State Center Community College District (PERB A255EA)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
'
	,,
("
◄
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►
,
/'
CALIFORNIA
	SCHOOL 	EMPLOYEES
ASSOCIATION, 	STATE
	CENTER
CHAPTER
	379,
Charging
	Party,
v.
STATE 	CENTER
	COMMUNITY
	COLLEGE
DISTRICT,
Respondent.
Case
	No.
	S-CE-1565
Request
	for 	Reconsideration
PERB
	Order
	No.
	Ad-255
PERB
	Order
	No.
	Ad-255a
August 	19,
	1994
Appearance:	
Zampi
	and
	As,sociates
	by
	N.
	Joseph
	Trofemuk,
	Jr.,
Attorney,
	for 	State
	Center
	Community
	College
	District..
Before 	Caffrey, 	Carlyle
	and
	Garcia,
	Members.
DECISION
CAFFREY,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	a
	request 	for 	reconsideration
by
	the 	State
	Center
	Community
	College
	District
	(District) 	of 	the
Board's 	decision 	in 	State
	Center
	Community
	College
	District
(1994)
	PERE
	Order
	No.
	Ad-255
	(State
	Center)
. 1	
In
	that 	decision,
the
	Board
	affirmed 	the
	Order 	of
	a 	PERB
	administrative
	law
	judge
(ALJ)
	denying 	the
	District's
	motion
	to 	dismiss
	and
	defer 	to
arbitration
	an
	unfair 	practice
	charge, 	which
	was
	filed 	against
the
	District
	by
	the 	California
	School 	Employees
	Association,
State
	Center 	Chapter
	379 	(CSEA).
1
The
	District 	also 	requested
	a
	stay 	of 	the 	hearing 	scheduled
in 	Case 	No. 	S-CE-1565, 	pending 	the 	Board's 	decision 	on
	thisrequest 	for 	reconsideration.

DISCUSSION
PERE
	Regulation
	32410(a)
	provides
	parties
	with 	the
opportunity 	to 	request 	reconsideration
	of
	the 	Board's
	decision.
2
Ic
	states,
	in 	pertinent 	part:
The
	grounds
	for 	requesting 	reconsiderationare 	limited 	to
	claims
	that
	the
	decision
	of
the
	Board
	itself
	contains
	prejudicial 	errors
of
	fact,
	or
	newly
	discovered
	evidence
	or
	law
which
	was
	not
	previously
	available
	and
	could
not
	have
	been
	discovered 	with 	the
	exercise
	of
reasonable
	diligence.
The
	District
	argues
	that
	the 	Board's
	State
	Center
	decision
contains
	prejudicial 	error
	of
	fact
	because
	the
	Board
	erred 	in
	its
description
	of
	a
	provision 	within 	the
	parties'
	collective
bargaining
	agreement
	(CBA).
	Specifically,
	the
	District 	asserts
that
	the
	Board's
	description
	of
	a
	portion
	of
	CBA
	Article	
6	
as
referenc 	"all 	state
	laws
11
	is
	erroneous
	since 	the
	Article	
6
provision
	actua.lly 	references
	laws
	11
manda.torily
	affecting
classifi
	employees."
	The
	Districc 	assercs
	that 	this
	language
constitutes
	a
	narrow
	provision
	which
	should
	lead 	the
	Board
	to
conclude
	that
	the
	charge 	should
	be
	dismissed
	and
	deferred, 	as
	it
d	
in
	Los
	Angeles
	Comrrrunitv
	Col
7
eae
	District
	(
19
89)
	PERB
Dec
is
ion
	Ne).
	761
	(Los
	Anaeles
	CCD)
.
	The
	District
	also 	finds
prejudic
	1
	error
	of 	face
	in
	Member
	Caffrey's 	conclusion
	in
	the
lead 	opinion 	in 	State
	Center,
	that
	the
	CBA
	leaves
	CSEA
	without
standing 	to
	file
	a 	g
	evance
	in
	its
	own
	name.
