San Francisco Community College District (PERB 0278E)

STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN 	FRANCISCO 	COMMUNITY 	COLLEGE
DISTRICT 	FEDERATION 	OF 	TEACHERS,
LOCAL 2121, CFT/AFT, AFL-CIO,
Charging 	Party,
v.
SAN 	FRANCISCO 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case Nos. 	SF-CE-448
SF-CE-461
PERB Decision No. 	278
December 	31, 	1982
Appearances; 	Robert J. 	Bezemek, 	Attorney 	(Bennett 	& Bezemek)
for 	San 	Francisco 	Community 	College 	District 	Federation 	of
Teachers, Local 2121, CFT/AFT, AFL-CIO.
Before Gluck, 	Chairperson; 	Tovar 	and Jensen, Members.
DECISION
JENSEN, 	Member: 	These 	consolidated cases 	are 	before 	the
Public 	Employment 	Relations 	Board 	(PERB or 	Board) 	on 	exceptions
filed 	by 	the 	San 	Francisco 	Community 	College 	District
Federation of Teachers, Local 2121, CFT/AFT, AFL-CIO
(Federation) 	to the 	attached 	hearing officer's decision. 	In
Case No. 	SF-CE-448, 	the 	hearing officer 	found 	that 	the
San 	Francisco 	Community 	College 	District 	(District) 	violated
subsections 3543.5(a), 	(b) 	and 	(c) 	of the Educational
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Employment 	Relations 	Act 	(EERA)1 by 	its 	refusal 	to 	arbitrate
a 	grievance 	regarding 	the 	District's 	suspension 	of 	Professor
George F. 	Fuller 	(Fuller) 	and 	by 	its 	failure 	to honor 	certain
other 	contract 	provisions 	relating 	to 	grievance 	arbitration 	to
the 	extent 	to which 	they 	do not 	conflict with 	the 	Education
Code. 	The 	hearing officer 	found 	further 	that 	the 	Federation
was 	not 	entitled 	to attorney's 	fees 	occasioned 	by 	the
District's 	refusal 	to arbitrate 	and 	by 	the 	District's 	related
court 	and 	administrative 	actions 	in 	furtherance 	of 	its 	attempt
to 	limit 	the 	Federation's 	recourse 	to 	the contractual grievance
and 	arbitration procedure. 	The 	District 	filed 	no 	exceptions.
The 	Federation 	excepts 	only 	to 	the 	hearing officer's 	denial of
its 	claim 	for 	attorney's 	fees.
1EERA 	is 	codified at Government 	Code 	section 	3540 	et
seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless otherwise specified. 	Subsections 3543.5(a), 	(b) 	and 	(c)
provide 	as 	follows:
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.
(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.
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In Case No. 	SF-CE-461, 	the Federation alleged 	that 	the
District's postponement 	of 	Fuller's 	sabbatical 	leave 	was 	a
refusal 	to comply with 	the 	Board's 	order 	in 	San 	Francisco
Community College District 	(10/12/79), 	PERB Decision No.
and 	that 	such 	refusal 	to 	comply violated 	subsections 	3543.5(a)
(c) 	and 	(d). 	The hearing officer 	dismissed 	these 	allegations
in 	their 	entirety 	and 	the 	Federation 	excepted 	to 	the 	failure 	to
find a violation of subsection 3543.5(a), 	(b) 	or 	(c). 	As in
Case No. 	SF-CE-448, 	supra, 	the District filed no exceptions.
FACTS
We 	have 	carefully 	reviewed 	the 	hearing 	officer's 	findings
of 	fact 	in 	light 	of 	the 	Federation's 	exceptions 	and 	the 	record
as 	a 	whole. 	We 	find 	them to 	be 	free of prejudicial 	error 	and
adopt 	them as 	the 	findings of 	the 	Board 	itself.
DISCUSSION
Case No. 	SF-CE-448
As 	noted previously, 	neither 	the 	District 	nor 	the
Federation 	excepted 	to 	the 	hearing 	officer's 	findings 	that 	the
District violated subsections 3543.5(a), 	(b) 	and 	(c) 	as alleged
in 	the 	above-captioned charge. 	Thus, 	the only 	issue 	before 	the
Board 	in Case 	No. 	SF-CE-448 	is 	the 	hearing officer's denial of
attorney's 	fees. 	The 	Federation 	seeks 	to 	recoup 	its 	legal
expenses 	incurred 	in 	resisting 	the 	District's 	attempt 	to enjoin
the 	Federation 	and 	its 	members 	from recourse 	to 	the 	contractual
grievance 	machinery 	and 	for 	filing 	a petition 	to 	compel
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arbitration, 	both 	of 	which 	actions 	were 	entertained 	in 	Superior
Court. 	Further, 	the 	Federation seeks 	its 	costs 	and 	fees
connected 	with 	its 	participation 	in 	a 	hearing on 	Fuller's
grievance 	before 	the 	Office of 	Administrative 	Hearings 	and 	for
its 	processing of 	the 	instant 	cases 	before 	PERB. 	All of 	these
legal fees were 	engendered 	by 	the 	District's 	refusal 	to honor
portions 	of 	the 	collective 	bargaining 	agreement 	regarding
grievance 	and 	arbitration 	of 	disciplinary 	grievances.
In King 	City 	Joint 	Union High 	School 	District 	(3/3/82) 	PERB
Decision No. 	197, 	the Board 	held 	that a charging party would 	be
awarded 	attorney's 	fees 	where 	the 	defense 	to 	the 	unfair
practice charge was 	"without arguable merit." 	Likewise, 	in
Unit Determination 	for 	the 	State of California 	(12/31/8 0) 	PERB
Decision No. ll0c-S, we 	held 	that 	fees 	would 	be 	awarded where
there was 	a 	showing of 	"frivolous or 	dilatory 	litigation" 	and
would be denied ". 	. 	. 	if 	the 	issues are debatable and brought
in good 	faith."
The 	District 	based 	its 	refusal 	to 	arbitrate 	Fuller's
grievance 	upon 	the 	argument 	that 	Education Code 	sections 	87600
et 	seq. 	supersede 	the grievance 	and 	arbitration 	provisions 	of
the 	collective 	bargaining 	agreement 	insofar 	as 	they 	relate 	to
suspension grievances. 	The 	District 	argued 	that 	the 	statutory
scheme 	embodied 	therein 	provides 	the 	exclusive 	and 	mandatory
grounds 	for 	dismissal, 	that 	the 	notice provisions 	set 	forth 	in
the 	Education Code 	are mandatory, 	and 	that 	the 	Education Code
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provisions 	regarding 	review of 	the arbitrator's 	award, 	payment
of 	the 	arbitrator, 	and procedural 	rules 	governing 	arbitration
differ 	from 	the 	provisions 	of 	the 	collective 	bargaining
agreement. 	Thus, 	argued the District, 	the Education Code
conflicts 	with 	and 	cannot 	be 	harmonized 	with 	the 	collective
bargaining 	agreement's provisions, 	and 	therefore 	it 	supersedes
the 	grievance 	and 	arbitration provisions 	of 	that 	agreement.
The merits of 	those 	arguments 	are 	not 	before us on appeal, 	and
we 	therefore decline 	to 	rule on 	them. 	However, 	an
interpretation of 	Education Code 	sections 	87600 	et 	seq. 	was 	an
issue of 	first 	impression.2 Therefore, 	we 	cannot 	conclude
that 	the 	District's 	positions 	and 	attendant 	legal 	actions 	were
frivolous, 	purely dilatory, 	or 	brought 	in bad faith. 	Rather,
as 	the 	hearing 	officer's 	lengthy discussion of 	these 	issues
indicates, 	the District's position 	that 	the 	collective
bargaining 	agreement's 	grievance 	and 	arbitration 	provision 	is
inapplicable 	to 	disciplinary 	actions 	against 	certificated
employees 	was 	certainly 	"arguable." 	We 	further 	cannot conclude
that 	the 	District's 	decision 	to attack 	the 	collective
bargaining 	agreement's 	provisions 	in court 	was 	undertaken 	in
2The 	Federation 	did 	not 	allege 	that 	the 	District's
challenge 	of 	the 	contractual clause 	regarding 	grievance 	and
arbitration, 	which 	it had previously agreed 	to, 	constituted bad
faith negotiating on 	the part of 	the District. 	It 	is only
because 	the 	Federation did 	not 	raise 	this 	issue 	that we 	do not
consider 	whether 	such 	action 	by 	an 	employer 	might 	affect 	a
request 	for 	attorney's 	fees.
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bad 	faith 	such 	as 	to warrant 	an award of 	attorney's 	fees. 	For
the 	reasons 	set 	forth 	above, 	we 	affirm 	the 	hearing 	officer's
decision 	to 	decline 	to award 	attorney's 	fees 	to 	the 	Federation.
Case No. 	SF-CE-461
The 	facts, 	as 	set 	forth 	by 	the 	hearing officer 	and 	adopted
by 	the Board, 	may be 	summarized as 	follows: 	In 	San Francisco
Community College District, 	supra, 	the Board held, 	inter 	alia,
that 	the 	District 	had 	unilaterally 	deferred 	sabbatical 	leaves
for 	some 	50 certificated employees, 	including 	Fuller, 	and
ordered 	the 	District 	to offer 	the 	affected 	employees 	the
earliest opportunity 	to 	take 	those 	leaves. 	That order 	issued
on October 	12, 	1979. 	In compliance 	therewith, 	the District
scheduled 	sabbaticals 	for 	the 	affected 	employees. 	Fuller's
sabbatical 	was 	initially 	scheduled 	for 	the 	beginning of 	the
spring 	semester 	in 1980. 	However, 	during 	late 	1979 	and
culminating 	in January of 	1980, 	a conflict arose 	between Fuller
and 	the 	District 	regarding 	Fuller's 	use of 	leave, 	and 	the
District 	determined 	that 	he 	should 	be 	suspended 	without 	pay.
Rather 	than 	imposing 	the 	suspension 	immediately, 	the 	District
delayed 	implementation of 	the 	suspension 	until 	September 	1980,
and 	delayed 	the 	effective 	date 	of 	approval of 	Fuller's
sabbatical until 	that 	same 	date. 	This 	gave 	Fuller 	the
opportunity 	to 	appeal 	the 	suspension and 	perhaps 	resolve 	it
prior 	to his 	sabbatical 	leave.
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Without 	expressly 	stating, 	the 	Federation alleges 	two
alternative 	bases 	upon which 	the 	District's 	postponement 	of
Fuller's 	sabbatical 	constituted 	a 	violation 	of 	subsections
3543.5(c) 	and 	(a).3 Initially, 	the 	Federation 	generally
alleges 	that 	the 	sabbatical 	postponement 	constituted 	failure 	to
comply with 	the 	Board's order 	in 	San 	Francisco Community
College District, 	supra, 	and 	that 	such refusal 	to comply
amounts 	to a per 	se 	separate, 	new violation of 	subsections
3543.5(a) 	and 	(c). 	The Federation cites no authority 	for 	the
proposition 	that 	failure 	to 	comply with 	a 	prior 	Board 	order
constitutes 	a per 	se violation of 	EERA.
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We 	affirm 	the 	hearing 	officer's 	dismissal 	of 	the 	subsection
3543.5(c) 	and 	(a) 	allegations 	insofar 	as 	they are 	set 	forth
above. 	Failure 	to comply with 	a Board 	order 	may 	be 	addressed
in compliance 	proceedings on 	the 	case 	in which 	such order
issued. 	Subsection 3542(d) 	sets 	forth 	the 	authority of 	the
Board 	to 	seek 	compliance 	with 	final 	orders.4 It 	would
3AS 	appears 	from the 	face 	of 	the 	charge 	in 	Case
No. 	SF-CE-461, 	the 	Federation 	initially alleged 	a violation of
subsection 3543.5(d) 	as well, 	but advanced no theory or
evidence 	in 	support 	of 	that 	allegation. 	The hearing officer
dismissed 	the 	charge 	in 	its 	entirety, 	without more 	specificity,
and 	the 	Federation 	failed 	to except 	to 	the 	dismissal 	of 	the
subsection 	(d) 	allegation. 	Thus, 	the dismissal as 	to that
allegation 	is 	not before 	us.
4Subsection 3542(d) 	provides 	as 	follows:
If 	the 	time 	to petition 	for 	extraordinary
relief 	from a 	board 	decision 	has 	expired,
the 	board 	may 	seek 	enforcement 	of 	any 	final
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constitute 	an 	undue 	burden 	upon 	PERB's 	resources 	to entertain 	a
new 	unfair 	practice charge 	upon 	the 	bare 	allegation 	that 	a
prior 	final 	order 	has 	not 	been complied 	with. 	We 	are 	unaware
of 	any 	case 	authority 	in 	the 	public or 	private 	sectors
supporting 	the 	proposition 	that 	a 	failure 	to comply with 	a
prior 	Board 	order 	constitutes 	a per - se 	separate, 	new violation
of 	statute. 	Unless 	it 	can 	be 	shown 	that 	an alleged 	failure 	to
comply was 	undertaken 	for 	discriminatory 	reasons 	or 	is 	in 	some
other 	manner 	part 	of 	a discrete 	course of violative conduct, 	we
see 	no reason 	to entertain 	such 	an 	allegation as 	a distinct
charge. 	Rather, 	such compliance 	failure 	can constitute only a
matter 	for 	compliance 	and 	enforcement 	proceedings 	in 	the
decision or 	order 	in 	a district 	court of
appeal or 	a 	superior 	court 	in 	the 	district
where 	the 	unit 	determination or 	unfair
practice 	case 	occurred. 	The 	board 	shall
respond within 	10 	days 	to 	any 	inquiry 	from 	a
party 	to 	the 	action 	as 	to 	why 	the 	board 	has
not 	sought 	court 	enforcement 	of 	the 	final
decision or 	order. 	If 	the response does not
indicate 	that 	there 	has 	been 	compliance 	with
the 	board's 	final decision or 	order, 	the
board 	shall 	seek 	enforcement 	of 	the 	final
decision or 	order 	upon 	the 	request of 	the
party. 	The 	board 	shall file 	in 	the court
the 	record of 	the 	proceeding, 	certified 	by
the 	board, 	and 	appropriate 	evidence
disclosing 	the 	failure 	to comply with 	the
decision or order. 	If, 	after 	hearing, 	the
court 	determines 	that 	the 	order 	was 	issued
pursuant 	to procedures 	established 	by 	the
board 	and 	that 	the 	person 	or 	entity refuses
to comply with 	the order, 	the court shall
enforce 	such order 	by writ of 	mandamus. 	The
court 	shall 	not 	review 	the merits 	of 	the
order.
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underlying 	case. 	Insofar 	as 	the 	Federation's 	charge 	in 	the
instant 	case 	alleges 	a discriminatory 	failure 	to comply, 	it 	is
discussed, 	infra.
The 	charge 	contains 	the 	allegation 	that 	the 	District
violated 	subsection 	3543.5(a) 	by 	postponing 	Fuller's 	sabbatical
" . . . 	because 	of 	his 	membership 	in 	and 	activities 	for 	and 	on
behalf 	of 	Charging 	Party." 	This 	amounts 	to 	an allegation 	that
the 	District 	discriminatorily 	took 	reprisals 	against 	Fuller.
In 	Novato Unified 	School District 	(4/30/82) 	PERB Decision
No. 	210, 	the Board 	set 	forth a test for 	such allegations.
Under 	the 	Novato 	test, 	a party alleging 	discrimination within
the meaning 	of 	subsection 3543.5(a) 	has 	the 	burden of making 	a
showing 	sufficient 	to 	support 	the 	inference 	that 	protected
conduct was 	a motivating 	factor 	in 	the 	employer's 	decision 	to
take 	adverse 	personnel 	action.
To 	justify 	such 	an 	inference, 	charging 	party must
demonstrate, 	initially, 	that 	the 	employer 	had 	knowledge of 	the
employee's protected activities. 	NLRB v. 	South 	Shore Hospital
(1st Cir. 	1978) 	571 F.2d 677 	[97 LRRM 3004]. 	The hearing
officer 	found, 	and we agree, 	that 	the 	Federation presented 	no
evidence 	that 	Fuller 	engaged 	in 	any protected 	activity other
than 	filing 	a 	grievance 	after 	the 	District's 	decision 	to
suspend 	him and 	postpone his 	sabbatical. 	He was 	not 	shown 	to
be 	a 	union activist, 	nor 	were 	any 	other 	facts presented which
would 	raise 	the 	inference 	that 	his 	protected conduct 	was 	a
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motivating 	factor 	in 	the 	District's 	decision 	to 	delay 	his
sabbatical. 	Thus, 	insofar 	as 	the 	Federation's 	subsection
3543.5(a) 	allegation 	in Case 	No. 	SF-CE-461 	is predicated 	upon a
discrimination 	theory, 	the 	Federation 	has 	failed 	to make 	a
prima 	facie 	case 	under 	Novato.
We 	thus 	affirm 	the 	results 	reached 	by 	the 	hearing 	officer
in Case 	Nos. 	SF-CE-448 	and 	SF-CE-461, 	for 	the 	reasons 	set 	forth
above.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	the 	Public 	Employment
Relations 	Board 	ORDERS 	as 	follows:
1) 	The 	request 	for 	attorney's 	fees 	in 	Case 	No. 	SF-CE-448
is 	hereby 	DENIED;
2) 	The 	hearing 	officer's 	decision 	and order 	with 	respect
to 	the allegations 	in Case 	No. 	SF-CE-448, 	not 	having 	been
excepted 	to, 	is 	final as 	to 	the 	parties.
3) 	The 	unfair 	practice 	charges 	in Case 	No. 	SF-CE-461 are
DISMISSED 	in 	their 	entirety.
Chairperson 	Gluck 	and Member 	Tovar 	joined 	in 	the 	Decision.
10

