Oakland Unified School District (PERB 0538E)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
OAKLAND SCHOOL EMPLOYEES ASSOCIATION,
Charging 	Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
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Case 	No. 	SF-CE-922
PERB 	Decision No. 	538
December 	4, 	1985
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Appearances: 	Andrew 	Thomas 	Sinclair 	for 	Oakland 	School 	Employees
Association; 	Nancy Lowenthal 	for 	Oakland 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Jaeger and Morgenstern, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on an appeal 	filed
by 	the 	Oakland 	School 	Employees 	Association 	(Association)
challenging 	the 	dismissal 	of 	its 	unfair practice 	charge 	against
the Oakland Unified 	School 	District 	(District). 	Having 	fully
considered 	the Association's 	contentions, 	we 	find 	that 	the
Board agent's 	dismissal, 	attached hereto, 	aptly found that,
because 	the 	arbitrator's 	award 	was 	not 	repugnant 	to the
Educational 	Employment Relations Act 	(EERA or Act), 	section
3541.5(a)(2) precluded issuance of a complaint.1 1
LEERA 	is 	codified at 	Government 	Code section 	3540 et
seq. 	In relevant part, 	section 	3541.5 permits 	an employee
organization 	to 	file 	an unfair practice charge:
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. 	. 	. 	except 	that the board shall not do
either of the following: 	. 	. 	. 	(2) 	issue a
complaint 	against 	conduct 	also prohibited by
the provisions 	of 	the 	agreement 	between 	the
parties 	until 	the 	grievance 	machinery of 	the
agreement, 	if 	it exists 	and covers 	the
matter at 	issue, 	has been exhausted, 	either
by settlement or binding arbitration. 	. 	. 	.
The 	board 	shall have 	discretionary
jurisdiction 	to review such settlement 	or
arbitration 	award 	reached pursuant 	to 	the
grievance 	machinery 	solely 	for 	the purpose
of determining whether 	it 	is 	repugnant 	to
the purposes of 	this 	chapter. 	If 	the board
finds 	that 	such 	settlement 	or 	arbitration
award 	is 	repugnant 	to the purposes 	of 	this
chapter, 	it shall 	issue a complaint on the
basis 	of 	a timely 	filed 	charge, 	and hear and
decide the case on the merits; 	otherwise, 	it
shall dismiss 	the 	charge.
In the 	instant appeal, 	the Association claims 	that 	the
arbitrator's 	decision 	is 	repugnant 	to the Act because 	that
decision 	left 	unanswered 	its 	charge 	that 	the District 	instituted
an 	unlawful 	unilateral 	change 	when 	the 	District 	declined 	to
permit post-termination 	arbitration of 	the 	merits 	of
disciplinary disputes. 	In our 	view, 	this 	is 	the 	issue which the
arbitrator decided. 	In his 	decision dated November 	14, 	1983,
the 	arbitrator 	concluded 	that 	Article 	28 	of 	the parties'
contractual 	agreement 	did 	not 	contemplate post-termination
arbitration. 	By deciding 	that 	the 	contract permitted 	the
District's 	conduct, 	the 	arbitrator 	necessarily concluded 	that
the 	District 	made 	no 	unlawful 	change 	and 	thus 	fully discharged
its 	bargaining 	obligation.
2
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

We note 	that 	the 	arbitrator's 	decision does 	not 	dispose 	of
the 	Association's 	contention 	that 	the 	District 	failed 	to
negotiate prior 	to adoption of Bulletin 8010 	in 1978. 	That
allegation, 	however, 	is 	untimely,2 as 	this unfair practice
charge was 	not 	filed until 	five years 	later. 	Moreover,
characterizing 	its 	charge 	as 	a 	challenge 	to the 	unilateral
adoption of Bulletin 8010 	is 	deceptive. 	The gravamen of 	the
Association's 	dispute 	is 	the District's 	refusal 	to permit
post-termination arbitration. 	Enactment 	of 	Bulletin 	8010
simply gave 	District 	employees 	the 	right 	to a pre-termination
non-binding procedure. 	Ignoring 	that 	fact, 	the Association
attempts 	to bootstrap 	the 	arbitrator's 	reliance 	on 	Bulletin
8010 	in his 	contract 	interpretation to the assertion 	that 	it 	is
herein challenging the 	initial adoption of 8010. 	Plainly, 	it
is not true that, 	by virtue of the arbitrator's decision, 	the
adoption of 	Bulletin 8010 became 	a 	unilateral 	change.
Finally, 	while we might 	well have 	interpreted the parties'
agreement 	in a manner at 	odds 	with 	that 	of 	the arbitrator, 	we
2 The 	Association submitted a document 	it 	contends 	is 	a
reply 	to 	the 	District's 	assertion 	that 	any unfair practice
charge 	alleging 	unilateral 	adoption 	of 	the 	pre-termination
procedure 	established by Bulletin 8010 	in 	1978 	is 	untimely
filed. 	The 	Board 	reviewed 	the Association's 	submission under
its 	discretionary authority to do so. 	(Los 	Angeles 	Unified
School 	District 	and 	Los 	Angeles 	Community 	College 	District
(1984) 	PERB Decision No. 	408.) 	Inasmuch as 	the Association
itself 	raised 	the 	timeliness 	issue 	in 	its 	initial 	unfair
practice charge, 	we 	find no merit 	in 	the Association's 	claim
that 	the 	District 	waived 	its 	right 	to challenge 	the 	timeliness
of 	the charge. 	(See 	section 	3541.5(a).)
33

decline 	to second-guess 	the arbitrator's 	decision and, 	thereby,
substitute our 	judgment 	for that of 	the arbitrator.3
ORDER
The unfair practice charge 	in Case No. 	SF-CE-922 	is hereby
DISMISSED WITHOUT 	LEAVE TO AMEND.
Member Morgenstern 	joined 	in this 	Decision. 	Member Jaeger's
dissent 	begins 	on page 	5.
3 The 	possibility that 	the 	Board may have 	reached 	a
different 	conclusion 	in 	interpreting 	the parties' 	agreement 	and
the evidence, 	does 	not 	render 	the award unreasonable or
repugnant. 	(Los Angeles 	Unified School 	District 	(1982) 	PERB
Decision No. 	218.)
4

Jaeger, 	Member, 	dissenting: 	According to my colleagues,
the 	"gravamen of 	the charge" 	is 	the 	District's 	refusal 	to
arbitrate. 	The May 11 charge states:
This 	[adoption of 8010] 	constitutes 	unlawful
unilateral 	action by the 	employer.
No bargaining 	took place 	with 	respect 	to 	the
adoption of Administrative Bulletin 8010, 	nor
was 	OSEA even 	informed 	that 	it 	was 	going 	to be
adopted. 	At a later point 	in time when a
revision was 	being considered, 	bargaining
was 	requested, 	but 	the District 	refused 	to
bargain over 	the changes.
If 	it 	is 	true that 	the adoption of
Administrative 	Bulletin 	8010 	resulted 	in
disciplinary matters 	no 	longer 	coming 	under 	the
grievance procedure, 	then this 	constituted
unlawful 	unilateral 	action by 	the 	District.
In its August 14 amendment, 	OSEA alleges:
• 	• 	• 	[T]he District unilaterally adopted
Administrative Bulletin 8010 	without 	notice 	to,
or 	bargaining 	with 	OSEA 	. . . . 	[W]hen 	the
District proposed to revise 	this 	Bulletin, 	OSEA
requested bargaining, 	but 	the 	District 	failed
and 	refused 	to bargain.
Of course, 	it was 	the District's 	refusal 	to arbitrate that
ultimately brings 	this 	case before 	the 	Board. 	But 	the 	issue
before 	the 	Board 	is 	neither 	the 	District's 	refusal 	to arbitrate
nor 	its 	refusal 	to bargain. 	It 	is 	whether 	the arbitrator's
decision 	is 	repugnant 	to the Act's purposes 	because by
rewriting the parties' 	agreement, 	he permitted 	the District 	to
unilaterally 	abandon 	the 	contract.
It 	is 	not my 	intent 	to 	look behind 	an arbitrator's 	finding
and 	refuse 	deference 	simply because 	in my 	judgment 	the 	evidence
5
• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

