Long Beach Community College District (PERB 0991E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	LONG 	BEACH
COMMUNITY COLLEGE 	CHAPTER #8,
Charging 	Party,
v.
LONG 	BEACH 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-3065
PERB Decision No. 	991
April 26, 	1993
Appearances: 	Richard G. 	Sharp, 	Field Representative, 	for
California School 	Employees Association and 	its 	Long Beach
Community College Chapter #8; 	Wagner, 	Sisneros 	& Wagner by
Patrick D. 	Sisneros, 	Attorney, 	for Long Beach Community College
District.
Before Hesse, 	Caffrey and Carlyle, 	Members.
DECISION
HESSE, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the 	Long
Beach Community College District 	(District) 	to an administrative
law judge's 	(ALJ) 	proposed decision. 	In the proposed decision,
the ALJ found that 	the District violated section 3543.5(a), 	(b),
and 	(c), 	of 	the Educational 	Employment Relations Act 	(EERA or
Act)1 by changing 	its policy regarding grievance processing when
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	EERA section 3543.5 (a), 	(b) 	and 	(c)
state, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:

it 	refused to process 	a grievance 	filed by 	the 	California 	School
Employees 	Association and 	its 	Long 	Beach 	Community 	College
Chapter #8 	(CSEA or Association) 	and a bargaining unit member 	in
accordance 	with 	the 	grievance 	processing policy 	established by
the parties' 	collective bargaining agreement 	(CBA). 	This new
policy was 	allegedly 	adopted without 	notice 	to 	CSEA or an
opportunity to negotiate 	the decision or 	its 	effect. 	By
repudiating 	the grievance processing procedure, 	CSEA alleges 	that
the District's 	conduct amounted to a 	refusal 	to bargain 	in good
faith in violation of 	section 3543.5(c). 	This 	same 	conduct 	is
alleged 	to 	interfere with 	the 	representational 	rights 	of
bargaining unit 	employees 	in violation of 	section 3543.5(a) 	and
denies 	CSEA its 	right 	to 	represent bargaining unit members 	in
violation of section 3543.5(b).
(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.
The 	Board has 	reviewed the 	entire 	record in this 	case,
including the transcript, 	exhibits, 	proposed decision, 	the
District's 	exceptions 	and CSEA's 	responses 	thereto. 	Based on 	the
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following discussion, 	the Board 	reverses 	the ALJ's proposed
decision and dismisses 	the unfair practice 	charge and complaint.
FACTUAL 	SUMMARY
The parties 	stipulated 	that 	CSEA is 	an employee 	organization
and an exclusive 	representative, 	and the District 	is 	a public
school 	employer within the meaning of 	the Act.
CSEA is 	the 	exclusive 	representative 	for a unit 	of
classified employees 	that 	includes 	custodians. 	There 	is 	a CBA
between CSEA and 	the District 	in effect 	for 	the period of 	July 	1,
1989 	to June 30, 	1992. 	The current CBA was 	in effect at all
times 	relevant 	to this dispute. 	The District has 	incorporated
the merit 	system pursuant 	to 	the provisions 	of 	California
Education Code 	section 88060 	et 	seq.
CSEA stipulated to most 	of 	the 	facts 	offered in support 	of
its 	claim.2
On or about October 29, 	1990, 	Earl Houston 	(Houston),
employed by the District 	as 	a 	custodian, 	was 	advised that 	he was
suspended 	from work 	and 	that 	a 	dismissal 	recommendation would be
made to the District board, 	to be effective November 13, 	1990.
On November 8, 	1990, 	Houston, 	CSEA Field Representative
Richard Sharp 	(Sharp), 	and CSEA Chapter Vice 	President Mary
Thorpe 	(Thorpe) 	met with the District's 	Interim Dean of 	Personnel
Services 	John Didion 	(Didion) 	for a pre-disciplinary hearing.
2These 	factual 	statements were 	contained in a May 3, 	1991,
letter to Richard Sharp 	from Marc Hurwitz, 	PERB Regional
Attorney.
