Baldwin Park Unified School District (PERB 0903E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BALDWIN PARK EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
BALDWIN PARK UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
)
) 	Case No. 	LA-CE-2964
PERB 	Decision No. 	903
September 	24, 	1991
)
)
)
)
)
)
Appearances: 	California Teachers Association by Deborah 	S.
Wagner. ., 	Attorney, 	for Baldwin Park Education Association,
CTA/NEA; 	Liebert, 	Cassidy & Frierson by Mary L. 	Dowell, 	Attorney,
for 	Baldwin Park Unified 	School 	District.
Before Hesse, 	Chairperson; 	Shank and Carlyle, 	Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal 	by
the 	Baldwin Park Education Association, 	CTA/NEA 	(Association) 	of
an administrative 	law judge's 	(ALJ) 	proposed decision 	(attached
hereto) 	which dismissed the Association's 	allegations 	that 	the
Baldwin Park Unified 	School 	District 	(District) 	violated 	section
3543.5(e) 	and, 	derivatively, 	(a) 	and 	(b) 	of the Educational
Employment Relations Act 	(EERA).1 Specifically, 	the Association
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
______ )

alleged 	that 	the 	District violated 	section 	3543.5(e) 	by 	insisting
to 	impasse 	on a proposal 	for advisory arbitration. 	The 	Board has
reviewed the 	stipulated record, 	proposed decision, 	Association's
exceptions, 	and District's 	response thereto, 	and 	finds 	the ALJ's
findings 	of 	fact 	and 	conclusions 	of 	law to be 	free 	of prejudicial
error and therefore adopts 	them as 	the decision of 	the 	Board
itself 	consistent with 	the 	following discussion.
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(e) 	Refuse to participate 	in good 	faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
Although 	the 	complaint 	and proposed 	decision 	state 	the
Association 	alleged 	the 	District 	violated 	section 	3543.5(e)
and, 	derivatively, 	(a) 	and 	(b), 	the Board has discontinued the
practice of derivative violations. 	(See The 	Regents 	of the
University of California 	(California Nurses Association) 	(1989)
PERB Decision No. 	722-H, 	p. 	10, 	citing Tahoe-Truckee Unified
School District 	(1988) 	PERB Decision No. 	668.) 	As the Board
affirms 	the ALJ's 	dismissal 	of 	the unfair practice 	charge 	and
complaint 	in this 	case, 	there 	is 	no prejudice to the parties
due 	to 	the use of 	the derivative violation terminology.
ASSOCIATION'S 	EXCEPTIONS
The Association 	filed 	five 	exceptions 	to 	the proposed
decision. 	The Association excepts 	to the ALJ's 	conclusions
that: 	(1) 	the EERA does not require binding arbitration; 	(2)
advisory 	arbitration 	falls 	within the 	scope 	of 	bargaining 	and
22

is 	a mandatory subject of bargaining; 	(3) 	as 	long as grievance
resolution 	is 	a mandatory 	subject of bargaining, 	the various
manners 	or processes 	used to 	resolve 	those 	grievances 	are
automatically mandatory subjects 	of bargaining; 	(4) 	the
Association's 	arguments 	are 	fatally 	flawed 	by 	its 	inability
to overcome established PERB precedent; 	and 	(5) 	the advisory
arbitration clause 	in the parties' 	collective bargaining
agreement 	is 	significantly different 	from the 	language 	of 	most
advisory arbitration clauses, 	and is 	not 	a mandatory 	subject
of 	bargaining.
In its brief 	in support of 	exceptions, 	the Association
merely 	repeats 	previous 	arguments 	which were addressed by 	the
ALJ 	in her proposed decision. 	First, 	the Association asserts
that EERA section 3543.2, 	and its references to 	sections 	3548.5,
3548.6, 	3548.7 and 3548.8, 	mean that the grievance procedure,
defined 	as within the 	scope of representation, 	is 	limited to
binding 	arbitration. 	The Association argues 	that 	these 	statutory
sections 	evidence a 	clear 	legislative 	intent to 	require binding
arbitration 	in any 	agreement which 	contains 	arbitration
procedures. 	Because 	advisory arbitration renders 	the 	entire
contract 	unenforceable 	and 	therefore 	nonbinding 	on the 	District,
in violation of 	section 3540.l(h), 	the Association contends
advisory 	arbitration 	is 	a 	nonmandatory or permissive 	subject 	of
bargaining. 	Therefore, 	the District's 	insistence to 	impasse on
the 	inclusion of 	an advisory arbitration 	clause 	is 	per 	se bad
faith 	bargaining.
3
3