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
SAN 	FRANCISCO 	COMMUNITY COLLEGE
DISTRICT FEDERATION 	OF TEACHERS,
LOCAL 2121, CFT/AFT, AFL-CIO,
Charging 	Party,
v.
SAN 	FRANCISCO 	COMMUNITY
COLLEGE DISTRICT,
Respondent.
Unfair 	Practice
Cases Nos. 	SF-CE-448
SF-CE-461
PROPOSED 	DECISION
(10/16/81)
Appearances: 	Robert Bezemek 	(Bennett and Bezemek) 	and
Vincent A. 	Harrington, 	Jr. 	(Van Bourg, Allen, 	Weinberg & Roger)
attorneys 	for 	San 	Francisco 	Community College 	District 	Federation
of Teachers, Local 2121, 	CFT/AFT, AFL-CIO; 	Ronald Glick,
representative 	for 	San Francisco 	Community-College 	District.
Before: 	Fred D'Orazio, 	Hearing Officer.
PROCEDURAL 	HISTORY
Unfair Practice Charge No. 	SF-CE-448.
On March 	5, 	1980, 	the San Francisco Community College
District Federation of Teachers, 	Local 	2121, CFT/AFT, AFL-CIO
(hereafter 	charging party or 	Federation) 	filed 	an 	unfair
practice 	charge 	against 	the 	San 	Francisco Community College
District 	(hereafter 	District) 	alleging 	violations 	of 	sections
3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act 	(hereafter 	EERA or A c t ) . 1 The 	charge 	alleges 	that 	the
1The 	EERA 	is 	codified 	at Government 	Code, 	section 	3540
et 	seq. 	All 	references 	hereafter 	are 	to 	the Government Code
unless 	otherwise 	noted.
)
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===-=--=--=--_________ l
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District 	refused 	to process 	a grievance 	involving 	a 	suspension,
as provided 	for 	in 	the parties' 	collective 	bargaining
agreement. 	The 	charge 	further 	alleges 	that 	the 	District 	filed
an 	action 	in 	superior 	court 	seeking 	to 	enjoin 	the 	Federation
from proceeding 	under 	the 	contract 	and 	to 	have 	the 	contract
clauses 	requiring 	binding 	arbitration 	of 	suspensions 	declared
void.
An 	answer 	and 	a motion 	to 	dismiss 	were 	filed 	by 	the
District on March 	26, 	1980. 	The District 	denied 	the 	charges
and 	asserted 	by way of 	affirmative 	defense 	that 	the 	Education
Code 	governed 	the matter 	at 	issue. 	The motion 	to dismiss was
based on 	two grounds. 	First, 	the District contended 	that 	the
Federation 	had 	failed 	to 	exhaust 	the 	contractual 	grievance
procedure, 	and 	therefore 	no complaint 	should 	issue. 	Second,
the District 	argued 	that 	the 	exclusive 	procedure 	to 	resolve
such 	disputes 	is 	a motion 	to 	compel 	arbitration 	in 	the 	superior
court 	under 	section 	3548.7. 	These grounds will 	be 	considered
below.
After 	a settlement conference on April 	4, 	1980, 	the charge
was 	placed 	in 	abeyance 	pending 	the 	outcome 	of 	the District's
superior 	court 	action 	and 	a petition 	to 	compel 	arbitration
pursuant 	to 	section 	3548.7 	by 	the 	Federation.2
2The 	status 	of 	these 	respective 	actions 	is 	unclear 	from
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Unfair 	Practice Charge No. 	SF-CE-461.
On April 	28, 	1980 	the Federation 	filed 	another 	unfair
practice 	charge 	against 	the District 	alleging 	a 	violation 	of
sections 	3543.5(a), 	(c) 	and 	(d) 	of the Act. 	The charge alleges
that 	the District 	postponed 	the 	sabbatical 	leave of 	one
employee, 	thereby 	refusing 	to comply with 	the Board's order 	in
San Francisco Community College District 	(10/12/79) 	PERB
Decision No. 	105. 	That order 	directed 	the District 	to
reinstate 	sabbatical 	leaves 	that 	had 	been 	unilaterally 	frozen
by 	the 	employer. 	The 	charging 	party contends 	that 	the Board's
compliance 	procedure 	cannot 	provide 	an 	adequate 	remedy 	for 	the
increased 	hardship caused 	by 	the 	District's 	actions.
On May 12, 	1980, 	the District filed an answer, 	denying 	the
charges. 	A motion 	to dismiss 	was made 	on 	the 	same 	grounds 	as
raised 	in 	the motion to dismiss SF-CE-448, 	and, 	alternatively,
a motion 	to 	consolidate 	unfair 	practice 	charges 	SF-CE-448 	and
SF-CE-461 	was 	also 	filed.
An 	informal conference 	was 	held on May 	29, 	1980 	at 	which
the 	record. 	However, 	it 	appears 	that 	the District's complaint
for 	injunctive 	relief was 	denied, 	and 	the 	request 	for
declaratory 	relief 	taken 	under 	submission 	by 	the 	court. 	There
is 	no 	indication 	that any 	ruling was 	ever 	made. 	The
Federation's motion 	to 	compel 	arbitration 	was 	apparently
dismissed 	when 	the 	grievant 	won his 	appeal 	before 	the Office 	of
Administrative Hearings 	(OAH), 	a state agency. 	In any event,
the outcome 	of 	these court proceedings 	is 	irrelevant 	to 	the
resolution of 	the 	instant 	charges.
W
	3

the 	parties 	agreed 	to 	consolidate 	the 	charges 	and 	to 	hold 	both
in abeyance.
Both 	charges 	were 	eventually 	taken 	out of 	abeyance 	and 	set
for 	formal 	hearing pursuant 	to a 	request 	by 	the 	Federation. 	A
hearing 	on 	the 	consolidated 	charges 	was 	conducted 	on
January 	22, 	1981. 	The 	briefing 	schedule was completed on
March 	27, 	1981 and 	the 	case was 	submitted.
FINDINGS 	OF FACT
Unfair Practice Charge No. 	SF-CE-448.
The 	first 	collective 	bargaining 	agreement 	between 	the
District 	and 	the 	Federation was 	ratified 	in December 	1979. 	The
agreement was 	made 	retroactive 	to July 1, 	1978 	and 	remained 	in
effect 	through June 30, 	1981.
Two 	articles 	in 	the 	collective 	bargaining 	agreement 	are
relevant 	to 	the 	current 	unfair 	practice 	charge. 	Article 	10
provides:
No 	suspension 	or 	disciplinary 	action 	shall
take place 	except 	for 	just 	and 	sufficient
cause.
Article 	22 	sets 	out 	a detailed 	procedure 	to 	be 	followed 	for
processing 	grievances. 	The procedure has 	several 	steps, 	with
the 	last 	step 	being 	binding 	arbitration.3
3The 	arbitration 	section 	of 	the 	collective 	bargaining
agreement 	reads 	as 	follows:
Within 	fifteen 	(15) 	days after 	receipt of 	the
44

