United Steelworkers of America v. Board of Education

• Decision Date: 17 December 1984
• Docket Number: P,AFL-CI,No. E000746,E000746
• Citation: 209 Cal.Rptr. 16,162 Cal.App.3d 823
• Court: California Court of Appeals Court of Appeals
• Parties: , 21 Ed. Law Rep. 935 LOCAL 8599, UNITED STEELWORKERS OF AMERICA,laintiff and Appellant, v. BOARD OF EDUCATION OF the FONTANA UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

Page 16

209 Cal.Rptr. 16

162 Cal.App.3d 823, 21 Ed. Law Rep. 935

LOCAL 8599, UNITED STEELWORKERS OF AMERICA, AFL-CIO, Plaintiff and Appellant, v. BOARD OF EDUCATION OF the FONTANA UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

No. E000746.

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

Dec. 17, 1984.

Hearing Denied March 21, 1985. ^*

Dennis M. Sullivan, Jeffrey Sloan, Sacramento, Andrea L. Biren, San Francisco, Peter A. Janiak, Madalyn J. Frazzini, E. Luis Saenz, Maureen C. Whelan, San Jose, Marcia L. Meyers, Oakland, Marci B. Seville, William C. Heath, and Harry J. Gibbons, Jr., San Jose, as amici curiae on behalf of plaintiff and appellant.

Wagner, Sisneros & Wagner, and John J. Wagner, Burbank, for defendant and respondent.

MORRIS, Presiding Justice.

Plaintiff, Local 8599, United Steelworkers of America, AFL-CIO (Union), appeals from a judgment denying its petition to compel arbitration. (Code Civ.Proc., §§ 1281.2, 1290.) On appeal the Union contends that the petition to compel arbitration should have been granted because a school district is not statutorily barred from delegating final disciplinary authority over classified employees to a neutral arbitrator pursuant to a collectively bargained agreement. We affirm.

FACTS

This case involves the discharge of a permanent classified employee of the Fontana Unified School District (District). Ms. Upshaw was a bus driver, and as a member of the classified service she was subject to disciplinary action only for cause pursuant to the provisions of Education Code section 45113.

On March 17, 1983, Ms. Upshaw was given notice of her suspension and termination, and that she had a right to a hearing on the charges supporting the suspension and termination. She demanded a hearing. A hearing was held before the governing board on May 17, 1983. At the conclusion of the hearing the governing board determined that Ms. Upshaw should be terminated.

In March, 1983, plaintiff Union filed a grievance on behalf of Ms. Upshaw protesting her suspension and discharge. The Union is the exclusive representative of the classified employees of the District, pursuant to the provisions of Government Code section 3540 et seq. In that capacity the Union has an obligation to represent the individual employees of the District in collective bargaining matters.

At all relevant times a master contract was in effect between the District and the Union. The contract established a five-step grievance procedure. Article 16 states that "when ... a recommendation of termination is being submitted to the Board ... a grievance may be filed by the employee...." Article 17 provides the basis for a grievance: "alleged misrepresentation, misapplication or violation of the Agreement by the District."

Step IV of the grievance procedure provides for review by the Board of Education. Step V provides that: "If the grievant is not satisfied with the disposition of the grievance at Step IV ... the International Union may, within ten (10) days after a written decision is rendered, or should have The applicability of step V to disciplinary situations, however, is subject to the provisions of article 6 of the contract. Article 6 provides that "the District retains all of its powers and authority to ... terminate and discipline for just cause.... [p] ... limited only by the specific and express terms of this Agreement, then only to the extent such specific and express terms are in conformance with the law."

been rendered, by written notice to the Superintendent, elect to submit the grievance to arbitration.... [p] The decision of the arbitrator shall be final and binding upon the parties."

On June 16, 1983, after the governing board hearing and dismissal of Ms. Upshaw, the Union suggested in writing that step V, binding arbitration, was appropriate. On August 29, 1983, the District responded that it would not arbitrate, that the request for arbitration was untimely, and that regardless "[a]ny remedy that Ms. Upshaw had pertaining to her discharge was by way of a petition for Writ of Mandate [pursuant to Code of Civil Procedure section 1094.5]."

The District's response referred to Education Code section 45113. Education Code section 45113 provides that a permanent classified employee can only be terminated for cause, but that "the governing board's determination of the sufficiency of the cause for disciplinary action shall be conclusive."

