State Center Community College District (PERB A255E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION, 	STATE 	CENTER
CHAPTER 	379,
Charging 	Party,
v.
STATE 	CENTER 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case 	No. 	S-CE-1565
Administrative 	Appeal
PERB 	Order 	No. 	Ad-255
May 	19, 	1994
Appearances: 	California 	School 	Employees 	Association 	by
Madalyn 	J. 	Frazzini, 	Attorney, 	for 	California 	School 	Employees
Association, 	State 	Center 	Chapter 	379; 	Zampi 	and Associates 	by
Danielle 	M. 	Goeppner 	and 	N. 	Joseph 	Trofemuk, 	Jr., 	Attorneys, 	for
State 	Center 	Community 	College 	District.
Before 	Caffrey, 	Carlyle 	and 	Garcia, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERE 	or 	Board) 	on 	appeal 	by 	the 	State 	Center
Community 	College 	District 	(District) 	of 	a 	PERE 	administrative
law 	judge's 	(ALJ) 	denial 	of 	the 	District's 	motion 	to 	dismiss 	and
defer 	to 	arbitration 	an unfair 	practice 	charge 	which 	was 	filed 	by
the 	California 	School 	Employees 	Association, 	State 	Center
Chapter 	379 	(CSEA).
BACKGROUND
On 	or 	about 	May 	18, 	1993, 1 CSEA became 	aware 	that 	the
District 	was 	contracting 	out 	various 	custodial, 	groundskeeping
and 	courier 	services 	which 	would 	otherwise 	be 	performed by
1All 	dates 	refer 	to 	1993 	unless 	specified 	otherwise.

members 	of 	a 	bargaining 	unit 	exclusively 	represented by 	CSEA.
CSEA 	confirmed 	with 	District 	representatives 	that 	the 	District
had 	taken 	this 	action 	without 	prior 	notice 	to 	CSEA and 	without
providing 	the 	opportunity 	to 	meet 	and 	confer with 	regard 	to 	it.
CSEA 	demanded 	that 	the 	District 	stop 	the 	contracting 	out 	and
commence 	negotiations 	or 	be 	subject 	to 	an 	unfair 	practice 	charge
and/or 	litigation. 	On 	or 	about 	June 	11, 	the 	District 	rejected
CSEA's 	demand 	asserting, 	among 	other 	things, 	that 	the 	parties
collective 	bargaining 	agreement 	(CBA) 	did 	not 	prohibit 	the
contracting 	out 	in 	question,
On 	June 	28, 	a 	CSEA 	Labor 	Relations 	Representative 	(LRR)
filed 	a 	grievance 	on 	behalf 	of 	CSEA 	citing various 	articles 	of
the 	CBA which 	it 	alleged 	the 	District 	had 	violated 	by 	contracting
out 	the 	services.
On 	July 	16, 	the 	CSEA LRR 	filed 	an 	unfair 	practice 	charge
with 	PERB 	alleging 	that 	the 	District 	violated 	sections 	3543.5(b)
and 	(c) 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA) 2 when
it 	contracted 	out 	certain 	custodial, 	groundskeeping, 	courier 	and
mail 	handling 	services 	without 	giving 	CSEA an 	opportunity 	to 	meet
2EERA 	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:
(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

and 	confer 	over 	the 	new 	policy 	and/or 	its 	effects. 	A complaint
was 	issued 	on August 	30, 	by 	a 	PERB 	regional 	attorney, 	as 	was 	a
letter 	refusing 	to 	dismiss 	and 	defer 	the 	charge 	to 	arbitration.
The 	refusal 	to 	defer 	was 	based 	on 	the 	dual 	grounds 	that 	the 	CEA
in 	effect 	between 	the 	parties 	did 	not 	prohibit 	the 	complained 	of
conduct, 	and 	that 	the 	CBA did 	not 	allow 	CSEA 	to 	file 	a 	grievance
in 	its 	own 	name.
On 	or 	about 	August 	12, 	the 	District 	Chancellor 	denied 	the
CSEA 	grievance. 	On 	or 	about 	September 	9, 	the 	CSEA LRR 	indicated
to 	the 	District 	the 	intention 	to 	pursue 	the 	grievance 	to 	final
and 	binding 	arbitration.
On 	September 	27, 	the 	District 	filed 	its 	answer 	to 	the 	PERB
complaint 	and 	a 	motion 	to 	dismiss 	and 	defer 	the 	complaint. 	Among
the 	District's 	affirmative 	defenses 	to 	the 	complaint 	was 	the
argument 	that 	the 	CBA 	called 	for 	final 	and 	binding 	arbitration 	of
the 	dispute.
On 	October 	5, 	the 	CSEA 	LRR 	notified 	PERE 	that 	after
consultation 	with 	CSEA's 	legal 	department, 	CSEA was 	withdrawing
the 	grievance 	"since 	there 	was 	no 	contractual 	prohibition 	to
contract 	out 	bargaining 	unit 	work."
The 	parties 	held 	an 	informal 	conference 	on 	October 	28, 	at
which 	time 	the 	ALJ 	denied 	the 	District's 	motion 	to 	dismiss 	and
defer 	the 	charge 	based 	on 	the 	determination 	that 	the 	conduct
complained 	of 	is 	not 	prohibited 	by 	the 	parties' 	CBA. 	The 	ALJ
concluded, 	however, 	that 	the 	CBA gives 	CSEA 	the 	right 	to 	file 	a
grievance 	in 	its 	own 	name 	in 	accordance 	with 	the 	Board's 	ruling
3