is 	susceptible to other 	inferences, 	or 	to second guess his
reading of 	the record. 	However, 	the very nature of a
repugnancy claim does 	necessitate 	a 	review of 	the 	arbitrator's
decision 	in terms 	of 	its 	effectuation of 	the Act's purposes.l
In respect 	to the repugnancy issue, 	I 	find the single
grievance procedure 	in Article 	28 	to be 	straightforward 	and
commonplace: 	a written statement 	of 	the 	grievance directed 	to
the designated management representative; appeal to the District
superintendent; 	and, 	finally, 	a written demand for binding
arbitration. 	Only one 	restriction on 	the 	availability of 	this
1I note 	that 	two 	other 	arbitrators 	who heard 	cases
involving 	virtually 	identical 	contract 	language, 	the 	same
charging party, 	and 	the same District 	arguments 	(one 	contract
included 	the 	Education 	Code 	reference 	deleted 	from 	the 	one 	at
hand, 	and 	there were different 	grievants 	in different
representation 	units) 	specifically disagreed 	with 	the
arbitrator here. 	Arbitrator John Kagel, 	in response to the
District's 	argument 	that 	the 	decision of 	the 	arbitrator 	in 	this
case be res 	judicata, 	wrote:
There 	is 	no 	ambiguity about 	this 	language 	—
-	it 	is 	exclusive and mandatory, 	showing no
alternative 	for 	disciplinary grievances 	except
Article XXII's procedures. 	The Arbitrator has
no authority to 	ignore 	nor 	change 	this
language 	. . . . 	It 	is 	to be enforced as 	it
is 	clearly written. 	(Emphasis 	in original.)
And Arbitrator 	Gerald 	R. 	McKay wrote:
. 	. 	. [T]he language of the Contract is not
confusing or ambiguous. 	. . . 	It 	is 	the
function of 	the 	arbitrator 	in arbitration 	to
apply the 	language of 	the Contract 	as 	it 	is
written. 	It 	is not the 	function of an
arbitrator 	to rewrite 	the 	Contract 	in a manner
which 	the 	arbitrator 	believes 	the parties
intended had 	they been aware 	that 	a dispute
6

process 	is 	mentioned; 	it may not be used 	to challenge 	the
suspension, 	demotion, 	or discharge of a probationary
employee.2 There 	is 	no mention of 	8010 	in Article 	28 or 	in
any other provision of 	the 	contract.
would 	arise 	under 	the provision of 	the
Contract. . . .
Referring directly to 	the 	instant 	arbitral 	decision, 	McKay
continued:
. 	. 	. 	It 	is not the function of the arbitrator
to second-guess 	the parties 	and state 	that 	they
could 	not have meant 	what 	they said because 	they
were 	not 	serious 	enough when 	they reached 	that
agreement. 	. 	. 	. 	The speed or casualness with
which 	they 	reached 	an 	agreement has 	absolutely
no bearing 	whatsoever 	on 	the 	words 	to which 	they
agreed.
The 	arbitrator 	acknowledged 	that 	after 	adoption of 	8010,
Article 	28 was 	amended 	through negotiation 	to 	include certain
Education Code-related disputes, 	but 	that 	the disciplinary
grievance 	language was 	left 	intact. 	More 	significantly, 	he
acknowledged 	that 	in the 	1982 	negotiations, 	"the 	District was
determined 	to eliminate" 	that 	language but 	failed 	to do so.
Instead, 	he 	found a 	"trade-off" 	in OSEA's 	acceptance of 	the
District's proposal 	to delete 	the 	Education Code 	reference 	in
exchange 	for 	binding 	arbitration 	(in 	lieu 	of 	the previous
advisory process). 	And again the disciplinary grievance
language 	remained 	intact.
2 The 	arbitrator 	did not 	comment 	on 	this 	last provision
which, 	in my view, 	can only be read 	to mean that 	arbitration of
disciplinary action 	is 	available 	to nonprobationary employees.
V7

It 	is 	important 	to note how the 	arbitrator 	then arrived at
a 	conclusion which, according 	to 	the majority, 	somehow resolved
an unfair 	practice 	charge 	which was 	first 	filed 	six 	months
after 	the 	issuance 	of his 	decision.w3 	He 	first 	found 	that 	the
adoption of 8010, 	the alleged unilateral act, 	permitted the
inference 	that 	the 	District 	did 	not 	understand 	that
disciplinary grievances 	were 	subject 	to the 	contract
arbitration process. 	He 	then 	looked 	to past practice and 	the
parties' 	bargaining history and, 	despite his 	findings
concerning 	the 	District's 	futile 	efforts 	to remove 	the
disciplinary grievance 	language, 	found neither 	to be helpful.
Then, 	finding 	it 	incredible 	that 	the parties 	resolved 	this
issue 	in 	"an almost 	casual 	manner, 	without discussion of 	its
consequences 	or 	implications,"4 	the arbitrator proceeded 	to
give 	Article 	28 his 	own 	reading which 	would 	"breathe 	life 	into
all parts 	of 	the 	contract." 	Acknowledging 	that 	a claim of
unjust discharge was 	a 	"grievable claim" 	under 	the contract, 	he
then read 	the word 	"or" 	as 	indicating 	that 	in disciplinary
cases 	a different procedure was 	to be 	used 	from that 	used 	in
other 	grievances 	described 	in the 	Article.5 Finally, 	he
3 The 	arbitration decision was 	issued 	in November 	1983;
the unfair practice 	charge was 	filed 	in May 1984.
4 How 	this 	characterization was 	arrived at 	is 	unclear.
5 The 	first paragraph of Article 	28 reads:
An employee has 	the 	right 	to 	file a grievance
when he or 	she believes 	that 	there has 	been a
violation of 	this 	Agreement 	which 	adversely
8

concluded, 	without 	further explanation, 	that the 8010 procedure
was 	incorporated by the parties 	into Article 	28 	and was 	to be
used 	in 	such disciplinary cases.
affects 	the employee, 	or when he or she has
been suspended, 	demoted, 	or discharged. 	A
grievance 	shall 	be defined as 	a written 	claim
by an 	employee 	covered by 	this 	Agreement 	that
there has 	been such a violation.
To me, 	it 	is beyond dispute that 	the word 	"or" 	simply
denotes 	the different 	types 	of 	grievances 	that may be 	filed.
Thus, 	an employee may file a grievance alleging a contract
violation 	. 	. 	. 	or an employee may file a grievance over his or
her discharge, 	or his or her suspension, 	or his or her
demotion. 	To 	conclude 	that 	this 	innocent 	word contemplates 	a
separate, 	and unspecified, 	grievance procedure, 	seems to
overstep 	interpretation 	to 	the point 	of 	rewriting 	the
agreement. 	When considered 	together 	with 	the 	fact 	that 	the
word 	"or" appeared 	in the parties' 	contract at 	least one year
before 	the District 	adopted 8010, 	the arbitrator's 	conclusion
is 	simply incomprehensible.
The 	Board will 	defer 	to an arbitrator's interpretation of
contract 	language 	where 	extrinsic 	evidence 	is 	used 	to determine
the meaning 	of 	contract 	language 	that 	is 	reasonably susceptible
to different 	interpretations. 	But where 	contract 	language 	that
is 	clear 	and meaningful 	and not 	absurd6 is 	not 	followed,
66see	See 	Witkin, 	Summary of California Law, 	Contracts,
pp. 526, 527
9

