Pleasanton Joint School District (PERB 0594E)

3 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

AMADOR VALLEY TEACHERS ASSOCIATION, )
CTA/NEA, )
Charging Party, Case No. SF-CE-1094
Vv. PERB Decision No. 594
PLEASANTON JOINT SCHOOL DISTRICT, October 30, 1986
Respondent. )

Appearances: Beeson, Tayer & Silbert by Franklin Silver for
Amador Valley Teachers Association, CTA/NEA; Pinnell, Hudak &
Kingsley by Robert E. Kingsley for Pleasanton Joint School
District.

Before Hesse, Chairperson; Morgenstern and Porter, Members.
DECISION

MORGENSTERN, Member: This case is before the Public
Employment Relations Board (PERB or Board) on appeal by the
Pleasanton Joint School District (District) of a decision by a
PERB administrative law judge (ALJ), attached hereto. In the
decision below, the ALJ rejected the District's contention that
the unfair practice charge filed by the Amador Valley Teachers
Association, CTA/NEA should be deferred to arbitration. For the
reasons outlined below, we agree.

SUMMARY OF FACTUAL ALLEGATIONS

The terms and conditions of employment in the District are
set forth in a collective bargaining agreement executed by the
parties in October 1985. The term of the contract was made

retroactive to July 1984, and runs until June 1987. The

agreement 	includes 	a 	grievance 	and 	arbitration 	provision 	that
culminates 	in 	binding 	arbitration. 	The 	parties' 	agreement
defines 	a 	grievance 	as
..• 	an 	alleged 	violation, 	misinterpretation
or 	misapplication 	of 	the 	express 	terms 	of
this 	Agreement, 	which 	directly 	and 	adversely
affects 	the 	grievant.
The 	contract 	contains 	no 	provision 	expressly 	dealing 	with
minimum 	days 	per 	se. 	However, 	the 	contract 	does 	contain 	other
provisions 	deemed 	pertinent 	by 	the 	parties. 	Article 	IV 	concerns
"Hours 	of 	Employment." 	It 	reads:
The 	duty 	day 	shall 	include 	as 	much 	time 	as
is 	necessary 	to 	fulfill 	professional 	duties
to 	facilitate 	the 	educational 	program. 	The
principal 	shall 	determine 	both 	the 	schedule
and 	the 	duties 	and 	responsibilities. 	Each
site 	administrator 	shall 	determine 	the 	needs
of 	his/her 	particular 	school 	anc, 	where
possible, 	equitably 	assign 	such 	schedules,
duties 	and 	responsibilities. 	This 	provision
shall 	not 	apply 	to 	voluntary 	activities.
Effective 	July 	1, 	1982, 	the 	portion 	of 	the
teacher 	work 	day 	assigned 	to 	in-classroom
student 	contact 	for 	kindergarten 	teachers
shall 	not 	exceed 	two 	hundred 	and 	eighty 	(280)
minutes; 	the 	portion 	of 	the 	teacher 	work 	day
assigned 	to 	in-classroom 	student 	contact 	for
regularly 	assigned 	teachers 	in 	grades 	one
through 	eight 	(1-8) 	shall 	not 	exceed 	three
hundred 	and 	twenty-five 	(325) 	minutes.
A second 	provision, 	Article 	XX, 	concerns 	the 	"Calendar."
This 	article 	states:
A. 	For 	the 	1984/85 	through 	1986/87 	school
years, 	there 	shall 	be 	one 	hundred-eighty
(180) 	instructional 	days 	and 	three 	(3)
noninstructional 	days 	for 	all 	unit 	members
except 	psychologists.
For 	the 	1985/86 	through 	1986/87 	school
years, 	the 	first 	student 	day 	shall 	be 	the
Wednesday 	after 	Labor 	Day 	with 	the 	first
2

certificated
	work
	day
	being 	the
	Tuesday
after
	Labor
	Day.
B.	
For
	the
	1984/85
	through
	1986/87
	school
years,
	there
	shall
	be 	one
	hundred-ninety-six
(196)
	psychologist
	work
	days.
The
	contract 	also
	contains
	a
	reopener
	provision,
	Article
XXV(B).
	That
	article
	states:
For
	the
	1985/86
	and
	1986/87
	school
	years,
the
	parties
	agree
	to
	reopen
	negotiations
during
	each
	school 	year
	on
	the 	following:
1.	
Article
	X -
	Health
	and
	Welfare
2.	
Article
	XI
	-
	Salary
3. 	Calendar
4.	
One
	unspecified
	Article
	per
	party
Documents
	filed
	by
	the
	parties
	indicate 	that
	school
	calendar
negotiations
	were
	taking 	place
	from
	the
	time
	the
	contract
	was
executed 	in 	October
	1985
	through
	spring
	1986.
	In
	prior 	years,
except 	for
	1984-85
	when
	contract 	negotiations
	were
	proceeding,
the
	annual
	calendar 	included 	references 	to 	holidays
	and
	partial
workdays.
	On
	March 	5,
	as
	the 	charge
	and
	complaint
	allege, 	the
District's
	school 	board 	approved
	a
	monthly
	calendar
	making
March
	21,
	the
	day
	preceding 	spring 	break,
	a
	full
	teacher
	workday.
This 	occurred 	while 	calendar 	negotiations
	were
	still
	taking 	place.
DISCUSSION
Section 	3541.S{a) 	of 	the 	Educational
	Employment
	Relations
	Act
(EERA) 1
instructs
	the
	Board
	to 	defer 	to 	binding
	arbitration
lEERA
	is 	codified 	at
	Government 	Code
	section
	3540
	et 	seq.Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the 	Government 	Code.
3

when
	the 	grievance
	machinery
	of 	the
	parties'
	negotiated
	agreement
1
"covers 	the
	matter
	at
	issue.
12
Here,
	the
	question
	is
	whether
the
	"matter
	at 	issue,"
	the
	alleged
	unilateral
	action
	of
	the
District's
	school 	board
	eliminating
	March
	21,
	1986
	as
	a
	minimum
day
	for
	teachers,
	is
	covered
	by
	the
	terms
	of 	negotiated 	grievance
machinery.
By
	its
	terms, 	the
	parties'
	grievance
	machinery
	covers
	only
those
	disputes
	that 	refer 	to
	the 	express
	terms
	of
	their 	contract.
It
	sets 	forth
	the
	parties'
	lawful
	intent
	to
	exclude
	certain
matters
	from
	coverage 	under
	the 	grievance
	machinery.
	L.
	M.
Settles
	Construction
	Co.,
	Inc.
	(1981)
	259
	NLRB
	379
	[108
	LRRM
1380].
	Thus,
	the 	grievance
	machinery
	here 	covers 	the
	matter
	at
issue
	only
	if,
	true 	to
	the
	parties'
	intent,
	the 	dispute
	is
founded
	on
	express
	contractual
	language.
	Examination
	of
	the
parties'
	contractual
	agreement
	reveals
	no
	article
	concerning
minimum
	days.
The
	District,
	finding
	no
	express
	contractual 	provision,
relies
	on
	the 	language 	of
	Article
	IV
	and
	Article
	XX
	of 	the
parties'
	agreement.
	However,
	neither 	provision 	refers 	to
	minimum
days 	nor 	does
	more
	than
	establish
	the
	instructional
	year 	as
	180
2rn
	pertinent 	part, 	section
	3541.S(a)
	proscribes 	issuanceof
	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.
4