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During 	the meeting, 	Sharp 	contended that 	the proposed dismissal
violated several 	articles 	of 	the 	CBA.
Thereafter Didion sent 	a 	letter 	indicating 	that 	the
dismissal 	was 	justified, 	and 	that 	it would be 	reviewed by the
District 	board of 	trustees. 	Houston's 	dismissal 	was upheld by
the District board on November 13, 	1990.
CSEA and Houston 	filed a grievance 	on November 	15, 	1990,
which alleged violations 	of 	certain provisions 	of 	the 	CBA, 	and
the 	rules 	and regulations 	of 	the 	classified service. 	These 	rules
are 	administered by 	the District's 	Personnel 	Commission.3
On November 21, 	1990, 	Sharp appealed Houston's dismissal 	to
the 	District 	Personnel 	Commission by 	requesting 	a 	hearing before
a 	hearing 	officer appointed by 	the 	Personnel 	Commission.
Thorpe sent Didion a memorandum, 	dated December 12, 	1990,
which 	stated 	that 	since 	the District 	had not 	responded 	to 	the
grievance within the 	required time 	limit 	at 	Level 	2, 	CSEA was
requesting 	that 	the 	grievance be 	submitted to Level 	3 	(mediation)
for resolution. 	Thorpe 	requested mediation as 	soon as possible
in January 1991.
On December 20, 	1990, 	Didion advised Sharp by letter that:
. 	. 	. 	the use of the grievance procedure to
challenge 	a 	disciplinary action 	is 	not
appropriate 	since 	such 	is 	covered by 	the
3The 	grievance 	listed violations 	of 	the 	following 	CBA
articles, 	and rules 	and regulations 	of 	the 	classified service:
Article XXVII, 	Disciplinary Action; 	Rules and Regulations 	of 	the
Classified Service, 	Chapter XII, 	section 12.1., 	Causes for
Action; Article V, 	Evaluation; Article XVIII, 	Personnel Files;
Article IX, 	Leaves of Absence With Pay, 	section A.11., 	Sick
Leave, 	and section C.I., 	Statutory Leave/Other Sick Leave.
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Rules 	and Regulations 	of 	the 	Classified
Service.
On January 15, 	1991, 	Sharp advised Didion that 	the grievance
should be 	processed.
Didion 	testified that 	the District 	refused 	to process 	the
Houston grievance because 	the 	Personnel 	Commission has 	final
authority over the disciplinary process. 	In a discussion with
Thorpe about 	the 	grievance 	after 	their meeting 	on November 	8,
1990, 	Didion expressed his view that 	the 	Personnel 	Commission was
the proper venue 	for 	the matter because 	it 	involved a
disciplinary action. 	In a 	subsequent 	discussion with Thorpe
regarding 	the 	grievance, 	he 	informed her that 	if 	CSEA chose 	to
appeal 	the dismissal, 	the grievance would not be processed.
At 	some point, 	the parties agreed to by-pass Level 	l 	of 	the
grievance procedure and submit 	the 	grievance 	to Level 	2 	(the
appropriate vice president) 	since 	the matter had already been
discussed with Didion 	(the appropriate dean at 	Level 	1) 	in the
pre-disciplinary hearing. 	Once 	Sharp 	filed the November 21,
1990, 	appeal 	to the District's 	Personnel 	Commission, 	according to
Didion, 	the District 	considered 	the matter 	to be within the
jurisdiction 	of 	the 	Personnel 	Commission and no 	longer a
grievance 	issue.
Didion 	further 	testified 	that 	the 	District's 	decision
regarding 	processing 	a 	disciplinary 	action 	grievance 	would 	depend
on the remedy sought. 	For example, 	elements 	of a grievance
concerning 	an 	evaluation would be 	subject 	to 	resolution 	through
the contractual grievance procedure. 	However, 	as Didion
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interprets 	the 	CBA, 	a grievance 	to 	overturn a dismissal 	or other
disciplinary action 	is 	not 	remedial 	through 	the 	grievance
procedure, 	but 	through the 	Personnel 	Commission.
