Inglewood Unified School District (PERB A222E)

STATE
	OF
	CALIFORNIA
DECISION
	OF	
THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
INGLEWOOD
	TEACHERS
	ASSOCIATION,
CTA/NEA,
Charging
	Party,
v.
INGLEWOOD
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
)	
Case
	No.
	LA~CE-3021
Administrative
	Appeal
PERB
	Order
	No.
	Ad-222
June
	24,
	1991
)
)
)
)
)
)
)
)
Appearances:	
California
	Teachers
	Association
	by 	Deborah
	S.Wagner,
	Attorney,
	for
	Inglewood
	Teachers
	Association,
	CTA/NEA;
Littler,
	Mendelson,
	Fastiff	
&	
Tichy
	by
	Jaffe
	D.
	Dickerson,
Attorney, 	for
	Inglewood
	Unified
	School
	District.
Before
	Hesse,
	Chairperson; 	Camilli
	and
	Carlyle,
	Members.
DECISION
CAMILLI, 	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
	Inglewood
Unified
	School
	District 	(District)
	of
	a 	PERB
	administrative
	law
judge's
	(ALJ)
	denial 	of
	its
	motion
	to
	dismiss 	the 	complaint 	of
the
	Inglewood 	Teachers
	Association,
	CTA/NEA
	(Association)
alleging
	a
	violation
	of 	the 	Educational
	Employment
	Relations
	Act
(EERA)
	section 	3543.S(a),
	(b) 	and 	(c)
. 1
The
	District
1 s
	motion
	to
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
	reads, 	in 	pertinent 	part:
It
	shall
	be 	unlawful 	for
	a
	public 	schoolemployer
	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 	coerceemployees 	because 	of 	their 	exercise 	of 	rights

dismiss
	is
	based
	upon
	the
	grounds
	that:
	(1)
	the
	charge
	was
	not
timely
	filed;
	and 	(2)
	the.
subject
	matter 	of
	the
complaint
	is
subject
	to
	binding
	arbitration
	under
	the
	parties'
	collective
bargaining
	agreement
	(CBA
	or
	Agreement),
	and
	must 	be
	deferred 	to
that
	process.
After 	careful
	review 	of
	the
	entire
	record
	in 	this
	matter,
the
	Board
	finds
	dismissal
	of 	the
	complaint
	to
	be
	inappropriate,
in
	accord 	with 	the
	discussion
	that
	follows.
PROCEDURAL
	BACKGROUND
Complaint
The
	complaint
	alleged
	that 	prior
	to
	May
	18, 	1990,
	the
District's
	policy
	concerning
	evaluation
	procedures
	was
	governed
by
	Article
	XV
	of 	the
	CBA
	which
	provides:
a. 	"Unit
	members
	to
	be
	evaluated 	during
	a
particular
	school 	year
	shall
	.
	[be]
advised 	of 	the
	criteria
	upon 	which
	the
evaluation
	is
	to
	be
	based
	...
	no
	later
	than
October
	31,
	of 	the 	year
	in
	which
	the
evaluation
	is
	to
	take 	place."
	(Paragraph
	A,
section 	2.)
b.	
"The
	unit
	member
	being 	evaluated
	and
	the
evaluator 	shall
	meet
	no
	later
	than
	October
31,
	to 	discuss
	and
	agree
	upon
	the 	objectives
to
	be
	achieved 	during 	the 	evaluation period."
(Paragraph
	A,
	section 	3.)
guaranteed
	by
	this
	chapter.
	For 	purposes 	of
this 	subdivision,
	Msmployee"
	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.
2

