Los Angeles Unified School District (PERB 0440E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LOS 	ANGELES 	UNIFIED SCHOOL 	DISTRICT
PEACE OFFICERS ASSOCIATION.
Charging 	Party.
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT.
Respondent.
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) 	Case No. 	LA-CE-1778
PERB 	Decision No. 	440
November 28, 	1984
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Appearances: 	William L. 	Williams. 	Jr., 	Attorney for
Los 	Angeles 	Unified 	School 	District 	Peace 	Officers 	Association;
O'Melveny & Myers 	by Diane 	L. 	Whiting 	for 	Los 	Angeles 	Unified
School District.
Before Tovar. 	Jaeger, 	and Morgenstern. Members.
DECISION
TOVAR, 	Member: 	The Los Angeles Unified 	School District
Peace Officers 	Association 	(LAUSDPOA or Association) 	appeals
the 	determination of 	a 	regional 	attorney of 	the Public
Employment 	Relations 	Board 	that 	a 	complaint 	should 	not 	issue 	on
its 	charge 	that 	the 	Los 	Angeles 	Unified 	School 	District
(District) 	committed 	an unfair 	practice 	in violation of 	the
Educational Employment Relations Act 	(EERA or Act). 	For 	the
reasons 	set 	forth below, 	the Board 	affirms 	the 	regional
attorney's 	determination.
FACTS
The 	charge 	filed 	by 	the Association 	sets 	forth 	the 	factual
allegations 	which follow. 	LAUSDPOA became 	the 	exclusive
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bargaining 	representative 	for 	security agents 	of 	the District
on November 	2, 	1982. 	after 	an election 	in which the 	previous
exclusive 	representative was 	decertified. 	Prior 	to 	that 	date,
the 	security 	officers 	had 	been 	represented 	by 	the 	California
School Employees Association 	(CSEA).
CSEA and 	the District were 	parties 	to 	a 	collective
bargaining agreement 	(CBA) 	which 	included 	a 	provision for
binding 	arbitration 	of 	grievances.1 The 	CBA also 	contained
1Article 	V, 	section 	1.0 	provides 	as 	follows:
1.0 	Grievance Defined: 	A 	grievance 	is
defined 	as 	a 	claim by an 	employee 	covered 	by
this Agreement 	that 	the District 	has
violated 	an 	express 	term 	of 	this 	Agreement
and 	that 	by 	reason of 	such violation 	the
employee's 	rights 	under 	this 	Agreement 	have
been 	adversely 	affected.
Article V, 	section 	15.0 	states 	in pertinent 	part 	as 	follows
15.0 	Effect 	of Arbitration Award: 	The
arbitrator's 	decision shall 	be 	final 	and
binding upon the grievant(s). 	the District
and CSEA. 	. 	. 	.
Section 14.0 provides 	as 	follows:
Restrictions upon the Arbitrator. 	The
arbitrator 	shall 	have no 	power 	to 	alter, 	add
to, or 	subtract 	from the 	terms 	of 	this
Agreement, 	but 	shall 	only determine whether
an 	express 	term of 	the Agreement 	has 	been
violated 	as 	alleged 	in the 	grievance. 	Past
practice 	of 	the 	parties 	in 	interpreting and
applying 	the 	terms 	of 	this 	Agreement 	may be
relevant evidence, 	but 	shall 	not 	be used 	so
as 	to 	justify or 	result 	in what 	is 	in effect
a 	modification 	(whether 	by 	revision,
addition, 	or detraction) 	of 	the terms of
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provisions 	detailing 	the 	procedures 	regarding 	disciplinary
action 	and 	involuntary 	transfers.2 The 	CBA 	expired 	on
September 1, 	1982.
this Agreement. 	The 	arbitrator 	shall 	have
no 	power 	to 	render 	an award 	on any grievance
occurring 	before 	or 	after 	the 	term of 	this
Agreement 	or 	to 	grant 	a 	remedy exceeding
that 	sought 	by the 	grievant. 	Grievances
arising prior 	to 	this Agreement 	are 	to 	be
handled 	pursuant 	to 	applicable 	Board 	Rules
which were 	in effect 	prior 	to 	this Agreement.
2Article XI. 	sections 2.1. 	2.2. 	2.3 and 2.4 state:
2.1 	An 	involuntary 	transfer 	of 	an 	employee
is 	one 	instituted 	by 	the District.
Involuntary 	transfers 	may 	occur 	at 	any 	time
at 	the 	discretion of 	the District 	only after
the 	approval 	by 	the 	Chief 	Security Agent 	or
his designee.