Under 	this procedure, 	a grievance 	is defined as 	follows;
A 	formal 	written 	allegation 	by 	a 	grievant
that 	the 	grievant 	has 	been 	adversely
affected 	by 	a violation of 	a 	specific
article, 	section or 	provision of 	this
agreement.
The procedure 	further 	states:
A grievance 	as 	defined 	by 	this 	Agreement
shall 	be 	brought only 	through 	this
procedure.
decision of 	the Chancellor, 	the Union may, 	upon
written notice 	to 	the Chancellor, 	submit 	the
grievance 	to arbitration 	under, 	and 	in
accordance with, 	the prevailing 	rules of 	the
American Arbitration Association. 	Upon mutual
agreement, 	the AAA rules 	governing 	expedited
arbitration may 	be 	utilized.
Power 	of 	the 	Arbitrator
It 	shall 	be 	the 	function of 	the 	arbitrator, 	and
he 	is 	empowered except 	as 	his 	powers 	are 	herein
limited, 	after 	investigation and hearings, 	to
make a decision 	in cases 	of 	alleged 	violation of
the 	specific 	articles 	and 	sections 	of 	this
Agreement.
The 	arbitrator 	shall 	have 	no power 	to:
Add to, 	subtract from, 	disregard, 	alter or
modify any of 	the 	terms 	of 	this Agreement;
Establish, 	alter, 	modify or 	change any
salary 	schedule 	or 	salary 	structure;
Rule 	on 	any of 	the 	following:
Any 	matter 	involving 	evaluation 	and
other 	than 	compliance 	with
procedures;
Termination of services of, 	or
55

On January 	22, 	1980, 	the District's governing 	board voted
to suspend George D. 	Fuller, 	a District employee, 	for 	one year
without 	pay. 	The 	reason 	for 	the 	suspension was Fuller's
allegedly 	improper 	use 	of 	leave. 	The 	operative date 	of 	the
suspension was 	postponed 	until September 	1, 	1980.
Fuller, 	being 	a member 	of 	the 	Federation and 	within 	the
bargaining 	unit, 	filed a grievance on January 	31, 	1980
complaining 	that 	his 	suspension 	was 	proposed 	without 	just 	and
sufficient cause. 	The 	grievance was 	filed 	under 	the 	terms 	of
the 	agreement 	described 	above.
On February 13, 	1980, 	the District 	filed 	a complaint 	for
injunctive 	and 	declaratory 	relief 	in 	the 	San 	Francisco 	Superior
Court 	against Fuller 	and 	the 	Federation, 	seeking 	to 	restrain
Fuller 	and 	all 	others 	from 	contesting 	his 	suspension 	through
failure 	to 	reemploy 	any
probationary, 	temporary or 	part-time
certificated 	employee.
Where 	any 	grievance 	is 	appealed 	to an 	arbitrator
on which he has 	no power 	to rule, 	it 	shall 	be
referred 	back 	to 	the 	parties 	without 	decision or
recommendation on 	its merits.
The 	decision 	of 	the 	arbitrator 	shall 	be 	final
and 	binding 	on 	all 	parties.
All 	fees 	and 	expenses 	of 	the 	arbitrator 	shall 	be
shared 	equally by 	the 	Board 	and 	the 	Union. 	All
other 	expenses 	shall 	be 	borne 	by 	the 	incurring
party, 	and, 	neither 	party shall 	be 	responsible
for 	the 	expense 	of 	any witness 	called 	by 	the
other.
66

the 	contractual 	grievance 	process 	and 	to 	have 	the 	collective
bargaining 	agreement 	declared 	null 	and 	void 	to 	the extent it
provided 	a procedure 	to grieve 	and 	arbitrate 	suspensions. 	The
basis 	of 	the 	District's 	complaint 	was 	that 	the 	statutory
procedures 	for 	suspensions 	(Ed. 	Code secs. 	87660-87684) 	preempt
the 	negotiated 	procedure.
On February 21, 	1980, 	Fuller 	again objected 	to the
District's 	decision 	to 	suspend 	him 	and 	demanded 	a 	hearing
pursuant 	to 	the 	statutory 	procedures.4 At 	this 	point
Fuller's 	grievance 	had 	proceeded 	through 	the 	two 	steps 	prior 	to
binding 	arbitration.
Pursuant 	to 	the 	negotiated 	grievance 	procedure 	the
Federation 	on March 	13 	demanded 	that 	the District 	submit
Fuller's 	grievance 	to arbitration. 	On March 	19 	the District
refused 	on 	the 	ground 	that Article 	10 	of 	the 	collective
bargaining 	agreement 	was 	null 	and 	void.
Subsequent to 	the District's 	refusal, 	by a letter 	dated
March 	21, 	Fuller 	offered 	to withdraw 	his 	request 	for 	a hearing
at 	the Office 	of Administrative 	Hearings 	on 	the 	condition 	that
the 	District 	agree 	to arbitrate 	the matter. 	The 	District 	again
refused.
4As 	is more 	fully discussed 	below, 	an employee has a
right 	under 	the Education Code 	to 	appeal 	a 	suspension 	through
arbitration 	or 	through 	a hearing 	conducted 	by 	the 	Office 	of
Administrative 	Hearings.
77

Because 	of 	the District's 	continued 	refusal 	to 	arbitrate
the 	suspension decision, 	a hearing was 	held on June 	10 	and 	11
before 	an 	administrative 	law 	judge 	of 	the 	Office 	of
Administrative 	Hearings.
The 	administrative 	law 	judge 	rendered 	a 	decision 	on 	July
17 	holding 	that 	no 	cause 	for 	disciplinary 	action 	against Fuller
existed 	under 	the 	relevant 	provisions 	of 	the Education Code.
The District did 	not 	appeal; 	Fuller's 	suspension was 	lifted.
Unfair 	Practice Charge No. 	SF-CE-461.
San Francisco Community College District, 	supra, 	PERB
Decision No. 	105 	involved 	a 	refusal 	to 	negotiate 	charge 	filed
by 	the 	Federation 	against 	the District. 	The 	essence of 	the
charge 	was 	that 	the 	District 	took 	certain 	unilateral 	actions 	on
negotiable 	terms 	and 	conditions of 	employment. 	One 	such 	action
involved 	the 	deferral of 	sabbatical 	leaves 	for 	several
employees. 	The Board 	held 	that 	the District's 	actions 	violated
the EERA. 	As part of 	the 	remedy, 	PERB ordered 	the District 	to:
. 	. 	. 	offer 	to employees whose sabbatical
leaves 	for 	1978-79 	were 	deferred 	the 	next
available 	opportunity 	to 	take 	sabbatical
leaves.
Fuller 	was 	one 	of 	about 	50 	certificated 	employees 	whose
scheduled 	sabbatical 	had 	been 	suspended 	by 	an 	emergency
resolution of 	the 	District 	governing 	board. 	Pursuant 	to 	the
PERB 	order 	all 	affected 	employees 	were 	scheduled 	for 	their
sabbaticals, 	Fuller's 	to 	begin 	at 	the 	start of 	the 	1980 	spring
semester.
8

During 	the 	time 	the Board was 	deciding Decision No. 	105,
an unrelated 	series of 	events occurred. 	On May 	18, 	1979,
Fuller 	received word 	that his 	father, 	who lived 	in Austria, 	was
ill 	and 	required 	hospitalization. 	Unable 	to obtain 	any
information 	about 	his 	father's 	illness, 	Fuller 	told 	the
chairman of 	his 	department 	that 	it 	was 	necessary 	for 	him 	to 	go
to Europe 	at once. 	The 	assistant dean of 	instruction 	told
Fuller 	that 	his 	leave would 	be 	classified 	as 	"care 	for 	a
relative," 	but 	instructed Fuller 	that, 	if he 	failed 	to obtain
the president's approval prior 	to 	leaving, 	his 	job would 	be 	in
jeopardy.
Fuller 	completed 	the 	necessary leave 	forms, 	but 	failed 	to
obtain 	the 	approval 	of 	the 	president 	prior 	to 	leaving 	on
June 2. 	Apparently, 	Fuller 	attempted, 	unsuccessfully, 	to reach
the 	president 	by 	telephone 	on one 	occasion.
Prior 	to 	leaving, 	Fuller 	arranged 	for 	a substitute 	to
cover 	his 	remaining 	classes 	and 	to 	administer 	and 	grade 	his
exams. 	Although Fuller 	made 	these 	arrangements, 	his 	few
remaining 	classes 	were 	cancelled. 	The 	final 	exam was
administered 	and 	graded 	by 	the 	substitute.
Fuller 	remained 	in Austria 	until July 	7. 	While he was 	in
Europe 	he 	did 	not 	contact 	the 	District 	regarding 	his 	leave.
Sometime 	during 	August 	the 	governing 	board 	requested
documentation of 	the 	reasons 	for 	Fuller's 	absence. 	By letter
dated August 	5, 	Fuller 	informed 	the 	governing 	board 	that 	his
9

father 	and 	stepmother 	had 	been 	involved 	in 	an 	automobile
accident 	and 	as 	a 	result 	had 	suddenly become 	seriously 	ill.
In 	November 	Fuller 	provided 	the 	governing 	board 	with
documents 	to substantiate 	his 	use 	of 	leave. 	Since 	the
documents were 	written 	in German, 	Chancellor 	Herbert Sussman
requested 	that 	Fuller 	appear 	before 	the 	governing 	board 	in
December, 	when 	the 	translation of 	the documents would 	be
available. 	On December 	14, 	Fuller 	informed 	the 	governing 	board
that 	he 	would 	not 	be 	able 	to 	appear 	at 	the meeting 	because 	of
other 	commitments.
The 	failure 	to 	appear 	was 	followed 	by 	a 	letter 	from
Chancellor 	Sussman on January 	8, 	1980 	notifying 	Fuller 	that 	his
scheduled 	sabbatical 	would 	be 	postponed 	pending 	clarification
of his 	earlier 	absence.
On January 	22 	the 	governing 	board 	voted 	to 	suspend
Fuller. 	The 	suspension was 	to be effective 	in September 	1980,
and 	Fuller's 	sabbatical postponed 	to 	the 	same 	date. 	This 	gave
Fuller 	the 	opportunity 	to 	appeal 	the 	suspension 	and 	possibly
resolve 	the 	matter 	before 	his 	sabbatical 	began.
This 	suspension 	resulted 	in 	the 	grievance 	and 	the
Education 	Code 	hearing 	described 	above. 	The ALJ 	rendered 	his
decision on July 17, 	1980 	and Fuller 	was 	granted a one 	year
sabbatical 	beginning 	September 	1980.
10