in 	Inglewood 	Unified 	School 	District 	(1990) 	PERB 	Decision 	No. 	821
(Inglewood). 	The 	ALJ's 	order 	denying 	the 	District's 	motion 	was
issued 	November 	4.
POSITIONS 	OF 	THE 	PARTIES
In 	accordance 	with 	PERB 	Regulation 	32646, 3 the 	District
appealed 	the 	ALJ's 	order 	on November 	29. 	The 	appeal 	repeats 	the
arguments 	included 	in 	the 	District's 	original 	motion 	to 	dismiss
and 	defer. 	The 	District 	argues 	that 	the 	ALJ 	improperly 	applied
the 	standard 	for 	determining 	whether 	a 	charge 	must 	be 	deferred 	in
concluding 	that 	the 	complained 	of 	conduct 	is 	not 	prohibited 	by
the 	parties' 	CBA. 	The 	District 	asserts 	that 	CSEA 	"admitted" 	that
the 	CBA 	arguably 	prohibits 	the 	complained 	of 	conduct 	when 	it
filed 	a 	grievance 	alleging 	that 	the 	contracting 	out 	violated
certain 	specific 	CBA provisions. 	The 	District 	reasserts 	that 	the
complained 	of 	conduct 	is 	arguably 	prohibited 	by 	portions 	of
Article 	2, 	Article 	6, 	Article 	22, 	Article 	23, 	Article 	26, 	Article
29 	and 	Article 	35 	of 	the 	CBA. 	The 	District 	also 	supports 	the
ALJ's 	finding 	that 	CSEA arguably 	had 	a 	right 	to 	file 	a 	grievance
in 	its 	own 	name 	under 	the 	CBA.
CSEA 	filed 	its 	reply 	opposing 	the 	District's 	appeal 	on
December 	21. 	In 	it, 	CSEA argues 	that 	the 	District 	has 	failed 	to
3 PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq. 	PERB
Regulation 	32646(b) 	states, 	in 	pertinent 	part:
The 	Board 	agent's 	denial 	of 	respondent's
motion 	to 	defer 	an 	unfair practice 	charge 	to
final 	and 	binding 	arbitration may be 	appealed
to 	the 	Board 	itself 	in 	accordance 	with 	the
appeal 	procedures 	set 	forth 	in 	section 	32635.
4

demonstrate
	that
	the
	parties'
	CBA
prohibits
	the
	complained
	of
conduct,
	and
	that
	the
	CBA
	does
	not 	give
	CSEA
	the
	right
	to
	file
	a
grievance
	in
	its
	own
	name.
	CSEA
	also
	asserts 	that
	"No
	admissions
arise
	from
	Charging
	Party's
	filing
	a
	grievance
	which
	was
	later
withdrawn."
On
	January
	14, 	1994,
	the
	District 	filed
	a
	statement
	in
opposition 	to
	CSEA's
	reply
	brief.
	The
	District
	argues
	that
	by
asserting 	that
	it
	had
	no
	standing
	under
	the
	CBA
	to
	file
	a
grievance
	in
	its
	own
	name,
	CSEA
	was
	in 	effect
	excepting
	to
	a
finding
	made
	by
	the
	ALJ,
	since 	the
	ALJ
	had
	reached
	the 	opposite
conclusion.
	The
	District,
	therefore,
	argues
	that
	CSEA's
exception 	to 	that
	finding
	by
	the
	ALJ
	was
	not 	timely
	filed
	and
should 	not
	be
	given
	consideration
	by
	the
	Board.
4
The
	District
then 	proceeds
	to 	repeat
	its
	arguments
	in
	support 	of
	its
	appeal.
DISCUSSION
EERA
	section
	3541.S(a)
(2)
	provides,
	in 	pertinent 	part, 	that
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 	grievancemachinery 	of 	the
	agreement,
	if
	it
	exists
	and
covers 	the 	matter
	at 	issue,
	has 	been
4
The
	District
1 s
	argument
	that 	the
	CSEA
	brief 	is
	an
	untimely
filed
	appeal
	is 	rejected.
	PERB
	Regulation
	32635(c)
	permits
	any
other 	party 	to
	file
	a
	statement 	in 	opposition within
	20
	days 	of
the 	appeal.
	CSEA's
	brief 	is
	comprised 	of 	statements 	in
opposition 	to 	the 	District
1 s
	position.
	The 	Board 	does 	not
construe 	such 	statements 	as
	a
	separate
	and untimely 	appeal
	in
this 	case. 	Further, 	regardless 	of 	whether
	CSEA
	addresses 	an
issue 	not 	appealed 	by 	the 	District, 	the 	Board
	is
	not 	constrainedfrom 	considering 	such 	issues. 
5