While Didion personally has 	never agreed to 	a 	grievance
remedy other than the 	one proposed by the grievant, 	he 	is 	aware
that 	other District managers 	have done 	so. 	Didion was 	not 	aware
of 	any prior 	CSEA grievance 	involving 	discipline 	that 	has
proceeded 	through 	the 	contractual 	grievance procedure.
Since the Houston grievance, 	two grievances have been
processed 	involving 	employees 	represented by CSEA. 	One 	was
resolved at 	Level 	1. 	The other was 	resolved at 	Level 	2. 	It
appears 	that 	neither grievance 	related to 	discipline.
The 	CBA contains 	several 	relevant 	provisions 	which are 	set
forth below. 	Article 	I 	includes a scope and waiver clause 	that
reads:
This Agreement 	shall 	supercede 	any rules,
regulations, 	or practices of the Board and
Personnel 	Commission which 	shall 	be 	contrary
to or inconsistent with, 	its terms. 	The
provisions 	of 	the Agreement 	shall 	be
incorporated 	into 	and be 	considered part 	of
the 	established policies 	of 	the Board and
Personnel 	Commission.
Article 	IV contains 	the 	terms 	of 	the grievance procedure.
Section A.1. defines a 	"grievance" 	as:
. 	. 	. 	a formal written allegation by a
grievant 	that 	there has been a violation,
misinterpretation 	or misapplication of 	a
specific provision of 	this Agreement.
Section A.2. 	permits 	CSEA to be a grievant.
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6

Sections B. 	and C. 	establish a multi-level 	review mechanism.
The 	initial 	review is 	an 	informal 	level which calls 	for a
meeting between the 	grievant 	and the 	immediate 	supervisor. 	The
formal 	level begins 	at Level 	1 which provides 	for a review of 	the
written grievance by 	the 	dean/director 	of 	the area being 	grieved.
Level 	2 	permits 	an appeal 	of 	the decision to the appropriate vice
president. 	Level 	3 	provides 	for submission of 	the dispute 	to the
mediation process utilizing 	the 	services 	of 	a State mediator.
Level 	4 	allows 	for advisory arbitration by an arbitrator mutually
selected by the parties. 	Level 	5 permits an appeal 	of 	the
arbitrator's 	decision to 	the District board. 	The decision of 	the
District 	board is 	final 	and binding upon the parties. 	Article 	IV
contains 	no provisions 	for 	final 	and binding arbitration by a
neutral 	party.
Article XXVII, 	Disciplinary Action, 	states, 	in pertinent
part, 	as follows:
A. 	Permanent unit 	employees 	shall 	be 	subject
to disciplinary action 	for 	just 	cause.
G. 	The procedures 	for disciplinary action and
appeals 	are 	governed by the 	rules 	of 	the 	Personnel
Commission. 	Either 	the unit 	employee 	or his/her
designated 	representative 	may ask 	the 	Personnel
Commission 	to 	consider 	employing a hearing 	officer
to 	hear his/her disciplinary appeal.
Article XXXI, 	Contract Administration, 	contains the
following provisions:
A. 	This Article 	establishes 	a 	Contract
Administration 	Committee 	for 	the purpose 	of
administering 	this Agreement 	composed of 	a
District Vice 	President, 	the District 	Chief
Negotiator, 	the CSEA President, 	or designee,
and the 	CSEA Chief Negotiator. 	The 	titles
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7

used relate 	to those 	individuals who by-
designation of 	the District 	or CSEA are
fulfilling all 	the normal 	duties 	of 	their
respective positions. 	Advisors may be 	called
as 	required but 	are 	excluded 	from voting 	and
deliberation. 	The 	committee will meet 	on an
as-needed basis 	by 	request 	of 	either 	the
District 	or CSEA. 	Action minutes 	will 	be
kept 	as 	a 	record of 	each meeting. 	Applicable
decisions 	reached by 	this 	group will 	be
recorded 	and distributed by 	the parties 	to
the District and CSEA. 	The 	committee's
decisions 	shall 	be binding as 	though part 	of
this 	A g r e e m e n t . . . .