DISCUSSION 	AND 	CONCLUSIONS
Unfair 	Practice Charge No. 	SF-CE-448.
The Federation's position, 	as stated 	in its 	brief, 	is
essentially 	that 	the 	District 	unilaterally 	changed 	a 	term and
condition 	embodied 	in 	the 	collective 	bargaining 	agreement 	by
refusing 	to 	process 	Fuller's 	grievance 	through 	the 	negotiated
grievance 	procedure 	to 	binding 	arbitration, 	and 	by 	seeking 	a
court 	order 	preventing 	the 	charging 	party 	and 	others 	from
carrying 	grievances 	regarding 	suspensions 	through 	the
negotiated 	procedure 	to 	arbitration.
The 	District's 	basic position 	is 	that 	the 	contractual
grievance procedure, 	culminating 	in binding 	arbitration, 	cannot
be 	used 	to process 	a suspension grievance. 	The District 	stated
its position as 	follows:
The 	statutory procedure 	is 	the 	only
appropriate 	procedure 	whenever 	a 	governing
board 	of 	a 	community 	college 	district
seeks 	to 	impose 	penalties 	(suspension)
upon 	a 	certificated 	employee. 	(District's
brief, 	p. 	4.)
With 	respect 	to 	this position, 	the Federation argues 	that
the District, 	by agreeing 	to 	the contract, 	waived 	its right 	to
assert scope of bargaining as a defense, 	and, 	in any event, 	the
negotiated 	provisions 	at 	issue 	here 	are 	within 	the 	scope 	of
representation.5 The 	Federation 	also 	asserts 	in 	its 	brief
5Since 	the 	hearing 	officer 	has 	concluded 	that 	the
11

that 	the 	negotiated 	provisions 	at 	issue 	are 	not 	in conflict
with 	the 	Education 	Code.6
In resolving 	this 	charge, 	the 	District's obligation 	to
arbitrate will 	be discussed. 	Thereafter, 	the District's
supersession 	defense 	will 	be 	considered.
The District's 	Obligation 	to Arbitrate.
Article 	10 	provides 	that 	suspensions 	will 	not 	be 	imposed
except 	for 	"just 	and 	sufficient 	cause." 	The 	grievance
procedure, 	which culminates 	in binding arbitration, 	defines a
grievance 	as 	an 	allegation 	that 	an 	employee 	has 	been 	"adversely
affected 	by a violation of 	a 	specific article, 	section or
provision of 	this Agreement." 	Thus, 	it 	is clear 	that 	the
parties 	expressly 	agreed 	to 	arbitrate 	disputes 	concerning
suspension of 	employees, 	and 	the District 	has 	an obligation 	to
contractual provisions 	at 	issue 	here 	are 	not 	in conflict with
the Education Code, 	it 	is 	unnecessary 	to reach 	the 	question of
whether 	an employer 	violates 	the Act when 	it 	negotiates 	a
contract 	and 	later 	correctly 	asserts 	that 	all 	or 	part 	of 	the
agreement 	is 	superseded 	by 	the Education Code.
6The 	District 	has 	not 	argued 	that 	a 	grievance 	procedure
with 	binding 	arbitration 	and 	the 	clause 	covering 	suspensions 	do
not meet 	the 	test 	of 	negotiability 	as 	enunciated 	by 	the Board 	in
San Mateo City School District 	(5/20/80) 	PERB Decision No. 	129.
It 	argued 	only 	that 	these 	contractual 	provisions 	are 	superseded
by 	the Education Code. 	It 	is noted, 	however, 	that a grievance
procedure with 	binding 	arbitration 	is 	negotiable 	under 	the Act
(sections 3543.2, 	3543.5-3548.7), and Article 10 is also within
scope as 	suspensions 	relate 	to at 	least wages. 	See 	Healdsburg
Union High School District 	(6/19/80) 	PERB Decision No. 	132,
pp. 81, 125.
12

arbitrate 	Fuller's 	suspension 	grievance. 	Service Employees
International Union v. 	County of Napa 	(1979) 	99 	Cal.App.3d 	946
[160 Cal.Rptr. 	810]; 	Taylor v. Crane 	(1979) 	24 Cal.3d 442, 	450
[155 Cal.Rptr. 	695]. 	The District argues 	that 	the arbitration
of 	such 	matters 	is 	illegal 	because 	this 	subject 	is 	covered 	by
the Education Code, 	which 	supersedes 	negotiations 	under 	the
EERA. 	This 	argument 	is 	rejected. 	Questions 	regarding 	the
scope 	of 	coverage 	of 	the 	arbitration 	agreement 	are
appropriately 	resolved 	by 	the 	arbitrator, 	not 	unilaterally
determined 	by the employer. 	Taylor 	v. 	Crane, 	supra, 	24 Cal.3d
442, 	450; 	Fire Fighters Union v. 	City of Vallejo 	(1974) 	12
Cal.3d 608 	[116 Cal.Rptr. 	507; 	87 LRRM 2453]; Morris v.
Zukerman 	(1968) 	69 Cal.2d 686, 	690 	[72 Cal.Rptr. 	880]. 	In
fact, 	the parties have 	negotiated 	a provision giving 	the
arbitrator 	the 	authority 	to 	reject 	a 	grievance 	beyond 	the 	scope
of 	the 	contract. 	The contract provides 	that:
Where 	any 	grievance 	is 	appealed 	to 	an
arbitrator 	on which 	he 	has 	no power 	to
rule, 	it shall 	be 	referred 	back 	to the
parties 	without 	decision 	or 	recommendation
on 	its merits.
Thus, 	the 	agreement 	shows 	that 	the 	parties contemplated 	the
arbitrator, 	not 	the employer, 	making such decisions. 	If 	the
arbitrator 	exceeds his or 	her 	powers, 	the 	award may be vacated
pursuant 	to 	an 	appropriate 	statutory appeal procedure. 	See
Taylor v. Crane, 	supra, 	24 Cal.3d 442, 	452; 	Fire Fighters Union
v. 	City of Vallejo, 	supra, 	12 Cal.3d 608, 	615; 	(footnote 15,
infra).
13

This 	conclusion 	is 	consistent 	with 	public 	policy
considerations. 	Arbitration 	is 	a 	favored means 	of 	resolving
labor 	disputes 	in 	this 	state. 	It eases 	the 	burden on 	the
courts 	and 	resolves 	disputes 	quickly 	and 	inexpensively. 	See
Taylor v. Crane, 	supra, 	24 Cal.3d 442, 	452; 	Fire Fighters Union
v. 	City of Vallejo, 	supra, 	12 Cal.3d 608, 	622 	[116 Cal.Rptr.
507, 526].
Thus, 	it 	is 	concluded 	that 	the District expressly agreed
to 	arbitrate 	suspension 	grievances. 	By 	refusing 	to arbitrate
Fuller's 	grievance, 	it 	unlawfully reneged 	on 	a 	negotiated 	term
and 	condition 	of 	a 	collective 	bargaining 	agreement.
In an earlier 	motion 	to dismiss, 	the District 	argued 	that
PERB has 	no 	jurisdiction 	to hear 	this 	case. 	The 	issues
presented 	here, 	according 	to 	the 	District, 	should 	be 	litigated
by a motion 	to compel 	arbitration 	under 	section 	3548.7. 	It 	is
recognized 	that 	when one 	of 	the 	parties 	to 	a contract which
contains 	an 	arbitration clause 	refuses 	to 	arbitrate 	on 	the
ground 	that 	the 	particular 	dispute 	is 	beyond 	the 	agreement, 	the
determination of 	that 	issue 	is 	usually referred 	to a 	court.
See Code of Civil Procedure, 	section 1281.2; 	Steelworkers v.
Warrior 	and Gulf Co. 	(1960) 	363 U.S. 	574 	[46 LRRM 2416]. 	In
fact, 	section 	3548.7 of 	the EERA provides 	that 	either 	party may
seek 	a 	petition 	to compel 	arbitration 	under 	Code 	of 	Civil
Procedure, 	section 1280. 	However, 	the EERA does not establish
the 	section 	3548.7 	remedy 	as 	the 	exclusive procedure 	in 	such
matters. 	A union 	is 	free 	to 	seek 	to enforce 	arbitration
14

clauses 	in 	existing 	collective 	bargaining 	agreements 	via 	the
unfair 	practice 	procedures 	under 	a 	refusal 	to 	bargain 	theory.
This 	approach 	seems 	especially 	appropriate 	here. 	The 	charge
does 	not 	involve 	the 	interpretation of 	the 	agreement. 	Rather,
the 	charge 	involves 	an 	attempt 	by 	the 	District 	to 	unilaterally
alter 	a clear 	contractual obligation 	to arbitrate, 	as well 	as
Education Code 	supersession 	questions 	under 	section 	3540. 	Such
matters 	are 	appropriately 	brought 	before 	the 	expert 	agency
established 	to administer 	the Act. 	This 	is 	consistent with
NLRB precedent, 	which 	holds 	that 	an 	employer 	violates 	the 	NLRA
when 	it 	unilaterally modifies 	a 	contract or 	otherwise
repudiates 	its 	contractual 	undertakings 	before 	the 	term of 	the
contract 	has 	expired. 	The 	fact 	that 	the 	action 	constitutes 	a
breach 	of 	contract 	for 	which 	the 	injured 	party may 	have 	another
remedy, 	such 	as a 	suit under 	section 301 of 	the LMRA, 	does 	not
displace 	the 	authority of 	the 	NLRB 	to 	remedy 	the 	unfair 	labor
practice. 	Rego Park Nursing Home 	(1977) 	230 NLRB 	725 	[96 LRRM
1185]; 	See also NLRB v. 	Independent Stove Co. 	(CA 8 1979) 	591
F.2d 443 	[100 LRRM 2644] 	cert. 	den. 	444 U.S. 	829 	[102 LRRM
2360] .
The 	District's 	Supersession 	Defense.
Section 	3540 	of 	the Act 	states 	in 	relevant 	part:
Nothing 	contained 	herein 	shall 	be 	deemed
to 	supersede 	other 	provisions 	of 	the
Education Code 	and 	the 	rules 	and
regulations 	of 	public 	school 	employers
which 	establish 	and 	regulate 	tenure 	or 	a
15

merit or 	civil 	service 	system or 	which
provide 	for 	other 	methods 	of 	administering
employer-employee 	relations, 	so long 	as
the 	rules 	and 	regulations 	or 	other 	methods
of 	the public 	school 	employer 	do 	not
conflict 	with 	lawful 	collective 	agreements.
One 	PERB member 	has 	interpreted 	this 	so-called 	supersession
language 	as 	follows:
. 	. 	. 	[d]oes supersession occur where 	the
negotiated 	provision 	is 	permitted 	by 	the
Education Code, 	even 	though 	that
provision's 	terms 	may 	vary 	from 	those 	of
the 	Code? 	Where 	the Code 	sets 	forth 	wage,
hour 	or working conditions matters, 	but
neither 	explicitly, 	nor 	by 	inference,
precludes a negotiated variance, 	would
section 	3540 	be 	violated? 	We 	hold 	that 	it
would 	not 	be. 	The distinction 	lies
between 	a 	statutory 	provision 	which
mandates 	a specific 	and 	an 	unalterable
policy 	and 	one 	which 	authorizes 	certain
policy 	but 	falls 	short 	of 	being 	absolutely
obligatory. 	As we 	read 	section 	3540,
those proposals, 	which otherwise meet our
test 	of 	negotiability 	are 	within 	scope,
unless 	a 	conflicting 	Education Code
provision 	precludes 	variance 	from 	its
terms. 	(Jefferson School District
(6/19/80) 	PERB Decision No. 	133, 	p. 	8.)
On 	this point, 	another 	PERB member 	stated:
I 	therefore conclude 	that, 	where 	a
provision of 	the Education Code 	impels 	the
public 	school 	employer 	to 	take 	certain
action or 	where 	the 	statutory language
evidences 	an 	intent 	to 	set 	an 	inflexible
standard or 	to 	insure 	immutable
provisions, 	the parties are prohibited
from negotiating 	a 	provision 	which
directly conflicts 	with 	the 	imperative
portions of 	the Education Code. 	Id., 	p.
68.
When 	faced 	with 	a 	similar 	supersession 	issue 	involving
-
16

arbitration 	under 	a city 	charter, 	the California 	Supreme Court
stated:
. 	. 	. 	[u]nless the charter expressly
prohibits 	the 	city 	from 	agreeing 	to
arbitrate 	whether 	Crane's 	conduct was
sufficient cause 	for 	his discharge, 	the
city retains 	the 	power 	to do 	so. 	(Taylor
v. 	Crane 	(1979) 	24 Cal.3d 442, 	451 	[155
Cal.Rptr. 	695].)
It 	is 	these 	principles which must 	be 	applied 	to 	the 	relevant
Education Code 	provisions 	and 	negotiated 	clauses 	in 	the 	instant
case 	to determine 	if 	the 	provisions 	of 	the 	collective
bargaining 	agreement 	between 	the 	Federation 	and 	the 	District
are lawful, 	as 	the Federation contends, 	or 	null and void, 	as
the District 	argues.
The 	statutory scheme 	set 	forth 	in 	the Education Code, 	in 	a
general 	sense, 	governs 	the 	suspensions 	of 	employees.7 Within
this 	statutory 	scheme, 	there may 	be 	areas 	which 	are mandatorily
7Education Code 	section 	87600 	states:
The 	provisions 	of 	this 	article 	govern 	the
employment of 	persons 	by 	a district 	to
serve 	in 	positions 	for 	which 	certification
qualifications 	are 	required 	and 	establish
certain 	rights 	for 	such 	employees. 	Other
provisions 	of 	the 	law which 	govern 	the
employment 	of persons 	in positions
requiring 	certification 	qualifications 	by
a 	community 	college 	district 	or 	establish
rights 	and 	responsibilities 	for 	such
persons 	shall 	be 	applied 	to persons
employed 	by community college 	districts 	in
a 	manner 	consistent 	with 	the 	provisions 	of
this article.
17

