Merced Union High School District (PERB A150E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	& ITS 	MERCED 	HIGH
SCHOOL 	CHAPTER 	#252,
Charging 	Party,
v.
MERCED 	UNION 	HIGH 	SCHOOL 	DISTRICT,
Respondent.
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Case 	No. 	S-CE-873
Interlocutory 	Appeal
PERB 	Order 	No. 	Ad-150
December 	12, 	1985
Appearances: 	Penelope Mae 	Trocke 	for 	the 	California 	School
Employees 	Association 	& 	Its 	Merced 	High 	School 	Chapter 	#252;
Melbourne 	N. 	Gwin, 	Jr. 	Attorney 	for 	Merced 	Union 	High 	School
District.
Before 	Hesse, 	Chairperson; 	Jaeger 	and 	Porter, 	Members.
DECISION
JAEGER, 	Member: 	An 	administrative 	law 	judge 	(ALJ) 	has
certified 	an 	appeal 	to 	the 	Board 	itself 	of 	his 	order 	denying 	a
motion 	made 	by 	the 	Merced 	Union 	High 	School 	District 	(District)
to 	defer 	to 	arbitration 	an 	unfair 	practice 	complaint 	issued
pursuant 	to 	an 	unfair 	practice 	charge 	filed 	by 	the 	California
School 	Employees 	Association 	& 	Its 	Merced 	High 	School 	Chapter
#:252 	(CSEA). l
lPublic 	Employment 	Relations 	Board 	(PERE) 	Regulation
32200 	sets 	out 	the 	standards 	for 	certification 	of 	interlocutory
appeals. 	Board 	regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31001 	et 	seq.

FACTS
The 	unfair 	practice 	charge 	and 	the 	complaint 	each 	contain
two 	separate 	allegations 	of 	violation 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA) 2 : 	(1) 	that 	a 	District
employee, 	Alice 	Trevino, 	was 	terminated 	because 	she 	had
exercised 	her 	rights 	guaranteed 	by 	EERA 	by 	responding 	to 	the
District 1 s 	evaluation 	of 	her 	performance 	as 	permitted 	by 	the
parties 1 	collective 	bargaining 	agreement, 	and 	(2) 	that 	the
District 	unilaterally 	altered 	the 	appraisal 	provisions 	of 	its
negotiated 	agreement 	with 	CSEA 	by 	providing 	only 	one 	evaluation
during 	the 	probationary 	period.
The 	District 1 s 	motion 	for 	deferral 	was 	based 	on 	its 	claim
that 	the 	agreement 	provided 	for 	binding 	arbitration 	of
grievances. 	In 	support 	of 	this 	motion, 	respondent 	11 rephrasedtt
the 	unfair 	practice 	charge 	so 	that 	the 	issue 	was 	one 	of 	11 just
cause 11 	dismissal. 	The 	ALJ, 	citing 	Dry 	Creek 	Joint 	Elementary
School 	District 	(1980) 	PERB 	Order 	Ad-8la, 	denied 	the 	motion,
finding, 	inter 	alia, 	that 	the 	contract 	contains 	no 	provision
which 	addresses 	employer 	action 	against 	employees 	for 	engaging
in 	protected 	activity, 	and 	that 	where 	one 	of 	the 	charges 	is 	not
subject 	to 	resolution 	through 	the 	contractual 	grievance
procedure, 	none 	of 	the 	charges 	will 	be 	deferred 	to 	arbitration.
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein 	are 	to 	the 	Government 	Code. 	Charging 	party 	alleges
violation 	of 	section 	3543.S(a), 	(b) 	and 	(c).
•
2

