Fremont Unified School District (PERB 1036E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

UNITED PUBLIC EMPLOYEES, SERVICE
EMPLOYEES INTERNATIONAL UNION,
LOCAL 790,

Charging Party, Case No. SF-CE-1631
v. PERB Decision No. 1036
FREMONT UNIFIED SCHOOL DISTRICT, February 4, 1994

Respondent.

Appearances: Van Bourg, Weinberg, Roger & Rosenfeld by Stewart
Weinberg, Attorney, for United Public Employees, Service
Employees International Union, Local 790; Breon, O'Donnell,
Miller, Brown & Dannis by David A. Wolf, Attorney, for Fremont
Unified School District.

Before Caffrey, Carlyle and Garcia, Members.
DECISION

CAFFREY, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by United Public
Employees, Service Employees International Union, Local 790
(SEIU) of a Board agent’s dismissal (attached hereto) of its
charge. SEIU alleged that the Fremont Unified School District
(District) violated section 3543.5(a), (b) and (c) of the

Educational Employment Relations Act (EERA)! by unilaterally

1EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references 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
discriminate against employees, or otherwise to

changing the date on which employees observed Veterans' Day. 	In
dismissing the charge, the Board agent applied a post-arbitration
repugnanty analysis to the arbitrator's determination of the
issues, finding that the arbitrator's award was not repugnant to
the purposes of EERA.
The Board has reviewed the warning and dismissal letters,
SEIU's appeal, the District's response and the entire record in
this case. 	The Board finds the Board agent's dismissal to be
free of prejudicial error and adopts it as the decision of the
Board itself in accordance with the following discussion.
DISCUSSION
On appeal, SEIU contends that the Board agent erred in
dismissing the charge, asserting that it has a statutory right
under EERA to negotiate the school calendar independent of the
contract which provides for a Veterans' Day holiday. SEIU
contends that the grievance involved an alleged breach of a
contractual right, while the unfair practice charge filed with
PERB alleges a breach of a statutory right. Accordingly, SEIU
argues that a complaint should issue, allowing PERB to adjudicate
SEIU's statutory right to negotiate the matter.
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.
2

EERA section 3541.5 (a) grants the Board the discretion to
review an arbitration award to determine "whether it is repugnant
to the purposes of EERA. " In applying this discretion, the Board
has addressed the issue of the breach of a statutory right versus
a contractual right that SEIU raises here on appeal.
In Dry Creek Joint Elementary School District (1980) PERB
Order No. Ad-81a, the Board adopted the National Labor Relations
Board's (NLRB) standard to determine whether an arbitrator's
award is repugnant to the purposes of EERA. The NLRB standard
requires that :
1. 	The matters raised in the unfair practice
charge must have been presented to and considered
by the arbitrator;
2. The arbitral proceedings must have been fair
and regular;
'section 3541.5 states, in pertinent part, that PERB 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. 	The board shall have
discretionary jurisdiction to review the
settlement or arbitration award reached pursuant
to the grievance machinery solely for the purpose
of determining whether it is repugnant to the
purposes of this chapter. If the board finds that
the settlement or arbitration award is repugnant
to the purposes of this chapter, it shall issue a
complaint on the basis of a timely filed charge,
and hear and decide the case on the merits.
Otherwise, it shall dismiss the charge.
'Spielberg Manufacturing Company (1955) 112 NLRB 1080
[36 LRRM 1152] (Spielberg) and Collyer Insulated Wire (1971)
192 NLRB 837 [77 LRRM 1931] .
W