days. 	The 	hours-of-employment 	article 	refers 	to 	the 	authority 	of
the 	"site 	administrator" 	and 	the 	needs 	at 	a 	"particular 	school."
Here, 	however, 	since 	the 	disputed 	action 	was 	taken 	by 	the 	school
board 	and 	was 	instituted 	districtwide, 	it 	cannot 	seriously 	be
maintained 	that 	the 	contractual 	provisions 	cover 	the 	matter 	at
issue.
To 	the 	contrary, 	Charging 	Party 	asserts, 	and 	the 	District
agrees, 	that 	minimum-day 	designation 	is 	a 	component 	of 	the 	school
calendar 	and 	that, 	by 	operation 	of 	their 	agreement, 	the 	parties
relegated 	the 	matter 	of 	the 	calendar 	to 	reopeners. 	Indeed, 	once
the 	reopener 	negotiations 	commenced 	in 	October 	1985, 	the 	parties
exchanged 	numerous 	proposals 	and 	counterproposals 	that 	included
minimum-day 	designations. 	Undeniably, 	pursuant 	to 	their
contractual 	agreement, 	the 	parties 	were 	engaged 	in 	negotiations
over 	minimum 	days 	and, 	as 	of 	March 	5, 	1985, 	the 	date 	of 	the
school 	board's 	action, 	had 	not 	reached 	agreement. 	Whether, 	by
this 	bargaining 	conduct, 	the 	District 	fulfilled 	its 	obligation
to 	negotiate 	in 	good 	faith 	over 	the 	minimum-day 	designation 	is
the 	question 	brought 	to 	the 	Board 	for 	resolution. 	Absent 	any
reference 	in 	the 	parties' 	contract 	to 	minimum 	days 	and 	by 	virtue
of 	the 	unambiguous 	reopener 	clause 	regarding 	the 	calendar, 	we
find 	the 	negotiated 	grievance 	machinery 	does 	not 	cover 	the
matter 	at 	issue 	and, 	therefore, 	deny 	the 	District's 	motion 	to
defer.
In 	reaching 	the 	conclusion 	outlined 	above, 	we 	necessarily
reject 	the 	arguments 	posed 	by 	Member 	Porter 	in 	his 	dissent.
5

First,
	the 	question 	of
	arbitrability
	is
	one
	for
	this
	Board,
	not
the
	arbitrator,
	to 	decide.
	AT&T
	Technologies 	v.
	CWA
	(1986)
U.S.	
[121
	LRRM
	3329].
	Second,
	the
	dissent
	misreads
	our
decision
	as
	one
	assessing
	the
	merits
	of 	the
	District's
contention.
	We
	have
	confined 	our
	analysis
	to
	the
	singular
question
	of 	whether
	the
	parties'
	contract
	"covers 	the
	matter
	at
issue."
	We
	find
	it
	does
	not 	because
	there
	is
	no
	express
provision
	concerning
	minimum
	days, 	because
	the
	parties
	were
engaged
	in
	reopener
	negotiations
	regarding 	the 	school
	calendar,
and
	because
	minimum-day
	designation
	is
	known
	by
	all
	concerned
	to
be
.a
	component
	of 	the 	school
	calendar. 	Finally,
	we
	readily
acknowledge
	the 	longstanding
	presumption
	favoring
	arbitration.
However,
	that
	presumption
	is
	not 	so
	strong
	as
	to 	require 	the
Board
	to 	abdicate
	its
	statutory 	responsibility
	to
	decide
	unfair
practice
	charges
	when,
	as
	here, 	the
	parties'
	dispute
	is
	not
covered 	by
	their
	contractual
	agreement.
ORDER
Based
	on
	the 	foregoing, 	the
	Board
	AFFIRMS
	the
	administrative
law
	judge's 	denial 	of 	the
	District's
	Motion
	to
	Dismiss 	and
directs 	that
	the 	case 	proceed
	to 	hearing.
Chairperson
	Hesse
	joined 	in
	this
	Decision.
	Member
	Porter'sdissent 	begins
	on
	p.
	7.
6

Porter,
	Member,
	dissenting:
	I
	would
	reverse 	the
	ALJ
	and
dismiss 	the 	complaint,
	inasmuch
	as
	this
	matter
	should
	be
deferred 	to
	the
	arbitration
	procedure
	of 	the
	agreement
	between
the
	parties.
	While
	this
	case
	certainly
	poses
	a
	close 	question
on
	whether
	the 	grievance
	mechanism
	covers 	the 	matter
	at
	issue,
given
	the
	language
	defining
	grievance
	as
	involving
	the
	"express"
terms
	of
	the
	agreement,
	I
	do
	not 	read
	the
	language 	so
	narrowly
nor
	so
	conclusively
	as
	does
	the
	majority 	opinion.
In
	this
	dispute,
	the 	Association
	alleges 	that
	the
	District
unilaterally
	altered
	the
	past 	practice
	by
	eliminating
	March
	21
as
	a 	minimum
	school 	day,
	and
	that 	this
	action
	occurred 	while 	the
parties
	were
	meeting
	and
	negotiating
	reopeners, 	including
	the
reopener
	on
	calendar.
	While
	it
	is 	clear 	that 	this 	allegation
states
	a
	prima
	facie 	violation
	of
	EERA
	and, 	while
	I
	also 	agree
that
	the
	District's
	contractual
	argument
	is
	unconvincing,
	it
	is
undisputed
	that
	the
	parties
	were
	negotiating
	the
	subject
	of
calendar 	pursuant 	to
	an
	express
	agreement
	to
	do
	so 	found
	in 	the
reopener 	clause 	of 	the
	contract.
	Thus,
	the 	question
	becomes,
does
	that
	reopener
	provision 	contain
	an
	im~lied 	agreement
	to
maintain 	the
	status
	quo
	pending 	completion 	of 	those
	negotiations
and,
	if
	so,
	what
	is
	the
	status
	quo?
	Alternatively, 	is 	there
	a
past 	practice
	of 	maintaining 	the
	status
	quo
	pending 	the
	outcome
of 	reopener 	negotiations 	that
	was
	impliedly 	included 	in 	the
agreement? 	Those
	questions 	bring 	the 	dispute 	within 	the
provisions 	of 	the 	collective 	bargaining 	agreement. 	That 	being
the 	case,
	it 	is 	appropriate 	to 	defer 	the 	issue 	to 	allow 	an
7