DISCUSSION
The
	District
	argues
	that
	the 	Board's 	holding
	in
	North
Sacramento 	School
	District
	(1982)
	PERB
	Decision
	No.
	264 	means
that
	every
	attempt 	to 	enforce
	a
	negotiated
	agreement
	is,
per
	se,
	participation
	in 	protected
	activity,
	and
	that
	PERB
would
	therefore
	always
	be
	the 	only
	agency 	which
	could
	deal
	with
alleged 	contract
	breaches, 	although
	EERA
	prohibits
	the
	Board
from
	enforcing
	such 	agreements.
By
	this
	claim, 	the
	District
	improperly
	attempts
	a
collateral
	attack
	on
	the
	Nort
h
	Sacramento 	dec1s1on,
3
an
raises
	an
	argument
	that
	must
	be
	reserved 	for
	its
	defense
	to
	the
merits
	of
	the
	unfair 	practice
	complaint.
	The
	ALJ
	made 	no
finding 	that
	Trevino
	was
	engaged
	in 	protected
	activity.
	For
the
	purpose 	of
	ruling
	on
	the
	deferral
	motion,
	he
	accepted 	the
complaint's 	allegations
	of
	fact
	as
	true.
4
The
	certifiable
question, 	therefore, 	is
	whether
	the
	ALJ
	correctly
	applied 	the
Board's
	deferral 	policy.
3
11
A
	collateral 	attack 	is
	made,
	not
	in
	a
	proceeding 	brought
for
	the
	specific
	purpose 	of
	attacking
	the
	judgment, 	but
	in
	some
other
	proceeding
	--
	it
	is
	an
	attempt 	to 	avoid 	the
	effect
	of
	a
judgment 	or
	order
	made
	in
	some
	other 	proceeding." 	Gonzales 	v.
State
	of
	California
	(1977)
	68
	Cal.
	App. 	3d 	621 	[137
	Cal. 	Rptr.
681]; 	see
	also 	Palmquist 	v. 	Palmquist
	(1963)
	212
	Cal.
	App. 	2d
340 	(27
	Cal. 	Rptr. 	756].
4The
	District 	asserts 	that
	the 	complaint
	incorrectly
stated 	that
	Trevino 	"exercised
	[EERA]
	rights
	by
	responding 	to
her 	evaluation 	as 	permitted
	by
	Article
	XIV
	section 	A(l) 	of 	the
.
	collective 	bargaining 	agreement." 	According 	to 	the
District, 	this 	provision 	applies 	only 	to 	permanent
. 	. 	d
.
3

The
	District
	also
	argues
	that
	where
	Education
	Code
	provisions
conflict
	with
	collective
	bargaining
	rights,
	the
	latter
	must
give
	way.
	Whether
	this
	claim
	is 	legally
	sound
	or
	supported
	by
the
	facts 	is
	also
	a
	matter
	which
	may
	be
	addressed
	in
	the 	course
of
	contesting
	the
	merits
	of
	the 	underlying
	unfair
	practice
case.
5
Finally,
	the
	District 	states
	that
	the
	protected
	activity
here
	is
	enforcement 	of
	the
	contract.
	It
	seeks
	"resolution
	of
[this]
	question
	of
	law"
	that
	it
	considers
	controlling.
	It
appears
	that
	here,
	as
	in
	its
	other
	arguments,
	the
	District
seeks
	a
	ruling
	on
	the
	merits
	of
	the 	charge,
	rather
	than
	on
	the
propriety
	of
	the
	ALJ 	s
	order.	
1
ORDER
Based
	on
	the 	record
	certified
	to 	the
	Board,
	it
	is
	ORDERED
that
	the
	motion
	made
	by
	the
	Merced 	Union 	High
	School
	District
employees. 	That
	may
	be
	the 	case.
	However,
	it
	is
	not 	the
question
	certified
	to 	the
	Board.
	As
	noted 	above,
	the
	ALJ
	acted
on
	the 	basis
	of 	the
	allegations
	in 	the 	complaint
	and
	it
	was 	on
that
	basis 	that
	he
	ruled
	on
	the
	deferral
	motion.
	We
	note
further 	that
	the
	District's
	claim
	goes
	to 	the 	merits
	of
	the
Association's
	case
	and	
may 	be
	raised
	at
	any
	point 	in 	the
ensuing 	proceedings. 	Similarly, 	the 	Association 	will
	have
	the
opportunity
	to 	provide 	support 	for
	its
	allegations
	on
	which
	the
complaint
	was
	based.
5This 	argument
	at 	least
	borders
	on
	being
	a
	similar 	attackagainst
	the 	California
	Supreme
	Court's 	holding 	in
	San 	Mateo
City
	School
	District, 	et 	al.
	v. 	Public
	Employment
	Relations
Board 	(1983)
	33
	Cal.
	3d 	850 	[191 	Cal
	Rptr. 	800].
4

to 	defer
	to
	arbitration
	the
	unfair 	practice
	charge
	filed	
by	
the
California
	School
	Employees
	Association	
&	
its
	Chapter
	#252,
	is
DENIED.
Chairperson
	Hesse
	and
	Member
	Porter
	joined 	in
	this
	Decision.
5