	Finally, 	the
District 	asserts
	tha 	there
	is 	prejudicia 	error
	of 	fact 	in
2PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8 1
	section
	31001
	et 	seq.
2

Member
	Garcia's
	conclusion
	in 	his 	State
	Center 	concurrence
	that
further
	pursuit
	of
	this
	matter
	through
	the 	grievance 	procedure
would
	be
	futile.
The
	District 	is
	correct
	that
	the 	Board's
	description
	of
a
	portion
	of
	Article
	6
	of
	the
	parties'
	CBA
	is
	imprecise.
	The
Article 	refers
	to
	laws
	mandatorily
	affecting
	classified
	employees
and
	not
	all
	state
	laws.
	The
	Board,
	therefore,
	must
	consider
whether
	this
	imprecision
	in
	its
	State
	Center
	decision 	represents
prejudicial 	error
	of
	fact
	supporting 	the
	District's
	request 	for
reconsideration.
In
	reviewing
	the
	Article
	6
	language
	in 	State
	Center,
	the
Board
	cites
	Fremont 	Union 	High
	School
	District
	(1993)
	PERB
	Order
No.
	Ad-248 	(Fremont)
	in
	which
	the
	Board
	considered 	the
	impact
	of
broad
	CBA
	provisions 	incorporating
	laws 	and
	rules
	by
	general
reference
	on 	PERB's
	exercise
	of
	its
	jurisdiction.
	The
	gravamen
of
	the 	Board's 	consideration
	of 	such
	provisions
	in
	both
	Fremont
and
	State
	Center
	is
	that
	broad, 	passing 	references 	to 	the
Educational
	Employment
	Relations
	Act
	(EERA) , 3	
and/or 	other
general
	statutory
	references, 	are 	not
	sufficient
	to 	lead 	the
Board
	to
	conclude
	that
	the
	parties
	agreed
	to 	incorporate
	all
provisions
	of 	those
	laws
	into
	the
	CBA,
	whether
	or 	not 	they
	are
specifically 	referred 	to 	or 	covered
	in 	the 	agreement,
	for
purposes 	of 	subjecting
	them
	to 	the 	contract
1 s
	grievance
	and
arbitration
	procedures 	and 	removing 	them 	from 	PERB's
jurisdiction.
	As
	stated 	in
	Fremont:
3EERA
	is 	codified 	at
	Government 	Code
	section
	3540
	et 	seq.
3

The
	parcies' 	failure
	to
	unaw~iguously
	include
EERA
	protections 	in
	the
	agreement 	does
	not
supporc
	an 	argument
	that
	they 	intended
	to
convey
	those
	rights
	or 	to 	subject
	them
	to
	the
contractual
	grievance 	procedure.
The
	District
	argues
	that
	reference
	in Article
	6
	to
	laws
mandatorily
	affecting
	classified
	employees
	demonstrates
	that 	this
is
	"a
	specific
	narrow
	provision" 	unlike
	the 	provision 	considered
by
	the
	Board
	in
	Fremont.
	This
	argument
	is
	unpersuasive.
	The
argued
	incorporation
	of
	numerous
	statutes,
	including
	EERA,
	into
the
	CBA
	in
	their 	entirety 	in
	one
	sweeping
	sentence, 	hardly
justifies
	a
	description
	of
	that
	sentence 	as
	"a
	specific
	narrow
provision."
	As
	in
	Fremont,
	ic
	is
	precisely
	because
	the
	provision
is
	so 	expansive
	and
	non-specific 	that
	it
	does
	not
	lead 	the
	Board
to
	conclude
	that
	the
	parties
	intended
	in
	this
	portion
	of
	Article
6
	to 	incorporate 	the
	entire
	EERA
	into
	the
	CBA,
	and
	subject
	all
alleged 	violations
	of
	EERA
	to 	the
	contract's
	grievance
	and
arbitration
	procedure.
