Fontana Teachers Assn. v. Fontana Unified School Dist.

• Decision Date: 10 May 1988
• Docket Number: No. E003919,E003919
• Citation: 201 Cal.App.3d 1517,247 Cal.Rptr. 761
• Court: California Court of Appeals Court of Appeals
• Parties: , 47 Ed. Law Rep. 225 FONTANA TEACHERS ASSOCIATION, Appellant, v. FONTANA UNIFIED SCHOOL DISTRICT, Respondent.

Page 761

247 Cal.Rptr. 761

201 Cal.App.3d 1517, 47 Ed. Law Rep. 225

FONTANA TEACHERS ASSOCIATION, Appellant, v. FONTANA UNIFIED SCHOOL DISTRICT, Respondent.

No. E003919.

Court of Appeal, Fourth District, Division 2, California.

May 10, 1988.

Review Denied Aug. 17, 1988.

Charles R. Gustafson, Los Angeles, Kirsten L. Zerger, Burlingame, and Rosalind D. Wolf, Los Angeles, for petitioner and appellant

Atkinson, Andelson, Loya, Ruud & Romo and Ronald C. Ruud, San Bernardino, for respondent.

OPINION

McDANIEL, Associate Justice.

FACTS

The Fontana Teachers Association (Association) is the exclusive representative for certificated employees of the Fontana Unified School District (District). Both the Association and the District are parties to a collective bargaining agreement (Agreement) which provides at paragraph 6.1.1 for the filing of grievances by any covered employee who alleges he or she has been "adversely affected by an alleged violation, misinterpretation or misapplication of this Agreement." ¹ The Agreement also allows the Association to submit a grievance to arbitration. ²

Deanna Roach, a probationary kindergarten teacher who had begun teaching in the 1984-1985 school year, was notified by the District, in March 1986, pursuant to Education Code section 44882(b), that her services would not be needed for the 1986-1987 school year. ³ As a consequence of this notice, Ms. Roach filed a grievance alleging the District had violated Article 39 of the Agreement, "Just Cause." According to her grievance, "Notice of Non-Reelection [pursuant to Ed.Code, § 44882(b) ] does not comply with progressive discipline, is punitive and fails to demonstrate good and sufficient reason." The relief sought via the grievance procedure was the rescission of the notice of nonreelection.

The District denied the grievance at every procedural step, asserting that giving notice of non-reelection to a probationary teacher was neither a violation of the Agreement nor grievable. The Association, at the appropriate step of the process, requested that the grievance be submitted to arbitration. The District refused to submit to arbitration, and the Association then filed its petition to compel arbitration. The trial court denied the petition, and the Association has appealed.

ISSUES ON APPEAL

1. Who decides what issues are subject to arbitration, the arbitrator or the court?

2. If the court decides that an issue is subject to arbitration, then is the issue here an issue subject to arbitration?

DISCUSSION

1. The Superior Court May Determine Whether An Issue Is Subject to Arbitration.

On appeal, the Association initially argues that it is up to the arbitrator to determine whether the Agreement covers dismissals, and that therefore its petition to compel arbitration must be granted. The District argues that the superior court properly determined that the court, rather than the arbitrator, has jurisdiction to determine whether a particular issue is a proper subject of arbitration, and that, in fact, the issue of whether the progressive discipline provided for by the Agreement must be followed before a probationary teacher is dismissed is not an issue subject to arbitration.

Code of Civil Procedure section 1281.2 provides that if a petitioner alleges "the existence of a written agreement to arbitrate ... and that a party thereto refuses to arbitrate ... the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, ..." (Emphasis added.)

The right to arbitrate is grounded in contract. (Unimart v. Superior Court (1969) 1 Cal.App.3d 1039, 1045, 82 Cal.Rptr. 249.) A motion to compel arbitration is in essence an action to compel specific performance of the parties' agreement to submit to arbitration. (Harrison v. California State Auto. Assn. Inter-Ins. Bureau (1976) 56 Cal.App.3d 657, 661, 128 Cal.Rptr. 514.) As indicated by the language of section 1281.2, a court may properly interpret the parties' agreement to determine whether or not the parties have agreed to arbitrate a given controversy. An agreement may authorize an arbitrator, rather than a court, to determine whether a given controversy is subject to arbitration, but if it does not, then the court must make this determination. (Retail Clerks Union, Local 775 v. Purity Stores, Inc. (1974) 41 Cal.App.3d 225, 231-232, 116 Cal.Rptr. 40.) The Agreement here does not authorize the arbitrator to determine the scope of what is subject to arbitration, and thus, we conclude that it is still the court's, not the arbitrator's, duty to determine whether or not the parties' agreement to arbitrate covers this particular dispute.

