Bellflower Education Assn. v. Bellflower Unified School Dist.

• Decision Date: 19 March 1991
• Docket Number: No. B048736,B048736
• Citation: 279 Cal.Rptr. 179,228 Cal.App.3d 805
• Court: California Court of Appeals
• Parties: , 136 L.R.R.M. (BNA) 3000, 66 Ed. Law Rep. 362 BELLFLOWER EDUCATION ASSOCIATION, CTA/NEA, Plaintiff and Appellant, v. BELLFLOWER UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

Page 179

279 Cal.Rptr. 179

228 Cal.App.3d 805, 136 L.R.R.M. (BNA) 3000,

66 Ed. Law Rep. 362

BELLFLOWER EDUCATION ASSOCIATION, CTA/NEA, Plaintiff and Appellant, v. BELLFLOWER UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

No. B048736.

Court of Appeal, Second District, Division 5, California.

March 19, 1991.

Review Denied July 17, 1991.

Schwartz, Steinsapir, Dohrmann & Sommers and Michael R. Feinberg, Los Angeles, for plaintiff and appellant.

Eric Bathen, Costa Mesa, for defendant and respondent.

GRIGNON, Associate Justice.

By this appeal, appellant Bellflower Education Association, CTA/NEA (the "Union") seeks reversal of a judgment vacating an arbitration award and requests an order remanding the case to the superior court for confirmation of that award. Respondent Bellflower Unified School District (the "District"), against whom the award issued, maintains that the award was properly vacated as being in excess of the arbitrator's statutory authority. We affirm in part and reverse in part the judgment of the superior court.

FACTS AND PROCEDURAL BACKGROUND

The Union and the District are parties to a collective bargaining agreement encompassing the period July 1, 1987 through June 30, 1990 (the "Agreement"). The Agreement provides, inter alia, for a grievance and arbitration procedure which includes final and binding arbitration of grievances. The Agreement also provides procedures for the evaluation of the performance of certificated employees, i.e., teachers.

During 1988, Glenda McManus, ("grievant" herein), filed three grievances (collectively, the "grievance") against the District in which she claimed that the District had failed to conduct her performance evaluations in accordance with the procedures set forth in the Agreement. Grievant was a probationary teacher during the 1986-87 and 1987-88 school years. On March 9, 1988, the District gave grievant timely notice that she would not be reelected to employment for the 1988-89 school year. ¹ Grievant contended that because the District failed to observe the negotiated procedures for her performance evaluation, she was deprived of a fair opportunity to achieve permanent or tenured status. By her action, she sought to have all derogatory information removed from her personnel file, and also sought reinstatement to an additional year of probationary employment.

On October 11, 1988, the grievance was heard before an arbitrator. The District moved to dismiss the grievance on the ground that it was not arbitrable. The District contended that, under California law, the nonreelection of probationary employees may not be subject to arbitration. The District further argued that the matter was moot, in that any information which grievant wished to have removed from her personnel file was not contained therein and the District would make the file available for grievant's inspection. Following post-hearing briefs on this issue, the arbitrator issued an arbitration decision finding that the matter was arbitrable. The arbitrator reserved judgment as to whether any of the relief sought by grievant was available. The hearing was reconvened on April 8, 1989, and additional briefs were submitted by June 30, 1989. The arbitrator issued his decision and award on October 27, 1989. The arbitrator found that the District had violated the evaluation procedures with respect to grievant, ordered the District to cease and desist from conducting further evaluations in violation of the Agreement, and ordered that grievant be reinstated for an additional probationary year, during which time she was to be evaluated for reelection in accordance with procedures set forth in the Agreement.

On November 2, 1989, the Union filed a petition seeking confirmation of the arbitration award. The District filed a petition to vacate the arbitration award on November 8, 1989. The District maintained in its petition that the nonreelection of probationary employees is not governed by the Agreement between the parties and is preempted by Education Code section 44929.21, as interpreted in Fontana Teachers Association v. Fontana Unified School District (1988) 201 Cal.App.3d 1517, 247 Cal.Rptr. 761. Following hearing on the matter, the trial court issued its judgment on February 23, 1990, denying the petition to confirm the arbitration award and granting the petition to vacate the arbitration award. This appeal followed.