resulting 	in 	the 	arguable 	denial 	of 	the 	charging party's
statutory right 	to access 	to this 	Board's processes, 	deferral
is 	inappropriate and amounts 	to virtual 	abdication of 	the
Board's 	obligation 	to effectuate 	the purposes 	of 	the Act.
The 	majority 	finds 	untimely that part 	of 	the 	charge
alleging 	that 	the adoption of 	8010 violated 	the Act. 	This
conclusion 	is 	irrelevant 	to the 	issue at hand whether 	the
arbitrator 	addressed 	the 	underlying 	unfair 	practice 	charge 	at
all 	— 	he 	certainly 	did 	not 	find 	it 	to 	be 	untimely 	— 	and 	may
also be 	incorrect. 	OSEA claims 	that 	it was 	not 	informed of 	the
Bulletin at 	the 	time 	it was 	adopted, 	and 	later believed 	it 	to
be 	only a 	supplementary procedure. 	OSEA further 	claims 	that 	it
first 	learned of 	the 	District's 	intention 	to replace 	the
contract 	provision with 	8010 when 	it 	requested 	and was 	denied
arbitration. 	These allegations, 	if true, 	present an arguable
claim 	that 	the 	statute of 	limitations 	did not begin 	to 	run
until 	the 	District 	refused 	to arbitrate.
I make no 	judgment of 	that 	claim here. 	If one 	is 	to be
made, 	it 	should be at 	a hearing after 	considering both OSEA's
argument 	and 	the District's 	affirmative defense. 	It 	should not
be made here as 	a throw-away.
Because 	I believe 	that 	the 	unfair practice 	charge 	states
facts 	that, 	if true, 	present a prima facie allegation of
unlawful 	employer 	conduct,7 and because 	I do not 	believe 	the
7 See 	San Juan Unified 	School 	District 	(1977) 	EERB
Decision No. 	12.
10

standards 	articulated 	in 	Dry 	Creek 	Joint 	Elementary 	School
District 	(1980) 	PERB Order No. 	Ad-818 have been met 	in this
instance, 	I would not defer 	to the arbitrator's 	decision and
would direct 	the 	General 	Counsel 	to 	issue a complaint.
8 The 	matters 	alleged 	in 	the 	unfair 	practice 	charge 	must
have been presented 	to and 	considered by 	the 	arbitrator; 	the
arbitral proceedings 	must have been 	fair 	and 	regular; 	all
parties 	must have agreed 	to be bound; 	and 	the decision of 	the
arbitrator 	is 	not 	repugnant 	to the purposes 	and policies 	of 	the
Act.
11

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, California 95814
(916) 322-3088
September 6, 	1984
Tom 	Sinclair
Attorney 	at Law
506 	Fifteenth 	Street
Oakland, 	CA 	94612
Nancy Lowenthal, Legal Advisor
Oakland 	Unified 	School 	District
1025 	Second Avenue
Oakland, 	CA 	94606
Re: 	Oakland School Employees Association v.
Oakland Unified School District, 	Unfair 	Labor
Practice Charge No. SF-CE-922; 	DISMISSAL OF
UNFAIR PRACTICE CHARGE AND 	REFUSAL TO 	ISSUE
COMPLAINT
Dear Parties:
Pursuant to Public Employment Relations 	Board 	(PERB or 	Board)
Regulation section 32630, 	the above-entitled matter 	is hereby
dismissed because 	it fails 	to allege 	facts 	sufficient 	to state
a prima 	facie 	violation of 	the Educational Employment Relations
Act 	(EERA or Act).1 The reasoning which 	underlies 	this
dismissal follows.
1The 	EERA is codified at Government Code section 3540,
et 	seq., 	and 	is administered by 	the PERB. 	Unless otherwise
indicated, 	all 	statutory references 	in 	this decision are to the
Government Code. 	Sections 3543.5(a), 	(b), and 	(c) provide that
it 	shall be unlawful 	for 	a public 	school 	employer 	to:
(a) 	Impose or 	threaten to 	impose reprisals
on employees, 	to discriminate or 	threaten to
discriminate against employees, 	or otherwise
interfere with, 	restrain, or coerce

Tom Sinclair
Nancy Lowenthal
September 6, 	1984
Page 2
employees because of 	their 	exercise of
rights 	guaranteed by this 	chapter.
(b) 	Deny to employee organizations rights
guaranteed to them by this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with an exclusive 	representative.
Procedural 	Background
On May 11, 	1984, 	the Oakland School Employees Association 	(OSEA
or Association) 	filed an unfair practice 	charge against the 	,
Oakland Unified School District (District). 	In brief, 	the
Association alleges 	that the District 	unilaterally adopted 	an
administrative 	policy providing 	for 	pre-disciplinary hearings
which effectively wiped out 	(superceded) 	the Association's
collective-bargained 	right 	to have 	grievances 	involving
disciplinary matters heard by neutral 	triers of 	fact.. 	This
action, 	according to the charging party, 	violated sections
3543.5(a), 	(b), and (c) of the EERA. 	In addition, the
Association 	claims 	that 	PERB 	should 	issue 	a complaint because
an arbitrator's 	decision related 	to the 	underlying 	facts did
not 	consider 	the 	statutory issue 	and was 	repugnant 	to the
Act.2
2Both 	pre-arbitration deferral 	and 	post-arbitration
review of 	a 	repugnancy claim are 	governed by a portion of EERA
section 3541.5:
(a) Any employee, employee organization, or
employer shall have the 	right 	to 	file an
unfair practice charge, 	except 	that the
board shall not do either of 	the 	following:
(2) 	. . . 	issue a 	complaint 	against
conduct 	also prohibited by 	the provisions
of 	the agreement between the 	parties
until 	the grievance machinery of 	the
agreement, 	if it exists and covers the
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

matter at 	issue, has been exhausted,
either 	by settlement 	or 	binding
arbitration. 	However, 	when the charging
party demonstrates 	that 	resort 	to
contract 	grievance 	procedure 	would be
futile, 	exhaustion shall not be
necessary. 	The board 	shall have
discretionary 	jurisdiction 	to 	review 	such
settlement 	or 	arbitration award 	reached
pursuant 	to the 	grievance machinery
solely 	for 	the 	purpose 	of 	determining
whether 	it 	is 	repugnant 	to the purposes
of 	this 	chapter. 	If 	the board 	finds 	that
such 	settlement 	or 	arbitration 	award 	is
repugnant 	to the 	purposes 	of 	this
chapter, 	it shall 	issue a complaint on
the basis of a 	timely 	filed 	charge,
and hear 	and decide the 	case on the
merits? 	otherwise, 	it 	shall 	dismiss 	the
charge 	. . . .
Tom 	Sinclair
Nancy 	Lowenthal
September 	6, 	1984
Page 	3
On August 	8, 	1984, 	the General Counsel's Office of PERB wrote a
letter 	to Charging 	Party pointing 	out 	the 	deficiencies 	of 	the
unfair practice 	charge 	filed against 	the 	District. 	More
specifically, 	I 	informed the 	charging party that 	if 	there were!
any factual 	inaccuracies 	or 	additional 	facts 	which would
correct 	the 	deficiencies explained 	in that letter, 	charging
party should amend 	the 	charge 	accordingly. 	(This 	letter 	is
labeled Exhibit 	1 	and 	is 	attached hereto.)
Thereafter, 	the Association 	filed 	a First Amended Charge 	on
August 	15, 	1984 which essentially 	incorporated the 	facts 	and
allegations 	contained 	in the original 	unfair 	practice 	charge
and included 	some new facts, 	allegations 	and 	conclusory
assertions.
Facts
My 	investigation 	revealed 	the 	following 	facts:
Relevant 	Contract Language;
In 1977, 	the District and Association agreed that 	the
collective 	bargaining agreement 	with respect 	to the

