Charter Oak Unified School District (PERB A125E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CHARTER OAK EDUCATION ASSOCIATION,
Charging Party,
v.
CHARTER OAK UNIF IED SCHOOL DISTRICT,
Respondent, APPELLANT.
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) Case NO. LA-CE-1391
PERB Order No. Ad-125
Administrative Appeal
(Interlocutory)
February 25, 1982
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Appearances: John J. Wagner, Attorney (Wagner & Wagner) for
Charter Oak Unified School District; Sandie Paisley, Attorney
for Charter Oak Education Association.
Before Gluck, Chairperson; Tovar and Moore, Members.
DECISION
This case comes before the Public Employment Relations
Board (hereafter PERB) on interlocutory appeal by the Charter
Oak Unified School District (hereafter District) of a hearing
officer's refusal to deny issuance of a complaint.
In its Answer to an unfair practice charge filed by the
Charter Oak Education Association (hereafter Association or
Charging Party) the District raised as an affirmative defense
the allegation that the collective bargaining agreement between
the parties provides for binding arbitration and that PERB must
defer to that procedure, pursuant to Government Code subsection

3541.5 (a) (2) .1
The 	hearing 	officer 	noted 	that 	PERE 	rules 	provide 	that 	the
arbitrability 	defense 	is 	properly 	raised 	by 	means 	of 	a 	motion
2	to 	deny 	issuance 	of 	a 	complaint. 	She 	elected 	to 	treat 	the
lsubsection 	3541.5(a) 	provides 	in 	pertinent 	part 	as
follows:
(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.
2PERB 	rule 	32654(a) 	provides:
Objections 	to 	the 	issuance 	of 	a 	complaint
pursuant 	to 	a 	prima 	facie 	charge 	may 	be 	made
on 	the 	ground 	that 	issuance 	of 	said
complaint 	is 	prohibited 	pursuant 	to 	section
3514.5(a) (2) 	or 	3541.S(a) (2) 	of 	the
Government 	Code. 	Objections 	shall 	be 	in 	the
form 	of 	a 	motion 	to 	deny 	issuance 	of
complaint 	and 	must 	be 	filed 	with 	the 	Board
within 	the 	time 	limits 	applicable 	to 	the
filing 	of 	an 	answer 	to 	the 	charge 	pursuant
to 	Section 	32635(a).
PERB 	rules 	are 	codified 	at 	California 	Administrative 	Code,
title 	8, 	section 	31000 	et 	seq.
2

District's
	affirmative
	defense
	as
	such
	a
	motion,
	and
	Charging
Party
	made 	no
	objection.
By
	letter
	of
	August
	11,
	1981,
	the 	hearing
	officer 	notified
the
	District
	that
	evidence
	to
	clarify
	and
	substantiate
	its
affirmative
	defense
	would 	be
	required.
	Specifically,
	the
District
	was
	given
	20
	days
	to
	demonstrate
	that:
1.
	There
	is
	an
	agreement
	between
	the
	parties
	which
provides 	for 	binding
	arbitration;
2.
	The
	issues 	raised
	by
	the
	unfair
	practice
	charge
	are
covered
	by
	the 	agreement;
	and
3.
	The
	issues 	raised
	by
	the
	unfair
	practice
	charge
	will
be
	heard
	by
	the
	arbitrator
	on
	the
	merits.
The
	District
	did 	not
	respond 	to 	the 	hearing
	officer's
letter.
	The
	hearing
	officer
	ruled
	that,
	absent
	such
	a
	showing,
the
	District's
	motion
	constituted
	an
	insufficient
	defense 	to
the
	Association's
	charge.
	She
	thus 	denied 	the
	motion
	to
	deny
issuance 	of 	complaint.
Whether
	its
	position 	is
	treated
	as
	a
	motion 	or 	as
	an
affirmative 	defense, 	the 	burden 	of 	demonstrating
	that 	deferral
was
	appropriate
	fell
	upon
	the
	District.
	We
	find
	it
	unnecessary
to 	reach 	the 	issue 	as 	to
	whether 	the
	District
	was
	obligated 	to
demonstrate
	that
	the 	Association's
	charge
	would 	be
	heard 	by	
an
arbitrator
	on
	its
	merits, 	although
	it
	was
	this 	issue
	upon 	which
the 	hearing 	officer 	placed 	primary 	reliance. 	Rather,
	we
	hold
that 	the
	District's 	failure 	to 	demonstrate 	that 	the
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Association's charge was one which was cognizable under a
contractual grievance machinery to which PERB must defer was in
itself a sufficient ground upon which the hearing officer could
properly base her ruling .
The ruling of the hearing officer is hereby AFFIRMED.
ORDER
Upon the foregoing decision and the entire record in this
case, the Public Employment Relations Board ORDERS that the
hearing officer is to proceed to hearing on the complaint
issued in case No. LA-CE-1391.
PER CURIAM
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