c.	
"Prior 	to
	the 	adoption
	and
	authorization
of
	any 	forms
	relating
	to 	the 	evaluation
procedure,
	the
	District
	[Respondent]
	shallafford
	the 	Association
	[Charging
	Party]
notice
	and
	an
	opportunity
	to 	consultregarding 	the
	forms.
	Only
	adopted
	and
authorized
	forms
	shall
	be
	used
	by
	the
District.
11
	(Paragraph
	A,
	section
	15.)
(Complaint,
	p.
	4.)
The
	complaint
	further
	alleged
	that
	on
	or
	about
	May
	18,
	1990,
the
	District,
	through
	its
	agent
	Principal
	Arnold
	Butler
	(Butler),
changed
	this
	policy
	by
	attaching
	a
	document
	entitled
	"Expected
Teacher
	Behaviors
	and
	Performance 	Requirements"
	(ETBPR)
	to
performance
	evaluations,
	without
	affording 	the 	Association
	an
opportunity 	to 	negotiate 	the 	decision 	to
	implement
	the
	change
	in
policy
	nor
	the
	effects
	thereof.
	This 	conduct
	is
	alleged
	to
constitute
	a
	failure
	and
	refusal
	by
	the
	District
	to 	bargain
	in
good
	faith,
	in 	violation
	of
	EERA
	section
	3543.S(c).
	The
Association 	further 	alleged
	that,
	by
	its
	conduct,
	the
	District
denied 	the 	Association
	its
	right
	to 	represent 	unit
	members,
	in
violation
	of
	EERA
	section
	3543.S(b),
	and
	interfered
	with
	the
rights
	of 	bargaining
	unit
	employees
	to
	be
	represented
	by
	the
Association, 	in 	violation
	of
	EERA
	section
	3543.S(a)
. 2
2By
	order 	dated 	October 	30, 	1990, 	PERB's
	chief
	ALJ
	issued
	a
partial
	dismissal 	of 	paragraphs
	3
	through
	18
	of 	the 	complaint
	in
this
	case, 	based
	upon
	charging
	party's
	withdrawal 	of
	that 	portionof 	the
	complaint.
	The
	withdrawn
	portions 	of 	the 	complaint
alleged 	the 	District 	discriminated
	and
	interfered 	with 	the 	rightsof
	unit
	members
	Janet 	Faison 	(Faison) 	and 	Cheryl 	Bell 	(Bell)under 	the 	Act, 	and
	also 	denied 	the 	charging 	party
	its 	right 	to
represent 	unit
	members,
	in 	violation 	of
	EERA
	sections 	3543.S(a)
·
and 	(b), 	respectively. 
3

Motion
	to
	Dismiss
The
	District
	contends
	the
	charge
	is
	untimely 	as
	the
	two
complainants,
	Bell
	and
	Faison,
	had
	actual
	and
	constructive
knowledge
	of
	the
	ETBPR
	in 	early
	September
	1990,
	when
	they
	we~e
presented
	with
	a
	copy
	of 	the
	document 	by
	Butler
	at
	a
	faculty
meeting. 	Furthermore,
	Bell
	expressed
	her
	concerns 	about
	the
document
	in
	a
	discussion
	with
	the
	District's
	Assistant
Superintendent,
	Althea
	Jenkins,
	in
	September
	of
	1989.
	The
	charge
was
	filed
	on
	August
	27, 	1990,
	more
	than
	six
	months
	later.
In 	addition, 	the
	District
	urges
	the
	Board
	to 	defer
	this
matter 	to
	binding
	arbitration
	under
	Lake
	Elsinore
	School
	District
(1987)
	PERB
	Decision
	No. 	646
	(affd.
	nonpub. 	opn.
	Elsinore 	Valley
Education .Association,
	CTA/NEA
	v.
	PERB/Lake
	Elsinore
	School
District
	(July
	28,
	1988) 	E005078,
	4th
	Dist.
	Court
	of
	Appeal)
(Lake
	Elsinore)
	because
	written
	performance 	requirements
	are
contained 	in 	the
	employee
	evaluation
	procedures 	of
	Article
	XV
	of
the
	CBA,
	and
	the
	grievance 	procedure 	of
	Article
	VII
	of 	the
Agreement
	allows 	the 	Association 	to 	grieve 	in
	its
	own 	name
	and
provides 	for 	binding
	arbitration.
Article
	XV
	of 	the
	CBA,
	entitled
	Evaluation 	Procedure
	reads,
in 	pertinent 	part,
	as 	follows:
2.	
Probationary
	and 	temporary
	unit
	members
shall
	be
	evaluated
	each 	school 	year.
Permanent
	(tenured)
	unit ~embers.shall
	be
evaluated
	at 	least
	every 	other 	school 	year.
If
	a
	unit
	member
	is
	scheduled
	to
	be
	evaluatedduring
	a
	particular
	school 	year, 	but
	isgranted
	a
	leave 	of 	absence 	for
	one 	(1)
4

