 	in dispute 	is
susceptible 	of 	an 	interpretation that 	it 	is 	covered by the
parties' 	contract, 	the dispute should be deferred until 	the
grievance process 	is 	exhausted. 	That policy will 	defer most
disputes 	and where 	coverage 	remains 	questionable, 	Riverside
states 	that 	doubts 	should be 	resolved 	in 	favor of 	coverage.
My analysis 	shows that on July 31, 	1992, 	the Association
filed a 	grievance 	claiming 	that 	the District's 	unilateral 	change
in policy violated the 	CBA provisions. 	The parties 	did
eventually go 	to arbitration, 	so 	they must 	have presumed 	the
issue was 	covered by 	the 	contract.
During arbitration, 	the Association stated the 	issue as
follows:
Did 	the District violate 	the 	Collective
Bargaining 	Agreement 	and 	established 	practice
when 	it unilaterally 	changed 	the 	teaching
schedule 	at 	the Gray Avenue 	School 	for the
1992-93 	school 	year? 	If 	so, 	what 	should be
1 Inglewood Unified School 	District 	(1990) 	PERB Decision
No. 	821 and Riverside Community College District 	(1992) 	PERB
Order No. Ad-229 	(Riverside).
20

the 	appropriate 	remedy? 	(Arbitrator's
Opinion and Award, 	p. 	2.)
The District 	stated the 	issue 	as 	follows:
Did 	the District violate 	the 	following
provisions of 	the parties' 	Collective
Bargaining Agreement: 	Article 	IV, 	Section E;
Article VI, 	Sections A and D; 	Article XV,
Sections A and C; 	Article 	IX; 	Article X;
Article XIX; 	Article XXI, 	and Appendix A when
the 	study hall/study 	skills 	period at 	Gray
Avenue 	Intermediate 	School 	was 	refocussed as
a 	study 	skills 	advisory period 	for the 	1992-
93 	school year? 	(Id.)
---
The 	arbitrator 	found 	that 	the 	issue 	should be 	framed as
follows:
Did 	the 	District 	violate 	the 	Collective
Bargaining Agreement 	during 	the 	1992-93
school 	year by 	implementing a 	study
skills/advisory 	program 	during 	a 	designated
period at 	the Gray Avenue Middle 	School? 	If
so, 	what 	should be 	the appropriate remedy?
(ID., 	P. 	3.)
The Arbitrator's 	Award 	concluded 	that 	the District 	had a
contractual 	right 	to make 	the 	change. 	The 	PERB administrative
law judge 	(ALJ) 	considered only whether section 3543.5(c) 	was
violated by 	the District's unilateral 	change 	in policy. 	During
the 	hearing, 	both parties 	argued over 	the 	interpretation of 	the
contract 	before 	the ALJ and, 	based on his 	interpretation of 	the
contract, 	the ALJ 	found the District had a 	contractual 	right 	to
change 	its policy.
It 	is apparent 	that 	only the Board agent, 	through subjective
analysis, 	was 	of 	the 	opinion that 	the 	contract did not 	cover the
dispute. 	The 	record 	confirms 	the District's position that 	the
matter 	should have been deferred early on. 	The District 	was 	put
21

to unnecessary expense, 	not because 	the Association was vexatious
and 	frivolous, 	but because 	PERB 	improperly applied 	its
jurisdictional 	statutes.
After the arbitrator's 	award came 	into being, 	PERB's
jurisdiction was 	limited 	to a 	repugnancy 	review of 	the 	award
based on 	the 	contractual 	issues 	decided by the 	arbitrator. 	The
law does 	not 	permit 	review 	for any other purpose.2 However, 	the
majority 	opinion uses 	a 	repugnancy 	review 	to attempt 	to adopt 	a
deferral policy, 	based on collateral 	estoppel, 	through this
decision 	rather 	than pursue 	a 	rulemaking under 	the 	California
Administrative 	Procedure Act 	(APA). 3 The adoption will be
invalid because 	it 	is 	contrary 	to 	the 	statutory rights 	of 	parties
and 	is 	repugnant 	to 	the APA which specifies 	the process 	State
agencies 	must 	follow 	to adopt 	regulations 	and policies 	which
affect 	the public. 	The essence of 	the majority opinion 	is not 	a
quasi-judicial 	interpretation of 	law; 	it 	is an invalid form of
2EERA section 3541.5(a)(2) 	provides, 	in pertinent part,
that:
The 	board 	shall 	have 	discretionary
jurisdiction 	to 	review the 	settlement 	or
arbitration award 	reached pursuant 	to 	the
grievance machinery 	solely 	for 	the purpose 	of
determining whether 	it 	is 	repugnant 	to 	the
purposes 	of 	this 	chapter. 	If 	the board finds
that 	the 	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.
3The Administrative 	Procedure Act 	is 	codified at 	Government
Code 	section 	11345 	et 	seq.
22