arbitrator
	to
	determine
	what
	the
	parties
	intended 	concerning 	the
status
	quo
	when
	they
	negotiated
	the
	reopener 	language. 	Should
the
	arbitrator
	find
	such
	an
	implied 	understanding 	or
	past
practice,
	along 	with
	a
	breach 	of
	that
	understanding,
	then
	the
arbitrator
	can
	essentially
	resolve
	the
	unfair 	practice
	at
	the
same
	time.
1
The
	EERA
	prohibits
	this
	agency
	from
	issuing
	a
	complaint
against
	conduct
	also 	prohibited
	by
	the
	provisions 	of 	the
agreement
	until
	the 	grievance
	machinery
	of
	the
	agreement,
	if 	it
exists
	and
	covers 	the
	matter
	at
	issue,
	has
	been
	exhausted
	by
either
	settlement
	or 	binding
	arbitration.
	(Gov't
	Code
	section
3541.S(a).)
	EERA
	also
	provides
	a
	procedure 	for
	a
	party 	to
	seek
a
	court 	order
	compelling
	arbitration,
	and
	specifies 	that
	such
action
	is
	to
	be
	brought
	under
	Code
	of
	Civil
	Procedure
	section
1280
	et
	seq.
2
This
	Board
	should
	be 	mindful
	of 	the 	language
	of
lThe
	majority's 	reliance
	on
	AT&T
	Technologies 	v.
	CWA
	(1986)U.S.
	__
	[121
	LRRM
	3329]
	for 	the
	proposition
	thatthe
question 	of
	arbitrability
	is
	for
	this
	Board
	to 	decide,
	rather
than
	an
	arbitrator, 	is
	misplaced.
	This
	case
	is
	inapposite,since
	it
	addresses 	the
	court's
	role 	in
	ruling
	on
	a
	petition 	to
compel
	arbitration.
	Our
	role
	is 	different.
	The
	Board's
	task 	is
to 	further
	the
	aim
	of 	collective
	bargaining
	by
	deferring 	to 	the
agreed-upon
	dispute 	resolution
	mechanism,
	if 	it
	covers 	the 	matter
at 	issue.
	It
	is
	the
	majority's
	conclusion
	on
	this
	latter
	point
with
	which
	I
	disagree, 	since, 	for 	the 	reasons 	noted
	herein, 	thegrievance
	article
	does 	cover 	the 	matter
	at 	issue.
2section
	3548.7
	states,
	in 	pertinent 	part:
Where 	a
	party 	to
	a
	written
	agreement
	is
aggrieved 	by 	the 	failure, 	neglect, 	or 	refusalof 	the 	other 	party 	to 	proceed 	to 	arbitrationpursuant 	to 	the 	procedures 	provided 	thereforein 	the 	agreement
	•.•
	,
	the 	aggrieved 	party
8

those
	statutory
	provisions
	and
	cases
	decided 	thereunder
	in
resolving 	questions
	concerning
	arbitrability,
	as
	these
	cases
reflect
	the
	public 	policy
	that
	favors
	arbitration.
	Section
1281.2
	of 	the
	Code
	of 	Civil
	Procedure
	states,
	in
	part:
If
	the
	court
	determines
	that
	a
	written
agreement
	to
	arbitrate
	a
	controversy
	exists,
an
	order 	to
	arbitrate
	such
	controversy
	may
not
	be
	refused
	on
	the
	ground
	that
	the
petitioner's
	contentions
	lack
	substantive
merit.
This
	clearly 	reflects
	a
	legislative
	preference 	for
	arbitration,
notwithstanding
	that
	the
	court
	finds
	little
	or
	no
	merit 	in 	the
petitioner's
	contention
	under
	the
	contract.
	As
	at
	least
	one
court
	has
	stated
	in 	construing
	this
	provision:
In
	this 	state,
	disputes
	as
	to
	the
	meaning,
interpretation,
	and
	application
	of
	any
clause 	of
	an
	agreement
	which
	provides 	for
arbitration--even
	those
	that
	prirna
	facie
appear
	to
	be
	without
	merit--are
	a
	proper
subject 	for 	consideration
	and
	decision
	by
the
	arbitrators.
	• 	• 	•
California
	has 	declared
	its
	preference 	for
the
	arbitrable
	rule 	established
	in 	the
series
	of 	labor 	cases
	commonly
	referred 	to
as
11
the
	arbitration 	trilogy" 	[citing
	the
Steelworkers
	trilogy].
	: 	: 	:
. 	. 	. . . 	. . . . 	. . 	. 	. 	. 	. 	. . . . . 	.
may
	bring 	proceedings 	pursuant 	to 	Title
	9
(commencing
	with 	Section
	1280)
	of 	Part
	3
	ofthe
	Code
	of 	Civil 	Procedure 	for
	a
	court 	order
directing 	that
	the
	arbitration
	proceed
pursuant 	to 	the 	procedures 	provided 	thereforein 	such
	agreement.
	: 	. 	:
9

The 	arbitrators, 	not 	the 	courts, 	have 	the
task 	of 	defining 	the 	issues 	between 	the
parties 	and 	of 	the 	interpretation,
construction 	and 	application 	of 	the 	Joint
Powers 	Agreement. 	Judicial 	caution 	is 	called
for 	against 	jumping 	too 	quickly 	to 	the
conclusion 	that 	a 	claim 	indisputably 	falls
outside 	the 	scope 	of 	an 	arbitration
provision. 	East 	San 	Bernardino 	County 	Water
District 	v. 	City 	of 	San 	Bernardino 	(1973) 	33
Cal.App.3d 	942, 	951, 	952, 	954 	[183 	Cal.Rptr.
360, 	645 	P.2d 	1192].
In 	Morris 	v. 	Zuckerman 	(1967) 	257 	Cal.App.2d 	91 	[64 	Cal.Rptr.
714], 	the 	court, 	after 	referencing 	Code 	of 	Civil 	Procedure
section 	1281.2, 	stated:
Following 	Posner 	[Posner 	v. 	Grunwald-Marx,
Inc., 	56 	Cal.2d 	169 	[14 	Cal.Rptr. 	297, 	363
P.2d 	313]], 	the 	court 	made 	these 	further
pronouncements 	as 	to 	the 	question 	of
arbitrability: 	"Arbitration 	is, 	of 	course,
a 	matter 	of 	contract, 	and 	the 	parties 	may
freely 	delineate 	the 	area 	of 	its 	application.
The 	court's 	role; 	according 	to 	the 	Supreme
Court, 	however, 	must 	be 	strictly 	limited 	to 	a
determination 	of 	whether 	the 	party 	resisting
arbitration 	agreed 	to 	arbitration. 	A heavy
presumption 	weighs 	the 	scales 	in 	favor 	of
arbitrability; 	an 	order 	directing 	arbitration
should 	be 	granted 	'unless 	it 	may 	be 	said
with 	positive 	assurance 	that 	the 	arbitration
clause 	is 	not 	susceptible 	of 	an
interpretation 	that 	covers 	the 	asserted
dispute. 	Doubts 	should 	be 	resolved 	in 	favor
of 	coverage."' 	(Citation 	omitted.) 	257
Cal.App.2d, 	at 	p. 	95.)
The 	standard 	articulated 	by 	the 	courts 	above 	came 	from 	the
Steelworkers 	trilogy, 	and 	reflects 	the 	strong 	policy 	in
California 	in 	favor 	of 	arbritration.
Previous 	Board 	decisions 	have 	utilized 	the 	standard 	adopted
by 	the 	NLRB 	for 	determining 	whether 	the 	contract 	and 	its 	meaning
lie 	at 	the 	center 	of 	the 	dispute. 	See, 	e.g., 	Dry 	Creek 	Joint
10