Next, 	the Association argues 	that the modified Anaheim test
is 	applicable to the case, 	and that the 	subject of advisory
arbitration 	is 	not mandatory because 	it 	cannot meet 	the 	third
prong of 	the 	test. 	(See Anaheim Union High School 	District
(1981) 	PERB Decision No. 	177 [Anaheim]. as modified 	in South Bay
Union School District 	(1990) 	PERB Decision No. 	791 	[South Bay].
affd. 	South Bay Union School 	District v. 	PERB/Southwest Teachers
Association. 	CTA/NEA 	(1991) 	228 Cal.App.3d 502 	[279 Cal.Rptr.
135].) 	The Association argues 	that advisory arbitration inhibits
the 	effective 	operation of 	the 	union by 	eviscerating 	the 	union's
right to negotiate on behalf of the employees. 	Additionally, 	the
Association 	argues 	advisory 	arbitration 	allows 	the 	District 	to 	. .
make 	a 	final 	and binding decision on every grievance. 	Therefore,
there 	is 	no true advocacy process. 	In essence, 	the Association
objects 	to 	advisory arbitration because 	it 	allows 	the 	employer
to violate the agreement at will, 	while the Association is held
to the terms 	of the 	agreement.
Finally, 	the Association argues 	that the ALJ's 	reliance 	on
the 	language 	in Anaheim City 	School 	District 	(1983) 	PERB 	Decision
No. 	364 	(Anaheim CSD) 	is misplaced. 	The Association states the
language 	regarding whether advisory 	arbitration 	is 	within 	the
scope of bargaining 	should be regarded as 	mere dicta. 	Even if
the 	language 	is not regarded as dicta, 	the Association urges 	the
Board to 	reject 	the 	logic 	of Anaheim CSD, 	and 	find that 	advisory
arbitration 	is 	not 	a mandatory 	subject 	of bargaining.
44

DISTRICT'S 	OPPOSITION 	TO 	EXCEPTIONS
In its 	opposition, 	the District urges 	the Board to affirm
the proposed decision. 	The 	District 	first argues 	that 	the
language 	in Anaheim CSD is 	not dicta. 	The District argues 	the
Board was 	required 	to reach 	the 	conclusion that 	a 	grievance
procedure 	culminating 	in advisory 	arbitration 	is 	also 	negotiable
in order 	to determine whether a violation had occurred. 	In
addition, 	the Association has provided no plausible argument 	in
support of 	its 	assertion that the 	language is dicta. 	Further,
there 	is 	nothing on the 	face of 	the 	Board's 	decision to 	suggest
that 	its 	conclusion regarding 	the 	negotiability 	of 	advisory
arbitration was merely dicta. 	Finally, 	the District notes 	that
the Association has 	provided 	absolutely no basis 	on which 	the
Board 	could 	conclude 	that 	the 	precedent 	established 	in Anaheim
CSD 	is 	erroneous 	and 	should be overruled.
With 	regard to 	the Association's 	interpretation of 	the
statutory provisions 	of 	EERA, 	the District argues 	that the
Association has misread the 	language of the 	statute. 	The
District 	asserts 	that the 	express 	language of 	the 	statute 	does
not 	create 	an obligation to agree to binding arbitration. 	The
District 	notes 	that 	section 	3548.5 	is phrased permissively:
A public 	school 	employer 	and 	an 	exclusive
representation . 	. 	. 	may include in the
agreement procedures 	for 	final 	and binding
arbitration 	. . . . 	[Emphasis 	in 	quote.]
With regard to the use 	of 	the modified Anaheim test, 	the
District notes 	that the Board, 	in a 	subsequent case, 	rejected the
analysis 	that 	had been used by Member Craib 	in 	South 	Bay which
5

depended 	on the 	modified Anaheim 	test, 	and 	instead 	adopted 	the
rationale used by Member Camilli. 	(See 	Chula Vista City 	School
District 	(1990) 	PERB Decision No. 	834 [Chula Vista].)
Nothwithstanding this 	argument, 	the District 	states 	that when the
ALJ 	applied 	the 	modified Anaheim test, 	she 	correctly 	concluded
that 	advisory arbitration 	is 	a mandatory 	subject of bargaining.
Despite 	the Association's professed 	fears, 	the District 	asserts
it does 	not 	have 	unfettered discretion to 	disavow a 	collective
bargaining 	agreement 	that 	contains 	advisory 	arbitration as 	a
dispute resolution mechanism. 	Thus, 	under the Board's
precedents, 	whether the Anaheim test has been modified or not,
advisory 	arbitration meets 	the 	test 	for 	a 	mandatory 	subject 	of
negotiations. 	As 	the District did not 	insist to 	impasse 	on a
nonmandatory 	subject of bargaining, 	the ALJ was 	correct 	in her
conclusion that no violation of 	section 	3543.5(e) 	occurred.
Therefore, 	the ALJ's proposed decision 	should be affirmed.
1
DISCUSSION
With regard 	to 	the 	application of 	the modified Anaheim 	test
after the Board's decision in South Bay. 	the Board has 	not relied
upon 	the 	modified Anaheim test 	in 	subsequent decisions 	regarding
the 	exclusive 	representative's 	right 	to 	file grievances 	in 	its
own name. 	Instead, 	the Board held that 	the 	exclusive
representative's 	right to 	file grievances 	in its 	own name 	is 	a
statutory right, 	and, 	consequently, 	a nonmandatory subject of
bargaining. 	(Chula Vista; 	Mt. 	Diablo Unified School District
(1990) 	PERB Decision No. 	844 	[Mt. 	Diablo].) 	In Chula Vista, 	the
66

