Los Angeles Unified School District (PERB 1765E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS OF LOS ANGELES,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4504-E
PERB Decision No. 1765
May 	3, 	2005
Appearances: 	Geffner & Bush by Kathleen M. Jorgenson, Attorney, for United Teachers of
Los Angeles; Paul, Hastings, Janofsky & Walker by Robert F. Walker, Attorney, for
Los Angeles Unified School District.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by United Teachers of Los Angeles (UTLA) of a Board agent's
dismissal of its unfair practice charge. PERB deferred UTLA's previous charge, Case
No. LA-CE-4425-E, which alleged a unilateral change in class size, to the parties' grievance
and arbitration procedure. In the present charge, UTLA alleges that the arbitration award
resulting from the prior case is repugnant to the purposes of the Educational Employment
Relations Act (EERA).1 The Board agent dismissed the charge finding that the arbitration
award was not repugnant.
The Board has reviewed the entire record in this matter, including the unfair practice
charge, the Los Angeles Unified School District's (District) position statement, the Board
EERA is codified at Government Code section 3540, et seq.

agent's warning and dismissal letters, UTLA's appeal and the District's response to the appeal.
Based on the discussion below, the Board affirms the dismissal of UTLA's charge.
BACKGROUND
On April 30, 2002, the District decided to increase class size effective July 1, 2002.
The District announced the change in a bulletin issued on May 20, 2002.
UTLA and the District are parties to a collective bargaining agreement (CBA) which
includes a provision regarding class size. Article XVIII sets forth the class size criteria for the
various grade levels and programs. Article XVIII, section 1.5, further states:
It is recognized that the class size restrictions of this Article may
not be achieved due to circumstances such as state funding
limitations, teacher shortages, changes in the student integration
or other programs, or statutory changes.
On June 18, 2002, UTLA filed unfair practice charge, Case No. LA-CE-4425-E,
alleging that the District unilaterally increased class size without providing notice and an
opportunity to bargain. 	On August 9, 2002, a Board agent dismissed the charge and deferred
the matter to the parties' grievance procedure which culminated in binding arbitration.
UTLA filed a grievance alleging that the District breached the class size provisions set
forth in the CBA. UTLA also alleged that by the same conduct the District violated EERA.
The parties participated in an evidentiary hearing before a three-member arbitration panel in
December 2002. The arbitration panel issued its decision and award on March 13, 2003.
The arbitration panel found that the District had exceeded the contractual class size
limits in some cases. 	The panel then evaluated whether the "state funding limitations" in
section 1.5 authorized the District to exceed the class size restrictions. 	The parties submitted
evidence of the District's budget shortfalls and fiscal decisions. 	The panel concluded that the
District did not violate the CBA when it increased class size based on state funding limitations.
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Finally, the arbitration panel determined that it did not have jurisdiction under the CBA to
decide statutory violations of EERA.
The instant charge was filed with PERB on April 9, 2003, alleging that the arbitration
award is repugnant to the purposes of EERA. 	UTLA alleges that the arbitration panel
erroneously concluded that under section 1.5, UTLA waived its right to bargain class size
changes in circumstances when state funding limitations are at issue. The charge also alleges
the decision is repugnant because the panel "failed to consider the unfair labor practice at
issue."
DISCUSSION
When an arbitration award covers the subject of an unfair practice charge, a post-
arbitration repugnancy review is conducted to determine whether the charge must be dismissed
and deferred to the arbitration award. EERA section 3541.5(a)2 grants the Board the discretion
to review an arbitration award to determine whether it is repugnant to the purposes of EERA.
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a (Dry_Creek),
EERA section 3541.5 states, in pertinent part:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following:
(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. 	[Emphasis added.]
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PERB adopted the National Labor Relations Board's (NLRB) post-arbitration deferral standard
in Spielberg Manufacturing Company (1955) 112 NLRB 1080 [36 LRRM 1152]. Under Dry
Creek, the Board will exercise its discretion to defer to an arbitration 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) all parties to the arbitration proceedings agreed
to be bound by the arbitral award; and (4) the award is not repugnant to the purposes of EERA.