rulemaking 	that 	seeks 	to adopt 	a policy 	that 	states 	when PERB
will 	surrender 	its 	decision-making 	responsibilities 	to 	an
arbitrator's award. 	Furthermore, 	it 	is 	error to employ the
discretionary 	repugnancy 	jurisdiction 	granted 	to 	PERB 	under 	EERA
section 3541.5(a)(2) 	to establish this 	change 	in policy; 	the
issue 	of 	an unfair 	labor practice 	committed against 	the 	employee
organization was 	not 	part 	of 	the 	arbitrator's 	award and 	cannot 	be
the 	subject 	of 	a 	repugnancy 	review.
The 	foundation that underlies 	this 	attempted 	change 	in
policy 	is 	defective because 	it 	fails 	to 	recognize 	that 	the
National 	Labor Relations 	Board 	(NLRB) 	decision in 01in Corp.
(1984) 	268 NLRB 573 	[115 	LRRM 1056] 	(Olin) 	is supported by the
-
NLRB's 	far greater jurisdictional 	discretion, 	which springs 	from
the 	broad 	regulatory 	and 	quasi-judicial 	authority 	conferred 	on
the NLRB through federal 	law.4 PERB, 	by contrast, 	is a quasi-
4 See, 	e.g., 	NLRB v. 	Reliance Fuel Oil Corp. 	(1963) 	371 U.S,
224 	[52 	LRRM 2046], 	in which the Supreme Court 	stated that
"Congress 	intended 	to 	and 	did vest 	in 	the 	Board 	the 	fullest
jurisdictional 	breadth 	constitutionally 	permissible 	under 	the
Commerce 	Clause."
Additionally, 	29 U.S.C, 	section 156(b) 	of the Labor
Management 	Relations 	Act 	gives 	the 	Board 	quasi-legislative
power to:
. 	. 	. make, amend, and rescind . 	. 	. such
rules 	and 	regulations 	as may be 	necessary 	to
carry out 	the provisions 	of 	this Act.
Furthermore, 	29 U.S.C, 	section 164(c)(1) 	provides that:
The Board, 	in its discretion, 	may, 	by rule of
decision 	or by published 	rules 	adopted
pursuant 	to 	the Administrative 	Procedure Act,
decline 	to assert 	jurisdiction 	over any 	labor
dispute 	involving any 	class 	or 	category of
23