B. 	In the 	case of a grievance, 	the grievant
and 	respondent may mutually 	request 	that 	the
point 	or points 	at 	issue be 	considered by
this 	committee. 	Such requests 	shall be
activated between 	the 	Informal 	Level 	and
Level 	1 	of 	the grievance procedure 	(Article
IV). 	Decisions reached by the Contract
Administration 	Committee 	shall 	be 	binding 	on
both parties.
C. 	Neither the District 	nor CSEA waive any
rights 	included 	in other Articles 	by
participation in this procedure. 	It 	is also
expressly understood 	that 	written 	decisions,
and/or 	resolution of 	disputes 	established
pursuant 	to Sections A and B above, 	shall 	be
binding upon the parties 	exclusively 	for 	the
duration of 	the Agreement.
DISCUSSION
It 	is well-settled that 	an employer 	that makes 	a pre-impasse
unilateral 	change 	in an established, 	negotiable practice violates
its 	duty to meet and negotiate 	in good faith. 	(NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[50 LRRM 2177].) 	Such unilateral 	changes are
inherently destructive 	of 	employee 	rights 	and are 	a 	failure per
se 	of 	the duty to negotiate 	in good faith. 	(Davis Unified School
District, 	et al. 	(1980) 	PERB Decision No. 	116; 	State of
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California 	(Department of Transportation) 	(1983) 	PERB Decision
No. 	361-S.)
An 	established negotiable 	practice may be 	reflected 	in a 	CBA
(Grant 	Joint 	Union High School 	District 	(1982) 	PERB Decision
No. 	196) 	or where the agreement 	is vague or ambiguous, 	it may be
determined by 	an 	examination 	of 	bargaining 	history 	(Colusa
Unified School District 	(1983) 	PERB Decision Nos. 	296 	and 296a)
or 	the past 	practice 	(Rio Hondo 	Community College District 	(1982)
PERB Decision No. 	279; 	Pajaro Valley Unified School District
(1978) 	PERB Decision No. 51).
An employer makes no unilateral 	change, 	however, 	where an
action the employer takes does not alter the status quo. 	"[T]he
'status quo' 	against which an employer's 	conduct 	is 	evaluated
must 	take 	into account 	the 	regular and 	consistent 	past patterns
of 	changes 	in the 	conditions 	of 	employment." 	(Pajaro Valley
Unified School District, 	supra. 	PERB Decision No. 	51.) 	Thus,
where 	an 	employer's 	action was 	consistent 	with 	the past 	practice,
no violation was 	found in a 	change 	that 	did not 	affect 	the 	status
quo. 	(Oak Grove School District 	(1985) 	PERB Decision No. 	503.)
In the present 	case, 	there 	is 	insufficient 	evidence 	to show
an 	established practice 	or policy 	concerning 	the 	District's
processing 	of 	grievances 	involving 	disciplinary action.
Therefore, 	the Board must 	look to the 	language of 	the CBA.
The 	grievance 	involved an alleged violation 	of 	Article
XXVII, 	Disciplinary Action, 	which provides:
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A. 	Permanent unit 	employees 	shall 	be
subject 	to 	disciplinary action 	for
just cause.
B. 	Disciplinary action 	shall 	include
termination, 	suspension with or
without pay, 	or demotion.
C. 	Discipline 	is 	to be administered
progressively 	except 	for 	those 	acts
or omissions 	which 	in and of
themselves 	are 	not 	compatible with
the 	progressive 	discipline 	concept.
D. 	Unit 	employees 	shall 	have 	the 	right
to 	request 	union 	representation at
a 	disciplinary meeting.
E. 	Unit 	employees must 	receive notice
of 	any proposed action 	to 	suspend,
dismiss, 	or demote prior to
presentation of 	the matter to 	the
Board of Trustees.
F. 	Additionally, 	unit employees 	shall
have 	the 	right 	to 	respond verbally
and/or in writing, 	prior to the
imposition of 	discipline.
G. 	The procedures 	for disciplinary
action and appeals 	are 	governed by
the 	rules 	of 	the 	Personnel
Commission. 	Either the unit
employee 	or his/her 	designated
representative 	may ask 	the
Personnel 	Commission 	to 	consider
employing 	a 	hearing 	officer 	to 	hear
his/her disciplinary appeal.