exhausted,
	either
	by
	settlement 	or
	binding
arbitration.
In
	Lake
	Elsinore
	School
	District
	(1987)
	PERB
	Decision
No.
	646 	(Lake
	Elsinore),
	the
	Board
	held
	that
	this
	section
established
	a
	jurisdictional
	rule 	requiring
	that
	a
	charge 	be
dismissed
	and
	deferred
	if:
	(1)
	the
	grievance
	machinery
	of
	the
agreement
	covers
	the 	matter
	at
	issue
	and
	culminates
	in
	binding
arbitration;
	and
	(2)
	the
	conduct 	complained
	of
	in
	the
	unfair
practice
	charge
	is
	prohibited
	by
	the 	provisions
	of
	the
	agreement
between
	the
	parties.
In
	Los
	Angeles
	Unified
	School
	District
	(1990)
	PERB
	Decision
No.
	860,
	the
	Board
	determined
	that
	the
	exercise
	of
	PERB's
jurisdiction 	is
	precluded
	if
	the
	conduct
	constituting
	the
	alleged
unfair 	practice
	is
	arguably
	prohibited
	by
	the
	parties'
	agreement.
Accordingly,
	a
	charge
	may
	be
	dismissed
	and
	deferred
	only
	if
	the
conduct
	alleged 	to
	be 	an
	unfair 	practice
	is
	arguably
	prohibited
by
	the
	CBA.
As 	a
	threshold 	matter,
	we
	address 	the
	District's
	argument
that
	by
	filing
	a
	grievance
	alleging 	that
	the 	contracting 	out
violated 	specified 	sections
	of 	the
	parties'
	CBA, 	CSEA
	has
admitted
	that
	the
	complained 	of 	conduct
	is
	arguably
	prohibited
	by
the
	CEA,
	thereby 	requiring
	PERB's
	dismissal
	and
	deferral 	of 	the
charge 	to 	arbitration.
	This 	argument
	is
	without 	merit.
	The
facts 	of 	this
	case 	reveal 	that
	CSEA
	filed
	a
	grievance 	charging
that 	the 	contracting 	out 	violated 	provisions 	of 	the 	contract,
	a
grievance 	which
	it
	subsequently 	withdrew
	prior 	to 	arbitration
stating 	that 	the 	conduct
	was
	not 	prohibited 	by 	the
	CBA. 	The
6

facts 	also
	reveal
	that
	the
	District
	refused
	CSEA's
	initial
demands
	to
	cease
	and
	desist
	the 	contracting
	out
	stating 	that
	it
was
	not
	prohibited
	by
	the
	CBA.
	The
	positions
	taken
	by
	the
parties 	at
	various 	stages
	of
	a
	case
	are
	not
	dispositive
	of
	PERE's
authority
	to
	determine 	whether
	a
	charge
	must
	be
	dismissed
	and
deferred 	to
	arbitration.
	In
	making
	this
	determination
	under
	Lake
Elsinore,
	the
	Board must
	review
	the
	contract
	terms
	and
	decide
whether 	the
	complained
	of
	conduct
	is
	arguably
	prohibited
	by
	them.
(Inglewood.)
Turning
	to 	the
	contract
	terms,
	the
	District,
	on
	appeal,
repeats
	its
	assertion 	that
	numerous
	provisions
	of
	the
	CEA
arguably
	prohibit
	the
	conduct 	complained
	of
	in
	CSEA's
	charge.
	As
concluded
	by
	both 	the 	regional 	attorney
	and
	the
	ALJ,
	however,
none
	of 	these 	provisions 	arguably
	prohibits
	the
	complained
	of
conduct,
	which
	is
	the
	District's
	decision 	to 	contract
	out
	certain
services
	without 	meeting
	and
	conferring 	with
	CSEA.
The
	District 	cites
	CEA
	Article
	2
	in
	its
	appeal, 	but
	that
Article 	is
	a
	typical 	recognition 	provision
	and 	does
	not 	arguably
prohibit
	the
	complained 	of 	conduct.
Article
	6,
	the
	waiver
	clause 	of 	the
	CEA,
	is
	also 	cited
	by
the
	District.
	It
	contains
	a
	provision
	stating 	that
	all 	state
laws
	not 	included
	in 	the
	CBA
	nonetheless 	are 	in 	effect.
	The
District
	argues
	that 	this 	provision 	incorporates
	EERA
	and
	all
employee
	organization 	rights
	under
	EERA
	into 	the
	CBA,
	thereby
subjecting
	them
	to 	the 	grievance 	and
	arbitration 	process 	included
in 	the
	CBA
	and
	requiring 	the 	dismissal 	and
	deferrai 	of
	CSEA's
7

