Desert Sands Unified School District (PERB 1102E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	DESERT
SANDS 	CHAPTER #106,
Charging 	Party,
v.
DESERT SANDS 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-3473
PERB Decision No. 	1102
May 10, 	1995
Appearances: 	California School 	Employees Association by
William C. 	Heath, 	Attorney, 	for California School 	Employees
Association and its Desert Sands 	Chapter #106; 	Breon, 	O'Donnell,
Miller, 	Brown & Dannis by David G. 	Miller, 	Attorney, 	for Desert
Sands 	Unified School 	District.
Before Blair, 	Chair; 	Garcia and Johnson, 	Members.
DECISION
GARCIA, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	California
School 	Employees Association and 	its 	Desert 	Sands 	Chapter 	#106
(CSEA) 	of a Board agent's partial 	dismissal 	of 	its unfair
practice charge 	(attached), 	refusal to issue complaint, 	and
deferral 	to arbitration. 	In its charge, 	CSEA alleged, 	in part,
that 	the 	Desert 	Sands 	Unified School 	District 	(District)
retaliated against 	the 	CSEA chapter president 	for participating
in protected activities 	in violation of 	section 3543.5(a) 	and 	(b)
of 	the 	Educational 	Employment 	Relations Act 	(EERA).1 After a
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	EERA section 3543.5 	states, 	in pertinent
part:
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review of 	the 	record, 	the Board hereby affirms 	and adopts 	the
Board agent's 	partial 	dismissal 	in accordance with 	the 	following
discussion.
BACKGROUND
In his partial 	dismissal 	letter, 	which incorporated by
reference his 	earlier warning letter, 	the Board agent 	cited
section 3541.5(a)2 of 	the EERA and Lake Elsinore School District
(1987) 	PERB Decision No. 	646 	(Lake Elsinore) 	as mandating that
the 	retaliation 	allegation be 	deferred 	to 	arbitration and
dismissed. 	The 	Board agent 	also 	rejected CSEA's 	claim that
resort 	to 	the grievance procedure 	is 	futile.
CSEA filed an appeal 	that 	restates 	the arguments 	it made
before 	the Board agent 	in various ways. 	For example, 	CSEA argues
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2EERA section 3541.5(a)(2) 	states 	that 	PERB 	shall 	not:
(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. . . .
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that 	it 	should be 	excused 	from the 	contractual 	grievance
procedure 	filing 	deadline 	since 	the 	District 	allegedly 	occupied a
stronger position 	than CSEA at 	the bargaining 	table.
Alternatively, 	they allege the 	10-day deadline 	is 	too short, 	and
PERB 	should 	interpret 	EERA section 	3541.5 	so as 	to 	guarantee
availability of 	a decision on the merits 	of 	a 	timely-filed unfair
practice 	charge 	for six months 	in all 	cases, 	regardless 	of 	the
time 	limit agreed to by the parties. 	Therefore, 	PERB 	should find
futility 	in all 	cases where 	the 	time 	limit 	is 	"so short 	that 	it
tends 	to 	interfere with 	the 	right 	to obtain a decision on 	the
merits with 	the 	exercise 	of 	reasonable diligence."
The 	District 	filed an opposition 	to 	CSEA's 	appeal 	on 	several
points. 	First, 	the District 	explains 	its agreement with the
Board 	agent's 	conclusion 	that 	the 	retaliation allegation was
properly 	dismissed and deferred 	to 	arbitration pursuant 	to 	the
parties' 	collective bargaining agreement 	(agreement). 	Secondly,
the 	futility exception has 	only been applied 	in 	limited 	cases,
for example when 	the 	integrity of 	the 	arbitration process 	itself
was 	at 	issue,3 or when the 	arbitrator would 	lack authority 	to
award 	a 	contractual 	remedy because 	the 	employee 	organization had
no 	right 	to 	file a grievance 	on 	its 	own behalf.4 The 	contractual
grievance 	filing deadline 	is 	the 	result 	of 	a collectively
3 California State University 	(1984) 	PERB Decision No. 	392-H.
4Inglewood Unified School District 	(1991) 	PERB Order
No. Ad-222.
33

negotiated agreement between the parties. 	Thus, 	the District
argues that:
The parties have divested PERB of 	.
jurisdiction 	in 	this matter by 	the 	terms 	and
conditions 	of 	the 	collectively negotiated
agreement. 	. 	. 	. 	PERB's jurisdiction . 	. 	.
should 	[not] 	be 	extended by the 	failure 	of 	a
party to act.