4
Consequently, 	the
	District's
	reliance
	on 	Los
	Angles
	CCD
	is
mi::,p
....
aceu. 	In
	that
	case, 	the
	Board
	affirmed 	without
	discussion
	a
Board
	agent's
	dismissal
	and
	deferral 	to
	arbitration
	of
	a
	charge
' ~ 	1 .	
-'I
4
The 	Board
	notes
	that 	Article
	6
	of 	the
	parties'
	CBA
	is
	the
contract's
	"Waiver
	Clause.
11
	In
	it,
	the
	parties
	agree
	that 	the
CEA
	constitutes 	their
	11
full
	and 	complete 	agreernent.
11
	They
"expressly
	waive 	and
	relinquish 	the 	right 	to 	bargain
collectively''
	on 	any 	and
	all
	matters
	"whether 	or 	not
	specifically
referred 	to 	or 	covered
11
	in 	the
	CEA. 	To
	conclude
	that
	a
	sinqle
sentence 	within 	this 	article 	indicates 	the
	parties' 	intent
	~o
incorporate
	EERA
	and
	other 	statutes 	into 	the 	contract 	in 	their
entirety,
	as 	the
	District
	argues,
	would 	be
	to
	expand 	the 	subjects
covered 	by 	the
	CBA
	far
	beyond 	the 	apparent 	purpose 	of 	the 	parties
who
	are 	limiting 	the
	CBA's
	coverage 	in 	this 	very
	article.
	Such
	a
conclusion
	would 	be 	incongruous 	and
	illogical.
4

alleging
	discrimination 	against
	an
	employee
	because 	of
	his
exercise
	of
	protected
	activity.
	The
	Board
	agent
	found
	that
specific
	agreement
	in
	the
	parties'
	CBA
	to
	"comply
	with
	all
federal
	and
	state
	laws
	regarding 	non-discrimination
11
	was
sufficient
	for
	the
	Board
	to
	conclude
	that
	the
	parties
	had
intended
	to
	include
	in
	the
	CBA
	the
	specific
	non-discrimination
protections
	of
	EERA,
	resulting
	in
	dismissal
	and
	deferral
	of
	the
charge
	in
	that
	case.
	Here,
	there
	is
	no
	specific
	reference
	to
	any
particular
	EERA
	protection
	or
	right
	within 	the
	Article
	6
provision.
	Therefore,
	Los
	Angeles
	CCD
	is
	clearly 	distinguishable
from
	the
	instant
	case.
In
	sum,
	as
	in
	Fremont
1
	the
	CBA
	provision
	here
	is
	broad
	and
general,
	and 	does
	not
	lead 	the
	Board
	to
	conclude
	that
	the
	parties
intended 	the
	entire
	EERA
	to
	be
	incorporated
	into
	the
	CBA
	and
subject 	to
	its
	grievance 	procedure. 	Therefore, 	the 	Board's
description
	of 	the
	Article
	6
	language
	in 	State
	Center, 	while
imprecise,
	does 	not
	alter
	the 	Board's
	analysis
	and 	does
	not
constitute 	prejudicial 	error
	of
	fact.
The
	District 	also
	argues
	that
	Member
	Caffrey's 	finding
	that
CSEA
	is
	without 	standing 	to
	file
	a
	grievance 	in
	its
	own 	name
constitutes
	"another
	prejudicial
	erroneous 	statement 	of
	fact,
11
citing 	Article
	27
	of 	the
	CBA
	which
	describes 	the 	grievance
procedure.
	The
	District's
	argument
	is 	identical 	to
	a
	portion
	of
the 	argument
	made
	in
	its
	original
	motion 	to 	dismiss
	and
	difer
this 	case 	to 	arbitration,
	which 	the 	Board 	considered 	in 	denying
the
	District's
	appeal 	of 	the 	ALJ's 	denial 	of 	that 	motion. 	The
5

Board
	has 	long
	held
	that
	a
	party's
	mere
	restatement
	of 	arguments
previously
	made
	and
	considered
	by
	the
	Board
	does
	not
	constitute
appropriate
	grounds
	for 	reconsideration.
