Riverside Community College District (PERB A229E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RIVERSIDE 	COMMUNITY COLLEGE
CHAPTER, ·CTA/NEA,
Charging 	Party,
v.
RIVERSIDE 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
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)
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) 	Case 	No. 	LA-CE-3038
Administrative 	Appeal
PERB 	Order 	No. 	Ad-229
February 	27, 	1992
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)
)
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)
)
)
Appearances: 	California 	Teachers 	Association 	by 	Deborah-S.
Wagner, 	Attorney, 	for 	Riverside 	Community 	College 	Chapter,
CTA/NEA; 	Gibson, 	Dunn 	& 	Crutcher 	by 	Elisabeth 	B. 	Long, 	Attorney,
for 	Riverside 	Community 	College 	bistrict.
Before 	Hesse, 	Chairperson, 	Shank 	and 	Camilli, 	Members.
DECISION
SHANK, 	Memb~r: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	appeal 	by 	the 	Riverside
Community 	College 	Chapter, 	CTA/NEA 	(Association) 	of 	an
administrative 	law 	judge's 	(ALJ) 	dismissal 	of 	the 	complaint
(attached 	hereto) 	for 	lack 	of 	jurisdiction 	and 	deferral 	to
arbitration. 	In 	its 	charge, 	the 	Association 	alleged 	that 	the
Riverside 	Community 	C~lt,ge 	District 	(District) 	violated 	section
3543.S(a) 	and 	(b) 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA) 1 by 	refusing 	to 	allow 	the 	Association 	to 	use 	the
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references_ are 	to 	the
Government 	Code. 	EERA 	section 	3543.5 	states, 	in pertinent 	part,
that 	it 	shall 	be 	unlawful 	for 	a 	public 	school 	employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employ~es, 	to 	discriminate 	or 	threaten 	to

District's
	employee
	mailboxes
	to
	distribute
	the
	Association's
October
	1990
	newsletter.
discriminate 	against
	employees,
	or 	otherwise
to 	interfere
	with,
	restrain, 	or 	coerce
employees 	because 	of
	their 	exercise 	of
	rightsguaranteed
	by
	this 	chapter.
(b) 	Deny
	to
	employee
	organizations 	rightsguaranteed 	to
	them by
	this 	chapter.
The
	Board
	has 	reviewed
	the
	entire
	record, 	the
	ALJ's
	order,
the 	Association's
	exceptions,
	and
	the
	District's
	response
thereto,
	and
	finds 	the
	ALJ's
	findings 	of
	fact
	and
	conclusions 	of
aw 	to
	be
	free
	of
	prejudicial 	error
	and
	therefore
	adopts
	them
	as
the 	decision
	of
	the
	Board
	itself.
DISCUSSION
In
	deferral
	to
	arbitration
	cases, 	the
	Board
	is
	bound
	by
	Lake
Elsinore
	School
	District
	(1987)
	PERB
	Decision
	No.
	646
	(~
Elsinore).
	In
	Lake
	Elsinore, 	the
	Board
	held
	that
	EERA
	section
3541.5(a)(2) 	denies
	jurisdiction
	to
	PERB
	over 	matters 	involving
conduct 	arguably
	prohibited
	by
	the
	collective
	bargaining
agreement
	(CBA)
	until
	the
	grievance
	machinery
	of 	the
	agreement,
if
	it
	exists
	and
	covers
	the 	matter
	at
	issue,
	has 	been
	exhausted
either
	by
	settlement 	or
	by
	binding
	arbitration.
	Further, 	the
Board
	held
	that 	deferral
	is 	jurisdictional,
	not
	discretionary.
The
	Association
	filed
	several 	exceptions
	to 	the
	ALJ's
	order.
Specifically,
	the 	Association
	contends
	the
	ALJ
	erred
	by:
(1)
	finding
	that
	the
	CBA's
	grievance
	machinery 	covers
	the 	matter
at 	issue;
	(2)
	finding
	that
	the
	arbitrator 	is
	authorized
	to
'l
2

