Conejo Valley Unified School District (PERB 0376E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER #620,
Charging 	Party,
v.
CONEJO VALLEY 	UNIFIED SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-1691
PERB 	Decision No. 	376
February 	7 	1984
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Appearances: 	Patricia L. 	Roy, 	Field Representative 	for
California School Employees Association 	and 	its 	Chapter 	#620;
Bruce A. 	Barsook, Attorney 	(Liebert, 	Cassidy & Frierson) 	for
Conejo Valley Unified 	School 	District.
Before Tovar, 	Jaeger 	and Morgenstern, Members.
DECISION
TOVAR, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB or Board) 	on appeal 	by 	the California
School Employees Association 	and 	its Chapter 	#620 	(CSEA) 	from
the 	determination 	of 	a PERB 	regional 	attorney 	that 	its 	charge
should 	be 	dismissed. 	The 	regional 	attorney 	refused 	to 	issue 	a
complaint 	and 	dismissed 	the 	charge 	on 	the 	grounds 	that PERB
must 	defer 	its 	jurisdiction over 	this 	labor 	relations 	dispute
in 	favor 	of 	the 	binding 	arbitration 	procedure 	prescribed 	by 	the
parties' 	collectively 	negotiated 	agreement. 	For 	the 	reasons
which 	follow, 	we 	affirm 	the 	dismissal of 	the 	charge.

PROCEDURAL 	HISTORY
On November 	26, 	1982, 	CSEA 	filed 	the 	instant 	charge which
alleged 	that 	the 	Conejo Valley 	Unified 	School 	District
(District) 	had 	committed 	an 	unfair 	practice 	in 	violation 	of
subsections 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment 	Relations 	Act 	(EERA).1 The 	factual 	allegations
supporting 	the 	charge 	were 	that 	the 	District 	had 	implemented 	a
reduction 	in 	the 	hours 	of 	instructional aides 	and 	a 	layoff 	of 	a
senior 	clerk 	typist 	without 	first 	giving 	CSEA 	an 	opportunity 	to
negotiate 	either 	the 	reduction 	in hours 	or 	the 	effects 	of 	the
decision 	to 	lay off.
On February 28, 	1983, 	the District submitted 	a response 	to
the 	charge. 	It 	urged 	that 	the matter 	be 	deferred 	to 	the
grievance procedure of the parties' 	contract, 	which culminates
in binding 	arbitration, 	on 	the grounds 	that 	the 	issues 	raised
by 	the 	charge 	were 	covered 	by 	the 	contract.
The 	contract 	upon which 	the 	regional 	attorney 	based 	his
determination 	included 	the 	following 	pertinent 	provisions:
ARTICLE 	17
LAYOFF 	AND 	REEMPLOYMENT
17.1 	To 	the 	extent 	found 	to 	be 	within 	the
scope 	of 	negotiation 	by 	final 	court
judgment, 	the 	following 	shall 	apply:
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	herein 	are 	to 	the Government
Code 	unless 	otherwise 	specified.
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Section 	17.1.1
Reason 	for 	Layoff: 	Layoff 	shall occur 	only
to 	the 	extent 	authorized 	by 	law.
•
Section 	17.1.3
Reduction 	in Hours: 	To 	the 	extent 	required
by law, 	permanent 	reduction 	in 	regularly
assigned 	time 	shall 	be 	considered 	a 	layoff
under 	the 	provisions 	of 	this Article.
Section 	17.1.13
During 	the 	term hereof, 	the District 	shall
implement 	any 	layoffs 	consistent 	with 	the
provision 	of 	this Article.
In 	addition, 	contract 	subsections 	17.1.2 	and 	17.1.4-.13 set
forth detailed provisions 	on 	layoff procedures, 	including
notice, 	order of layoff, 	bumping 	rights, 	reemployment 	rights
and 	voluntary demotion 	or 	reduction 	in hours 	in 	lieu 	of 	layoff.
