Oakland Unified School District (American Federation of State, County and Municipal Employees) (PERB I016E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LOCAL 257, AMERICAN FEDERATION OF
STATE, COUNTY AND MUNICIPAL
EMPLOYEES, AFL-CIO,
Charging Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT
Respondent.
)
)
)
) Case No. SF-CE-472
PERB, Order No. IR-16
July 9, 1980
)
)
)
Appearances: Joseph R. Colton, Attorney (Norback, DuRard,
Belkin & Carcione, Inc.) for Local 257, American Federation of
State, County and Municipal Employees, AFL-CIO; Sandra Woliver,
Attorney for Oakland Unified School District.
Before Gluck, Chairperson; Moore, Member.
DECISION
This case is before the Public Employment Relations Board
(hereafter PERB or Board) on a request for injunctive relief
filed by Local 257 of the American Federation of State, County
and Municipal Employees, AFL-CIO (hereafter AFSCME) against the
Oakland Unified School District (hereafter District). AFSCME,
the exclusive representative of a unit of custodial employees,
has filed a charge containing allegations that the District
violated section 3543.5 (c) of the Educational Employment
Relations Act (hereafter EERA)1 by unilaterally deciding to
1The EERA is codified at Government Code section 3540
et seq. Unless otherwise indicated, all statutory references
are to the Government Code.

reduce the workyear of some employees from twelve to ten
months, thereby effectively reducing their hours, and by
refusing to meet and negotiate on the effects of its decision
to lay off other employees. Based on these charges, it
requests that PERB seek to enjoin the District from
implementing the layoffs and reduction in hours.
Section 3543.5(c) provides:
It shall be unlawful for a public school
employer to:
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
PERB's authority to seek injunctive relief is governed by
section 3541.3(j). This section gives PERB the power:
To bring an action in a court of competent
jurisdiction to enforce any of its orders
decisions or rulings or to enforce the
refusal to obey a subpoena. Upon issuance
of a complaint charging that any person has
engaged in or is engaging in an unfair
practice, the board may petition the court
for appropriate temporary relief or
restraining order.
Thus, before PERB can decide whether injunctive relief is
appropriate, it must first determine that it can issue a
complaint on the underlying unfair practice charge. PERB
cannot seek injunctive relief unless it can issue a complaint
on the charge. Section 3541.5(a) places certain limitations on

the Board's authority to issue a complaint2. Under this
section, PERB cannot "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
2Section 3541.5(a) provides:
Any employee, employee organization, or
employer shall have the right to file an
unfair practice charge, except that the
board shall not do either of the following:
(1) issue a complaint in respect of any
charge based upon an alleged unfair practice
occurring more than six months prior to the
filing of the charge; (2) 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.
However, when the charging party
demonstrates that resort to contract
grievance procedure would be futile,
exhaustion shall not be necessary. The
board shall have discretionary jurisdiction
to review such settlement or arbitration
award reached pursuant to the grievance
machinery solely for the purpose of
determining whether it is repugnant to the
purposes of this chapter. If the board
finds that such settlement or arbitration
award is repugnant to the purposes of this
chapter, it shall issue a complaint on the
basis of a timely filed charge, and hear and
decide the case on the merits; otherwise, it
shall dismiss the charge. The board shall,
in determining whether the charge was timely
filed, consider the six-month limitation set
forth in this subdivision to have been
tolled during the time it took the charging
party to exhaust the grievance machinery.

exists and covers the matter at issue, has been exhausted,
either by settlement or binding arbitration."
The record before us indicates that, at the time the
District made its decision to layoff some employees and change
the hours of others, the parties had an agreement which
contained a grievance procedure culminating in binding
arbitration.3 Furthermore, AFSCME has invoked this grievance
procedure with respect to both aspects of its unfair practice
charge: the implementation of layoffs and the unilateral
decision to reduce hours. It filed one grievance alleging
that the District's implementation of its decision to layoff
certain custodians violated the agreement in that improper
notice had been sent to employees and seniority had been
ignored. Another grievance alleges that the District's
unilateral decision to reduce the hours of custodians violated
several parts of the agreement.5
On the basis of this record, there is a question as to
whether the Board must defer to the parties' contractual
3This agreement expired on June 30, 1980.
4AFSCME filed a third grievance on an issue which was not
specifically incorporated in its unfair practice charge or its
request for injunctive relief.
5Specifically, the grievance alleged a violation of
Article VIII, which covers hours, Article XX, which imposes a
requirement that proposed policy changes which change the terms
and conditions of the agreement be negotiated, and Article
XXII, which prohibits either party from demanding any changes
in the agreement.

