Calipatria Unified School District (PERB A193E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIPATRIA 	UNIFIED
	TEACHERS
ASSOCIATION,
Charging
	Party,
v.
CALIPATRIA 	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
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___________________
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Case
	No.
	LA-CE-2792
Administrative
	Appeal
PERB
	Order
	No. 	Ad-193
September 	15,
	1989
Appearance:	
Littler,
	Mendelson,
	Fastiff	
&	
Tichy
	by
	Hector
	E.
Salitrero,
	Attorney,
	for
	Calipatria
	Unified
	School
	District.
Before
	Hesse,
	Chairperson;
	Porter
	and 	Shank,
	Members.
DECISION
HESSE,
	Chairperson: 	This	
is	
before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
	Calipatria
Unified
	School
	District 	(District)
	of
	the 	administrative
	law
judge's
	(ALJ)
	denial
	of 	the
	District's
	motion
	to 	defer 	to
arbitration
	the 	matters 	alleged 	in 	the 	complaint.
	The
	District
also
	filed
	a
	motion
	to 	stay 	the 	hearing
	pending
	the 	Board's
decision
	on
	the
	District's
	appeal.
1
The
	ALJ
	denied
	the
	District
1 s
	motion, 	having
	found
	that,
while 	the 	collective
	bargaining
	agreement
	contained
	a
	binding
arbitration
	provision, 	the 	provisions 	of 	the 	collective
bargaining
	agreement
	did 	not 	cover 	the 	matter
	at 	issue.
	As
	an
1
on 	June 	9, 	1989,
	the
	Board, 	by
	its
	own
	motion, 	ordered
	that
the 	hearing 	in 	the 	above-captioned 	case 	be 	stayed 	pending
	the
Board's 	decision
	on
	the 	District
1 s
	request 	for 	stay 	of 	hearingand 	appeal 	of 	the 	denial 	of
	a
	motion 	to 	dismiss 	the 	complaint 	and
defer 	the 	unfair 	practice 	charge 	to 	final
	and 	binding
arbitration. 	(Order 	No. 	Ad-186.)

additional
	basis
	for
	denying
	the
	motion
	to 	defer,
	the
	ALJ
	stated
that,
	even
	if
	there
	were
	a
	provision
	in
	the
	collective
	bargaining
agreement
	prohibiting
	the
	conduct
	alleged
	in 	the
	complaint,
	the
grievance
	machinery
	did
	not 	cover
	the 	matter
	at
	issue
	because
	the
Calipatr~a
	Unified
	Teachers
	Association 	(Association)
	does
	not
have
	the
	power
	to
	file
	a
	grievance
	in
	its
	own 	name
	covering
	the
allegations
	in 	the
	complaint.
	For
	the
	reasons
	set
	forth
	below,
we
	affirm
	the
	ALJ's
	denial
	of 	the
	motion
	to 	defer
	and
	dissolve
the
	stay
	of 	hearing 	granted
	by
	the
	Board 	on
	June 	9,
	1989.
FACTS
On
	October
	7 1
	1988,
	the 	Association
	filed
	an
	unfair
	practice
charge
	alleging
	that
	the
	District
	violated 	section
	3543.S(b),
(c),
	and 	(e)
	of
	the
	Educational
	Employment
	Relations
	Act
	(EERA) 2
by:
	(1)
	denying
	the 	Association
	rights
	guaranteed
	by
	EERA;
	(2)
refusing 	to
	meet 	and
	negotiate 	in
	good
	faith;
	and 	(3)
	refusing 	to
2EERA
	is
	codified
	at
	Government
	Code
	section
	3540
	et
	seq.Unless 	otherwise
	indicated,
	all
	statutory
	references 	herein 	are
to 	the
	Government 	Code.
	Section
	3543
	states,
	in 	pertinent 	part:
It
	shall
	be
	unlawful
	for
	a
	public 	schoolemployer
	to:
(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.
(e) 	Refuse
	to 	participate 	in
	good
	faith 	in
the 	impasse 	procedure 	set 	forth 	in 	Article
	9
(commencing with 	Section 	3548).
2

