Mt. Diablo Unified School District (PERB 0844E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
MT. 	DIABLO EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
MT. 	DIABLO UNIFIED SCHOOL
DISTRICT,
Respondent.
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)
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) 	Case No. 	SF-CE-1287
PERB 	Decision No. 	844
October 	1, 	1990
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Appearances: 	A. 	Eugene Huguenin, 	Jr., Attorney, 	for Mt. 	Diablo
Education Association, 	CTA/NEA; 	Breon, 	O'Donnell, 	Miller, 	Brown &
Dannis by Martha Buell Scott, 	Attorney, 	for Mt. 	Diablo Unified
School 	District.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the Mt.
Diablo 	Unified 	School District 	(District) 	to a proposed decision
(attached) 	issued by a PERB administrative law judge 	(ALJ). 	The ALJ
found that the District violated section 3543.5(c), 	(e) 	and,
derivatively 	(b) 	of 	the Educational 	Employment Relations Act 	(EERA
or Act)1 when it insisted to 	impasse that the Mt. 	Diablo Education
Association, 	CTA/NEA 	(Association): 	(1) 	waive its right to file
grievances 	in its own name; 	and, 	(2) 	waive its right to arbitrate
grievances 	in cases where 	the 	individual 	grievant does 	not wish 	to
pursue 	the 	grievance 	to 	arbitration. 	We have 	carefully reviewed 	the
JEERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.
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entire record, 	including the proposed decision, 	the District's
exceptions 	to the proposed decision, 	and the Association's 	response
to 	the District's 	exceptions. 	We note that all of the 	arguments
raised 	in the 	District's 	exceptions 	were 	considered 	and 	addressed 	by
the ALJ. 	Except as 	noted below, 	we 	find the ALJ's 	findings 	of 	fact
and 	conclusions 	of 	law to be 	free of prejudicial 	error 	and adopt
them as 	the decision of 	the 	Board 	itself.
Furthermore, 	since the 	issuance of 	the proposed decision and
the 	filing of the 	exceptions 	and response 	in this 	case, 	the Board
issued 	a decision 	in the 	case of 	Chula Vista City 	School 	District
(1990) 	PERB Decision No. 	834 	(Chula Vista) 	. 	The primary legal
issues 	raised 	in this 	case were decided by the Board 	in Chula Vista.
In Chula Vista, 	a majority of 	the Board 	found that: 	an exclusive
representative has 	a 	statutory right 	to 	file grievances 	in 	its 	own
name; 	proposals 	that an exclusive representative waive 	that right
are nonmandatory 	subjects of bargaining; 	and, 	a 	school district
violates 	EERA by 	insisting 	to 	impasse 	that 	an 	exclusive
representative waive 	its 	statutory right 	to 	file 	grievances 	in 	its
own name. 	(Id. 	at pp. 	18-23.)
Additionally, 	the majority 	in Chula Vista 	found that 	the 	school
district's 	insistence 	to 	impasse 	on a proposal 	limiting 	an 	exclusive
representative's 	ability 	to 	take 	a 	grievance 	to 	arbitration without
the 	grievant's 	approval 	violated EERA. 	The 	majority 	found 	that 	the
proposal 	impinged 	upon 	the 	exclusive 	representative's 	statutory
right 	to 	represent 	its 	members 	and was 	therefore 	also 	a 	nonmandatory
subject of bargaining. 	(Id. 	at pp. 	31-35.)
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22

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.2
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law and
the entire record in this 	case, 	it is 	found that the Mt. 	Diablo
Unified School District has violated 	section 	3543.5(c) 	and 	(e) 	and,
derivatively, 	(b) 	of the Educational Employment Relations Act.
Pursuant to 	section 3541.5(c) 	of the Government Code, 	it hereby is
ORDERED that the Mt. 	Diablo Unified School District, 	its 	officers
and representatives 	shall:
2In Chula Vista, 	the majority 	found that application of 	the
Anaheim 	test 	to determine 	the 	negotiability of 	the 	grievance
proposals 	was 	unnecessary 	since 	the 	District was 	not 	actually
insisting to 	impasse on a term or condition of 	employment, 	but
was 	rather 	insisting 	that 	the Association waive 	a 	basic 	statutory
right. 	(Chula Vista City School 	District, 	supra. 	PERB Decision
No. 	834, at pp. 	22-23.)
W3

A. 	CEASE AND DESIST FROM:
1. 	Insisting to 	and during 	impasse 	on contractual
language 	outside the 	scope 	of 	representation which has 	the 	effect 	of
restricting 	the Association's 	right 	to 	file grievances 	on behalf 	of
individual 	unit members 	and to take 	grievances 	to 	arbitration.
2. 	Enforcing and giving 	effect 	to those portions 	of
Article 	IX of 	the 	current 	agreement between the parties which
restrict 	the 	right 	of the Association to 	file 	and arbitrate
grievances 	to 	only 	alleged violations 	of 	the Recognition, 	Grievance
Procedure, 	Organizational 	Security and Savings 	clauses 	of 	the
agreement.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES 	OF THE ACT:
1. 	Accept 	grievances 	filed by the Association on behalf
of 	individual 	unit 	members 	as 	appropriate under the 	timelines 	and
subject matter requirements 	of 	the agreement between the parties.
2. 	Process 	grievances 	through all 	steps 	of 	the 	grievance
procedure, 	including arbitration, 	initiated by the Association on
behalf of 	individual unit members, 	regardless 	of whether the
grievance was 	resolved 	"to 	the 	satisfaction of 	the grievant" 	during
the 	initial 	steps.
3. 	Within thirty-five 	(35) 	days 	following the date this
Decision is 	no 	longer 	subject to reconsideration, 	post at all work
locations where notices 	to employees 	customarily are placed, 	copies
of 	the Notice 	attached as 	an Appendix hereto, 	signed by an
authorized agent 	of 	the 	employer. 	Such posting 	shall be maintained
for a period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
4

shall be 	taken to 	insure that this 	Notice 	is not reduced 	in 	size,
defaced, 	altered or 	covered by any material.
4, 	Written notification of 	the actions 	taken to 	comply
with this 	Order 	shall be made 	to 	the 	San Francisco 	Regional 	Director
of 	the 	Public 	Employment 	Relations 	Board 	in accordance with 	her
instructions.
Member Camilli 	joined in this 	Decision.
Chairperson Hesse's 	concurrence begins 	on page 	6.
s

Hesse, 	Chairperson, 	concurring: 	While I agree with the
majority's 	conclusion that the Mt. 	Diablo Education Association,
CTA/NEA 	(Association) 	has 	the 	statutory right to be 	a named
grievant, 	I write 	separately to address 	the 	stipulated record and
present my 	legal 	analysis 	for 	finding 	such a 	statutory right.
Before 	reaching 	the 	issue 	of whether the Association's 	right
to 	be 	a 	named grievant 	is 	a mandatory or nonmandatory 	subject of
bargaining or 	statutory right, 	the 	Board must determine whether
the Mt. 	Diablo Unified School 	District 	(District) 	insisted to
impasse on its 	grievance proposals. 	In his proposed decision,
the administrative 	law judge 	(ALJ) 	states:
The 	only 	remaining 	question 	is 	whether 	the
Employer maintained 	its 	position to 	impasse.
An employer 	fails 	to 	negotiate 	in good 	faith
when 	it demands 	to 	impasse 	that 	the 	exclusive
representative 	"abandon rights 	guaranteed"
under the EERA. 	Modesto City 	Schools 	(1983)
PERB Decision No. 	291.
The 	stipulation resolves 	this 	matter
unequivocally. 	It 	is 	absolutely clear that,
over 	Onion objections 	the 	Employer maintained
its 	insistence 	on the 	disputed 	language 	to
impasse. 	The parties 	stipulated that the
District maintained 	its 	position on the
grievance 	language 	through the meetings 	of
October 10, 	22 and 25, 	the last meetings
prior to the Employer's 	declaration of
impasse on November 8, 	1988. 	[Fn. 	omitted.]
The 	stipulation 	likewise makes 	it 	clear that
the 	Employer continued 	its 	insistence 	on the
disputed 	grievance 	language 	during 	the
mediation process. 	When the Union finally
acceded to 	the 	Employer's 	demand on
January 25, 	1989, 	it was with clear notice to
the 	Employer that 	it 	intended to pursue 	the
dispute through a 	PERB hearing. 	The 	Employer
accepted 	this 	position and 	the dispute was
kept alive despite 	the agreement.
(Proposed Decision, 	p. 	21.)
66