Elementary
	School
	District
	(1980)
	PERB
	Order
	No.
	Ad-8la; 	Conejo
Valley 	Unified
	School
	District
	(1984)
	PERB
	Decision
	No.
	376.
	In
Conejo
	Valley,
	id.,
	the
	association 	alleged
	that
	the
	district
had
	reduced
	hours
	and
	laid
	off
	employees
	without
	giving
	the
association
	an
	opportunity 	to
	negotiate.
	The
	collective
bargaining
	agreement 	between
	the
	parties
	contained
	provisions
that
	addressed 	the
	topics
	of
	layoffs
	and
	reductions
	in
	hours,
and
	included 	binding
	arbitration.
	The
	association
	challenged
the 	regional
	attorney's
	conclusion
	that
	the
	contract
	and
	its
meaning
	lay
	at
	the
	center
	of 	the
	dispute.
	The
	Board
	relied
	on
the
	NLRB
1 s
	interpretation
	of 	the 	phrase, 	"the
	contract
	and
	its
meaning
	lie
	at
	the
	center
	of 	the
	dispute,"
	and
	dismissed
	the
charges
	against
	the 	employer. 	This
	interpretation
	was
articulated
	in 	Collyer 	Insulated
	Wire 	(1971) 	192
	NLRB
	837
	[77
LRRM
	1931], 	in
	which
	the
	NLRB
	stated:
[T]he
	unilateral
	action
	taken
	•.•
	is
	not
patently
	erroneous 	but
	rather 	is
	based
	on
	a
substantial
	claim 	of
	contractual 	privilege,
and
	it
	appears
	that
	the
	arbitralinterpretation
	of 	the
	contract 	will 	resolveboth 	the
	unfair 	labor 	practice 	issue
	and
	the
contract 	interpretation
	issue 	in
	a
	manner
compatible 	with 	the 	purposes 	of 	the
	Act
•...
The
	Board
	also 	considered 	the
	NLRB
1 s
	decision 	in
	Roy
Robinson
	Chevrolet
	(1977)
	228
	NLRB
	828
	[94
	LRRM
	1474], 	in 	which
the
	NLRB
	deferred 	to
	arbitration
	a
	charge
	that
	the 	employer 	had
closed 	part
	of
	its
	operation
	and
	discharged
	its
	employees
	without
first
	bargaining 	with 	the 	union.
	The
	employer 	claimed
	that 	the
contract
	gave
	it
	the 	authority 	to 	take 	such 	action 	without
11

negotiating, 	relying
	on
	a
	provision
	that
	merely
	said
	the
"employer
	shall
	have
	the
	exclusive
	right
	to
	hire,
	suspend
	and
discharge
	his
	employees."
	Although
	the
	union
	had
	argued
	that·
the 	employer's
	interpretation
	of 	the
	contract
	language
	seemed
improbable, 	the
	NLRB
	nevertheless 	deferred
	the
	matter, 	saying:
As
	to
	the
	dissenter's
	argument
	that
	there
	is
no
	contract
	provision
	which
	could
	even
arguably 	give
	color 	to
	Respondent's 	conduct,
we
	disagree.
	The
	Supreme
	Court
	said 	in
United
	Steelworkers
	of
	America
	v. 	Warrior	
&
Gulf
	Navigation
	Co.,
	363
	U.S. 	582-583,
	46
LRRM
	2416,
	that
	an
	order 	to
	arbitrate
	a
particular
	grievance
	should 	not
	be
	denied
"unless
	it
	may
	be
	said
	with
	positive
assurance
	that
	the
	arbitration
	clause
	is
	not
susceptible
	of
	an
	interpretation 	that
	covers
the
	asserted 	dispute.
	Doubts
	should
	be
resolved 	in
	favor 	of 	coverage."
	We
	believe
that
	the 	dispute
	here
	falls
	within
	that
standard
	and
	is 	therefore 	properly 	referableto
	the
	parties' 	arbitration
	procedure.
(Emphasis 	added~) 	Conejo
	Valley, 	supra,
	at
p.
	6,
	quoting
	Roy
	Robinson
	Chevrolet, 	supra.
The
	Board 	found
	the
	facts
	in
	Conejo
	Valley
	to
	be
	similar 	to
those 	in
	Roy
	Robinson
	Chevrolet, 	in
	that
	in 	both 	cases 	the
contract 	authorized 	the
	employer
	to 	lay
	off
	or 	discharge
employees,
	but 	did
	not
	expressly
	state 	that
	the
	employer
	could
do 	so
	without
	further 	negotiations.
	The
	Board 	found
	that 	the
employer 	in
	Conejo
	Valley
	had 	an 	even
	stronger
	argument
	that
	it
had
	fulfilled 	its
	negotiating 	obligation
	than 	did 	the 	employer
in
	Roy
	Robinson
	Chevrolet 	and,
	therefore, 	the 	charge
	"raises
	a
substantial 	question 	of 	contract 	interpretation
	which
	lies 	at
the 	center 	of 	the
	parties' 	dispute."
	(Conejo 	Valley, 	supra,
	at
p. 	9.)
	The 	Board 	thus 	concluded
	that
	under 	those 	circumstances,
12

