San Juan Unified School District (PERB 0204E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, SAN JUAN UAN
CHAPTER # 127,
Charging Party, ty,
v.
SAN JUAN UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. S-CE-426
PERB Decision No. 204
March 31, 1982
Appearances:	Appearances: 	Christian M. KeineKeiner, 	Attorney 	(Biddle, 	Walters 	&
Bukey) for San Juan Unified School District. 	District.
r, Attorney (Biddle, Walters &
Before Gluck, Chairperson; Jaeger , Moore and Tovar, Members. bers.
DECISION	DECISION
This matter is before the Public Employment Relations lations
Board (hereafter Board or PERB) pursuant to an interlocutory erlocutory
appeal filed by the San Juan Unified School District (hereafter 	(hereafter
District) . The District excepts to the proposed decision of decision 	of
the hearing officer denying the District's motion to defer theotion 	to 	defer 	the
underlying dispute between the parties to arbitration pursuant ration 	pursuant
to subsection 3541. 5 (a) (2) of the Educational Employment 	nt
Relations Act. The1 Board affirms the decision of the ion 	of 	the
hearing officer.
1The Educational Employment Relations Act is codified at ed 	at
SAN J
CHAPTER # 127,
Charging 	Par
v .
SAN JUAN 	UNIFIED SCHOOL 	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
__________________ )
Christian M.
Bukey) 	for 	San Juan Unified School
Before Gluck, 	Chairperson; 	Jaeger, 	Moore 	and 	Tovar, 	Mem
This 	matter 	is 	before 	the 	Public Employment 	Re
Board 	(hereafter 	Board 	or 	PERB) 	pursuant 	to 	an 	int
appeal 	filed 	by 	the San Juan Unified School District
District). 	The 	District 	excepts 	to 	the 	proposed
the 	hearing 	officer 	denying 	the District's 	m
underlying 	dispute 	between 	the 	parties 	to 	arbit
to 	SU 	c 	on 	3541.5 	) (2) 	t 	uca 	on
Relations 	Act. 	The 	Board 	affirms 	the 	decis
heari
The 	Educational 	Employment 	Relations 	Act 	is 	codifi

The sole issue before the Board is whether or not the er 	or 	not 	the
underlying dispute in this case should be deferred to thedeferred 	to 	the
binding arbitration mechanism contained in the parties'he 	parties'
collective bargaining agreement. The Board finds this matters 	this 	matter
does not require deferral because it is not covered by thevered 	by 	the
agreement. It therefore orders the parties to proceed to proceed 	to
hearing pursuant to section 3541 et seq. et 	seq.
FACTS
The facts which give rise to the underlying unfair erlying 	unfair
practice charge are central to the Board's determination of rmination 	of
whether or not subsection 3541.5 (a) (2) requires deferral to the al 	to 	the
Government Code section 3540 et seq. All statutory referencetatutory 	references
are to the Government Code unless otherwise stated. Government 	Government
Code subsection 3541.5 (a) (2) reads: 	reads:
s
[The Board shall not] not]
(
ement,
2
The 	sole 	issue 	before 	the 	Board 	is 	wheth
underlying 	dispute 	in 	this 	case 	should 	be
binding 	arbitration mechanism 	contained 	in 	t
collective 	bargaining 	agreement. 	The 	Board 	find
does 	not 	require 	deferral 	because 	it 	is 	not 	co
agreement. 	It 	therefore 	orders 	the 	parties 	to
hearing 	pursuant 	to 	section 	3541
FACTS
The 	facts 	which 	give 	rise 	to 	the 	und
practice 	charge 	are 	central 	to 	the 	Board's 	dete
whether 	or 	not 	subsection 	3541.5(a) (2) 	requires 	deferr
Government 	Code 	section 	3540 	et 	seq. 	All 	s
are 	to 	the Government Code 	unless 	otherwise 	stated.
Code 	subsection 	3541.S(a) (2)
[The 	Board 	shall
•.. 	2) issue a complaint againstagainst
conduct also prohibited by the provisionsovisions
of the agreement between the parties until es 	until
the grievance machinery of the agrethe 	agreement,
if it exists and covers the matter ate 	matter 	at
issue, has been exhausted, either byher 	by
settlement or binding arbitration.bitration.
However , when the charging partyparty
demonstrates that resort to contract 	contract
grievance procedure would be futile,futile,
exhaustion shall not be necessary. cessary. Thehe
board shall have discretionary 	y
jurisdiction to review such settlement or	settlement 	or
arbitration award reached pursuant to theant 	to 	the
grievance machinery solely for the purpose the 	purpose
of determining whether it is repugnant to gnant 	to
the purposes of this chapter .hapter ....
(2) 	issue 	a 	complaint
conduct 	also 	prohibited 	by 	the 	pr
of 	the 	agreement 	between 	the 	parti
the 	grievance 	machinery 	of
if 	it 	exists 	and 	covers 	th
issue, 	has 	been 	exhausted, 	eit
settlement 	or 	binding 	ar
However, 	when 	the 	charging
demonstrates 	that 	resort 	to
grievance 	procedure 	would 	be
exhaustion 	shall 	not 	be 	ne 	T
boards 	discre
jurisdiction 	to 	review 	such
arbitration 	award 	reached 	pursu
grievance 	machinery 	solely 	for
of 	determining 	whether 	it 	is 	r
purposes 	of 	is 	c
2

binding arbitration provision encompassed in the contract contract
between the parties.2 A rev	2 iew of the record in this matter in 	this 	matter
indicates that on or about June 30, 1981, the District directed trict 	directed
certain painters assigned to the maintenance and operationce 	and 	operation
division to change the location where they reported to work. ted 	to 	work.