The 	grievance 	provision 	of 	the 	contract 	sets 	forth 	a
four-step procedure, 	the 	last 	step of which provides 	for
binding arbitration, 	as 	follows:
ARTICLE 	20
GRIEVANCES
20.7 	Level Four
20.7.1 	If 	the 	Union 	believes 	that
there has 	been 	error 	on 	the 	part of 	the
Superintendent or his/her 	designee, 	it
may, 	by written notice 	to 	the
Superintendent 	within 	fifteen 	(15)
calendar 	days, 	refer 	the grievance 	to
3
• 	• 	• 	• 	• 	• 	• 	• 	•
3
• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	•

arbitration. 	If 	any question 	arises 	as
to 	the 	Arbitrability 	of 	the grievance,
such questions will, 	prior 	to the
consideration of 	the 	issue, 	be 	ruled
upon 	by 	the 	same 	arbitrator 	after 	such
hearing 	and 	evidence 	as may 	in his/her
judgment 	be 	required 	. . . . 	The
decision of 	the 	arbitrator 	will 	be
. 	. 	. 	final and binding upon the
parties 	to 	this Agreement.
DISCUSSION
Subsection 	3541.5(a)(2) 	of 	the EERA provides 	that 	the Board
shall not:
. 	. 	. 	issue 	a complaint against conduct also
prohibited 	by 	the 	provisions 	of 	the
agreement 	between 	the 	parties 	until 	the
grievance machinery of 	the 	agreement, 	if 	it
exists 	and 	covers 	the matter 	at 	issue, 	has
been 	exhausted, 	either 	by 	settlement or
binding 	arbitration.
In 	the 	instant 	case, 	the 	regional 	attorney 	relied on 	the
Board's 	decision 	in Dry Creek 	Joint 	Elementary School 	District
(7/21/80) 	PERB Order No. 	Ad-81a, 	in which 	the Board 	concluded
that 	subsection 	3541.5(a)(2) 	essentially 	codifies 	the 	doctrine
of 	deferral which 	was 	developed 	by 	the National Labor 	Relations
Board 	(NLRB) 	in Collyer 	Insulated Wire 	(1971) 	192 NLRB 	837 	[77
LRRM 1931]. 	In that case, 	the NLRB stated 	that 	it would defer
to 	arbitration 	the 	resolution 	of 	refusal-to-bargain 	charges
where: 	(1) 	the 	dispute 	arises within a stable collective
bargaining 	relationship 	and 	there 	is 	no 	enmity 	by 	the
respondent 	toward 	the charging party; 	(2) 	the 	respondent 	is
ready 	and 	willing 	to 	proceed 	to 	arbitration 	and 	to 	waive
contract-based 	procedural defenses; 	and 	(3) 	the contract 	and
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its meaning 	lie 	at 	the center 	of 	the dispute. 	Finding 	that
each of 	these conditions was 	met 	in the 	instant case, 	the
regional 	attorney dismissed 	the 	charge.
On appeal, 	CSEA does not dispute 	the applicability of
Collyer, 	supra, 	as appropriate guidance 	in the interpretation
of subsection 3541.5(a)(2), 	nor does 	it contest the regional
attorney's 	finding 	that 	the 	first 	two conditions 	set 	forth 	in
that case are met 	in the 	instant case. 	Rather, 	its objection
goes 	to 	the regional 	attorney's 	finding 	that 	the 	contract and
its meaning 	lie at 	the 	center of 	the dispute.
In Collyer, 	the NLRB offered 	language 	to explain 	the 	stated
condition 	that 	the 	contract 	and 	its 	meaning must 	lie at 	the
center 	of 	the dispute. 	It 	stated 	that a charge of 	unlawful
unilateral 	change 	is 	appropriately deferred 	to arbitration
where:
the unilateral action taken . 	. 	. 	is not
patently 	erroneous but rather 	is based on a
substantial 	claim of 	contractual privilege,
and 	it 	appears 	that 	the 	arbitral
interpretation of 	the 	contract will 	resolve
both 	the 	unfair 	labor practice 	issue 	and 	the
contract 	interpretation 	issue 	in 	a manner
compatible with 	the purposes 	of 	the
Act, 	. 	. 	. 	(Emphasis added.)