white-collar bargaining unit would 	contain a 	grievance
procedure providing for advisory arbitration3 with the 	final
decision 	left to the Board of Education. 	(See Article XIV.)
This agreement ran from July 1, 	1977, 	to June 30, 	1978. 	The 	,
grievance 	language was 	carried over 	into the 	second 	contract
(Article XXI) 	(1979-80) 	and the third contract 	(1982-84) with
some modifications, but the "suspension, 	demotion, discharge"
language 	(see fn. 	3, 	ante) 	remained the same.
Tom Sinclair
Nancy Lowenthal
September 	6, 	1984
Page 	4
On December 19, 	1979, 	OSEA and the District 	entered into their
first collective bargaining agreement 	for 	the paraprofessional
bar aining	bargaining unit, and it was to run until June 	30, 	1981. 	This
agreement 	contained much of 	the 	same language 	with regard to
grievances 	as 	the 	earlier white-collar 	agreement
(Article XXVIII of paraprofessional contract); however, it
added the phrase 	". 	. 	.or when a provision of the Education
Code has been violated."4
In 1981, 	the parties entered into another 	collective bargaining
agreement for paraprofessional 	employees which ran from
March 31, 	1982 to June 30, 	1984. 	This agreement contained the
same contract language, 	except 	that references to grieving
District policies and the Education Code were deleted. 	This
3The 	grievance provision in the 	1977 contract 	for 	the
white-collar bargaining unit 	read as 	follows:
A grievance 	may be 	filed when 	an 	employee
feels 	that there has been a violation of 	any
specific provision of this Agreement, or
when an employee is suspended, 	demoted or
discharged, 	or when an employee believes
that 	an existing District policy has been
misapplied 	in such a way as 	to adversely
affect that employee. 	(Article XIV).
4The 	grievance 	provision 	in this 	first 	contract 	for 	the
paraprofessional bargaining unit 	read as 	follows:
An employee has 	the right to 	file a
grievance whan he or she believes 	that 	there
has been a violation of this Agreement, 	or
when he or she has been suspended, 	demoted,

second contract provided 	for binding arbitration 	for 	the 	first
time5 for 	the 	paraprofessional 	employees.
or discharged, 	or when he or 	she believes
that 	an existing District policy has been
misapplied 	in such a way as 	to adversely
affect the employee, 	or when a provision of
the Education Code has been violated.
Tom 	Sinclair
Nancy 	Lowenthal
September 6, 	1984
Page 	5
Relevant Governing Board 	Policies;
In 1978, 	while the parties were negotiating their first
contract for the paraprofessional bargaining unit, 	the Board of
Education adopted a policy known 	as Administrative 	Bulletin
8010 	(Personnel Procedures), 	which contained provisions
pertaining to disciplinary grounds 	and procedures. 	It provided
for 	a disciplinary hearing before 	a panel 	composed of 	three
management 	employees 	appointed by 	the 	superintendent. 	Findings
and a 	recommended decision were 	to be 	rendered by the 	panel,
and a 	final decision was 	to be made by 	the 	Board of
Education.6 No 	bargaining 	took place with respect 	to 	the
5I	St1t 	was on the basis of 	the 	language 	in this 	second
contract 	that 	the grievance 	in the Joyce Taylor 	arbitration was
filed.
6Bulletin 	8010, 	in addition to delineating the grounds
for suspension and/or 	dismissal, 	prescribed the 	following
procedure:
If 	the superintendent 	accepts 	the
recommendation of 	a supervisor 	that 	an
employee be suspended or 	discharged, 	he
must 	- at 	the request of 	the grievant -
convene a panel 	of 	three 	employees 	to hear
the 	charges. 	None of the panel members 	can
be 	employed 	in the 	unit 	or 	department 	of 	the
grievant. 	The procedure 	requires 	notice to
the grievant, 	with particularity, of the
charges against him or her; 	it protects the
employee's 	right 	to be 	represented by a
person of his or her 	choice; 	it 	calls for
the presentation of 	testimonial 	evidence,
..

Tom 	Sinclair
Nancy Lowenthal
September 	6, 	1994
Page 6
adoption of Administrative Bulletin 8010, 	nor was OSEA even
informed that 	it was going to be adopted. 	The evidence reveals
that 	once OSEA learned of 	the 	adoption of Administrative
Bulletin 8010 it did not 	file an unfair labor practice 	charge,
with 	PERB. 	At a later point 	in time, 	when a revision was being
considered, 	bargaining was requested, 	but the District refused
to bargain over 	the 	changes.
with the 	grievant having the 	right 	to
present witnesses and, by implication, 	to
cross-examine adverse witnesses; 	a record is
to be made by tape recording, 	with a copy to
be made available to the grievant.
The panel 	is 	required to submit 	its 	findings
and recommendations 	to the 	superintendent 	or
his designee who adopts, 	rejects, or
modifies 	them. 	The decision of 	the
superintendent or his 	designee is appealable
to the Board of Education, 	which reviews 	the
decision on the 	record made before the
three-person panel.
Prior 	Requests 	to Arbitrate 	and 	Superior Court Action;
During the 	terms of the 1979-81 agreements, 	the District
discharged Lloyd Harper, 	a member of 	the white-collar
bargaining unit, 	after 	giving him an AB 8010 hearing. 	OSEA
then 	filed a 	grievance 	under 	the 	collective bargaining
agreement 	and requested arbitration. 	The 	District 	refused 	to
take the matter to arbitration on the 	grounds 	that Harper had
already received a hearing, 	and OSEA then 	filed a petition to
compel 	arbitration in the Alameda County 	Superior Court. 	The
District 	resisted 	the petition on the 	grounds 	that Harper 	was
not 	entitled to two hearings. 	The 	court 	ordered the matter to
arbitration but did not 	determine any findings of 	fact 	or
conclusions of law.
On March 22, 	1983, 	the parties went to arbitration in the Joyce
Taylor grievance. 	Joyce Taylor, 	the grievant, was an
instructional 	assistant 	in the 	paraprofessional bargaining unit
before she 	was 	terminated in April 	1982 for excessive
absenteeism. 	Prior to her dismissal, 	Ms. 	Taylor was given a