While 	I 	agree with the ALJ's 	finding that 	the 	District
insisted to 	impasse, 	I do not believe that the 	stipulation is
"absolutely 	clear." 	The 	stipulated 	record 	states 	that 	throughout
bargaining and mediation, 	both the 	District 	and Association
maintained 	their respective positions 	on the 	grievance 	article.
However, 	the 	allegations 	in the amended unfair practice 	filed on
January 	4, 	1989 and the March 	15, 	1989 	letter from the
Association's 	Executive 	Director to 	the 	District's 	Human
Resources 	Director 	indicate 	that 	the 	District 	insisted 	to 	impasse
on the 	grievance 	article. 	The amended unfair practice 	charge
alleges 	the 	District 	insisted to 	impasse 	on a 	nonmandatory
subject of bargaining. 	The March 	15, 	1989 	letter indicates 	the
Association placed 	the 	District 	on notice 	of 	its 	objections 	to
the 	District's 	proposed 	grievance procedure 	on the 	grounds 	that
the 	exclusive 	representative has 	a 	statutory right 	to 	file 	a
grievance 	in its 	own name. 	As 	the 	District has 	not disputed
these allegations 	or 	statements, 	it appears 	the 	stipulated record
supports 	the 	conclusion that 	the District 	insisted to 	impasse.
Further, 	the District did not 	except to this 	finding by the ALJ
in his proposed decision.
Only 	after 	the 	Board has 	determined 	that 	the 	District
insisted 	to 	impasse on its 	grievance proposals 	does 	the 	Board
reach the 	issue 	of whether the Association's 	right 	to be 	a 	named
grievant 	is 	a 	mandatory 	or 	nonmandatory 	subject 	of 	bargaining 	or
statutory right. 	Consistent with my concurrence 	in Chula Vista
City School District 	(1990) 	PERB Decision No. 	834 	(Chula Vista).
I 	find that 	the Association has 	the 	statutory right 	to be 	a 	named
77

grievant. 	In reaching this 	conclusion, 	I 	relied upon the
reasoning 	in a 	recent Court 	of Appeal 	decision 	in
Lillebo v. 	Davis 	(1990) 	218 Cal.App.3d 	1588. 	I also noted that
the 	decision had been vacated by the California 	Supreme 	Court
with direction to 	the Court 	of Appeal 	to reconsider the 	case 	in
light of 	the United States 	Supreme 	Court's 	opinion 	in Keller v.
State 	Bar of 	California 	(1990) 	U.S. 	[110 S.Ct. 2228],
Subsequent to my Chula Vista 	concurrence, 	the Court of
Appeal 	amended and reissued 	its 	opinion 	in Lillebo v. 	Davis
(August 20, 	1990, 	C006009) 	Cal.App.3d 	. 	In analyzing the
right 	of 	individual 	employees 	to 	represent 	themselves 	in their
employment relations with the 	State, 	the 	court again reviewed the
pertinent provisions 	of 	the 	Ralph C. 	Dills Act 	and 	concluded that
the 	individual 	employee has 	the 	right 	to 	the grievance procedure
only 	to 	the 	extent 	it 	is 	created by the 	collective 	bargaining
agreement 	negotiated 	and 	administered by 	the 	exclusive
representative. 	(See my concurrence 	in Chula Vista, 	supra, 	PERB
Decision No. 	834, pp. 	82-84.)
Although 	I 	still believe 	the 	Educational 	Employment
Relations Act 	does 	not 	contain explicit 	statutory 	language
providing that 	an exclusive representative has 	the right 	to be 	a
named grievant, 	I 	find the court's discussion in Lillebo v. 	Davis
controlling. 	In the present case, 	as the enforcement of the
individual 	employee's 	rights 	are 	dependent 	upon 	the 	exclusive
representative's 	representation, 	I 	find the Association has 	the
statutory right 	to be a named 	grievant.
8

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	SF-CE-1287, 	Mt.
Diablo Education Association. 	CTA/NEA v. 	Mt. 	Diablo Unified School
District, 	in which all parties had the right to participate, 	it has
been found that the Mt. 	Diablo Unified School 	District has violated
section 3543.5(b), 	(c) 	and 	(e) 	of the Educational Employment
Relations Act 	(Act)• 	The District violated the Act when it 	insisted
to 	and during 	impasse 	on clauses 	which would restrict 	the
Association's 	ability to 	file and 	arbitrate 	grievances, 	matters
outside 	the 	scope of 	representation, 	and 	continued to 	insist 	on
these provisions 	during the 	impasse 	resolution procedures.
As 	a result of 	this 	conduct, 	we have been ordered to post this
Notice 	and we will abide by the 	following. 	We will:
A. 	CEASE AND DESIST FROM:
1. 	Insisting to and during 	impasse 	on 	contractual
language 	outside the 	scope of 	representation which has 	the 	effect 	of
restricting the Association's 	right to 	file 	grievances 	on behalf 	of
individual unit members 	and to take 	grievances 	to arbitration.
2. 	Enforcing and giving 	effect to those portions 	of
Article 	IX of 	the 	current 	agreement between the parties which
restrict 	the 	right 	of the Association to 	file 	and arbitrate
grievances 	to only alleged violations 	of 	the Recognition, 	Grievance
Procedure, 	Organizational 	Security and Savings 	clauses 	of 	the
agreement.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Accept grievances 	filed by the Association on behalf
of 	individual 	unit members 	as 	appropriate under the 	timelines 	and
subject matter requirements 	of 	the 	agreement between the parties.
2. 	Process 	grievances 	through all 	steps 	of 	the grievance
procedure, 	including arbitration, 	initiated by the Association on
behalf of 	individual unit members, 	regardless 	of whether the
grievance was 	resolved 	"to the 	satisfaction of 	the 	grievant" 	during
the initial 	steps.
Dated: 	MT. 	DIABLO UNIFIED
SCHOOL 	DISTRICT
By:
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST
NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL,
e

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MT. 	DIABLO EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
MT. 	DIABLO UNIFIED SCHOOL
DISTRICT,
Respondent.
)
)
)
) 	Unfair 	Practice
Case No. 	SF-CE-1287
PROPOSED 	DECISION
(11/6/89)
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Appearances: 	A. 	Eugene Huguenin, 	Jr., 	California Teachers
Association Staff Attorney, 	for the Mt. 	Diablo Education
Association, 	CTA/NEA; 	Breon, 	O'Donnell, 	Miller, 	Brown & Dannis by
Gregory J. 	Dannis and Martha Buell 	Scott, 	Attorneys 	for the Mt.
Diablo 	Unified 	School 	District.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
An 	exclusive 	representative 	here 	challenges 	a public 	school
employer's 	insistence to 	impasse 	on contractual 	limits 	to 	the
union's 	right to 	file and process 	grievances 	in its 	own name.
The union contends 	that 	such 	limits 	restrict 	its 	right 	to 	serve
as 	exclusive 	representative 	and that 	the 	employer's 	insistence
upon them was 	a 	failure to negotiate 	in good faith.
The 	employer replies 	that 	the union has 	no 	statutory right
to 	file and process 	grievances 	in its own name. 	Rather, 	the
employer continues, 	the contractual 	grievance procedure 	is 	a
mandatory subject of bargaining. 	Therefore, 	the employer
concludes, 	it was 	entitled to maintain to 	impasse 	its 	insistence
on the 	restrictive 	language.
The Mt. 	Diablo Teachers Association, 	CTA/NEA, 	(Union) 	filed
the 	charge which commenced this action on November 23, 	1988. 	The
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
__)