	(Riverside
	Unified
School
	District
	(1987)
	PERB
	Decision
	No.
	622a;
	Tustin 	Unified
School
	District
	(1987)
	PERB
	Decision
	No.
	626a;
	California
	Facult~
Association
	(Wanq)
	(1988)
	PERB
	Decision
	No.
	692a-H.)
Furthermore,
	the
	Board
	majority
	concluded
	in 	State
	Center
	that
the 	conduct
	complained
	of
	by
	CSEA
	in
	Case
	No.
	S-CE-1565
	is	
rwt.
arguably
	prohibited
	by
	the
	parties'	
CBA.	
(Lake
	Elsinore
	School
District
	(1987)
	PERB
	Decision
	No.
	646
	(Lake
	Elsinore).)
refo::·E,
	Member
	Caffrey'
s
	conclusion
	wich
	regard
	to
	CSEA 1 s
standing 	to
	file
	a
	grievance
	is
	not
	dispositive
	of 	the 	Board's
conclusion 	in 	State
	Center,
	and
	unavailing
	as
	the
	basis
	of
	a
request 	for 	reconsideration
	of
	that 	decision:
Finally,
	t
	Dist
	ct
	objects 	to
	Member
	Garcia's 	separate
finding
	that
	CSEA 1 s
	withdrawal 	of
	its
	request 	for
	arbitration
	of
its
	ievance 	under
	the
	CBA
	constitutes
	exhaustion 	of
	that
process
	11
and
	furcher 	pursuit
	through 	the 	grievance 	process
	would
be
	::utLle.l' 	In
	StatE°
	Center, 	the
	Board 	concludeci
	that
	Case
No.
	8-CE-1565
	could 	not 	be
	dismissed
	and
	deferred 	to
	arbitration
under
	Lake
	Elsinore.
	As 	a
	result,
	the
	Board
	did 	not 	reach 	the
issue 	of
	futility,
	and
	similarly
	does 	not
	do
	so
	in 	rejecting 	the
instant 	request 	for 	reconsideration.
6

ORDER
The
	request
	for 	reconsideration 	in 	State
	Center
	Community
Colleqe
	District
	(1994)
	PERB
	Order
	No.
	Ad-255
	and
	request
	for
stay
	of
	the 	proceedings
	in
	Case
	No.
	S-CE-1565
	are
	DENIED.
Member
	Carlyle's
	concurrence 	begins
	on
	page 	8.
Member
	Garcia's
	concurrence 	begins
	on
	page 	9.
7

CARLYLE,
	Member,
	concurring:
	I
	agree 	with
	Member
	Caffrey's
adlnission
	that 	his
	language
	in 	describing
	a
	portion
	of
	Article
	6
of
	the
	parties'
	collective
	bargaining
	agreement
	(CBA)
	is
imprecise,
However,
	I
	see
	no
	need
	to
	arrive 	at
	a
	conclusion 	concerning
whether
	or
	not 	such
	admitted 	imprecision
	constitutes 	prejudicial
error
	of
	fact 	since
	I
	concurred
	separately 	"for
	the
	sole
	reason
that
	the
	[State
	Center
	Community
	College}
	District
	has
	failed
	to
demonstrate
	that
	the
	complained
	of
	conduct
	is
	arguably
	prohibited
by	
the 	collective
	bargaining
	agreement
	(CBA)
."
	The
	underlying
rationale
	for
	my
	conclusion 	of
	this
	threshold
	and
	dispositive
issue
	was
	that
	I
	was
	"unpersuaded
	on
	the
	correctness
	of
	the
District's
	position 	for 	the
	same
	reasons
	found	
by	
the 	regional
attorney
	and
	the 	[administrative
	law 	judge]
	ALcJ
	on
	this
	first
pare
	of 	the 	'dismiss
	and
	deferral
	test.'"