charge. 	The 	Board 	dealt 	with 	a 	similar 	argument 	in 	Fremont 	Union
High 	School 	District 	(1993) 	PERB 	Order 	No. 	Ad-248, 	concluding
that 	general 	"subject 	to 	the 	provisions 	of 	the 	law" 	language 	in 	a
CBA 	is 	not 	sufficient 	to 	incorporate 	into 	the 	contract 	all
specific 	rights 	guaranteed 	by 	EERA and 	subject 	alleged violations
of 	those 	rights 	to 	the 	contract 	grievance 	and 	arbitration
machinery. 	Therefore, 	the 	District's 	assertion 	that 	general
provisions 	within Article 	6 	arguably 	prohibit 	the 	conduct
complained 	of 	by 	CSEA 	is 	rejected.
The 	District 	also 	cites 	Article 	22 	of 	the 	CBA, 	dealing 	with
"Recruitment, 	Transfer, 	Promotion, 	Eligibility 	Lists," 	and
Article 	23 	"Transfer 	- 	Work 	Location." 	These 	articles 	concern
the 	detailed 	processes 	for 	filling 	positions 	in 	the 	District 	and
do 	not 	arguably 	prohibit 	the 	conduct 	complained 	of 	in 	CSEA's
charge.
Article 	26 	"Management 	Rights 	and 	Responsibilities" 	provides
for 	"the 	outside 	purchase 	of 	products 	and 	services" 	by 	the
District 	as 	long 	as 	a 	reduction 	in 	allocated 	positions 	does 	not
result. 	As 	noted 	by 	the 	reg·ional 	attorney, 	the 	conduct
complained 	of 	by 	CSEA 	is 	not 	prohibited by 	this 	section 	since 	no
resulting 	position 	reduction 	is 	alleged. 	If 	anything, 	this
Article 	arguably 	permits 	the 	District 	to 	engage 	in 	the 	complained
of 	conduct, 	and 	does 	not 	justify 	dismissal 	and 	deferral 	to
arbitration. 	(Los 	Angeles 	Unified 	School 	District, 	supra, 	PERB
Decision No. 	860.)
8

Article
	29
	is
	a
	detailed
	provision
	concerning
	work
	hours
	and
does
	not 	arguably
	prohibit
	the
	conduct 	complained
	of
	by
	CSEA.
Finally, 	Article
	35
	of
	the
	CBA
	includes
	a
	specific
	provision
prohibiting
	contracting
	out
	work
	by
	the
	District
	only
	when
11
bargaining
	unit
	employees
	are
	in
	a
	layoff
	status."
	CSEA
	has 	not
alleged 	that
	its
	members
	were
	in
	a
	layoff
	status
	at
	the
	time
	the
District
	contracted
	out
	work,
	so
	this
	Article
	does
	not 	arguably
prohibit
	the
	complained
	of 	conduct.
In
	summary,
	the
	District
	has
	repeated 	the
	arguments
	it
	made
to 	the 	regional
	attorney
	and
	ALJ
	in
	support
	of
	its
	motion
	to
dismiss
	and
	defer.
	The
	District
	has
	failed
	to
	demonstrate
	that
the
	complained 	of 	conduct
	is
	arguably
	prohibited
	by
	the
	CBA
	and,
therefore,
	its
	arguments
	are 	rejected.
With
	regard
	to
	the 	issue
	of 	standing 	to
	file
	a
	grievance,
the
	ALJ
	cited
	Inglewood
	in
	concluding 	tha~
	CSEA
	arguably
	had
	the
right 	to
	file
	a
	grievance
	in
	its
	own 	name
	under 	the
	CBA.
Inglewood
	is
	clearly 	distinguishable
	from
	this
	case,
	however.
The
	CBA
	between
	the
	parties 	in
	Inglewood
	defined
	a
	grievance 	as
any
	"complaint 	of 	an 	employee, 	employees
	or
	CSEA."
	It
	further
specifically
	provided
	that
	11
The
	Association
	may
	be
	the 	grievant
on
	Association 	rights
	"
	In
	this
	case,
	Article
	27
	of 	the
CBA,
	"Grievance 	Procedure,
11
	defines
	a
	grievance 	as
	"any
	complaint
of
	members
	involving
	interpretation, 	application 	or 	alleged
violation
	of
	this
	Agreement."
	It
	also 	provides 	that
	"Other
matters 	for
	which
	a
	specific
	method 	of 	review
	is
	provided by 	law
.
	are 	not 	within 	the 	scope 	of 	this 	Article." 	Finally, 	the
9

Article
	defines
	a
	grievant
	as
	"any
	member
	or
	members
	of
	the
bargaining
	unit
	covered
	by
	the
	terms
	of
	this
	Agreement."
	There
is
	no
	provision 	in
	the
	CBA
	which
	arguably 	permits 	the
	employee
organization 	to
	file
	a
	grievance
	in
	its
	own
	name
	with
	regard
	to
its
	own
	rights,
	as
	was
	clearly
	the
	situation
	in
	Inglewood.
The
	Board
	concludes
	that
	CSEA
	has
	no
	standing 	to
	file
	a
grievance
	in
	its
	own
	name
	under
	the
	terms
	of
	the
	CBA.
	Therefore,
for
	this
	additional
	reason, 	the
	District's
	motion
	to
	dismiss
	and
defer
	must 	be
	denied.
ORDER
The
	Board
	AFFIRMS
	the
	ALJ's
	order
	denying
	the
	District's
motion
	to
	dismiss
	and
	defer
	this
	case
	to
	arbitration.
	Consistent
with
	this
	ruling,
	the
	Board
	REMANDS
	this
	case
	to
	the
	Chief
Administrative
	Law
	Judge
	to
	be
	processed
	in
	accordance
	with
	PERE
regulations.
Member
	Carlyle's
	concurrence 	begins
	on
	page 	11.
Member
	Garcia's
	concurrence 	begins
	on .page
	13.
10