On November 29, 1983, the Union filed a verified petition in the San Bernardino Superior Court for an order compelling arbitration of its grievance of Ms. Upshaw's discharge pursuant to Code of Civil Procedure sections 1281.2 and 1290. The District filed an answer.

The superior court denied the Union's petition on the ground that step V of the contract grievance procedure requiring submission to binding arbitration of the cause for terminating Ms. Upshaw was an impermissive alteration of the statutory provisions of Education Code section 45113. The court also held, however, in the event of appeal, that the step V request for arbitration by the Union has been procedurally adequate.

The Union has appealed.

DISCUSSION

Overview

The overall position of the Union is that a school district may delegate final disciplinary authority over classified employees, including dismissal, to a neutral arbitrator. This conclusion is based upon two premises: (1) that the Educational Employment Relations Act of 1976 (EERA) (Gov.Code, § 3540 et seq.) allows collective bargaining of procedures and criteria for disciplinary action, including dismissal, to the extent not in conflict with the Education Code, and (2) that the prohibition of the EERA against superseding the Education Code (Gov.Code, § 3540) is not violated here, because the EERA provisions are harmonious with the provision of Education Code section 45113 that the governing board's determination regarding disciplinary action of permanent classified employees is conclusive.

While we agree with the Union's first premise, we disagree with their second premise. Accordingly, we hold that school districts subject to Education Code section 45113 are precluded from subjecting their disciplinary conclusions regarding permanent classified employees to binding arbitration.

General Scope of EERA

The Union's first contention is that the terms of the EERA are generally applicable to procedures and criteria for disciplinary action including dismissal.

In instituting a formal system of collective bargaining, the EERA requires public school districts to meet and negotiate in good faith on subjects within the "scope of representation" of the employee bargaining representative, which may include "procedures for final and binding arbitration." (Gov.Code, § 3548.5.) The EERA limited the scope of representation to "wages The EERA also provides that "[a]ll matters not specifically enumerated are reserved to the public school employer and may not be a subject of meeting and negotiating...." (Id.) However, the Public Employment Relations Board (PERB), pursuant to the authority to decide cases granted to it under Government Code section 3541.5, has held that "a subject is negotiable even though not specifically enumerated if (1) it is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer's obligation to negotiate would not significantly abridge his freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the District's mission." (Anaheim Secondary Teachers Assn. v. Anaheim Union High Sch. Dist. (Oct. 28, 1981) PERB Dec. No. 177, 5 PERC p 12148, at p. 660.) The California Supreme Court recently upheld the validity of this PERB three-part test for negotiable subject matter. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 858-859, 191 Cal.Rptr. 800, 663 P.2d 523.)

                hours ..., and other terms and conditions of employment."   Terms and conditions of employment are defined as "health and welfare benefits ..., leave, transfer and reassignment policies, safety conditions of employment, class size, procedures to be used for the evaluation of employees, ... [and] procedures for processing grievances...."  (Gov.Code, § 3543.2, subd.  (a).)
                

Pursuant to the Anaheim test, PERB has required good faith negotiation with employee union representatives regarding a broad range of topics. These include but are not limited to procedures for certificated employee discipline short of dismissal (Arvin Elementary Teachers Assn. v. Arvin Union Sch. Dist. (March 30, 1983) PERB Dec. No. 300, 7 PERC p 14119, at p. 431.), and rules of conduct affecting the imposition of certificated employee discipline including termination (San Bernardino Teachers Assn. v. San Bernardino Unified Sch. Dist. (Oct. 29, 1982) PERB Dec. No. 255, 6 PERC p 13249, at p. 965). The rationale of PERB is that "[d]isciplinary action, particularly termination, may have a direct impact on wages, health and welfare benefits, and other enumerated terms and conditions of employment since action may reduce or eliminate entitlement to those enumerated items." (Id.) ¹

In summary, a collectively bargained agreement generally may include provisions for arbitration of disciplinary grievances. This doctrine is applicable except when the provisions directly conflict with the provisions of the Education Code. (See Gov.Code, § 3540.)

Education Code Conflict With EERA

The second premise of the Union, upon which this case turns, is that Education Code section 45113 and the EERA are harmonious. To the contrary, a collective bargaining agreement relinquishing Board control of disciplinary action would be in conflict with the...