DISCUSSION
CSEA's 	futility argument 	is 	essentially a 	restatement 	of
their arguments 	that 	failed before 	the Board agent. 	The 	Board
agent 	addressed 	the 	futility 	argument 	thoroughly 	in 	the 	partial
dismissal 	letter, 	yet 	CSEA now urges 	the 	Board to 	find 	"futility"
by 	taking 	apart 	the 	jurisdictional 	statute 	and putting 	it 	back
together in various 	creative ways, 	with no persuasive 	legal
rationale 	for doing 	so.
For 	example, 	CSEA urges 	us 	to 	find 	futility because 	the
District 	failed to waive the 	10-day time limit; 	therefore, 	if
CSEA were 	to 	request 	arbitration now, 	the District may raise 	the
procedural defense of Untimeliness, 	which, 	according to CSEA,
would amount 	to 	futility. 	CSEA acknowledges 	that 	since 	Lake
Elsinore. 	PERB has held that 	the waiver or nonwaiver of
procedural 	defenses 	to arbitration 	is 	irrelevant 	to 	the 	issue 	of
deferral 	under EERA. 	However, 	in this appeal 	CSEA argues 	that
rule 	should not 	apply whenever 	the 	contractual 	grievance 	time
limit 	is 	shorter 	than the 	six-month 	limit 	selected by 	the
Legislature 	as 	appropriate 	for unfair practice 	charges.
Apparently under CSEA's proposal, 	regardless 	of 	the 	contractual
44

time 	limit, 	so long as a party files a grievance within six
months, 	PERB 	could 	find futility and issue a complaint:
PERB 	should 	interpret 	the 	futility exception
to 	the 	limitation on 	its 	jurisdiction so as
to protect 	a party's 	right 	to a decision on
the merits 	of 	a 	timely-filed unfair practice
charge. 	[CSEA's appeal, 	p. 	8.]
CSEA's argument, 	of course, 	conflicts with Eureka City
School District 	(1988) 	PERB Decision No. 	702, 	where the Board
held 	that 	PERB 	has 	no authority 	to 	exercise 	its 	jurisdiction 	to
issue a 	complaint until 	or unless 	the 	grievance process 	is
exhausted or 	futility is 	demonstrated, 	irrespective 	of 	respondent
employer's 	unwillingness 	to waive procedural 	defenses 	such as
timeliness.
Furthermore, 	California case 	law directs 	courts 	to refrain
from considering disputes 	until 	the parties 	to 	the 	dispute 	have
exhausted 	internal 	remedies 	under 	the 	terms 	of 	their grievance
agreement. 	For example, 	in Cone v. 	Union Oil Co. 	(1954) 	129
Cal.App.2d 558 	[277 	P.2d 464], 	the Court of Appeal 	held that:
It 	is 	the general 	rule 	that a party to a
collective 	bargaining 	contract 	which provides
grievance 	and arbitration machinery 	for 	the
settlement 	of 	disputes within the 	scope 	of
such 	contract must 	exhaust 	these 	internal
remedies before 	resorting 	to 	the 	courts 	in
the 	absence 	of 	facts which would excuse him
from pursuing 	such 	remedies. 	[Citations.]
. 	. 	. 	Such procedures, 	which have been worked
out 	and adopted by 	the parties 	themselves,
must 	be pursued 	to 	their 	conclusion before
judicial 	action may be 	instituted unless
circumstances 	exist 	which would 	excuse 	the
failure 	to 	follow through with 	the 	contract
remedies. 	[Id. 	at pp. 	563-564.]
55

That policy has 	been codified by EERA section 3541.5(a)(2)5
and as 	early as 	1982, 	in Chaffey Joint Union High School 	District
(1982) 	PERB Decision No. 	202, 	the Board held that:
EERA clearly 	indicates 	that 	the 	Legislature
intended 	the grievance procedure 	to be 	a
preferred method 	of 	settling 	job 	disputes 	and
improving employment 	relations [Id. at p. 	8,
citing EERA section 3541.5(a)(2)].
Finally, 	expanding 	the Board's 	jurisdiction 	in the 	fashion
urged by CSEA is beyond 	the Board's power. 	The 	jurisdictional
statute 	directs 	the Board to defer 	its 	jurisdiction 	in accord
with 	the 	grievance 	agreement 	of 	the parties 	and does 	not
authorize 	the Board 	to 	substitute 	terms 	and conditions 	of 	the
agreement. . CSEA's failure to exercise the grievance process in
accord with 	the 	terms 	and 	conditions 	it 	agreed 	to may preclude
further pursuit 	of 	the grievance process, 	including arbitration,
but 	that 	does 	not 	create 	futility.
