Ventura County Community College District (PERB 2082E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
VENTURA COUNTY COMMUNITY COLLEGE
DISTRICT,
Charging Party,
V.
VENTURA COUNTY FEDERATION OF
COLLEGE TEACHERS, AFT LOCAL 1828,
Respondent.	Respondent.
Case No. LA-CO-1355-E
PERB Decision No. 	2082
December 9, 2009
Appearances: Atkinson, Andelson, Loya, Ruud & Romo by James C. Romo and Edward B.
rneys, for Ventura County Community College District; Lawrence Rosenzweig,
Attorney, for Ventura County Federation
of
College Teachers, AFT Local 1828.
Reitkopp, Atto
Before McKeag, Neuwald and Wesley, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Ventura County Community College District (District)
of
a
Board agent's dismissal (attached)
of
its unfair practice charge. The charge was filed by
the
District against the Ventura County Federation
of
College Teachers, AFT Local 1828
(Federation), to challenge an arbitration decision rendered in favor
of
the Federation. The
District brings its claim under Section 3541.5(a)(2),
of
the Educational Employment Relations
Act (EERA), 1 arguing that the arbitration decision is repugnant to the purposes
of
EERA.
The Board has reviewed the dismissal and the record in light
of
the District's appeal, the
Federation's response and the relevant law. Based on this review, the Board adopts the warning
and dismissal letters as the decision of the Board itself, as supplemented by the discussion below.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise indica
all statutory references herein are to the Government Code.
ted,
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
VENTURA COUNTY COMMUNITY COLLEGE
DISTRICT,
Charging Party, 	Case No. LA-CO-1355-E
v . 	PERB Decision No. 2082
December 9, 2009	VENTURA COUNTY FEDERATION OF
COLLEGE TEACHERS, AFT LOCAL 1828,
Appearances: Atkinson, Andelson, Loya, Ruud & Romo by James C. Romo and Edward B.
Reitkopp, Attorneys, for Ventura County Community College District; Lawrence Rosenzweig,
Attorney, for Ventura County Federation of College Teachers, AFT Local 1828.
Before Mckeag, Neuwald and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Ventura County Community College District (District) of a
Board agent's dismissal (attached) of its unfair practice charge. The charge was filed by the
District against the Ventura County Federation of College Teachers, AFT Local 1828
(Federation), to challenge an arbitration decision rendered in favor of the Federation. The
District brings its claim under Section 3541.5(a)(2), of the Educational Employment Relations
Act (EERA)," arguing that the arbitration decision is repugnant to the purposes of EERA.
The Board has reviewed the dismissal and the record in light of the District's appeal, the
Federation's response and the relevant law. Based on this review, the Board adopts the warning
and dismissal letters as the decision of the Board itself, as supplemented by the discussion below.
EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

BACKGROUND
On July 25, 2007, the Federation filed an unfair practice charge against the District
alleging a unilateral change/transfer of work outside the bargaining unit, in violation of EERA
section 3543.5(a), (b) and (c). The matter was deferred to the parties' grievance and arbitration
process. In May 2008, an arbitration decision was issued in favor of the Federation.
On August 15, 2008, the District filed the present unfair practice charge against the
DISTRICT'S APPEAL
On August 15, 2008, the District filed the present unfair practice charge against the
Federation, alleging the arbitration decision is repugnant to EERA, and asking PERB to review
the decision pursuant to EERA section 3541.5(a)(2). The Board agent dismissed the charge,
finding that a charge based solely on a claim that a third party arbitration decision is repugnant
cannot stand on its own and is insufficient to state a prima facie case for violation of EERA by
the Federation. The Board agent held that the District's charge did not allege any conduct by
the Respondent/Federation that violated EERA and therefore did not establish a prima facie
case.
DISTRICT'S APPEAL
The District argues that the entirety of the Board's analysis should be whether or not
the arbitration decision is repugnant to EERA, and that the District shouid not be required to
allege wrongful conduct by the Federation in order to establish a prima facie case. The District
relies on that part of Section 354 l.5(a)(2) that states:
The board shall have discretionary jurisdiction to review the
settlement or arbitration award reached pursuant to the grievance
machinery solely for the purpose of determining 	it is
repugnant to the purposes of this chapter. If the board finds that
the settlement or arbitration award is repugnant to the purposes of
this chapter, it shall issue a complaint on the basis of a timely
filed charge, and hear and decide the case on the merits.
whether
2
The District contends that nothing in the relevant statute limits the right to challenge an
arbitration award as being repugnant to only the party that initially filed the unfair practice
BACKGROUND
On July 25, 2007, the Federation filed an unfair practice charge against the District
alleging a unilateral change/transfer of work outside the bargaining unit, in violation of EERA
section 3543.5(a), (b) and (c). The matter was deferred to the parties' grievance and arbitration
process. In May 2008, an arbitration decision was issued in favor of the Federation.