determine 	the 	substantive 	arbitrability 	of 	the 	case 	before
reaching 	its 	merits; 	and 	(3) 	failing 	to 	find 	that 	deferral 	to
arbitration would 	be 	futile.
In 	asserting 	that 	the 	ALJ 	erred 	by 	finding 	that 	the 	CBA's
grievance 	language 	covers 	the 	matter 	at 	issue, 	the 	Association
essentially 	restates 	the 	argument 	made 	before 	the 	ALJ. 	The
Association 	contends 	the 	proper 	interpretation 	of 	the 	grievance
language 	requires 	a 	finding 	that 	because 	an 	unfair 	practice
charge 	could 	be 	filed 	alleging 	a 	violation 	of 	EERA 	section
3543.l(b), 2 it 	is 	explicitly 	excluded 	from 	the 	grievance
procedure.
The 	ALJ 	correctly 	resolved 	this 	issue 	in 	accord 	with 	the
Lake 	Elsinore 	test. 	The 	ALJ 	examined 	the 	language 	of 	the
parties' 	CBA 	and 	determined 	that 	"Article 	IV 	(B) 	clearly
addresses 	the 	Association's 	access 	rights." 	Further, 	Article
XVII 	(A) 	gives 	the 	Association 	the 	specific 	right 	to 	file 	a
grievance 	on 	its 	own 	behalf 	concerning Article 	IV 	violations.
When 	considering 	contract 	interpretation 	disputes 	it 	is
proper 	to 	consider 	the 	whole 	contract 	taken 	together, 	so 	as 	to
give 	effect 	to 	every 	part. 	(1 	Witkin, 	Summary 	of 	Cal. 	Law 	(9th
ed. 	1987) 	sec. 	686, 	p. 	619.) 	Further, 	"An 	interpretation 	which
2Section 	3543.l(b) 	states, 	in 	pertinent 	part:
Employee 	organizations 	shall 	have 	the 	right
of 	access 	at 	reasonable 	times 	to 	areas 	in
which 	employees 	work, 	the 	right 	to 	use
institutional 	bulletin boards, 	mailboxes, 	and
other 	means 	of 	communication, 	subject 	to
reasonable 	regulation.
3

gives 	a 	reasonable, 	lawful, 	and 	effective 	meaning 	to 	all 	the
terms 	is 	preferred 	to 	an 	interpretation which 	leaves 	a 	part
unreasonable, 	unlawful 	or 	of 	no 	effect. 11 	(.Id....., 	sec. 	690.)
~n 	Temple 	City 	Unifieq 	School 	District 	(1989) 	PERB 	Decision
No. 	782, 	pp. 	8-9, 	the 	Board 	considered 	the 	parties 1 	conflicting
interpretations 	of 	a 	provision 	in 	their 	agreement. 	While 	the 	ALJ
found 	some 	ambiguity 	in 	the 	language, 	the 	Board 	held 	that 	it 	was
unlikely 	that 	the 	union 	"would 	have 	intended 	a 	construction 	which
minimized 	its 	right 	to 	file 	grievances. 11 	In 	this 	case, 	the
grievance 	procedure 	contained 	in Article XVII 	expressly 	grants
the 	Association 	the 	right 	to 	file 	a 	grievance 	on 	its 	own 	behalf
concerning 	alleged 	violations 	of 	Article 	IV 	(access 	rights). 	A
finding 	in 	support 	of 	the 	Association's 	view would 	make 	this
express 	statement 	void 	and would 	limit 	the 	Association's 	right 	to
file 	grievances. 	Further, 	the 	Board 	has 	previously 	noted
California's 	strong 	policy 	in 	favor 	of 	arbitration. 	(Lake
Elsinore.) 	In 	Inglewood 	Unified 	School 	District 	(1990) 	PERB
Decision 	No. 	821 	(Inglewood), 	the 	Board 	found 	that 	arbitration
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." 	(Citations.) 	The 	Board
therefore 	affirms 	the ALJ 1 s 	finding 	that 	the 	CBA 1 s 	grievance
machinery 	covers 	the 	matter 	at 	issue.
The 	Association 	further 	contends 	that 	the 	ALJ 	erred 	by
abdicating 	to 	an 	arbitrator 	the 	authority 	to 	determine 	whether
4