semester
	or
	longer,
	such
	evaluation
	shall
take 	place
	during
	the
	first
	year 	of
	return 	to
duty.
	Unit
	members
	to
	be
	evaluated
	during
	a
particular
	school
	year
	shall
	receive
	inservice
	regarding 	the 	evaluation
	procedures,advised 	of
	the
	criteria
	upon
	which
	the
evaluation
	is
	to
	be
	based,
	and
	notified
	of
the
	identity
	of
	their
	evaluator,
	if
	it
	is
other
	than
	the
	unit
	members
	[sic]
	immediate
supervisor,
	no
	later
	than
	October
	31,
	of
	theyear
	in
	which
	the
	evaluation
	is
	to
	take
place.
16.	
Any
	grievance
	arising
	under
	this
	Article
shall
	be
	limited 	to
	a
	claim
	that
	theprocedures
	set
	forth 	in
	this
	Article
	have
been
	violated.
Article
	VII
	of 	the
	Agreement
	contains 	the 	grievance
procedure.
	Level
	III
	of 	the 	procedure 	provides 	for
	final
	and
binding
	arbitration.
	Article
	VII,
	section
	5
	defines 	grievant
	as
follows:
A
grievant 	or
	an
	aggrieved 	person
	is
	any
person(s)
	in
	the 	bargaining
	unit
	as
	defined
in
	this
	Agreement.
	The
	Association
	may
	be
the 	grievant
	on
	Association
	rights,
	Payroll
Deductions,
	Negotiation 	Procedures
	and
Zipper.
The
	Association
	opposed
	the
	District's
	motion
	on
	both
grounds.
	Concerning
	the 	timeliness 	issue, 	the 	Association 	notes
that
	while 	the
	District
	claims
	that
	both 	Faison
	and
	Bell
	had
notice
	of 	the
	ETBPR,
	the 	charge
	in 	this
	case
	was
	filed
	by
	the
Association 	in
	its
	own 	name
	on
	behalf 	of
	all
	teachers 	in 	the
bargaining 	unit.
	Furthermore, 	the 	Association 	disputes 	the 	facts
relied
	upon 	by
	the 	District 	in 	support 	of
	its
	motion, 	contending
the 	District
	engaged
	in 	conduct 	expressing 	ambivalence 	regarding
both 	the 	proposed 	use 	of 	the 	document 	and 	the 	date
	it
	would 	be
5

implemented.
	As 	a
	result,
	the 	Association
	contends
	its 	first
indication 	that
	the
	District
	considered
	the
	ETBPR
	to
	be
	in
	effect
was
	when
	copies
	of 	the
	document 	were
	attached
	to
	the
	final
evaluation
	of 	both
	Bell
	and
	Faison
	after
	the
	end
	of 	the
	school
year.
Regarding
	the
	deferral
	issue,
	the 	Association
	asserts
	two
arguments
	in
	support 	of
	its
	claim
	that
	it
	is
	barred
	from
	filing
	a
grievance 	in
	this
	matter.
	First,
	the 	Association
	contends
	that
under 	the
	definition
	of
	grievant 	in 	Article
	VII,
	section	
5	
of 	the
CBA
	(seep.
	5,
	supra),
	it
	is 	restricted
	from
	filing
	a
	grievance
as
	it
	is
	not
	a
	"person(s)
	in
	the 	bargaining
	unit
	as
	defined
	in
this
	agreement."
	(Emphasis
	added.) 	In
	addition,
	this
	same
section 	limits
	the
	right
	of 	the 	Association 	to 	grieve
	in
	its
	own
name
	to
	matters
	concerning 	four
	specific 	Articles
	of 	the
contract:
	Association
	Rights
	(Article
	XXII),
	Payroll
	Deductions
(Article
	XVIII), 	Negotiations 	Procedures
	(Article
	XXIII), 	and
Zipper 	(Article
	XXV).
The
	Association
	further
	argues
	that
	the 	subject 	matter 	of
this
	dispute
	is
	not 	covered
	by
	the 	grievance
	machinery
	of
	the
	CBA
based
	on
	Article
	XV,
	section
	16
	(seep.
	5,
	supra),
	which
	states
that
	grievances 	concerning 	evaluation 	procedures
	"shall
	be
limited 	to
	a
	claim
	that
	the 	procedures
	set 	forth 	in 	this 	Article
have 	been
	violated."
	The·Association· claims
	that 	the
	ETBPR
	is
not
	part
	of 	the 	evaluation procedures,
	and
	therefore 	the 	subject
matter 	of
	this 	dispute 	is
	not 	covered 	by
	the 	grievance 	machinery
of 	the
	CBA.
6