Federation, alleging the arbitration decision is repugnant to EERA, and asking PERB to review
the decision pursuant to EERA section 3541.5(a)(2). The Board agent dismissed the charge,
finding that a charge based solely on a claim that a third party arbitration decision is repugnant
cannot stand on its own and is insufficient to state a prima facie case for violation of EERA by
the Federation. The Board agent held that the District's charge did not allege any conduct by
the Respondent/Federation that violated EERA and therefore did not establish a prima facie
case.
The District argues that the entirety of the Board's analysis should be whether or not
the arbitration decision is repugnant to EERA, and that the District should not be required to
allege wrongful conduct by the Federation in order to establish a prima facie case. The District
relies on that part of Section 3541.5(a)(2) that states:
The board shall have discretionary jurisdiction to review the
settlement or arbitration award reached pursuant to the grievance
machinery solely for the purpose of determining whether it is
repugnant to the purposes of this chapter. If the board finds that
the settlement or arbitration award is repugnant to the purposes of
this chapter, it shall issue a complaint on the basis of a timely
filed charge, and hear and decide the case on the merits.
The District contends that nothing in the relevant statute limits the right to challenge an
arbitration award as being repugnant to only the party that initially filed the unfair practice
2

charge, and that the plain meaning
of
the language in the statute gives both parties to an
arbitration the opportunity to assert that the arbitration decision is repugnant to EERA.
DISCUSSION
One
of
the primary functions
of
EERA section 3541.5 is to set forth PERB's exclusive,
initial jurisdiction and authority for investigating unfair practice ciaims and determining
"whether the charges
of
unfair practice are justified." 	Specifically, Section 3541.5(a)(2)
addresses PERB's authority relative to matters also covered by collective bargaining
agreements (CBA) between parties. In relevant part, Section 3541.5 establishes that:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not
....
(2) Issue a complaint against conduct also prohibited by the
provisions
of
the agreement between the parties until the
grievance machinery
of
the agreement,
if
it exists and covers the
matter at issue, has been exhausted, either by settlement or
binding arbitration. . . . The board shall have discretionary
jurisdiction to review the settlement or arbitration award reached
pursuant to the grievance machinery solely for the purpose
of
determining whether it is repugnant to the purposes
of
this
chapter.
	If
the board finds that the settlement or arbitration award
is repugnant to the purposes
of
this chapter, it shall issue a
complaint on the basis
of
a timely filed charge, and hear and
decide the case on the merits. Otherwise, it shall dismiss the
charge.	charge.
(b) The board shall not have the authority to enforce agreements
between the parties, and shall not issue a complaint on any charge
based on alleged violation of any agreement that would not also
constitute an unfair practice under this chapter.
Accordingly, where an unfair labor practice charge alleges conduct by a respondent that would
also violate the CBA between the parties, and is subject to binding arbitration, PERB will defer
to the grievance and arbitration process. EERA grants PERB the authority to review the
resulting arbitration award to determine whether it is repugnant to the purposes of EERA.
3
charge, and that the plain meaning of the language in the statute gives both parties to an
arbitration the opportunity to assert that the arbitration decision is repugnant to EERA.
DISCUSSION
One of the primary functions of EERA section 3541.5 is to set forth PERB's exclusive,
initial jurisdiction and authority for investigating unfair practice claims and determining
"whether the charges of unfair practice are justified." Specifically, Section 3541.5(a)(2)
addresses PERB's authority relative to matters also covered by collective bargaining
agreements (CBA) between parties. In relevant part, Section 3541.5 establishes that:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not . . . .
(2) Issue a complaint against conduct also prohibited by the
provisions of the agreement between the parties until the
grievance machinery of the agreement, if it exists and covers the
matter at issue, has been exhausted, either by settlement or
binding arbitration. .. . The board shall have discretionary
jurisdiction to review the settlement or arbitration award reached
pursuant to the grievance machinery solely for the purpose of
determining whether it is repugnant to the purposes of this
chapter. If the board finds that the settlement or arbitration award
is repugnant to the purposes of this chapter, it shall issue a
complaint on the basis of a timely filed charge, and hear and
decide the case on the merits. Otherwise, it shall dismiss the
(b) The board shall not have the authority to enforce agreements
between the parties, and shall not issue a complaint on any charge
based on alleged violation of any agreement that would not also
constitute an unfair practice under this chapter.
Accordingly, where an unfair labor practice charge alleges conduct by a respondent that would
also violate the CBA between the parties, and is subject to binding arbitration, PERB will defer
to the grievance and arbitration process. EERA grants PERB the authority to review the
resulting arbitration award to determine whether it is repugnant to the purposes of EERA.

However, even upon such a review, PERB's authority remains limited to the issuance
of
a
complaint that alleges the respondent engaged in conduct that violates EERA.