In addition to Article XXVII, 	the grievance alleged
violations of Article V, 	Evaluation; 	Article XVIII, 	Personnel
Files; 	and Article IX, 	Leaves of Absence with Pay.
According 	to 	the undisputed testimony, 	the District 	decided
that 	the 	subject matter of 	the 	grievance 	involved reinstatement
or 	reversal 	of 	disciplinary action, 	and that 	this 	issue was
within 	the 	exclusive 	jurisdiction of 	the 	Personnel 	Commission.
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In making 	this 	determination, 	the District 	did not 	analyze all
the 	alleged violations 	in the 	grievance. 	Based solely on 	the
requested remedy 	(i.e., 	reinstatement and back pay), 	the District
concluded 	the 	grievance matter was 	properly before 	the 	Personnel
Commission.
Pursuant 	to the 	relevant provisions 	of 	the 	CBA, 	once an
employee 	files 	an appeal 	of 	a disciplinary action with 	the
Personnel 	Commission, 	jurisdiction over that appeal 	is 	conferred
on the Personnel 	Commission for a final decision. 	However, 	I
find 	the 	Personnel 	Commission does 	not 	have 	jurisdiction over all
of 	the alleged violations 	of 	the CBA in the grievance. 	With
regard to 	the alleged violations 	of Article V, 	Evaluation;
Article XVIII, 	Personnel Files; and Article IX, 	Leaves of Absence
With Pay, 	I 	find that 	the District violated Article V by 	failing
to proceed 	on 	the 	alleged 	contract violations.
Once 	the 	Board 	finds 	that 	the 	employer has 	repudiated a
provision of 	the 	CBA, 	the Board must 	next 	determine whether 	this
conduct 	represents 	an 	isolated breach of 	the 	CBA or has 	a
generalized 	effect 	and 	continuing adverse 	impact 	on bargaining
unit members. 	(See Grant Joint Union High School District.
supra, 	PERB Decision No. 	196.)
-
In Grant Joint Union High School District, 	supra. 	the Board
stated:
This 	is 	not 	to 	say that 	every breach of
contract also violates 	the Act. 	Such a
breach must amount 	to a change of policy, 	not
merely a default 	in a 	contractual 	obligation,
before 	it 	constitutes 	a violation of 	the duty
to bargain. 	This distinction is 	crucial. 	A.
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change of policy has, 	by definition, 	a
generalized effect 	or 	continuing 	impact 	upon
the 	terms 	and 	conditions 	of 	employment 	of
bargaining unit members. 	On the 	other hand,
when an 	employer unilaterally breaches 	an
agreement 	without 	instituting 	a 	new policy 	of
general 	application or continuing effect, 	its
conduct, 	though remediable 	through the 	courts
or arbitration, 	does not violate the Act.
The 	evil 	of 	the 	employer's 	conduct,
therefore, 	is not the breaching of the
contract per se, 	but 	the altering of an
established policy mutually 	agreed 	upon 	by
the parties 	during 	the negotiation process.
Walnut 	Valley Unified 	School 	District
(3/30/81) 	PERB Decision No. 	160; 	C & S
Industries 	(1966) 	158 NLRB 454 	[62 	LRRM
1043]. 	By unilaterally altering or reversing
a negotiated policy, 	the 	employer effectively
repudiates 	the agreement. 	Sea Bay Manor
Home, supra.
(Id. 	at p. 	9.)
The 	Board went 	on to hold 	that 	in order 	to 	establish a prima
facie case of unlawful unilateral 	change 	in, 	or repudiation of, 	a
contract 	or past practice, 	the 	charging party must 	show: 	(1)
that 	the 	respondent 	has 	breached or 	otherwise altered 	the party's
written agreement 	or 	its 	own established past practice; 	and 	(2)
that 	the 	breach 	constituted a 	change 	of policy having a
generalized effect 	or 	continuing 	impact 	on 	the 	terms 	and
conditions 	of 	employment 	of bargaining unit 	employees.