Order 	Denying 	Motion 	to 	Dismiss
With 	regard 	to 	the 	timeliness 	issue, 	the 	ALJ 	found 	that 	the
statute 	of 	limitations 	began 	to 	run 	from 	the 	date 	the 	Association
knew 	or 	should 	have 	known 	of 	the 	alleged 	unilateral 	change.
(Victor 	Valley 	Community 	College 	District 	(1986) 	PERB 	Decision
No. 	570.) 	In 	the 	present 	case, 	the 	parties 	dispute 	the 	facts
from 	which 	one 	could 	determine 	the 	actual 	date 	that 	the
Association 	knew 	about 	the 	document. 	However, 	it 	is 	well
established 	that 	the 	facts 	alleged 	and 	presented 	by 	the
Association 	must 	be 	regarded 	as 	true. 	(San 	Juan 	Unified 	School
District 	(1977) 	EERB 	Decision 	No. 	12. 3 ) 	Based 	on 	the
Association's 	allegations 	in 	its 	unfair 	practice 	charge, 	the 	ALJ
found 	that 	the 	Association 	had 	until 	on 	or 	about 	November 	18,
1990 	to 	file 	its 	unfair 	practice 	charge. 	As 	the 	charge 	was 	filed
on 	August 	27, 	1990, 	the 	ALJ 	deemed 	it 	to 	be 	timely.
Regarding 	the 	issue 	of 	deferral, 	the 	ALJ 	noted 	that 	Article
XV, 	section 	15 	requires 	the 	District 	to 	consult 	with 	the
Association 	ttprior 	to 	the 	adoption 	and 	authorization 	of 	any 	forms
relating 	to 	the 	evaluation procedure." 4 The 	ALJ 	determined 	the
3Prior 	to 	January 	1, 	1978, 	PERB 	was 	known 	as 	the 	Educational
Employment 	Relations 	Board.
4Article 	XV, 	section 	15 	of 	the 	parties' 	CBA 	reads, 	in
pertinent 	part:
Prior 	to 	the 	adoption 	and 	authorization 	of
any 	forms 	relating 	to 	the 	evaluation
procedure, 	the 	District 	shall 	afford 	the
Association 	notice 	and 	an 	opportunity 	to
consult 	regarding 	the 	forms. 	Only 	adopted
and 	authorized 	forms 	shall 	be 	used 	by 	the
District. 	The 	current 	adopted 	and 	authorized
7

ETBPR 	is 	a 	form 	relating 	to 	the 	evaluation 	procedure 	because 	it
relates 	to 	the 	"criteria 	upon which 	the 	[employee's] 	evaluation
is 	to 	be 	based. 11 	(Article 	XV, 	section 	2.) 	The 	ALJ 	concluded
that 	implementation 	of 	the 	document 	without 	prior 	consultation
with 	the 	Association 	is 	arguably 	prohibited 	by 	Article 	XV 	of 	the
Agreement.
Concerning 	the 	Association 1 s 	standing 	to 	utilize 	the
grievance 	machinery 	of 	the 	Agreement, 	the 	ALJ 	found 	that 	although
the 	Association 	has 	the 	right 	to 	file 	grievances 	in 	its 	own 	name
under 	the 	grievance 	procedure 	of 	Article 	VII, 	this 	right 	is
expressly 	limited 	to 	four 	Articles. 	As 	Article 	VII 	does 	not
grant 	the 	Association 	the 	right 	to 	grieve 	Article 	XV, 	the 	ALJ
found 	the 	Association 	is 	without 	the 	right 	to 	file 	a 	grievance
under 	this 	section.
Appeal 	of 	Denial 	of 	Motion 	to 	Dismiss
The 	District 	appeals 	the 	ALJ's 	order 	denying 	the 	District 1 s
motion 	to 	dismiss 	and 	defer 	to 	arbitration. 	The 	District
contends 	that 	the 	ALJ 	erred 	in: 	(1) 	determining 	that 	the 	subject
matter 	of 	the 	charge 	was 	not 	covered 	by 	the 	binding 	arbitration
procedures 	of 	Article 	VII 	of 	the 	Agreement; 	(2) 	ignoring 	the
evidence 	of 	a 	consistent 	past 	practice 	that 	the 	Association 	was
allo~ed 	to, 	and 	did, 	file 	grievances 	in 	its 	own 	name; 	(3) 	finding
that 	deferral 	was 	not 	appropriate because 	the 	Agreement 	did 	not
require 	either 	party 	to 	submit 	a 	dispute 	to 	arbitrationi 	and 	(4)
finding 	that 	the 	charge 	was 	timely 	because 	the 	Association 	had 	no
forms 	are 	attached 	hereto 	as 	Appendix 	D.
8