exempted 	from 	the 	bargaining 	process 	by 	the 	language 	of 	the
Education Code 	itself. 	On the 	other 	hand, 	there may 	be many
areas 	within 	this 	general 	scheme 	which 	are 	clearly within 	the
scope of 	representation. 	But, 	a subject 	is not rendered
non-negotiable 	simply 	because 	it 	is 	covered 	by 	the Education
Code. 	On the 	contrary, 	it promotes 	sound 	employer-employee
relations 	when 	statutory 	rights 	are 	incorporated 	in 	an
agreement.
. 	. 	. 	[i]ncorporating a statutory mandate
in 	the 	agreement, 	assuming 	the 	subject
matter 	is or 	relates 	to a subject
specified 	in 	section 3543.2, 	certainly
does 	not 	constitute 	supersession 	of 	that
statute 	whether 	it 	is 	the Education Code
or 	any other 	statute. 	On 	the 	other 	hand,
there 	is 	a clearly 	recognizable 	value 	to
the 	"improvement 	of 	personnel management
and 	employer-employee 	relations" 	in
permitting 	inclusion 	of 	such 	matters
within 	the 	negotiated 	contract. 	Employees
are 	entitled 	to 	know 	the 	rules,
regulations, 	and policies which govern
their 	employment 	rights 	and 	obligations.
Employer-employee 	relations 	are 	inherently
improved 	when 	the 	respective 	parties 	are
well 	informed 	as 	to 	their 	mutual 	rights
and obligations. 	There 	can 	be 	little
doubt 	that 	employees will 	be more 	easily
and 	fully 	informed 	when 	pertinent 	matters
are 	to 	be 	found 	in a 	single 	document 	such
as 	a collective 	agreement 	rather 	than 	in 	a
plethora 	of 	statutory provisions 	which 	are
not 	readily accessible 	to 	them.
Certainly, 	the 	inclusion of 	such
provisions 	in 	the 	agreement 	cannot 	be 	seen
as 	an 	interference 	with 	management's
necessary 	freedom 	to 	direct 	the
enterprise. 	The 	employer's 	obligation 	to
adhere 	to 	statutory requirements 	is 	not
magnified 	by 	their 	inclusion 	in a
negotiated 	agreement. 	(Jefferson 	School
District, supra, pp.9-10.)
18

Each 	individual 	Education Code 	provision placed 	in 	issue 	by 	the
District's 	refusal 	to 	arbitrate 	must 	therefore 	be 	carefully
examined.
An 	employee 	faced 	with 	a 	suspension 	has 	two 	statutory
remedies. 	He or 	she 	can 	seek a 	hearing 	either 	before 	the
Office of Administrative 	Hearings8 or 	before 	an
arbitrator.9 Although 	the 	contract provides 	for 	binding
arbitration of 	suspension grievances, 	it does not, 	on 	its 	face,
preclude 	an 	employee 	from electing 	to 	have 	a hearing 	at 	OAH 	in
lieu of 	arbitration. 	In 	fact, 	Fuller 	appealed his suspension to
OAH without objection 	from the Federation. 	Thus, 	to 	the 	extent
that 	the 	collective 	bargaining 	agreement 	here 	incorporates 	the
substantive 	right of 	arbitration, 	while 	not precluding 	election
of 	the alternative 	remedy, 	it 	is consistent with 	the Education
8Education Code, 	sections 87678, 	87679.
9Education Code 	section 	87674 	states:
Within 	30 days 	of 	the 	receipt 	by 	the
district 	governing 	board 	of 	the 	employee's
demand 	for 	a hearing, 	the 	employee 	and 	the
governing 	board 	shall 	agree 	upon 	an
arbitrator 	to 	hear 	the matter. 	When 	there
is agreement as 	to 	the 	arbitrator, 	the
employee 	and 	the 	governing 	board 	shall
enter 	into 	the 	records 	of 	the 	governing
board 	written 	confirmation 	of 	the
agreement 	signed 	by 	the 	employee 	and 	an
authorized 	representative 	of 	the 	governing
board. 	Upon 	entry of 	such 	confirmation,
the 	arbitrator 	shall 	assume 	complete 	and
sole 	jurisdiction 	over 	the 	matter.
19

Code. 	And, 	since 	the 	Education Code 	does 	not 	expressly
preclude 	the 	parties 	from 	incorporating 	this 	right 	into 	an
agreement, 	the 	parties 	were 	free 	to do 	so. 	Jefferson 	School
District, 	supra, 	PERB Decision No. 	133.
The 	District's 	brief 	conveniently 	glosses 	over 	this
point. 	It 	focuses 	instead 	on 	alleged 	procedural 	and 	other
assorted 	conflicts 	between 	the 	Education 	Code 	and 	the 	agreement
while 	losing 	sight, 	indeed 	denying, 	the 	statutory 	right 	to
arbitrate 	which 	had 	already 	been 	negotiated 	into 	the 	contract.
Each 	of 	the 	District's 	arguments 	along 	this 	line 	will 	be
considered 	in 	the 	order 	raised 	in 	its 	brief.
First, 	the 	District 	asserts 	that 	the 	statutory 	scheme
provides 	for 	"exclusive" 	and 	"mandatory" 	grounds 	for
dismissal.10 It 	further 	asserts 	that 	penalties 	are 	expressly
10Education 	Code 	section 	87732 	states:
No 	regular 	employee 	shall 	be 	dismissed
except 	for 	one 	or 	more 	of 	the 	following
causes:
(a) 	Immoral or 	unprofessional 	conduct.
(b) 	Commission, 	aiding, 	or 	advocating
the 	commission 	of 	acts 	of 	criminal
syndicalism, 	as 	prohibited 	by 	Chapter 	1 8 8 ,
Statutes 	of 	1919, 	or 	in 	any 	amendment
thereof.
(c) 	Dishonesty.
(d) 	Incompetency.
(e) 	Evident 	unfitness 	for 	service.
(f) 	Physical 	or 	mental 	condition
unfitting 	him 	to 	instruct 	or 	associate
with 	children.
(g) 	Persistent 	violation 	of 	or 	refusal
20

defined 	in 	the 	C o d e . 1 1 According 	to 	the 	District, 	these
sections 	conflict 	with 	and 	thus 	supersede 	the 	agreement. 	This
argument 	is 	not 	persuasive.
Granted, 	Education 	Code 	section 	87732 	states 	in 	mandatory
language 	that 	"no 	regular 	employee 	shall 	be 	dismissed 	except
for 	one 	or 	more" 	of 	the 	enumerated 	causes. 	This 	language makes
clear 	that 	no 	other 	grounds 	may 	be 	used 	to discipline 	an
employee. 	But 	this 	section, 	on 	its 	face, 	is not necessarily
inconsistent 	with 	Article 	10 	of 	the 	contract, 	which 	permits
to 	obey 	the 	school 	laws 	of 	the 	state 	or
reasonable 	regulations 	prescribed 	for 	the
government 	of 	the 	public 	schools 	by 	the
board 	of 	governors 	or 	by 	the 	governing
board 	of 	the 	community 	college 	district
employing 	him.
(h) 	Conviction 	of 	a 	felony or 	of 	any
crime 	involving 	moral 	turpitude.
(i) 	Conduct 	specified 	in 	Section 	1028
of 	the 	Government Code, 	added 	by 	Chapter
1418 	of 	the 	Statutes 	of 	1947.
(j) 	Violation of 	any provision 	in
Sections 	7000 	to 	7007, 	inclusive.
(k) 	Knowing 	membership 	by 	the 	employee
in 	the 	Communist 	Party.
The 	statutory 	grounds 	for 	imposing 	penalties 	are 	the 	same
as 	those 	for 	dismissals.
1 1 Education 	Code 	section 	87668 	states:
A 	governing 	board 	may 	impose 	one 	of 	the
following 	penalties:
(a) 	Suspension 	for 	up 	to one 	year.
(b) 	Suspension 	for 	up 	to 	one 	year 	and 	a
reduction 	or 	loss 	of 	compensation 	during
the 	period 	of 	suspension.
21

discipline 	for 	"just 	and 	sufficient 	cause." 	The 	contract 	does
not 	define 	"just 	and 	sufficient 	cause," 	nor 	does 	it provide 	for
reasons 	beyond 	those cited 	in 	section 	87732. 	Given 	the
mandatory language 	in section 87721, 	it 	is clear 	that 	the
contractual 	standard 	of 	"just 	and 	sufficient 	cause" 	must 	be
defined 	by 	the 	limits 	found 	in 	that 	section of 	the Education
Code. 	See Healdsburg Union High School District, 	supra, 	PERB
Decision No. 	132, 	p. 	88. 	The District certainly has every
right 	to argue 	this 	before an arbitrator, 	and 	it 	seems 	unlikely
that 	the 	Federation 	would 	argue 	in 	favor 	of 	expanding 	the 	list
of 	grounds 	of 	potential 	discipline 	already 	found 	in 	section
87732. 	If 	the Federation 	sought 	to redefine or 	limit 	these
grounds, 	the District could offer 	argument 	in opposition 	to
this attempt. 	However, 	there has 	been no attempt by 	the
Federation 	to do 	so, 	and 	there 	is 	no 	indication 	that 	this
clause 	will 	be 	interpreted 	by 	an 	arbitrator 	inconsistent with
the Education Code. 	In any event, 	the 	interpretation of 	this
clause 	should 	be 	left 	to 	the 	arbitrator, 	since 	that 	is what 	the
parties 	bargained 	for, 	subject 	to 	appropriate 	judicial 	review.
See Taylor v. 	Crane, 	supra, 	24 Cal.3d 442, 	450; 	Fire Fighters
Union v. 	City of Vallejo, 	supra, 	(1974) 	12 Cal.3d 608.
Additionally, 	the District's 	argument 	that Education Code
section 	87668 	conflicts with Article 	10 	is equally without
merit. 	That 	section provides 	that 	the 	governing 	board 	may
impose one of 	two specific penalties. 	(See 	footnote 	10,
22

ante.) 	The 	language of 	the Code 	does 	not 	expressly 	require 	the
District 	to 	impose 	a penalty, 	nor 	does 	it 	expressly prevent 	the
District 	from 	imposing 	a 	lesser 	penalty 	than 	the 	one-year
suspension it 	proposed 	for 	Fuller. 	In 	fact, 	Fuller's
grievance argued 	for no penalty, 	or, 	alternatively, 	for 	a
lesser 	penalty than 	the one-year 	suspension. 	Thus, 	it 	is
difficult 	to 	see 	how 	section 	87668, 	which 	provides 	for 	specific
penalties, 	conflicts with Article 	10, 	which provides only a
just 	cause 	standard.
Second, 	to 	support 	its 	argument 	that 	the 	statutory 	scheme
totally preempts 	negotiations 	in 	this 	area, 	the District points
to Education Code 	sections 	87672 	and 	87673 	which 	deal with
notice 	of 	proposed 	action 	to 	an 	employee 	and 	the 	employee's
obligation 	to 	respond.12 Once 	again, 	after 	closely 	reading
12Education Code, 	sections 	87672 	and 	87673 	state:
87672.
If 	a governing 	board 	decides 	it 	intends 	to
dismiss or 	penalize 	a contract or 	regular
employee, 	it shall deliver 	a written
statement, 	duly signed 	and verified, 	to 	the
employee 	setting 	forth 	the 	complete 	and
precise 	decision 	of 	the 	governing 	board
and 	the 	reasons 	therefor.
The 	written 	statement 	shall 	be 	delivered
by 	serving 	it 	personally on 	the 	employee
or 	by mailing 	it 	by United 	States
registered mail 	to 	the 	employee 	at 	his
address 	last 	known 	to 	the district.
A 	governing 	board 	may 	postpone 	the
operative date 	of 	a decision 	to dismiss 	or
23