CARLYLE,
	Member,
	concurring:
	I
	would
	affirm
	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board)
	administrative
	law
judge's
	(ALJ)
	order
	denying
	the
	State
	Center
	Community
	College
District's
	(District)
	motion
	to
	dismiss
	and
	defer
	this
	case
	to
arbitration
	for
	the
	sole
	reason
	that
	the
	District
	has
	failed
	to
demonstrate
	that
	the
	complained
	of
	conduct
	is
	arguably
	prohibited
by
	the 	collective
	bargaining
	agreement
	(CBA).
	Accordingly,
	I
would
	remand
	this
	case
	to
	the
	Chief
	Administrative
	Law
	Judge
	for
further
	proceedings
	consistent
	with
	this
	position.
Section
	3541.S(a)
(2)
	of 	the
	Educational
	Employment
	Relations
Act
	(EERA) 1	
states,
	in 	relevant
	part, 	that
	the
	Board
	shall
	not:
Issue
	a
	complaint
	against
	conduct
	alsoprohibited
	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.
Under
	Lake
	Elsinore
	School
	District
	(1987)
	PERB
	Decision
No.
	646,
	as 	affirmed
	by
	Los
	Angeles
	Unified
	School
	District
(1990)
	PERB
	Decision
	No.
	860,
	a
	successful
	motion
	to 	dismiss
	a
complaint
	and
	defer
	a
	matter 	to
	arbitration
	must
	first
demonstrate
	"that 	the
	conduct
	at
	issue
	must 	be
	arguably
prohibited
	by
	the
	language 	of 	the 	agreement."
	As
	correctly
	noted
in 	the 	author's
	opinion
	in 	the 	case
	at
	bar:
[T]he
	District,
	on
	appeal, 	repeats
	its
assertion 	that
	numerous
	provisions 	of 	the
	CBA
arguably 	prohibit 	the 	conduct 	complained
of
	....
	As
	concluded 	by
	both 	the 	regional
attorney
	and 	the
	ALJ, 	however, 	none 	of 	these
provisions 	arguably 	prohibits 	the 	complained
of 	conduct.
1EERA
	is 	codified at
	Government 	Code
	section
	3540
	et 	seq.
11

As
	such,
	the
	District
	has 	merely
	"repeated 	the
	arguments
	it
[unsuccessfully]
	made
	to
	the 	regional 	attorney
	and
	ALJ
	in
	support
of
	its
	motion
	to
	dismiss
	and
	defer."
I,
	too,
	am
	unpersuaded
	on
	the
	correctness
	of
	the
	District's
position
	for
	the
	same
	reasons
	found	
by	
the 	regional
	attorney
	and
the
	ALJ
	on
	this
	first
	part
	of
	the
	"dismiss
	and
	deferral
	test.
11
Having
	reached
	this
	conclusion
	on
	this
	initial
	threshold
	issue
and
	thus 	affirming 	the
	ALJ's
	order
	on
	this
	ground,
	I
	find
	it
unnecessary
	to
	opine
	or
	pontificate
	on
	other 	issues
	and
	therefore
decline 	to 	also 	join 	in
	the 	dueling
	dicta.
12

GARCIA,
	Member,
	concurring:
	I
	concur
	in
	the
	result
	but
	I
disagree
	with
	the
	legal 	analysis
	of
	the 	author
	and
	the
	Public
Employment
	Relations
	Board's
	(PERB)
	administrative
	law
	judge
(ALJ). 	Both
	decisions,
	although
	based
	on
	different
	legal
analyses,
	cause
	PERB
	to
	slip
	farther
	into
	a
	policy
	on
pre-arbitration
	deferral 	that
	results
	in
	easy
	denial
	of
	the
rights
	of
	parties.
FEDERAL 	PRECEDENT
Although
	none
	of
	California's
	public
	sector
	labor
	relations
statutes
	are
	copies 	of 	the 	National
	Labor
	Relations
	Act
	(NLRA),
our
	statutes 	select
	and
	combine
	principles 	established
	by
	the
National
	Labor
	Relations
	Board
	(NLRB),
	with
	provisions
	reflecting
features
	and 	needs
	of
	the
	California
	public
	sector.
1
Both
	PERB
and
	reviewing
	courts 	turn 	for 	instruction 	to
	precedent
established
	under
	NLRB
	decisions.
2 	A
brief
	overview 	of
	the
federal
	precedent
	on
	pre-arbitration 	deferral
	follows.
Under
	federal
	law,
	including
	NLRB
	decisions, 	regardless
	of
whether
	it
	is 	clear
	or 	uncertain 	that
	an agreement
	provides 	for
arbitration
	of 	the 	disputed 	subject, 	the 	case
	is
	given
	to 	the
arbitrator
	for 	further 	decision 	regarding 	matters 	of
1
See 	Zerger, 	Cal. 	Public 	Sector
	Labor
	Relations
	(1989)
Chapter 	2,
	section 	2.01, 	page 	3, 	footnote
	4,
	citing 	Pacific
	Legal
Foundation v.
	Brown 	(1981) 	29
	Cal.3d 	168, 	173, 	176-177,[172
	Cal.Rptr. 	487].
2
Id., 	section 	2.02, 	page 	4, 	footnote 	1,
	citing 	cases
involving 	use 	of
	NLRA
	precedent.
13