EERA
	section
	3541.5(a)(2)
	prohibited
	the
	agency
	from
	issuing
	a
complaint.
Applying
	the
	previously
	utilized
	standard,
	I
	cannot
	conclude
that
	the
	arbitration
	clause 	in
	this
	case
	is
	not
	susceptible
	of
an
	interpretation 	that
	would
	allow
	an
	arbitrator
	to 	resolve
	this
dispute.
	The
	Association
	itself
	recognized 	the
	possibility
	of
this
	when
	it
	filed
	a
	grievance 	claiming
	a
	violation
	of 	the
calendar 	provision.
Many
	arbitration
	decisions
	can 	be 	found
	in
	which
	the
arbitrator
	looked
	to
	the
	pas~
	practice
	or
	custom
	to 	resolve
	a
dispute.
	For 	example,
	the
	arbitrator
	in
	Klickital
	County 	(1985)
86
	LA
	283,
	286
	states:
It
	is
	generally
	accepted 	in 	the
	law
	of 	labor
arbitration
	that
	"custom 	and
	past 	practice
between
	the
	parties
	may
	be 	acknowledged 	by
the
	arbitrator
	to
	interpret
	ambiguous
language
	in
	a
	contract, 	to 	exise 	or
	revise
clear
	language 	in
	a
	contract,
	or 	to 	provide
work
	rules
	or 	conditions 	of
	employment 	where
the
	contract
	is
	silent."
In
	Farrell
	Lines, 	Inc.
	(1986)
	86
	LA
	36,
	the
	arbitrator
	was
asked
	to
	determine 	the
	arbitrability
	of
	a
	grievance
	which
	the
employer 	claimed 	did 	not
	meet
	the 	contractual
	filing 	timelines.
The
	grievant 	alleged 	that
	the
	practice 	of 	the
	parties
	was
	to
utilize
	an
	informal
	step
	of 	dispute 	resolution 	prior 	to
implementing 	the
	first
	formal
	step 	of 	the 	grievance
	mechanism,
and
	that
	was
	done
	in
	this
	case 	within 	the 	contemplated
	timelines.
After 	examining 	the 	past 	practice, 	the
	arbitrator
	concluded
	that
the 	practice
	was
	unvarying, 	clearly 	defined, 	verbalized
	and
	acted
13

upon, 	and
	accepted
	by
	both
	parties.
	Consequently,
	the
	arbitrator
concluded
	that
	the
	practice
	became
	an
	unwritten
	part
	of
	the
grievance
	procedure
	and
	the 	grievance
	was
	timely
	and,
	therefore,
arbitrable.
	See,
	also,
	Maple
	Heights
	Board
	of
	Education
	(1985)
86
	LA
	338
	(past
	practice
	revealed
	that,
	notwithstanding
contractual
	language
	to 	the 	contrary,
	the
	intent
	of 	the
	parties
was
	that
	the
	seven
	and
	one-half
	hour
	workday
	included
	lunch);
Sun
	Refining
	and
	Marketing
	Co.
	(1985)
	86
	LA
	266
	(based
	on
	past
practice,
	arbitrator
	concluded
	that
	language
	describing 	the
	job
function 	of 	the
	chief 	operator
	was
	not
	all-inclusive
	and
	the
operator
	had
	in 	the
	past
	performed
	the
	complained-of
	task);
School
	City 	of
	Hobart
	(1985)
	86
	LA
	557
	(district
	discontinued
giving 	three
	early 	release
	days, 	although 	they
	had 	been
	granted
for 	the 	preceding
	three 	years:
	The
	calendar 	did
	not
	specifically
address
	early 	release
	days, 	although
	it
	was
	attached 	to 	the
contract.
	The
	arbitrator
	framed
	the 	issue
	as 	whether
	the
association
	had 	proved
	that 	there 	existed
	a
	contractual
	basis
	or
an
	implied
	condition
	on
	which
	the
	contract
	was
	silent,
	but
	which
was
	nevertheless
	an
	established 	past 	practice 	that
	would
	support
a
	continuation 	of 	the 	grieved
	benefit.).
The 	harm
	of 	the 	majority 	opinion
	is 	that
	it
	has, 	without 	the
benefit 	of
	any
	testimony 	or 	evidence, 	concluded
	that 	the
agreement
	of 	the
	parties 	forecloses
	arbitration
	unless 	the
contract 	specifically
	addresses
	a
	subject.
	Thus,
	the 	majority
opinion 	writes 	out 	of 	the 	agreement
	that
	body
	of 	arbitrable
standards
	which 	allows 	an
	arbitrator 	to 	examine
	past 	practice 	to
14

determine 	if 	the 	contract 	impliedly 	contains 	a 	term 	or
understanding 	not 	specifically 	included 	in 	the 	agreement. 	Such
a 	result 	does 	not 	further 	the 	purposes 	of 	EERA, 	since 	it 	disavows
the 	agreement 	of 	the 	parties 	to 	submit 	contractual 	disputes 	to
arbitration, 	and 	it 	does 	not 	foster 	labor 	stability.
Further, 	by 	concluding 	that 	this 	issue 	is 	not 	arbitrable
under 	the 	parties' 	agreement, 	the 	charging 	party 	is 	foreclosed
from 	relying 	on 	the 	contract 	as 	one 	of 	the 	bases 	of 	its 	claim.
If 	the 	Association 	is 	unable 	to 	demonstrate 	that 	the 	Friday
before 	spring 	break 	has 	consistently 	been 	designated 	a 	minimum
day, 	then 	it 	will 	not 	have 	met 	its 	burden 	of 	showing 	unlawful
action 	by 	the 	District. 	Reaching 	this 	conclusion 	makes 	it 	clear
that 	at 	least 	part 	of 	the 	real 	harm 	complained 	of 	is 	the
District's 	alleged 	undermining 	of 	the 	agreed-upon 	negotiations
that 	were 	occurring 	under 	the 	express 	terms 	of 	the 	contract.
Thus, 	we 	come 	back 	to 	the 	language 	of 	the 	contract 	itself 	and
its 	agreed-upon 	dispute 	resolution 	mechanism. 	The 	majority
opinion 	itself 	recognizes 	this 	when 	it 	concludes:
Undeniably, 	pursuant 	to 	their 	contractual
agreement, 	the 	parties 	were 	engaged 	in
negotiations 	over 	minimum 	days 	and, 	as 	of
March 	5, 	1985, 	the 	date 	of 	the 	school 	board's
action, 	had 	not 	reached 	agreement. 	Whether,
by 	this 	bargaining 	conduct, 	the 	District
fulfilled 	its 	obligation 	to 	negotiate 	in 	good
faith 	over 	the 	minimum-day 	designation 	is 	the
question 	brought 	to 	the 	Board 	for 	resolution.
(Emphasis 	added. 	Majority 	opinion, 	p. 	5.)
There 	are 	several 	good 	reasons 	why 	the 	deferral 	policy 	favors
arbitration. 	First, 	the 	entire 	thrust 	of 	the 	Act 	is 	to 	have 	the
15