In the case at hand, the District has filed an unfair practice charge against the
Federation, based solely on a claim that a third party arbitration decision is repugnant to EERA
under Section 3541.5(a)(2). Although the named respondent in the District's claim is the
Federation, the charge does not allege wrongful conduct by the Federation in violation
of
EERA. Rather, the District references a previous unfair practice charge that was filed by the
Federation against the District, and deferred to arbitration, and asks the Board to conduct
further proceedings on the merits
of
the Federation's charge. The Federation, however, has
abandoned pursuit
of
its unfair practice charge in front
of
PERB. The relevant statutory
scheme does not provide a means for a respondent to initiate further proceedings on an unfair
practice charge which has been abandoned by the charging party. Essentially, the District is
seeking an independent review
of
the arbitrator's decision so as to re-litigate before PERB the
matters dealt with in the arbitration. This
is
beyond the purpose and scope
of
the statute.
The District argues that Section 3541.5(a)(2) establishes an independent mechanism for
"either party" to challehge an arbitrator's decision through a repugnancy review. In support
of
this argument the District looks to Yuba City Unified School District (1995) PERB Decision
No. 1095 (Yuba City), wherein the Board conducted a post-arbitration repugnancy review
pursuant to a motion for deferral made by the employer/respondent. However, reliance on
Yuba City for this purpose is misplaced. As discussed in Yuba City, the union simultaneously
pursued both arbitration and a PERB unfair practice charge against the school district
concerning the same matter. The case came before the Board on exceptions filed by the union
to a PERB administrative law judge's proposed decision. Although the Board considered
arguments by both parties, including the school district's argument for deferral to the
4
However, even upon such a review, PERB's authority remains limited to the issuance of a
complaint that alleges the respondent engaged in conduct that violates EERA.
In the case at hand, the District has filed an unfair practice charge against the
Federation, based solely on a claim that a third party arbitration decision is repugnant to EERA
under Section 3541.5(a)(2). Although the named respondent in the District's claim is the
Federation, the charge does not allege wrongful conduct by the Federation in violation of
EERA. Rather, the District references a previous unfair practice charge that was filed by the
Federation against the District, and deferred to arbitration, and asks the Board to conduct
further proceedings on the merits of the Federation's charge. The Federation, however, has
abandoned pursuit of its unfair practice charge in front of PERB. The relevant statutory
scheme does not provide a means for a respondent to initiate further proceedings on an unfair
practice charge which has been abandoned by the charging party. Essentially, the District is
seeking an independent review of the arbitrator's decision so as to re-litigate before PERB the
matters dealt with in the arbitration. This is beyond the purpose and scope of the statute.
The District argues that Section 3541.5(a)(2) establishes an independent mechanism for
"either party" to challenge an arbitrator's decision through a repugnanty review. In support of
this argument the District looks to Yuba City Unified School District (1995) PERB Decision
No. 1095 (Yuba City), wherein the Board conducted a post-arbitration repugnanty review
pursuant to a motion for deferral made by the employer/respondent. However, reliance on
Yuba City for this purpose is misplaced. As discussed in Yuba City, the union simultaneously
pursued both arbitration and a PERB unfair practice charge against the school district
concerning the same matter. The case came before the Board on exceptions filed by the union
to a PERB administrative law judge's proposed decision. Although the Board considered
arguments by both parties, including the school district's argument for deferral to the

arbitrator's decision, the matter was at all times pursued within the context
of
PERB' s
evaluation
of
the underlying unfair practice charge. Neither party attempted to support
an
independent unfair practice claim solely out
of
a request for repugnancy review
of
a
third party
arbitration. Nothing in the Yuba City decision suggests that Section 3541.5(a)(2) is
subject
to
the expansive application put forth by the District in the present matter.
As discussed herein, the District's analysis essentially starts in the middle
of
the
statute
and overlooks the fact that the foundation
of
the Board's jurisdiction in Section 3541.5(a)(2) is
the "determination
of
whether the charges
of
unfair practices are justified," not a de novo
review
of
the arbitration decision. EERA section 3541.5(a)(2) does not provide a traditional
appeal procedure, but sets forth PERB' s limited jurisdiction to review arbitration decisions
within the context
of
alleged conduct that violates the statute. Therefore, because the
District's
charge against the Federation, at issue here, does not allege unlawful conduct by the
Federation, the District's charge against the Federation fails to establish a prima facie
case
for
violation
of
EERA.
ORDER
The unfair practice charge in Case No. LA-CO-i355-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Neuwald joined in this Decision.
5
arbitrator's decision, the matter was at all times pursued within the context of PERB's
evaluation of the underlying unfair practice charge. Neither party attempted to support an
independent unfair practice claim solely out of a request for repugnanty review of a third party
arbitration. Nothing in the Yuba City decision suggests that Section 3541.5(a)(2) is subject to
the expansive application put forth by the District in the present matter.