Board affirmed the ALJ's 	conclusion, 	but 	rejected the ALJ's
reliance on the modified Anaheim test. 	As 	stated by the 	Board:
We 	therefore 	affirm 	the ALJ's 	conclusion
that 	the 	District 	violated 	EERA by 	insisting
to 	impasse 	that the Association waive 	its
statutory right 	to 	file 	grievances 	in its
own name, 	but reject the ALJ's reliance on
a 	modified version of 	the Anaheim test 	to
reach that result. 	Application of the
Anaheim test 	to determine 	the 	negotiability
of the grievance proposals 	is 	unnecessary
since the District 	is 	not 	actually insisting
to 	impasse on a 	term or condition of
employment, 	but rather is 	insisting that the
Association waive 	a 	basic 	statutory 	right.
[Citation.]
(Chula Vista City School 	District, 	supra,
PERB Decision No. 	834, pp. 	22-23.)
.% 2.. . 	Similarly, 	in Mt. 	Diablo, 	the Board expressly rejected that
portion of 	the ALJ's 	analysis 	that utilized the modified Anaheim
test. 	The Board 	stated:
- . .
In reaching 	its 	conclusion regarding 	the
District's 	insistence 	to 	impasse on the 	two
grievance proposals discussed above, 	the
majority 	in Chula 	Vista 	expressly 	rejected
utilization of 	a modified version of 	the
test 	set 	forth 	in Anaheim Union High 	School
District 	(1981) 	PERB Decision No. 	177
(Anaheim) 	to determine whether the proposals
in question were mandatory 	subjects 	of
bargaining. 	Similarly, 	in the instant
case, 	although we agree with the ALJ that
the 	grievance proposals 	in question are
nonmandatory 	subjects 	of bargaining, 	we
expressly reject 	that portion of 	his 	analysis
that utilizes 	a modified version of 	the
Anaheim test 	(See Prop. 	D e c , p. 	15, par. 	2
through p. 	17, par. 	1, 	1st sentence; p.20,
par. 	1.) 	and adopt 	instead the 	"statutory
right" 	analysis 	as 	set 	forth in Chula Vista.
[Fn. omitted.]
(Mt. 	Diablo Unified School District, 	supra,
PERB Decision No. 	844, p. 	3.)
77

Despite 	these 	two 	subsequent 	decisions 	which 	reject 	the
modified Anaheim test, 	the modified Anaheim test was 	never a
view held by the majority of 	the Board. 	In South Bay, 	the
modified Anaheim test was 	adopted 	only by Member Craib. 	Member
Camilli wrote 	a 	concurrence wherein he 	analyzed 	the 	issue 	as 	a
statutory right. 	He 	concluded 	that 	the 	right 	of 	an exclusive
representative to 	file a grievance 	in its 	own name was 	a
statutory right pursuant to 	section 3543.1(a) 	of 	EERA.
Chairperson 	Hesse 	dissented 	and 	concluded 	that 	the 	exclusive
representative's 	right to 	file a grievance 	in 	its 	own name was
a 	mandatory 	subject 	of bargaining. 	Chairperson Hesse 	expressly
rejected Member Camilli's 	statutory right analysis, 	as well 	as
Member Craib's 	modification of the Anaheim test.2 Finally, 	in
affirming the Board's 	South Bay decision, 	the Court of Appeal
relied 	upon the 	concurrence 	and 	referred 	to 	the 	Board's
subsequent decisions 	in Chula Vista and Mt. 	Diablo. 	The court
specifically rejected the 	use 	of 	the modified Anaheim test.
(South 	Bay 	Union 	School 	District v. 	PERB/Southwest 	Teachers
Association. 	CTA/NEA, 	supra, 	228 Cal.App.3d 502, 	508.)
. . . .
As 	the 	modified Anaheim 	test 	has 	never been 	adopted by
more 	than one Board member, 	has 	been rejected by the Court of
Appeal 	and has 	been 	expressly 	rejected 	in two 	subsequent 	Board
decisions, 	the Board rejects 	the Association's 	arguments
2 In Chula Vista and Mt. 	Diablo, 	Chairperson Hesse
changed 	her 	analysis 	and 	conclusion based 	on a 	recent 	Court
of Appeal 	case. 	Chairperson Hesse 	found that 	the 	exclusive
representative's 	right to 	file a grievance 	in 	its 	own name
is 	a 	statutory right, 	and nonmandatory 	subject of bargaining.
8
2