5EERA section 3541.5 provides, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the board
shall 	not 	. . . .
(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.
66

ORDER
The 	Board hereby AFFIRMS 	the 	Board agent's 	partial 	dismissal
of the unfair practice charge in Case No. 	LA-CE-3473.
Chair Blair and Member Johnson joined 	in this Decision.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
L06 Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
January 24, 	1995
William C. 	Heath, 	Deputy Chief Counsel
California 	School 	Employees 	Association
2045 	Lundy Avenue
San Jose, 	California 	95131
Re: 	PARTIAL DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT 	(DEFERRAL
TO ARBITRATION), 	Unfair Practice Charge No. 	LA-CE-3473,
California School 	Employees Association and 	its 	Desert 	Sands
Chapter #106 v. 	Desert 	Sands Unified School 	District
Dear Mr. 	Heath:
In 	the above-referenced 	charge, 	the 	California School 	Employees
Association and 	its 	De3ert 	Sands 	Chapter #106 	(CSEA or
Association) 	alleges 	in part 	that 	the Desert Sands Unified School
District 	(District) 	retaliated against Association President
Bertha Bastidas 	(Bastidas). 	This 	conduct 	is alleged to violate
Government Code sections 	3543.5(a) 	and 	(b) 	of 	the Educational
Employment 	Relations Act.
I 	indicated to you, 	in my attached letter dated January 12, 	1995,
that 	certain 	allegations 	contained 	in 	the 	above-referenced 	charge
were 	subject 	to deferral 	to arbitration. 	You were advised that,
if 	there were any 	factual 	inaccuracies 	or additional 	facts which
would 	correct 	the deficiencies 	explained in that 	letter, 	you
should amend the 	charge. 	You were 	further advised that, 	unless
you 	amended 	these 	allegations 	or withdrew 	them prior 	to January
19, 	1995, 	they would be dismissed. 	This deadline was 	later
extended.
On January 23, 	1995, 	I 	received from you a Second Amended Charge.
This 	amended 	charge 	specifically alleges 	that 	the District 	has
not 	waived 	or 	extended 	the 	ten-day limit 	for 	filing a grievance.
This 	fact, 	although it had not previously been specifically
alleged, 	was noted in my January 12 	letter.
In a 	letter accompanying the amended charge, 	you argue 	that
resort 	to the grievance procedure 	is now futile, 	because the
ten-day limit 	has passed and has not been waived. 	Since Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646, 	however,
PERB has 	held 	that 	the 	waiver or non-waiver of procedural
defenses 	to arbitration 	is 	irrelevant 	to deferral 	under EERA.
You argue that 	the parties 	cannot, 	by agreement, 	divest 	PERB of
its 	jurisdiction, 	but 	this 	is not quite true. 	Under EERA section
3541.5(a), 	the parties 	can "divest" 	PERB of jurisdiction by
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LA-CE-3473
January 24, 	1995
Page 2
agreeing 	to a 	grievance procedure 	that 	covers 	the dispute 	and
culminates 	in binding arbitration. 	What 	neither party can do 	is
extend PERB's 	jurisdiction by the party's 	own 	inaction. 	(Lake
Elsinore School District, 	supra: 	Eureka City School District 	--
(1987) 	PERB Decision No. 	646.
·--	 ) 	CSEA's failure to file a
grievance within 	the 	ten-day period thus 	does 	not 	give 	PERB
jurisdiction which 	it 	otherwise would not 	have.
I 	am therefore 	dismissing 	those 	allegations 	which are 	subject 	to
deferral 	to arbitration based on the 	facts and reasons 	contained
in 	this 	letter and my January 12 	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. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United States mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., 	tit. 	8, 	sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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.
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LA-CE-3473
January 24, 	1995
Page 3
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. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	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,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
By THOMAS J. 	ALLEN
Regional 	Attorney
Attachment
cc: 	David G. 	Miller, 	Esq.