As discussed herein, the District's analysis essentially starts in the middle of the statute
and overlooks the fact that the foundation of the Board's jurisdiction in Section 3541.5(a)(2) is
the "determination of whether the charges of unfair practices are justified," not a de novo
review of the arbitration decision. EERA section 3541.5(a)(2) does not provide a traditional
appeal procedure, but sets forth PERB's limited jurisdiction to review arbitration decisions
within the context of alleged conduct that violates the statute. Therefore, because the District's
charge against the Federation, at issue here, does not allege unlawful conduct by the
Federation, the District's charge against the Federation fails to establish a prima facie case for
violation of EERA.
ORDER
The unfair practice charge in Case No. LA-CO-1355-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Neuwald joined in this Decision.

STATE OF CALIFORNIA 	(
PUBLIC EMPLOYMENT kELATIONS BOARD
P.E.R.B
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
April
2,
2009
Edward
B.
Reitkopp, Attorney
Atkinson, Andelson, Loya, Ruud & Romo
17
871 Park Plaza Drive, Suite 200
Cerritos, CA 90703-8597
-~ 	-
ARNOLD SCHWARZENEGGER, Governor
Re: 	Ventura County Community College District
v.
Ventura County,
AFT
Local 1828
Unfair Practice Charge No. LA-CO-1355-E
DISMISSAL LETTER
Dear Mr. Reitkopp:
On August 15, 2008, the Ventura County Community College District (District) filed the
above-referenced unfair practice charge against the Ventura County Federation of College
Teachers,
AFT
Local 1828 (Local 1828). The charge alleges that an arbitration decision
(decision) issued by Arbitrator Robert Steinberg in favor of Local 1828 violates section
3541.5(a)(2)
of
the Educational Employment Relations Act (EERA or Act). 1 ·
The District was informed in the attached Warning Letter dated March 17, 2009, that the.
above-referenced charge did not state a prima facie case. The District was advised that,
if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in the Warning Letter, it should amend the charge. The District was further advised
that, unless it amended the charge to state a prim.a facie•case or withdrew the charge prior to
March 25, 2009, the charge would be dismissed.
On March 20, 2009, the District's attorney Edward Reitkopp confirmed that he had received
the Warning Letter. Mr. Reitkopp requested an extension of time until April
1,
2009 to either
withdraw the charge or file an amen9-ed charge.
As of today's date, PERB has not received either an amended charge or a request for
withdrawal. Therefore, the 	is hereby dismissed based on the facts and reasons set forth
in the March 17, 2009 Warning Letter.
charge
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
April 2, 2009
Edward B. Reitkopp, Attorney
Atkinson, Andelson, Loya, Ruud & Romo
17871 Park Plaza Drive, Suite 200
Cerritos, CA 90703-8597
Re: 	Ventura County Community College District v. Ventura County, AFT Local 1828
Unfair Practice Charge No. LA-CO-1355-E
DISMISSAL LETTER
Dear Mr. Reitkopp:
On August 15, 2008, the Ventura County Community College District (District) filed the
above-referenced unfair practice charge against the Ventura County Federation of College
Teachers, AFT Local 1828 (Local 1828). The charge alleges that an arbitration decision
(decision) issued by Arbitrator Robert Steinberg in favor of Local 1828 violates section
3541.5(a)(2) of the Educational Employment Relations Act (EERA or Act)."
The District was informed in the attached Warning Letter dated March 17, 2009, that the.
above-referenced charge did not state a prima facie case. The District was advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in the Warning Letter, it should amend the charge. The District was further advised
that, unless it amended the charge to state a prima facie case or withdrew the charge prior to
March 25, 2009, the charge would be dismissed.
On March 20, 2009, the District's attorney Edward Reitkopp confirmed that he had received
the Warning Letter. Mr. Reitkopp requested an extension of time until April 1, 2009 to either
withdraw the charge or file an amended charge.
As of today's date, PERB has not received either an amended charge or a request for
withdrawal. Therefore, the charge is hereby dismissed based on the facts and reasons set forth
in the March 17, 2009 Warning Letter.
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1355-E
April 2, 2009
Page 2
Right to Appeal
(
Pursuant to PERB Regulations,2 the District may obtain a review of this dismissal of the
charge
by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this dismissal. (Cal. Code Regs, tit. 8, sec. 32635(a).) Any document filed with the
Board
rn1uct f'f"'lnt<iin	
.U
.
.l.	
UI,,
.....,.....,.l..l.l,,\,U. .L.L
thP.
f''lC,P
,,,,,,,,,.	
\,-.J. V
VU..IJV
J..J.UJ..LJ.\,;,
U.lJ.U	
,,,,,-1
n11ml-.o.-
	,,,,..,-1	
.ll.U.U.lU\,,.,.l)	
~i-.
..	
U..lJ.U.
LJ...l\.,,
,...,.;,..,.;,,..,,1	
v1.151.11u1
,,,,..r1 -i:-;.,,,.
ft::.\	
U.L!U
LlY\...,	
nop1'es
of
n]l	
\-1)
~	
-
CL
..