participate
	in
	good
	faith
	in 	the
	impasse
	procedures.
	On
	February
10,
	1989,
	the 	regional 	attorney
	dismissed
	the
	section
	3543.S(c)
allegation 	that
	the
	District
	refused
	to 	negotiate
	in
	good
	faith,
and,
	on
	that
	same
	date,
	issued
	a
	complaint
	alleging
	that
	the
District
	failed
	and
	refused
	to
	participate
	in
	good
	faith 	in
	the
impasse
	procedures
	in 	violation
	of
	section
	3543.S(e),
	and,
derivatively,
	section
	3543.S(a)
	and 	(b)
. 	On
	March	
2 I	
1989,
	the
District
	filed
	its
	answer
	and
	a
	motion
	to 	defer 	to
	binding
arbitration.
	In
	its
	motion,
	the
	District
	argues
	that
	the
allegation
	in 	the
	complaint,
	that
	the
	District
	failed 	to
participate
	in
	good
	faith
	in 	the
	impasse
	procedures,
	is
	also
	an
allegation
	of 	the
	failure
	to
	meet 	and
	negotiate 	in
	good
	faith
	in
violation
	of
	Article
	XXI 3
of
	the
	collective
	bargaining 	agreement.
3
The
	District
	and
	the 	Association
	were
	parties 	to
	a
collective
	bargaining
	agreement
	effective
	1986-87, 	which
	expired
on
	June
	30, 	1987.
	Subsequently, 	the
	parties
	reached 	agreement
	to
extend 	the
	collective
	bargaining
	agreement 	through 	June 	30, 	1988,
and
	then
	reached 	agreement
	on
	a
	successor
	collective
	bargaining
agreement.
	The
	collective
	bargaining
	agreements
	and
	extensions
all
	contained
	identical
	provisions 	for
	final
	and
	binding
arbitration
	(Article
	IV)
	and
	negotiation
	procedures
	(Article
XXI).
Article
	XXI
	states:
Not
	later
	than 	the
	first
	Board 	meeting
	in
February 	of 	the 	calendar 	year 	in
	which
	this
Agreement
	expires, 	the
	Board
	shall
	meet 	and
negotiate 	in
	good
	faith
	with 	the 	Association
on
	negotiable 	items.
	Any
	agreement 	reached
between
	the 	parties 	shall
	be 	reduced
	to
writing
	and
	signed
	by 	them.
Either 	party
	may
	utilize
	the 	services 	of
outside 	consultants 	to 	assist 	in 	the
negotiations.
3

The
	Board 	and
	the 	Association
	may
	discharge
their
	respective 	duties
	by 	means
	of
authorized
	officers,
	individual
representatives,
	or
	committees.
Negotiations
	shall
	take 	place
	at
	mutually
agreeable
	times
	and
	places.
	Meetings,
	and
any
	adjourned
	portions 	thereof, 	shall
	be
	held
within
	a
	reasonable
	time
	after
	receipt
	of
written 	requests,
	provided
	that
	there
	is
	no
more
	than
	one
	scheduled 	meeting
	per
	week
unless
	by
	mutual
	consent.
When
	given
	a
	specific 	request, 	the
	Board
shall
	furnish 	the 	Association 	with
	two
	copies
of
	all
	county
	and
	state
	required 	reports
	assoon 	as 	they 	are 	transmitted 	to 	the
	county
	or
state,
	and
	copies 	of
	all
	budgetary
	and
	otherinformation
	it
	produces
	that 	are 	requested
	by
the 	Association 	to
	fulfill 	its
	role
	as
	theexclusive 	bargaining 	representative
	as 	soon
as
	it
	becomes
	available.
The
	Association 	shall 	designate
	two 	(2)
representatives
	who
	shall 	receive
	a
reasonable
	amount
	of 	release 	time without
loss 	of 	compensation 	to 	attend 	negotiations,
one
	representative 	for 	the 	processing 	of
grievances,
	and 	any
	others 	participating 	inthe 	hearing.
The
	motion
	was
	denied
	by
	the
	ALJ 	who
	concluded
	that,
	while
Article
	XXI
	arguably
	prohibits
	the
	District
	from
	failing 	or
refusing 	to
	meet 	and
	negotiate 	in
	good
	faith,
	there
	is
	no
provision
	arguably
	proscribing 	the
	District's
	failure
	to
participate
	in
	good
	faith
	in
	PERB's
	impasse
	procedures.
	Even
	if
there
	were
	a
	provision
	in
	the
	collective
	bargaining
	agreement
prohibiting
	the
	conduct
	alleged 	in
	the
	complaint,
	the
	ALJ
	found
that
	the
	grievance
	machinery
	did 	not
	cover
	the 	matter
	at
	issue
4