Tom 	Sinclair
Nancy Lowenthal
September 6, 	1984
Page 	7
hearing under District 	Administrative 	Bulletin 8010 which
determined that 	she 	should be 	dismissed. 	Thereafter, 	the Union
sought an arbitration hearing for Ms. 	Taylor, 	arguing that
Article XXVIII of 	the contract7 gave an employee a
contractual 	right 	to a post-termination hearing 	in a case of
suspension, 	discharge or termination - 	i.e., 	a de novo hearing
before a 	neutral 	arbitrator 	with the authority to make a
binding award.
The 	threshold question posed by the 	grievance was 	one of
arbitrability.8 Contrary 	to the Association, 	the District
maintained before the Arbitrator that 	it had always been its
position that 	the 	merits 	of a disciplinary action were not
subject to the grievance process in the 	contract, 	but that only
the 	procedural 	rights pertaining to disciplinary actions 	were
grievable pursuant 	to the 	contract.
Accordingly, 	the only issue 	in the proceeding was as 	follows:
Are the 	issues 	raised in the Joyce Taylor 	grievance subject 	to
the grievance procedure of Article 	28, 	including submission to
final 	and binding 	arbitration? 	If yes, 	what 	is the appropriate
remedy?
The 	record of 	the 	case before Arbitrator Wollett 	was
voluminous. 	In addition to three 	days of 	taped transcript,
7Article 	XXVIII 	of 	the 	Contract provides 	that:
An employee has 	the right 	to file a grievance
when he 	or 	she believes 	that 	there has been
a 	violation of 	this Agreement which
adversely affects 	the employee, 	or when he
or she has been suspended, 	demoted, 	or
discharged. 	A grievance 	shall be 	defined as
a written 	claim by 	an 	employee 	covered by
this Agreement 	that 	there has been such a
violation.
8 The 	District 	moved at 	the 	arbitration hearing that 	the
arbitrator should 	stay a hearing on the merits 	of Ms. 	Taylor's
grievance 	and 	should deal 	exclusively with the 	question of
arbitrability raised by the 	jurisdictional 	issue. 	The
arbitrator 	granted 	this 	motion.

Tom Sinclair
Nancy Lowenthal
September 	6, 	1984
Page 	8
there were 20 union exhibits, 	17 District exhibits, 	and eight
joint exhibits. 	According to Arbitrator Wollett's opinion at
page 	7, 	many of 	the exhibits 	related to negotiating history -
proposals 	and counter proposals.
The Arbitrator's Decision
The arbitrator 	ruled on November 	24, 	1983 	that 	the 	issue
pressed by the union on behalf of Ms. 	Taylor was 	not arbitrable
under 	the 	language of 	the 	collective bargaining agreement. 	In
reaching his 	conclusion that 	the 	grievance-arbitration language
did not 	allow 	for 	a de 	novo hearing by an arbitrator 	on a
disciplinary action, 	Arbitrator Wollett considered all relevant,
bargaining history and 	the 	past practices 	presented 	to him by
the parties, 	and he applied traditional 	rules 	of 	contract
construction. 	The 	arbitrator 	noted as 	a preliminary matter
that:
The patent ambiguity of Article 	28 makes 	it
appropriate, 	if not essential, 	to look at
extrinsic evidence. 	(Arbitrator Wollett's
Decision 	at p. 	6.)
Arbitrator Wollett 	concluded 	that 	the 	testimony relative 	to 	the
negotiating history of 	the grievance 	language 	in the 	contract
was inconclusive.
Since neither 	the 	negotiating history nor
past practice, 	such as it was, 	is helpful,
the 	arbitrator must 	resolve 	this dispute by
looking at the words of 	the agreement 	and
giving them a reading which breathes 	life
into all parts of the contract, 	reconciling
conflicts where they exist. 	(Arbitrator
Wollett's Decision at p. 	10.)
Further, 	Arbitrator Wollett determined that 	the Union, 	who had
the burden of proof, 	had presented insufficient 	evidence to
persuade him that 	the parties agreed in 1982, 	that an
arbitrator would have 	jurisdiction to hold a 	fresh, 	full-blown
evidentiary hearing, 	and thereby re-examine the merits 	of 	the
disciplinary claim 	(as 	if A.B. 	8010 did not exist). 	The
arbitrator 	proceeded with his 	analysis:
One of 	the difficulties 	that 	I have with the
union's position is 	the 	nature of 	this

controversy. 	The 	Board of Education not
only denies that 	it 	ever 	agreed 	to binding
arbitration of disciplinary matters, 	it also
claims 	that for 	it to make such an agreement
would be unlawful 	under 	the Education Code.
I pass no judgment on that assertion, 	but 	it
does 	underlie the 	importance 	with which 	the
Board viewed this matter. 	The union, 	on the
other hand, 	also regarded 	it as 	an 	issue of
first magnitude; 	its success in gaining
agreement 	to binding arbitration would have
been 	a major breakthrough.
Tom 	Sinclair
Nancy Lowenthal
September 	6, 	1984
Page 9
That 	the 	parties 	resolved 	such a 	profoundly
significant 	issue 	in an almost 	casual
manner, 	without discussion of 	its
consequences and implications, 	is not
credible.
Arbitrator Wollett 	reasoned 	that:
It does 	not 	follow that 	the merits 	of a
claim of discipline without 	just 	cause 	are
subject 	to binding arbitration 	under
Article 	28. 	This is so because the use of
the word "or" 	in the 	first sentence of
Article 	28 implies 	that 	the procedure to be
followed 	in the event 	of 	suspension
demotion, 	or discharge is different than the
one to be 	followed when 	there 	is 	a claim of
other 	kinds of 	violations of 	the agreement
adversely effecting 	the 	employee.
(Arbitrator Wollett's Decision 	at p. 	11.)
Thus, 	after 	interpreting the contract, 	applying conventional
rules 	of 	contract 	construction 	and 	considering 	the bargaining
history, 	Arbitrator Wollett 	concluded that 	the 	substance of 	a
disciplinary dispute was 	not 	arbitrable. 	(Arbitrator Wollett's
Decision at pp. 	2, 	6-9, 	12-14.) 	Nevertheless, 	Arbitrator
Wollett 	sympathized with the 	argument 	that 	an A.B. 	8010 hearing
was 	deficient 	in not providing 	for 	an 	impartial 	decisionmaker.
(Arbitrator Wollett's Decision at p. 	13.)
However, 	it is not the 	function of an
arbitrator to re-write the parties'

agreement 	to conform to his notions 	of due
process. 	It is* 	rather, his function to
identify the 	dimensions of 	that 	agreement 	as
best he 	can and apply it 	to the facts of the
case before him.
This 	interpretation of the agreement
necessarily 	incorporates 	Administrative
Bulletin 8010 by reference. 	Accordingly, 	it
cannot be modified during the 	life of 	the
basic agreement between the parties 	without
mutual 	consent. 	{Arbitrator 	Wollett's
Decision at p. 	13.)
Tom Sinclair
Nancy Lowenthal
September 6, 	1984
Page 	10
The Association's charge 	is premised on the 	argument 	that 	the
Arbitrator's 	decision was 	repugnant to the Act. 	As discussed
below, 	OSEA's argument 	is based in substantial part on the
assertion that had the District's negotiator, 	James Wilson,
testified in the 	case, 	the arbitrator would have reached a
different 	result. 	It 	is undisputed that the arbitrator was not
presented with, 	nor did he discuss, 	the testimony of James
Wilson, District negotiator, whom the Association asserts, 	in
its First Amended Charge, 	would have clarified matters 	in this
case.9
9James 	Wilson 	testified 	in a subsequent 	arbitration
involving the discharge of Nellie Cordova before Arbitrator
Gerald McKay concerning a different 	contract 	for white-collar
employees. 	Wilson testified in the Cordova hearing that 	the
District had not 	intended to 	incorporate 	any of 	the
Administrative 	Bulletins 	into that 	collective bargaining
agreement. 	(McKay Decision at p. 	6.) 	Arbitrator McKay
determined that 	pursuant to Article XXI of the white-collar
contract, 	Cordova was 	entitled to a hearing on the merits by a
neutral arbitrator.
The white-collar 	contract 	is different 	from the
paraprofessional 	contract. 	(Arbitrator McKay's Decision at pp.
12-13.) 	One difference 	is 	that 	the paraprofessional contract
provides 	for 	binding arbitration while 	the 	1979-81 	white-collar
contract provides 	for 	advisory arbitration. 	It 	is unclear to
what extent 	the 	arbitrator may have been influenced 	in ordering