_ do"ument"	
'-'
	....	
·J.	
~
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. 11020(a).) A
document is also considered "filed" when received by facsimile transmission before the close
of
business together with a Facsimile Transmission Cover Sheet which meets the requirements
of
PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs, tit. 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
The Board's address is:
Public Empl?yment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If the District files a timely appeal
of
the refusal to issue a complaint, any other party
may
file
with the Board an original and five copies of a statement in opposition within twenty (20)
calendar days following the date
of
service of the appeal. (Cal. Code Regs, tit.
8,
sec. 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, sec. 32140 for the required
contents.) The doct1ment vvill be considered properly "served"
v:1hen
personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concun-ently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, sec. 32135(c).)
2 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
LA-CO-1355-E
April 2, 2009
Page 2
Right to Appeal
Pursuant to PERB Regulations," the District may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, sec. 32635(a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. 11020(a).) A
document is also considered "filed" when received by facsimile transmission before the close
of business together with a Facsimile Transmission Cover Sheet which meets the requirements
of PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs, tit. 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
916) 322-8231
FAX: (916) 327-7960
If the District files a timely appeal of the refusal to issue a complaint, any other party may file
with the Board an original and five copies of a statement in opposition within twenty (20)
calendar days following the date of service of the appeal. (Cal. Code Regs, tit. 8,
sec. 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, sec. 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, sec. 32135(c).)
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1355-E
April 2, 2009
Page 3
Extension
of
Time
(
A request for an extension
of
time, in which to file a document with the Board itself,
must bein writing and filed with the Board at the previously noted address. A request for an extension
must
be
filed at least three (3) calendar days before the expiration of the time required
for
....
f1'lino-	
..........
c,
thf'	
.,
....
,..-
r1nrnrnf'nt	
,_.......,_..
...................	
rPnnpc,t	
....-..........
T'hP	
"""
....
-	
m11C't
;,....r1;,_.,t.,.
{T/"\/"\rl
,...,,,~.,.	
"""'"'1l...t.-U\,
J...L,LU..:tl.-	
f'I"\,,.	
.1..LA-VJ.VUl..V
6'-'VU
\..tUU~V
.!.'_..'l. .,...,rl
	;f'	
u;..1u,
l.l.
1,,.....,0'7.!Il	
.r-....1.1·
V,
	, th"	
.I.V
po<:ition	
._..a.
.......	
....
1.
of
each other party	each other party regarding the extension, and shall be accompanied by proof of service of the	regarding the extension, and shall be accompanied by proof of service
of
the
request upon each party. (Cal. Code Regs, tit.
8,
sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final
when
the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By=----.---.-------	By
Sean McKee
Regional Attorney
Attachment
cc: Lawrence Rosenzweig, Attorney
LA-CO-1355-E
April 2, 2009
Page 3
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
Sean Mckee
Regional Attorney
Attachment
cc: Lawrence Rosenzweig, Attorney

STATE OF CALIFORNIA
(-
============ 	===~=========
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale,
CA
91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
March 1
7,
2009
Edward
B.
Reitkopp, Attorney
Atkinson, Andeison, Loya, Ruud & Romo
17871 Park Plaza Drive, Suite 200
Cerritos, CA 90703-8597
ARNOLD SCHWARZENEGGER, Governor
Re: 	Ventura County Community College District
v.
Ventura County Federation
of College
Teachers, AFT Local 1828
Unfair Practice Charge No. LA-CO-1355-E
WARNING LETTER
Dear Mr. Reitkopp:
On August 15, 2008, the Ventura County Community College District (District) filed
theabove-referenced unfair practice charge against the Ventura County Federation of College
Teachers, AFT Local 1828 (Local 1828). The charge alleges that an arbitration decision
(decision) issued by Arbitrator Robert Steinberg in favor of Local 1828 violates section
3541.5(a)(2)
of
the Educational Employment Relations Act (EERA or Act). 1
Background
The charge provides in its entirety:
On or about July 24, 2007, [Local 1828] filed an unfair practice
charge alleging, inter alia, that the [District] had violated [EERA]
[s]ections 3543.5(a), (b), and (c) when the District created the
positions of Director of Disabled Students Programs and Services
("Director DSPS") and Assistant Dean of Distance Education,
and had, as a result, transferred work outside the bargaining unit.
This matter was deferred to arbitration.