2.2 	Any 	employee who 	is 	involuntarily
transferred 	shall 	be 	entitled 	to 	a 	statement
of 	the 	reason(s) 	for 	the 	transfer upon
request 	to 	the 	Chief 	Security Agent made
within five 	days 	of 	the 	effective date 	of
the 	transfer.
2.3 	No 	employee 	shall 	be 	involuntarily
transferred 	based 	upon 	a 	recommendation 	of
an 	appropriate 	site 	administrator 	unless 	the
following 	procedures 	are 	followed: 	The
reason(s) 	for 	the appropriate 	site
administrator's 	recommendation must 	be
presented 	in writing 	to 	the 	employee's
immediate 	supervisor who 	shall 	present 	a
copy of 	the written reason(s) 	to 	the
involved 	employee. 	If 	the 	employee 	is 	not
satisfied with the reason(s) 	set forth, 	the
employee 	may 	request 	a 	consultation with 	the
appropriate 	site 	administrator 	and 	the
employee's 	immediate supervisor, 	or 	in
appropriate 	cases 	the Assistant 	Chief
Security Agent, 	during which 	consultation
the 	reason(s) 	for 	the 	recommended 	transfer
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On September 	2. 	1982. 	three 	security agents were
involuntarily 	transferred. 	The 	statement 	of 	complaint 	of 	one
of 	the 	security agents 	asserts 	he was 	involuntarily 	transferred
from his 	off-hours 	assignment 	to 	a 	day 	school 	assignment.
In September 	1982, 	the 	three 	security agents 	filed
grievances 	regarding 	the 	involuntary 	transfers 	under 	provisions
of 	the collective 	bargaining agreement, 	including Article XI.
section 	2.3 	which 	required 	that 	an 	involuntarily 	transferred
employee 	receive 	a 	statement with 	the 	reasons 	for 	the 	transfer
and 	provided 	that 	the 	employee 	had 	a 	further 	right 	of 	appeal 	to
a 	higher 	level 	of 	management.
On January 28. 	1983. 	a LAUSDPOA representative made a
written 	request 	to 	the District 	to 	submit 	the 	three 	grievances
to 	binding arbitration according 	to 	the 	terms 	of 	the 	expired
CBA.
On February 18, 	1983. 	the District 	in writing refused 	to
arbitrate 	the 	grievances. 	The District 	maintained 	that 	the
alleged 	contract 	violations 	took 	place 	after 	the 	expiration 	of
the 	agreement which was 	entered 	into with CSEA, 	not 	LAUSDPOA.
The District 	indicated 	that 	it would 	be willing 	to 	process
any post-contract 	grievances 	through 	the 	steps 	of 	the 	defunct
shall 	be 	explained 	to 	the 	employee 	and 	the
employee's 	views 	on 	the 	matter 	considered.
2.4 	The 	decision 	of 	the Director 	of
Administrative 	Services 	or 	his/her 	designee
shall 	be 	final 	in all 	involuntary transfers.
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grievance procedure up to 	but 	not 	including arbitration, 	and
that 	the 	parties 	could mutually agree 	to 	arbitrate 	certain
cases 	on an ad 	hoc 	basis. 	Regarding 	the 	instant 	grievances,
the District 	refused 	to 	proceed 	to 	arbitration 	because 	it
believed 	that 	the 	grievances were without merit.
LAUSDPOA filed 	the 	instant 	charge 	on April 	28. 	1983.
DISCUSSION
The 	issue 	raised 	by the 	instant 	appeal 	is whether 	the
factual 	allegations 	raised 	by 	the Association's 	charge 	support
a 	prima 	facie 	determination 	that 	the 	District 	violated 	sections
3543.5(a). 	(b) 	or 	(c) 	of the EERA3 by refusing to take
certain 	grievances 	to 	arbitration 	after 	expiration 	of 	the 	CBA.
3EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	references 	herein are 	to 	the Government Code
unless 	otherwise 	indicated.
Section 3543.5 	provides, 	in pertinent part:
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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decertification 	of 	the union which 	negotiated 	the 	CBA, 	and
certification of 	a 	new exclusive 	representative.•
Section 	3543.5 	(c) 	of 	the Educational 	Employment Relations
Act 	provides 	that 	it 	is 	an unfair 	practice 	for 	an employer 	to
refuse 	or 	fail 	to meet and 	negotiate 	in good 	faith about 	a
matter within the 	scope 	of 	representation. 	Generally, 	the
employer 	violates 	its 	duty to 	negotiate 	in good 	faith where 	it
unilaterally 	alters 	an 	established 	policy 	concerning 	a 	matter
within 	the 	scope 	of 	representation without 	first 	affording 	the
exclusive 	representative 	of 	its 	employees 	notice 	and 	the
opportunity 	to 	meet 	and 	negotiate 	in 	good 	faith 	over 	the
proposed 	action. 	Grant 	Joint Union High School 	District
(2/26/82) 	PERB Decision No. 	196; 	Anaheim City School District
(12/14/83) PERB Decision No. 	364.