PERB
	has
	jurisdiction
	over
	this
	case. 	In
	reliance
	on
	Saddleback
Community
	College
	District
	(1984)
	PERB
	Decision
	No. 	433
(Saddleback),
	the 	Association
	argues
	that
	because
	the
	parties
dispute
	the
	meaning
	of
	the
	contract,
	PERB
	should 	conduct
	a
hearing
	to 	fully
	litigate
	this
	issue.
	The
	Association
	further
asserts 	that
	the
	U.S. 	Supreme
	Court
	supports 	the 	reasoning
	of
Saddleback
	when
	it
	held
	that
	"the 	question of
	whether
	a
collective
	bargaining
	agreement
	creates
	a
	duty
	for 	the
	parties
	to
arbitrate
	the
	particular
	grievance
	is
	to
	be
	decided
	by
	the
courts,
	not
	by
	thA
	arbitrator."
	(AT&T
	Technologies, 	Inc. 	v.
Communications 	workers
	of
	America.
	et.
	al. 	(1986)
	106
	s.ct.
	1415,
475
	U.S.
	643 	(AT&T).)
In 	ruling
	whether
	deferral
	is
	appropriate,
	PERB
	must
determine
	whether
	the
	conduct
	underlying
	the 	unfair 	practice
charge
	is
	arguably
	prohibited
	by
	the
	language
	of 	the
	parties
1
CBA. 	PERB 1 s
	jurisdictional
	review,
	however,
	is
	limited 	in
	scope
to 	the
	express 	language
	of 	the 	contract,
	and
	not
	to 	the 	merits 	of
the 	unfair 	practice
	charge. 	In 	determining 	whether
	deferral 	is
appropriate
	under
	Lake
	Elsinore, 	the
	Board
	reviews
	the 	contract
language
	on
	its
	face
	to
	determine 	whether
	the 	alleged
	conduct
	is
arguably 	prohibited
	by
	the 	contract
	terms. 	(Inglewood.)
It
	should
	be 	emphasized
	that
	PERB's
	jurisdiction 	to
determine 	whether
	to 	dismiss
	a
	matter
	on 	grounds
	of
	deferral,
	and
the
	arbitrator's 	jurisdiction to
	determine
	arbitrability 	are
separate
	and
	distinct 	issues.
	PERB
	does 	not 	abdicate
	its
authority
	when
	it
	determines 	deferral 	is 	appropriate.
	Once
	the
5

Board 	has
	determined
	a
	matter
	must 	be
	deferred
	to
	arbitration,
the
	Board
	lacks
	jurisdiction
	over
	those 	matters
	deferred,
	and
cannot
	make
	any
	determinations
	with 	regard
	to
	them.
The
	Association's 	reliance
	on
	Saddleback
	is
	misplaced.
	In
Saddleback,
	the
	Board
	held
	that
	the
	Board
	agent,	
in	
determining
whether
	to
	dismiss
	a
	charge
	or 	issue
	a
	complaint, 	overstepped
	his
authority
	by
	interpreting
	a
	disputed provision
	of 	the
	parties'
contract.
	The
	Board
	ruled
	that
	the 	function 	of 	the
	Board
	agent
is
	to
	determine 	whether
	the
	facts
	alleged
	state
	a
	prima
	facie
case
	and
	not
	to 	resolve 	disputed
	facts.
	Saddleback
	is
inapplicable 	to
	this
	case.
	Here,
	the 	determination
	is
	whether
the 	case
	should
	be
	dismissed
	for 	lack 	of
	jurisdiction
	under
	the
Lake
	Elsinore
	deferral
	doctrine.
The
	Association 	also
	relies
	on
	AT&T
	in
	contending
	that
	PERB,
rather
	than
	an
	arbitrator,
	must
	interpret
	the
	contract's
arbitration
	provisions. 	In
	AT&T,
	the
	union 	asked
	the
	court 	to
enforce 	the
	arbitration
	provision 	in 	the
	parties'
	contract
	and
compel
	the
	employer
	to
	submit
	to 	arbitration.
	The
	Court
	in
	AT&T
held
	that
	the 	courts
	will
	enforce 	the
	terms
	of 	the
	parties'
arbitration
	contract
	so
	that
	both 	sides 	are 	required 	to
	submit
	to
the 	arbitration
	process 	only 	those 	issues 	they 	agreed
	to
	submit.
In 	contrast,
	PERB
	is
	not
	empowered
	to
	enforce
	contracts
between
	the 	parties.
3
PERB's
	authority 	is
	limited 	to
	a
3EERA
	section
	3541.S(b)
	states:
The
	board
	shall 	not 	have 	the 	authority 	to 	enforceagreements 	between 	the 	parties,
	and
	shall 	not
issue
	a
	complaint 	on 	any 	charge 	based 	on
	alleged
6