On May 19, 2008, Arbitrator Robert Steinberg issued an opinion
and award in case number
CS1Vi:
CS ARB 06-0692. The District
files this unfair practice charge pursuant to [EERA] [s]ection
3541.5(a)(2) (hereafter, "Act") alleging that Arbitrator
Steinberg's decision concerning the Director DSPS is repugnant
to the Act.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
he Board's Regulations may be found on the Internet at www.perb.ca.gov.	t
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
March 17, 2009
Edward B. Reitkopp, Attorney
Atkinson, Andelson, Loya, Ruud & Romo
17871 Park Plaza Drive, Suite 200
Cerritos, CA 90703-8597
Re: 	Ventura County Community College District v. Ventura County Federation of College
Teachers, AFT Local 1828
Unfair Practice Charge No. LA-CO-1355-E
WARNING LETTER
Dear Mr. Reitkopp:
On August 15, 2008, the Ventura County Community College District (District) filed the
above-referenced unfair practice charge against the Ventura County Federation of College
Teachers, AFT Local 1828 (Local 1828). The charge alleges that an arbitration decision
(decision) issued by Arbitrator Robert Steinberg in favor of Local 1828 violates section
3541.5(a)(2) of the Educational Employment Relations Act (EERA or Act).'
Background
The charge provides in its entirety:
On or about July 24, 2007, [Local 1828] filed an unfair practice
charge alleging, inter alia, that the [District] had violated [EERA]
[s]ections 3543.5(a), (b), and (c) when the District created the
positions of Director of Disabled Students Programs and Services
("Director DSPS") and Assistant Dean of Distance Education,
and had, as a result, transferred work outside the bargaining unit.
This matter was deferred to arbitration.
On May 19, 2008, Arbitrator Robert Steinberg issued an opinion
and award in case number CSMCS ARB 06-0692. The District
files this unfair practice charge pursuant to [EERA] [s]ection
3541.5(a)(2) (hereafter, "Act") alleging that Arbitrator
Steinberg's decision concerning the Director DSPS is repugnant
to the Act.
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1355-E
March 17, 2009
Page 2
More specifically, the District alleges
as
follows: The District
created the position
of
Director DSPS at Moorpark College when
a position of Coordinator, Disabled Students, became vacant. It
was and
is
the District's contention that the Director DSPS is a
management and/or supervisory employee within the meaning
of
[s]ections 3540. l(g) and (m) of the
i\ct
and should be excluded
from the bargaining unit represented by Local 1828, consistent
with the terms
of
the collective bargaining agreement between the
District and Local 1828. Notwithstanding the Arbitrator's own
admission that the duties
of
the Director include "several indicia
of supervisory authority," he nevertheless concluded that the
Director position had not changed in scope and type
of
duties
assigned to its predecessor, Coordinator, Disabled Students, to
support removal
of
the Director position from the bargaining unit.
In so ruling, the Arbitrator's decision ignored well-established
case law and policy considerations excluding management and
supervisory employees from the bargaining unit and is,
accordingly, repugnant to the purposes of the Act.
The District did not attach a copy
of
the decision to the charge. On September 4, 2008, Local
1828 filed a response to the charge. Attached to Local 1828' s response is a copy of the
decision.2
Discussion	Discussion
As noted above, the District asserts that the decision is repugnant 	the Act and asks PERB to
issue a complaint against Local 1828. (See Cal. Code Regs., tit 8, § 32661.)
to
As a general rule, PERB does not have "the authority" to enforce a collective bargaining
agreement between the parties. (Gov. Code, § 3541.S(b).) The exception is this: PERB can
issue a complaint when the "conduct" at issue is "prohibited" by both the agreement and the
Act. 	(Gov. Code, § 3541.5(a)(2).) However, where (1) the conduct at issue is prohibited by
both the agreement and the Act; (2) the parties have submitted the dispute to "binding
arbitration"; and (3) the employer has either waived or not asserted contract-based procedural
defpnsp.c
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before it issues a complaint. (Gov. Code, § 3541.5(a)(2); Dry Creek Joint Elementary School
District (1980) PERB Order No. Ad-81a, p. 4 (Dry Creek); see also State of California
(Department of Food and Agriculture) (2002) PERB Decision No. 1473-S, pp. 5-7.) In those
circumstances, PERB will limit its review "solely" to the question of whether the arbitration
2 Nothing in PERB case law requires a Board agent to ignore facts provided by the
respondent and consider only the facts provided by the charging party. (Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M.)
LA-CO-1355-E
March 17, 2009
Page 2
More specifically, the District alleges as follows: The District
created the position of Director DSPS at Moorpark College when
a position of Coordinator, Disabled Students, became vacant. It
was and is the District's contention that the Director DSPS is a
management and/or supervisory employee within the meaning of
[s]ections 3540.1(g) and (m) of the Act and should be excluded
from the bargaining unit represented by Local 1828, consistent
with the terms of the collective bargaining agreement between the
District and Local 1828. Notwithstanding the Arbitrator's own
admission that the duties of the Director include "several indicia
of supervisory authority," he nevertheless concluded that the
Director position had not changed in scope and type of duties
assigned to its predecessor, Coordinator, Disabled Students, to
support removal of the Director position from the bargaining unit.
In so ruling, the Arbitrator's decision ignored well-established
case law and policy considerations excluding management and
supervisory employees from the bargaining unit and is,
accordingly, repugnant to the purposes of the Act.