A
	review 	of
	said 	decisions
	by
	the 	regional 	attorney
	and
	the
administrative
	law
	judge 	does
	not 	reveal
	similar
	imprecise
language
	on
	the
	salient 	Article(s)
	and
	thus
	I
	would 	deny
	the
State
	Center
	Community
	College
	Districc's
	request 	for
reconsideration 	in 	State
	Center
	Corn1nunity
	College-
	District
	(1994)
PERE
	Order
	No.
	Ad-255 	and
	the 	attendant 	request 	for 	stay
	of 	the
proceeding 	in
	Case
	No.
	S-CE-1565 	on
	the
	grounds
	that 	the
	District
has
	failed
	to
	meet
	its
	burden
	to
	have
	reconsideration 	granted 	as
set 	forth 	in
	PERB
	Regulation
	32410 (a) . 1
1 PERB
	regulations 	are 	codified 	at 	California
	Code 	of
Regulations,
	title
	8, 	section 	31001 	et 	seq.
-8-

GARCIA, 	Member, 	concurring~ 	The 	State 	Center 	Community
College 	District 	(District) 	requested 	reconsideration 	on 	several
grounds, 	yet 	all 	involve 	a 	similar 	issue: 	what 	did 	the 	parties
intend? 	I 	concur 	that 	the 	District's 	request 	for 	reconsideration
should 	be 	denied. 	My 	reasons 	follow.
One 	ground 	for 	the 	request 	for 	reconsideration 	is 	that 	it
was 	error 	to 	conclude 	that 	Article 	6 	of 	the 	parties' 	Agreement
was 	not 	specific 	enough 	to 	cover 	the 	disputed 	conduct; 	if 	so,
taking 	jurisdiction was 	improper. 	Member 	Caffrey's 	opinion 	in
State 	Center 	Community 	College 	District 	(1994) 	PERE 	Order
No. 	Ad-255 	(State 	Center 	CCD) 	relied 	on 	Fremont 	Union 	High 	School
District 	(1993) 	PERE 	Order 	No, 	Ad-248 	(Fremont) 	to 	take
Jurisdiction 	because 	the 	prohibited 	conduct 	language 	was 	too
broad; 	the 	District 	argues 	that 	the 	contract 	language 	is 	"clearly
distinguishable" 	from 	that 	used 	in 	Fremont. 	As 	is 	evident 	in 	my
original 	concurrence, 	I 	agree 	with 	the 	District's 	position 	that
the 	contract 	language 	could 	prohibit 	the 	disputed 	conduct 	under
the 	subjective 	rule 	of 	interpretation used 	by 	Member 	Caffrey;
however, 	the 	chosen 	language 	would 	remain 	ineffective 	to 	show 	the
parties 	clearly 	intended, 	by 	their 	agreement, 	to 	waive 	access 	to
Public 	Employment 	Relations 	Board 	(PERE 	or 	Board) 	jurisdiction.
Review 	of 	Member 	Hesse's 	approach 	to 	contract 	interpretation
in 	her 	concurrence 	in 	the 	Fremont 	decision 	explains 	why 	a 	broad
statement 	is 	ineffective 	to 	accomplish 	waiver. 	Examining 	an
issue 	of 	EERA 	incorporation 	similar 	to 	the 	present 	case, 	Member
Hesse 	stated:
9

The
	Board
	has
	granted
	deferral
	in
	cases
	where
the
	parties
	have
	chosen
	to
	include 	the
	rights
granted
	by
	statute
	in
	their
	contract
	and 	have
done
	so 	by	
expressly 	repeating
	the
	statutory
language
	or 	incorporating
	it
	by
	reference.
In
	this
	case,
	however,
	while
	the
	parties
	were
free 	to
	do
	so,
	their
	contract
	does
	not
include
	or 	expressly 	incorporate
	the
	rights
granted
	by
	EERA
	section
	3543.S(a)
	and
	(b).