The past practice had been for painters to report to o 	report 	to
2	2The collective bargaining agreement between the partiesparties
dated July 1, 1979 through June 30, 1982, at Article IV at Article 	IV
contains a lengthy grievance procedure. Section 4.8 details a 	details 	a
five step procedure that culminates in the following: n 	the 	following:
Step V - Arbitrationation
(a) 	If the grievant is not satisfied with the
Superintendent's response at Step IV, or
if the response is not submitted within
agreed time limits, the grievant may,
within ten (10) workdays of receipt of the
Superintendent's decision or his/ her
failure to respond within agreed time
limits, request in writing that the
Association submit the grievance to
arbitration. The Association, by written
notice to the Superintendent within ten
(10) workdays after receipt of the request
from the grievant, may submit the
grievance to arbitration.
(b )
l
or
3
binding 	arbitration 	provision 	encompassed 	in 	the
between 	the 	parties. 	A review 	of 	the 	record
indicates 	that 	on 	or 	about June 	30, 	1981, 	the Dis
certain 	painters 	assigned 	to 	the 	maintenan
division 	to 	change 	the 	location 	where 	they 	repor
The 	past 	practice 	had 	been 	for 	painters 	t
The 	collective 	bargaining 	agreement 	between 	the
dated July 	1, 	1979 	through June 	30, 	1982,
contains 	a 	lengthy 	grievance 	procedure. 	Section 	4.8
five 	step 	procedure 	that 	culminates 	i
Step V - 	Arbitr
(a) 	If 	the 	grievant 	is 	not 	satisfied 	with 	the
Superintendent's 	response 	at Step 	IV, 	or
if 	the 	response 	is 	not 	submitted 	within
agreed 	time 	limits, 	the 	grievant may,
within 	ten 	(10) 	workdays 	of 	receipt 	of 	the
Superintendent's 	decision 	or 	his/her
failure 	to 	respond 	within 	agreed 	time
limits, 	request 	in 	writing 	that 	the
Association 	submit 	the 	grievance 	to
arbitration. 	The Association, 	by 	written
notice 	to 	the 	Superintendent 	within 	ten
(10) 	workdays 	after 	receipt 	of 	the 	request
from 	the 	grievant, 	may 	submit 	the
grievance 	to 	arbitration.
(b) 	The arbitrator shall have no power to addwer 	to 	add
to, or delete, or amend the terms of this terms 	of 	this
agreement . t.
(c) 	An arbitrator shall be selected by mutuad 	by mutual
agreement. If the parties are unable to 	e 	to
agree on an arbitrator, the following 	following
procedure will be used: A representativeresentative
of the grievant and the Board's e 	Board's
representative shall select the arbitratthe 	ar 	trator
from the California State Conciliationonciliation
Service's list of five (5) names by names
The 	arbitrator 	shall 	have 	no 	po
to, 	or 	delete, 	or 	amend 	the
agreemen
(c) 	An 	arbitrator 	shall 	be 	selecte
agreement. 	If 	t 	es 	are
agree 	on 	an 	arbitrator, 	the
procedure 	will 	be 	used: 	A rep
of 	the 	grievant 	and 	th
representative 	shall 	select
from 	the 	California State C
Ser 	ce's 	list 	five 	(5)
3

the maintenance and operations yard at the beginning of their ng 	of 	their
shifts. From there, they were then assigned to work at one or ork 	at 	one 	or
more of the schools in the District. The new directive e 	new 	directive
required painters to begin their workday at the school site andchool 	site 	and
not at the maintenance and operations yard. s 	yard.
In an apparent attempt to relieve itself of any possibleny 	possible
contractual notice requirements, the District, through the hrough 	the
director of maintenance and operations, issued a memorandum memorandum
dated July 20, 1981, which explained its position that the 	that 	the
transfer provisions of Article XI of the contract were not ontract 	were 	not
applicable to this action taken by the District.3 rict.3
eliminating names until one (1) namee 	(l) 	name
remains. 	The first option of elimination imination
shall 	be 	determined 	he 	lot. 	The 	one
remaining name shall be the arbitrator rbitrator.
The process of striking names shall oc 	shall 	occur
within ten (10) workdays of receipt of theipt 	of 	the
list by both parties. arties.
(d) 	The decision of the arbitrator shall be or 	shall 	be
submitted 	to 	the 	District 	and 	the
Association 	and 	shall 	be 	final 	and 	binding
upon the parties to this contract. contract.
The 	decision 	of 	the 	arbitrat
upon 	the 	parties 	to 	this
(e) 	The 	fees 	of 	the 	arbitrator 	and 	related
costs 	shall 	be 	borne 	by 	the 	District 	and
the Association equally. ally.
remains .
