Probationary Teacher’s Discriminatory Non-reelection Not Subject To Arbitration
July 12, 2009 by Beeson Tayer & Bodine
The Public Employment Relations Board may order a school district to rehire a second-year, probationary teacher who was not rehired because of union activities, but an arbitrator may not, according to the court of appeal in Sunnyvale Unified School Dist. v. Jacobs (2009) 171 Cal.App.4th 168.
The Sunnyvale Education Association, the local chapter of the California Teachers Association, filed a grievance on the teacher’s behalf, alleging the district violated the collective bargaining agreement by retaliating against him for participating in protected activities. The Association did not file an unfair practice charge with the Public Employment Relations Board (PERB) because the contract prohibited the same conduct as the Education Employment Relations Act (EERA), and the Association believed that PERB would have deferred it to an arbitrator with the same remedial authority.
The grievance went to arbitration, and the arbitrator concluded that the district’s decision had been “motivated by retaliation” for the teacher’s union activities. The arbitrator ordered the District to reinstate the teacher and to provide other remedial relief, including back pay and purging the teacher’s personnel file of a negative performance evaluation.
But the District refused to comply with the arbitrator’s award ordering reinstatement, arguing that it had absolute authority under the Education Code to decide whether or not to reelect a probationary employee. If the teacher had been reinstated, he would have acquired tenure as a permanent teacher.
On appeal, the court relied on the Supreme Court’s decision in Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, to conclude that an arbitrator does not have the power to order reinstatement because the decision to non-reelect a teacher is not a subject of either mandatory or permissive collective bargaining under EERA. In Round Valley, the district and union had negotiated a CBA that required the district to give notice and a statement of reasons whenever it decided not to reelect a probationary teacher.
The Supreme Court held that the school district and union could not negotiate greater protections for probationary teachers than were provided by the Education Code, which permits a school district to summarily non-reelect probationary employees without just cause or a hearing simply by giving notice before March 15 of the second year of employment.
A probationary employee who alleges retaliation for protected union activities is not without a remedy. The court made it clear that the appropriate recourse is to file an unfair practice charge with PERB. Moreover, because a nonreelection decision is not the subject of collective bargaining, PERB may not defer the case to arbitration.
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