While
	I
	do
	not
	adopt
	the
	reasoning
	of
	the
	ALJ
suggesting
	that 	deferral 	will
	never
	be
ordered 	absent 	the
	inclusion
	of
	EERA
	language
in
	the
	parties'
	agreement,
	I
	find
	that
	the
parties' 	failure
	to
	unambiguously
	include
EERA
	provisions 	in
	the
	contract
	is
	a
	strong
indication
	that
	they 	did
	not
	intend 	to
	convey
those
	rights
	or 	subject
	them
	to
	the
contractual
	grievance 	procedure.
	[Fremont,
concurring 	opinion, 	p.	
lli	
emphasis
	added.]
In
	summary,
	access
	to
	PERB
	is
	a
	right 	that
	can
	only
	be
waived 	by 	conduct
	or 	statements
	that 	clearly
	waive
	the
	right.
1
The
	District
	also
	identifies
	as
	prejudicial 	error
	of
	fact
Member
	Caffrey's 	ruling 	that
	the
	Agreement
	does
	not 	allow
	CSEA
	to
file
	a
	grievance
	in
	its
	own
	name. 	The
	District 	relies
	on
Inglewood
	Unified
	School
	District
	(1990)
	PERE
	Decision
	No.
	821
for
	the 	proposition
	that
	11
PERB
	is
	to
	review
	the
	Agreement
	-co
	see
if
	the
	Union
	'arguably'
	has
	the
	right 	to 	grieve 	in
	its
	own
	name."
As 	I
	seated
	in
	my
	original
	concurrence 	with
	respect 	to 	the 	use
	of
the
	word
	"arguably," 	the
	Board 	has 	improperly 	developed
	an
undisciplined 	policy
	of
	subjectively 	interpreting 	contract
1
See 	San
	Francisco
	Community 	ColJ.ege
	District
	(1979)
	PERB
Decision
	No.
	105, 	holding
	that
	PERB:
.
	will 	not
	readily 	infer 	that
	a
	party
	haswaived
	its 	rights
	under
	EERA; 	we
	will 	find
	a
waiver 	only
	when
	there 	is
	an
	intentionalrelinquishment 	of 	these 	rights, 	expressed 	inc1ear 	and 	unmistakable 	terms. 	[Fns.
orn:i. t
ted.
J
10

language 	even 	when 	there 	is 	no 	doubt 	as 	to 	the 	parties' 	intent.
In my 	opinion:
The 	danger 	in 	using 	that 	policy 	in 	all 	cases
is 	that 	it 	invites 	a 	subjective 	approach 	to
contract 	interpretation 	by 	PERB 	and 	in 	some
cases 	appropriates 	the 	role 	of 	the
arbitrator. 	Furthermore, 	it 	vitiates 	the
ability 	of 	parties 	to 	negotiate 	grievance
agreements, 	since 	almost 	anything 	can 	be
'arguably' 	prohibited 	[or, 	when 	standing 	to
grieve 	is 	disputed, 	a 	party 	can 	almost 	always
"arguably" 	have 	standing 	or 	not] 	[State
Center, 	concurrence, 	p. 	15.]
Aside 	from 	PERB's 	use 	of 	an 	inappropriate 	"arguably" 	rule,
also 	now 	employed 	by 	the 	District, 	I 	do 	not 	find 	that 	the
District 	has 	identified 	a 	prejudicial 	error 	of 	fact 	on 	the
standing 	issue. 	The 	"error" 	charged by 	the 	District 	is 	more
accurately 	characterized 	as 	PERB's 	choosing 	an 	interpretation
different 	from 	that 	desired 	by 	the 	District 	under 	a 	subjective
rule 	that 	cuts 	both 	ways.