The District did not attach a copy of the decision to the charge. On September 4, 2008, Local
1828 filed a response to the charge. Attached to Local 1828's response is a copy of the
decision.
As noted above, the District asserts that the decision is repugnant to the Act and asks PERB to
issue a complaint against Local 1828. (See Cal. Code Regs., tit 8, $ 32661.)
As a general rule, PERB does not have "the authority" to enforce a collective bargaining
agreement between the parties. (Gov. Code, $ 3541.5(b).) The exception is this: PERB can
issue a complaint when the "conduct" at issue is "prohibited" by both the agreement and the
Act. (Gov. Code, $ 3541.5(a)(2).) However, where (1) the conduct at issue is prohibited by
both the agreement and the Act; (2) the parties have submitted the dispute to "binding
arbitration"; and (3) the employer has either waived or not asserted contract-based procedural
defenses, then PERB will wait until after the parties have exhausted the "grievance machinery"
before it issues a complaint. (Gov. Code, $ 3541.5(a)(2); Dry Creek Joint Elementary School
District (1980) PERB Order No. Ad-81a, p. 4 (Dry Creek); see also State of California
Department of Food and Agriculture) (2002) PERB Decision No. 1473-S, pp. 5-7.) In those
circumstances, PERB will limit its review "solely" to the question of whether the arbitration
Nothing in PERB case law requires a Board agent to ignore facts provided by the
respondent and consider only the facts provided by the charging party. (Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M.)

LA-CO-1355-E
March 17, 2009
Page 3
decision is "repugnant" to the Act. (Dry Creek, supra, PERB Order No. Ad-81a, p. 4;
Yuba
City Unified School District (1995) PERB Decision No. 1095, p.
13
(Yuba City).)
In Dry Creek, supra, PERB Order No. Ad-81a, p. 4, the Board adopted the post-arbitration
deferral standard enunciated by the National Labor Relations Board (NLRB). (See Spielberg
Manufacturing Comoanv (1955) 112 NLRB 1080; Collyer Insulated Wire (1971) 192
NLRB
837.)3 Under that standard, the Board will exercise its discretionary jurisdiction to defer
to
the
arbitrator's award if: (1) the matters raised in the unfair practice charge were presented
to
and
considered
by
the arbitrator; (2) the arbitral proceedings were fair and regular; (3) the parties
agreed to be bound by the arbitral award; and (4) the award
is
not repugnant to the purposes
of
the EERA.
With regard to repugnancy, the Board has stated that unless the award is "palpably
wrong"
and
not susceptible to an interpretation consistent with the Act, the Board will defer to the
arbitrator's award. 	(Yuba City, supra, PERB Decision No. 1095, p. 14.) The possibility
that
the Board may have reached a different conclusion does not render the award unreasonable
or
repugnant. (Los Angeles Unified School District (1982) PERB Decision No. 218, p. 8, fn. 6
(Los Angeles).)
PERB cannot, however, issue a complaint against an arbitrator; it can only issue a complaint
against an employer (Gov. Code, § 3543.5) or an employee organization (Gov.
Code,§
3543.6). Thus, before PERB can determine whether an arbitration decision is "repugnant" to
the Act, the charging party must first establish that the respondent engaged in some unlawful
conduct. (Gov. Code, § 3543.6; see also Gov. Code, § 3543.5; United Teachers-Los Angeles
(Ragsdale) (1992) PERB Decision No. 944; Cal. Code Regs., tit. 8, § 32615(a)(5).)
For example, the charging parties in Dry Creek, Los Angeles and Yuba City each alleged facts
to show that the employer had violated section 3543 .5( c)
of
the Act by changing working
conditions without first negotiating in good faith. (Dry Creek, supra, PERB Order No. Ad-81a,
p. 8; Los Angeles, supra, PERB Decision No. 218, pp. 3, 7, fn. 5; Yuba City, supra, PERB
Decision No. 1095, pp. 1, 16.) Because the charges in those cases alleged identifiable
violations of the Act, PERB was then able to examine whether the issues raised in the post
arbitration unfair practice charge had been presented to and considered by the arbitrator. 	(Dry
Creek, supra, PERB Order No. Ad-81a, p. 4; Yuba City, supra, PERB Decision No. 1095, p.
14.)
Section 3543 .6 lists the unlawful acts on which PERB can base a complaint. Specifically,
PERB can issue a complaint against Local 1828 for the following reasons: (1) causing the
employer to violate section 3543 .5, (2) threatening employees with reprisals, (3) refusing to
bargain in good faith, and/or (4) refusing to participate in impasse procedures. (Gov. Code, §
3 When interpreting the Act, it is appropriate to take guidance from cases interpreting
the National Labor Relations Act. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d
508.)	608.)