Tom 	Sinclair
Nancy 	Lowenthal
September 6, 	1984
Page 11
Contrary to the Association's assertion, 	Arbitrator McKay was
of 	the opinion that Arbitrator Wollett's 	decision was 	not
binding on him because Arbitrator McKay's 	case 	involved a
different 	contract. 	Arbitrator McKay stated 	in his 	discussion
of 	the Nellie Cordova case 	that:
Arbitrator Wollett's Decision 	comes 	very
close 	to dealing with the 	question which 	is
presently before this 	arbitrator. 	However,
Arbitrator Wollett 	was 	called on to
interpret 	the 	1982-84 Contract which 	is
different 	in 	some 	respects 	from the 	1979-81
Contract which is before this arbitrator.
Arbitrator Wollett's Decision relative 	to
the meaning of 	the 	1982-84 Contract 	cannot
be 	considered binding on 	this 	arbitrator 	in
his 	responsibility to 	interpret 	the 	1979-81
Contract. 	In the first place, prior
arbitration 	decisions 	are not 	normally
considered 	"res 	judicata." 	The basic
arbitration by the 	fact 	that, 	no matter what 	the 	arbitrator
said, 	the school board would 	still have the power 	to 	impose
discipline. 	Indeed, 	Arbitrator McKay noted that:
The arbitration provisions 	in the 1979-81
Contract 	provide 	for 	advisory arbitration
decisions. 	In this respect, 	regardless of
the result of 	the arbitrator's Award, 	the
ultimate 	determiner 	of 	the result 	will be
the Board of Education. 	The arbitrator
fails to understand why, 	even if he accepted
the Employer's 	assertion 	relative 	to the
present 	state of the law, 	having the
arbitrator hear 	the merits 	of 	the 	dispute
would violate 	the law. 	When the arbitrator
hears 	the 	grievance 	on the basis of 	just
cause 	and 	listens 	to the merits 	of 	the
dispute, his Decision is 	reviewable by the
Board of Education 	under 	the 	1979-81
Contract. 	The 	Board of Education has 	given
nothing to the 	arbitrator. 	(Arbitrator
McKay's Decision at p. 	15.)

concept 	of 	arbitration 	calls 	on 	each
arbitrator 	to 	interpret 	the 	facts 	in 	the
Contract 	"de 	novo" 	and merely 	use 	other
arbitration 	decisions 	as 	guidance 	and 	not 	as
binding precedent. 	However, 	as 	a matter 	of
arbitration 	practice, 	arbitrators 	generally
consider 	a 	decision 	involving 	the 	same
Contract 	between 	the 	same 	parties 	to be
binding 	and 	let 	the 	parties 	change 	that
result 	through negotiations 	if 	they 	choose
to do 	so. 	In the 	second place, 	the Contract
before this arbitrator is 	different 	than 	the
one 	which 	was 	before 	Arbitrator Wollett.
(Arbitrator McKay's 	Decision 	at 	pp. 	12-13.)
Tom 	Sinclair
Nancy 	Lowenthal
September 	6, 	1984
Page 	12
Finally, 	in terms of 	the present 	unfair practice 	charge, 	a
review of 	the 	arbitrator's 	decision 	indicates 	that 	inherent 	in
Arbitrator 	Wollett's 	analysis 	is 	a 	determination of 	the 	unfair
practice 	issue 	in this 	case. 	In 	determining 	this 	issue, 	he had
before him 	the 	arguments 	of 	the 	District 	relying 	on 	its 	history
and 	interpretation of 	the 	contract. 	Most 	important, 	he 	had 	the
Association's 	own 	past negotiations evidence 	to consider. 	His
interpretation of 	the 	contract 	and 	consideration 	of 	the
evidence 	presented 	to him 	is 	not 	unreasonable.
The 	First 	Amended 	Charge
The 	first 	amended 	charge 	filed by 	OSEA on August 	15, 	1984
alleges 	in 	essence 	the 	following 	principal 	arguments:
1) 	The 	Taylor 	Decision by Arbitrator Wollett 	is 	not
supported 	by 	the 	record. 	The 	Association 	alleges 	that 	the
parties 	could 	not 	have 	intended 	the 	word 	"or" 	to mean 	that 	a
different 	procedure was 	to be 	used 	for 	disciplinary matters.
The 	Association 	alleges 	that 	it 	was 	not 	clear 	to 	the 	parties
that 	the 	issue 	of 	arbitrability 	would 	be 	resolved 	on 	the 	basis
of 	the 	use 	of 	the 	word 	"or" 	and 	critical 	evidence 	regarding 	the
parties' 	intent 	in 	using 	the 	word 	was 	not 	presented or
considered 	by 	the 	arbitrator.
2) 	The 	proceedings 	were 	not 	fair 	and 	regular 	because
Arbitrator 	Wollett 	failed 	to 	consider 	all 	relevant 	bargaining
history 	since 	certain highly 	relevant 	evidence 	was 	not
presented. 	The 	Association 	alleges 	that 	Arbitrator Wollett*s
decision 	was 	based 	on 	supposition 	as 	to 	the 	intent 	of 	the
parties. 	As 	noted above, 	the 	only evidence 	pertaining 	to 	the

intent 	of 	the 	parties, 	which 	the 	arbitrator 	allegedly 	failed 	to
consider 	was 	testimony of 	James Wilson, 	who was 	not 	called 	to
testify 	in the 	proceeding. 	Charging 	Party's 	only expressed
reason for 	failing to 	call Wilson, 	is 	that 	the 	representative
of 	Charging 	Party who 	presented 	the 	case 	was 	a non-lawyer 	who
did 	not 	recognize 	"the 	intent 	of 	the 	parties" 	as being a
critical 	issue.
Tom 	Sinclair
Nancy 	Lowenthal
September 	6, 	1984
Page 	13
3) 	Arbitrator 	Wollett's 	decision 	departed 	from 	commonly
accepted 	rules 	of 	contract 	construction 	because 	according 	to
the Association 	the 	contract 	is 	not 	confusing or 	ambiguous.
Thus, 	Arbitrator Wollett 	should have 	given 	effect 	to the
meaning 	of 	the 	language 	without 	any 	further 	considerations.
The Association 	alleges 	that 	Arbitrator Wollett's 	decision was
based 	on 	"supposition and 	speculation which 	are 	unsupported 	by
evidence 	in the 	record." 	(First 	Amended 	Charge 	at p. 	5.)
4) 	The 	issue of whether 	the 	adoption of A.B. 	8010 was 	an
unfair 	labor 	practice 	because 	it 	constituted 	a 	unilateral
implementation of 	a 	policy within 	the 	scope 	of 	bargaining was
not 	raised 	in the 	arbitration 	or 	considered 	by 	the 	arbitrator.
The 	Association asserts 	that 	"[n]o 	findings 	were made 	with
regard 	to this 	issue 	or 	with 	regard 	to 	any parallel 	issue which
would 	involve 	the 	same analysis 	and 	evidence." 	(First Amended
Charge 	at p. 	4.)
Discussion
The 	PERB has 	set 	forth 	standards 	for 	determining whether 	a
post-arbitration 	complaint 	should 	issue 	under 	EERA 	section
3541.5(a). 	(See Dry Creek Joint 	Elementary School 	District
(6/21/80) 	PERB Order No. 	Ad-81a; 	Los Angeles Unified School
District 	(6/30/82) 	PERB Decision No. 	218.)
In 	____ _In 	Dry Creek 	the 	Board 	found 	an 	arbitrator's 	award 	repugnant 	to
the 	Act 	because 	it 	failed 	to 	restore 	the 	status 	quo 	and award
- -back 	pay 	following 	an 	employer's 	unilatera	----	l 	salary reduction.
The 	PERB 	applied 	federal 	precedent 	of 	the 	National 	Labor
Relations 	Board 	(NLRB) 	adopting 	the 	discretionary 	standards 	set
forth 	in Speilberg Manufacturing Co. 	(1955) 	112 NLRB 	1080
[36 	LRRM 	1152J.010 Under 	Speilberg~ahd 	its 	progeny 	there 	are
four 	standards 	which must 	be 	satisfied 	before 	deferral 	to 	an
10Federal 	practice, 	although 	discretionary under 	the