notice
	that
	the
	ETBPR
	was
	''implemented~
	until 	after
	the
	end
	of
the
	school
	year.
The
	Association
	opposes
	the
	District's
	appeal,
	and
	supports
the
	ALJ 1 s
	denial
	of
	the
	motion
	to
	dismiss.
	With
	regard
	to
	the
deferral
	issue,
	the 	Association
	claims
	the 	matter
	at
	issue
	is
	not
subject 	to
	the
	grievance 	procedure
	of
	the
	CBA.
	The
	Association
claims
	that
	while
	the
	Agreement
	allows
	the 	Association
	to
	grieve
in
	its
	own
	name,
	the
	right
	to 	grieve
	is
	limited 	to
	four
	distinct
provisions
	of 	the
	Agreement.
	The
	Association
	also
	cites 	to
	the
portion
	of 	the
	Agreement
	concerning
	evaluations,
	which
	mandates
that
	only
	the
	procedural 	aspect 	of
	an
	evaluation
	is
	subject 	to
the
	grievance
	machinery
	in
	support 	of
	its
	claim
	that
	the 	matter
at
	issue
	is
	not
	subject 	to 	the 	grievance
	machinery, 	as
	it
	is
	not
procedural
	in
	nature.
	Finally, 	the 	Association
	contends
	that
	the
Board
	decisions 	in
	South
	Bay
	Union
	School
	District
	(1990)
	PERE
Decision
	No. 	791
	and 	Chula
	Vista 	City
	School
	District
	(1990)
	PERB
Decision
	No.
	834
	do
	not 	stand
	for 	the 	proposition
	that
	an
Agreement
	by
	an
	Association 	to
	limit
	its
	right 	to
	file
	a
grievance 	to 	specific 	contract 	provisions
	is
	unenforceable.
Therefore, 	the 	Association 	argues
	it
	has
	no
	standing 	to
	file
	a
grievance 	regarding 	the
	ETBPR.
Concerning
	the 	timeliness 	issue, 	the 	Association 	disputes
the
	District
1 s
	statement 	of 	the 	facts.
	The
	Association
	states
	it
did 	not 	receive 	notice 	that
	the
	ETBPR
	had 	been 	implemented
	until
after
	the
	end
	of 	the 	school 	year,
	when
	the
	documents 	were
attached 	to 	Faison
1 s
	and
	Bell's 	evaluations. 	Furthermore, 	the
9

Association 	argues 	that 	because 	a 	factual 	dispute 	exists, 	the
matter 	at 	issue 	should 	not 	be 	determined 	without 	a 	full
evidentiary 	hearing. 	(Saddleback 	Community 	College 	District
(1984) 	PERB 	Decision 	No. 	433.)
DI~USSION
Timeliness- of 	the 	Charge
PERB 	Regulation 	32646 	states:
(a) 	If 	the 	respondent 	believes 	that 	issuance
of 	the 	complaint 	is 	inappropriate 	either
because 	the 	dispute 	is 	subject 	to 	final 	and
binding 	arbitration, 	or 	because 	the 	charge 	is
untimely, 	the 	respondent 	shall 	assert 	such 	a
defense 	in 	its 	answer 	and 	may 	move 	to 	dismiss
the 	complaint, 	specifying 	fully 	the 	legal 	and
factual 	reasons 	for 	its 	motion. 	The 	motion
and 	all 	accompanying 	documents 	shall 	be
served 	on 	the 	charging 	party. 	The 	charging
party 	may 	respond 	to 	the 	respondent's 	motion
within 	10 	days 	after 	service 	or 	within 	a
lesser 	period 	of 	time 	set 	by 	the 	Board 	agent.
The 	Board 	agent 	shall 	inquire 	into 	the 	issues
raised 	by 	the 	motion, 	and 	shall 	dismiss 	the
complaint 	and 	charge 	if 	appropriate. 	If 	the
Board 	agent 	sustains 	the 	motion, 	the
dismissal 	may 	be 	appealed 	to 	the 	Board 	itself
in 	accordance 	with 	section 	32635.
(b) 	If 	the 	Board 	agent 	determines 	that 	the
defenses 	raised 	by 	the 	respondent 	pursuant 	to
section 	32646(a) 	do 	not 	require 	dismissal 	of
the 	complaint, 	the 	Board 	agent 	shall 	deny 	the
respondent's 	motion, 	specifying 	the 	reasons
for 	the 	denial. 	The 	Board 	agent's 	denial 	of
respondent's 	motion 	to 	defer 	an 	unfair
practice 	charge 	to 	final 	and 	binding
arbitration 	may 	be 	appealed 	to 	the 	Board
itself 	in 	accordance 	with 	the 	appeal
procedures 	set 	forth. 	in 	section 	32635.
(Emphasis 	added.)
Under 	PERB 	Regulation 	32646, 	although 	a 	Board 	agent 	determination
to 	sustain 	a 	motion 	to 	dismiss 	the 	complaint 	on 	the 	grounds 	of
deferral 	to 	arbitration 	or 	untimeliness 	is 	appealable 	to 	the
10

