Piedmont Unified School District (PERB A240E)

STATE
	OF
	CALIFORNIA
DECISION
	OF THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
ASSOCIATION
	OF
	PIEDMONT TEACHERS,
CTA/NEA,
Charging
	Party,
V.
PIEDMONT UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
Case
	No.
	SF-CE-1562
Administrative
	Appeal
PERB
	Order
	No.
	Ad-240
March 	23, 	1993
____________________
)
Appearances:	
California
	Teachers
	Association
	by
	A.
	Eugene
Huguenin,
	Jr.,
	Attorney,
	for
	Association 	of
	Piedmont
	Teachers,
CTA/NEA;
	Lozano,
	Smith, 	Smith, 	Woliver	
&	
Behrens 	by Diana
	K.
Smith 	and
	Sang-Jin
	Nam,
	Attorneys,
	for
	Piedmont
	Unified
	School
District.
Before
	Hesse,
	Caffrey
	and
	Carlyle,
	Members.
DECISION
AND
	ORDER
CARLYLE,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
	Piedmont
	Unified
School
	District
	(District)
	of
	a 	PERB
	administrative
	law
	judge's
(ALJ)
	denial
	of
	its
	motion
	to
	dismiss 	the
	complaint
	(attached
hereto) 	of 	the 	Association 	of
	Piedmont
	Teachers,
	CTA/NEA
(Association)
	which
	alleged
	a
	violation
	of 	the 	Educational
Employment
	Relations
	Act
	(EERA)
	section
	3543.5(a)
	and
	(b) . 1
1EERA
	is
	codified
	at
	Government 	Code
	section
	3540
	et
	seq.
Section
	3543.5
	states, 	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 	coerce

N
employees 	because 	of
	their
	exercise 	of
	rightsguaranteed by
	this 	chapter.
	For 	purposes 	of
this 	subdivision,
	"employee"
	includes 	an
applicant 	for
	employment
	or
	reemployment.
(b) 	Deny
	to
	employee
	organizations 	rightsguaranteed 	to
	them by
	this 	chapter.
After 	careful
	review
	of
	the
	entire
	record
	in
	this
	matter,
including 	the
	District's
	appeal
	and
	the
	Association's
	response,
the
	Board
	AFFIRMS
	the
	ALJ's
	order
	denying
	the
	motion
	to
	dismiss
the 	complaint,
	and
	REMANDS
	this
	case
	to
	the
	Chief
	Administrative
Law
	Judge
	to
	be
	processed
	in
	accordance 	with
	PERB
	regulations.
Members
	Hesse 	and
	Caffrey
	joined
	in 	this
	Decision.
2

STATE 	OF CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
ASSOCIATION OF 	PIEDMONT TEACHERS,
CTA/NEA,
Charging 	Party,
V.
PIEDMONT 	CITY UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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)
___________________ )
Unfair 	Practice
Case 	No. 	SF-CE-1562
RULING 	ON MOTION
TO DISMISS
(12/18/92)
Appearances: 	A. 	Eugene 	Huguenin, 	Jr., 	Staff 	Counsel, 	for
Association 	of 	Piedmont 	Teachers, 	CTA/NEA; 	Lozano 	Smith Smith
Woliver 	& Behrens, 	by Sang-Jin 	Nam and Diana 	K. 	Smith, 	for
Piedmont 	City Unified 	School 	District.
Before 	JAMES 	W. 	TAMM, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
On May 	15, 	1992, 	the 	Association 	of 	Piedmont 	Teachers,
CTA/NEA 	(Charging 	Party) 	filed 	this 	charge 	alleging 	that 	Ms. 	Fran
Dean 	had been 	involuntarily 	transferred 	from 	a 	50 	percent
counseling 	position by 	the 	Piedmont 	City Unified 	School 	District
(District) 	as 	retaliation 	for 	her having 	filed 	a 	grievance
regarding 	an 	earlier 	transfer. 	The 	charge 	alleged violations 	of
section 	3543.5(a) 	and 	(b) 	of 	the 	Educational 	Employment 	Relations
Act 	(EERA) . 1 	During 	the 	investigation 	conducted by 	the 	Office 	of
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	The 	pertinent 	portion 	of 	section 	3543.5 	reads:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(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
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter ....