Union amended the charge, 	adding the allegations 	at 	issue here,
on January 5, 	1989. 	The General Counsel 	of the Public 	Employment
Relations Board 	(PERB or Board) 	followed on March 	15, 	1989, 	with
a 	complaint 	against 	the Mt. 	Diablo 	Unified 	School 	District
(District or Employer).
The 	complaint 	alleges 	that 	the 	District 	failed 	to 	negotiate
in good 	faith by 	insisting to 	impasse 	on 	continuation of 	a
grievance procedure which prevents 	the 	Union from 	filing 	and
processing 	grievances 	on behalf 	of 	individuals 	in the 	Union's 	own
name. 	Under the disputed 	language, 	grievances 	of 	an individual
employee 	have 	to be 	filed by 	and 	signed by the 	aggrieved
individual. 	Once 	filed, 	grievances 	cannot be processed through
arbitration without 	the 	individual 	employee's 	continued 	assent.
In addition, 	the complaint alleges, 	the Employer maintained
its 	position through the 	impasse procedure 	and 	thereby 	failed 	to
participate 	in the 	impasse procedures 	in good 	faith.1 The
complaint alleges 	that 	the Employer's 	acts were violations 	of
Educational Employment Relations Act sections 3543.5 	(a), 	(b) ,
(c) and (e).2
1The 	complaint 	also 	set 	out 	certain other 	allegations 	about
a 	unilateral 	change 	in the health and welfare benefit plan. 	On
July 	25, 	1989, 	all portions 	of the complaint dealing with the
health and welfare benefit plan were 	removed 	from the 	case.
Because 	these 	issues 	are 	no 	longer 	in contention it 	is
unnecessary to here 	list 	them.
2Unless 	otherwise 	indicated, 	all 	statutory references 	are to
the Government Code. 	The 	Educational 	Employment Relations Act
(EERA) 	is 	found at Government Code 	section 3540 	et 	seq. 	In
relevant part, 	section 3543.5 provides as 	follows:
It 	shall be unlawful 	for a public 	school 	employer to:
2

(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.
(e) 	Refuse to participate 	in good faith 	in the 	impasse
procedure 	set 	forth 	in Article 	9 	(commencing with
Section 	3548).
The District answered the complaint on April 	6, 	1989,
denying 	that 	it 	had 	failed 	to 	negotiate 	in good 	faith 	or had
otherwise committed an unfair practice. 	On July 	12, 	1989, 	the
parties 	filed a 	stipulated record 	in 	lieu of 	a hearing.
Following 	several 	extensions, 	the parties 	completed the briefing
of 	legal 	issues on October 27, 	1989, 	and the case was 	submitted
for decision.
FINDINGS OF 	FACT
The 	following 	findings 	of 	fact 	are 	drawn 	from the 	complaint
and 	answer, 	the 	stipulation and the 	exhibits 	submitted by 	the
parties.
The Mt. 	Diablo Unified School 	District 	is 	a public 	school
employer. 	At all times relevant, 	the Mt. 	Diablo Education
Association, 	CTA/NEA, 	has been the exclusive representative of an
appropriate unit 	of 	the District's 	certificated 	employees.
During the period from April 	1988 	through October 	1988, 	the
parties 	were 	meeting 	and 	negotiating 	for 	a 	successor 	to 	a
W
	3

collective agreement which expired, on June 30, 	1988. 	On or about
April 26, 	1988, 	the Employer sunshined its 	initial proposal 	for
the 	successor agreement. 	In this proposal 	the Employer proposed
to continue, 	without change, 	provisions of Article IX, 	Grievance
Procedure.
Under Article 	IX, 	the Employer will process 	as 	grievances
only 	allegations 	made and 	signed by an 	individual 	employee 	or
group of 	individual 	employees. ' 	The provisions 	of Article 	IX
limit 	the 	Union's 	right 	to 	file 	grievances 	to 	the 	following
articles: 	Recognition, 	Grievance Procedures, 	Organizational
Security 	and 	Savings.
In addition, 	Article 	IX restricts 	the advancement of a
grievance 	from 	informal 	to 	formal 	status 	only where 	the 	issue 	is
not 	resolved 	informally 	"to 	the 	satisfaction of 	the 	grievant."4
3Article 	IX 	sets 	out the 	following definitions:
a. 	"Grievance" 	means a complaint of one or
more unit members 	that they have been
adversely 	affected by 	a 	violation,
misapplication, 	or misinterpretation of 	this
agreement.
b. 	"Grievant" 	means the unit member or unit
members 	filing the grievance. 	The
Association may be 	the 	grievant 	on alleged
violations of Recognition, 	Grievance
Procedure, 	Organizational Security and
Savings [clauses].
4Article IX, 	section 22 	(a) 	provides 	in relevant part as
follows:
a. 	If an alleged violation is 	not resolved
in 	informal discussion to the 	satisfaction of
the grievant, 	a 	formal grievance may be
initiated. . . .
4

The 	grievant must 	sign the 	grievance 	form for 	it 	"[t]o be
accepted" 	as 	a 	formal grievance.5 The 	grievance 	then can proceed
to 	arbitration only 	if 	the 	"grievant 	is 	not 	satisfied" 	with the
resolution of the 	formal process.6
The Union's 	initial proposal, 	dated February 	1988, 	proposed
to 	amend provisions 	of Article 	IX to allow the 	Union to 	file 	a
grievance alleging violations 	of 	any article 	in the agreement.
While 	meeting 	and 	negotiating during the months 	of 	May 	through
September 	1988, 	the Union 	steadfastly maintained 	its 	demand that
the 	Employer agree 	to expand 	the definition of 	"grievant" 	to
include the Union for all purposes. 	At the 	same time, 	the
Employer 	steadfastly maintained 	its 	position to 	retain 	the 	status
quo 	language on this 	subject.
5Article IX, 	section 22 	(b) 	provides 	in relevant part as
follows:
b. 	A 	formal 	grievance 	shall 	be 	initiated 	in
writing 	. . . . 	To 	be 	accepted 	the 	form
must include . 	. 	. 	the signature of the
grievant(s). 	[Emphasis added.]
6Article 	IX, 	section 24 provides 	in relevant part as
follows:
The Association may 	submit 	the 	grievance 	to 	final 	and
binding arbitration if 	either:
a. 	The grievant 	is 	not 	satisfied with the
disposition of 	the grievance at Step 	2 	or
b. 	No written decision has been rendered
within 	fifteen 	(15) 	work days 	. . . .
[Emphasis 	added.]
55