judicial 	agency without 	delegated quasi-legislative 	powers 	that
go beyond developing 	regulations 	necessary and useful 	to manage
its workload efficiently. 	It 	cannot 	adopt 	rules 	that 	impair the
statutory rights 	granted to 	the parties 	it 	regulates. 	EERA gives
employee 	organizations 	specific 	rights 	and access 	to 	PERB 	that
cannot 	be 	taken away without 	express 	waiver.
employers, 	where, 	in the opinion of the
Board, 	the effect 	of 	such labor dispute on
commerce 	is 	not 	sufficiently 	substantial
to warrant the exercise of its jurisdiction. 	. 	. 	.
5
Also, 	the majority fails 	to acknowledge that 	the Olin
decision 	is 	a 	rulemaking 	escape 	from decisions 	of 	the 	federal
courts 	which 	require 	a 	showing 	that 	an arbitrator 	"clearly
decided" 	unfair 	labor practice 	issues 	based 	on 	statutes 	before
the NLRB 	is 	authorized to defer 	to 	the arbitrator's 	award. 	NLRB
Member 	Zimmerman's 	dissent 	in Olin provides 	a 	thorough discussion
of 	federal 	law on NLRB deferral 	policy and 	is 	a primer on why
PERB's policy to 	recognize arbitrators' 	awards as a 	form of
collateral 	estoppel 	should be 	developed 	through a 	rulemaking
process.
Olin 	stands 	for 	the proposition 	that 	an arbitrator has
adequately 	considered an unfair 	labor practice 	issue 	if 	the
contractual 	issue 	is 	"factually parallel" 	to the unfair 	labor
practice 	issue 	and 	the 	arbitrator was 	presented 	"generally with
5The 	Board has 	held that 	in order 	for a waiver of 	a
statutory right 	to be 	found, 	the party urging waiver must prove
it 	by either 	clear and unmistakable 	language 	in 	the 	CBA or
demonstrable behavior amounting to a waiver of 	the 	right. 	(See
Solano County Community College District 	(1982) 	PERB Decision No,
219.)
24

facts 	relevant" 	to 	resolving 	the unfair 	labor practice 	issue.
Stripped of 	the verbiage, 	it 	is 	apparent 	a 	frustrated majority on
the 	NLRB 	adopted a 	highly 	subjective 	and 	fuzzy 	criteria 	to
determine when an unfair 	labor practice was 	"clearly decided" 	by
an arbitrator. 	In the case at bar, 	it 	is 	clear that 	the
arbitrator 	specifically 	declined 	to 	consider unfair 	labor
practice 	issues;6 the 	independent 	statutory right 	of 	employee
organizations 	to 	file 	charges 	and pursue 	complaints 	was 	not 	an
issue 	considered by 	the 	arbitrator 	or 	the ALJ.
Because 	of 	the NLRB's 	greater 	jurisdictional 	discretion,
unhindered by 	California's APA, 	the 	Olin policy 	survives 	although
it 	is viewed as 	illegal 	in the Eleventh Circuit 	(see, 	e.g.,
Taylor v. 	NLRB 	(1986) 	786 	F.2d 1516 	[122 	LRRM 2084]) 	and appears
inconsistent with 	federal 	court 	decisions 	in other 	circuits 	(see,
e.g., 	NLRB v. 	General Warehouse Corp. 	(3rd Cir. 	1981) 	643 	F.2d
965 	[106 LRRM 2729]; 	Stephenson v. 	NLRB 	(9th Cir. 	1977) 	550 	F.2d
535 	[94 LRRM 3224]; 	Banyard v. 	NLRB et al. 	(D.C. 	Cir. 	1974) 	505
F.2d 	342 	[87 	LRRM 2001]).
The 	majority would 	abdicate 	PERB's 	responsibility 	to
consider unfair 	labor practice 	charges 	brought 	by 	employee
organizations 	and declines 	to 	follow San Diego 	County Office 	of
6See Arbitrator's Opinion and Award at fn. 	30, 	p. 	25, 	which
states that:
The Arbitrator 	specifically 	declines 	to
determine 	any unfair 	labor practice 	issues 	in
this 	context, 	as 	the parties have not agreed
to 	submit 	them for determination. 	This Award
is 	limited 	solely 	to 	the 	contract 	question
presented.
25

Education 	(1991) 	PERB Decision No. 	880 	(San Diego), 	which
preserved a 	forum for 	the prosecution of 	independent 	statutory-
rights. 	There 	exists 	no 	statutory support 	or authority 	for 	this
position.
The 	invalidity of 	the position 	is 	shown by 	former PERB
Chairperson Hesse's 	concurrence 	in San Diego, 	which explains
PERB's 	duty and gives 	some direction as 	to alternative means 	of
achieving 	judicial 	economy. 	The 	judicial 	economy goal 	of 	Olin 	is
-
laudable 	and 	PERB 	should pursue 	it 	through a 	legal 	rulemaking
process 	that 	adopts 	clearer standards 	of 	deference 	to an
arbitrator's 	award while protecting 	the 	statutory 	rights 	of
employee 	organizations.
- -
26