shall be determined by lot. T 	one
.cur
(d)
submitted to the District and the
Association and shall be final and binding
(e) 	The fees of the arbitrator and related
costs shall be borne by the District and
3Article XI. Transfers reads in relevant part:nt 	part:
11. 1 Employer-Initiated Job Site TransfersTransfers
A regular employee may be involuntarily
transferred for reasons other than t
punitive, based upon the justifiable needs e
the 	maintenance 	and 	operations 	yard 	at 	the 	beginni
shifts. 	From 	there, 	they 	were 	then 	assigned 	to 	w
more 	of 	the 	schools 	in 	the District. 	Th
required 	painters 	to 	begin 	their 	workday 	at 	the 	s
not 	at 	the 	maintenance 	and 	operation
In 	an 	apparent 	attempt 	to 	relieve 	itself 	of 	a
contractual 	notice 	requirements, 	the 	District, 	t
director 	of 	maintenance 	and 	operations, 	issued 	a
dated July 	20, 	1981, 	which 	explained 	its 	position
transfer 	provisions 	of 	Article 	XI 	of 	the 	c
applicable 	to 	this 	action 	taken 	by 	the 	Dist
eliminating 	names 	until 	on
The 	first 	option 	of 	el
by
remaining 	name 	shall 	be 	the 	a
The 	p'rocess 	of 	striking 	names
within 	ten 	(10) 	workdays 	of 	rece
list 	by 	both 	p
the Association 	equ
3Article 	XI. 	Transfers 	reads 	in 	releva
11.1 	Employer-Initiated Job 	Site
A regular 	employee 	may
transfer 	for 	reasons 	o
punitive, 	based 	upon 	the 	jus
4
A regular employee may be involuntarily
transferred for reasons other than t
punitive, based upon the justifiable needs e

On or about July 21, 1981, representatives of the parties the 	parties
met to discuss this matter. They failed to reach an agreement reach 	an 	agreement
concerning the District's action. The California School alifornia School
Employees Association subsequently made a written demand to 	demand 	to
meet and negotiate the effects of this change. It submitted, It 	submitted,
under the same cover letter, a proposal to amend the collective ollective
bargaining agreement to include a new provision governing governing
maintenance and operations members' work assignments/ reporting eporting
locations. 	The District responded by refusing to modify the dify 	the
collective bargaining agreement, restating its position that ion 	that
the matter was not a transfer within the terms of the agreement.agreement.
locations.
and best interests of the District and/ or	District 	and/or
regular employee, provided that suchhat 	such
transfer shall not result in the loss of	result 	in 	the 	loss 	of
pay or benefits to the regular employee.ar 	employee.
The regular employee shall be given a be 	given 	a
minimum of five (5) workdays notice prior tice 	prior
to the effective transfer datensfer 	date.	.
The relevant portion of the District's July 20ct's July 	20
memorandum readsads:	:
questions have been raised whether
itute job
UT
On 	or 	about July 	21, 	1981, 	representatives 	of
met 	to 	discuss 	this 	matter. 	They 	failed 	to
concerning 	the District's 	action. 	The C
Employees 	Association 	subsequently made 	a 	written
meet 	and 	negotiate 	the 	effects 	of 	this 	change.
under 	the 	same 	cover 	letter, 	a 	proposal 	to 	amend 	the 	c
bargaining 	agreement 	to 	include 	a 	new 	provision
maintenance 	and 	operations 	members' 	work 	assignments/r
The 	District 	responded 	by 	refusing 	to 	mo
collective 	bargaining 	agreement, 	restating 	its 	posit
the 	matter 	was 	not 	a 	transfer 	within 	the 	terms 	of 	the
and 	best 	interests 	of 	the
regular 	employee, 	provided 	t
transfer 	shall 	not
pay 	or 	benefits 	to 	the 	regul
The 	regular 	employee 	shall
minimum 	of 	five 	(5) 	workdays 	no
to 	the 	effective 	tra
The 	relevant 	portion 	of 	the Distri
memorandum 	re
... 	questions 	have 	been 	raised 	whether
or not such assignments constconstitute 	job
site transfers in accordance with nce 	with
Article XI of the General Unit Contract. Contract.
As stated above, maintenance craftscrafts
personnel may, within any given timee en 	timee
[sic] work at a number of sites throughout 	ut
the district. The above referenced enced
article cannot be interpreted to mean thato 	mean 	that
it is necessary to provide an employeemployee
five days notice before moving to anotherto 	anot
work site. te.
or 	not 	such 	assignments
site 	transfers 	in 	accorda
Article 	XI 	of 	the General 	Unit
As 	stated 	above, 	maintenance
personnel 	may, 	thin 	any 	giv
[ 	c] 	work 	at 	a 	number 	of 	sites
the 	district. 	The 	above 	refer
article 	cannot 	be 	interpreted 	t
it 	is 	necessary 	to 	provide 	an 	e
five 	days 	notice 	before 	moving
work
5

DISCUSSION	DISCUSSION
Subsection 3541.5 (a) (2) requires PERB to defer to the efer 	to 	the
binding arbitration provisions of a collective agreement where reement 	where
the conduct at issue is encompassed by its terms. The Board erms. 	The 	Board
has previously held that this subsection essentially codifies ially 	codifies
the policy developed by the National Labor Relations Board s 	Board
(hereafter NLRB) regarding deferral to arbitration proceedings on 	proceedings
and awards. Dry Creek Joint Elementary School District ol 	District
(7/21/80) PERB Order No. 81a; Spielberg Manufacturing Co. ring Co.
(1955) 112 NLRB 1080 [36 LRRM 1152] ; Collyer Insulated Wire ed Wire
(1971) 192 NLRB 837 [77 LRRM 1931] . 4 4
Broadly stated, the NLRB ordinarily defers to arbitrationo 	arbitration
if the underlying dispute between the parties is arguably 	is 	arguably
encompassed by the agreement. But where there is no language 	no 	language
in the contract which will resolve the underlying dispute, the g 	dispute, 	the
NLRB will not defer to the arbitration mbitration machinery 	of 	the
contract. Collyer Insulated Wire, supra; Bio Science Bio Science
Laboratories (1974) 209 NLRB 796 [85 LRRM 1568]; Keystone Steel ne 	Steel
& Wire (1975) 217 NLRB 995 [89 LRRM 1192] . 92].
achinery of the
When confronted with this issue in the past, the Board has 	the 	Board 	has
reviewed the relevant provisions of the contract and the ntract 	and 	the
4It is appropriate for the Board to take guidance from ance 	from
federal labor law precedent when applicable to public sectorlic 	sector
labor relations issues. Firefigters Union, Local 1186 v. CityLocal 	1186 	v. 	City
of Vallejo (1974) 12 Cal. 3d 608 [116 Cal. Rptr. 507] ; Los 507]; 	LOS
Angeles County Civil Service Commission v. Superior Courtrior 	Court
(1978) 23 Cal. 3d 65 [151 151 	Cal.Rptr. 	547].	Cal. Rptr. 547].