the
	General
	Counsel
	of 	the 	Public
	Employment
	Relations
	Board
(PERB
	or
	Board)
	the
	District
	raised
	the
	affirmative
	defense
	that
the
	charge 	should
	be
	deferred
	to
	binding
	arbitration.
(b) 	Deny
	to
	employee
	organizations
	rights
guaranteed
	to
	them by
	this
	chapter.
When
	the
	complaint
	was
	issued
	on
	August 	27, 	1992,
	the
general 	counsel's
	office
	denied
	the
	District's
	request
	that
	the
charge
	be
	dismissed
	and
	deferred
	to
	arbitration.
	The
	deputy
general
	counsel 	based
	his
	decision
	upon
	a
	finding
	that
	only
individual
	employees
	within 	the 	bargaining
	unit
	and
	not
	the
Charging
	Party,
	could
	file
	a
	grievance.
	Thus,
	since 	the
	Charging
Party
	had
	no
	contractual
	right 	to
	file
	a
	grievance
	in
	its
	own
name,
	the
	charge 	could 	not
	be
	deferred.
After 	the 	denial 	of 	the 	request
	to
	dismiss
	and
	defer 	to
arbitration,
	the
	parties 	treated
	the
	denial
	as
	an
	interlocutory
ruling,
	appealable 	only
	if
	the
	Board
	agent
	certified
	the 	matter
to 	the
	Board
	(PERB
	Regulation
	32200)
. 2 When
	the 	general
2 PERB
	regulations 	are 	codified
	at
	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq. 	Section
	32200
states:
A
party
	may
	object 	to
	a
	Board
	agent's
interlocutory 	order 	or 	ruling
	on
	a
	motion 	and
request
	a
	ruling
	by
	the
	Board
	itself.
	The
request 	shall
	be
	in 	writing 	to
	the
	Board
agent
	and
	a
	copy
	shall
	be
	sent 	to 	the
	Board
itself.
	Service
	and
	proof 	of 	servicepursuant 	to 	Section
	32140
	are 	required.
	The
Board 	agent
	may
	refuse 	the 	request, 	or
	may
join 	in 	the 	request
	and
	certify
	the matter 	tothe
	Board. 	The 	Board
	itself 	will 	not 	accept
the 	request 	unless 	the
	Board 	agent 	joins 	in
the 	request.
	The 	Board agent
	may
	join 	in 	the
request 	only 	where
	all
	of 	the 	following
apply:
(a) 	The 	issue 	involved 	is
	one 	of 	law;
2

counsel's 	office
	declined 	the
	District's
	request
	to
	certify
	the
appeal
	to
	the
	Board,
	the
	District 	filed
	a
	new
motion
	to
	dismiss
the
	complaint 	with 	the 	undersigned.
	The
	parties
	then
	filed
briefs
	and
	the 	matter
	was
	submitted.
(b) 	The
	issue 	involved
	is 	controlling 	in 	the
case;
(c) 	An 	immediate 	appeal 	will 	materially 	advance
the 	resolution 	of 	the 	case.
FINDINGS
	AND
	DISCUSSION
PERB
	has
	no
	jurisdiction
	to
	hear
	a
	matter
	which
	is
	arguably
prohibited
	by
	the
	collective
	bargaining
	agreement
	of
	the
	parties
when
	that
	agreement
	contains
	a
	binding
	arbitration
	provision.
Section
	3541.S(a)
(2)
	of
	the
	EERA
	states, 	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
....
In
	Lake
	Elsinore
	School
	District
	(1987)
	PERE
	Decision
No.
	646
	(affd.
	non. 	pub. 	opn.
	Elsinore 	Valley 	Education
Association,
	CTA/NEA
v.
	PERB/Lake
	Elsinore
	School
	District
(July
	28,
	1988)
	E005
	078,
	4th
	District
	Court 	of
	Appeal)
(Lake
	Elsinore),
	PERB
	held
	that 	this 	section 	established
	a
jurisdictional
	rule 	requiring 	that
	a
	charge
	be
	dismissed 	and
deferred
	if:
	(1)
	the 	grievance 	machinery
	of 	the 	agreement 	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 	agreement 	between
	the
3