interpretation. 3 	The 	arbitrator 	then 	decides 	whether 	the
agreement 	covers 	the 	subject 	matter 	and 	who 	has 	standing 	to
participate 	in 	arbitration. 	In 	other 	words, 	except 	in 	rare 	or
unusual 	cases, 	the 	courts 	and 	quasi-judicial 	agencies 	such 	as 	the
NLRB 	and 	PERB 	should 	first 	determine 	whether 	the 	contract
provides 	for 	arbitration, 	and 	if 	so, 	they 	turn 	the 	matter 	over 	to
the 	arbitrator 	to 	interpret 	the 	scope 	of 	the 	arbitration, 4 	unless
there 	is 	evidence 	that 	this 	was 	not 	the 	result 	the 	parties
intended.
PERB 	POLICY 	ON 	PRE-ARBITRATION DEFERRAL
The 	"arguably prohibited" 	policy 	that 	PERE 	employs 	was 	born
in 	Inglewood 	Unified 	School 	District 	(1990) 	PERB 	Decision 	No. 	821
(Inglewood). 	Review 	of 	the 	Inglewood 	case 	shows 	that 	PERB 	policy
is 	synonymous 	with 	the 	ambiguity 	doctrine 	in 	Steelworkers. 5 	The
3See 	United 	Steelworkers 	of 	America 	v. 	Warrior 	& Gulf
Navigation 	Co. 	(1960) 	363 	U.S. 	574, 	582 	and 	583 	[46 	LRRM 	2416]
(Steelworkers):
An 	order 	to 	arbitrate 	a 	particular 	grievance
should 	not 	be 	denied 	unless 	it 	may 	be 	said
with 	positive 	assurance 	that 	the 	arbitration
clause 	is 	not 	susceptible 	of 	an
interpretation 	that 	covers 	the 	asserted
dispute. 	Doubts 	should be 	resolved 	in 	favor
of 	coverage.
See 	also, 	Roy 	Robinson 	Chevrolet 	(1977) 	228 	NLRB 	828
[ 9 4 	LRRM 	14 7 4 ] .
4See 	Riverside 	Community 	College 	District 	(1992) 	PERB 	Order
No. 	Ad-229 	(Riverside).
5See 	Inglewood, 	page 	6, 	citing 	Conejo Valley 	Unified 	School
District 	(1984) 	PERE 	Decision No. 	376 	(overruled 	on 	other 	grounds
in 	Lake 	Elsinore 	School 	District 	(1987) 	PERE 	Decision 	No. 	646,
p. 	31, 	fn. 	13).
14

policy,
	when
	dealing
	with
	uncertainty
.as
	to
	whether
	a
	contract
provides
	for
	arbitration, 	is
	to
	resolve
	doubts
	in
	favor
	of
coverage.
	The
	Supreme
	Court
	did
	not 	develop
	the 	policy
	to
	be
used
	as
	a
	standard
	for
	interpreting
	unambiguous
	contract
language.
	However,
	recent
	PERB
	decisions 	are 	unwittingly
creating
	a
	standard
	of
	interpretation 	that
	is
	subjective
	rather
than
	disciplined.
	This 	approach
	is
	evident
	in
	the
	main
	case
cited
	in
	Member
	Caffrey's
	opinion
	(Los
	Angeles
	Unified
	School
District
	(1990)
	PERB
	Decision
	No.
	860 	(Los
	Angeles))
	which
misconstrues
	Lake
	Elsinore
	School
	District
	(1987)
	PERB
	Decision
No.
	646 	(Lake
	Elsinore)
	by
	implying
	that
	it
	created
	a
	rule 	that
PERB
	immediately 	looks
	to
	see 	whether
	provisions
	of
	the
	agreement
"arguably
	prohibit"
	the
	conduct
	to
	determine
	PERB's
	jurisdiction.
The
	danger
	in
	using
	that
	policy
	in
	all
	cases
	is
	that
	it
	invites
	a
subjective
	approach
	to 	contract
	interpretation
	by
	PERB
	and
	in
some
	cases 	appropriates 	the
	role
	of 	the
	arbitrator.
	Furthermore,
it
	vitiates
	the
	ability
	of
	parties
	to 	negotiate
	grievance
agreements, 	since
	almost 	anything 	can 	be
	"arguably"
	prohibited.
PROBLEM WITH 	CURRENT 	POLICY
Relying
	on 	Los
	Angeles,
	Member
	Caffrey
	identifies
	a
	view
which
	may
	become
	a
	rule
	of
	interpretation
	unique
	to
	PERB.
	The
invalid 	rule,
	as
	stated 	in 	Riverside,
	is:
In 	determining 	whether
	deferral 	is
appropriate 	under
	Lake
	Elsinore, 	the
	Board
reviews 	the 	contract 	language
	on
	its
	face 	todetermine 	whether 	the 	alleged
	conduct
	isarguably 	prohibited
	by
	the 	contract 	terms.
(Id.
	at
	p. 	5.)
15