6
Subsection 	3541.5(a) (2) 	requires 	PERB 	to 	d
binding 	arbitration 	provisions 	of 	a 	collective 	ag
the 	conduct 	at 	issue 	is 	encompassed 	by 	its 	t
has 	previously 	held 	that 	this 	subsection 	essent
the 	policy 	developed 	by 	the 	National 	Labor 	Relation
(hereafter 	NLRB) 	regarding 	deferral 	to 	arbitrati
and 	awards. 	Dry Creek Joint 	Elementary Scho
(7/21/80) 	PERB 	Order 	No. 	81a; 	Spielberg Manufactu
(1955) 	112 	NLRB 	1080 	[36 	LRRM 	1152]; 	Collyer 	Insulat
{1971) 	192 	NLRB 	837 	[77 	LRRM 	1931].
Broadly 	stated, 	the NLRB 	ordinarily 	defers 	t
if 	the 	underlying 	dispute 	between 	the 	parties
encompassed 	by 	the 	agreement. 	But 	where 	there 	is
in 	the 	contract 	which 	will 	resolve 	the 	underlyin
NLRB 	wi 	not 	defer 	to 	the 	ar
contract. 	Collyer 	Insulated Wire, 	supra;
Laboratories 	(1974) 	209 	NLRB 	796 	[85 	LRRM 	1568]; 	Keysto
& Wire 	(1975) 	217 	NLRB 	995 	[89 	LRRM 	11
When 	confronted 	with 	this 	issue 	in 	the 	past,
reviewed 	the 	relevant 	pr 	sions 	of 	the 	co
4rt 	is 	appropriate 	for 	the 	Board 	to 	take 	guid
federal 	labor 	law 	ecedent 	when 	applicable 	to 	pub
labor 	r 	ations 	issues. 	Firefigters 	Union,
of 	ejo 	(1974) 	12 C 	.3d 	608 	[116 	Cal.Rptr.
Angeles 	County Civil 	Service 	Commission v. 	Supe
(1978) 	23 	Cal.3d 	65 	[
6

negotiating history between the parties to assist in s 	to 	assist 	in
determining whether a dispute was encompassed by the the by 	the 	the
contract. Stockton Unified School District (11/3/80) PERB /80) 	PERB
Decision No. 143 143.	.
The Association contends that at no time since theme 	since 	the
negotiation of the initial contract between the parties has a 	parties 	has 	a
discussion ever touched on changes in the District's work istrict's 	work
assignment policy, and that neither Article XI, governing I, 	governing
transfers, nor any other provision of the agreement covers this t 	covers 	this
matter.	matter .
As expressed in its exceptions, the District contends that t 	contends 	that
the contract does cover the matter at issue in this dispute but is 	dispute 	but
that Article XI does not prohibit this change in the employees' he 	employees'
reporting site. We disagree with the first of the District's the District's
contentions.	contentions .
As set forth supra, Article XI, entitled 	entitled
Employer-Initiated Job Site Transfers, contains no reference 	no 	reference
to the place employees report to work. The District's own istrict's 	own
memorandum of June 20, 1981 confirms our conclusion that the that 	the
contract, on its face, does not cover the matter at issue. e 	matter 	at 	issue.
Indeed, in response to the hearing officer's request, the 	r 	t, 	the
District advised that the contractual language was inapplicable applicable
to 	the 	current 	dispute.
5
to the current dispute.
5see footnote 3. 3.
7
negotiating 	history 	between 	the 	partie
determining 	whether 	a 	dispute 	was 	encompassed
contract. 	Stockton Unified School 	District 	(11/3
Decision No.
The Association 	contends 	that 	at 	no 	ti
negotiation 	of 	the 	initial 	contract 	between 	the
discussion 	ever 	touched 	on 	changes 	in 	the 	D
assignment 	policy, 	and 	that 	neither 	Article 	X
transfers, 	nor 	any 	other 	provision 	of 	the 	agreemen
As 	expressed 	in 	its 	exceptions, 	the 	Distric
the 	contract 	does 	cover 	the 	matter 	at 	issue 	in 	th
that 	Article 	XI 	does 	not 	prohibit 	this 	change 	in 	t
reporting 	site. 	We 	disagree 	with 	the 	first 	of
As 	set 	forth 	supra, 	Article 	XI,
Employer-Initiated Job 	Site Transfers, 	contains
to 	the 	place 	employees 	report 	to 	work. 	The D
memorandum 	of 	June 	20, 	1981 	confirms 	our 	conclusion
contract, 	on 	its 	face, 	does 	not 	cover 	th
Indeed, 	in 	response 	to 	the 	heari 	ficer's
District 	advised 	that 	the 	contractual 	1
5see 	footnote
7
uage 	was 	in

In light of the lack of any contractual provision 	provision
referring to job reporting sites and the District's prior District's 	prior
interpretations, we can find no basis to conclude that deferral 	that 	deferral
to arbitration is appropriate. We affirm the hearing officer's ring 	officer's
determination.