parties.
	PERB
	Regulation
	32620(b)
(5)
	also
	requires
	the
investigating
	Board
	agent
	to
	dismiss
	a
	charge
	where
	the
allegations
	are
	properly 	deferred 	to
	binding
	arbitration.
While
	the
	collective
	bargaining
	agreement
	in
	Piedmont
	City
Unified
	School
	District
	provides
	for
	binding
	arbitration
	of
grievances,
	that
	provision
	is
	not 	independently
	available 	to
	the
Charging
	Party 	in
	this
	case.
	Article
	XXI
	of 	the
	collective
bargaining
	agreement
	provides
	that
	a
	grievance
	may
	be
	filed
	by
	an
employee
	covered
	by
	the
	agreement
	or
	by
	an
	officer
	of
	the
association
	upon
	the 	request
	of
	an
	employee
	within 	the 	bargaining
unit.
3	
Since 	the
	Charging
	Party
	does
	not
	have
	a
	right 	to
	file
	a
grievance
	on
	its
	own
	behalf, 	the
	requirements 	of
	Lake
	Elsinore
are 	not
	satisfied.
	(Temple
	City Unified
	School
	District
	(1989)
PERB
	Order
	No.
	Ad-190.)
The
	District
	argues
	that
	South
	Bay Union 	School
	District
	v.
Public
	Employment
	Relations
	Board 	(1991) 	228
	Cal.App.3d
	502 	[279
3The
	collective
	bargaining
	agreement
	provides 	as 	follows:
ARTICLE
	XXI
	-
	Grievance 	Procedure
A.
	Definitions
1.
	A
"grievance"
	is
	a
	claim
by 	an 	employee
covered by
	this
	Agreement
	that 	there
	has 	been
a
	violation, 	misinterpretation 	or
misapplication 	of
	a
	provision 	of
	this
Agreement. 	Grievance 	procedures 	are 	not
applicable 	to 	the 	contents 	of 	an 	employee
evaluation, 	as 	described 	in Article
	XX
	B.2.
2.
	Any
	officer
	of 	the 	Association
	may
	file
	a
grievance
	upon
	request 	of 	an 	employee
	of 	the
bargaining 	unit.
3. 	There 	shall
	be 	no
	reprisals 	or 	discrimination
against 	any 	employee 	who
	elects 	to 	use 	thisgrievance 	procedure.
4

5
Cal.Rptr. 	135), 	provides 	the 	Charging 	Party with a 	right 	to 	file
grievances 	in 	its 	own name. 	In 	that 	case, 	the 	district 	had
declared 	an 	impasse 	in 	negotiations 	over 	a 	proposal 	which 	would
have 	prevented 	the 	exclusive 	representative 	from 	filing
grievances 	in 	its 	own name. 	PERB 	held 	that 	since 	such 	a
provision 	was 	not 	a 	mandatory 	subject 	of 	bargaining, 	it 	was 	bad
faith 	for 	the 	district 	to 	refuse 	to 	enter 	into 	the 	agreement
because 	the 	parties 	had 	reached 	impasse 	on 	that 	subject. 	The
court 	upheld 	PERB. 	Therefore, 	according 	to 	the 	District, 	the
Charging 	Party 	in 	this 	case 	should be 	treated 	as 	though 	it 	had 	a
right 	to 	file 	a 	grievance 	in 	its 	own 	name, 	despite 	clear
contractual 	provisions 	to 	the 	contrary.
In 	Inglewood 	Unified 	School 	District 	(1991) 	PERB 	Order 	No.
Ad-222, 	the 	Board, 	however, 	rejected 	that 	argument 	stating:
.. 	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. 	(Citations 	omitted.) 	As 	the 	CEA 	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
5

represent 	their members 	in 	their 	employment
relations 	with 	public 	school 	employers 	(EERA
section 	3541.5(a)).
PERB 	is 	therefore 	the 	appropriate 	forum 	for 	this 	dispute.
ORDER
For 	the 	above 	listed 	reason, 	the 	Piedmont 	City Unified
School 	District's 	request 	to 	defer 	this 	matter 	to 	arbitration 	and
dismiss 	the 	complaint 	is 	denied.
RIGHT TO APPEAL
PERB 	Regulation 	32646(b) 	provides 	that 	a 	denial 	of 	a 	motion
to 	dismiss 	the 	complaint 	and 	defer 	to 	binding 	arbitration may 	be
appealed 	to 	the 	Board 	itself 	in 	accordance 	with 	section 	32635.
Pursuant 	to 	section 	32635, 	the 	respondent 	may 	obtain 	a
review 	of 	this 	denial 	of 	its 	motion 	to 	dismiss 	by 	filing 	an
appeal 	with 	the 	Board 	itself 	within 	twenty 	(20) 	calendar 	days
following 	service 	of 	this 	decision. 	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
postmaked 	no 	later 	than 	the 	last 	date 	set 	for 	filing. 	(Cal. 	Code
of 	Regs. 	tit. 	8, 	sec. 	32135.) 	Code 	of 	Civil 	Procedure 	section
1013 	shall 	apply. 	Any appeal 	must 	be 	served 	concurrently with
its 	filing 	upon 	each party 	to 	this 	proceeding. 	Proof 	of 	service
shall 	accompany 	each 	copy 	served 	on 	a 	party 	or 	filed 	with 	the
Board 	itself. 	(See 	Cal. 	Code 	of 	Regs., 	tit. 	8, 	secs. 	32635 	and
32140.)
6
James 	W. 	Tarrnn
Administrative 	Law Judge