these 	sections 	and 	comparing 	them with 	the 	contract, 	one 	is
hard 	pressed 	to 	see 	a conflict 	between 	the 	negotiated
provisions 	and 	the Education Code. 	Specifically, 	Education
Code 	section 	87672 	provides 	that 	the 	District 	give 	an 	employee
timely 	notice 	of 	dismissal 	or 	other 	penalty. 	The 	agreement
says 	nothing 	about 	the 	District's 	obligation 	in 	this 	regard 	and
there 	is 	no 	evidence 	that 	the 	Federation has 	ever 	interpreted
the 	agreement 	in 	a manner 	which 	would 	conflict 	with 	the
District's obligation under 	this 	section. 	Therefore, 	aside
from 	the 	fact 	that 	there 	is 	no conflict, 	its 	relevance 	to 	this
proceeding 	escapes 	the 	hearing 	officer.
Education 	Code 	section 	87673 	covers 	the 	employee's
obligation 	to 	timely 	respond 	to a 	notice 	of 	disciplinary
action. 	It says, 	in mandatory terms, 	that an objecting
employee 	shall 	notify 	the 	employer 	of 	his 	objection. 	The Code
impose 	penalties 	for 	a period 	not 	to
exceed one year, 	subject 	to 	the 	employee's
satisfying 	his 	legal 	responsibilities 	as
determined 	by 	statute 	and 	rules 	and
regulations 	of 	the 	district. 	At 	the 	end of
this period of probation, 	the decision
shall 	be made 	operative 	or 	permanently 	set
aside 	by 	the 	governing 	board.
87673.
If 	the 	employee objects 	to 	the 	decision of
the 	governing 	board or 	the 	reasons 	therefor
on 	any ground, 	he 	shall 	notify 	in writing
the 	governing 	board, 	the 	superintendent of
the 	district which 	employs him, 	and 	the
president of 	the 	college 	at 	which he
serves of 	his 	objection within 	30 	days of
the 	date of 	the 	service of 	the 	notice.
24

does 	not 	say how 	the 	employee 	is 	to object, 	except 	that 	the
objection must 	be 	in writing 	and 	filed within 	thirty 	(30) 	days
of 	service. 	Therefore, 	the District 	is 	free 	to negotiate a
procedure 	for 	employee 	response 	within 	these 	statutory
requirements. 	Under 	the 	contract 	an objection 	is 	delivered 	in
the 	form of a grievance. 	Pursuant 	to 	the 	terms of 	the
grievance 	procedure, 	the 	employee must orally 	inform 	the
employer 	of 	his 	dissatisfaction within 	twenty 	(20) 	days 	and 	a
written communication, 	in 	the 	form of a grievance, 	would be
forthcoming 	no 	later 	than 	forty 	(40) 	days 	from the 	date 	of
service, 	or 	sooner 	if 	the 	employee waived 	the oral 	step of 	the
procedure, 	as Fuller 	did 	here. 	Since 	the Education Code
mandates 	a written 	response within 	thirty 	(30) 	days, 	there may
exist, 	in some circumstances, 	a slight conflict between the
statutory 	obligation 	to 	object 	timely 	and 	the 	contractual
obligation 	to 	timely 	respond 	via 	the 	grievance 	procedure.
However, 	this 	is 	not to 	say 	that a conflict would 	exist 	in
every 	instance. 	If 	the objecting 	employee 	elects 	not 	to
utilize 	the 	full 	time periods 	under 	the 	grievance procedure, 	or
elects 	to waive 	the 	informal 	step, 	the written grievance may
very well 	be 	filed within 	thirty 	(30) 	days 	from service 	and 	the
Education Code 	provision 	thus 	satisfied. 	If 	the 	employee 	fails
to object 	in writing within 	thirty days, 	the District 	is 	free
to raise 	this matter 	at 	that 	time. 	Thus, 	the question of
whether 	the 	Education Code 	conflicts 	with 	the 	agreement on 	this
25

point can only 	be 	determined on a 	case-by-case 	approach. 	Here,
for 	example, 	Fuller 	received 	his 	notice 	of proposed 	suspension
on or 	about January 	22, 	1980, 	and he 	filed his written
grievance on or 	about January 28, 	1980, 	informing 	the District
of 	his 	objection. 	This was 	consistent with 	the 	requirements 	of
the 	Code 	and 	the 	contract.
Therefore, 	it 	is concluded 	that, 	while the possibility
exists 	that 	the 	contract 	could 	be 	applied 	in a manner
inconsistent 	with 	the Education Code, 	the 	negotiated 	language
by no means 	establishes 	that 	this will 	occur 	in 	all
situations. 	Where 	the contract 	is 	followed 	in a manner
inconsistent with 	the mandatory directive 	in 	the Education
Code, 	the District 	is 	free 	to raise 	a timeliness objection. 	In
the 	situation presented 	here, 	however, 	the 	agreement has 	been
applied 	in 	a manner 	consistent with 	the Education Code. 	The
District 	cannot 	be 	permitted 	to 	raise 	a 	speculative 	procedural
conflict 	as 	grounds 	for 	denying 	the 	substantive 	right 	to
arbitration.
Third, 	the 	District 	argues 	that 	there 	are 	differences
between 	the 	Education Code 	and 	the 	agreement 	regarding 	review
of 	the 	arbitrator's 	award. 	Specifically, 	the 	District 	contends
that,
The 	Education Code 	does 	provide
arbitration, 	but, 	such arbitration is not
final 	and 	binding 	as 	contemplated 	and
mandated 	by 	the 	negotiated 	agreement.
(District Brief, p. 	3, 	emphasis in
original.)
26

The 	District 	apparently 	bases 	this 	argument 	on Education Code
section 	87682, 	which provides 	for 	independent 	review of 	the
arbitrator's 	decision 	by 	a 	court 	of 	competent
jurisdiction.13 This 	argument 	is 	not 	persuasive.
The 	relevant 	statutory 	language 	does 	not 	require 	judicial
review of 	all 	arbitration 	awards. 	The Education Code 	only
gives 	the 	parties 	the option 	of 	seeking 	judicial 	review. 	Thus,
the 	District 	is 	free 	to 	agree 	not 	to 	seek 	judicial 	review and
be 	bound 	by an arbitrator's 	award, 	thus waiving 	its option. 	It
is 	also 	free 	to enter 	into 	an 	agreement 	retaining 	the 	option.
Since 	the 	contract 	is 	silent 	on 	this 	point,14 the 	District
13Education Code 	section 	87682 	states:
The 	decision 	of 	the 	arbitrator 	or 	hearing
officer, 	as the case may be, may, on
petition 	of 	either 	the 	governing 	board 	or
the 	employee, 	be reviewed 	by a court of
competent 	jurisdiction 	in 	the 	same 	manner
as 	a decision made 	by a hearing officer
under 	Chapter 	5 	(commencing 	with 	Section
11500) 	of Part 1 of Division 	3 of Title 	2
of 	the Government Code. 	The court, 	on
review, 	shall 	exercise 	its 	independent
judgment on 	the 	evidence. 	The 	proceeding
shall 	be 	set 	for 	hearing 	at 	the 	earliest
possible 	date 	and 	shall 	take 	precedence
over 	all other 	cases, 	except older 	matters
given 	by law.
14The 	contract 	provides 	only 	that 	the 	arbitration 	will
be 	conducted 	in accordance 	with 	the 	rules 	of 	the American
Arbitration Association 	(AAA), 	and 	the District has 	introduced
no 	evidence 	that 	these 	rules 	conflict 	with 	the 	Education Code
with 	respect 	to 	the 	scope 	of 	review of 	the 	arbitrator's 	award.
The 	hearing 	officer 	finds 	it 	highly 	unlikely 	that 	the AAA would
27

has 	apparently 	retained 	the 	option 	of 	seeking 	judicial 	review
of 	an 	arbitrator's 	award.15 Such 	an 	agreement 	is 	within 	the
District's 	authority 	and 	is 	not 	expressly 	precluded 	by 	the
Education Code. 	Thus, 	it 	is concluded 	that 	the contractual
provisions 	providing 	for 	final 	and 	binding 	arbitration 	of
suspensions 	does 	not 	conflict 	with 	the Education Code
provisions 	regarding 	judicial 	review.
Similarly, 	there 	is 	no apparent 	conflict 	between 	the
contract 	and 	the Education Code 	on 	the 	scope 	of 	review
question. 	Even 	if 	a question 	arose 	as 	to 	the 	appropriate 	scope
of 	judicial 	review 	at 	some 	later 	date 	the District would 	be
free 	to assert 	its 	argument 	at 	that 	time. 	It 	is premature 	at
best 	to 	assert 	this 	argument 	at 	such 	an 	early 	stage of 	the
grievance 	procedure.16
promulgate 	rules 	which 	attempt 	to 	dictate 	the 	scope 	of 	judicial
review 	to 	state 	courts.
15Although 	not directly 	in 	issue 	here, 	it 	is 	noted 	that
the 	Education Code 	mandates 	the 	independent 	judgment 	scope 	of
review on such cases 	(see 	fn. 	12). 	The 	District would 	thus 	be
on 	solid 	ground 	in 	later 	arguing 	for 	this 	standard 	as 	opposed
to 	the 	standard 	found 	in Title 	9, 	Part Three, 	Code of Civil
Procedure, 	section 	1280 	et 	seq. 	Although 	the 	standards 	for
vacating 	an 	arbitrator's 	award 	generally 	applied 	under 	the 	EERA
are 	those 	found 	in 	the Code 	of 	Civil 	Procedure 	(see 	sec.
3548.7), 	under 	the circumstances presented here, 	the standard
of 	review 	incorporated 	by 	reference 	into 	section 	3548.7 	is
superseded 	by 	the 	standard 	of 	review 	set 	forth 	in 	the Education
Code.
16In this 	connection, 	as 	part 	of 	its 	argument, 	the
District 	states 	that 	it 	considers 	the Education Code 	scope 	of
28

Fourth, 	the District 	correctly 	argues 	that 	the Education
Code 	provides 	that 	the 	District 	shall 	pay 	the 	costs 	of 	the
arbitration, 	while 	the 	agreement calls 	for 	"shared 	costs 	of 	the
arbitrator.17 As 	I 	understand 	the 	District's 	argument,
sharing 	arbitration 	costs 	conflicts 	with 	the 	Education Code,
and 	this 	is 	further 	evidence 	of preemption.
The 	express 	language 	of 	the Education Code 	does 	require
payment 	by 	the District. 	Thus, 	to 	the 	extent 	that 	the 	District
wants 	to 	invoke 	this 	Education Code 	provision 	and 	pay 	for 	the
entire costs 	of 	the 	arbitration, 	it could do so, 	probably with
little or 	no objection by 	the Federation. 	But 	this, 	in 	itself,
judicial 	review 	a 	greater 	benefit 	to 	the 	employee 	than 	that
provided 	for 	in 	the 	agreement 	and 	a 	right 	not 	provided 	for 	in
the 	contract. 	But 	the 	fact 	that 	the 	right 	to 	judicial 	review
is 	not provided 	for 	in 	the 	contract does 	not mean 	that 	that
right 	does 	not 	exist. 	Parties 	do not 	waive 	statutory rights 	by
not 	including 	them 	in collective 	bargaining 	agreements. 	Also,
the 	fact 	that 	the 	District 	considers 	this 	a greater 	benefit 	is
irrelevant 	to 	these proceedings. 	It 	is 	not 	for 	the District 	to
make 	determinations 	as 	to whether 	a particular 	statutory
provision 	is or 	is 	not of 	benefit 	to 	employees 	in a 	collective
bargaining context. 	It 	is 	the 	prerogative 	of 	the 	exclusive
representative 	to make 	such 	determinations, 	subject 	to
challenge 	by employees 	in 	a duty of 	fair 	representation 	charge.
17Education Code 	section 	87677 	states:
The 	district 	alone 	shall 	pay 	the 	fees 	of
the arbitrator, 	his expenses, 	and such
expenses 	as he 	shall 	determine 	are 	a cost
of 	the proceedings. 	The 	"cost of 	the
proceedings" 	does 	not 	include 	any expenses
paid 	by 	the 	employee 	for 	his 	counsel,
witnesses, 	or 	the preparation or
presentation 	of 	evidence 	on 	his 	behalf.
29