jurisdictional 	review 	of 	the 	language 	of 	the 	contract. 	If 	the
conduct 	appears 	to 	be 	arguably 	prohibited by 	the 	contract, 	PERB
is 	denied 	jurisdiction. 	Further, 	EERA 	section 	3548.7 4 requires 	a
party·to ·proceed directly 	to 	court· to 	seek 	enforcement 	of 	the
parties' 	arbitration 	agreement. 	Adopting 	the 	position 	endorsed
by 	the Association would 	lead 	the 	Board 	to 	delve 	into 	matters 	of
contract 	interpretation 	that 	are 	unrelated 	to 	any 	alleged 	unfair
practice 	and would 	exceed 	PERB's 	jurisdictional 	authority.
Accordingly, 	this 	exception 	is 	without 	merit.
violation 	of 	any 	agreement 	that 	would 	not 	also
constitute 	an 	unfair 	practice 	under 	this 	chapter.
Finally, 	the 	Association 	argues 	the 	ALJ 	erred 	by 	fatling 	to
find 	that 	deferral 	to 	arbitration would 	be 	futile. 	Section
3541.5(a)(2) 	provides 	that 	"when 	the 	charging 	party 	demonstrates
that 	resort 	to 	contract 	grievance 	procedure would 	be 	futile,
exhaustion 	shall 	not 	be 	necessary." 	The 	Association 	contends
that 	the 	District 	could 	refuse 	to 	take 	the 	matter 	to 	arbitration
based 	on 	the 	disputed 	grievance 	language. 	The 	Association 	also
4Section 	3548.7 	states:
Where 	a 	party ► to a 	written 	agreement 	is 	aggrieved
by 	the 	failti~e, 	neglect, 	or 	refusal 	of 	the 	other
party to 	proceed 	to 	arbitration pursuant 	uo 	the
procedures 	provided 	therefor 	in 	the 	agreem•nt 	or
_pursuant 	to 	an 	agreement 	made 	pursuant 	to 	Section
3548.6, 	the 	aggrieved 	party 	may 	bring 	proceedings
pursuant 	to 'Title 	9 	(commencing with 	Section 	1280)
of 	Part 	3 	of 	the 	Code 	of 	Civil 	Procedure 	for 	a
court 	order 	directing 	that 	the 	arbitration, proceed
pursuant 	to 	the 	procedures 	provided 	therefor 	in
such 	agreement 	or 	pursuant 	to 	Section 	3548.6.
7

argues
	it
	would
	be
	futile
	to
	proceed
	to
	arbitration
	because
	an
arbitrator
	would
	be
	unable
	to
	resolve 	the
	underlying
	dispute.
This
	argument
	was
	not
	presented
	to
	the
	Board
	agent.
Instead,
	the
	argument
	was
	raised 	for
	the
	first
	time
	on
	appeal.
PERB
	Regulation
	32635
5
sets 	forth
	the
	procedures
	permitting
	a
charging
	party 	to
	appeal
	the 	dismissal 	of
	a
	complaint.
	This
regulation
	states,
	however,
	that
	"Unless
	good
	cause
	is
	shown,
	a
charging
	party
	may
	not
	present
	on
	appeal
	new
	charge
	allegations
or
	new
	supporting 	evidence."
	The
	Association
	has
	not 	provided
good
	cause
	to
	excuse
	its
	failure
	to
	raise
	the
	futility
	allegation
below.
	In
	accordance 	with
	the
	above
	regulation, 	the
	Board
	will
not 	consider 	these
	allegations 	raised 	for 	the
	first
	time
	on
appeal.
ORDER
For
	the 	reasons
	stated
	above,
	the 	unfair practice
	charge
	and
complaint
	in
	Case
	No.
	LA-CE-3038
	is
	hereby
	DISMISSED.
Chairperson
	Hesse 	and
	Member
	Camilli 	joined
	in
	this
	Decision.
5PERB
	Regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8, 	section
	31001
	et
	seq.
'
8

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RIVERSIDE 	COMMUNITY COLLEGE
CHAPTER, 	CTA/NEA,
Charging 	Party,
v;
RIVERSIDE 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
)
)
)
) 	Case 	No. 	LA-CE-3038
ORDER GRANTING 	MOTION
TO 	DISMISS 	AND 	DEFER
TO ARBITRATION
(5/7/91)
)
)
)
)
)
)
)
)
PROCEDURAL 	HISTORY
On 	November 	1, 	1990, 	the 	Riverside 	Community 	College
Chapter, 	CTA/NEA 	(hereafter 	Charging 	Party 	or Association) 	filed
an 	unfair 	practice 	charge 	against 	the 	Riverside 	Community 	College
District 	(hereafter 	Respondent 	or 	District).
The 	Office 	of 	the 	General 	Counsel 	of 	the 	Public 	Employment
Relations 	Board 	(hereafter 	PERB 	or 	Board) 	issued 	a 	complaint,
based 	on 	the 	charge, 	on 	January 	16, 	1991, 	alleging 	that 	the
District 	violated 	sections 	3543.S(a) 	and 	(b) 	of 	the 	Education
Employment 	Relations 	Act 	(hereafter 	EERA 	or 	Act) 1 by 	refusing 	to
allow 	the 	Association 	to 	use 	the 	District's 	employee 	mailboxes
for 	the 	distribution 	of 	an 	issue 	of 	the 	Association's 	newsletter
on 	or 	about 	September 	28, 	1990. 	On 	the 	same 	date 	the 	PERB
regional 	attorney 	issued 	a 	letter 	denying 	Respondent's 	request
for 	deferral 	to 	arbitration 	on 	the 	ground 	that 	it 	is 	not 	clear
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540, 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein
are 	to 	the 	Government 	Code.