because
	the 	Association
	does
	not
	have
	the
	power
	to
	file
	a
4
grievance.
On 	May
	23,
	1989,
	the
	District
	appealed
	the
	ALJ's
	denial
	of
its
	motion
	to 	defer 	to
	arbitration
	and
	moved
	to 	stay 	the 	hearing
pending
	a
	decision
	of
	the
	Board
	on
	its
	appeal.
	The
	District
	also
requested
	that
	the
	Board
	stay 	the 	hearing
	pending
	the 	Board's
4
Article
	IV
	states,
	in pertinent 	part:
A.
	Definitions
1.
	A
	"grievance"
	is
	a
	formal
	written
allegation
	by
	a
	bargaining
	unit
	member
who
	has 	been
	adversely
	affected
	by
	a
violation
	of
	the
	specific
	provisions 	of
this
	Agreement.
	Actions
	to 	challenge 	or
change
	the
	policies
	of 	the
	District
	as
set 	forth 	in
	Board
	Policies 	or
procedures 	adopted
	by
	the
	Superintendent
or 	his
	designee
	must 	be
	undertaken 	under
separate 	legal 	processes.
	Other
	matters
for
	which
	a
	specific
	method
	of
	review
	is
provided
	by
	law
	or
	by
	rules
	of 	the
employer
	are
	not
	within 	the
	scope
	of
this
	procedure
2.
	A
	"grievant"
	is
	a
	member
	of 	the 	unit.
C.
	Formal
	Levels
3. 	Step
	3
c.
	Any
	award
	of 	the
	arbitrator 	shall
be
	advisory
	on
	the 	grievant, 	the
Association
	and
	the 	District.
	The
award 	of 	the 	arbitrator 	shall
	be
binding 	on
	grievances 	concerning
alleged 	violations 	occurring 	after
July 	1, 	1985.
5

decision 	in 	Chula 	Vista 	City 	School 	District, 	Case 	No. 	LA-CE-
2038, 	regarding 	whether 	an 	employee 	organization 	has 	the 	right 	to
file 	a 	grievance.
DISCUSSION
In 	determining 	the 	distinction 	between 	the 	duty 	to 	meet 	and
negotiate 	in 	good 	faith 	and 	the 	duty 	to 	participate 	in 	good 	faith
in 	the 	impasse 	procedures, 	the 	statutory 	definitions 	of 	"impasse"
and 	"meeting 	and 	negotiating" 	are 	helpful.
Section 	3540.1 	states, 	in 	pertinent 	part:
(f) 	11 Impasse" 	means 	that 	the 	parties 	to 	a
dispute 	over 	matters 	within 	the 	scope 	of
representation 	have 	reached 	a 	point 	in
meeting 	and 	negotiating 	at 	which 	their
differences 	in 	positions 	are 	so 	substantial
or 	prolonged 	that 	future 	meetings 	would 	be
futile.
(h) 	"Meeting 	and 	negotiating" 	means 	meeting,
conferring, 	negotiating, 	and 	discussing 	by
the 	exclusive 	representative 	and 	the 	public
school 	employer 	in 	a 	good 	faith 	effort 	to
reach 	agreement 	on 	matters 	within 	the 	scope
of 	representation 	and 	the 	execution, 	if
requested 	by 	either party, 	of 	a 	written
document 	incorporating 	any 	agreements
reached, 	which 	document 	shall, 	when 	accepted
by 	the 	exclusive 	representative 	and 	the
public 	school 	employer, 	become 	binding 	upon
both 	parties 	and, 	notwithstanding 	Section
3543.7, 	shall 	not 	be 	subject 	to 	subdivision 	2
of 	Section 	1667 	of 	the 	Civil 	Code. 	The
agreement 	may 	be 	for 	a 	period 	of 	not 	to
exceed 	three 	years.
Significantly, 	there 	is 	no 	mention 	of 	"impasse" 	in 	the
definition 	of 	"meeting 	and 	negotiating." 	The 	fact 	that 	section
3543.5 	has 	two 	separate 	subdivisions 	for 	refusal 	or 	failure 	to
6