During the negotiations, 	the Employer's representative,
Gloria Mikuls, 	stated time 	after time 	in negotiating 	sessions
that 	the 	Board of 	Trustees would never agree to a provision under
which the 	Union could initiate 	and process 	grievances 	other than
those 	initiated by an individual 	employee. 	Union representative
Diane 	Schmidtke 	objected 	that 	the 	Employer's position placed 	the
Union and all 	employees 	in the bargaining unit 	in the hands 	of 	an
individual 	employee, 	who might be afraid to process 	a grievance.
In response, 	Mikuls 	stated on behalf of 	the Employer that 	it was
the 	Union's 	responsibility to 	educate 	employees 	so 	they would
come 	forward with 	grievances.
On October 10, 	1988, 	and again on October 22, 	1988, 	Employer
representative 	Mikuls 	presented 	District 	proposals 	to 	maintain
the 	status 	quo 	language on Article 	IX, 	section 	16.7 The Union
continued to demand a change 	in the 	language of Article 	IX,
section 	16, 	during these meetings 	and in a proposal 	of
October 25. 	On October 25, 	1988, 	Union representatives appealed
to 	the 	District 	that 	their position on the 	filing 	of 	grievances
was 	supported by the 	decision of 	a 	PERB 	administrative 	law 	judge
in another case.8
Proposals 	advanced by the Union on October 	2 5 	refer to
grievance 	forms 	developed 	jointly by the 	Union and 	the 	District 	a
year earlier, 	on September 23, 	1987. 	Union representatives did
7Section 	16 	sets out the definition of 	"grievance" 	and
"grievant."
8San Diego 	Unified School 	District 	(1987) 	PERB 	Decision
No. HO-U-314.
66

not 	question the Union's 	organizational 	status 	as 	a 	grievant 	in
discussions 	with 	District 	representative 	Gloria 	Mikuls 	during 	the
meeting where 	the 	forms were developed. 	The grievance 	forms
require 	the 	signature of 	the grievant. 	Under the Employer's
proposal 	the 	grievant must 	be 	an 	individual 	employee whereas
under the 	Union's proposal 	the 	grievant 	could be 	a 	Union
representative.
On or about November 8, 	1988, 	Employer representative Mikuls
declared 	an 	impasse 	in the 	negotiations 	for the 	successor
agreement. 	On November 	10, 	1988, 	Mikuls 	filed with the PERB a
"Request 	for 	Impasse 	Determination/Appointment 	of 	Mediator." 	In
this 	filing 	the 	Employer 	listed as 	among 	those 	issues 	remaining
in dispute, 	"Grievance 	(Association as Grievant)."
During 	the 	mediation 	sessions 	which 	followed 	the 	Employer's
declaration of 	impasse, 	Employer representatives 	maintained 	their
negotiating position of 	status 	quo on the 	grievance procedure.
Union 	representatives 	maintained 	their 	negotiating 	position 	that
the 	contract 	should be 	changed by 	redefining 	"grievant" 	to
include the Union for all purposes.
On or about January 4, 	1989, 	the Union advised the Employer
that 	it 	had 	filed 	an amended unfair practice 	charge with 	the
PERB. 	The 	charge placed 	the 	Employer on notice 	that 	the 	Union
believed that 	the 	Employer had 	failed to 	negotiate 	in good 	faith
by 	its 	insistence on the 	grievance 	limitation 	language. 	On or
about January 	19, 	1989, 	representatives of the Employer again
insisted as 	a 	condition for 	settlement that 	the Union accept 	the
7

status 	quo 	grievance procedure proposed by the 	Employer. 	The
Union refused, 	maintaining 	its 	demand 	for a 	redefinition of
"grievant" 	to 	include the Union for all purposes.
On or about January 25, 	1989, 	representatives of the Union
counterproposed a 	settlement which 	again 	included, 	among other
items, 	the redefinition of 	"grievant." 	Later that day, 	the
PERB-appointed 	mediator 	suggested 	that 	the parties 	attempt 	to
"clear the table" 	of unresolved issues. 	In response,
representatives 	of 	the 	Union 	and the 	Employer 	considered 	a 	number
of 	items 	for tentative agreement. 	Among those was Article 	IX,
Grievance 	Procedures.
When Article 	IX was 	considered, 	representatives 	of the
Employer 	stated 	that 	the 	grievance 	procedure proposed 	by 	the
Employer was 	the 	same proposal offered on October 	10 	and 	20,
1988. 	The Employer 	stated that the proposal was 	now offered:
(a) 	with knowledge of the Union's pending unfair 	labor practice
charge relating to the grievance procedure and 	(b) 	with the
proviso 	that 	the 	Employer would 	abide 	by whatever decision was
rendered 	by 	PERB 	in regard to 	the 	grievance procedure.
In response, 	representatives 	of the Union stated that:
(a) 	the Union intended to pursue 	its 	unfair practice 	charge to a
final 	PERB decision and 	(b) 	that any tentative 	agreement by 	the
Union to 	the 	Employer's 	proposed grievance procedure was 	subject
to 	the 	Union's 	unfair practice 	charge 	and 	any 	PERB 	order deriving
therefrom. 	Representatives 	of 	the 	Employer 	stated that they
understood the 	Union's position and accepted it. 	Thereafter, 	the
8

Union and 	the 	Employer made 	a 	tentative 	agreement 	on the
grievance procedure.
On March 	15, 	1989, 	Diane Schmidtke, 	the Union's executive
director, 	confirmed by letter the parties' 	positions at the
January 	25 	negotiating 	session. 	The Employer did 	not dispute 	the
contents of Schmidtke's March 	15 	letter. 	Thereafter, 	both the
Union and the 	Employer 	ratified the 	tentative 	agreement 	for 	the
grievance procedure which had been agreed upon by 	the parties 	on
January 25, 	1989, 	and reviewed in the March 15, 	1989, 	letter.
Prior 	collective agreements 	between the parties 	have
contained 	a 	grievance procedure 	identical 	to that proposed by 	the
Employer for continuation during 	1988-89. 	In all 	of 	the prior,
\
collective agreements, 	"grievant" 	has been defined as 	one or more
individual 	employees 	in the bargaining unit. 	This 	has 	limited
the 	Union under all prior 	collective agreements 	to 	the 	filing of
grievances 	in only 	four 	specifically 	listed 	subjects.9 In
negotiations 	for the prior collective agreements, 	the Union
unsuccessfully 	sought a provision under which 	the 	Union 	could
process 	a 	grievance 	in its 	own name 	for all purposes without the
signature 	of 	an 	individual 	employee.
LEGAL 	ISSUE
1) 	Did the Employer fail 	to meet and negotiate 	in good 	faith
by 	insisting to 	impasse 	on restrictions 	on the 	Union's 	right 	to
file 	and process 	grievances 	on behalf 	of 	individual 	unit 	members?
9See definition of 	"grievant" 	in footnote no. 	3, 	supra.
9

2) 	Did the Employer fail 	to participate in the 	impasse
procedures 	in 	good 	faith by 	insisting during mediation 	on
restrictions 	on the 	Union's 	right 	to 	file 	and process 	grievances
on behalf 	of 	individual 	unit 	members?
CONCLUSIONS 	OF 	LAW
Public 	school 	employers 	and 	exclusive 	representatives 	have 	a
bilateral 	obligation to 	"meet 	and negotiate 	in good 	faith"10
about 	"matters 	relating to wages, 	hours 	of 	employment and other
terms 	and 	conditions 	of 	employment."11II Refusal 	to meet 	and
confer about 	any of 	these mandatory 	subjects 	is 	an unfair
practice.
But 	the 	obligation to negotiate 	is 	not unlimited and a party
may 	lawfully 	refuse 	to 	negotiate 	about 	nonmandatory 	subjects.
When a party refuses 	to negotiate about 	a 	nonmandatory 	subject,
it 	is 	an unfair practice per 	se 	for the 	other party to 	insist 	to
impasse upon 	inclusion of 	that 	subject 	in the 	agreement. 	"[S]uch
conduct 	is, 	in substance, 	a refusal to bargain about the 	subjects
that 	are within the 	scope 	of 	mandatory bargaining." 	NLRB v.
Wooster Division of Borg-Warner Corp. 	(1958) 	356 U.S. 	342, 	349
[42 	LRRM 2034]. 	See also, 	Lake Elsinore School District 	(1986)
PERB Decision No. 	603.
The Union argues that 	it 	is given the right under EERA
section 	3543.l(a) 	to represent 	its 	members 	"in their employment
10Failure 	of 	either party to meet 	this 	obligation 	is 	an
unfair practice. 	See 	section 3543.5(c) 	for employers 	and 	section
3543.6(c) 	for exclusive representatives.
11The scope of representation is 	set out 	in section 	3543.2.
10