In Roy Robinson Chevrolet 	(1977) 	228 NLRB 828 	[94 LRRM
1474], 	the NLRB again considered the matter 	of deferral 	to
arbitration. 	In that case, 	the employer 	auto dealer 	closed 	its
body shop and discharged 	its 	employees 	without 	first bargaining
with the employees' 	union. 	When the union 	filed a 	failure-to-
un	
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bargain 	charge 	with 	the NLRB, 	the 	respondent 	employer 	argued
that 	the parties' contract 	authorized 	it 	to so act, 	and 	that,
if 	the 	union disagreed 	with 	that 	reading of 	the 	contract, 	the
dispute 	should 	be 	submitted 	to 	the 	binding 	arbitration
procedure 	provided 	by 	their 	contract. 	The 	employer's 	contract
defense 	was 	based 	on 	a provision 	stating 	that 	the 	"employer
shall 	have 	the 	exclusive 	right 	to hire, 	suspend 	and 	discharge
his employees."
The NLRB 	found 	that 	a 	legitimate 	issue 	of 	contract
interpretation 	was 	presented 	as 	to whether 	the 	contract 	gave
the 	employer 	the 	right 	to 	unilaterally 	terminate 	his 	employees
for 	the 	reason here 	given. 	Resolution of 	this 	contract 	issue,
the 	board 	said, 	will 	also 	resolve 	the 	refusal-to-bargain charge.
The NLRB 	was 	not 	persuaded 	to 	assert 	jurisdiction 	by 	the
argument 	that 	the 	employer's 	interpretation 	of 	the 	contract
language 	seemed 	improbable.
As 	to the 	dissenters' 	argument 	that 	there 	is
no 	contract 	provision 	which 	could 	even
arguably give 	color 	to Respondent's 	conduct,
we 	disagree. 	The Supreme Court 	said 	in
United 	Steelworkers 	of America v. 	Warrior 	&
Gulf Navigation Co., 	363 U.S. 	582-583, 	46
LRRM 2416, 	that 	an order 	to arbitrate 	a
particular 	grievance 	should 	not 	be 	denied
"unless 	it 	may 	be 	said 	with 	positive
assurance 	that 	the 	arbitration clause 	is 	not
susceptible 	of 	an 	interpretation 	that 	covers
the 	asserted dispute. 	Doubts 	should 	be
resolved 	in 	favor 	of 	coverage." 	We 	believe
that 	the 	dispute 	here 	falls 	within 	that
standard 	and 	is 	therefore 	properly 	referable
to the parties' 	arbitration procedure.
(Emphasis 	added.)
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In 	the 	instant case, 	the District maintains 	that Article 17
of 	the 	contract 	expresses 	the 	parties' 	contractual 	intent 	that
the District 	would 	be 	free, 	without 	need 	of 	further
negotiation, 	to 	lawfully 	lay off 	or 	reduce 	the 	hours 	of 	its
classified 	employees. 	In particular, 	the District points 	to
decisions 	of 	this Board 	which 	establish 	the 	District's
unilateral 	authority 	over 	the 	decision 	to 	lay 	off 	for 	lack 	of
work or 	lack 	of 	funds. 	It 	then points 	to 	the 	extensive
provisions 	on 	layoff 	procedures 	at 	contract 	subsections 	17.1.2
and 	17.1.4-.13 	in 	support 	of 	its 	claim 	that 	it has 	previously
fulfilled 	its 	duty 	to negotiate 	the 	effects 	of 	a 	decision 	to
lay off. 	Finally, 	it points 	to contract subsection 	17.1.3,
which provides 	that: 	"To 	the 	extent required by law, 	permanent
reductions 	in 	regularly 	assigned 	time 	shall 	be 	considered 	a
layoff 	under 	the provisions 	of 	this Article." 	This 	provision,
maintains 	the District, 	plainly sets 	forth 	the parties'
agreement 	that 	reductions 	in 	hours 	would 	be 	handled 	the 	same 	as
layoffs, 	that 	is, 	without District obligation 	to further
negotiate 	either 	the 	decision or 	the 	effects.