is 	not 	reason 	to 	deny 	arbitration 	under 	the 	negotiated
provision.
Fifth, 	the 	District points 	out 	that 	the Education Code
mandatorily 	sets 	forth 	the 	procedures 	under 	which 	the
arbitration 	proceeding 	shall 	be 	conducted,18 while 	the
18Education 	Code 	section 	87675 	states:
The 	arbitrator 	shall 	conduct 	proceedings
in 	accordance 	with 	the 	provisions 	of
Chapter 	5 	(commencing 	with 	Section 	11500)
of Part 1, 	Division 3, 	Title 2, 	of 	the
Government Code 	except 	that 	the 	right 	of
discovery of 	the 	parties 	shall 	not 	be
limited 	to 	those matters 	set 	forth 	in
Section 	11507.6 	of 	the 	Government 	Code 	but
shall 	include 	the 	rights 	and 	duties 	of 	any
party 	in 	a civil 	action 	brought 	in 	a
superior 	court. 	In all cases, 	discovery
shall 	be 	completed 	prior 	to one 	week
before 	the 	date 	set 	for 	hearing. 	He 	shall
determine 	whether 	there 	is 	cause 	to
dismiss or 	penalize 	the 	employee. 	If 	he
finds cause, 	he shall determine whether
the 	employee 	shall 	be dismissed 	and
determine 	the 	precise 	penalty 	to 	be
imposed, 	and 	he 	shall 	determine 	whether
this 	decision 	should 	be 	imposed
immediately 	or 	postponed 	pursuant 	to
Section 87672.
No witness 	shall 	be 	permitted 	to 	testify
at 	the 	hearing 	except 	upon oath or
affirmation. 	No 	testimony 	shall 	be 	given
or 	evidence 	introduced 	relating 	to matters
which 	occurred 	more 	than 	four 	years 	prior
to 	the 	date 	of 	the 	filing 	of 	the 	notice.
Evidence 	of 	records 	regularly 	kept 	by 	the
governing 	board 	concerning 	the 	employee
may be 	introduced, 	but no decision
relating 	to 	the 	dismissal 	or 	suspension 	of
any 	employee 	shall 	be 	made 	based 	on
30

agreement 	provides 	for 	the 	grievance 	being 	submitted 	to
arbitration 	in 	accordance 	with 	the 	rules 	of 	the American
Arbitration 	Association.
The 	District's 	argument 	on 	this 	point 	is 	two-fold. 	It
first 	argues 	that 	the Education Code 	provides 	a 	method 	for
selecting 	an 	arbitrator 	which 	conflicts 	with 	the 	contract.
Education Code 	section 	87674 	states 	that:
. . . 	an 	employee 	and 	the 	governing 	board
shall 	agree 	on 	an 	arbitrator 	to 	hear 	the
matter.
The Code 	does 	not 	say how 	this 	agreement 	is 	to 	be 	accomplished,
nor 	does 	it 	expressly 	say 	that 	the District 	is 	not 	free 	to
agree 	to 	select 	an 	arbitrator 	with 	the 	employee's
representative, 	in 	this case 	the Federation, 	rather 	than 	the
employee himself. 	Thus, 	it 	is concluded 	that 	the parties'
agreement 	to 	select 	an arbitrator 	under 	the 	rules 	of 	the AAA
does 	not 	conflict 	with 	the 	Education Code.
The District 	next 	argues 	that 	there 	are 	conflicts 	between
the 	agreement 	and 	the Education Code 	with 	respect 	to 	the
procedure 	to 	be 	utilized 	in 	the 	hearing. 	Granted, 	the express
language 	of 	the Education Code 	mandates 	the 	exclusive 	procedure
for 	the arbitration, 	and 	the 	rules of 	the AAA, 	to 	the extent
charges 	or 	evidence 	of 	any 	nature 	relating
to matters 	occurring more 	than 	four 	years
prior 	to 	the 	filing 	of 	the 	notice.
31

they 	conflict 	with 	the 	Code, 	are 	superseded.19 However,
since 	the District 	did 	not 	introduce 	into 	evidence 	the 	rules 	of
the AAA, 	it 	is 	impossible 	to determine 	the precise extent, 	if
any, 	of 	the 	conflict. 	To 	the 	extent 	such 	a procedural conflict
exists, 	the 	District 	is 	certainly 	free 	to raise 	such 	a conflict
at 	the 	arbitration 	hearing. 	But 	speculative disputes 	as 	to how
the 	hearing 	is 	to 	be conducted 	as 	a procedural matter 	do not
authorize 	the District 	to 	refuse 	arbitration outright. 	In 	the
absence 	of 	concrete 	evidence 	as 	to 	the 	extent 	of 	the 	conflict,
or 	of 	any actual prejudice 	arising 	in 	this 	case, 	such matters
are 	appropriately presented 	to 	the 	arbitrator 	for 	decision
subject 	to 	judicial 	review. 	See Fire Fighters Union 	v. 	City of
Vallejo, 	supra, 	12 Cal.3d 608.
Sixth, 	the District argues 	that, 	pursuant 	to the Code of
Civil 	Procedure,20 it had 	no obligation 	to 	arbitrate 	because
19It 	is noted, 	however, 	that 	it 	is 	unlikely that 	the
rules 	of 	the AAA differ 	in 	substantial 	respect 	to 	the Education
Code 	requirements. 	It seems more 	likely 	that 	the 	rules of 	the
AAA would 	provide 	for 	conducting 	a 	hearing 	under 	the 	same 	basic
structure 	as 	that 	contemplated 	by 	the Education Code, 	i.e.,
calling of witnesses, 	introduction of documents, 	etc.
20Code 	of Civil 	Procedure, 	section 	1281.2 	states:
On 	the petition of 	a party 	to an
arbitration 	agreement 	alleging 	the
existence 	of 	a written 	agreement 	to
arbitrate 	a controversy and 	that 	a party
thereto 	refuses 	to 	arbitrate 	such
controversy, 	the court 	shall order 	the
petitioner 	and 	the 	respondent 	to 	arbitrate
32

Fuller 	elected 	to 	have 	a 	hearing 	at 	the 	OAH, 	thereby waiving
his 	right 	to 	arbitration. 	It 	is 	true 	that 	Fuller 	proceeded
through 	the OAH procedure. 	However, 	shortly after 	he 	requested
a 	hearing 	at 	OAH 	he 	asked 	the 	District 	to 	arbitrate 	his 	case
and 	offered 	to 	withdraw 	the 	OAH 	request. 	The 	District
refused. 	While 	the 	Education 	Code 	may 	be 	interpreted 	to mean
that 	an 	employee 	is 	entitled 	to 	either 	an 	OAH 	hearing 	or_ 	an
-
arbitration 	hearing, 	the 	hearing 	officer 	is 	aware 	of 	no 	legal
authority 	which 	would 	prevent 	an 	employee 	from 	changing 	his
mind 	as 	to 	this 	election, 	provided 	he 	does 	so prior 	to 	the 	time
either 	of 	these 	proceedings 	take 	place. 	It was 	only after 	the
District 	refused 	to 	arbitrate 	under 	the 	agreement 	that 	he
proceeded 	with 	the 	hearing 	at 	OAH 	in 	an 	apparent 	attempt 	to
secure 	some 	forum 	to 	air 	his 	dispute. 	The 	District 	cannot 	now
argue 	that Fuller's 	election, 	made 	after 	it 	refused 	arbitration
the 	controversy 	if 	it 	determines 	that 	an
agreement 	to 	arbitrate 	the 	controversy
exists, 	unless 	it determines 	that:
(a) 	The 	right 	to compel 	arbitration 	has
been waived 	by 	the 	petitioner; 	or
(b) 	Grounds 	exist 	for 	the 	revocation 	of
the 	agreement.
(c) 	A party 	to 	the 	arbitration 	agreement
is 	also 	a 	party 	to 	pending 	court 	action 	or
special 	proceeding 	with 	a 	third 	party,
arising 	out 	of 	the 	same 	transaction or
series 	of 	related 	transactions 	and 	there
is 	a 	possibility 	of 	conflicting 	rules 	on 	a
common 	issue 	of 	law 	or 	fact.
33

and 	under 	at least 	arguably coercive 	conditions, 	constitutes 	a
waiver 	of 	the 	right 	to arbitrate.
Seventh, 	the District 	argues 	that 	an 	employee may not
waive 	the 	benefits 	provided 	by Education 	Code 	sections
87000-87864.21 According 	to 	the District, 	since 	the 	contract
denies Fuller 	certain statutory benefits, 	it 	is 	tantamount 	to a
waiver 	and 	therefore 	invalid. 	This 	argument 	need 	not 	even 	be
addressed. 	As has 	been determined 	above, 	the 	contract 	is 	not
in 	conflict with 	the Education Code. 	Fuller 	has 	not 	been
denied 	benefits, 	and 	there 	has 	been no waiver.
In 	sum, 	the contractual provisions 	at 	issue 	here present
several 	issues 	as 	they 	relate 	to 	the Education Code 	and 	section
3540 of 	the EERA. 	As has 	been 	found, 	many of 	the 	contractual
provisions 	are 	not 	superseded 	by 	the Education Code. 	Only 	two,
the 	negotiated 	procedures 	under 	which 	arbitration 	hearings 	are
to 	be 	conducted 	and 	the 	time 	an 	employee 	has 	to object 	to 	the
District's 	decision 	to 	suspend, 	may 	arguably conflict with 	the
Education Code. 	It 	is 	not 	uncommon 	for 	negotiated 	clauses 	to
be 	legal 	in part 	and 	superseded 	in part 	by 	the Education Code.
21Education 	Code 	section 	87485 	states:
Except 	as provided 	in Section 87744, 	any
contract or 	agreement, 	express or 	implied,
made 	by 	any 	employee 	to waive 	the 	benefits
of 	this 	chapter 	or 	any part 	thereof 	is
null 	and 	void.
34

See Jefferson School District, 	supra 	(6/19/80) 	PERB Decision
No. 	133; 	Healdsburg Union High School District, 	supra 	(6/19/80)
PERB Decision No. 	132.
To 	the 	extent 	the District 	refused 	to 	arbitrate 	Fuller's
suspension 	grievance 	and 	honor 	those 	provisions 	which 	have 	not
been 	found 	to 	be 	in conflict with 	the Education Code, 	it
breached 	its 	obligation 	to 	negotiate 	in 	good 	faith 	in 	violation
of 	section 3543.5(c). 	This conduct also constitutes concurrent
violations of sections 	3543.5 (a) 	and 	(b). 	San Francisco
Community College District, 	supra, 	PERB Decision No. 	105,
pp. 18-19.
Unfair 	Practice Charge No. 	SF-CE-461.
The 	thrust of 	this 	unfair 	practice 	charge 	is 	that 	the
District, 	by delaying Fuller's 	sabbatical, 	refused 	to comply
with 	the 	Board's 	order 	in 	San Francisco Community College
District, 	supra, 	PERB Decision No. 	105, 	thus denying Fuller 	and
the 	Federation 	rights 	guaranteed 	by 	the 	Act.22 The
District's 	position 	is 	that 	it 	has 	fully 	complied 	with 	the
Board's order. 	The 	District 	asserts 	that 	Fuller's 	sabbatical
was 	delayed 	due 	to 	potential 	disciplinary 	action 	stemming 	from
the 	earlier 	leave 	incident 	and 	related 	scheduling 	problems
22It is 	noted 	that 	the 	parties 	settled 	all 	outstanding
disputes 	involving 	compliance 	with 	the Board's 	order 	in PERB
Decision No. 	105 	during 	the 	informal 	stage 	of 	the 	compliance
procedures 	before a PERB hearing officer. 	Thus, 	the delay 	in
implementing 	Fuller's 	sabbatical 	is 	considered 	here 	strictly 	in
the 	context 	of 	an 	unfair 	practice 	charge.
35