parties 	reach 	a 	mutual 	agreement 	over 	terms 	and 	conditions 	of
employment. 	Having 	done 	so, 	the 	parties 	may 	mutually 	agree 	to 	a
mechanism 	to 	resolve 	alleged 	violations 	and/or 	disputes
concerning 	the 	meaning 	of 	that 	agreement.
Second, 	the 	dispute 	resolution 	mechanism 	will 	no 	doubt 	result
in 	a 	speedier 	conclusion 	to 	the 	matter, 	so 	the 	parties 	can 	go 	on
about 	their 	business. 	This 	is 	especially 	important 	when 	it
concerns 	an 	issue 	involving 	negotiations, 	as 	that 	issue 	will
continue 	to 	taint 	future 	negotiations, 	which 	does 	not 	encourage
stable 	labor 	relations.
Third, 	preference 	for 	one 	forum, 	arbitration, 	over 	another,
PERB 	procedures, 	will 	avoid 	duplication 	of 	litigation 	with 	the
possibility 	of 	inconsistent 	results, 	and 	will 	tend 	to 	discourage
"forum 	shopping" 	by 	the 	charging 	party~
Fourth, 	as 	stated 	by 	the 	NLRB 	in 	Roy 	Robinson 	Chevrolet,
supra, 	doubts 	should 	be 	resolved 	in 	favor 	of 	coverage.
Finally, 	there 	is 	a 	strong 	public 	policy 	in 	California 	that
favors 	arbitration. 	The 	California 	Supreme 	Court 	has 	stated:
We 	have 	declared 	that 	state 	policy 	in
California 11 favors 	arbitration 	provisions 	in
collective 	bargaining 	agreements 	and
recognizes 	the 	important 	part 	they 	play 	in
helping 	to 	promote 	industrial 	stabilization."
(Citation-omitted.) 	Fire 	Fighters 	Union 	v.
City 	of 	Vallejo 	{1974) 	12 	Cal.3d 	608, 	622
[116 	Cal.Rptr. 	507, 	526 	P.2d 	971].
While 	the 	issue 	before 	the 	Court 	was 	interest 	arbitration, 	the
policy 	is 	no 	less 	applicable 	when 	the 	matter 	concerns 	grievance
arbitration. 	See, 	also, 	Vernon 	Fire 	Fighters 	v. 	City 	of 	Vernon
(1980) 	107 	Cal.App.3d 	802, 	811, 	813 	[165 	Cal.Rptr. 	908].
16

For the foregoing reasons, I dissent and would defer the

matter to arbitration.

17

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
AMADOR
	VALLEY
	TEACHERS
	ASSOCIATION,
Charging
	Party,
v.
PLEASANTON
	JOINT
	SCHOOL
	DISTRICT,
Respondent.
}
)
}
)
)
)
)
)
) 
Unfair
	Practice
Case
	No.
	SF-CE-1094
MEMORANDUM
	AND
ORDER
	DENYING
MOTION
	TO
	DISMISS
_____________________
)
The
	Pleasanton
	Joint
	School
	District
	(District)
	has
	moved
to 	dismiss
	this
	action
	on
	the
	ground
	that 	deferral
	to
	binding
arbitration 	is
	required
	under
	section
	3541.S{a)
{2}
	of
	the
Educational
	Employment
	Relations
	Act
	(EERA
	or 	Act).
1
The
	unfair 	practice
	charge
	filed
	March
	13,
	1986 	by
	the
Amador
	Valley 	Teachers 	Association 	(Association)
	alleged
	that
the
	District's
	school
	board
	had
	voted
	to
	unilaterally
	eliminate
a 	minimum
	day
	for 	teachers
	on
	the 	Friday 	preceding 	the
	upcoming
1Government 	Code
	section
	3541.S{a)
(2)
	states
	in 	relevant
part 	that
	the 	Public
	Employment
	Relations
	Board
	(PERB
	or
	Board)
shall 	not,
•••
	issue
	a
	complaint 	against 	conduct
	also
prohibited
	by
	the 	provisions 	of 	the 	agreement
between 	the 	parties 	until
	the 	grievancemachinery 	of 	the 	agreement,
	if 	it
	exists
	and
covers 	the 	matter 	at 	issue, 	has 	been
exhausted, 	either
	by
	settlement 	or 	binding
arbitration.

spring 	vacation. 	This 	conduct, 	it 	was 	claimed, 	violated 	the
good 	faith 	bargaining 	requirement 	of 	the 	EERA. 2
The 	PERE 	General 	Counsel 	issued 	a 	complaint 	on 	March 	27,
1986, 	also 	alleging 	a 	bargaining 	violation. 	The 	complaint
stated 	that 	prior 	to 	March 	1986 	the 	minimum 	day 	before 	spring
vacation 	had 	been 	an 	established 	policy, 	and 	that 	the 	parties
were 	negotiating 	the 	1985-86 	calendar 	when 	the 	District 	changed
it 	to 	a 	full 	workday. 	According 	to 	the 	complaint, 	the
District's 	action 	was 	taken,
••• 	without 	having 	negotiated 	with 	Charging
Party 	to 	agreement 	or 	through 	the 	impasse
procedures 	••••
The 	day 	the 	complaint 	issued, 	the 	Regional 	Attorney 	in
San 	Francisco 	wrote 	a 	letter 	rejecting 	the 	District's 	pre
complaint 	contention 	that 	the 	parties' 	collective 	bargaining
agreement 	required 	deferral 	by 	the 	PERB 	to 	the 	binding
arbitration 	machinery 	of 	that 	agreement. 	Analyzing 	the
District's 	claims 	in 	light 	of 	PERB 	and 	federal 	precedent, 3
the 	Regional 	Attorney 	concluded 	that 	the 	contract 	and 	its
meaning 	did 	not 	lie 	at 	the 	center 	of 	the 	dispute. 4
2see 	Government 	Code 	section 	3543.S(c), 	which 	prohibits 	a
refusal 	and 	failure 	to 	negotiate 	in 	good 	faith. 	Concurrent
violations 	of 	EERA 	sections 	3543.S(a) 	and 	(b) 	were 	alleged 	as
well.
3see, 	e.g., 	Dry 	Creek 	Joint 	Elementary 	School 	District
(1980) 	PERB 	Order 	No. 	Ad-Sla; 	Collyer 	Insulated 	Wire 	(1971) 	192
NLRB 	837 	[77 	LRRM 	1931].
4The 	letter 	stated, 	in 	part:
2