LA-CO-1355-E
March 17, 2009
Page 3
decision is "repugnant" to the Act. (Dry Creek, supra, PERB Order No. Ad-81a, p. 4; Yuba
City Unified School District (1995) PERB Decision No. 1095, p. 13 (Yuba City).)
In Dry Creek, supra, PERB Order No. Ad-81a, p. 4, the Board adopted the post-arbitration
deferral standard enunciated by the National Labor Relations Board (NLRB). (See Spielberg
Manufacturing Company (1955) 112 NLRB 1080; Collyer Insulated Wire (1971) 192 NLRB
837.)' Under that standard, the Board will exercise its discretionary jurisdiction to defer to the
arbitrator's award if: (1) the matters raised in the unfair practice charge were presented to and
considered by the arbitrator; (2) the arbitral proceedings were fair and regular; (3) the parties
agreed to be bound by the arbitral award; and (4) the award is not repugnant to the purposes of
the EERA.
With regard to repugnanty, the Board has stated that unless the award is "palpably wrong" and
not susceptible to an interpretation consistent with the Act, the Board will defer to the
arbitrator's award. (Yuba City, supra, PERB Decision No. 1095, p. 14.) The possibility that
the Board may have reached a different conclusion does not render the award unreasonable or
repugnant. (Los Angeles Unified School District (1982) PERB Decision No. 218, p. 8, fn. 6
(Los Angeles).)
PERB cannot, however, issue a complaint against an arbitrator; it can only issue a complaint
against an employer (Gov. Code, $ 3543.5) or an employee organization (Gov. Code, $
3543.6). Thus, before PERB can determine whether an arbitration decision is "repugnant" to
the Act, the charging party must first establish that the respondent engaged in some unlawful
conduct. (Gov. Code, $ 3543.6; see also Gov. Code, $ 3543.5; United Teachers-Los Angeles
(Ragsdale) (1992) PERB Decision No. 944; Cal. Code Regs., tit. 8, $ 32615(a)(5).)
For example, the charging parties in Dry Creek, Los Angeles and Yuba City each alleged facts
to show that the employer had violated section 3543.5(c) of the Act by changing working
conditions without first negotiating in good faith. (Dry Creek, supra, PERB Order No. Ad-81a,
p. 8; Los Angeles, supra, PERB Decision No. 218, pp. 3, 7, fn. 5; Yuba City, supra, PERB
Decision No. 1095, pp. 1, 16.) Because the charges in those cases alleged identifiable
violations of the Act, PERB was then able to examine whether the issues raised in the post-
arbitration unfair practice charge had been presented to and considered by the arbitrator. (Dry
Creek, supra, PERB Order No. Ad-81a, p. 4; Yuba City, supra, PERB Decision No. 1095, p.
14.)
Section 3543.6 lists the unlawful acts on which PERB can base a complaint. Specifically,
PERB can issue a complaint against Local 1828 for the following reasons: (1) causing the
employer to violate section 3543.5, (2) threatening employees with reprisals, (3) refusing to
bargain in good faith, and/or (4) refusing to participate in impasse procedures. (Gov. Code, $
When interpreting the Act, it is appropriate to take guidance from cases interpreting
the National Labor Relations Act. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d

LA-CO-1355-E
March 17, 2009
Page 4
3543.6.) The charge in this case fails to allege which, if any, of these unlawful acts Local 1828
has committed and which, if any,
of
these acts were addressed by the Arbitrator. Accordingly,
the above-referenced charge must be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, the District may amend the charge. The amended charge should be prepared
on a standard PERB unfair practice charge form, clearly labeled First Amended Charge,
contain all the facts and allegations the District wishes to make, and be signed under penalty ofperjury by an authorized agent of the District. The amended charge must have the case number
written on the top right hand comer
of
the charge form. The amended charge must be served
on Local 1828's representative and the original proof of service must be filed with PERB. 	Ifan amended charge or withdrawal
is
not filed on or before March 25, 2009, the charge shall be
dismissed. 	Questions concerning this matter should be directed to me at the above telephone
number.
Sincerely,
Sean McKee
Regional Attorney
SM
LA-CO-1355-E
March 17, 2009
Page 4
3543.6.) The charge in this case fails to allege which, if any, of these unlawful acts Local 1828
has committed and which, if any, of these acts were addressed by the Arbitrator. Accordingly,
the above-referenced charge must be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, the District may amend the charge. The amended charge should be prepared
on a standard PERB unfair practice charge form, clearly labeled First Amended Charge,
contain all the facts and allegations the District wishes to make, and be signed under penalty of
perjury by an authorized agent of the District. The amended charge must have the case number
written on the top right hand corner of the charge form. The amended charge must be served
on Local 1828's representative and the original proof of service must be filed with PERB. If
an amended charge or withdrawal is not filed on or before March 25, 2009, the charge shall be
dismissed. Questions concerning this matter should be directed to me at the above telephone
number.
Sincerely,
Sean Mckee
Regional Attorney
SM