Madera Unified School District (PERB 0817E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MADERA 	UNIFIED 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
MADERA 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
)
) 	Case No. 	S-CE- 1299
PERB Decision No. 	817
June 	19, 	1990
)
)
)
Appearance: 	California Teachers Association by Diane Ross,
Attorney, 	for Madera Unified Teachers Association, 	CTA/NEA.
Before Shank, 	Camilli and Cunningham, 	Members.
DECISION AND 	ORDER
CUNNINGHAM, 	Member: 	This case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by the Madera
Unified Teachers Association, 	CTA/NEA of 	a Board agent's
dismissal 	(attached hereto) 	of 	its 	charge that the Madera 	Unified
School 	District 	violated 	section 	3543.5 	of 	the 	Educational
Employment Relations Act. 	(Gov. 	Code, 	sec. 	3540 et seq.) 	We
have reviewed the dismissal 	and, 	finding 	it 	free of prejudicial
error, 	adopt 	it as the decision of the Board itself.
The unfair practice charge 	in Case No. 	S-CE-1299 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Shank and Camilli 	joined 	in this 	Decision.
)
)
)
______________ )

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor	-
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
October 	18, 	1989
Diane 	Ross
California 	Teachers 	Association
P.O. 	Box 	921
Burlingame, 	CA 	94011-0921
Re: 	Madera 	Unified Teachers 	Association v. 	Madera 	Unified 	School
District. 	Unfair Practice Charge No. 	S-CE-1299
Dear Ms. 	Ross:
On September 	18, 	1989, 	the Madera Unified Teachers Association
(Association) 	filed an unfair practice 	charge 	against 	the 	Madera
Unified 	School 	District 	(District) 	alleging a violation of
section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations Act 	(EERA). 	Specifically, 	you charged that the
District 	has 	unilaterally 	determined 	to 	terminate 	the 	health
insurance 	agreed 	upon 	in 	the 	collective 	bargaining 	agreement
between the parties, 	which expired June 	30, 	1989.
I 	indicated 	to you 	in my 	attached 	letter dated October 	2, 	1989
that 	the 	above-referenced 	charge did 	not 	state 	a 	prima 	facie
case. 	You were 	advised that 	if 	there were 	any 	factual
inaccuracies 	or 	additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended 	the charge 	to 	state a prima 	facie 	case, 	or withdrew it
prior to October 	10, 	1989, 	the charge would be dismissed.
I 	have 	not 	received 	either 	a 	request 	for withdrawal 	or 	an 	amended
charge. 	I 	am therefore dismissing 	the 	charge based on the 	facts
and reasons 	contained 	in my October 	2, 	1989 	letter.
Right 	to Appeal
-.
Pursuant 	to Public 	Employment Relations 	Board 	regulations, 	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 	(California Administrative Code, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and five
copies 	of 	such 	appeal 	must 	be 	actually 	received by 	the 	Board
itself before the 	close 	of business 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified or 	Express 	United 	States 	mail 	postmarked 	no
later 	than 	the 	last 	date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	The Board's 	address 	is:
"

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
copies 	of 	a 	statement 	in 	opposition within 	twenty 	calendar 	days
following the date 	of 	service 	of 	the 	appeal 	(California
Administrative Code, 	title 8, 	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 	each 	copy 	of 	a 	document 	served upon 	a 	party 	or 	filed
with the 	Board 	itself. 	(See 	California Administrative 	Code,
title 	8, 	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 	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 	(California
Administrative Code, 	title 8, 	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.
Sincerely,
Bernard 	McMonigle
Staff 	Attorney
Attachment
cc: 	Robert Stroup

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
October 2, 198 9
Diane 	Ross
California 	Teachers 	Association
P.O. 	Box 	921
Burlingame, 	CA 	94011-0921
Re: 	Madera 	Unified 	Teachers Association v. 	Madera 	Unified 	School
District. 	Unfair Practice Charge No. 	S-CE-1299
WARNING 	LETTER.
Dear Ms. 	Ross:
On September 	18, 	1989, 	the Madera Unified Teachers Association
(Association) 	filed 	an unfair practice 	charge 	against 	the Madera
Unified 	School 	District 	(District) 	alleging a 	violation of
section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations Act 	(EERA). 	Specifically, 	you charged that the
District 	has 	unilaterally 	determined 	to 	terminate 	the 	health
insurance 	agreed 	upon 	in 	the 	collective 	bargaining 	agreement
between the parties, 	which expired June 	30, 	1989.
Information 	supplied with your 	charge 	reveals 	the 	following. 	The
parties 	were 	signatory 	to 	a 	collective 	bargaining 	agreement which
expired June 	30, 	1989. 	Article XXII 	of that agreement 	is 	titled,
"Salary and Fringe Benefits." 	Section 22.4 	calls 	for health
insurance 	through the Central Valley Trust. 	Article VIII
contains 	a 	grievance procedure which permits 	"Salary and 	Fringe"
grievances 	to be 	filed by the Association. 	The procedure 	ends 	in
binding arbitration. 	On August 22, 	1989, 	the District's Board of
Trustees 	voted 	to 	terminate 	the 	health 	insurance 	contract with
the Central Valley Trust. 	The plan 	is 	to be terminated by a
30-day notice of termination to be 	given after September 	28, 	1989.
The Association 	and 	the 	District 	are 	bargaining 	over 	a 	new
contract but 	no 	agreement has 	been reached.
Section 	3541.5(a)(2) 	of 	the Educational 	Employment 	Relations Act
(EERA) 	states, 	in pertinent part, 	that PERB,
shall not. 	. 	. 	issue a complaint against
conduct 	also prohibited 	by 	the 	provisions 	of
the. 	. 	. 	[collective bargaining agreement in
effect] 	between the parties 	until the
grievance machinery of the agreement, 	if 	it
exists 	and covers 	the matter at 	issue, 	has
been 	exhausted 	either by 	settlement 	or
binding 	arbitration.
, r.a.~\. -=:=:-,,,-E·RB •;
... ,