3. 	All parties to the arbitration proceedings
must have agreed to be bound by the arbitral
award; and
4 . 	The award must not be repugnant to the
National Labor Relations Act, as interpreted by
the NLRB.
In San Diego County Office of Education (1991) PERB Decision
No. 880, the Board cited the NLRB's further encouragement of
voluntary arbitration of disputes and the Board's proper deferral
to the arbitrator's award. The NLRB stated:
we adopt the following standard for deferral
to arbitration awards. We would find that an
arbitrator has adequately considered the unfair
labor practice if (1) the contractual issue is
factually parallel to the unfair labor practice
issue, and (2) the arbitrator was presented
generally with the facts relevant to resolving the
unfair labor practice. [Fn. omitted. ] In this
respect, differences, if any, between the
contractual and statutory standards of review
should be weighed by the Board as part of its
determination under the Spielberg standards of
whether an award is "clearly repugnant" to the
Act . 	. Unless the award is "palpably wrong, "
[Fn. omitted. ] i. e. , unless the arbitrator's
decision is not susceptible to an interpretation
consistent with the Act, we will defer. [olin
Corporation (1984) 268 NLRB 573 [115 LRRM 1056] . ]
Further, the Board has stated, "The possibility that this
Board may have reached a different conclusion in interpreting the
parties' agreement and the evidence does not render the award
unreasonable or repugnant . " (Los Angeles Unified School District
(1982) PERB Decision No. 218.)
In this case, the contractual issue is clearly parallel to
the issue SEIU raises in its unfair practice charge. 	The
arbitrator reached his conclusion after considering evidence and
facts which are relevant to the resolution of the unfair practice

charge . 	SEIU has failed to demonstrate that the arbitrator's
award is "clearly repugnant" or "palpably wrong. " Accordingly,
the Board affirms the Board agent's finding that the arbitrator's
award is not repugnant to the purposes of EERA and that the
charge should be dismissed.
ORDER
The unfair practice charge in Case No. SF-CE-1631 is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Member Garcia joined in this Decision.
Member Carlyle's concurrence begins on page 6.
UT

Carlyle, Member, concurring: This case is before the Public
Employment Relations Board (PERB or Board) on appeal by United
Public Employees, Service Employees International Union, Local
790 (SEIU) of a Board agent's dismissal of its charge. SEIU
alleged that the Fremont Unified School District (District)
violated section 3543.5(a), (b) and (c) of the Educational
Employment Relations Act (EERA) by unilaterally changing the
date on which employees observed Veterans' Day.
I have reviewed the attached warning and dismissal letters,
the original unfair practice charge, SEIU's appeal, the
District's opposition to appeal, and the entire record in this
case. 	I find the Board agent's dismissal and incorporation of
the warning letter to be free of prejudicial error and adopt it
as my decision. 	Period.
What has just been written is the language utilized in an
approach known as summary affirmance. 	It is a practice which has
been around PERB for years. It is most common in occurrence of
JEERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references 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
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.

an appeal to the dismissal of a charge, amended or not. The
Board reviews the charge, the Board agent's warning letter which
sets out the law, the dismissal letter which invariably merely
incorporates the warning letter by attachment, and the papers
filed by any and all parties on appeal. If the circumstances
warrant it, and they usually do, particularly in an unamended
charge as is this case, then summary affirmance by the Board
as indicated previously herein follows.
There are two policy reasons for this approach which has
served this Board well through the years. First, the charging
party has had ample opportunity to make his/her case and has been
given a detailed letter listing the shortcomings of the charge.
Assuming the warning letter is accurate, no more is needed.
Second, and this is the danger of adopting the Board
agent's work and then adding surplusage as the new majority has
done in this case, section 3542 (b) precludes the unsuccessful
party from making an appeal to the courts of the decision of the
Board not to issue a complaint. I see no redeeming value under
the facts of this case to add language which, cannot by law, be
subject to further review. In my opinion, and in the apparent
opinion of members of this Board spanning two prior Governors,
the benefits conferred by such illumination do not outweigh the
inherent danger of future troublesome language, no matter how
well intentioned at the time.

This is not the first time that the new majority has seen
fit to depart with past practices of PERB on procedural issues,
or on matters more substantive in nature.' Nor will it be the
last .
See Los Angeles Unified School District (1993) PERB Order
No. Ad - 249	
Ad~249.
See California Union of Safety Employees (Coelho) (1994)	Emgloyees
PERB Decision No. 1032-S, pp. 14-17.
8