ORDER
determination.
ORDER
Based upon the foregoing decision and the entire record inre 	record 	in
this case, the Public Employment Relations Board ORDERS that ERS 	that
the appeal of the hearing officer's decision not to defer the 	not 	to 	defer 	the
unfair practice charge to arbitration is DENIED. The chiefENIED. 	The 	chief
administrative law judge is directed to proceed to resolution ed 	to 	resolution
in accordance with PERB procedure dure.	.
By : John W. Jaeger , Member mber 	73arbara 	D. 	Moore, 	Member	Barbara D. Moore, Member
Harry Gluck, Chairperson, concurring: urring:
The District's claim is not based on an express provision 	provision
of the negotiated agreement. Both its memorandum of dum 	of
Co
In 	light 	of 	the 	lack 	of 	any 	contractual
referring 	to 	job 	reporting 	sites 	and 	the
interpretations, 	we 	can 	find 	no 	basis 	to 	conclude
to 	arbitration 	is 	appropriate. 	We 	affirm 	the 	hea
Based 	upon 	the 	foregoing 	decision 	and 	the 	enti
this 	case, 	the 	Public 	Employment 	Relations 	Board 	ORD
the 	appeal 	of 	the 	hearing 	officer's 	decision
unfair 	practice 	charge 	to 	arbitration 	is 	D
administrative 	law 	judge 	is 	directed 	to 	proce
in 	accordance 	with 	PERB 	proce
By: ....... John 	W. 	Jaeger~ 	Me
Harry Gluck, 	Chairperson, 	conc
The 	District's 	claim 	is 	not 	based 	on 	an 	express
of 	the 	negotiated 	agreement. 	Both 	its 	memoran
8

July 201 and its October 5 response to the hearing officer's
request th
provision to be submitted to arbitration deny the
applicability of the employee transfer article. Nor does the
District cite any other pertinent contract provision.
Rather, it seems that the District seeks from the
past practices and the parties' bargaining history allow it to
take the action complained of or, at least, that the contract
Is
Although the grievant typically frames
ns of the
history.
o
direct the workforce, did the district
retain the authority to direct the
district's employees (painters in
report directly to the worksite rather than
the maintenance yard?
In other words, the district contends that
it retains those rights which it has not
bargained away and which are consistent with
past practice .
July 	20 1 	and 	its 	October 	5 	response 	to 	the 	hearing 	officer's
request 	at the District specifically identify the contract 	the 	contract
provision 	to 	be 	submitted 	to 	arbitration
that 	the 	District 	specifically 	identify
2 	deny 	the
applicability 	of 	the 	employee 	transfer 	article. 	Nor 	does 	the
District 	cite 	any 	other 	pertinent 	contract 	provision.
Rather, 	it 	seems 	that 	the 	District 	seeks 	from 	the
arbitrator a determination that its inherent managerial rights, agerial 	rights,
past 	practices 	and 	the 	parties' 	bargaining 	history 	allow 	it 	to
take 	the 	action 	complained 	of 	or, 	at 	least, 	that 	the 	contract
arbitrator 	a 	determination 	that 	its 	inherent 	man
1 ee footnote 3 of majority opinion, supra. pra.
2The October response states, in relevant part: rt:
see 	footnote 	3 	of 	majority opinion, 	su
2The 	October 	response 	states, 	in 	relevant 	pa
.•• 	Although 	the 	grievant 	typically 	frames
the issue under the allegatio llegations 	of 	the
grievance; the district would submit 	ld 	submit
Article 11, transfer, section ll. 1 to the 11.1 	to 	the
arbitrator and argue, in essence, that due 	that 	due
to the inapplicability of this section to this 	section 	to
these facts, the district acted properly in 	properly 	in
taking the action it did under past under 	past
practice, inherent management rights to rights 	to
direct the workforce, and bargaining gaining
history. 	It might read: read:
Considering past practice, bargainingaining
history, and asserted management right t right 	to
direct 	the 	workforce, 	did 	the 	district
retain 	the 	authority 	to 	direct 	the
district's 	employees 	(painters 	in estion 	to	maintenance and operations) in question to
report 	directly 	to 	the 	worksite 	rather 	than
the 	maintenance 	yard?
the 	issue 	under 	the 	a
grievance; 	the 	district 	wou
Article 	11, 	transfer, 	section
arbitrator 	and 	argue, 	in 	essence,
to 	the 	inapplicability of
these 	facts, 	the 	district 	acted
taking 	the 	action 	it 	did
practice, 	inherent 	management
direct 	the 	workforce, 	and 	bar
It 	might
Considering 	past 	practice, 	barg
history, 	and 	asserted 	management
maintenance 	and 	operations) 	in 	qu
In 	other 	words, 	the 	district 	contends 	that
it 	retains 	those 	rights 	which 	it 	has 	not
bargained 	away 	and 	which 	are 	consistent 	with
past 	practice 	•••
9

does not prohibit such action. action. 	Possibly 	the 	District 	relies 	on
the 	approach 	followed 	by 	some 	arbitrators 	who 	view 	the
negotiated 	agreement 	as 	identifying 	those 	managerial 	rights
which 	have 	been 	surrendered 	through 	bargaining 	and 	all 	other
rights 	as 	being 	reserved 	to 	the 	employer.