that 	the 	grievance 	machinery 	of 	the 	CBA 	covers 	the 	dispute 	raised
by 	the 	charge.
Respondent 	filed 	a 	timely Answer 	on 	February 	6, 	1991. 	In
its 	answer, 	Respondent 	denied 	unlawful 	conduct 	and 	asserted
several 	affirmative 	defenses. 	One 	of 	the 	defenses 	reasserts 	the
claim 	that 	the 	charge 	is 	based 	on 	conduct 	falling 	within 	the
scope 	of 	the 	parties' 	contract 	grievance 	and 	arbitration
procedure 	and 	further, 	Charging 	Party 	has 	raised 	claims 	that
Respondent's 	actions 	violate 	the 	contract. 	Therefore, 	it 	is
argued, 	the 	charge 	must 	be 	dismissed 	and 	deferred 	to 	the
contractual 	grievance 	and 	arbitration 	procedure 	pursuant 	to
section 	3541.5(a)(2) 	and 	PERB 	Regulation 	32620(b)(5).
An 	informal 	settlement 	conference 	on 	February 	6, 	1991, 	did
not 	resolve 	the 	dispute.
On 	March 	14, 	1991, 	the 	District 	filed 	a 	Motion 	to 	Dismiss
Complaint. 	The 	Association 	filed 	a 	Motion 	to 	Stay 	Hearing 	of 	the
Complaint 	Pending 	Resolution 	of 	the 	Motion 	to 	Dismiss 	on March
21, 	1991. 	Charging 	Party's 	motion was 	granted 	by 	the 	undersigned
March 	21, 	1991. 	The 	formal 	hearing 	set 	for 	March 	26, 	1991, 	was
postponed, 	pending 	a 	written 	ruling 	on 	Respondent's 	motion.
Charging 	Party 	filed 	its 	Opposition 	to 	the 	Motion 	to 	Dismiss
on 	March 	26, 	1991.
FACTUAL 	BACKGROUND
The 	Association 	and 	the 	District 	were 	parties 	to 	a
collective 	bargaining 	agreement 	(CBA) 	with 	a 	term 	effective
October 	13, 	1987, 	to 	August 	31, 	1990. 	In August 	1989, 	they
2

entered 	into 	a 	memorandum 	agreement 	that 	extended 	the 	term 	of
that 	CBA 	to 	August 	1991.
On 	September 	28, 	1990, 	the 	District 	denied, 	by 	written
memorandum, 	the 	Association 	the 	right 	to 	distribute 	the 	October
1990 	issue 	of 	its 	newsletter, 	the 	"Au 	Courant,'' 	to 	members 	of 	its
bargaining 	unit 	via 	the 	faculty 	mailboxes 	at 	the 	Riverside
campus. 	The 	newsletter 	contained 	endorsements 	of 	specific
candidates 	in 	an 	upcoming 	District 	board 	of 	trustees 	election.
The 	District's 	September 	28 	memorandum 	cited 	California 	Education
Code 	section 	7054 2 as 	the 	reason 	for 	the 	denial 	of 	access 	to 	its
internal 	mail 	system. 	The 	Association 	did 	not 	file 	a 	grievance
challenging 	this 	action.
On 	October 	19, 	1990, 3 the 	Association 	did 	file 	a 	grievance
challenging 	the 	District's 	refusal 	to 	permit 	the 	Association 	to
distribute 	a 	packet 	of 	information 	in 	faculty 	mailboxes 	on
September 	12, 	1990, 	endorsing 	candidates 	in 	the 	same 	board 	of
trustees 	election. 	The 	grievance 	stated 	as 	follows:
2Education 	Code 	section 	7054 	states:
Except 	as 	provided 	in 	Sections 	7056, 	35174
and 	72632, 	no 	school 	district 	or 	community
college 	district 	funds, 	services, 	supplies 	or
equipment 	shall 	be 	used 	for 	the 	purpose 	of
urging 	the 	passage 	or 	defeat 	of 	any 	school
measure 	of 	the 	district, 	including, 	but 	not
limited 	to, 	the 	candidacy 	of 	any 	person 	for
election 	to 	the 	governing 	board 	of 	the
district.
3The 	Association 	also 	filed 	a 	second 	grievance 	on 	October
19, 	1990, 	alleging 	that 	the 	District 	violated 	Article 	IV,
paragraph A, 	by 	also 	prohibiting 	the 	Association's 	use 	of 	its
duplicating 	equipment 	in 	the 	September 	28, 	1990 	memorandum.
3