meet 	and
	negotiate
	in
	good
	faith
	and
	refusal
	to
	participate
	in
good
	faith
	in
	the
	impasse
	procedures,
	along
	with
	separate
definitions
	for
	"meeting
	and
	negotiating"
	and
	"impasse,"
indicates 	that
	section
	3543.S(e)
	is
	a
	separate
	violation
	from
section
	3543.5(c).
	Additionally, 	the
	fact 	that
	EERA
	specifically
sets
	forth
	the
	impasse
	procedures 	demonstrates
	that
	the
	impasse
procedures 	are 	separate
	and
	distinct
	from
	the
	duty
	to
	meet
	and
negotiate 	in
	good
	faith.
This 	conclusion
	is
	consistent
	with
	the
	court's
	analysis 	in
Moreno
	Valley 	Unified
	School
	District
	v.
	Public
	Employment
Relations
	Board 	(1983)
	142
	Cal.App.3d
	191, 	where
	the 	court
	found
that
	section
	3543.5(c)
	and
	(e)
	constitutes
	separate
	unlawful
practices. 	Specifically,
	the 	court
	stated:
The
	statutory
	scheme
	unmistakably
	comprehends
that
	an 	impasse
	may
	be
	declared
	only
	when
meeting
	and
	negotiating
	have
	come
	to
	an 	end.
This
	is
	further
	borne
	out
	by
	the
	fact 	thatfailure 	to
	meet 	and
	negotiate 	in
	good
	faith,
and
	failure
	to
	participate 	in
	good
	faith
	inthe 	statutory
	impasse
	procedure, 	are
	made
separate
	unlawful
	practices 	for
	bothemployers 	and 	employee
	organizations.
	If
participation 	in 	the
	meeting
	and
	negotiating
process 	included
	participating 	in 	the
	impasse
procedure, 	sections
	3543.5,
	subdivision
	(e)and 	3543.6,
	subdivision
	(d) 	would 	be 	wholly
superfluous.
(Id.
	at
	p. 	202; 	emphasis
	in 	original.)
Clearly, 	the 	statute
	demonstrates
	that 	the 	refusal 	to 	participate
in
	good
	faith 	in 	the
	impasse 	procedures
	is
	a
	separate 	unlawful
practice.
As
	the
	Board
	finds 	that 	there 	is
	no
	deferral 	to 	arbitration
pursuant 	to 	the 	collective 	bargaining 	agreement, 	the
	Board 	does
7

not 	need 	to 	address 	the 	issue 	of 	whether 	the 	Association 	has 	the
statutory 	right 	to 	file 	a 	grievance. 	Consequently, 	the 	Board
denies 	the 	District's 	request 	for 	stay 	of 	hearing 	pending 	the
Board's 	decision 	in Chula 	Vista 	City 	School 	District, 	Case 	No.
LA-CE-2038.
ORDER
The 	Board 	hereby 	DISSOLVES 	the 	order 	for 	stay 	(Order 	No.
Ad-186), 	DENIES 	the 	request 	for 	stay 	pending 	Chula 	Vista 	City
School 	District, 	Case 	No. 	LA-CE-2038, 	DENIES 	the 	appeal 	of 	the
ALJ 	dismissal, 	and 	ORDERS 	the ALJ 	to 	schedule 	a 	hearing 	on 	the
merits 	of 	the 	complaint 	in 	Case 	No. 	LA-CE-2792.
Members 	Porter 	and 	Shank 	joined 	in 	this 	Decision.
8