Possibly the District relies on
the approach followed by some arbitrators who view the
negotiated agreement as identifying those managerial rights
which have been surrendered through bargaining and all other
rights as being reserved to the employer . 3
Whatever the merits of this residual rights theory, the
District has failed to demonstrate to this Board that an
arbitrator will or can assert jurisdiction where, as here, the
parties agree that no provision in the contract is in dispute
and have contracted to limit the use of arbitration to disputes
involving "a violation or misapplication of specific provisions
of . . . [the] agreement." Further, under the arbitration
clause, the arbitrator is prohibited from adding to,
subtracting from or otherwise modifying the agreement. 4
Section 3541.5(a) prohibits PERB from issuing a complaint
only where the aggrieved conduct is "prohibited by the
provisions of the agreement of the parties" and where the
3Other arbitrators limit their jurisdiction to
determining whether the contract permits or prohibits the
complained-of action and, therefore, consider such evidence as
past practice and bargaining history only to aid in the
See Elkouri & Elkouri, How Arbitration Works (3rd Ed . , 1973) .
4Thus, deferral in this instance might well be futile.
See section 3541. 5 (a) (2) , supra.
10
does 	not 	prohibit 	such
3
Whatever 	the 	merits 	of 	this 	residual 	rights 	theory, 	the
District 	has 	failed 	to 	demonstrate 	to 	this 	Board 	that 	an
arbitrator 	will 	or 	can 	assert 	jurisdiction 	where, 	as 	here, 	the
parties 	agree 	that 	no 	provision 	in 	the 	contract 	is 	in 	dispute
and 	have 	contracted 	to 	limit 	the 	use 	of 	arbitration 	to 	disputes
involving 	"a 	violation 	or 	misapplication 	of 	specific 	provisions
of 	.•. 	(the] 	agreement." 	Further, 	under 	the 	arbitration
clause, 	the 	arbitrator 	is 	prohibited 	from 	adding 	to,
subtracting 	from 	or 	otherwise 	modifying 	the 	agreement.4
Section 	3541.S(a) 	prohibits PERB 	from 	issuing 	a 	complaint
only 	where 	the 	aggrieved 	conduct 	is 	"prohibited 	by 	the
provisions 	of 	the 	agreement 	of 	the 	parties" 	and 	where 	the
3other 	arbitrators 	limit 	their 	jurisdiction 	to
determining 	whether 	the 	contract 	permits 	or 	prohibits 	the
complained-of 	action 	and, 	therefore, 	consider 	such 	evidence 	as
past 	practice 	and 	bargaining 	history 	only 	to 	aid 	in 	the
interpretation of ambiguous or contested contract language.	interpretation 	of 	ambiguous 	or 	contested 	contract 	language.
See Elkouri 	& Elkouri, 	How Arbitration Works 	(3rd 	Ed., 	1973).
4Thus, 	deferral 	in 	this 	instance 	might 	well 	be 	futile.
See 	section 	3541.S{a) (2), 	supra.
10

arbitration clause "covers the matter at issue. " Neither
condition existing here, I concur in the result reached by
the majority.
arbitration 	clause 	"covers 	the 	matter 	at 	issue." 	Neither
condition 	existing 	here,5 	I 	concur 	in 	the 	result 	reached 	by
the 	majority.
Harry Gluck, Chairperson
Member 	Tovar's 	dissent 	begins 	on 	page 	12.	Member Tovar's dissent begins on page 12.
5Aside from the parties' "agreement" to this effect, Ithis 	effect, 	I
agree 	with 	the 	majority's 	finding 	that 	the 	contract, 	on 	its
face; 	contains 	no 	provision 	subject 	to 	the 	grievance.
agree with the majority's finding that the contract, on its
face, contains no provision subject to the grievance.
11
5Aside 	from 	the 	parties' 	"agreement" 	to
11

Irene Tovar, Member, dissenting:
Contrary to the majority views, I would defer this case to
arbitration.
I concur with the majority that subsection 3543.5 (a) (2) is
essentially a codification of the common law of voluntary
deferral developed by the National Labor Relations Board
(hereafter NLRB) . As such PERB has previously determined that
it is appropriate to look to the decisions of the NLRB for
guidance in determining when it should defer to an arbitration
procedure. Dry Creek, supra. However, I disagree with the
majority as to the instances in which PERB must defer to
arbitration when the underlying dispute is arguably covered by
the contract.
I reject the majority's interpretation of the Board's
holding in Stockton Unified School District, (11/3/80) PERB
Decision No. 143. The majority would have Stockton stand for
the proposition that PERB has the authority to review the
relevant provisions of the contract and the negotiating history
between the parties to assist in determining whether a dispute
was encompassed by the contract. This is a misinterpretation
of the occasions when the Board has looked to the negotiating
history between parties. In Stockton the Board looked to the
history of negotiations between parties trying to reach a
successor agreement in order to understand the allegations
involved. When looking to see if an issue was arbitrable, the
12
Irene 	Tovar, 	Member, 	dissenting:
Contrary 	to 	the 	majority 	views, 	I 	would 	defer 	this 	case 	to
arbitration.
I 	concur 	with 	the 	majority 	that 	subsection 	3543.S(a) (2) 	is
essentially 	a 	codification of 	the 	common 	law 	of 	voluntary
deferral 	developed 	by 	the 	National 	Labor 	Relations 	Board
(hereafter 	NLRB). 	As 	such 	PERB 	has 	previously 	determined 	that
it 	is 	appropriate 	to 	look 	to 	the 	decisions 	of 	the 	NLRB 	for
guidance 	in 	determining 	when 	it 	should 	defer 	to 	an 	arbitration
procedure. 	Dry 	Creek, 	SUE_E~· 	However, 	I 	disagree 	with 	the
majority 	as 	to 	the 	instances 	in 	which 	PERB 	must 	defer 	to
arbitration 	when 	the 	underlying 	dispute 	is 	arguably 	covered 	by
the 	contract.
