Decision 1713E – East Side Union High School District

SF-CE-2298-E

Decision Date: November 23, 2004

Decision Type: PERB Decision

Description:  Charge alleged that district violated EERA by changing its policy of using a particular form for submission of public complaints against employees. District raised deferral to arbitration defense  but did not raise it in its answer to the charge.

Disposition:  Board found district violated EERA by unilateral change of form for public complaints against employees.  Board held that district deferral to arbitration defense  waived as it was not raised in the answer as deferral to arbitration is not jurisdictional but rather an affirmative defense.  That portion of Lake Elsinore School District (1987) PERB Decision No. 646 in conflict with this decision is overruled.

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Perc Vol: 29
Perc Index: 17

Decision Headnotes

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts

Deferral to arbitration under EERA section 3541.5(a)(2) is not jurisdictional, but rather must be asserted as an affirmative defense or waived. As the District failed to raise deferral in its answer, its deferral exception is rejected. (pp. 3-4.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

A binding past practice is one that is “regular and consistent” or “historic and accepted.” The Board found that the District had a “historic and accepted practice” of utilizing the formal public complaint form in cases of public complaints (i.e., those lodged against a unit member by a student, parent, employee, or other member of the public) and that when such a public complaint form was completed the District administrator provided the employee with a copy of it. The fact that the complaint form was not negotiated is irrelevant. The Association was aware of its use and acquiesced in its use. It is well-settled that unwritten past practices may support a charge of unilateral change. (adopting proposed decision at pp. 9-10.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02029 – Disciplinary Action

The utilization of a form for documenting public complaints is a matter within the scope of representation. A subject is negotiable if it is specifically enumerated in the Act’s scope of representation definition. (Sec. 3543.2.) Section 3543.2(b) identifies “causes and procedures for disciplinary action, other than dismissal, including a suspension of pay for up to 15 days, affecting certificated employees.” The public complaint procedure whereby formal complaints involving harassment/discrimination were documented in the public complaint form and provided to the Association must be considered a procedure for disciplinary action, because District witness admitted that the public complaint procedure applied to the cases of two employees and because his investigation in both cases resulted in the imposition of discipline short of dismissal. (adopting proposed decision at p. 13.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02045 – Evaluations

A public complaint form that may be placed in the employee's personnel file is a procedure for the evaluation of certificated employees, an enumerated subject under section 3543.2(a). (adopting proposed decision at p. 13.)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.01000 – In General

Because the District violated its obligation to negotiate in good faith by unilaterally ceasing to use the public complaint form in cases of sexual and racial harassment/discrimination and ceasing to provide a copy of the complaint to the bargaining unit member named in such cases, the Board ordered the District to return to the status quo ante and to rescind the disciplinary action imposed on two employees affected by use of the new form. The Board also ordered all documentation of those disciplinary actions be destroyed. (adopting proposed decision at p. 15.)