concerning 	the 	application of 	the modified Anaheim test 	to 	the
present 	case.
Even 	assuming 	the modified Anaheim test 	applies 	to 	the
present 	case, 	the ALJ concludes 	that advisory arbitration is 	a
mandatory 	subject of bargaining. 	However, 	the ALJ does 	not 	rely
only on the modified Anaheim test 	for her conclusion. 	Rather,
the ALJ 	relies 	upon Anaheim CSD, 	wherein the Board 	expressly held
that 	advisory arbitration is 	a mandatory 	subject 	of 	bargaining.
In Anaheim CSD, 	the Board was 	faced with an allegation that 	the
school 	district 	failed 	to 	maintain 	the 	grievance procedure 	after
the 	collective 	bargaining agreement 	had 	expired. 	In discussing
the negotiability of 	grievance procedures, 	the Board 	stated:
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. 	The Act places 	no express
restrictions or a 	[sic] 	limitations on the
types 	of 	grievance procedures which are
negotiable. 	The reference to 	subsections
3548.5-.8 	is meant to reflect a 	specific
legislative 	sanctioning 	of 	binding
arbitration. 	It follows 	that a grievance
procedure 	culminating 	in 	advisory
arbitration, 	a 	lower level of terminal
dispute 	resolution than binding 	arbitration,
is also negotiable. 	[Fns. 	omitted.]
[Id, at pp. 	14-15.)
Based on the 	conclusion that grievance procedures, 	up to
and 	including procedures 	culminating 	in binding 	arbitration,
are negotiable, 	the Board found that the grievance procedure,
including the provision 	for advisory arbitration, 	survived the
expiration of 	the 	collective bargaining 	agreement 	absent 	clear
evidence 	of 	an 	intent to 	the 	contrary. 	Based on Anaheim CSD,
9

it 	seems 	clear that 	the 	Board 	expressly held that 	advisory
arbitration, 	as well as binding arbitration, 	is a mandatory
subject 	of bargaining.
Finally, 	the Board rejects 	the Association's 	misconstrued
interpretation of 	EERA. 	The 	statutory 	language 	of 	section
3543.2(a),3 and its references to sections 3548.5, 	3548.6, 	3548.7
3EERA section 3543.2(a) 	states:
The 	scope 	of 	representation 	shall 	be 	limited
to matters relating to wages, 	hours of
employment, 	and other terms 	and conditions
of 	employment. 	"Terms 	and conditions 	of
employment" 	mean health and welfare 	benefits
as defined by Section 53200, 	leave, 	transfer
and reassignment policies, 	safety conditions
of employment, 	class size, 	procedures to be
used 	for the 	evaluation of 	employees,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for processing grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 3548.8, 	the 	layoff of probationary
certificated 	school 	district 	employees,
pursuant 	to Section 	44959.5 	of 	the Education
Code, 	and alternative 	compensation or
benefits 	for 	employees 	adversely 	affected by
pension 	limitations 	pursuant 	to 	Section 	22515
of the Education Code, 	to the extent deemed
reasonable 	and without 	violating 	the 	intent
and purposes 	of 	Section 415 	of 	the 	Internal
Revenue Code. 	In addition, 	the exclusive
representative 	of 	certificated 	personnel 	has
the right to 	consult on the definition of
educational objectives, 	the determination
of 	the content of 	courses 	and 	curriculum,
and the 	selection of 	textbooks 	to 	the 	extent
such matters 	are within the discretion of
the public 	school 	employer under the 	law.
All 	matters 	not 	specifically 	enumerated
are reserved to 	the public 	school 	employer
and may not be 	a 	subject 	of 	meeting and
negotiating, 	provided that 	nothing herein may
be 	construed to 	limit 	the 	right 	of the public
school 	employer 	to 	consult with 	any 	employees
or 	employee 	organization on any matter
outside the 	scope of 	representation.
10

and 	3548.8, 	cannot be 	interpreted to require only binding
arbitration 	in a 	collective bargaining agreement. 	The 	statutory
language does 	not require binding arbitration, 	but merely
authorizes 	the parties 	to 	enter 	into negotiations 	for a
collective 	bargaining 	agreement 	that 	may 	include 	binding
arbitration. 	Further, 	the language of 	section 3548.5 	is phrased
permissively:
A public 	school 	employer 	and 	an 	exclusive
representative who 	enter 	into 	a written
agreement 	covering matters 	within 	the
scope 	of 	representation may 	include 	in the
-agreement procedures 	for 	final 	and binding
arbitration of 	such disputes 	as 	may arise
involving the 	interpretation, 	application,
or violation of 	the agreement. 	[Emphasis
added.]
Additionally, 	sections 	3548.6, 	3548.7 and 3548.8 provide
direction to 	the parties 	in the 	event they agree 	to binding
arbitration. 	However, 	these 	statutory provisions 	do not require
the parties 	to 	agree 	to binding arbitration.
Based on the 	statutory 	language of 	EERA section 	3543.2(a),
and its references to sections 	3548.5, 	3548.6, 	3548.7 and 3548.8,
and 	the 	Board's 	holding 	in Anaheim CSD, 	the Board 	finds 	the
District did 	not 	violate 	EERA by 	insisting to 	impasse 	on a
proposal 	for 	advisory 	arbitration.
ORDER
For the reasons 	stated above, 	the unfair practice 	charge 	and
complaint in Case No. 	LA-CE-2964 	is hereby DISMISSED.
Members 	Shank and Carlyle 	joined 	in this 	Decision.
11