- -
relations with public school employers 	. 	. 	. 	. "12 Moreover, 	the
Union continues, 	it also possesses 	as 	a 	significant aspect of 	its
status 	as 	exclusive 	representative 	the right to 	file grievances
on behalf of all unit members. 	This right, 	which the Union finds
in several 	federal 	cases, 	is 	in addition to the 	statutory right
to represent its members.
Applying the PERB 	test 	for negotiability, 	the 	Union
concludes 	that a proposal 	to waive 	either right 	is 	not a
mandatory 	subject 	of bargaining. 	The 	Union then points 	to both
PERB 	and 	federal 	cases 	which hold 	that 	a party may 	not 	maintain
its 	position to 	impasse on a 	nonmandatory 	subject 	over the
objection of 	the other party. 	Because the 	District 	insisted on
the grievance language to impasse, 	the Union concludes, 	the
District 	failed 	to 	negotiate 	in good 	faith.
The Employer argues 	first 	that 	the 	PERB already has 	resolved
the 	issue 	in dispute by 	its 	decision 	in Temple City Unified
School District 	(1989) 	PERB Decision No. 	Ad-190. 	That decision,
the District argues, 	permits 	the parties 	to agree to contractual
12In relevant part, 	section 3543.l(a) 	provides as 	follows
(a) 	Employee organizations 	shall have the
right to 	represent 	their members 	in their
employment 	relations 	with public 	school
employers, 	except that once an employee
organization 	is 	recognized or 	certified as
the 	exclusive 	representative 	of 	an
appropriate unit pursuant 	to 	Section 	3544.1
or 3544.7, 	respectively, 	only that employee
organization may 	represent 	that 	unit 	in their
employment 	relations 	with 	the public 	school
employer. . . .
11

language 	restricting 	the 	right 	of 	an 	exclusive 	representative 	to
file grievances.
Alternatively, 	the Employer argues 	that the EERA, 	unlike the
National 	Labor Relations Act, 	does 	not afford an exclusive
representative with 	the right to 	file grievances 	on 	its 	own
behalf. 	According to the Employer, 	the EERA is written so as 	to
limit 	an 	exclusive 	representative's 	right 	to 	file 	grievances 	to
only those 	situations where 	it 	acts 	at the behest 	of 	an
individual employee. 	Thus, 	the Employer concludes, 	federal cases
supporting the 	Union's 	argument 	are 	inapplicable.13
In federal labor cases, 	as the Union notes, 	employer
proposals 	to 	limit a union's 	role 	in grievance processing 	are
analyzed as 	scope 	of 	representation issues. 	In 	Marine 	&
Shipbuilding Workers v. 	NLRB 	(3rd Cir. 	1963) 	320 F.2d 615 	[53
LRRM 2878], 	a case cited by the Union, 	an employer's 	insistence
upon a proposal 	that 	employees 	sign all 	grievances was 	held 	to be
per 	se 	an unfair 	labor practice. 	The 	circuit 	court 	concluded
13In reaching this 	conclusion the 	District 	attaches
considerable 	significance 	to 	various 	textual 	differences 	between
the 	EERA and the National 	Labor Relations Act. 	The 	District 	also
points 	to a provision in the 	Federal 	Service Labor-Management
Relations Act, 	5 U.S.C. 	7103 	et seq., 	which assures an exclusive
representative 	of 	the right 	to 	file grievances 	"in 	its 	own
behalf." 	5 	U.S.C. 	7121. 	The District argues that the omission
of 	such 	a provision 	from the 	EERA 	implies 	a different 	legislative
intent, 	i.e., 	that unions do not have a 	statutory right to 	file
grievances 	in their own name under the EERA. 	While 	the 	District
correctly describes 	a principle 	of 	statutory 	interpretation, 	the
principle 	is 	inapplicable here. 	The Federal Labor-Management
Relations Act was 	enacted on October 	13, 	1978. 	The EERA was
enacted on September 22, 	1975. 	In drafting the EERA, 	the
Legislature 	can hardly be 	charged with knowledge 	of 	a 	statute
that was 	not yet written.
12

that 	the 	employer's 	proposal was 	not a mandatory 	subject 	for
bargaining.14
Analogizing to 	the 	Supreme Court's 	rationale 	in NLRB v.
Wooster Division of Borg-Warner 	Corp., 	supra. 	356 U.S. 	342
[42 	LRRM 2034], 	the court concluded that the employer's proposal
would 	substantially 	modify 	the 	collective 	bargaining 	system
envisioned 	in the National 	Labor Relations Act 	"by weakening the
independence of 	the 	representative 	chosen by the 	employees."
Such a system, 	the court wrote, 	"enables the employer, 	in effect,
to 	deal with 	its 	employees 	rather than with their 	statutory
representatives." 	Marine & Shipbuilding Workers v. 	NLRB. 	supra,
53 	LRRM at 	2881 	[citations omitted]. 	A clause requiring
employees' 	signatures on all grievances,
. 	. 	. 	would preclude the union from
prosecuting 	flagrant 	violations 	of 	the
contract 	merely 	because 	the 	employees
involved, 	due to fear of employer reprisals,
or for similar reasons, 	chose not to 	sign a
grievance. 	Hence, 	redress 	for a violation
would be 	made 	contingent upon the 	intrepidity
of 	the 	individual 	employee. 	[53 	LRRM at
2881]
A 	similar 	result was 	reached by the 	Supreme 	Court 	of 	New
Jersey 	in Education Association v. 	Red 	Bank Board of 	Education
(1978) 	393 A.2d 267 	[99 LRRM 2447], 	another case cited by the
Union. 	Although the decision 	is 	based 	substantially on the
interpretation of a New Jersey 	statute, 	the court points 	out that
the denial 	to 	the 	exclusive 	representative of 	the right 	to 	file
14Accord, 	Latrobe Steel Co. 	(1979) 	244 NLRB 528 	[102 LRRM
1175], 	Enforcement was denied on other grounds, 	Latrobe Steel
Co. 	v. 	NLRB 	(3rd Cir. 	1980) 	630 F.2d 171 	[105 LRRM 2393].
13

grievances 	runs 	contrary 	to 	the 	very 	concept 	of 	collective
action.
Permitting 	a public 	employer to 	require
individual 	action at 	the 	critical 	moment when
vindication of 	employee rights 	is 	at 	stake
would 	surely 	"short 	circuit" 	the 	system of
collectivity 	the 	legislature 	sought 	to
promote 	in the 	act and weaken 	its 	benefits
. 	. 	. 	. 	Requiring an individual to put
himself 	on the 	line 	as 	the 	sole means 	of
initiating 	a 	grievance 	is 	inherently 	contrary
to 	the very 	concept 	of 	collectivity 	and
would, 	if sanctioned, 	bring about a
"prejudicial dilution" 	of the basic 	right 	to
organize 	secured by 	the 	[New Jersey]
constitution. 	[99 	LRRM at 	2453]
The 	New Jersey 	court 	specifically held 	that 	an 	exclusive
representative 	could 	file 	a 	grievance 	over 	the 	objection of 	the
affected unit member. 	The 	court 	concluded that 	the right 	to 	file
a 	grievance was 	inherent 	in the bargaining 	system 	created by 	the
statute.15
Contrary to the District's 	assertions, 	the PERB has 	not yet
considered 	the 	negotiability of proposals 	to 	restrict 	an
exclusive 	representative's 	right 	to 	file 	and 	arbitrate
grievances. 	The 	District's 	reliance on Temple City Unified
School District 	(1989) 	PERB Decision No. 	Ad-190 	is misplaced.
15The 	District 	finds 	any 	citation 	to 	Education Association
v. 	Red Bank Board of Education, 	supra. 	393 A.2d 267, 	to be
"inapposite" 	because New Jersey 	law differs 	"so 	sharply" 	from the
EERA. 	This 	argument dismisses 	the case too 	lightly. 	What 	is
significant about the case 	is 	the court's 	analysis 	of 	the very
nature 	of 	collective 	activity. 	Violations 	of 	collective
agreements 	have 	the potential 	for 	impact 	upon all 	unit members.
Grievances, 	therefore, 	are of 	interest to more than just the
individual who was 	harmed. 	This 	significant point 	lies 	at the
root of 	collective activity, 	and 	is 	not based upon the wording of
the New Jersey 	statute.
14