A
problem
	arises
	when
	the
	subjective
	"arguably
	prohibited"
policy
	is
	used
	to
	interpret
	"unambiguous"
	contract 	provisions.
Specifically,
	the
	Los
	Angeles
	case
	misstates
	Lake
	Elsinore 	as
holding
	that
	the
	conduct
	must
	be
	"arguably
	prohibited"
	as
	a
prerequisite
	to
	deferral.
	I
	do
	not
	find
	that
	language
	in 	the
Lake
	Elsinore
	case
	and
	believe
	that
	the 	policy
	articulated 	in
Los
	Angeles
	is
	a
	misinterpretation 	that
	compounds
	errors
	and
creates
	a
	subjective 	tool 	to 	defer 	or
	retain 	jurisdiction.
	The
"arguably
	prohibited" 	policy
	and
	"not
	susceptible" 	doctrine
should 	only
	be
	used
	to 	resolve 	ambiguities
	in
	contract
	language
where
	legal 	rules
	of
	contract
	interpretation
	do
	not
	resolve 	the
issue
	of
	arbitrability.
6	
That
	is
	not
	the
	case
	here.
INTENT
	OF
	THE
	PARTIES
In
	matters
	of
	contract
	interpretation,
	the 	goal
	is
	to
determine 	the
	intent
	of 	the
	parties.
	Legal
	principles
	of
contract 	interpretation 	assist
	in 	that
	endeavor.
7	
If
	a
	lack
	of
6
See
	Riverside, 	supra,
	at
	page 	4,
	citing
	Temple
	City Unified
$chool
	District
	(1989)
	PERE
	Decision
	No.
	782
	(regarding
conflicting 	interpretations);
	Inglewood,
	supra 	(regarding 	"not
susceptible" 	standard).
7A
	summary
	of
	principles
	of
	interpretation
	of
	contracts
	is
found
	in
	1
	Witkin,
	Summary
	of 	Cal.
	Law
	(9th 	ed.
	1987)
	section
	681
et
	seq.
	Examples
	of 	such
	principles 	include:
	(1) 	A
	contract
	must
be
	interpreted
	so 	as 	to 	give
	effect 	to 	the
	mutual
	intention 	ofthe
	parties
	(Witkin,
	sec.
	684,
	p.
	617,
	citing 	Civil
	Code
	section
1636); 	and
	(2) 	Words
	are 	understood 	in 	their
	ordinary
	and
	popularsense
	rather
	than
	strict
	legal
	meaning
	unless 	used 	by
	the
	partiesin
	a
	technical 	sense 	(Witkin,
	sec.
	685,
	p. 	618).
See
	also, 	State 	of 	California
	(Department 	of 	Personnel
Administration)
	(1991) 	PERE
	Order
	No.
	Ad-221-S, 	which 	held 	that
when
	language 	in 	an 	agreement
	is 	clear
	and 	unambiguous,
	partiesare 	bound 	by
	its
	terms. 
16

clarity
	persists
	after
	application
	of
	these 	general
	principles,
then
	it
	is
	proper
	to
	employ
	other 	aids 	to
	interpretation,
	such 	as
the
	policies
	developed
	in
	Steelworkers
	and 	Inglewood
	that
	favor
private
	resolution
	of
	disputes.
8
Under
	EERA,
	when
	parties
	contract 	to
	submit
	themselves
	to
	a
grievance
	procedure,
	whether
	or
	not
	it
	involves
	arbitration,
	they
are
	agreeing
	to
	deny
	PERB
	jurisdiction
	over
	a
	dispute
	and
	are
voluntarily
	waiving
	immediate
	access
	to
	PERB. 9
In
	other 	types 	of
cases 	involving
	waiver,
	PERB
	has
	properly 	required
	evidence 	of
	a
clear
	intention
	on
	the
	part
	of
	the
	waiving
	party
	as
	reflected
	by
words
	or
	conduct
.
10
Similarly,
	we
	should 	not
	be
	quick
	to
	deny
8
See,
	e.g.,
	(1)
	J.
	Alexander
	Securities,
	Inc. 	v.
	Mendez
(1993)
	17
	Cal.App.4th
	1083,
	1089
	[21
	Cal.Rptr.2d
	826]
	(referringto
	a
	"significant
	shift
	in 	California
	law 	towards
	private 	dispute
resolution.");
	(2)
	Moncharsh
	v. 	Heily	
&	
Blase
	(1992)
	3
	Cal.4th
	1,
9
	[10
	Cal.Rptr.2d
	183]
	(citing 	to
	Title
	9
	of 	the
	Code
	of
	Civil
Procedure 	[the
	laws
	regulating 	private
	arbitration
	in 	California]as 	"represent[ing]
	a
	comprehensive
	statutory
	scheme
	...
	[in
which]
	the 	Legislature
	has 	express.ed
	a
	'strong 	public
	pol
icy 	in
favor 	of
	arbitration
	...
'
11
	[Citations.]);
	(3)
	Philippine
	Export
&	
Foreign
	Loan
	Guarantee
	Corp.
	v. 	Chuidian
	(1990) 	218
	Cal.App.3d1058,
	1076 	[267
	Cal.Rptr.
	457]
	(referring 	to 	the
	11
•••
	law
	of
contract,
	which
	favors
	enforcement 	of
	valid
	bargains
	between
private 	parties,
	and
	...
	the
	law
	of
	settlements,
	which
	favors
private 	resolution
	of
	disputes");
	and
	(4)
	Lake
	Elsinore,
	page
	26,
which
	"recognize[d] 	the 	strong 	policy 	in 	California 	in 	favor 	of
arbitration
	and
	that
	provisions 	of
	EERA
	embody
	such
	a
	policy."
See
	also,
	Educational
	Employment
	Relations
	Act
	(EERA)
sections
	3548.5 	through 	3548.8, 	which
	provide
	a
	process 	throughwhich
	the 	parties
	can 	develop 	and
	enforce
	arbitration
	agreements.
9EERA
	section 	3541.S(a).
10
See 	San
	Francisco
	Community
	College
	District
	(1979) 	PERB
Decision
	No.
	105, 	holding 	that
	PERB:
...
	will 	not 	readily 	infer 	that
	a
	party 	has
waived
	its 	rights 	under
	EERA; 	we
	will 	find
	a
waiver 	only
	when
	there 	is
	an 	unintentional
17