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BALDWIN 	PARK 	EDUCATION
ASSOCIATION,
Charging 	Party,
v.
BALDWIN 	PARK 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-2964
PROPOSED 	DECISION
(2/27/91)
Appearances: 	California 	Teachers Association by Deborah 	S.
Wagner, 	Attorney, 	for Baldwin Park Education Association,
CTA/NEA; 	Liebert, 	Cassidy & Frierson by Mary L. 	Dowell 	for
Baldwin 	Park Unified 	School 	District.
Before Martha Geiger, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	arises 	out 	of 	an unfair practice 	charge 	filed by
the 	Baldwin Park Education Association, 	CTA/NEA 	(Charging 	Party
or Association), 	against the Baldwin Park Unified School District
(Respondent or District). 	The charge alleged that the District
violated 	section 	3543.5(c) 	of 	the 	Educational 	Employment
Relations Act 	(EERA) 	by insisting to 	impasse on a proposal 	for
nonbinding 	grievance 	arbitration.1 In a 	complaint 	issued 	by 	the
office 	of 	the General 	Counsel 	of 	the Public 	Employment 	Relations
Board 	(PERB or Board), 	the District's 	conduct was 	alleged to have
v i o l a t e d 	EERA 	s e c t i o n s 	3543.5(e) 	and, 	d e r i v a t i v e l y , 	(a) 	and 	( b ) . 2
1 T h e 	EERA 	is 	c o d i f i e d 	at 	C a l i f o r n i a 	Government 	Code 	s e c t i o n
3540 	et 	seq.
2 Government 	Code 	s e c t i o n 	3543 	s t a t e s , 	in 	r e l e v a n t 	p a r t :
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
)
)
)
)
)
)
)
)
)
)
)
______________ )

It 	shall 	be unlawful 	for a public 	school
employer 	to do 	any of 	the 	following:
(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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(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.
(e) 	Refuse to participate 	in good faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
In lieu of 	a hearing, 	the parties 	submitted 	a 	stipulation of
facts. 	Thereafter, 	the parties 	submitted briefs 	on December 	17,
1990, 	to an administrative law judge 	(ALJ) 	of this 	agency. 	By
order of 	the Chief Administrative 	Law Judge, 	the matter was
transferred to the undersigned on February 	1, 	1991, 	and this
decision 	follows.
The 	charge 	in this 	case 	alleged 	a violation of 	the 	duty to
bargain in good faith, 	EERA section 3543.5(c). 	The 	facts,
however, 	alleged 	in the 	charge 	and 	the 	complaint 	concerned 	the
Respondent's 	actions 	during 	the 	impasse 	resolution procedures.
Adherence 	to 	a 	same position on a 	nonmandatory 	subject 	through
N
	2

impasse procedures 	is be a violation of EERA section 	3543.5(e),
as was 	alleged 	in the complaint.3
The 	discrepancy between the 	charge 	and 	complaint 	can be
easily dealt with, 	however, 	because litigation of a 	(c)
allegation 	is 	identical 	in all practical 	respects 	to 	litigation
of an 	(e) 	violation as pled in the complaint. 	The 	sole
difference between the 	(c) 	and the 	(e) 	violations 	is 	that one
occurs prior to 	impasse. 	The burden of proof 	is 	same, 	only the
timing is different. 	Thus, 	this 	decision will dispose of 	the
allegation of the 	(e) 	violation, 	as well as the attendant 	(a) 	and
(b) 	derivatives, 	but the result would be the same if the
complaint had alleged a 	(c) 	violation.
STIPULATION OF 	FACTS
On November 	14, 	1990, 	the parties 	submitted the following
stipulation of 	facts.
1. 	Charging Party 	is 	an employee 	organization within the
meaning of 	Government Code 	section 	3540.l(d) 	and 	is 	an exclusive
representative 	of 	a 	unit 	of 	Respondent's 	employees within the
meaning of Government Code 	section 3540.l(e).
2. 	Respondent 	is 	a public 	school 	employer within the
meaning of Government Code 	section 	3540.l(k).
No mention is 	made 	in any of 	the papers 	on file to date as
to whether the 	(c) 	allegation 	in the 	charge was 	a 	typographical
error, 	or whether the Charging Party wished to 	litigate 	a 	(c)
allegation.
W
'
3

3. 	In 	1987, 	the parties 	negotiated a collective bargaining
agreement 	for 	the 	benefit 	of 	the 	unit 	of 	certificated 	employees
represented by Charging Party, 	which expired on June 	30, 	1989.
4. 	The 	collective bargaining agreement negotiated 	in 	1987
contained 	a 	grievance procedure.
5. 	Between March 	1989, 	and December 	12, 	1989, 	the parties
met 	over 	forty times 	in an effort 	to 	reach agreement 	on a
successor collective bargaining agreement. 	On December 	12, 	1989,
Charging 	Party 	declared 	impasse 	and 	petitioned 	PERB 	to 	certify 	an
impasse.
6. 	Between December 	12, 	1989 and July 6, 	1990, 	Charging
Party 	and 	Respondent 	participated 	in 	impasse 	procedures 	pursuant
to Government Code 	sections 	3548 	through 	3548.3.
7. 	During negotiations, 	Respondent bargained to 	impasse 	on
a 	proposal 	giving 	Respondent 	the power 	to make 	grievance
decisions 	that would be binding on all parties; 	Respondent
further 	insisted during 	impasse 	on 	this 	proposal.
8. 	On or about August 	2, 	1990, 	the parties 	executed a new
collective bargaining agreement 	covering 	the period July 	1, 	1989
through June 30, 	1992.
9. 	The 	collective bargaining agreement 	now in effect
between the parties 	contains 	a 	grievance procedure 	that vests 	in
a 	third-party 	arbitrator 	the 	authority 	to 	render 	a 	decision 	that
is 	final 	and binding on both parties.
4
4