Section 	3543.2 	expressly 	includes within the 	scope 	of
representation 	procedures 	for 	the 	processing 	of 	grievances
established pursuant to sections 	3548.5. 	3548.6. 	3548.7 and
3548.8 	of 	the Act. 	including provisions 	for 	binding arbitration
of 	grievances. 	(See. 	Healdsburg Union High School District,
et al 	(1/5/84) 	PERB Decision No. 	375.)
4 In 	considering 	an appeal 	of 	dismissal 	of 	an unfair
practice 	charge, 	all 	facts 	alleged 	in the 	charge must 	be deemed
true. 	San Juan Unified 	School 	District 	(3/10/77) 	EERB Decision
No. 	12. 	Prior 	to January 1. 	1978. 	PERB was known as 	the
Educational 	Employment 	Relations 	Board.
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An 	employer 	is 	precluded 	from making unilateral 	changes 	in
the 	status 	quo 	both during 	the 	term of 	a 	negotiated 	agreement
and 	after 	that 	agreement 	expires 	until 	such 	time 	as 	the 	parties
negotiate 	a 	successor 	agreement 	or 	they negotiate 	through
completion of 	the 	statutory 	impasse 	procedure. 	Pittsburg
Unified 	School District 	(6/10/83) 	PERB Decision No. 	318;
Modesto City Schools 	(9/27/83) 	PERB Decision No. 	347.
In Anaheim City School District, 	supra. 	PERB Decision
No. 	364. 	the Board 	found 	an unlawful unilateral 	change where
the 	employer 	unilaterally 	changed 	the 	grievance 	procedure 	by
refusing 	to 	arbitrate 	grievances 	after 	expiration of 	the
contract. 	The Board adopted 	the U.S. 	Supreme Court's 	view in
Nolde Brothers. 	Inc. 	v. 	Local 357. 	Bakery and Confectionary
Workers 	(1977) 	430 U.S. 	243. 	252. 	[94 LRRM 2753] 	that the duty
to 	arbitrate 	grievances 	survives 	contract 	expiration unless 	the
contract 	indicates 	expressly 	or 	by 	clear 	implication an
intention 	that 	the 	duty 	to 	arbitrate will 	terminate upon
expiration of 	the 	contract.
Article V. 	section 	14.0 	of 	the 	CBA expressly provides 	that:
The 	arbitrator 	shall 	have 	no 	power 	to 	render
an award 	on 	any 	grievance 	occurring 	before
or 	after 	the 	term of 	this 	agreement.
Thus, 	unlike the contracts at 	issue 	in Nolde. 	supra, 	and
Anaheim, 	supra, 	this 	CBA clearly 	indicates 	a mutual 	intention
by 	the 	parties 	that 	the 	duty 	to 	arbitrate will 	terminate 	upon
expiration of 	the 	contract.
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The 	charge 	admits 	that 	the 	transfer 	of 	the 	security agents
occurred 	after 	the 	contract 	expired. 	Charging 	party
nevertheless 	argues 	that 	the 	"reasons" 	for 	the District's
action existed while 	the 	contract was 	still 	in effect, 	and 	that
Article V does 	not 	therefore 	bar 	arbitration.
This 	argument 	is 	rejected. 	An employee 	has 	no 	basis 	for
filing a 	grievance 	until 	and 	unless 	the 	employer 	has 	taken 	some
disputed action. 	It 	is 	the employer's action, 	not 	its
pre-existing, 	unexpressed motivation, 	which triggers 	the
grievance 	machinery.
Because 	the 	grievances 	here 	arose 	after 	the 	negotiated
agreement 	expired, 	the 	specific 	language 	of 	the 	arbitration
provision, 	which is 	incorporated 	in the charge, 	requires
dismissal 	of 	the 	charge 	on 	the 	ground 	that 	it 	fails 	to 	state
facts 	demonstrating 	that 	the District 	violated 	the Act 	by
refusing 	to 	submit 	the 	grievances 	to 	arbitration.5	5
ORDER
Based on the foregoing. 	Charge No. 	LA-CE-1778 	is DISMISSED.
Members 	Jaeger 	and Morgenstern 	joined 	in 	this 	Decision.
5The 	Board 	thus 	need 	not 	consider 	in 	this 	case what
effect, 	if any, 	the change of 	exclusive representative would
have 	on 	the 	duty 	to 	arbitrate 	where 	an arbitration 	provision
survives 	expiration.
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