Board
	itself,
	only
	a
	Board
	agent's
	decision 	to
	deny
	a
	motion
	to
dismiss
	on
	the
	basis
	of
	deferral 	to
	arbitration
	is
	appealable
	to
the
	Board
	itself.
	Conspicuously
	absent
	from
	PERB
	Regulation
32646
	is
	a
	right
	of 	appeal
	to
	the
	Board
	itself
	from
	a
	denial
	of
	a
motion
	to
	dismiss
	on
	the
	grounds
	of
	untimeliness.
	Statutes
	are
to
	be
	given
	a
	reasonable
	and
	common
	sense
	interpretation
consistent
	with
	the
	apparent
	intention
	of
	the
	lawmakers.
(DeYoung
	v.
	City 	of
	San 	Diego 	(1983)
	147
	Cal.App.3d
	11,
	18
	[194
Cal.Rptr.
	722]
.)
	In
	addition, 	significance
	is
	to
	be
	attributed
to
	every
	part
	of
	an
	act 	to
	achieve
	harmony
	in
	accord 	with
	the
legislative
	purpose.
	(Id.)
	Reading
	PERB
	Regulation
	32646
	in
	a
reasonable
	and
	common
	sense
	manner,
	giving
	meaning
	to
	every
portion 	thereof,
	it
	is
	clear 	that
	a
	Board
	agent's 	denial 	of
	a
motion
	to
	dismiss
	on
	the
	grounds
	of 	untimeliness,
	at 	this
	point
in
	time
	(i.e.,
	after
	a
	complaint
	has
	issued
	and
	before
	hearing),
is
	not
	appealable
	to 	the
	Board
	itself.
5
Because
	PERB
	Regulation
	32646
	does
	not 	allow
	for
	an
	appeal
of
	a
	denial
	of
	a
	motion
	to 	dismiss
	on
	the 	basis
	of
	timeliness,
the 	issue
	of
	timeliness
	is
	not 	properly 	before 	the
	Board, 	and
will
	not
	be
	addressed 	herein.
5
The 	Board 	has 	previously 	held 	that 	the 	six-month 	time
period 	for 	filing
	a
	charge
	is 	jurisdictional
	and 	nonwaivable.
(California 	State 	University
	(San 	Diego) 	(1989)
	PERB
	Decision
	N~.
718-H.) 	Therefore,
	a
	motion
	to 	dismiss
	on
	the 	ground 	of
untimeliness
	may
	be
	raised 	during 	or 	after 	the 	evidentiary
hearing. 
11

Deferral 	to
	Arbitration
In
	determining
	whether
	a
	charge
	or
	portion 	thereof
	must
	be
deferred
	to
	arbitration,
	the
	Board 	must
	initially
	ascertain
whether
	the 	disputed
	issue
	is
	covered	
by	
the
	parties'
	contractual
grievance
	procedures,
	and
	whether
	those 	procedures 	culminate
	in
binding
	arbitration.
	(Lake
	Elsinore,
	p.
	32;
	Los
	Angeles
	Unified
School
	District
	(1990)
	PERB
	Decision
	No.
	860,
	p.
	3.)
	Although
the
	Board
	has
	no
	authority 	to
	enforce
	a
	collective
	bargaining
agreement,
	the
	Board
	does 	have
	the
	authority 	to
	interpret
	a
contract
	to
	determine
	if
	an
	unfair 	practice
	has 	been 	committed.
(Grant
	Joint
	Union 	High
	School
	District
	(1982)
	PERB
	Decision
No.
	196;
	California 	State
	University.
	Hayward
	(1991)
	PERB
Decision
	No.
	869-H,
	Proposed
	Decision, 	p. 	30.)
The
	Board
	finds,
	as
	did 	the
	ALJ,
	that
	the
	ETBPR
	is
	a
document
	relating
	to 	the
	11
criteria
	upon 	which
	the 	evaluation
	is
to
	be 	based" 	and
	that
	it
	is
	susceptible 	to
	an
	interpretation 	that
it
	is
	a
	"form
	relating
	to 	the 	evaluation 	procedure."
	Article
	XV,
section
	15
	of 	the
	CBA
	requires 	the
	District
	to 	consult 	with 	the
Association 	regarding
	forms
	relating
	to 	the 	evaluation 	procedure
in
	advance 	of
	their
	adoption
	and
	authorization.
	As 	a
	result,
	the
District's
	failure 	to 	consult 	with 	the 	Association 	in
	this
	case
is
	arguably 	prohibited
	by
	the
	parties'
	Agreement.
Even
	if
	the 	subject 	matter
	is
	subject 	to 	the 	grievance
procedure,
	a
	matter
	is
	not 	covered
	by
	the 	grievance 	machinery 	of
the
	CBA
	under 	the 	theory 	enunciated 	in
	Lake
	Elsinore 	unless 	the
12