I 	reject 	the 	majority's 	interpretation 	of 	the 	Board's
holding 	in 	Stockton 	Unified 	School 	District, 	(11/3/80) 	PERB
Decision 	No. 	143. 	The 	majority would 	have 	Stockton 	stand 	for
the 	proposition 	that 	PERB 	has 	the 	authority 	to 	review 	the
relevant 	provisions 	of 	the 	contract 	and 	the 	negotiating 	history
between 	the 	parties 	to 	assist 	in 	determining 	whether 	a 	dispute
was 	encompassed 	by 	the 	contract. 	This 	is 	a 	misinterpretation
of 	the 	occasions 	when 	the 	Board 	has 	looked 	to 	the 	negotiating
history 	between 	parties. 	In 	Stockton 	the 	Board 	looked 	to 	the
history 	of 	negotiations 	between 	parties 	trying 	to 	reach 	a
successor 	agreement 	in 	order 	to 	understand 	the 	allegations
involved. 	When 	looking 	to 	see 	if 	an 	issue 	was 	arbitrable, 	the
12

Board stated:
Section 3541.5 (a) prohibits the Board from
prohibited by the provisions of the parties'
agreement until the agreement's grievance
.
to section 3541.5 (a) , findin
subject matter is covered by the contract
binding
Nowhere does the Board state that it will look to the parties'
past bargaining history in order to determine whether a dispute
was encompassed by the contract. In fact, to do so would fly
in the face of existing NLRB case law.
From its inception, the NLRB has held that its decision to
assert or decline jurisdiction over disputes where the parties
collective agreement provides for arbitration will depend upon
the facts in each particular case. When deciding whether or
not to defer to arbitration the United States Supreme Court in
United Steelworkers of America v. Warrior & Gulf
Navigation Co., (1960) 363 U.S. 574, 582-583, [46 LRRM 2416]
has stated:
An order to arbitrate the particular
dispute. Doubts should be resolved in favor
of coverage.
The NLRB has somewhat expanded this doctrine in
Robinson Chevrolet, (1977) 228 NLRB 828, [94 LRRM 1474] ,
13
Board 	stated:
Section 	3541.5(a) 	prohibits 	the 	Board 	from
issuing a complaint against conduct also	against 	conduct 	also
prohibited 	by 	the 	provisions 	of 	the 	parties'
agreement 	until 	the 	agreement's 	grievance
machinery has been exhausted either by ther 	by
settlement or binding arbitrationarbitration. Pursuant	Pursuant
to 	section 	3541.5(a), g that the 	that 	the
subject 	matter 	is 	covered 	by 	the 	contract
and that the contract requiresrequires 	binding
arbitration, the Board dismisses this isses 	this
portion of the charge. arge. 	(Cite omitted. )ed.)
issuing 	a 	complaint
machinery 	has 	been 	exhausted 	ei
settlement 	or 	binding finding
and 	that 	the 	contract
arbitration, 	the 	Board 	dism
portion 	of 	the 	ch 	(Cite 	omitt
Nowhere 	does 	the 	Board 	state 	that 	it 	will 	look 	to 	the 	parties'
past 	bargaining 	history 	in 	order 	to 	determine 	whether 	a 	dispute
was 	encompassed 	by 	the 	contract. 	In 	fact, 	to 	do 	so 	would 	fly
in 	the 	face 	of 	existing 	NLRB 	case 	law.
From 	its 	inception, 	the 	NLRB 	has 	held 	that 	its 	dee is ion 	to
assert 	or 	decline 	jurisdiction 	over 	disputes 	where 	the 	parties'
collective 	agreement 	provides 	for 	arbitration 	will 	depend 	upon
the 	facts 	in 	each 	particular 	case. 	When 	deciding 	whether 	or
not 	to 	defer 	to 	arbitration 	the 	United 	States 	Supreme 	Court 	in
United 	Steelworkers 	of America 	v. 	Warrior 	& Gulf
Navigation 	Co., 	(1960) 	363 	U.S. 	574, 	582-583, 	[46 	LRRM 	2416]
has 	stated:
An 	order 	to 	arbitrate 	the 	particular
grievance should not be denied unless it mayunless 	it may
be said with positive assurance that the e 	that 	the
ptible 	of 	an	arbitration clause is not susceptible of an
interpretation that covers the asserted e 	asserted
dispute. 	Doubts 	should 	be 	resolved 	in 	favor
of 	coverage.
grievance 	should 	not 	be 	denied
be 	said with 	positive 	assuranc
arbitration 	clause 	is 	not 	susce
interpretation 	that 	covers 	th
The 	NLRB 	has 	somewhat 	expanded 	this 	doctrine 	in
Roy Robinson 	Chevrolet, 	(1977) 	228 	NLRB 	828, 	[94 	LRRM 	1474],	~~y
13

where Chairperson Murphy, in casting the deciding vote, stated
that the fact that there is no specific provision in the
contract which expressly covers the dispute will not make
deferral automatically inappropriate, as long as the pivotal
issue hinges on interpretation of the contract.
The function of PERB in the present case is very limited.
It is confined to ascertaining whether the party seeking
arbitration is making a claim which is governed by the
contract. Whether the moving party is right or wrong is a
question of contract interpretation for the arbitrator. In
these circumstances the parties should not be deprived of the
arbitrator's judgment, when it was his judgment and all that it
connotes that was bargained for.