2. The Superior Court Correctly Determined That the Parties' Agreement Does Not Require That Disputes Concerning the Dismissal of a Probationary Teacher Be Submitted to Arbitration.

The collective bargaining Agreement contains an entire article, Article 39, devoted to disciplining unit members. For example, section 39.1 provides, in relevant part, that:

"39.1 No unit member shall be warned, reprimanded, disciplined, reduced in rank, or suspended, with or without pay, without just cause and the utilization by the District of progressive correction and discipline. Section 39.3 provides:

"39.3 Progressive discipline and correction shall include, but not be limited to, the following:"

[ apprisal of the employment standard and consequences of noncompliance.

verbal warning

written warning if there has been a verbal warning about problem within past 6 months . written reprimand if there have been 2 written warnings about similar action within past year].

Notably, Article 39 does not contain any material related to unit member dismissal or non-reelection. Dismissal, as opposed to discipline, is mentioned in sections 39.4 and 39.9, which provide:

"39.4 Nothing in this Article shall be construed to limit or in any way impair the rights of a unit member under the Education Code including Section 44944 governing suspension and dismissals. No unit member shall be suspended more than five (5) working days during a single school year. No suspension shall occur prior to application of the progressive discipline and correction procedure in paragraph 39.3 above, except as provided in section 39.6 herein. No suspension shall occur except after specific action of the Superintendent, or designee. Suspensions shall not be deemed appropriate in cases of purely incompetent job performance. (Emphasis added.)

"39.9 The parties recognize that procedures related to dismissal are presently governed exclusively by the provisions of the Education Code. In no event, however, shall any unit member be terminated without just cause should such provisions be modified." (Emphasis added.)

The Association's position is that statutory changes in the Education Code have modified provisions related to dismissal so as to call into play the application of the progressive discipline requirements of Article 39 before the District may dismiss a unit member. The District's position is that the Agreement does not cover procedures for dismissing probationary teachers, and that in fact the Agreement could not cover such procedures as they are preempted by the Education Code.

Education Code section 44949, entitled "Cause, notice and right to hearing required for dismissal of probationary employee" provided, before its amendment (by Stats.1983, c. 498, § 63, urgency, eff. July 28, 1983) that "The governing board's determination not to reemploy a probationary employee for the ensuing school year shall be for cause only. The determination of the governing board as to the sufficiency of the cause pursuant to this section shall be conclusive, but the cause shall relate solely to the welfare of the schools and pupils thereof. Cause shall include termination of services for the reasons specified in Section 44955, unless a collective agreement has been entered into in accordance with Section 44959.5...." (Ed.Code, § 44949(d).)

In 1983, the language of subdivision (d) quoted above was entirely deleted from section 44949. The substance of the deleted language was transferred to Education Code section 44948.5, subdivision (e), which section is restricted in its application to teachers whose probationary periods commenced before the 1983-1984 fiscal year. Here, Ms. Roach's probationary period began after the 1983-1984 fiscal year, and thus section 44948.5, subdivision (e) was not applicable to her situation. Instead, Education Code section 44882, subdivision (b), as amended in 1983 so as to relate to nonreelection of probationary teachers whose probationary periods began on or after 1983-1984, was applicable.

Section 44882, subdivision (b) provided: "Every employee of a school district ... who, after having been employed by the district for two complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year ... shall, ... be classified as and become a permanent employee ... [p] The governing board shall notify the employee, on or before March 15 of the employee's second complete consecutive school year of employment by the district ..., of the decision to reelect or not reelect the employee for the next succeeding school year.... [p] This subdivision shall apply only to probationary employees whose probationary period commenced during the 1983-84 fiscal year or any fiscal year thereafter."

It is the Association's position that the fact that this section, which governed probationary non-reelections at the time Ms. Roach was dismissed, does not contain any language to the effect that the governing board's determination not to reelect a probationary teacher is "conclusive," indicates that the Legislature no longer intends to vest the determination of sufficiency of cause for termination solely with the district's governing board,...