An 	informational 	packet 	consisting 	of 	several
sheets 	and 	identified 	as 	originating with 	the
local 	C.T.A. 	chapter 	identified 	above 	as
grievant 	was 	placed 	in 	faculty 	mailboxes 	as
permitted 	in Article 	IV 	--, association
rights. 	Paragraph 	B indicates 	"The
association 	shall 	have 	the 	right 	to 	use
faculty 	mail 	boxes 	to 	communicate 	with
faculty 	members." 	Member[s] 	of 	the 	executive
board 	of 	the 	"association," 	including 	the
undersigned 	were 	ordered 	by 	John 	Matulich 	to
immediately 	remove 	the 	communications 	from
the 	faculty 	mail 	boxes. 	The 	order was 	in
direct 	conflict 	with 	the 	contract. 	We 	wish
or 	request 	specifically 	John 	Matulich 	honor
the 	District 	contract 	and 	permit 	the
association 	to 	utilize 	the 	mail 	boxes 	when
the 	association 	is 	communicating with 	faculty
members. 	Your 	letter 	to 	the 	association
dated 	Sept. 	21 	indicates 	this 	to 	be 	a
continuing problem.
The 	current 	status 	of 	this 	grievance 	is 	unknown.
DISCUSSION
Under 	section 	3541.5(a)(2) 4 and 	the 	Board's 	deferral
doctrine 	enunciated 	in 	Lake 	Elsinore 	School 	District 	(1987) 	PERB
Decision No. 	646, 	PERB 	has 	no 	jurisdiction over 	conduct 	arguably
prohibited 	by 	the 	parties' 	CBA 	until 	the 	grievance 	machinery 	of
the 	CBA, 	if 	it 	exists 	and 	covers 	the 	matters 	at 	issue, 	has 	been
exhausted 	either 	by 	settlement 	or 	by 	binding 	arbitration, 	or
4Section 	3541.5(a)(2) 	provides 	in 	pertinent 	part, 	that 	PERB
shall 	not:
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.
PERB 	Regulation 	32620(b)(5) 	addresses 	the 	implementation 	of
section 	3541.S(a)(2).
4

until
	[unless]
	futility
	is
	demonstrated.
5
(Eureka
	City
	School
District
	(1988)
	PERB
	Decision
	No.
	702,
	p.
	7.)
	The
	key
	portion
	of
the
	Board's
	Lake
	Elsinore
	holding,
	as
	it
	pertains 	to
	the
	present
case,
	is
	that
	the
	conduct
	at
	issue
	must
	be
	"arguably
	prohibited''
by
	the
	agreement.
To
	determine 	whether
	the
	allegations 	in
	the
	instant
complaint
	should
	be
	deferred,
	the
	applicable
	language
	of
	the
	CBA
must
	first
	be 	examined.
	The
	District
	maintains
	that 	Article
	XVII
(Grievance 	Procedure), 	paragraph
	A,
	of 	the
	CBA
	gives
	the
Association 	the
	right
	to
	file
	a
	grievance 	claiming
	that
	the
District,
	among
	other 	things,
	has
	violated 	the 	provisions
	of
Article
	IV
	(Association 	Rights).
Article
	IV
	(Association 	Rights),
	paragraph
	B,
	of 	the
	CBA
provides, 	in 	relevant
	part,
	as 	follows:
The
	Ass6ciation
	shall
	have
	the
	right 	to
	use
not
	less
	than
	twenty
	(20)
	designated
	faculty
bulletin
	boards
	for 	posting 	notices 	of
	its
activities,
	and
	shall
	have
	the
	right 	to
	use
faculty
	mailboxes
	for
	communications
	with
faculty
	members
....
	The
	exercise 	of 	these
rights
	is
	subject 	to 	generally 	applicable
District
	regulations
...
Article
	XVII
	(Grievance 	Procedure), 	paragraph
	A,
	of 	the
	CBA
states
	as 	follows:
The
	purpose 	of
	this
	grievance 	procedure
	is 	toprovide
	a
	means 	by 	which
	certain 	disputes
	~ay
be
	resolved 	in
·an
equitable
	and
	efficient
manner.
	A
grievance
	is
	a
	claim
	by 	anemployee 	covered 	hereby
	that
	an 	express 	term
of
	this
	Agreement 	has 	been
	violated
	by
	the
District
	and
	that
	because 	of 	such
	violationhis 	or 	her 	rights
	have 	been
	affected.
	A
5
In 	this 	case, 	neither 	party 	has 	raised 	the 	futility 	issue.
. 	.
5