arbitrator's award is appropriate: 	(1) 	the matter 	raised 	in
the 	unfair practice 	charge must have been presented to 	and
considered by the arbitrator; 	(2) 	the arbitral proceedings must
"appear to have been fair 	and regular"; 	(3) 	all parties 	to the
arbitral proceedings must have 	"agreed to be bound"; 	and
(4) 	the decision of the arbitrator must 	not be 	"clearly
repugnant 	to the purposes 	and policies of 	the Act." 	(Dry Creek
Joint Elementary School District, 	supra, 	at p. 	4.)
National Labor Relations Act 	(NLRA) 	(29 U.S.C. 	151 et seq.),
may be 	used to guide 	interpretation of 	similar or 	identical
provisions 	under 	the EERA. 	(See 	e.g., 	San Diego Teachers Assn,
v. 	Superior Court 	(1979) 	24 Cal.3d 1, 	12-13; 	Fire Fighters
Union v. City of Vallejo (1974) 	12 Cal.3d 608, 	616; Public
Employment Relations Board v. 	Modesto City School 	District
(1982) 	136 Cal.App.3d 881, 	895-897.)
Tom 	Sinclair
Nancy Lowenthal
September 6, 	1984
Page 	14
Construing the 	repugnancy 	standard of 	review 	in section
3541.5(a), the Board also reasoned that:
• 	•. PERB 	is 	surely not 	obligated to ignore
an unfair 	practice 	charge 	under 	its 	deferral
obligation if 	the 	issues 	in that 	charge are
not 	encompassed by the 	arbitration
proceeding and 	included 	in the 	arbitrator's
disposition of the 	case 	(Id. 	at p. 	5.)
Indeed, 	in the Board's view an arbitration
award which has 	failed 	to observe any of 	the
foregoing 	criteria would be 	inherently
repugnant to the purposes of the EERA. 	(Id.
at p. 	6.)
Although the 	Board will 	not 	reject 	an arbitrator's award,
. 	. 	. because it would have provided a
different 	remedy than 	that 	offered by 	the
arbitrator, 	it may well so consider an award
which fails 	to protect 	the essential and
fundamental principles 	of 	good faith
negotiations 	(Id_. at p. 	7, emphasis in
original.)
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

Tom 	Sinclair
Nancy Lowenthal
September 	6, 	1984
Page 	15
The Los 	Angeles case 	illuminated 	the 	Board's application of 	the
Dry Creek 	standards. 	In Los Angeles 	the 	PERB declined to 	issue
a 	complain	- 	t 	on a charge 	of 	unlawful 	unilateral 	action by an
employer. 	An 	arbitrator had 	determined that 	the 	employer's
change 	in bus 	driver 	reporting 	locations 	was 	consistent 	with
management's 	right under the parties' 	contract. 	Although the
arbitrator 	did not 	dispose of 	the 	charging party's bargaining
claim under the EERA, 	the PERB found that 	there was a parallel
between the 	unfair practice and contract 	issues, 	and that,
. 	. 	. 	the arbitrator was presented with and
considered all 	of 	the 	evidence 	relevant 	to
the unfair. 	(Los Angeles Unified School
District, supra, PERB Decision No. 	218 at
p. 	7.)
The 	PERB's 	"parallelism" 	standard 	relied upon Bay Shipbuilding
Corp. 	(1980) 	25 NLRB 809 [105 LRRM 1376] and Atlantic Steel Co.
(1979) 245 NLRB 107 [102 LRRM 1247].
In this 	case, 	the Association contends 	that the arbitrator's
award was 	deficient 	in two respects; 	first, 	that 	it failed to
consider 	the 	statutory issue raised in 	the 	charge 	(i.e.,
unilateral change by District); 	and second, 	that the
arbitrator's 	decision was 	repugnant 	to the Act because he
determined 	that A.B. 	8010 superceded a 	collectively-bargained
right to grieve suspensions, 	demotions and discharges.
For the 	reasons 	that 	follow, 	it 	is concluded that the 	charging
party has 	failed to 	establish that 	the 	four-prong 	test 	set
forth in Spielberg was not 	satisfied 	in this 	case.
First, 	the 	arbitral 	and statutory 	issues 	are 	clearly parallel;
both turn essentially on whether 	the 	issues 	raised 	in the 	Joyce
Taylor 	grievance 	are subject 	to the 	grievance 	procedure 	of
Article 	28, 	including submission to final and binding
arbitration. 	The 	facts 	presented 	to Arbitrator Wollett 	are
parallel 	to those 	that 	would be presented 	to PERB. 	Arbitrator
Wollett's 	analysis 	was 	thorough in that he 	considered 	all
relevant 	bargaining history and 	the 	past practice 	of 	the
parties 	and 	finally he relied on 	conventional 	rules 	of 	contract
construction. 	PERB would have 	followed this 	same analysis 	for
a 	unilateral 	change 	violation. 	(See Marysville Joint Unified
School District 	(5/27/83) 	PERB Decision No. 	314 at pp. 	8-9.)
The 	arbitrator 	found that Ms. 	Taylor was 	not 	permitted under
the 	contract 	to seek arbitration of her 	claim on the merits

