Thursday, February 19, 2009
Page 3
C.A.: No Arbitration for Teacher’s Union Activity Retaliation Claim
By KENNETH OFGANG, Staff Writer
A public school teacher who claims his employment was not renewed in retaliation for union activity cannot go to arbitration under the union’s contract and may only seek redress from the Public Employment Relations Board, the Sixth District Court of Appeal ruled yesterday.
The court affirmed a Santa Clara Superior Court judge’s order vacating an arbitrator’s decision to reinstate Michael Jacobs as a teacher in the Sunnyvale Unified School District.
Jacobs was a second-year probationary teacher in 2005 when the district notified him that his employment would not be renewed. Had he been renewed at that time, he would have been entitled to tenure under state law.
His union, the Sunnyvale Education Association, filed a grievance alleging that the district was retaliating against Jacobs because he was active in the union. Such retaliation, the union argued, violated its contract with the district, which required adherence to the Educational Employment Relations Act.
The district denied retaliation, and also contended that the dispute was not subject to arbitration because the PERB has exclusive jurisdiction to investigate and remedy alleged violations of the EERA.
The arbitrator ruled that he had jurisdiction, and subsequently ruled that the district had retaliated against Jacobs for exercising “protected rights under the Collective Bargaining Agreement and related statutes.” He directed that Jacobs be reinstated, that a negative evaluation be purged from his file, and that he receive back wages and benefits.
The district petitioned the Superior Court to vacate the award. Judge Kevin McKenney concluded that while the “finding of illegal motivation” was a matter of concern, ““the award of reinstatement was not within the arbitrator’s authority and that portion of the award must be vacated.”
Justice Eugene Premo, writing for the Court of Appeal, said the arbitrator lacked jurisdiction because the non-renewal, or “nonreelection” as the Education Code calls it, of a probationary teacher is a matter of discretion on the part of the district and not a matter for collective bargaining.
The justice cited Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, in which the court held that contract provisions requiring a district to give an explanation as to why it did not retain a probationary teacher and allowing the teacher to appeal the decision were invalid. That court also tossed out an arbitrator’s award of reinstatement.
The claim that Jacobs was only seeking to vindicate rights already granted him by the EERA does not change the result, Premo said. If the contract grants a teacher the right to arbitration of an EERA claim, as the union maintains, it conflicts with statute because it “grants the probationary teacher a grievance procedure that is prohibited by the Education Code,” the jurist explained.
“That is not to say that a district’s power to deny tenure for any lawful reason insulates it from scrutiny when it allegedly has done so for an unlawful discriminatory reason...,” Premo clarified. “But that scrutiny cannot be imposed by the collective bargaining agreement.”
The EERA, he noted, sets forth detailed procedures by which the PERB may remedy unlawful employment practices by school districts, including retaliation for the exercise of labor rights.
The case is Sunnyvale Unified School District v. Jacobs, S.O.S. 09-919.
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