In this 	case, 	CSEA has not met 	this burden. 	There 	is no
evidence 	that 	the District's 	conduct 	constituted anything but 	an
isolated breach of 	the CBA. 	Specifically, 	there 	is no evidence
that 	the 	breach had a 	generalized 	effect 	or a 	continuing 	impact
upon terms 	and 	conditions 	of 	employment 	of 	bargaining unit
employees. 	(See Riverside Unified School District 	(1987) 	PERB
Decision No. 	639.)
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It 	appears 	that 	the District's 	decision to 	refer the 	entire
grievance matter 	to 	the 	Personnel 	Commission was 	based 	on 	its
interpretation of Article XXVII, 	albeit a different
interpretation than CSEA's. 	Arguably, 	the District's 	conduct may
not 	even 	constitute 	a 	contract 	repudiation 	or a policy 	change.
(See Eureka City School District 	(1985) 	PERB Decision No. 	528.)
However, 	assuming 	the District's 	conduct 	constituted a breach of
Article XXVII, 	there 	is no evidence 	to 	support 	the 	finding of an
unlawful unilateral 	change 	in violation of 	section 3543.5(c) 	of
EERA. 	Further, 	there 	is no evidence that 	the District's 	conduct
violated section 3543.5(a) 	and 	(b) 	of EERA. 	Therefore 	the charge
must 	be 	dismissed.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	LA-CE-3065 	are hereby DISMISSED.
Member Caffrey's 	concurrence begins 	on page 	14.
Member Carlyle's 	dissent begins 	on Page 	16.
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Caffrey, 	Member, 	concurring: 	I agree with Member Hesse's
conclusion 	in dismissing 	the unfair practice 	charge 	against 	the
Long Beach Community College District 	(District).
A unilateral 	change 	in 	terms 	and 	conditions 	of 	employment
within the 	scope 	of 	representation 	is 	a per se 	refusal 	to
negotiate. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].)
In order 	to 	establish an unlawful 	unilateral 	change 	or a
repudiation of 	a 	collective bargaining agreement, 	a 	charging
party must 	show that: 	(1) 	the 	respondent has breached or
otherwise altered the parties' 	written agreement; 	and 	(2) 	the
breach 	constituted a 	change 	of 	policy 	having 	a 	generalized 	effect
or continuing 	impact 	on the 	terms 	and 	conditions 	of 	employment.
(Grant 	Joint 	Union High School 	District 	(1982) 	PERB Decision
No. 	196.) 	I 	find that the District did not breach the terms 	of
the parties' 	collective bargaining agreement 	(CBA) 	when it
refused 	to process 	the 	grievance 	filed by 	the 	California 	School
Employees 	Association and 	its 	Long 	Beach 	Community 	College
Chapter #8 	(CSEA) 	on behalf of Earl Houston 	(Houston).
Article 	I 	of 	the 	CBA includes 	a 	"Scope and Waiver Clause,"
indicating 	that 	"[T]he provisions 	of 	this Agreement 	shall 	be
incorporated 	into 	and be 	considered part 	of 	the 	established
policies 	of 	the 	Board and 	Personnel 	Commission."
Article 	XII 	describes 	a multi-level 	grievance procedure
allowing 	for advisory arbitration. 	The 	arbitrator's 	decision 	is
appealable to the District board, 	which retains 	the 	final
authority to decide grievance 	issues. 	The CBA contains 	no
binding arbitration provisions 	for grievances.
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Article XXVII, 	Disciplinary Action, 	defines disciplinary
action to 	include only termination, 	suspension or demotion. 	The
District 	board 	is 	presented all 	proposed disciplinary actions 	and
approves 	them prior 	to action being 	taken. 	The 	CBA provides 	that
appeals 	of 	disciplinary actions 	are 	to 	the 	Personnel 	Commission.