In Lake 	Elsinore School District. 	(1987) 	PERB Decision No. 	646,
PERB 	held 	that 	this 	section 	established 	a 	jurisdictional 	rule
requiring that 	a 	charge be dismissed 	and deferred 	if: 	(1) 	the
grievance 	machinery 	of 	the 	agreement 	covers 	the 	matter 	at 	issue
and culminates 	in binding arbitration; 	and, 	(2) 	the conduct
complained 	of 	in 	the unfair practice 	charge 	is 	prohibited by 	the
provisions 	of 	the 	agreement between 	the 	parties. 	PERB 	Rule
32620(b)(5) 	(California Administrative Code title 	8,
section 	32620(b)(5)) 	also 	requires 	the 	investigating 	board 	agent
to 	dismiss 	a 	charge where 	the 	allegations 	are properly 	deferred
to 	binding 	arbitration.
These 	standards 	are met with respect to this 	case. 	First, 	the
grievance 	machinery 	of 	the 	agreement/MOU 	covers 	the 	dispute
raised 	by 	the 	unfair practice 	charge 	and 	culminates 	in 	binding
arbitration. 	Second, 	the 	conduct 	complained 	of 	in this 	charge,
the 	District's 	decision to 	terminate 	the 	agreed 	upon health
insurance, 	is 	arguably prohibited by 	section 	22.4 	of 	the MOU.
In Anaheim City School 	District 	(1983) 	PERB Decision No. 	364,
PERB 	held 	that 	unless 	the parties 	to 	a 	contract 	expressly
indicate a contrary 	intention, 	it 	is presumed that an arbitrator
will 	resolve 	all 	disputes 	"arguably 	arising under 	the 	contract."
In that 	case, 	the 	Board 	found that 	the 	District had 	committed 	an
unfair practice 	by 	refusing to 	arbitrate 	a 	dispute 	that 	involved
unilateral 	acts 	occurring 	subsequent 	to 	expiration of 	the
contract.
In this 	case 	the 	District's 	alleged violation of 	the 	contract
also 	occurred 	subsequent 	to 	the 	expiration of 	the 	contract.
Nothing 	in the parties' 	expired 	contract 	indicates 	that 	an
arbitrator 	should 	not 	resolve 	all 	disputes 	"arguably 	arising
under 	the 	contract," 	including those 	involving 	fringe benefits.
Nor 	have 	the parties 	argued that 	fringe 	benefits 	are 	not 	subject
to the 	grievance and arbitration procedure.
Accordingly, 	this 	charge must be deferred to 	arbitration and will
be dismissed. 	Such dismissal 	is without prejudice 	to the
Charging Party's 	right, 	after arbitration, 	to 	seek a repugnancy
review by 	PERB 	of 	the 	arbitrator's 	decision under the 	Dry Creek
criteria. 	See 	PERB Regulation 	32661 	(California Administrative
Code, 	title 8, 	section 32661); 	Los Angeles Unified School
District 	(1982) 	PERB Decision No. 	218; 	Dr
- y Creek Joint Elementary
School District. 	(1980) 	PERB Order No. 	Ad-81a.
If 	you 	feel 	that 	there 	are any 	factual 	inaccuracies 	in this
letter 	or 	any 	additional 	facts which would require 	a 	different
conclusion than the one 	explained above, 	please amend 	the 	charge
accordingly. 	This 	amended 	charge 	should be prepared 	on a
standard 	PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First
Amended Charge, 	contain all 	the 	facts 	and allegations 	you wish 	to
make, 	and be 	signed under penalty 	of perjury by the 	charging
party. 	The 	amended 	charge must be 	served on the respondent 	and
the 	original proof of 	service must be 	filed with PERB. 	If 	I 	do

not 	receive 	an 	amended 	charge 	or withdrawal 	from you 	before
October 	10, 	1989, 	I 	shall dismiss your charge without leave to
amend. 	If you have 	any questions 	on how to proceed, 	please 	call
me at 	(916) 	322-3198.
Sincerely,
Bernard 	McMonigle
Staff 	Attorney