10. 	The foregoing facts, 	and no others, 	are necessary to a
determination whether, 	as 	a matter of 	law, 	Charging Party 	is
entitled to 	a decision 	in 	its 	favor 	in this 	matter.
The 	relevant documents 	consisting of 	the 	current 	contract,
the prior contract, 	and the District's 	negotiating proposal 	for a
continuance 	of 	the prior 	contract's 	non-binding 	arbitration
procedure, 	were attached to the 	stipulation.
ISSUE
Is 	advisory arbitration a 	nonmandatory 	subject 	of
bargaining; 	and 	if 	so, 	did the District violate the EERA by
bargaining 	to 	impasse on that 	subject?
CONCLUSIONS 	OF 	LAW
Initially, 	the District 	argues 	that 	the case 	should be
dismissed as 	moot because, 	after mediation, 	the parties 	herein
did 	agree 	to 	a 	contract proposal 	for binding arbitration. 	This
argument must be rejected, 	however.
PERB has 	often ruled 	that 	the 	subsequent 	signing of 	a
contract 	does 	not moot 	an allegation of 	bad 	faith bargaining.4
Even here, 	where 	the parties 	settled 	on the disputed provision on
the 	exact terms 	favorable 	to the Charging Party, 	mootness 	is 	not
appropriate. 	As 	the 	Board 	noted 	in Amador Valley,
There must be 	evidence 	that the party acting
wrongfully has 	lost 	its 	power to 	renew its
conduct. 	In cases 	clarifying parties' 	rights
and obligations 	under a new law, 	the public
4 Amador Valley Joint 	Union High 	School 	District 	(1978) 	PERB
Decision No. 	74; 	Oakland Unified School District 	(1980) 	PERB
Decision No. 	126; 	Jefferson School District 	(1980) 	PERB Decision
No. 133.
5

interest 	is 	served by deciding the underlying
issue. 	(Amador Valley Joint 	Union High
------ict, 	supra, 	citations omitted.)	School Distr
Here, 	whether a particular item is 	a mandatory or
nonmandatory 	subject 	of 	bargaining 	can 	arise 	again 	any 	time
during any 	subsequent negotiations. 	The 	District may have
abandoned its position in this 	contract, 	but it may wish, 	in some
future negotiations, 	to propose a nonbinding grievance procedure.
Since 	the 	scope 	of 	bargaining 	is 	a 	subject 	of 	continuing 	interest
and 	likely to reoccur, 	resolution on the merits 	is 	appropriate.
In addressing the merits 	of the case, 	the Association
correctly 	argues 	that 	insistence 	to 	impasse 	on a 	nonmandatory
subject 	is 	an unfair bargaining practice. 	(See Ross 	School
District 	(1978) 	PERB Decision No. 	48; 	Lake Elsinore School
District 	(1986) 	PERB Decision No. 	603.) 	Here the parties
stipulated 	that 	the 	District 	did bargain to 	impasse 	on 	its
proposal 	for nonbinding arbitration. 	Thus, 	the 	seminal 	issue to
be decided 	is whether nonbinding 	arbitration 	is 	a 	mandatory 	or
nonmandatory 	subject within 	scope.
In a novel argument, 	the Association maintains both that
binding arbitration 	is 	a 	statutory right, 	and that nonbinding
arbitration 	is 	not 	a mandatory 	subject of bargaining. 	The
Association, 	in support of these theories, 	first cites EERA
section 3543.2, 	which provides, 	"The scope of representation
shall 	be 	limited 	to 	. . . 	procedures 	for processing 	grievances
pursuant to sections 3548.5, 	3548.6, 	3548.7 and 3548.8."
Contrary to the Association's 	argument, 	those 	specific 	sections
6
-· 	--
6