access
	to
	PERB
	without
	a
	disciplined
	review
	of
	the
	parties'
intention 	that
	comes
	from
	using
	well-established
	principles
	of
contract
	interpretation.
	There
	is
	no
	need
	to
	use
	a
	policy
doctrine 	to
	interpret
	a
	contract
	that
	is
	clear
	on
	its
	face.
APPLICATION
	OF
	PRINCIPLES
	TO
	THIS
	CASE
The
	plain
	language 	of
	the
	parties'
	Collective
	Bargaining
Agreement
	(CBA)
	shows
	that
	the 	grievance
	machinery
	covers
	"any
complaint 	of
	members
	involving
	interpretation, 	application 	or
alleged 	violation
	of
	this
	Agreement."
	[CBA,
	Article
	27,
	Section
l(A);
	emphasis 	added.]
	A
grievant
	has
	the
	right
	to
	demand
arbitration
	of
	disputes
	after 	prior
	exhaustion 	of 	the 	grievance
process
	without
	settlement
	[CBA,
	Article
	27,
	Section
	5(D)]
.
11
Furthermore,
	if
	arbitration 	is
	chosen,
	the 	debate 	over 	whether
the 	agreement·covers 	the 	dispute
	is
	within 	the 	province
	of 	the
arbitrator
	and
	not
	PERB.
12
relinquishment 	of
	these
	rights,
	expressed
	in
clear
	and
	unmistakable 	terms.
	[Fns.
	omitted.]
11
Section
	5 (D) (
1)
	provides,
	in 	part, 	that:
Within
	fifteen
	(15)
	workdays
	after
	receipt
	of
the 	decision 	of 	the
	.Chancellor,
	the 	grievant
may,
	upon
	written 	notice 	to 	the
	CSEA,
	request
the 	grievance
	be
	submitted 	to 	arbitration.
Thus,
	a
	grievant
	may
	not 	request
	that
	a
	grievance
	be
submitted 	to
	arbitration
	without 	following 	the 	contractualprocedure 	through 	the 	various 	levels,
	up
	to
	and
	including 	the
Chancellor's 	decision
	mentioned 	above 	(Level
	III).
	Section
	3(B)
provides 	that 	grievances 	shall
	be 	brought 	"only 	through
	this
procedure.
11
12
This 	would 	be 	the 	result
	under 	the 	federal 	cases 	discussed
in 	the 	text
	above. 	See,
	e.g.,
	Steelworkers 	("Whether
contracting-out 	in 	the 	present 	case 	violated 	the 	agreement
	is
	the
question. 	It 	is
	a
	question 	for 	the 	arbiter, 	not 	for 	the 	courts."
18

However,
	while
	it
	is
	apparent
	that
	arbitration
	is
	available
in
	this
	case,
	the
	contract 	also
	provides
	that
	arbitration
	can
only
	be 	undertaken 	with
	the
	concurrence 	of
	CSEA.
13	
Here,
	CSEA
withdrew
	its
	request 	for
	arbitration.
	In
	accord 	with
	the
parties'
	contract,
	this
	dispute
	was
	grieved 	without
	settlement.
Since 	binding
	arbitration
	is
	not
	available
	because
	of 	the
	lack
	of
CSEA
	concurrence,
	I
	find
	that
	the 	process
	has 	been
	exhausted
	and
further 	pursuit
	through
	the 	grievance 	process
	would
	be
	futile.
PERB's
	jurisdiction
	is
	now
	permitted
	under
	EERA
	section
3541.5(a)(2),
	which
	provides
	that:
.
	when
	the 	charging
	party
	demonstrates
that 	resort 	to 	contract
	grievance 	procedure
would
	be
	futile,
	exhaustion
	shall
	not
	be
necessary.
CONCLUSION
Under
	the
	statute
	and
	the
	plain
	language 	of 	the
	parties'
agreement,
	PERB
	has
	jurisdiction 	in
	this
	case.
[363
	U.S. 	574,
	585]
	and
	Roy
	Robinson
	Chevrolet
	("
	...
	the 	issueof
	arbitrability
	'should
	itself
	be
	submitted 	to 	the
	arbitrator,
as 	has
	become
	the 	near 	universal 	practice
	under
	collective
bargaining.'
11
	(Citations.]
	[228
	NLRB
	828])
.
	This
	is 	clearly
	the
result
	here 	because 	Section
	3(D)2
	of 	the
	parties'
	CBA
	alsoprovides 	that
	it
	shall
	be
	the 	function 	of 	the
	arbitrator 	todetermine 	the
	arbitrability
	of 	any 	grievance
	where
	arbitrability
is
	questioned
	by
	either 	party.
13
Section
	S(D) (1)
	reads:
The
	grievance
	may
	be 	submitted 	to 	arbitrationonly 	with 	the 	concurrence 	of 	the
	CSEA.
19