The NLRB further explained in Olin Corp. (1984) 268 NLRB 573, 574 [115 LRRM
1056] (Olin Corp.):
We would find that an arbitrator has adequately considered the
unfair labor practice if (1) the contractual issue is factually
parallel to the unfair labor practice issue, and (2) the arbitrator
was presented generally with the facts relevant to resolving the
unfair labor practice. 	[Fn. omitted.] 	In this respect, differences,
if any, between the contractual and statutory standards of review
should be weighed by the Board as part of its determination under
the Spielberg standards of whether an award is 'clearly
repugnant' to the Act. .. . Unless the award is 'palpably wrong,'
[Fn. omitted.] i.e., unless the arbitrator's decision is not
susceptible to an interpretation consistent with the Act, we will
defer.
The Board adopted the Olin Corp. standard in San Diego County Office of Education (1991)
PERB Decision No. 880 (San Diego COE). (See also, Yuba City Unified School District
(1995) PERB Decision No. 1095 (Yuba City).)
The party seeking to have the Board reject deferral to the arbitration award has the
burden of showing that the deferral standard has not been met. 	(San Diego COE; Olin Corp..)
On appeal, UTLA contends the arbitration award is repugnant to EERA because the
arbitration panel failed to consider its statutory claims.
The Board has previously addressed the parallel between contractual and statutory
claims in cases alleging repugnancy of arbitration awards. 	In Los Angeles Unified School
District (1982) PERB Decision No. 218 (Los Angeles), the union alleged that the district
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unilaterally changed the bus parking locations, which impacted bus drivers by changing the
locations where they reported to work. 	The arbitrator found the contract authorized the
changes made by the district. Thus, the district did not unilaterally change the policy set forth
in the parties' contract. The Board stated, "In this case, the arbitral and statutory issues are
clearly parallel; both turn on whether the District had the right to unilaterally change the bus
parking locations."
In Fremont Unified School District (1994) PERB Decision No. 1036, the union charged
that the district unilaterally changed the observation date for Veterans' Day. 	The union
asserted that it had a statutory right under EERA to negotiate the school calendar independent
of the collective bargaining agreement which provided for a Veterans' Day holiday. 	The Board
deferred to the arbitrator's award, finding the contractual issue clearly parallel to the statutory
issue raised in the unfair practice charge. 	The Board also concluded that the union had failed
to demonstrate that the arbitrator's award was "clearly repugnant" or "palpably wrong."
Furthermore, in Yuba City, the union alleged that the district unilaterally increased
teacher instructional time. 	The arbitrator concluded that the provisions of the parties' contract
authorized the district to increase instructional time. As in the present case, the arbitrator
expressly declined to rule on any unfair labor practice issues. 	The Board stated that the
arbitrator's refusal to decide unfair practice issues was "not dispositive of the Board's exercise
of its jurisdiction under EERA." 	Rather, the Board held the Dry Creek deferral standard to be
the appropriate test, finding that the facts necessary for resolving both the contractual and
statutory issues were identical.
In its unfair practice charge, UTLA alleges that the District unilaterally increased class
size. This is the same issue presented to the arbitration panel. Based on the evidence
presented at the arbitration hearing, the panel determined that section 1.5 excused the District
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from adhering to the class size limitations. The facts considered by the arbitration panel,
including the interpretation of the applicable contract provisions, are identical to those facts
relevant to resolving an unfair practice charge before PERB alleging that the District
unilaterally changed the class size policy. 	Clearly, the issues raised in UTLA's charge have
been presented to and considered by the arbitration panel. 	This satisfies the first prong of the
Dry Creek standard.
Second, UTLA makes no claim that the arbitral proceedings were not fair and regular.
Third, the parties agreed to be bound by the arbitral award.
Finally, it is unnecessary for the Board to determine whether UTLA waived its right to
bargain changes in class size under section 1.5. The arbitration panel concluded there was no
unilateral change in policy when the District acted in accordance with its authority under the
contract to change class size. UTLA has failed to establish that the arbitrator's award is clearly
"repugnant" or palpably wrong, i.e., not susceptible to an interpretation consistent with EERA.
Thus, the Board will not substitute its judgment for that of the arbitrator. 	(Oakland Unified
School District (1985) PERB Decision No. 538; Los Angeles.)
The arbitration panel fully considered the evidence presented by the parties. 	There is
nothing in the arbitration award which indicates that it is repugnant to the purposes of EERA.
Therefore, the Board defers to the arbitration award and dismisses the charge.
ORDER
The unfair practice charge in Case No. LA-CE-4504-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
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