- . .
do 	not 	require binding 	arbitration but merely authorize 	a public
employer to 	enter 	into 	negotiations 	for a 	collective 	bargaining
agreement 	that may 	include binding 	arbitration. 	There 	is 	no
statutory 	requirement 	that 	binding 	arbitration be 	guaranteed 	to
either party.
The Association's 	analysis 	of whether the 	scope 	of
bargaining 	can be 	read 	to 	exclude 	advisory 	arbitration 	is 	also
flawed, 	in 	several respects. 	The 	statute 	section that defines
scope actually 	says, 	"The 	scope of 	representation shall 	be
limited to matters relating to wages, 	hours of employment, 	and
other terms 	and 	conditions 	of 	employment." 	The Board has 	long
held 	that while 	some 	subjects 	within 	scope 	are 	enumerated
specifically 	(e.g., 	wages, 	health and welfare benefits), 	others
are 	nonenumerated 	but 	are 	included within 	scope 	by 	implication.
In the 	latter case, 	the three-part test 	formulated by the 	Board
in Anaheim Union High School 	District 	(1981) 	PERB 	Decision
No. 	177 	(Anaheim) 	must be applied to determine whether the
subject 	falls within 	scope, 	or 	should 	(as 	the Association argues
here) 	be excluded.
Assuming 	for the moment 	that 	"advisory 	arbitration" 	(or
nonbinding arbitration) 	is 	a wholly different process 	from
"binding 	arbitration," 	does 	advisory 	arbitration pass 	the Anaheim
test? 	Since 	advisory 	arbitration 	is 	logically 	and 	reasonably
related to 	a 	term and condition of 	employment, 	it meets 	the 	first
part of Anaheim. 	Applying the 	second part of 	the test, 	advisory
arbitration 	is 	a 	matter of 	great 	concern to 	employer and 	employee
7

alike, 	likely to be a source of 	friction between them, 	and thus
is 	appropriate 	for the mediatory 	influences 	of 	collective
negotiations. 	The real 	question is whether the third part of 	the
Anaheim 	test 	can be met.
The 	original Anaheim 	test 	formulated 	as 	the 	third 	step 	a
finding 	that 	a 	requirement 	for management 	to 	negotiate 	over 	the
disputed 	subject would 	not 	specifically 	abridge 	the 	employer's
freedom 	to 	exercise 	those 	managerial 	prerogatives 	essential 	to
the achievement of the employer's mission. 	Here, 	the employer
has 	not 	indicated 	any reluctance 	to 	bargain 	about 	advisory
arbitration. 	Instead, 	the Association is 	accusing the District
of negotiating 	"too well," 	i.e., 	to impasse, 	on a 	subject the
Association believes 	is 	outside 	the 	scope 	of mandatory 	subjects.
The Association therefore 	requests 	that 	the 	"modified"
Anaheim 	test 	set 	forth 	in 	South 	Bay 	Union 	School 	District 	(1990)
PERB Decision No. 	791 	(South Bay) 	be used. 	In that case, 	the
lead 	opinion held that whether a 	union had a right 	to 	file 	a
grievance 	in 	its 	own name was 	a 	nonmandatory 	subject 	of
bargaining. 	In reaching this 	conclusion, 	the opinion altered the
third part 	of 	the Anaheim test 	by 	asking whether 	negotiation
about 	a 	particular 	subject 	"significantly 	abridges 	the
organization's 	freedom 	to 	exercise 	those 	representational
prerogatives 	essential 	to 	the 	achievement 	of 	the 	organization's
mission as 	exclusive 	representative 	of 	the 	negotiating unit."
South Bay, 	supra.
-
8

. . .
The Association's 	reliance 	on South 	Bay 	is 	misplaced. 	That
case dealt with the 	issue of 	standing to 	file 	a grievance, 	not
with the 	grievance process 	itself. 	However, 	assuming that
reliance 	on the 	modified 	test 	found 	in 	South 	Bay 	is 	appropriate
here, 	the argument advanced by the Association 	is 	unpersuasive.
The Association 	states 	that 	advisory 	arbitration 	"inhibits 	the
effective operation" 	of 	the Association.5 This 	statement,
however, 	is 	merely a bald assertion based on a desire 	to have
binding 	arbitration. 	There 	is 	no 	reason why a 	grievance process
that 	results 	in advisory 	arbitration 	significantly 	abridges 	the
organization's 	freedom to 	exercise 	those 	functions 	needed 	to
achieve 	its 	mission of 	representation. 	Advisory arbitration
still 	exposes 	the 	contractual 	problem 	to 	an 	advocacy process
wherein both 	sides 	are permitted 	to present 	their respective
views 	of 	the problem.
The Association raises 	as 	an 	example of how 	its 	mission of
representation 	is 	abridged 	is 	by noting that grievants 	under 	an
advisory 	arbitration 	system are without 	a 	remedy 	if 	the 	employer
chooses 	not to adopt a recommendation 	in favor of 	the grievant.
To 	adopt 	the Association's 	view 	in this 	matter 	could 	lead 	to
absurd 	attacks 	on 	the 	grievance process 	whenever 	the Association
(or for that matter, 	the District) 	is unhappy with the mechanics
5 The Association rejects 	the 	opinion of 	another ALJ 	that
used 	as 	a 	standard whether 	advisory 	arbitration 	(as 	opposed 	to
binding 	arbitration) 	rendered 	the Association 	incapable 	of
performing 	its 	statutory 	mission. 	See 	Etiwanda 	Elementary 	School
District 	(1983) 	PERB Decision No. 	HO-U-189. 	While not binding on
these parties, 	the Etiwanda decision 	is persuasive but 	for the
Association's 	citation of 	the 	recent 	South Bay decision.
9