grievance
	shall
	not
	include
	any
	claims
	or
request 	to
	challenge,
	change,
	amend
	or
	add
	to
existing
	policy,
	rules
	or 	regulations 	or
	to
adopt
	or 	negotiate
	new
	policies,
	rules
	or
regulations.
	A
grievance
	also
	shall
	not
include
	any
	employer-employee
	relations
matter
	for
	which
	a
	different
	method
	of
	review
is 	specifically
	provided
	by
	law.
	In 	cases
involving
	a
	claim
	that
	the
	terms 	of
	Articles
IV,
	V
or 	the 	evaluation
	process
	set
	forth 	in
Article
	XI
	(but 	not
	the 	evaluation
	itself)
have 	been
	violated,
	the 	Association
	shall
have
	the
	right
	to
	file
	a
	grievance
	on
	its
	own
behalf. 	In
	all
	other 	cases,
	there 	shall
	be
no
	such
	right.
	{Emphasis
	added.]
Article
	XVII,
	section
	I,
	of 	the
	CBA
	provides
	for
	binding
arbitration
	of
	grievances.
There
	is
	no
	dispute
	here 	concerning 	whether
	the
	District
1 s
conduct
	is
	"arguably
	prohibited"
	by
	terms
	of 	the
	parties
1
agreement.
	The
	key
	question
	is
	whether
	the 	grievance
	machinery
"covers 	the 	matter
	at
	issue."
The
	language
	in Article
	IV
	(B)
	clearly
	addresses
	the
Association
1 s
	access
	rights 	to 	the
	District's
	internal
	mail
system
	via 	the 	faculty
	mailboxes.
	Article
	XVII
	(A}
	appears
	to
give
	the 	Association 	the 	specific 	right 	to
	file
	a
	grievance
	on
its
	own
	behalf 	concerning 	an
	alleged 	violation
	of
	Article
	IV.
Thus,
	the 	allegation 	in 	the 	unfair 	practice
	charge 	of
	denial 	of
access 	to 	faculty
	mailboxes
	on 	September 	30, 	1990,
	is
	arguably
covered
	by
	the 	Association 	Rights 	provision 	(Article
	IV
	(B))
	of
the
	CBA
	through 	invocation 	of 	the 	grievance 	procedure
	(Article
XVII
	(A)).
6

It
	is
	noted
	that,
	although
	no
	grievance	
h~~	
hoon
	~ilo~
concerning
	the
	instant
	charge,
	the 	Association 	did 	address
	an
almost
	identical 	issue 	in
	a
	grievance
	filed
	October
	19, 	1990.
Yet,
	the
	Association
	argues
	that 	deferral
	is
	inappropriate
	in
this
	instance,
	because
	certain
	language
	in Article
	XVII
	(A)
prohibits
	it
	from
	filing
	a
	grievance
	in
	this
	matter.
	That
language
	is
	underlined, 	supra,
	at
	p.
	6,
	in
	the
	text
	of
	Article
XVII	
(A).
The
	District
	and
	the 	Association 	sharply 	disagree 	in
	their
interpretations
	of 	the
	applicability
	of 	the
	phrase 	"matters
	for
which
	a
	different
	method
	of 	review
	is
	specifically
	provided
	by
law
11
	to
	the
	allegation
	presented
	in 	the
	complaint.
	The
	District
argues
	that
	the 	clause
	refers
	to 	issues
	that
	solely 	arise
	from
sources 	other
	than 	the
	CBA,
	such 	as
	employee
	terminations, 	issues
that 	arise
	solely
	under
	EERA,
	and
	constitutional
	claims
	which
	are
excluded
	from
	the
	scope
	of 	the
	contract
	grievance 	procedure.
Thus,
	issues
	that
	do
	not 	implicate 	the
	CBA
	must 	be 	reviewed 	and
considered
	by
	other
	means.
	Since,
	it
	is
	argued, 	the 	conduct
alleged 	in 	the
	complaint
	allegedly 	constitutes
	a
	violation 	of
Article
	IV
	and
	of 	the
	EERA
	(section 	3543.l(b),
6
it
	does
	not
	fall
within 	the
	scope
	of 	issues
	excluded
	by
	the 	language 	above.
The
	Association 	asserts 	that 	the 	disputed 	phrase 	"plainly
means"
	that 	since
	an
	unfair 	practice
	charge,
	which
	provides
another
	method
	of 	review 	of 	the
	District's
	conduct, 	could 	be
6
section 	3543.l(b) 	provides 	the 	statutory 	rights 	of 	access
for 	employee 	organizations. 
7