Association
	has
	standing
	to 	grieve.
	(Inglewood
	Unified 	School
District
	(1990)
	PERB
	Decision
	No.
	821;
	Los
	Angeles
	Unified
	School
District
	(1990)
	PERB
	Decision
	No.
	803.)
	In
	this
	case,
	the
Association
	claims
	that
	it
	has
	no
	standing
	to 	grieve
	a
	violation
of
	Article
	XV
	of
	the
	CBA
	because
	its
	right
	to
	file
	a
	grievance
	in
its
	own 	name
	is
	limited 	to
	four
	articles
	of 	the
	Agreement, 	and
Article
	XV
	is
	not
	among
	them.
The
	Board
	has
	held
	that
	the 	exclusive
	representative
	has
	a
statutory 	right
	to
	file
	grievances
	in
	its
	own 	name
	under
	EERA
section 	3543.l(a).
	(South
	Bay
	Union
	School
	District
	(1990)
	PERB
Decision
	No.
	791,
	affd. 	in
	South
	Bay
	Union
	School
	District
	v.
Public
	Employment
	Relations
	Board 	(1991)
	228
	Cal.App.3d
	502
(South
	Bay); 	Chula
	Vista 	City
	School
	District
	(1990)
	PERB
Decision
	No.
	834
	(Chula
	Vista);
	Mt.
	Diablo
	Unified
	School
District
	(1990)
	PERB
	Decision
	No.
	844, 	app.
	pending
	(Mt
	Diablo)
.)
The
	majority 	of 	the
	Board
	has
	not
	spoken
	regarding 	the 	issue
	of
whether 	the 	exclusive
	representative's 	right
	to
	file
	a
	grievance
in
	its
	own 	name
	is
	a
	waivable
	or
	nonwaivable
	statutory 	right.
However,
	the 	concurring 	opinion
	in
	South
	Bay
	concluded
	that
	the
Association
1 s
	right 	to
	file
	a
	grievance
	in
	its
	own 	name
	is
	a
nonwaivable
	statutory 	right.
The
	Court 	of
	Appeal
	affirmed 	the
	Board
1 s
	decision 	in
South
	Bay
	and
	referred 	to 	the 	Board's 	subsequent 	decisions 	in
Chula
	Vista
	and
	Mt.
	Diablo, 	as 	well 	as 	the 	concurrence
	in
	South
Bay.
	In 	discussing 	whether 	the 	Association
1 s
	right 	to
	file
	a
grievance 	is
	a
	statutory 	right, 	the 	court 	stated:
13

The 	core 	reasoning 	of 	current 	PERB 	authority
(illustrated 	by 	the 	concurring 	opinion 	in
this 	case 	and 	the 	subsequent 	opinions 	in
Chula 	Vista 	and 	Mt. 	Diablo) 	passes 	over 	the
linguistic 	difficulties 	of 	section 	3543.2,
subdivision 	(a), 	however, 	relying 	instead 	on
specific 	statutory 	authority 	which 	it 	finds,
independent 	of 	section 	3543.2, 	subdivision
(a), 	to 	establish 	a 	nonnegotiable 	direct
right 	of 	grievance 	filing 	in 	the 	Association.
(South 	Bay 	Union 	School 	District 	v. 	Public
Employment 	Relations 	Board, 	supra, 	at 	p.
508.)
The 	court's 	reference 	to 	"a 	nonnegotiable 	direct 	right 	of
grievance 	filing 	in 	the 	Association 11 	may 	indicate 	that, 	in
addition 	to 	finding 	the 	Association's 	right 	to 	file 	a 	grievance
in 	its 	own 	name 	is 	a 	statutory 	right, 	the 	court 	would 	find 	this
right 	to 	be 	nonwaivable.
If 	the 	Association's 	right 	to 	file 	a 	grievance 	in 	its 	own
name 	was 	determined 	to 	be 	a 	nonwaivable 	statutory 	right, 	then,
despite 	the 	language 	in 	the 	CBA, 	the 	Association would 	have 	a
statutory 	right 	to 	file 	a 	grievance 	in 	its 	own 	name. 	The 	Board
could, 	therefore, 	determine 	that 	deferral 	to 	arbitration 	is
appropriate. 	However, 	an 	arbitrator 	derives 	his 	authority 	from
the 	provisions 	of 	the 	parties' 	Agreement, 	and 	the 	award 	is
legitimate 	only 	to 	the 	extent 	it 	draws 	its 	essence 	from 	the 	CBA.
The 	arbitrator 	does 	not 	have 	the 	authority 	to 	look 	outside 	of 	the
CBA 	to 	grant 	the 	Association 	the 	right 	to 	grieve 	this 	matter.
(Alexander 	v. 	Gardner-Denver 	Company 	(1974) 	415 	U.S. 	36 	[39 	L.Ed.
2d 	147, 	94 	S.Ct. 	1011], 	Steelworkers 	v. 	Enterprise 	Wheel 	& Car
Corp . 	( 1 9 6 0 ) 	3 6 3 	U . S . 	5 9 3 	[ 4 	L . Ed . 	2 d 	1 4 2 4 , 	8 0 	S . Ct . 	1 3 5 8 ] . 	As
14