The
	District
	filed
	its
	answer
	and
	a
	motion
	to
	dismiss
	on
April
	23,
	1986,
	urging
	that
	the
	subject
	of 	the 	complaint
	was
	a
matter 	for
	binding
	arbitration.
	(See	
PERB	
Rules
	32644,
	32646
(Cal.Admin.
	Code,
	tit.
	8,
	secs.
	32644,
	32646)
.)
	The
	Charging
Party
	submitted
	its
	opposition
	to 	the
	motion
	on
	May
	9, 	1986.
In 	connection 	with 	the
	motion, 	each
	party 	offered 	relevant
documents 	and
	factual
	claims,
	which 	were
	considered 	together
with 	the
	allegations
	of 	the 	complaint
	and
	the 	charg~.
	{See
Conejo
	Valley 	Unified
	School
	Dist.
	(1984)
	PERB
	Dec.
	No.
	376
	at
p.
	9;
	Merced 	Union 	High
	School
	Dist.
	(1985)
	PERB
	Order
No.
	Ad-150
	at
	pp.
	3-4.)
	For
	the 	reasons
	that
	follow,
	it
	is
found
	that
	the
	Regional 	Attorney
	correctly 	rejected
	the
District's
	deferral
	objection
	and
	that
	dismissal
	is
	not
warranted.
.
The
	contract
	between
	the
	parties
	was
	executed 	in
October
	1985 	and
	covers 	the 	period 	July
	1984
	through
The
	contract
	does 	not 	contain
	a
	provision
which
	directly
	covers 	the 	dispute 	raised
	by
the 	unfair 	practice
	charge. 	Neither
Article
	IV
	nor
	Article
	XX
	refers
	to 	the
annual 	schedule 	indicating 	the 	dates 	of
holidays, 	vacations, 	noninstructional 	days,and
	instructional 	(full
	and 	minimal)
	days.
Nor
	does 	the 	contract
	even
	arguably 	grantthe 	authority 	to 	school
	principals 	to
	make
determinations 	concerning 	the 	dates
	on 	which
such 	events 	shall 	occur.
In 	sum,
	interpretation 	of 	the 	contract 	willnot 	resolve 	the 	dispute 	over 	the 	existence
of
	a
	past 	practice 	of 	observing
	a 	minimum
day 	on 	the 	last 	Friday 	before 	spring 	break.
3

June
	1987.
	The
	agreement
	includes
	a
	grievance
	and
	arbitration
article.
	(Art.
	II.)
	A
grievance
	is
	defined
	as
	"an
	alleged
violation,
	misinterpretation
	or
	misapplication 	of 	the 	express
terms
	of
	this
	Agreement,
	which
	directly
	and
	adversely
	affects
the
	grievant."
	Grievants
	may
	be
	unit
	members
	or
	the 	Association
itself.
	If
	a
	dispute
	goes
	to
	arbitration,
	the
	decision
	•shall
be
	final
	and
	binding
	••••
•
The
	District
	contends
	that
	two
	contract
	provisions
	arguably
apply
	to 	the
	minimum
	day
	dispute,
	thereby
	justifying
arbitration
	because
	the
	District's
	action
	was
	not
	"patently
erroneous," 	but
	was
	"based
	on 	a
	substantial
	claim 	of
	contractual
privilege.	
"	
(Quoting 	Conejo
	Valley 	Unified 	School
	Dist.,
supra,
	PERB
	Dec.
	No. 	376
	at
	p. 	5.)
One
	article
	cited
	by
	the
	employer
	is
	the 	section
	on
	•Hours
of
	Employment."
	(Art.
	IV.) 	That
	article 	states:
The
	duty
	day
	shall
	include
	as
	much
	time
	as
is
	necessary 	to
	fulfill
	professional 	dutiesto
	facilitate
	the 	educational
	program.
	The
principal 	shall
	determine 	both
	the 	schedule
and
	the
	duties
	and
	responsibilities.
	Each
site
	administrator
	shall
	determine 	the 	needs
of 	his/her 	particular
	school 	and,
	where
possible, 	equitably 	assign
	such
	schedules,
duties
	and
	responsibilities.
	This 	provision
shall
	not 	apply 	to 	voluntary
	activities.Effective 	July 	1,
	1982, 	the 	portion 	of 	the
teacher
	work
	day
	assigned 	to 	in-classroom
student 	contact 	for 	kindergarten 	teachers
shall
	not 	exceed
	two
	hundred 	and
	eighty
(280)
	minutes; 	the 	portion 	of 	the 	teacher
work 	day 	assigned 	to 	in-classroom 	student
contact 	for 	regularly 	assigned 	teachers 	in
grades
	one 	through 	eight
	(1-8}
	shall 	notexceed 	three 	hundred 	and 	twenty-five
	{325)
minutes.
4

The
	second
	provision 	~ited
	by
	the
	District
	concerns
	the
"Calendar."
	(Art.
	XX.)
	This
	article 	states:
A.	
For
	the
	1984/85
	through
	1986/87
	school
years, 	there
	shall
	be 	one
	hundred-eighty
(180)
	instructional
	days
	and
	three
	(3)
noninstructional
	days
	for
	all
	unit
	members
except
	psychologists.
For
	the
	1985/86 	through
	1986/86
	school
	years,the
	first
	student
	day
	shall
	be
	the
	Wednesday
after
	Labor
	Day
	with
	the
	first
	certificated
work
	day
	being
	the
	Tuesday
	after
	Labor
	Day.
B.	
For
	the
	1984/85 	through 	1986/87
	school
years, 	there
	shall
	be
	one
	hundred-ninety-six
(196)
	psychologist
	work
	days.
One
	other
	section
	of 	the
	contract 	also
	is
	relevant 	to
	this
dispute.
	The
	contract's
	reopener
	provision 	(Art.	
XXV(B))	
states
that,
For
	the
	1985/86
	and
	1986/87
	school
	years,
	the
parties
	agree 	to
	reopen
	negotiations 	duringeach
	school 	year
	on
	the 	following:
1.	
Article
	X -
	Health
	and
	Welfare
2.	
Article
	XI 	-
	Salary
3. 	Calendar
4.	
One
	unspecified 	Article
	per
	party
The
	agreement,
	it
	should
	be
	noted, 	does
	not 	contain 	as
	an
alternative
	to
	a
	negotiated 	calendar
	any
	section 	incorporating
past 	policy 	or
	practice, 	either 	directly
	through 	express
adoption, 	or
	indirectly
	through 	the 	scope 	of 	the 	grievance
procedure. 	Further, 	there 	is
	no 	management
	rights 	provision,
general 	or 	specific 	in 	nature, 	cited	
by 	the 	District
	as
authority 	for
	its 	deferral 	claim.
5

Beyond
	the
	contract,
	the
	papers
	filed
	by
	the
	parties
indicate 	that
	school
	calendar 	negotiations
	were
	taking 	place
from
	the
	time
	the
	contract
	was
	executed 	in
	October
	1985
	through
spring
	1986.
	In
	prior
	years,
	except
	for
	1984-85
	when
	contract
negotiations
	were
	proceeding, 	the 	annual
	calendar 	included
references
	to 	holidays
	and
	partial
	workdays.
	On
	March
	5,
	as
the
	charge
	and
	complaint
	allege,
	the
	District's
	school
	board
approved
	a
	monthly
	calendar
	making 	March
	21,
	the
	day
	preceding
spring
	break,
	a
	full
	teacher
	workday.
	This 	occurred 	whiie
calendar 	negotiations
	were
	still
	taking
	place.
	There
	was
	no
evidence 	or
	argument
	offered
	by
	the
	District 	that
	the 	schedule
for 	other
	1985-86
	holidays, 	vacations
	or
	partial
	workdays
	was
implemented
	unilaterally
	while
	negotiations
	were
	going 	forward.
Regarding
	the
	allegation 	that
	a
	past 	practice 	of
	minimum
days
	had 	been
	altered,
	the
	District
	contends
	that,
While
	previous 	Fridays 	before 	spring 	vacation
have
	not
	always 	been
	a
	regular 	length
instructional
	day,
	the 	length 	of 	these
instructional
	days 	has
	varied
	depending
	upon
the
	needs
	of 	the 	individual
	school
	sites
	as
determined	
by	
site
	administrators.
	(Answer
and 	Motion
	at
	p. 	4~}5
5
It
	is
	conceded
	that 	in 	prior 	years 	teachers
have 	not 	always 	been
	required 	to
	work 	a
regular 	length 	instructional
	day 	the 	?ridaypreceding 	spring 	vacation.
	However,
	there
has 	been 	no
	District-wide 	practice.
	The
length 	of 	the 	instructional
	day 	required 	of
individual 	school
	site 	tea
rn
	its
	argument 	on
	the 	motion, 	the
	District 	also 	stated:
chers 	has 	varied
6