dispute resolution procedure. The layoffs and hour reductions
were apparently not scheduled to take place until July 1, 1980,
the day after the contract expired.6 This raises an issue as
to whether a unilateral decision to implement a change after a
contract expires could arguably be a violation of the terms of
that contract and thus be subject to the grievance procedure.7
AFSCME's position on this issue is unclear: After the
District announced its decisions, AFSCME filed an unfair
practice charge with PERB, then filed its grievances, and then,
in its request for injunctive relief, argued that it had no
adequate remedy at law because the actions of the District
would occur after the expiration date of the contract.
Further, neither of the parties raised the issue of whether
PERB must defer to arbitration in this case, nor is there any
indication that they were aware that this would be a major
6There may be a question as to the date the layoffs and
hour reductions were scheduled to take place. The notice from
the superintendent of schools to custodians whose hours are
being reduced indicates that the reduction from a 12-month to a
10-month assignment will be effective on July 1, 1980.
However, a memorandum dated April 29, 1980, from the director
of building operations to all custodians states that some
classified employees will have their jobs eliminated on
June 30, 1980. The implementation date of the proposed layoffs
and hour reductions may be an important factor in determining
whether or not there has been an arguable violation of the
contract since the contract was still in effect on June 30, but
had expired as of July 1.
'This is, of course, a separate question from whether the
same unilateral decision constitutes an unfair practice under
the EERA.

factor in the Board's resolution of the case. Since this is a
jurisdictional issue in that the Board cannot issue a complaint
if section 3541.5(a) applies, we must address this issue
whether or not the parties have raised it. The Board should
not, however, make a decision to defer without providing the
parties with a chance to present information and arguments on
that issue. Such a decision seriously limits the charging
party's ability to have PERB review its unfair practice charge
and, moreover, cannot be appealed.8 If a party disagrees
with the Board's decision to defer, its only recourse is to go
through arbitration and, if appropriate, petition the Board to
determine whether the arbitrator's award is repugnant to the
purposes of the EERA. (Sec. 3541.5(a).) Before making a
decision which has such a major impact on the disposition of
the case, the Board should give the affected parties a chance
to brief and argue their positions on the issues involved.
8If the Board decides that section 3541.5(a) (2) applies
to an unfair practice charge, then the Board cannot issue a
complaint on that charge. Under section 3542(b), a decision
not to issue a complaint cannot be appealed. This section
provides:
Any charging party, respondent, or
intervenor aggrieved by a final decision or
order of the board in an unfair practice
case, except a decision of the board not to
issue a complaint in such a case, may
petition for a writ of extraordinary relief
from such decision or order.

Therefore, I would transfer this case to a hearing officer
to hold a hearing on the issue of whether the Board can issue a
complaint on the unfair practice charge filed by AFSCME or
whether it must defer to the parties1 grievance procedure
pursuant to section 3541.5(a)(2).
This result is consistent with PERB's new rules covering
deferral under section 3541.5(a). PERB rule 32654, which goes
into effect on July 18, 1980, provides for a hearing and/or
submission of briefs on deferral issues.9 While the rule
contemplates the issue being raised on the motion of a party, a
similar procedure seems appropriate when the Board itself or a
Board agent raises the issue.
9PERB rules are codified at California Administrative
Code, title 8, secton 31000.
PERB rule 32654 provides in part:
(a) Objections to the issuance of a
complaint pursuant to a prima facie charge
may be made on the ground that issuance of
said complaint is prohibited pursuant to
section 3514.5(a)(2) or 3541.5(a)(2) of the
Government Code. Objections shall be in the
form of a motion to deny issuance of
complaint and must be filed with the Board
within the time limits applicable to the
filing of an answer to the charge pursuant
to Section 32635(a).
(b) Upon such motion, the Board shall set
the matter for hearing, except that in cases
where there are no factual disputes, the
Board may limit the parties to submission of
briefs or oral argument.

In sum, I would not dismiss AFSCME's charge without giving
the parties an opportunity to address the deferral issue at a
hearing. But I would also not issue a complaint until the
jurisdictional question of whether the Board must defer to the
parties' grievance machinery pursuant to section 3541.5(a) has
been resolved. Since the Board cannot seek an injunction
without issuing a complaint (sec. 3541.3(j)), AFSCME's request
for injunctive relief must be denied. Even if I were not
convinced that normal PERB processes could remedy the alleged
District unfair practices, this Board cannot ignore a serious
question as to its jurisdiction to proceed. This question must
be resolved, and, for the reasons set forth above, I do not
believe it should be resolved without conducting a hearing on
the issue.
Barbara D. Moore, Member
The concurrence of Chairman Gluck begins on page 9

Chairman Gluck, concurring:
I agree that this matter should be remanded for the purpose
of allowing the parties the opportunity to address the question
of the Board's obligation to defer pursuant to section
3541.5(a). Though rule 32654 is not yet in effect, its spirit
and purpose should not be ignored.
ORDER
Based upon the foregoing statement of facts and discussion,
the Public Employment Relations Board declines to seek
injunctive relief and transfers this matter to the Chief
Administrative Law Judge for further proceedings.
Per Curiam