DISCUSSION

California law provides that any probationary employee of a school district with an average daily attendance of 250 or more who completes two consecutive school years in a position requiring certification qualifications and who is reelected for the following school year shall be considered a permanent employee of the district. The District must give notice of nonreelection of probationary employees on or before March 15 of the employee's second probationary year. (Ed.Code, § 44929.21.) Probationary teachers may be nonreelected without any showing of cause, without any statement of reasons, and without any right of appeal or administrative redress. (Grimsley v. Board of Trustees (1987) 189 Cal.App.3d 1440, 235 Cal.Rptr. 85 (interpreting former Ed.Code, § 44882, the language of which is now contained in § 44929.21).)

Government Code section 3543.2, subdivision (a) sets forth the scope of representation under a collective bargaining agreement and provides: "The scope of representation shall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment. 'Terms and conditions of employment' mean ... procedures to be used for the evaluation of employees, ... All matters not specifically enumerated are reserved to the public school employer and may not be a subject of meeting and negotiating...."

Subdivision (b) of section 3543.2 provides that "the public school employer and the exclusive representative shall, upon request of either party, meet and negotiate regarding causes and procedures for disciplinary actions, other than dismissal ... affecting certificated employees."

The Agreement between the District and the Union provides in its Article V for a grievance procedure. A grievance is defined in Article V as an allegation by an employee that the District has violated, misinterpreted or misapplied a provision of the Agreement. Grievances which are not settled at the District level are subject to binding arbitration. Whether a grievance is arbitrable is to be determined by the arbitrator.

Article IX of the Agreement sets forth procedures for the evaluation of the performance of the District's permanent and probationary teachers. There is no language in Article IX which makes it applicable to nonreelection. In fact, Article IX specifically states: "While evaluation procedures may in many cases be related for disciplinary purposes to disciplinary and/or discharge proceedings, discipline and discharge procedures may in appropriate cases be undertaken independently of the evaluation and grievance procedures contained in the Agreement. This provision shall not, however, constitute a waiver of any rights a [teacher] may have to adequate notice of performance deficiencies and adequate opportunity to improve."

Article III of the Agreement concerns rights retained by the District. It provides that all matters which are not enumerated as within the scope of negotiation in Government Code section 3543.2 are retained by the District. It provides further that the District retains the right to "select, classify, direct, utilize, promote, demote, discipline, lay off, terminate and retire any personnel of the District, subject to Education Code restrictions...."

In Fontana Teachers Association v. Fontana Unified School District, supra, 201 Cal.App.3d 1517, 247 Cal.Rptr. 761, a second-year probationary teacher had been notified in a timely manner that she would not be reelected for the coming school year. She filed a grievance pursuant to the terms of a collective bargaining agreement between the teachers' union and the school district, alleging that the school district had not provided just cause for her termination and had not complied with provisions of the collective bargaining agreement relating to disciplinary procedures. The agreement permitted the teachers' union to submit a grievance to arbitration. The agreement did not authorize the arbitrator to determine whether a grievance was arbitrable. The school district maintained that the matter was not grievable and also refused to submit the matter to arbitration. The teachers' union filed a petition to compel arbitration, which was denied by the trial court.

On appeal, the teachers' union argued that nonreelection was, in effect, a dismissal which could be a form of discipline subject to the disciplinary procedures of the collective bargaining agreement. The teachers' union conceded, however, that the arbitrator was without the power to reinstate the teacher. The court concluded that, assuming that dismissal could constitute a form of discipline, it was a particular form of discipline which had been preempted by the Education and Government Codes and was, therefore, not subject to the disciplinary procedures of the agreement. The court also concluded that any other remedy which the arbitrator might order would be of no avail to the teacher who had been dismissed and refused to order arbitration of the grievance.

The District argues that the case at bar is controlled by Fontana. The District submitted to arbitration herein because, unlike the collective bargaining agreement in Fontana, the Agreement here provides that issues of arbitrability must be submitted to arbitration. The District does not challenge the arbitrator's finding that a violation of the evaluation procedures occurred. Rather, the District contends that the arbitrator exceeded his authority in ordering grievant reinstated.

The Union, on the other hand, contends that arbitration of the evaluation procedure...