- -
The 	case 	simply does 	not deal with 	the 	issue. 	Temple City 	stands
only 	for the proposition that 	deferral 	is 	not 	required where 	the
collective 	bargaining agreement 	bars 	the 	exclusive 	representative
from 	filing a grievance 	on the disputed act.16
Temple City 	leaves 	unresolved the underlying question, 	at
issue here, 	of the negotiability of restrictions 	on a union's
right to 	file grievances. 	Clearly, 	the Board considers 	the 	issue
unresolved because 	it basically 	said 	as 	much 	in Calpatria 	Unified
School District 	(1989) 	PERB Decision No. 	Ad-193. 	In Calpatria.
the 	Board declared 	it unnecessary to resolve the 	issue 	of 	a
union's 	right to 	file grievances, 	despite contractual
restrictions, 	in order to dispose of the 	contested 	issue before
it. 	Obviously, 	if 	the Board believed 	it had resolved the 	issue
in 	Temple 	City 	it 	could 	not have declared 	the 	issue unresolved 	in
Calpatria.
Although the 	PERB has 	yet to 	consider the 	negotiability 	of
restrictions 	on the union's 	right to 	file grievances, 	the
question can be 	decided under well 	defined rules 	regarding 	the
scope of representation. 	Under the EERA, 	the parties are
obligated to negotiate about matters 	relating to wages, 	hours 	of
16The 	District 	theorizes 	that 	the 	Board 	could 	not 	have
reached 	this 	conclusion unless 	restrictions 	on the 	right 	to 	file
grievances were 	legal. 	If 	such restrictions were an unlawful
subject of bargaining, 	the District contends, 	the Board would
have 	raised 	that 	question 	sua 	sponte 	in Temple 	City 	and
proclaimed the clause illegal. 	The District's 	argument, 	however,
fails 	to 	consider 	the possibility that 	the 	Board believes
restrictions 	on the 	filing 	of 	grievances 	to be 	a permissive
subject of bargaining. 	If the Board is of that view, 	then the
disputed 	contract 	clause would be 	legal 	so 	long as 	the 	exclusive
representative were willing to negotiate 	about 	it.
15

employment 	and 	nine 	specifically 	enumerated 	terms 	and 	conditions
of 	employment.
The 	PERB will 	find a 	subject 	negotiable 	even though 	it 	is
not 	specifically enumerated in section 3543.2 	if: 	(1) 	it 	is
logically and reasonably related to hours, 	wages 	or an enumerated
term and condition of employment, 	(2) 	the 	subject 	is of 	such
concern to both management 	and 	employees 	that 	conflict 	is 	likely
to 	occur 	and 	the mediatory 	influence 	of 	collective 	negotiations
is 	the appropriate means of resolving the conflict, 	and 	(3) 	the
employer's 	obligation to 	negotiate would 	not 	specifically 	abridge
the 	employer's 	freedom to 	exercise 	those 	managerial 	prerogatives
(including matters 	of 	fundamental policy) 	essential 	to the
achievement 	of 	the 	employer's 	mission. 	Anaheim Union High 	School
District 	(1981) 	PERB Decision No. 	177; 	test approved in San Mateo
City School District v. 	PERB 	(1983) 	33 Cal.3d 850 	[191 Cal.Rptr.
800] .17
The Anaheim test was 	devised 	in the 	context 	of 	an 	employer's
refusal 	to 	negotiate 	about 	subjects 	proposed by 	an 	exclusive
representative. 	To 	fit the context of this 	case the 	third prong
of 	the 	test must be modified to 	reflect 	the Union's 	interests
inherent 	in exclusive representation. 	Here, 	the question is
whether 	compelling 	the 	exclusive 	representative 	to 	negotiate
would 	"significantly 	abridge 	the 	organization's 	freedom 	to
exercise 	those 	representational 	prerogatives 	essential 	to 	the
17Although 	in 	its brief 	the 	District 	argues 	that 	the 	right
of 	the exclusive representative to 	file grievances 	is 	negotiable,
the 	District 	at 	no point 	attempts 	to 	apply the Anaheim test.
16

achievement 	of 	the 	organization's 	mission as 	exclusive
representative 	of the negotiating unit."
It 	seems 	self-evident 	that the 	limits 	the District would
impose 	on the 	Union's 	ability to 	file 	and 	arbitrate 	grievances
would 	significantly 	abridge 	the 	Union's 	capacity 	as 	an 	exclusive
representative. 	As 	noted by the Courts 	in Marine 	& 	Shipbuilding
Workers v. 	NLRB, 	supra, 	320 	F.2d 615 	and Education Association v.
Red Bank Board of Education, 	supra. 	393 A.2d 267, 	limitations on
a 	union's 	ability to 	file 	grievances 	fundamentally 	alter 	the
concept 	of 	collective 	action.
The 	District 	rejects 	this 	analysis 	through attempts 	to make
distinctions 	between the 	National 	Labor 	Relations 	Act 	and 	the
EERA. 	It is 	the District's 	thesis 	that the National Labor
Relations Act 	fosters 	the principle of 	majority rule 	to 	the point
"where 	the 	rights 	of 	individuals 	may be 	subordinated to 	the will
of the majority." 	By contrast, 	the District asserts, 	the EERA
evidences 	a 	legislative 	intent 	that 	the primary rights 	"are 	those
of 	individual 	employees 	and 	that 	labor organizations 	exist 	to
serve them, 	not the other way around."
But 	the 	District's 	approach 	ignores 	the 	concept of
collective 	action 	inherent 	in any 	system of 	collective
bargaining.18 As 	the Union argues 	in its 	reply brief, 	the
District 	essentially 	"would 	limit 	the 	exclusive 	representative 	to
18Collective bargaining 	is 	a 	continuing process 	involving,
among other things, 	day-to-day adjustments 	in the 	contract and
working 	rules, 	resolution of problems 	not 	covered by 	existing
agreements, 	and protection of 	rights 	already 	secured by contract.
Conley v. 	Gibson (1957) 	355 U.S. 	41, 	at 46, 	[41 LRRM 2089].
17

the role of 	'attorney' 	for 	individual 	employees." 	Under the
District's 	approach, 	the 	idea of 	collective action loses 	entirely
to 	the desires 	of 	individual workers. 	The District's 	approach
does 	not recognize that 	sometimes 	the needs 	of 	the group as 	a
whole 	may differ 	from those 	of 	an 	individual.19 In these
situations, 	the District would make the 	individual 	supreme.
Yet, 	such 	is 	not the 	system of 	labor relations 	created by
the 	EERA. 	The 	statute 	envisions 	employees 	acting 	collectively
through 	a 	chosen 	exclusive 	representative 	to bargain with 	their
employer about wages, 	hours 	and other terms 	and conditions 	of
employment. 	The grievance procedure 	is 	the contractual 	tool 	for
enforcing 	the 	results 	of 	the 	negotiated 	bargain.20 For 	contract
violations 	to 	be 	grievable 	and 	arbitrable 	only 	at 	the 	instigation
19PERB decisions 	in duty of 	fair representation cases 	have
long recognized the right of 	the union to 	consider the 	needs 	of
the group in evaluating grievances. 	See, 	for example, 	Fremont
Unified District Teachers Association, 	CTA/NEA 	(1980) 	PERB
Decision No. 	125. 	There, 	the Board held that an exclusive
representative has 	the right to 	file 	a 	grievance 	over the
explicit 	objection of the 	affected 	individual 	employee. 	In
reaching 	this 	conclusion the 	Board wrote:
[A]11 members 	of the unit have a vital 	stake 	in the
enforcement 	of 	agreements 	by 	their 	exclusive
representative. 	In the 	face of 	such compelling
interests 	of the majority of the employees, 	the
competing 	right 	of 	an 	individual 	employee must 	be
subordinated.
20Indeed, "the processing of grievances is a form of
continuing 	negotiations 	over 	the written agreement." 	Chaffey
Joint Union High School District 	(1982) 	PERB Decision No. 	202,
citing NLRB v. 	Acme Industrial Co. 	(1967) 	385 U.S. 	432 	[64 LRRM
2069].
18