The 	facts 	in 	this 	case 	are 	significantly similar 	to 	those
considered 	by 	the NLRB 	in Roy Robinson Chevrolet, 	supra. 	In
common 	are 	contractual 	provisions 	authorizing 	the 	employer 	to
lay off or discharge 	employees. 	In neither case, 	however, 	does
the 	contract 	expressly 	state 	that 	the 	employer 	would 	be 	free 	to
so 	lay 	off 	without 	any 	further 	duty 	of 	prior 	negotiation.
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Nevertheless, 	on 	these 	facts 	the NLRB 	found 	that 	the 	question
of 	the 	parties' 	contractual 	intent was 	properly 	reserved 	to an
arbitrator 	in 	light 	of 	their 	agreement 	to 	a binding 	arbitration
procedure. 	In 	the 	language of Collyer, 	supra, 	the employer's
contention 	that 	the 	union 	by 	contract waived 	any 	right 	to
bargain 	further 	on 	these 	matters 	was 	"based 	on 	a 	substantial
claim of 	contractual privilege" 	and 	was 	not 	"patently
erroneous."
In 	the 	instant 	case, 	the 	District's 	claim appears 	even
stronger 	than 	that of 	the 	employer 	in Roy Robinson. 	While 	in
that 	case 	the 	contract 	contained 	no direct 	reference 	to 	any
layoff 	effects, 	the 	instant contract makes 	extensive provision
for 	rights 	and 	procedures 	to be 	observed 	by 	the 	District 	in
implementing 	a 	layoff.2 Thus, 	the 	employer 	here 	has 	express
2In 	this 	regard, 	we 	reject 	CSEA's 	claim on exceptions
that 	layoff 	procedures 	are 	something 	separate 	and 	distinct 	from
layoff 	effects. 	PERB has 	developed 	the 	notion of a broad
negotiable 	area 	we 	have 	generally 	referred 	to 	as
"implementation 	and 	effects 	of 	layoff" 	or, 	more 	briefly,
"layoff 	effects." 	By 	these 	terms 	we 	have meant 	to signify 	a
grouping 	of 	all 	subjects 	within 	the 	scope 	of 	representation
which 	may 	appropriately 	be 	negotiated 	in 	connection 	with 	a
managerial decision 	to 	lay off. 	Layoff procedures 	(or
"implementation" 	issues) 	have 	been 	treated 	as 	being within 	the
broad 	area of 	"effects 	bargaining." 	See, 	e.g., 	South
San Francisco Unified School District 	(9/2/83) 	PERB 	Decision
No. 	343. 	As we 	said 	in Mt. 	Diablo Unified School District
(12/30/83) 	PERB Decision No. 	373,
We 	do 	not 	wish 	to 	imply 	that 	"implementation
of 	layoff" 	is 	a 	separate 	subject of
bargaining 	from 	"effects 	of 	layoff;" 	rather,
the former 	is, 	broadly speaking, 	a
sub-category of 	the 	latter.
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contract 	language 	to 	support 	its 	claim 	that 	it 	has 	performed
and 	completed 	its 	obligation 	to negotiate 	layoff 	effects.
We 	find 	that 	the 	charge 	filed 	by CSEA, 	together 	with 	the
response 	thereto 	filed 	by 	the District, 	raises 	a 	substantial
question of 	contract 	interpretation which 	lies 	at 	the 	center 	of
the 	parties' 	dispute. 	The 	parties 	have 	previously 	agreed 	that
such 	matters may 	be 	resolved 	by 	a 	process 	of binding
arbitration; 	indeed, 	the parties have gone 	so far 	as 	to agree
that, 	"If 	any question 	arises 	as 	to 	the 	arbitrability of 	the
grievance, 	such questions will, 	prior 	to the consideration of
the 	issue, 	be 	ruled 	upon 	by 	the 	same 	arbitrator. 	. . . " 	Under
these circumstances, 	EERA subsection 	3541.5(a)(2) 	prohibits
this 	agency 	from 	issuing 	a 	complaint.
ORDER
The 	appeal 	is 	DENIED 	and 	the 	charge 	DISMISSED.
Members 	Jaeger 	and Morgenstern 	joined 	in 	this 	Decision.
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