( 	-, 	I (
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
January 12, 	1995
William C. 	Heath, 	Deputy Chief 	Counsel
California 	School 	Employees Association
2045 	Lundy Avenue
San Jose, 	California 	95131
Re: 	PARTIAL WARNING LETTER 	(DEFERRAL TO ARBITRATION), 	Unfair
Practice Charge No. 	LA-CE-3473, 	California School Employees
Association and its Desert 	Sands 	Chapter #106 v. 	Desert
Sands 	Unified 	School 	District
Dear Mr. 	Heath:
In 	the 	above-referenced 	charge, 	the 	California School 	Employees
Association and 	its Desert 	Sands 	Chapter #106 	(CSEA or
Association) 	alleges 	in part 	that 	the Desert 	Sands Unified School
District 	(District) 	retaliated against Association 	President
Bertha Bastidas 	(Bastidas). 	This 	conduct 	is alleged to violate
Government Code 	sections 3543.5(a) 	and 	(b) 	of 	the Educational
Employment Relations Act.
My 	investigation 	of 	this 	charge 	reveals 	the 	following 	relevant
facts.
The 	charge alleges 	that 	during the 	spring of 	1994 Bastidas, 	in
her 	capacity as Association 	President, 	negotiated with 	the
District 	concerning 	the 	approval 	of 	a 	charter school 	petition and
opposed the District's unilateral 	approval 	of 	the petition. 	The
charge further alleges 	that 	in retaliation, 	on April 20, 	1994,
District 	Food Services 	Manager Joy Woods 	ordered Bastidas 	to
"refrain 	from contacting 	any 	employees 	during 	their work hours
regarding C.S.E.A. 	issues."
There 	is 	a 	collective bargaining agreement 	in effect between 	the
Association and the District 	for the 	term November 1, 	1992,
through October 31, 	1995. 	Article 	IV 	("Employee Rights") 	states
in full as 	follows:
The District 	and 	the Association 	recognize
the 	right 	of 	employees 	to participate 	in
lawful 	employee 	organization activities 	and
the 	equal 	alternative 	to refrain from
participating 	in 	employee 	organization
activities.

-. . _
LA-CE-3473
January 12, 	1995
Page 	2
Article 	XXVI 	("Grievance/Arbitration 	Procedure") 	provides 	for
binding arbitration of 	grievances. 	The 	charge 	states 	that
"resort 	to the grievance process, 	at this point, 	would be 	futile
since 	the 	time 	limit 	for 	filing a grievance 	is 	ten days." 	This
ten-day limit, 	established by Article XXVI, 	section C.2., 	has not
been waived by 	the 	District.
Based on the 	facts 	stated above, 	the 	retaliation allegation must
be 	deferred 	to 	arbitration and dismissed.
Section 3541.5(a) 	of 	the 	Educational 	Employment Relations Act
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.
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 Regulation
32620(b)(5) 	(Cal. Code of Regs., 	tit. 	8, 	sec. 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 	the 	retaliation
allegation in this 	case. 	First, 	the grievance machinery of 	the
agreement 	covers 	the 	dispute 	raised by 	the allegation and
culminates 	in binding arbitration. 	Second, 	the 	conduct
complained of 	in the allegation, 	that 	the District 	retaliated
against 	Bastidas because 	of 	her lawful 	activities 	as Association
President, 	is arguably prohibited by Article IV of 	the agreement.
In Eureka City School District 	(1988) 	PERB Decision No. 	702, 	PERB
rejected 	the 	argument 	that 	PERB has 	jurisdiction when arbitration
is 	no 	longer available 	due 	to 	the 	charging party's 	inaction
and/or 	the 	respondent's 	unwillingness 	to waive procedural
defenses, 	such as time limits.
Accordingly, 	the 	retaliation allegation must be 	deferred 	to
arbitration and will be 	dismissed. 	Such dismissal 	is without
prejudice 	to the Charging Party's right, 	after arbitration, 	to
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LA-CE-3473
January 12, 	1995
Page 3
seek a 	repugnancy 	review by 	PERB 	of 	the 	arbitrator's 	decision
under the Dry Creek criteria. 	(See PERB Reg. 	32661 	[Cal. 	Code of-
Regs., 	tit. 	8, 	sec. 	32661]; 	Los Angeles Unified School District
(1982) 	PERB Decision No. 	218; 	Dry Creek Joint Elementary School
District 	(1980) 	PERB Order No. 	Ad-81a.)
If 	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. 	The amended
charge 	should be 	prepared 	on 	a 	standard 	PERB 	unfair practice
charge 	form clearly labeled 	First Amended Charge, 	contain al
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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 	filed with PERB. 	If 	I do not 	receive an amended charge
or withdrawal 	from you before January 19, 	1995, 	I 	shall 	dismiss
the 	retaliation allegation without 	leave 	to amend. 	If 	you have
any questions, 	please call me at 	(213) 	736-3542.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
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