the
	CBA
	in
	this
	case
	does
	not
	give
	the
	Association 	standing
	to
grieve
	the
	subject
	matter
	at
	issue,
	an
	arbitration
	award
determining
	this
	issue
	would 	be 	an 	award
	in
	excess
	of 	the
	scope
of 	submission,
	and
	may
	be
	unenforceable.
As
	a
	result,
	the 	Association's
	only
	forum
	for
	this
	matter
	is
PERB.
	Denying
	the 	Association
	its
	right
	to 	allege
	a
	violation
	of
EERA
	would 	be
	against
	EERA's
	purpose
	and
	policy 	to
	promote
	the
improvement
	of 	personnel
	management 	and
	employer-employee
relations
	within 	the 	public
	school
	systems
	and
	the 	State 	of
California
	(EERA
	section
	3540) 	and
	guarantee
	employee
organizations
	the
	right
	to 	represent
	their
	members
	in
	their
employment
	relations
	with
	public
	school
	employers
	(EERA
	section
3541.S(a)). 	Further, 	section
	3541.S(a)
	provides 	"[a]ny
	employee,
employee
	organization, 	or
	employer
	shall
	have
	the
	right 	to
	file
an
	unfair 	practice
	charge
	"
	Finally, 	section
	3543.S(c)
provides
	that
	it
	shall
	be
	unlawful
	for
	a
	public
	school 	employer
to 	refuse
	or
	fail
	to
	meet 	and
	negotiate 	in
	good
	faith
	with
	an
exclusive 	representative.
	If
	the
	Board were
	to
	dismiss
	and
	defer
the
	complaint
	to
	arbitration,
	then 	the 	Association
	would
	be
precluded
	from
	protecting
	its
	statutory 	rights
	under
	EERA.
	Thus,
as
	the
	Association
	has
	no
	right 	to 	grieve 	Article
	XV
	under
	the
provisions 	of 	the 	collective 	bargaining 	agreement,
	the 	conduct
	is
not 	arguably 	covered 	under 	the
	CBA,
	and
	the 	complaint 	cannot 	be
deferred 	to 	binding
	arbitration.
15

ORDER
The 	motion 	to 	dismiss 	and 	defer 	the 	complaint 	to 	binding
arbitration 	is 	hereby 	DENIED.
Chairperson 	Hesse 	joined 	in 	this 	Decision.
Member 	Carlyle's 	concurrence 	begins 	at 	page 	17.
16

Carlyle, 	Member, 	concurring: 	I 	agree 	with 	the 	result
reached 	in 	this 	case. 	However, 	I 	believe 	that 	it 	is 	unnecessary
for 	the 	Public 	Employment 	Relations 	Board 	(PERE 	or 	Board), 	in
reaching 	this 	determination, 	to 	discuss 	South 	Bay 	Union 	School
District 	v. 	Public 	Employment 	Relations 	Board 	(1991)
228 	Cal.App.3d 	502 	for 	the 	proposition 	that 	a 	court 	may 	find 	the
Inglewood 	Teachers 	Association, 	CTA/NEA's 	(Association) 	right 	to
file 	a 	grievance 	in 	its 	own 	name 	to 	be 	a 	nonwaivable 	statutory
right.
Whether 	or 	not 	an 	association's 	right 	to 	file 	a 	grievance
in 	its 	own 	name 	is 	a 	waivable 	or 	nonwaivable 	statutory 	right
was 	not 	before 	the 	court, 	nor 	before 	the 	Board, 	in 	this 	case.
In 	either 	event, 	the 	arbitrator would 	not 	be 	in 	a 	position 	to
render 	a 	decision 	as 	he/she 	would 	be 	restricted 	by 	the 	terms
of 	the 	contract. 	Therefore, 	PERB 	is 	the 	only 	forum 	where 	the
Association would 	have 	the 	fair 	opportunity 	of 	pursuing 	their
rights 	under 	the 	Educational 	Employment 	Relations 	Act.
17