filed 	concerning 	a 	violation 	of 	section 	3543.l(b), 	an 	allegation
of 	an 	EERA 	violation 	is 	explicitly 	excluded 	from 	the 	grievance
procedure. 	The 	Association 	seeks 	to 	buttress 	this 	argument 	by
contending 	that 	since 	the 	parties 	have 	a 	legitimate 	dispute 	over
contract 	interpretation, 	a 	hearing 	is 	necessary 	to 	resolve 	the
dispute. 	The 	Association 	cites 	Saddleback 	Community 	College
District 	(1984) 	PERB 	Decision 	No. 	433, 	to 	support 	this 	argument.
Neither 	of 	these 	arguments 	is 	persuasive. 	While 	it 	is
recognized 	that 	the 	Association 	is 	seeking 	redress 	for 	important
statutory 	rights, 	the 	parties 	have 	also 	expressly 	addressed 	the
Association 1 s 	access 	rights 	in 	their 	CBA. 	Further, 	the
Association 	has 	already 	asserted 	the 	existence 	of 	its 	contractual
access 	rights 	by 	filing 	a 	grievance 	challenging 	similar 	conduct
by 	the 	District. 	The 	Association has 	presented 	no 	justification
for 	concluding, 	in 	this 	instance, 	that 	the 	parties 1 	dispute 	over
contract 	interpretation precludes 	mandatory 	deferral. 	Inasmuch
as 	the 	disputed 	language 	is 	an 	express 	provision 	of 	the 	contract,
it 	is 	within 	the 	purview 	of 	the 	arbitrator 	to 	determine 	the
question 	of 	substantive 	arbitrability 	of 	the 	case 	before 	reaching
the 	merits 	of 	the 	case. 7
Under 	the 	PERB's 	Lake 	Elsinore 	deferral 	standard, 	a 	charge
must 	be 	deferred 	if 	the 	conduct 	complained 	of 	is 	"arguably
prohibited" 	by 	the 	CBA 	and 	the 	existing 	grievance 	machinery
covers 	the 	matter 	at 	issue. 	In 	this 	case, 	the 	same 	deferral
7See 	Elkouri 	and 	Elkouri, 	How Arbitration Works, 	Fourth
Edition, 	at 	pp. 	212-216.
8

standard 	should 	be 	applicable 	since 	the 	complained-of-conduct
appears 	to 	be 	prohibited 	by 	the 	CBA 	and 	the 	grievance 	machinery
"arguably 	covers" 	the 	matter 	at 	issue.
Accordingly, 	the 	unfair 	practice 	charge 	and 	complaint 	must
be 	dismissed 	for 	lack 	of 	jurisdiction.
ORDER
For 	the 	above-stated 	reasons, 	the 	motion 	to 	dismiss 	and
defer 	is 	granted 	and 	the 	complaint 	is 	DISMISSED.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	Regulation
32635(a), 	the 	Charging 	Party 	may 	obtain 	a 	review 	of 	this
dismissal 	of 	the 	charge 	by 	filing 	an 	appeal 	to 	the 	Board 	itself
within 	twenty 	(20) 	calendar days 	after 	service 	of 	this 	dismissal
(California 	Code 	of 	Regulations, 	title 	8, 	section 	32635(a)). 	To
be 	timely 	filed, 	the 	original 	and 	five 	copies 	of 	such 	appeal 	must
be 	actually 	received 	by 	the 	Board 	itself 	before 	the 	close 	of
business 	(5:00 	p.m.) 	or 	sent 	by 	telegraph, 	certified 	or 	Express
United 	States 	mail 	postmarked 	no 	later 	than 	the 	last 	date 	set 	for
filing 	(California 	Code 	of 	Regulations, 	title 	8, 	section 	32135).
Code 	of 	Civil 	Procedure 	section 	1013(a) 	shall 	apply. 	The 	Board 1 s
address 	is:
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 	95814
If 	no 	appeal 	is 	filed 	within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Dated: 	May 	7, 	1991
9
W. 	3'ean 	Thomas
Administrative 	Law 	Judge
W. 	3'ean 	Thomas
Administrative 	Law 	Judge