presented 	by 	the 	uncertainty 	of 	Fuller's 	employment 	status.
The 	sabbatical was 	granted 	immediately upon 	the 	OAH 	ruling 	in
Puller's 	favor.
Since 	the 	District 	has 	complied 	with 	the 	order 	in 	PERB
Decision No. 	105, 	the 	issue does not 	involve compliance.
Rather, 	it 	involves 	the 	separate question of whether 	the delay
in 	implementing 	the 	order 	was 	a distinct violation of 	the Act.
Thus, 	to resolve 	this unfair 	practice charge, 	it must be
determined 	if 	the 	delay 	in granting 	Fuller's 	sabbatical 	was
justified. 	For 	the 	following 	reasons, 	it 	is concluded 	that 	the
District, 	by postponing Fuller's 	sabbatical, 	did not violate
either 	Fuller's 	rights or 	the 	Federation's 	rights 	under 	the Act,'
Fuller's 	sabbatical 	was 	postponed 	because 	of 	the 	pending
disciplinary 	action 	stemming 	from his 	use 	of 	leave 	during 	the
previous 	year. 	This 	action was 	completely 	unrelated 	to PERB
Decision No. 	105, 	although Fuller 	was 	scheduled 	to begin his
sabbatical 	at 	about 	the 	same 	time 	as 	the District was 	preparing
to 	suspend 	him.
At 	that particular 	time, 	January 1980, 	the District had
several options. 	It could have 	done 	nothing. 	Another 	option
was 	to discharge Fuller. 	If 	this occurred, 	it 	is 	arguable 	that
Fuller's 	sabbatical would 	have 	had 	to 	be 	cancelled, 	since 	the
Education Code 	requires 	an 	employee 	to 	serve 	at 	least 	twice 	the
length of 	the 	sabbatical after 	it 	is over 	(Ed. 	Code, 	sec.
87770). 	Yet another 	option was 	to suspend Fuller, 	effective
36

immediately 	(Ed. 	Code, 	sec. 	87735). 	By deciding to suspend
Fuller, 	rather 	than discharge him, 	the District avoided 	the
post-sabbatical 	issue. 	Further, 	by postponing 	the 	suspension,
the 	District 	gave 	Fuller 	the 	opportunity 	to 	resolve 	the matter
through 	the 	hearing 	process 	before 	the 	fall 	semester. 	Fuller
prevailed 	in 	the 	hearing 	and 	the 	District did 	not 	appeal. 	It
immediately 	implemented 	the 	sabbatical 	leave 	effective
September 	1980. 	While one may 	reasonably disagree 	with 	the
District's 	decision 	to 	suspend 	Fuller 	and 	with 	the 	choice 	of
discipline, 	it cannot be concluded 	that, 	by postponing 	the
sabbatical pending 	the outcome 	of 	the 	proposed 	suspension, 	the
District 	acted 	improperly. 	This 	is 	especially 	so 	in 	light of
the 	fact 	that 	the 	proposed 	suspension was 	based 	on 	an 	unrelated
series of events which began long 	before October 	12, 	1979, 	the
date of 	the Board's order 	in PERB Decision No. 	105. 	The
governing 	board's 	decision 	to 	suspend 	was 	obviously made 	prior
to Fuller's 	grievance 	and 	several 	months 	after 	the Board's
order. 	Thus, 	there can 	be no 	unlawful motive 	inferred 	from the
timing of 	these 	events. 	Also, 	this 	is 	a 	stipulated 	record 	and
there 	is 	no 	evidence 	that 	Fuller 	engaged 	in 	any other 	protected
activity, 	or 	that 	the District 	engaged 	in 	any other 	conduct
from which 	an 	unlawful motive 	can 	be 	inferred. 	In order 	to
find 	a violation here, 	one must conclude 	that postponing 	the
implementation of 	a PERB order 	is 	a per 	se 	violation of 	the
Act. 	Under 	the circumstances presented here, 	the hearing
officer 	declines 	to do so.
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Additionally, 	it 	is 	noted 	that 	the District has 	apparently
complied with 	the 	order 	in PERB Decision No. 	105 	in 	all other
respects. 	Fuller's 	sabbatical was 	only one 	of 	several 	similar
cases, 	all 	of which were 	apparently resolved during 	the
compliance 	proceeding.
Based 	on 	the 	foregoing, 	it 	is 	concluded 	that Fuller's
sabbatical was delayed 	for 	a legitimate 	reason, 	and 	the 	record
does 	not 	lend 	itself 	to 	an 	inference 	of 	unlawful motive.
Therefore, 	it 	is concluded 	that 	there has 	been no violation and
Unfair 	Practice Charge No. 	SF-CE-461 	is dismissed.
REMEDY
Under Government Code 	section 3541.5(c) 	PERB 	is 	given:
. 	. 	. 	the power 	to issue a decision and
order 	directing 	an 	offending 	party 	to 	cease
and 	desist 	from 	the 	unfair 	practice 	and 	to
take 	such 	affirmative 	action, 	including 	but
not 	limited 	to 	the 	reinstatement 	of
employees with or 	without 	back pay, 	as will
effectuate 	the policies of 	this 	chapter.
With respect 	to Unfair Practice Charge No. 	448, 	it has
been 	found 	that 	the 	District 	refused 	to process 	a grievance 	to
arbitration 	under 	the 	terms 	of 	a 	collective 	bargaining
agreement. 	In doing 	so, 	the 	District 	unilaterally refused 	to
recognize 	valid 	provisions 	in 	the 	negotiated 	agreement, 	thus
changing 	that agreement 	in violation of 	sections 	3543.5(a), 	(b)
and 	(c). 	It 	is appropriate 	to order 	the District 	to cease and
desist 	from all 	such 	activities 	in 	the 	future, 	and 	to 	recognize
38

and 	honor 	the 	terms 	of 	the 	negotiated 	agreement 	in 	accordance
with 	this 	proposed 	decision.
Fuller's 	suspension 	grievance 	has 	been 	presented 	to 	an 	OAH
administrative 	law judge, 	who overruled 	the 	suspension. 	Since
the District has 	not appealed 	that decision, 	it 	is 	unnecessary
to 	order 	any 	affirmative 	remedy 	with 	respect 	to 	Fuller's
individual grievance. 	Therefore, 	an order 	to arbitrate
Fuller's 	grievance 	will 	not 	be 	a part of 	this 	remedy.
It 	is 	also appropriate 	that 	the 	District 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	the 	order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District
indicating 	that 	it will 	comply with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such 	a notice
will 	provide 	employees with 	notice 	that 	the District 	has 	acted
in 	an 	unlawful manner 	and 	is 	being 	required 	to cease 	and desist
from 	this 	activity. 	It 	effectuates 	the purposes 	of 	the EERA
that 	employees 	be 	informed 	of 	the 	resolution of 	the 	controversy
and 	will 	announce 	the District's 	readiness 	to comply with 	the
ordered 	remedy. 	See 	Placerville Union School District
(9/18/78) 	PERB Decision No. 	69. 	In Pandol and Sons v. ALRB and
UFW 	(1979) 	98 Cal.App.3d 580, 	587, 	the California District
Court 	of Appeal 	approved 	a posting 	requirement. 	The U.S.
Supreme 	Court 	approved 	a 	similar 	posting 	requirement 	in 	NLRB 	v.
Express Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].
The Federation's request 	for 	attorneys' 	fees 	is denied.
39

The 	District's 	arguments 	were 	not 	frivolous, 	but 	rather 	were 	at
least 	"debatable." 	See D 	& H Manufacturing Co. 	(1978) 	239
NLRB 	51 	[99 	LRRM 1 6 2 4 ] .
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law 	and 	the 	entire 	record 	in 	the 	case, 	Unfair 	Practice
Charge 	No. 	SF-CE-461 	is 	hereby DISMISSED.
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to 	section
3 5 4 1 . 5 ( c ) , 	it 	is 	hereby ordered 	that 	the 	SAN FRANCISCO COMMUNITY
COLLEGE 	DISTRICT, 	its 	governing 	board 	and 	its 	representatives
in 	Unfair 	Practice 	Charge 	No. 	SF-CE-448 	have violated 	Government
Code 	sections 	3543.5 (a), 	(b) 	and 	(c) 	and 	shall:
1. 	CEASE 	AND 	DESIST FROM:
(a) 	Refusing 	to 	negotiate 	in 	good 	faith 	with 	the
exclusive 	representative, 	San 	Francisco 	Community 	College
Federation of Teachers, 	Local 	2121, 	CFT/AFT, AFL-CIO, 	under 	the
Educational 	Employment 	Relations 	Act 	by 	unilaterally 	declaring
lawfully 	negotiated 	provisions 	of 	a 	collective 	bargaining
agreement 	null 	and 	void 	and 	refusing 	to 	process 	grievances 	of
bargaining 	unit 	members, 	represented 	by 	the 	exclusive
representative, 	under 	those 	provisions.
(b) 	Interfering 	with 	employee 	rights 	under 	the
Educational 	Employment 	Relations 	Act 	by 	unilaterally 	declaring 	null
and 	void 	lawfully 	negotiated 	provisions 	of 	a 	collective
40

bargaining 	agreement 	with 	the 	exclusive 	representative, 	San
Francisco 	Community 	College 	District 	Federation 	of 	Teachers,
Local 	2121, 	CFT/AFT, AFL-CIO, 	and 	refusing 	to process
grievances 	of 	bargaining 	unit 	members, 	represented 	by 	the
exclusive 	representative, 	under 	those 	provisions.
(c) 	Interfering 	with 	employee 	organization 	rights
under 	the 	Educational 	Employment 	Relations 	Act 	by 	unilaterally
declaring 	null 	and 	void 	lawfully 	negotiated 	provisions 	of 	a
collective 	bargaining 	agreement 	negotiated 	with 	the 	exclusive
representative, 	San 	Francisco 	Community 	College 	Federation 	of
Teachers, 	Local 	2121, 	CFT/AFT, AFL-CIO, 	and refusing 	to process
grievances 	of 	bargaining 	unit members, 	represented 	by 	the
exclusive 	representative, 	under 	those 	provisions.
2. 	TAKE THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT.
(a) 	Within 	five 	(5) 	workdays 	after 	this 	decision
becomes 	final, 	prepare 	and 	post 	copies 	of 	the 	NOTICE 	TO
EMPLOYEES 	attached 	as 	an 	appendix 	hereto, 	for 	at 	least 	thirty
(30) 	workdays 	at 	its 	headquarters 	offices 	and 	in conspicuous
places 	at 	the 	location 	where 	notices 	to 	certificated 	employees
are 	customarily 	posted. 	It must 	not 	be 	reduced 	in 	size 	and
reasonable 	steps 	should 	be 	taken 	to 	see 	that 	it 	is 	not 	defaced,
altered 	or 	covered 	by 	any material.
(b) 	Within 	twenty 	(20) 	workdays 	from 	service 	of 	the
final 	decision 	herein, 	give 	written 	notification 	to 	the
41

San 	Francisco 	Regional 	Director 	of 	the 	Public Employment
Relations Board, 	of 	the 	actions 	taken 	to comply with 	this
Order. 	Continue 	to report 	in writing 	to 	the Regional 	Director
thereafter 	as 	directed. 	All 	reports 	to 	the 	Regional Director
shall 	be 	concurrently 	served 	on 	the 	charging 	party 	herein.
Pursuant 	to California Administrative Code, 	title 	8, 	part
III, 	section 	32305, 	this Proposed Decision and Order 	shall
become 	final on November 	5, 	1981, 	unless 	a party files 	a 	timely
statement of 	exceptions. 	See California Administrative Code
title 8, 	part 	III, 	section 32300. 	Such 	statement of exceptions
and 	supporting 	brief 	must 	be 	actually 	received 	by 	the 	executive
assistant 	to 	the 	Board 	at 	the 	headquarters 	office 	of 	the 	Public
Employment 	Relations Board 	in Sacramento 	before 	the 	close 	of
business 	(5:00 p.m.) 	on November 	5, 	1981, 	in order 	to be 	timely
filed. 	See California Administrative Code, 	title 	8, 	part III,
section 	32135. 	Any 	statement 	of 	exceptions 	and 	supporting
brief 	must 	be 	served 	concurrently 	with 	its 	filing 	upon 	each
party 	to 	this 	proceeding. 	Proof of 	service 	shall 	be 	filed with
the Board 	itself. 	See California Administrative Code, 	title 	8,
part 	III, 	sections 	32300 	and 	32305 	as 	amended.
Dated: 	October 	16, 	1981
FRED 	D'ORAZIO
Hearing 	Officer
42