Finally,
	in 	support 	of 	the
	motion,
	the
	District
	has
indicated
	that
	the 	Association
	had
	already
	filed
	a
	contract
grievance
	on
	the
	minimum
	day
	issue.
	This
	grievance
	was
	dated
March
	12, 	the
	day
	before 	the
	unfair
	practice
	filing.
	The
grievance 	alleged
	that
	the
	"District
	had
	unilaterally
	violated
past 	practice	
by	
eliminating
	the
	minimum
	day
	prior
	to
	Spring
Vacation," 	in
	violation
	of 	the 	calendar
	provision, 	Article
	XX.
The
	Association
	does
	not
	deny
	that
	a
	grievance
	was
	filed,
urging
	that
	it
	was
	done
	"out
	of
	an
	excess 	of 	caution"
	and
promising
	that
	it
	will
	be
	withdrawn
	if
	deferral
	is
	inappro
priate.
	(Opposition
	at
	p. 	4.)
	The
	Association
	flatly 	states
that
	the 	grievance 	erroneously
	relied
	on
	the
	contract. 	(Id.
	at
pp.
	5-6.)
Based
	on
	the
	facts
	and
	arguments 	above,
	it
	is
	concluded
	that
the
	contract
	does
	not 	cover
	the 	matter 	in 	dispute.
	First,
	the
hours
	article
	{Art. 	IV),
	on
	its
	face,
	concerns 	the
	authority
	of
site
	administrators
	and
	not 	the 	school 	board.
	There
	is	
no
reference 	to 	the 	school 	board
	in 	the
	literal
	language 	of
	that
section,
	and
	there
	is
	no
	factual 	allegation 	that 	site
administrator
	involvement 	led 	in
	any
	fashion 	to 	the 	school
board's 	decision 	in
	this
	instance.
6
depending 	upon
	the 	need 	as 	determined
	by
	the
site
	administrator. 	(Id. 	at 	p. 	9.)
6
At 	most, 	based 	on
	the
	District's 	assertion 	of
	a
	varying
past 	practice 	regarding 	the 	length 	of 	the 	school 	day,
7

The 	second 	contract 	article 	concerning 	the 	school 	calendar
(Art. 	XX) 	also 	fails- to 	support 	the 	District's 	deferral 	claim.
This 	article 	does 	not 	include 	any 	indication 	of 	specific
holiday, 	vacation, 	full 	or 	minimal 	days. 	These 	matters
obviously 	were 	not 	left 	to 	the 	District's 	unfettered 	discretion
because 	the 	contract 	reopener 	clause 	specifically 	requires
negotiations 	for 	the 	1985-86 	school 	calendar. 	In 	the 	absence
of 	a 	negotiated 	calendar, 	an 	established 	past 	practice 	would
govern, 	as 	the 	complaint 	alleges, 	assuming 	a 	practice 	can 	be
discerned 	when 	the 	merits 	of 	the 	case 	are 	heard. 	If 	an
inconsistent 	and 	varying 	practice 	is 	shown, 	however, 	the
complaint 	may 	be 	dismissed. 	(Modesto 	City 	Schools 	(1984) 	PERB
Dec. 	No. 	414.) 	Nonetheless, 	under 	the 	contract, 	past 	practice
alone 	does 	not 	form 	the 	basis 	for 	a 	grievance, 	contrary
to 	the 	allegation· in 	the 	grievance 	initially 	filed 	by 	the
Association, 	and 	deferral 	is 	not 	warranted. 7
respondent 	has 	suggested 	that 	extrinsic 	evidence 	would 	reveal 	a
latent 	ambiguity 	in 	language 	that 	is 	otherwise 	inapplicable 	to
this 	dispute. 	(See, 	e.g., 	Los 	Angeles 	City 	Employees 	Union 	v.
City 	of 	El 	Monte 	(1985) 	177 	Cal.App.3d 	615, 	622-623.) 	If 	such
evidence 	is 	available, 	presumably 	it 	can 	be 	offered 	during 	the
formal 	hearing 	in 	this 	case, 	and 	the 	District 	then 	can 	renew
its 	deferral 	objection. 	At 	this 	stage, 	however, 	a 	separate
evidentiary 	hearing 	is 	not 	warranted. 	Not 	only 	are 	the 	past
practice 	facts 	susceptible 	to 	proof 	in 	conjunction 	with 	the
hearing 	on 	the 	merits, 	but 	it 	would 	thwart 	the 	statutory
jurisdiction 	of 	the 	PERB 	to 	defer 	when 	not 	even 	a 	facial
ambiguity 	is 	apparent 	in 	the 	agreement.
7Absent 	the 	Association's 	disclaimer 	of 	the 	prior
grievance, 	and 	its 	announcement 	of 	its 	readiness 	to 	withdraw
from 	the 	contractual 	procedure, 	this 	would 	be 	a 	more 	difficult
8

In
	sum,
	the
	District
	has
	not
	advanced
	a
	substantial
	claim
of
	contractual 	privilege 	that
	covers 	the 	matter
	at
	issue.
	The
motion
	to 	dismiss
	shall
	be
	denied.
	The
	settlement
	conference
and
	formal
	hearing
	shall
	proceed
	on
	the
	dates 	previously
indicatea.
8
Dated:
	May
	21,
	1986
.
~WIN~
Administrative
	Law
	Judge
deferral 	issue 	to 	resolve. 	Since 	the 	Association 	has
	retracted
its
	claim,
	however,
	its 	earlier
	mistaken 	judgment 	should 	notblock 	the
	PERB
	from
	exercising
	its
	appropriate 	unfair 	practice
jurisdiction.
8
Respondent 	may
	appeal
	this 	refusal 	to 	dismiss 	the
complaint 	to 	the 	Board
	itself
	pursuant 	to
	PERB
	Rule 	32646{b),
incorporating 	the 	procedure 	set 	forth 	in
	PERB
	Rule 	32635. 	{See
Cal.
	Admin. 	Code,
	Tit. 	8, 	secs. 	32646(b), 	32635.)
9