The 	third 	allegation 	of 	prejudicial 	error 	of 	fact 	identified
by 	the 	District 	centers 	on my 	concurring 	opinion 	in 	the 	original
case. 	First, 	I 	would 	like 	to 	note 	that 	I 	share 	the 	District's
view 	that 	there 	is:
no 	authority 	allowing 	exhaustion 	of 	the
grievance 	process 	by 	unilaterally 	withdrawing
the 	grievance 	prior 	to 	settlement 	or
arbitration 	award.
My 	opinion 	did 	not 	imply 	that 	parties 	can 11 forum 	shop" 	and
invoke 	PERB 	jurisdiction 	in 	all 	cases 	by 	ignoring 	the 	grievance
11

'	agreement 	or 	impermissibly 	withdrawing 	from 	t:.he 	process.· 	To
clarify, 	the 	main 	point 	of 	my 	original 	concurrence 	was 	to
emphasize 	that 	EERA 	permits 	the 	parties' 	collective 	bargaining
agreement 	(CBA) 	to 	determine 	how 	disputes 	are 	resolved. 	The
statutory 	right 	of 	the 	parties 	to 	defer 	PERB 	jurisdiction 	and
waive 	immediate 	access 	to 	PERB 	can 	only 	come 	into 	being via 	a
contract 	between 	the 	parties. 	Parties 	to 	a 	CBA 	have 	the 	right 	to
develop 	the 	method 	by 	which 	they 	want 	to 	resolve 	disputes 	and 	the
statute 	directs 	us 	to 	look 	at 	the 	terms 	of 	their 	agreement.
In 	this 	case, 	the 	parties 	clearly 	agreed 	to 	require 	the
concurrence 	of 	the 	California 	School 	Employees 	Association, 	State:
Center 	Chapter 	379 	cc 	take 	a 	case 	to 	arbitration; 	that
concurrence 	was 	withdrawn, 	and 	therefore, 	the 	grievance 	process
ended 	prior 	to 	settlement. 	The 	grievance 	process 	could 	go 	no
further 	and 	was 	exhausted 	according 	to 	the 	terms 	of 	the 	CBA. 	It
would 	be 	futile 	to 	pursue 	the 	process 	further.
That 	is 	not 	the 	same 	as 	the 	position 	the 	District
erroneously 	attributes 	to 	my 	opinion: 	to 	the 	contrary, 	a 	party
cannot 	uni 	cerally 	confer 	jurisdiction 	on 	PERB 	by 	withdrawing 	a
2 In 	its 	request 	for 	reconsideration, 	the 	District
misconstrues 	my 	opinion 	as 	holding 	that 	a 	party 	could 	''exhaust
the 	grievance 	process 	simply by 	[unilaterally] 	withdrawing 	its
grievance 	after 	appealing 	to 	arbitration. 11 	Citing 	the 	Government
Code, 	the 	District 	then 	states 	that, 	where 	chere 	has 	been 	no
exhaustion 	of 	the 	grievance 	machinery 	by 	settlement 	or 	binding
arbitration, 	deferral 	is 	mandated. 	However, 	the 	District 	failed
to 	note 	that 	under 	the 	terms 	of 	thP 	CBA 	the 	grievance 	process
could 	proceed 	no 	further 	without 	the 	concurrence 	of 	the 	union.
In 	fact, 	to 	require 	otherwise 	wrn.1ld 	allow 	the 	District 	to 	impose
mandatory 	arbitration.
12

grievance
	prior
	to 	settlement
	or
	arbitration
	award
3	
if
	that
action
	is
	not
	permitted
	undPr
	the
	contract.
	If,
	however,
	further
pursuit
	of
	the 	grievance 	process
	would
	be
	futile
	under
	a
particular
	contract,
	PERE
	has
	jurisdiction
	over
	the
	dispute.
In
	conclusion,
	I
	do
	not 	agree 	with 	the
	District's
claim
	that
	my
	concurring 	opinion 	contains
	prejudicial
	error
	of
fact
	pursuant 	to
	PERE
	Regulation 	32410(a).
3
Eureka 	City 	School
	District
	(1988) 	PERB
	Decision
	No.
	702.
13