of 	an individual 	employee, 	runs 	counter to the very 	idea of
collective 	action.
An employer violation of a contract, 	even if 	it directly
affects 	only one 	employee, 	has 	the potential of 	initiating a
practice detrimental 	to the 	entire bargaining unit. 	In a 	system
of 	collective bargaining, 	the ability to challenge contractual
violations 	must 	lie with the party 	that 	negotiated 	the 	agreement,
i.e., 	the union. 	Any other 	system makes 	the viability of the
contract 	dependent 	upon the willingness 	of 	each unit member 	to
stand 	individually. 	Whereas 	"[t]he 	individual 	employee has
basically a purely personal interest in the contract 	. 	. 	. 	[t]he
union has 	a 	significantly broader 	interest 	in the 	contract 	as
well 	as 	the unique 	representational 	obligation 	to defend 	its
integrity." 	Fair Lawn Board of 	Education v. 	Fair Lawn Education
Association 	(1980) 	417 A.2d 76 	[6 NJPER 1127 at p. 	526].
As 	a 	final 	argument 	the 	District 	contends 	that public 	policy
justifies 	a 	requirement 	that grievances 	be brought 	on behalf 	of
individual 	employees. 	The District argues 	that 	it 	cannot 	respond
to 	an alleged 	contract 	violation 	if 	the 	allegation 	is 	"brought
anonymously." 	It 	contends 	that 	contractual provisions which
permit 	the 	Union to 	file 	in 	its 	own name would result 	in
grievances 	"impossible 	to 	refute 	. . . 	if 	false 	and 	to 	remedy
. . . 	if 	true."
It 	is 	unclear how the 	District reaches 	the 	conclusion that
permitting the 	Union to 	file grievances 	in 	its 	own name would
permit the Union to 	file grievances devoid of 	facts. 	Obviously,
19

even if 	the Union filed a grievance 	in its 	own name 	it 	still
would have 	to 	disclose 	the particulars 	of 	the 	incident 	from which
the grievance arose. 	This means 	disclosure of 	the 	identity of
the 	aggrieved party as well 	as 	the 	nature of 	the 	circumstances
claimed to be 	in violation of 	the 	contract. 	I 	find no merit 	in
the District's 	argument.
For these 	reasons 	I 	conclude 	that the District-proposed
limitation on the Union's 	right to 	file 	grievances would
significantly 	abridge 	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. 	Accordingly, 	the District's 	grievance
procedure proposal was 	not 	a mandatory 	subject of bargaining.21
21Under NLRB decisions, 	nonmandatory 	subjects 	are generally
characterized as 	being 	either permissive 	or 	illegal. 	A contract
provision containing a permissive 	subject 	is 	enforceable 	if 	the
parties 	voluntarily agree to 	its 	inclusion in the 	contract. 	NLRB
v. 	Wooster Division of Borg-Warner Corp.. 	supra. 	356 U.S. 	at 349.
A 	contract provision 	containing 	an 	illegal 	subject 	is 	null 	and
unenforceable. 	NLRB v. 	Magnavox Co. 	of Tennessee 	(1974) 	415 U.S.
322 	[85 	LRRM 2475].
The District argues 	that there 	is 	no 	such thing as 	a
permissive 	subject under the EERA, 	citing Cumero v. 	Public
Employment Relations Board 	(1989) 	49 Cal.3d 575. 	This 	is a
- -questionable 	contention 	since the 	issue 	of 	mandatory vs.
permissive 	subjects 	of bargaining was 	not before the 	Supreme
Court 	in Cumero.
Despite the District's 	assertion regarding Cumero, 	it 	is
unnecessary here 	to 	decide whether 	the 	EERA 	creates 	only
mandatory 	and 	illegal 	subjects 	or whether the 	statute 	also
permits 	negotiations 	over permissive 	subjects. 	Even if 	the
disputed 	grievance 	language be 	considered 	a permissive 	subject 	of
bargaining, 	the 	Union contends 	that 	the 	District 	insisted upon
the 	language 	over the Union's 	opposition. 	An employer 	fails 	to
negotiate 	in good 	faith when 	it 	insists 	to 	impasse that
permissive 	language be 	included 	in a 	collective 	agreement. 	See
Lake Elsinore School District, 	supra, 	PERB Decision No. 	603.
20

The 	only remaining 	question 	is whether 	the 	Employer
maintained 	its 	position to 	impasse. 	An 	employer 	fails 	to
negotiate 	in good 	faith when 	it demands 	to 	impasse that 	the
exclusive 	representative 	"abandon rights 	guaranteed" 	under the
EERA. 	Modesto City Schools 	(1983) 	PERB Decision No. 	291.
The 	stipulation resolves 	this 	matter unequivocally. 	It 	is
absolutely 	clear that, 	over Union objections 	the 	Employer
maintained 	its 	insistence 	on the 	disputed 	language 	to 	impasse.
The parties 	stipulated 	that 	the 	District 	maintained 	its 	position
on the grievance 	language through the meetings 	of October 	10, 	22
and 	25, 	the 	last meetings prior to the Employer's 	declaration of
impasse on November 8, 	1988.22
The 	stipulation 	likewise makes 	it 	clear that 	the 	Employer
continued 	its 	insistence 	on the 	disputed 	grievance 	language
during the mediation process. 	When the 	Union 	finally acceded to
the Employer's demand on January 25, 	1989, 	it was with clear
notice to 	the Employer that 	it 	intended to pursue 	the dispute
through a PERB hearing. 	The 	Employer accepted this 	position and
the 	dispute was 	kept alive despite 	the agreement.
22It 	is 	of no 	significance that a 	succession of previous
contracts 	between these parties 	contained 	limits 	on the 	rights 	of
the 	Union to 	file and arbitrate grievances. 	"[O]nce a 	contract
has 	expired, 	a party has 	no obligation to bargain over a
permissive 	subject 	even though one 	or more past 	contracts
contained a provision dealing with that 	subject." 	Morris, 	The
Developing Labor Law, 	(2d ed. 	1983), 	at p. 	847, 	citing Columbus
Printing Pressmen 	(1975) 	219 NLRB 268 	[89 LRRM 	1553] 	enforced in
NLRB v. 	Columbus Printing Pressmen 	(5th Cir. 	1976) 	543 	F.2d 	1161
[93 	LRRM 3055]. 	See also, 	Poway Unified School District 	(1988)
PERB Decision No. 	680.
21