with a 	second hearing which 	ignored the 	prior hearing on the
ground that it was inherently unjust. 	Arbitrator Wollett
concluded that 	this was 	not 	an arbitral 	issue 	under 	the
contractual 	language.11 His 	interpretation of 	the 	contract
and consideration of the evidence 	presented to him is 	not
unreasonable.
Tom 	Sinclair
Nancy Lowenthal
September 6, 	1984
Page 16
In keeping with the precedent 	established 	in Los 	Angeles
Unified School District 	(6/30/82) 	PERB Decision No. 	218, 	even
if PERB were to disagree with the 	arbitrator's assessment 	of
the evidence supporting the Association's argument, 	the PERB is
bound to defer where the 	facts 	necessary to the 	arbitrator's
holding 	are parallel to those that would be presented to this
agency.12
Second, 	the Association asserts 	that the proceedings were not
fair 	and regular because Arbitrator Wollett's Decision 	failed
to consider highly critical 	evidence pertaining to the 	intent
of the parties. 	The arbitrator's 	conclusion about what 	the
parties 	intended was plainly a 	fundamental 	step in his 	overall
analysis of the contract, 	and he thoroughly considered all of
the evidence presented to him. 	Thus, 	the Association should be
barred from arguing, 	at this date, 	that it did not present all
of 	the 	relevant 	evidence 	and argument 	on 	the basic unfair
Ilo	llnon 	the other hand, 	Arbitrator Wollett concluded that 	if
Ms. 	Taylor had challenged the A.B. 	8010 proceeding on the
ground that 	it did not 	conform 	to 	the 	requirements 	of 	the
Bulletin, 	then that issue would have been arbitrable. 	But this
is not what she did.
12The 	PERB's 	"parallelism" 	standard 	in Los 	Angeles
Unified School District, 	supra, 	PERB Decision No. 	218 relied
upon Bay Shipbuilding Corp. 	(1980) 	25 NLRB 809 [105 LRRM 1376]
and Atlantic Steel Co. 	(1979) 	245 NLRB 107 [102 LRRM 1247].
Thus, 	PERB has 	rejected for 	some circumstances 	the NLRB
determination in Procopo, 	Inc. 	(1982) 	263 NLRB No. 	34 [110 LRRM
1496], 	that deferral is unwarranted where the grievant
consciously chose 	not 	to present 	the unfair practice 	issue to
the arbitrator. 	PERB's holding also is consistent 	with the
distinction between the discretionary jurisdictional process 	of
the NLRB and the 	statutory mandate of EERA section 	3541.5(a)
requiring deferral where the grievance machinery 	"covers 	the
matter at issue."

practice 	issue. 	If perhaps, 	the Association declined to fully
bear 	its burden of 	producing evidence on a necessarily included
finding, 	it would defeat 	the purpose of arbitral deferral and
contract 	stability to allow the Association the 	proverbial
"second bite of 	the 	apple." 	(See generally, 	Carey v.
Westinghouse Corp. 	(1964) 	375 U.S. 	261, 	270-271 [55 LRRM 2042];
Associated Press v. 	NLRB 	(1974) 	492 F.2d 	662, 	667 	[85 LRRM
24403; Spielberg Manufacturing Co., supra, 112 NLRB 1080, 1082
[36 	LRRM 1152].)
Tom Sinclair
Nancy Lowenthal
September 6, 	1984
Page 	17
Third, 	the parties 	plainly agreed 	to be bound by the 	award.
Fourth, 	the union claims 	that the arbitrator's 	award is
repugnant 	to EERA because his 	decision effectively wiped out
(superceded) 	a 	collectively-bargained right by the 	union to
have 	disciplinary matters 	considered by a neutral party. 	The
standard for Board 	review of 	the repugnancy factor 	in deferral
cases has been articulated by the NLRB as 	follows:
The majority reviews 	the record evidence,
sees no 	irregularities 	in the proceedings
and no facial 	errors 	in the arbitrator's
factual 	findings, 	and then examines 	the
arbitrator's legal 	conclusion to see 	if, 	on
the facts he has found, 	it is consistent
with Board law. 	Finding that it is, 	and
that 	the 	arbitrator 	actually considered
Board law in ruling on all of 	the
discharges 	. 	. 	. the majority defers to the
arbitrator's decision. 	This approach is
more consistent 	not 	only with past 	Spielberg
decisions, 	but also with the strong labor
policy which 	favors 	voluntary arbitration.
Kansas City Star 	(1978) 	236
NLRB 866, 	869 	[98 LRRM 1320].
Without 	passing on whether 	the 	Board would reach 	the 	same
result as 	the arbitrator on this 	issue, 	it is clear 	that the
arbitrator's 	decision is 	not 	clearly repugnant 	to 	the 	purposes
and policies 	of 	the 	Act.13 In 	finding that 	the 	substance 	of
13	1313 The possibility that PERB may have reached a different
conclusion in interpreting the parties' 	agreement 	and the

a disciplinary dispute was 	not 	arbitrable, 	Arbitrator Wollett
not only considered the meaning of 	the 	contract, 	by
specifically examining the 	"just cause" 	and
grievance-arbitration provisions, 	but he 	thoroughly reviewed
evidence 	concerning the parties' bargaining history and past
practices. 	Thus, 	a prima facie 	case of repugnancy under EERA
has not been established. 	(See Dry Creek Joint Elementary
School District, 	supra, 	PERB Order No. Ad-81a; Los Angeles
Unified School District, 	supra, 	PERB Decision No. 	2187)
evidence 	does 	not 	render 	the award unreasonable or 	repugnant
The Ninth Circuit has 	stated:
If 	the 	reasoning behind an 	award 	is
susceptible of two interpretations, 	one
permissible and one impermissible, 	it is
simply not true that 	the 	award was 	clearly
repugnant to the Act. 	. 	. 	. 	The reasoning
if ambiguous, 	could have been interpreted in
a non-repugnant 	way, 	and 	should have been 	in
order 	to 	give 	arbitration the 	"hospitable
acceptance" 	necessary if 	"complete
effectuation of 	the Federal policy is 	to be
achieved."
Douglas Aircraft Co. v. NLRB
(9th Cir. 	1979) 	609 	F.2d 352
[102 LRRM 2811, 	2813.]
Tom 	Sinclair
Nancy Lowenthal
September 6, 	1984
Page 18
Pursuant 	to 	Public Employment 	Relations 	Board 	regulation
section 32635 	(California Administrative Code, 	title 8,
part 	III), 	you may appeal the refusal to issue a complaint
(dismissal) 	to the 	Board itself.
Right 	to Appeal
You may obtain a review of 	this 	dismissal of 	the charge by
filing an appeal 	to the 	Board 	itself 	within twenty 	(20)
calendar 	days 	after 	service of 	this dismissal 	(section
32635(a)). 	To be 	timely filed, 	the original 	and five 	(5)
copies 	of 	such appeal 	must be actually received by the 	Board
itself before the close of business 	(5:00 p.m.) 	on
September 	26, 	1984, 	or 	sent by telegraph or certified United
States mail postmarked not later than September 26, 	1984
(section 32135). 	The Board's address is:
1

Tom 	Sinclair
Nancy 	Lowenthal
September 	6, 	1984
Page 19
Public Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you file a timely appeal of 	the 	refusal to issue 	a
complaint, 	any other 	party may file with the Board an original
and 	five 	(5) 	copies of a statement 	in opposition within twenty
(20) 	calendar 	days following the 	date of 	service of the appeal
(section 32635(b)).
Service
All 	documents 	authorized to be 	filed herein must 	also be
"served" 	upon all parties to the proceeding, 	and a 	"proof of
service" 	must accompany the 	document 	filed with the 	Board
itself 	(see 	section 	32140 for 	the 	required 	contents 	and a
sample form). 	The document will be considered properly
"served" 	when personally delivered or 	deposited in the
first-class 	mail 	postage 	paid and properly addressed.
Extension of 	Time
A request 	for 	an extension of 	time 	in which to 	file 	a 	document
with the 	Board 	itself must 	be 	in writing 	and 	filed with the
Board at 	the 	previously noted address. 	A request 	for 	an
extension must be 	filed at least 	three 	(3) 	calendar 	days before
the expiration of 	the 	time required 	for 	filing the 	document.
The request must indicate good cause for 	and, 	if known, 	the
position of 	each other party regarding the extension, 	and shall
be 	accompanied by proof 	of 	service of 	the request upon each
party (section 32132).
Final Date
If no appeal 	is 	filed within the 	specified time limits, 	the
dismissal 	will become 	final 	when the 	time limits have expired.
Very truly yours,
DENNIS M. 	SULLIVAN
General 	Counsel
By
Emily E. Vasquez
Staff 	Attorney