In the present case, the District contends in its
exceptions to the hearing officer's decision, that one or more
provisions of the collective bargaining agreement would apply
in resolving the dispute. 	I agree. Article XI allows for the
employer to involuntarily transfer a regular employee, based on
the employer's justifiable needs and best interest. Unlike the
majority, I hold that, once it is found that a contract
provision arguably covers the issue at hand, it is for the
arbitrator to decide the merits of the grievance.
I also do not agree with Chairperson Gluck's contention
that this is an instance where deferral might well be futile.
Doubts that the issues are capable of full resolution under the
14
where 	Chairperson Murphy, 	in 	casting 	the 	deciding 	vote, 	stated
that 	the 	fact 	that 	there 	is 	no 	specific 	provision 	in 	the
contract 	which 	expressly 	covers 	the 	dispute 	will 	not 	make
deferral 	automatically 	inappropriate, 	as 	long 	as 	the 	pivotal
issue 	hinges 	on 	interpretation 	of 	the 	contract.
The 	function 	of 	PERB 	in 	the 	present 	case 	is 	very 	limited.
It 	is 	confined 	to 	ascertaining 	whether 	the 	party 	seeking
arbitration 	is 	making 	a 	claim 	which 	is 	governed 	by 	the
contract. 	Whether 	the 	moving 	party 	is 	right 	or 	wrong 	is 	a
question 	of 	contract 	interpretation 	for 	the 	arbitrator. 	In
these 	circumstances 	the 	parties 	should 	not 	be 	deprived 	of 	the
arbitrator's 	judgment, 	when 	it 	was 	his 	judgment 	and 	all 	that 	it
connotes 	that 	was 	bargained 	for.
In 	the 	present 	case, 	the 	District 	contends 	in 	its
exceptions 	to 	the 	hearing 	officer's 	decision, 	that 	one 	or 	more
provisions 	of 	the 	collective 	bargaining 	agreement 	would 	apply
in 	resolving 	the 	dispute. 	I 	agree. 	Article 	XI 	allows 	for 	the
employer 	to 	involuntarily 	transfer 	a 	regular 	employee, 	based 	on
the 	employer's 	justifiable 	needs 	and 	best 	interest. 	Unlike 	the
majority, 	I 	hold 	that, 	once 	it 	is 	found 	that 	a 	contract
provision 	arguably 	covers 	the 	issue 	at 	hand, 	it 	is 	for 	the
arbitrator 	to 	decide 	the 	merits 	of 	the 	grievance.
I 	also 	do 	not 	agree 	with 	Chairperson 	Gluck 1 s 	contention
that 	this 	is 	an 	instance 	where 	deferral 	might 	well 	be 	futile.
Doubts 	that 	the 	issues 	are 	capable 	of 	full 	resolution 	under 	the
14

terms of the agreement should not prevent the Board from
deferring to arbitration. The issue of arbitrability should
itself be submitted to the arbitrator, as has become the near
universal practice under collective bargaining. Patman, Urban
N. Inc., (1972) 197 NLRB 1222, [80 LRRM 1481] enf'd sub nom
F. 2d 1249, [85 LRRM 2863] cert. denied (1974) 419 U.S. 828;
Nor folk Portsmouth Wholesale Beer Distributors Association,
(1972) 196 NLRB 1150, [80 LRRM 1235] .
For all the foregoing reasons, I would defer this dispute
to the parties' contractual grievance and arbitration
machinery. However, in accordance with NLRB policy, I would
retain limited jurisdiction over this proceeding for the
purpose of entertaining an appropriate and timely motion for
further consideration upon a proper showing that either (a) the
dispute has not been amicably settled or submitted promptly to
arbitration, or (b) the grievance or arbitration procedure has
not been fair and regular or has reached a result which is
repugnant to the Act.
Irene T
15
terms 	of 	the 	agreement 	should 	not 	prevent 	the 	Board 	from
deferring 	to 	arbitration. 	The 	issue 	of 	arbitrability 	should
itself 	be 	submitted 	to 	the 	arbitrator, 	as 	has 	become 	the 	near
universal 	practice 	under 	collective 	bargaining. 	Patman, 	Urban
N. 	Inc., 	(1972) 	197 	NLRB 	1222, 	[80 	LRRM 	1481] 	enf'd 	sub 	nom
Provision House Workers, Local 274 v. NLRB, (1974, 9th Cir. ) 493 493
F.2d 	1249, 	[85 	LRRM 	2863] 	cert. 	denied 	(1974) 	419 	U.S. 	828;
Norfolk 	Portsmouth 	Wholesale 	Beer 	Distributors 	Association,
(1972) 	196 	NLRB 	1150, 	[80 	LRRM 	1235].
Provision 	House 	Workers, 	Local 	274 	v.NLRB, 	(1974, 	9th 	Cir.)
For 	all 	the 	foregoing 	reasons, 	I 	would 	defer 	this 	dispute
to 	the 	parties' 	contractual 	grievance 	and 	arbitration
machinery. 	However, 	in 	accordance 	with 	NLRB 	policy, 	I 	would
retain 	limited 	jurisdiction 	over 	this 	proceeding 	for 	the
purpose 	of 	entertaining 	an 	appropriate 	and 	timely 	motion 	for
further 	consideration 	upon 	a 	proper 	showing 	that 	either 	(a) 	the
dispute 	has 	not 	been 	amicably 	settled 	or 	submitted 	promptly 	to
arbitration, 	or 	(b} 	the 	grievance 	or 	arbitration 	procedure 	has
not 	been 	fair 	and 	regular 	or 	has 	reached 	a 	result 	which 	is
repugnant 	to 	the 	Act.
~
Iren'e ovar, Member	I 	ber	Tovar 	Hem
15