Accordingly, 	I 	conclude that by 	its 	insistence to 	impasse on
clauses 	which would restrict 	the 	Union's 	ability 	to 	file 	and
arbitrate grievances, 	matters 	outside the 	scope of
representation, 	the District has 	failed to meet and negotiate 	in
good faith in violation of EERA section 3543.5(c). 	Because the
District 	maintained 	its 	insistence 	on 	the 	nonmandatory 	subjects
through 	the 	statutory 	impasse procedure, 	the District 	also 	failed
to participate 	in the 	impasse 	resolution procedure 	in good 	faith,
a violation of 	section 3543.5(e). 	See generally Moreno Valley
Unified School District v. 	PERB 	(1983) 	142 	Cal.App.3d 	191 	[191
Cal.Rptr. 60].
A failure 	to 	negotiate 	in good 	faith 	is 	a derivative
violation of EERA section 	3543.5(b) 	but 	is 	not a derivative
violation of 	3543.5(a). 	Regents 	of the University of California
(California Nurses Association) 	(1989) 	PERB Decision No. 	722-H;
Tahoe-Truckee 	Unified School 	District 	(1988) 	PERB 	Decision
No. 668.
In its 	brief, 	the Union for the first time asserts 	that the
District, 	by limiting the Union's 	right to file grievances, 	also
interfered with a protected right of 	employees. 	This 	right,
according to the Union, 	is 	the right of 	an individual unit member
to 	confidentiality when participating 	in protected 	conduct.
According to the Union, 	the protected right to
confidentiality 	is 	exercised when an employee 	requests 	that 	the
Union 	file 	a 	grievance on his/her behalf. 	By 	insisting that 	the
employee be 	the 	filing party, 	the District makes 	the 	employee
22

disclose 	his/her participation 	in protected 	conduct 	and 	thus
violates 	the 	right 	of confidentiality. 	The 	Union asserts 	that
this 	interference 	is 	an 	independent violation of 	section
3543.5(a).
Unalleged violations 	may be 	entertained where 	the 	conduct 	at
issue 	is 	intimately related to the 	subject matter of 	the
complaint, 	where the 	communicative acts 	are part of 	the 	same
course of 	conduct, 	where the unalleged violations 	are 	fully
litigated 	and where 	the parties 	have had 	the opportunity 	to
examine 	and be 	cross-examined on the 	issue. 	Santa Clara 	Unified
School District 	(1979) 	PERB Decision No. 	104.
The 	alleged 	interference with 	the protected 	rights 	of
employees was 	not asserted 	in the 	original 	or amended 	charge. 	It
was 	not alleged 	in the 	complaint. 	It 	is 	not addressed by the
stipulated 	record. 	The 	District 	had no 	opportunity 	to present
evidence on the question.23 The issue, 	therefore, 	was not 	fully
litigated. 	Accordingly, 	the allegation that the District
interfered with 	employee 	rights 	in violation of 	section 	3543.5(a)
23The 	introduction of 	evidence 	might 	show the 	alleged
interference with 	individual 	rights 	to be more 	theoretical 	than
actual. 	For example, 	it would be relevant on this 	issue for the
employer 	to 	inquire whether there 	ever had been an employee whose
participation 	in protected 	activities 	was 	unnecessarily 	revealed
because of the disputed grievance 	language. 	Normally, 	it would
be 	virtually 	impossible 	for 	a 	grievance 	alleging 	some harm to 	a
particular 	employee 	to be 	filed without 	revealing 	the 	identity 	of
that 	employee and the details 	of 	the alleged harm. 	Because 	such
information is 	necessary to the processing of the grievance, 	it
would be 	revealed 	even if 	the 	Union 	filed the 	grievance. 	If
there 	can be 	no demonstration that 	the grievance process 	has
resulted 	in the 	unnecessary disclosure 	of 	an employee's 	protected
conduct, 	then the language might not violate individual rights.
23

by 	insisting on restrictions 	on the 	Union's 	ability 	to 	file 	and
arbitrate grievances 	is 	DISMISSED.
REMEDY
The PERB in section 3541.5(c) 	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.
A 	cease 	and desist 	order directing 	the 	District 	to 	stop 	its
unlawful 	conduct 	is appropriate in this 	case. 	It also 	is
appropriate 	to 	order 	the 	District 	to 	accept 	grievances 	filed 	by
the 	Union on behalf 	of 	individuals 	as well 	as 	grievances 	designed
to protect Union rights. 	It 	similarly 	is 	appropriate 	to order
that 	the 	Union be permitted 	to 	file 	requests 	for 	arbitration
regardless 	of whether the 	issue was 	resolved 	"to 	the 	satisfaction
of 	the grievant" 	during the 	initial 	steps. 	These remedies will
ensure that 	the Union is 	able to carry out 	its duties 	as
exclusive 	representative without 	the 	limitations 	imposed 	upon 	it
by 	the District's 	unlawful bargaining 	stance.
It 	also 	is 	appropriate that 	the 	District be directed 	to post
a 	notice 	incorporating the 	terms 	of 	the order. 	Posting of 	such 	a
notice, 	signed by an authorized representative of 	the 	District,
will provide 	employees with notice that 	the 	District has 	acted 	in
an unlawful manner, 	is being required to 	cease and desist 	from
this 	activity, 	and will 	comply with the order. 	It 	effectuates
the purposes 	of 	the EERA that 	employees 	be 	informed of 	the
24

resolution 	of 	the 	controversy 	and the 	District's 	readiness 	to
comply with 	the 	ordered 	remedy. 	Placerville 	Union School
District 	(1978) 	PERB Decision No. 	69.
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the entire record in this 	case, 	it is 	found that the Mt.
Diablo 	Unified 	School 	District has 	violated 	sections 	3543.5(c)
and 	(e) 	and, 	derivatively, 	(b) 	of the Educational Employment
Relations Act. 	Pursuant to 	section 3541.5(c) 	of the Government
Code, 	it hereby 	is ORDERED that the Mt. 	Diablo Unified School
District, 	its officers and representatives 	shall:
1. 	CEASE AND DESIST FROM:
A. 	Insisting to and during impasse on contractual
language 	outside the 	scope 	of 	representation which has 	the 	effect
of 	restricting the 	Union's 	right to 	file grievances 	on behalf 	of
individual 	unit members 	to 	take 	grievances 	to 	arbitration.
B. 	Enforcing and giving 	effect 	to those portions 	of
Article 	IX of 	the 	current agreement between the parties which
restrict the 	right 	of the Union to 	file 	and arbitrate 	grievances
to only alleged violations 	of 	the Recognition, 	Grievance
Procedure, 	Organizational 	Security and Savings 	clauses 	of 	the
agreement.
2. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT RELATIONS
ACT:
A. 	Accept grievances 	filed by the 	Union on behalf 	of
individual 	unit members 	as 	appropriate under the 	time 	lines 	and
25

subject matter requirements 	of 	the 	agreement between the parties.,
B. 	Process grievances through all 	steps of the
grievance procedure, 	including arbitration, 	initiated by the
Union on behalf 	of 	individual 	unit members 	regardless 	of whether
the 	grievance was 	resolved 	"to the 	satisfaction of 	the 	grievant"
during the 	initial 	steps.
C. 	Within ten 	(10) 	work days 	of the 	service of a 	final
decision in this matter, 	post at all work locations within the
Mt. 	Diablo Unified School 	District where notices 	to 	certificated
employees 	customarily are posted, 	copies 	of 	the notice attached
hereto 	as 	an appendix. 	The notice must be 	signed by an
authorized agent 	of 	the 	District, 	indicating that 	the 	District
will 	comply with the 	terms 	of 	this 	Order. 	Such posting 	shall 	be
maintained 	for a period of 	thirty 	(30) 	consecutive work days.
Reasonable 	steps 	shall 	be taken to 	ensure that the Notice 	is 	not
reduced 	in 	size, 	altered, 	defaced or covered by any other
material.
C. 	Upon issuance of 	a 	final decision make written
notification of 	the actions 	taken to 	comply with the Order to 	the
San Francisco 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accord with 	the 	director's 	instructions.
All 	other allegations 	in Unfair Practice Charge No.
SF-CE-1287 	and the 	companion portions 	of 	the complaint 	are hereby
DISMISSED.
Pursuant to California Administrative Code, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
26

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 Administrative
Code, 	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
Administrative Code, 	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 	shall
accompany 	each 	copy 	served 	on a party 	or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	sections
32300, 	32305 and 32140.
Dated: 	November 6, 	1989
RONALD E. 	BLUBAUGH
Administrative 	Law 	Judge
27