of the process. 	For example, 	if a grievance would normally need
to be 	filed within 	30 days 	of 	the 	alleged 	contract 	violation,
would the Association be 	less 	"inhibited" 	in its 	ability 	to
represent 	its 	members 	if 	the 	limitation period was 	extended 	to
one 	year? 	or 	five 	years? 	Obviously 	grievances 	filed 	outside 	the
limitations period 	leave those employees without a remedy, 	so why
should not 	the Association be 	able 	to 	file 	a grievance 	at 	any
time, 	with no 	limitations 	period? 	Such a 	result would 	follow by
accepting the Association's 	argument. 	Therefore, 	because 	even
under 	the 	"modified" 	Anaheim test 	the Association's 	freedom 	of
representation is 	not abridged, 	advisory arbitration is 	a
mandatory 	subject 	of 	bargaining.
As 	noted 	supra. 	the Association's position 	is 	also 	flawed
for other reasons. 	The Association's 	argument presupposes 	that
advisory 	arbitration 	and 	binding 	arbitration are 	two 	separate 	and
discrete processes, 	each one of which is 	a 	subject of bargaining.
But 	the 	more 	logical 	view is 	that 	advisory arbitration and
binding 	arbitration are both parts 	of 	the 	entire 	subject 	of
contract grievance resolution. 	In other words, 	as 	long as
grievance 	resolution 	is 	a 	mandatory 	subject 	of 	bargaining 	(and 	no
party has disputed this), 	the various manners 	or processes used
to 	resolve 	those 	grievances 	are 	automatically 	mandatory 	subjects
of 	bargaining. 	Statutory and 	case 	law have 	long 	favored
contractual 	agreements 	for 	resolution of problems 	arising 	under
particular 	statute. 	(See 	United 	Steelworkers 	of America 	v.
- -.
10

Warrior & Gulf Navigation Co. 	(1960) 	363 U.S. 	574.) 	That agreed
upon process 	may be 	limited 	to discussion by 	a 	joint
labor-management 	committee. 	Or 	it 	could 	involve 	a 	grievance
procedure 	that 	is 	binding when used but 	is 	only a 	voluntary
process. 	(See. 	e.g., 	Groves, 	et al. 	v. 	Ring Screw Works 	(1990)
498 	U.S. 	[59 U.S.L.W. 	4043; 	135 LRRM 3121].) 	But nowhere 	in
any of 	the 	case discussions 	concerning grievance processing 	is 	it
indicated 	that 	the 	negotiability 	of 	a 	grievance 	resolution
procedure 	is 	dependent upon the 	components 	of 	the procedure
itself. 	Instead, 	the question is whether grievance resolution
itself 	is mandatorily negotiable. 	Since 	it 	is, 	so must be the
myriad types 	of procedures 	used to 	achieve that 	resolution.
Finally, 	the Association's 	arguments 	are 	fatally 	flawed by
its 	inability to overcome 	established PERB precedent. 	In Anaheim
City School District 	(1983) 	PERB Decision No. 	364, 	the Board
specifically 	held 	that,
[Government Code] 	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. 	The Act places no
express 	restrictions 	or 	. . . 	limitations 	on
the 	types 	of 	grievance procedures which are
negotiable. 	The reference 	[in 	section
3543.2(a)] 	to subsections 3548.5 - 	.8 is
meant 	to 	reflect 	a 	specific 	legislative
sanctioning of binding arbitration. 	It
follows 	that 	a 	grievance procedure
culminating 	in advisory arbitration, 	a 	lower
level 	of 	terminal 	dispute 	resolution than
binding arbitration, 	is also negotiable.
(Anaheim City School 	District, 	supra.
pp. 	14-15, 	emphasis added, 	fns. 	omitted.)
11

Charging 	Party 	has 	presented 	no 	reason why 	this 	long-established
precedent 	should 	be 	overruled.
CONCLUSION AND 	ORDER
The 	District did 	not 	violate 	the 	Educational 	Employment
Relations Act when 	it bargained to 	impasse 	over a proposal 	to
maintain 	advisory 	arbitration 	in 	the 	collective 	bargaining
agreement. 	The charge and complaint 	in Case No. 	LA-CE-2964 	is
hereby 	DISMISSED.
Pursuant to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with 	the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the 	record, 	if 	any,
relied upon 	for 	such 	exceptions. 	See California Code 	of
Regulations, 	title 8, 	section 32300. 	A document is considered
"filed" 	when actually received before 	the 	close 	of 	business
(5:00 p.m.) 	on the last day set for filing 	". 	. 	. o r when sent by
telegraph or 	certified or Express 	United 	States 	mail, 	postmarked
not later than the last day set for filing 	. 	. 	. 	." 	See
California Code of Regulations, 	title 8, 	section 32135. 	Code of
Civil 	Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently with
its 	filing upon 	each party to 	this 	proceeding. 	Proof 	of 	service
12

shall 	accompany 	each 	copy 	served 	on 	a party 	or 	filed with 	the
Board itself. 	See California Code of Regulations, 	title 	8,
sections 32300, 	32305 and 32140.
Dated: 	February 27, 	1991
Martha 	Geiger
Administrative 	Law 	Judge
13