STATE OF CALIFORNIA	STATE 	PETE WILSON, Governor	P£TE	
Gov-r
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737	San
(415) 557-1350
October 19, 1993
Stewart Weinberg
Van Bourg, Weinberg, Roger & Rosenfeld
875 Battery Street
San Francisco, California 94111
Re : 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE	UNFAIR 	CHARGE/REFUSAL
COMPLAINT
United Public Employees, Service Employees International
Union, Local 790 v. Fremont Unified School District
Unfair Practice Charge No. SF-CE-1631
Dear Mr. Weinberg:
The above-referenced unfair practice charge filed on May 10,
1993, alleges that the Fremont Unified School District (District)
unilaterally changed the date on which employees observed
Veterans' Day . 	This conduct is alleged to violate Government
code section 3543.5(a), (b) and (c) of the Educational Employment
Relations Act (EERA) .
I indicated to you, in my attached letter dated October 8, 1993,
that the above- referenced charge did not state a prima facie
case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the
deficiencies explained in that letter, you should amend the
charge. You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to
October 18, 1993, the charge would be dismissed.
.
I have not received either an amended charge or a request for
withdrawal. Therefore, I am dismissing the charge based on the
facts and reasons contained in my October 8, 1993, letter.
Right to Appeal	
Appeal
Pursuant to Public Employment Relations Board regulations, you
may obtain a review of this dismissal of the charge by filing
an appeal to the Board itself within twenty (20) calendar days
after service of this dismissal. (Cal. Code of Regs. , tit. 8,
sec. 32635 (a) . ) To be timely filed, the original and five copies
of such appeal must be actually received by the Board itself

Dismissal, etc.
SF - CE- 1631
October 19, 1993
Page 2 2
before the close of business (5 p.m. ) or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. Code of Regs. , 	tit . 8,	
tit~
sec. 32135.) Code of Civil Procedure section 1013 shall apply.
The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
If you file a timely appeal of the refusal to issue a complaint,
any other party may file with the Board an original and five
copies of a statement in opposition within twenty (20) calendar
days following the date of service of the appeal. 	(Cal. Code of
Regs. , tit. 8, sec. 32635 (b) . )
Service
All documents authorized to be filed herein must also be "served"	
to
upon all parties to the proceeding, and a "proof of service"
must accompany each copy of a document served upon a party or
filed with the Board itself. (See Cal. Code of Regs . , tit. 8,
sec. 32140 for the required contents and a sample form. ) The
document will be considered properly "served" when personally
delivered or deposited in the first-class mail, postage paid and
properly addressed.
Extension of Time
A request for an extension of time, in which to file a document
with the Board itself, must be in writing and filed with the
Board at the previously noted address. 	A request for an
extension must be filed at least three (3) calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, if known, the
position of each other party regarding the extension, and shall
be accompanied by proof of service of the request upon each
party . 	(Cal. Code of Regs. , tit. 8, sec. 32132.)

Dismissal, etc.
SF - CE - 1631
October 19, 1993
Page 3
Final Date
If no appeal is filed within the specified time limits, the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General Counsel
By
DONN GINOZA
yD~-
Regional
Regional Attorney
Attachment
cc: David A. Wolf
B 	-
yD~-
DONN GINOZA
Regional

STATE OF CALIFORNIA 	PETE WILSON, Governor	GovtJroor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office	Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
October 8, 1993
Stewart Weinberg
Van Bourg, Weinberg, Roger & Rosenfeld
875 Battery Street
San Francisco, California 94111
Re: 	WARNING LETTER	
WARNING
United Public Employees, Service Employees International	
Employees.
	Employees
Union, Local 790 v. Fremont Unified School District
Unfair Practice Charge No. SF-CE-1631
Dear Mr. Weinberg:
The above-referenced unfair practice charge filed on May 10,
1993, alleges that the Fremont Unified School District (District)
unilaterally changed the date on which employees observed
Veterans' Day. 	This conduct is alleged to violate Government
code section 3543.5(a) , (b) and (c) of the Educational Employment
Relations Act (EERA) .
Investigation of the charge revealed the following. United
Public Employees, Service Employees International Union, Local
790 (SEIU) exclusively represents a bargaining unit of District
classified employees. SEIU and the District are parties to a
collective bargaining agreement effective from July 1, 1992
through June 30, 1995. 	The parties' 1989-92 agreement expired by
its terms on June 30, 1992. The first negotiating session for a	
June
new contact took place on June 16, 1992. At that meeting, SEIU
requested a written extension of the old contract. The District
negotiator responded that the District would not agree to a
signed extension, but that the status quo would be protected	
quo
during negotiations. The District proposed granting the
Veterans' Day holiday but having it observed on Friday, November
13, rather than Wednesday, November 11, 1992, the official date
of the holiday. SEIU countered by proposing that the District
grant an additional holiday in exchange for moving Veteran's Day
to the 13th.
Article 10, section 10.4 of the expired agreement states:	.
The District shall determine the confirmation
of the calendar and determine whether one (1)
holiday in addition to 1980-81 shall be
floating or otherwise scheduled. Admission
Day Holiday will be subsumed in Martin Luther
King, Jr. holiday.
Article 10, section 10.6 states in pertinent part:

Warning Letter
SF - CE- 1631
October 8, 1993
Page 2
The Board agrees to provide all eligible
employees with the following paid holidays:
10.6.3 Veterans' Day
SEIU filed a grievance on November 10, 1992 at a time when they
were still negotiating over the observance date of Veterans' Day.
The District had directed employees to take November 13 as the
Veterans' Day holiday when no agreement was reached.
An arbitration hearing was conducted on May 13, 1993 and the
arbitrator, Frank Silver, issued his decision in favor of the
District on August 3, 1993. Silver found that the contract's
mere designation of Veterans' Day as a holiday in Article 10,
section 10.6 does not require its observance on November 11.
Silver relied on Article 10, section 10.4 and read that provision
to impose a duty on both the District and SEIU to "consult and
confirm" the holidays in light of the school calendar. 	Silver
further concluded that there was an obligation on both parties
that confirmation of the holidays would not be unreasonably
withheld. Silver found that SEIU unreasonably withheld its
confirmation of the holiday in light of the fact that (1) SEIU
had agreed in 1986 and 1987 to move the holiday to a Monday or a
Friday (in return for a commitment that veterans could take
November 11 off as a sick day) and (2) the District had agreed
with the exclusive representative of the certificated bargaining
unit for the November 13 observance day which meant that school
would be in session on November 11, and the absence of classified
employees on that date would be disruptive to District
operations.
Based on the facts stated above, the charge as presently written
fails to demonstrate that the arbitrator's award is repugnant to
the EERA, and therefore it must be dismissed.
Section 3541.5 (a) of the EERA states, in pertinent part, that the	EERA
Public Employment Relations Board (PERB) shall not:
Issue a complaint against conduct also
prohibited by the provisions of the
[collective bargaining agreement in effect]
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. 	The board shall have
discretionary jurisdiction to review the

Warning Letter
SF- CE- 1631
October 8, 1993
Page 3
settlement or arbitration award reached
pursuant to the grievance machinery solely
for the purpose of determining whether it is
repugnant to the purposes of this chapter.
If the board finds that the settlement or
arbitration award is repugnant to the
purposes of this chapter, it shall issue
complaint on the basis of a timely filed
charge, and hear and decide the case on the
merits . 	Otherwise, it shall dismiss the
charge.
(See also PERB Reg. 32661 [Cal. Code of Regs. , tit. 8,
sec. 32661] ; Los Angeles Unified School District (1982) PERB Dec.
No. 218; Dry Creek Joint Elementary School District (1980) PERB
Order No. Ad- 81a.)
In Los Angeles Unified School District, supra, PERB Dec. No. 218,	
supra,
PERB held that an arbitrator's decision is not repugnant if the
unfair practice issue is "parallel" to the contractual issue and
the arbitrator has considered all of the evidence relevant to the
unfair practice charge. 	In the instant case, SEIU's claim of a
unilateral change is grounded in the contract and there is no
suggestion that the arbitrator failed to consider all of the
evidence relevant to the alleged repudiation of the contractual
provisions. Accordingly, the arbitrator's award is not repugnant
to the EERA and PERB is without authority to issue a complaint.
If there are any factual inaccuracies in this letter or any
additional facts which would require a different conclusion than
the one explained above, please amend the charge. The amended
charge should be prepared on a standard PERB unfair practice
charge form clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under
penalty of perjury by the Charging Party. The amended charge
must be served on the Respondent and the original proof of
service filed with PERB. If I do not receive an amended charge
or withdrawal from you before October 18, 1993, I shall dismiss
your charge without leave to amend. 	If you have any questions,
please call me at (415) 557-1350.
Sincerely,
~---DONN GINOZA
Regional Attorney