The 	clear intent 	of 	the parties' 	agreement 	is 	to require use
of 	the 	Personnel 	Commission process 	for 	resolution of
disciplinary action appeals, 	not 	the grievance procedure. 	By
incorporating 	the provisions 	of 	the 	CBA into 	the 	rules 	of 	the
Personnel 	Commission, 	the 	Personnel 	Commission is 	afforded
maximum authority 	and 	flexibility 	in 	resolving 	disciplinary
matters, 	including 	the authority to determine whether provisions
of 	the 	CBA have been 	followed 	in 	the process 	leading 	to
disciplinary 	action.
In this 	case, 	Houston 	filed a grievance after receiving 	the
notice 	of 	dismissal. 	A review of 	the grievance 	clearly 	indicates
that 	it 	seeks 	to overturn the dismissal 	action. 	Houston alleges
numerous violations 	of 	the 	CBA as 	the basis 	for challenging his
dismissal. 	. The grievance is essentially an appeal of the
disciplinary action which 	the 	CBA 	intended 	should be 	referred 	to
the 	Personnel 	Commission. 	The 	Personnel 	Commission has 	full
authority 	to 	review all 	alleged violations 	of 	the 	CBA when
considering Houston's 	appeal 	of 	the 	disciplinary action.
I 	conclude, 	therefore, 	that 	the District did not breach the
terms of 	the parties' 	CBA when it 	refused to process 	the
CSEA/Houston grievance. 	Accordingly, 	the unfair practice 	charge
against 	the District must 	be 	dismissed.
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Carlyle, 	Member, 	dissenting: 	I 	respectfully dissent 	from my
colleagues' 	reversal 	of 	the administrative law judge's proposed
decision 	finding 	that 	the 	Long 	Beach 	Community 	College 	District
(District) 	violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational Employment Relations Act 	(EERA) .
Although 	I 	agree with the analysis 	of Member Hesse's
opinion, 	finding 	that 	the District 	repudiated a provision of 	the
collective bargaining agreement 	(CBA), 	I disagree as to her
finding 	of 	this 	breach as 	an 	isolated breach not 	having a
generalized effect 	and 	continuing 	adverse 	impact 	on bargaining
unit members. 	(Grant Joint Union High School District 	(19 82)
PERB Decision No. 	196.)
I 	do not 	subscribe 	to 	the 	theory 	that 	the 	first 	time 	an
employer 	changes 	its 	policy without 	prior notice 	or 	opportunity
to meet 	and negotiate before 	the 	decision 	is made 	it 	is 	a de
facto 	isolated situation or breach. 	Since 	I 	do not 	apply the
tort 	theory of 	"every dog 	is 	entitled 	to 	free bite" 	to 	labor 	law,
it 	is my position that a 	closer analysis 	of 	the District's
position 	is 	necessary with 	respect 	to 	its 	change 	in processing
the 	California 	School 	Employees Association and 	its 	Long Beach
Community 	College 	Chapter #8 	(CSEA)/Earl 	Houston grievance.
Upon such analysis, 	it 	is my view that 	the District's policy
more 	likely amounts 	to the adoption of 	a policy 	that 	has 	the
potential 	for 	a 	generalized 	effect 	and 	continuing 	adverse 	impact
on all members 	of 	the bargaining unit 	and upon CSEA's 	ability to
represent unit members 	in grievance matters. 	Under this policy,
if 	CSEA or a unit member 	files 	a grievance 	challenging a
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disciplinary action 	in conjunction with other violations 	of 	the
CBA, 	the grievant(s) 	would be precluded 	from attaining 	complete
resolution of 	the grievance 	on 	its merits.
The 	District 	adopted 	this 	policy without prior notice 	to
CSEA or an 	opportunity 	for 	CSEA to meet 	and negotiate 	before 	the
decision was made. 	This 	conduct 	constitutes a 	refusal 	and
failure 	to bargain 	in good 	faith 	in violation of 	EERA section
3543.5(c). 	I 	conclude that 	this action also interfered with the
rights 	of 	bargaining unit 	members 	to be 	represented by CSEA in
violation 	of 	section 	3543.5(a) 	and denied CSEA its 	statutory
right 	to 	represent bargaining unit members 	in grievance matters
in violation of section 3543.5(b).
17