The opinion
Filed 6/28/12
IN THE SUPREME COURT OF CALIFORNIA
UNITED TEACHERS OF LOS ANGELES, )
)
Plaintiff and Appellant, )
) S177403
v. )
) Ct.App. 2/5 B214119
LOS ANGELES UNIFIED SCHOOL )
DISTRICT, )
) Los Angeles County
Defendant and Respondent. ) Super. Ct. No. BS116739
___________________________________ )
After the Los Angeles Unified School District (District) approved the conversion
of an existing public school into a charter school, the United Teachers of Los Angeles
(UTLA) filed a number of grievances claiming that the District failed to comply with
provisions of the collective bargaining agreement that concern charter school conversion.
Unable to resolve the grievances informally, UTLA sought to compel arbitration pursuant
to the collective bargaining agreement. The District argued that the collective bargaining
provisions regulating charter school conversion were unlawful because they conflicted
with the statutory scheme for creation and conversion of charter schools. Accordingly,
the District urged, arbitration of those unlawful provisions should not be compelled.
The trial court agreed and denied UTLA‟s petition. But the Court of Appeal
reversed, concluding that it was not for the court, on a petition to compel arbitration, to
decide whether there was a conflict between the collective bargaining provisions and the
charter school statutes. Instead, the Court of Appeal held that the court‟s function in
adjudicating a petition to compel arbitration was limited to determining whether there
was a valid arbitration agreement that had not been waived. Because that was the case
here, the court ordered the petition to be granted. The District claims this ruling was
erroneous.
We conclude that a court faced with a petition to compel arbitration to enforce
collective bargaining provisions between a union and a school district should deny the
petition if the collective bargaining provisions at issue directly conflict with provisions of
the Education Code — that is, if they would annul, replace, or set aside Education Code
provisions. We further hold that, under the Education Code, an arbitrator has no
authority to deny or revoke a school charter, as UTLA requests. Nevertheless, we
express no view on whether the collective bargaining provisions cited in UTLA‟s
grievance are necessarily in conflict with the Education Code. As explained below,
UTLA has not identified with sufficient specificity which collective bargaining
provisions the District allegedly violated. We thus remand this case to the trial court to
give UTLA an opportunity to identify those specific provisions, and to allow the parties
to address whether the provisions so identified conflict with the Education Code.
I.
On May 11, 2007, Green Dot Public Schools filed a charter petition with the
District Board of Education. The petition sought to convert Alain Leroy Locke High
School (Locke High School) to a charter school. The board granted the charter school
petition on September 11, 2007.
On May 9, 2008, the UTLA, a union representing Los Angeles teachers and
certificated support personnel, filed a petition to compel arbitration pursuant to a written
collective bargaining agreement. The petition alleged that UTLA had exhausted the
preliminary steps of the grievance process in Article V of the collective bargaining
agreement and was submitting the matter to arbitration pursuant to the same article.
Article V, section 1.0 of the collective bargaining agreement defines a grievance as “a
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claim that the District has violated an express term” of the collective bargaining
agreement.
UTLA‟s grievance alleged that the District had violated Article XII-B of the
collective bargaining agreement, which sets forth procedures for converting a school to a
charter school. Article XII-B states in part, “The primary purpose of this Article is to
mitigate the potentially disruptive effect upon employees assigned to schools which are
converting (or considering converting) to independent charter status.” Article XII-B,
section 2.0 sets forth the District‟s obligations to UTLA and to school employees in
processing a conversion charter petition. Article XII-B, section 3.0 requires disclosures
by a charter school operator to employees of a proposed charter school. These provisions
are discussed in greater detail below.
Specifically, UTLA‟s grievance alleged that the District had violated sections 2.0
and 3.0 of Article XII-B in connection with the Locke High School charter conversion by
failing (1) to present the complete charter to employees; (2) to give affected employees
and the community a reasonable opportunity to review and discuss the plan; (3) to give
the union a copy of the proposed charter for review; and (4) to clearly and fully disclose
the conditions of employment within the charter school. The District refused to arbitrate
the controversy, prompting UTLA‟s petition to compel arbitration.
The District opposed the union‟s petition. Relying upon Board of Education v.
Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 277-288 (Round Valley), the District
argued that UTLA‟s grievances could not be arbitrated because the collective bargaining
provisions that UTLA sought to enforce conflict with Education Code section 47611.5,
subdivision (e), which provides that the approval of a charter school petition shall not be
controlled by a collective bargaining agreement. Further, the District argued that Article
XII-B of the collective bargaining agreement is invalid because it requires the District to
take procedural steps beyond what is required under Education Code section 47605. (All
further statutory references are to the Education Code unless otherwise indicated.)
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Citing Round Valley, the trial court denied the petition to compel arbitration,
essentially agreeing with the District‟s arguments. The Court of Appeal reversed.
Relying on California Correctional Peace Officers Assn. v. State of California (2006)
142 Cal.App.4th 198 (California Correctional Peace Officers), the court held that its
inquiry was limited to whether there was a valid arbitration agreement that had not been
waived, and it found that there was such an agreement here. The court interpreted Round
Valley to stand for the proposition that courts may vacate an arbitration award in conflict
with the Education Code, not that courts may decline to order arbitration. Thus, the
Court of Appeal held that the collective bargaining agreement‟s arbitration provision
should be enforced and that the alleged conflict between the collective bargaining
provisions on charter school conversion and the Education Code should be decided in the
first instance by the arbitrator. We granted review.
The resolution of this appeal requires us to address two arguments made by
UTLA. First, UTLA argues that the question of whether the collective bargaining
provisions on charter school conversion conflict with the Education Code is irrelevant to
determining whether to grant a petition to compel arbitration. Like the Court of Appeal,
UTLA contends that courts faced with a petition to compel arbitration should ask only
whether there is a valid arbitration agreement that has not been waived, and not whether
the underlying claim to be arbitrated has merit. Second, UTLA argues that, in any event,
the collective bargaining provisions at issue do not conflict with the Education Code.
II.
In defining a court‟s role in ruling on a petition to compel arbitration to enforce a
collective bargaining agreement between a school district and its employees, we are
required to resolve a tension between two principles: (1) collective bargaining provisions
in conflict with the Education Code are unenforceable, and (2) courts generally do not
examine the merits of the underlying dispute in deciding whether to enforce arbitration
agreements.
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A.
In reconciling these principles, our analysis begins with San Mateo City School
Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850 (San Mateo), a case
arising from disputes in several school districts regarding their obligation to bargain with
employee unions under the Educational Employment Relations Act (EERA). As we
explained: “The EERA establishes a system of collective bargaining for employees of
public school districts educating students in grades kindergarten through 14. It was
enacted in 1975 (Stats. 1975, ch. 961, § 2, p. 2247, operative July 1, 1976; codified as
[Gov. Code,] §§ 3540-3549.3). The Act requires the school district employer to meet and
negotiate in good faith with the duly selected exclusive representative of its employees as
to subjects within the statutorily defined scope of representation. (§§ 3543.3, 3543.5.)
The parties may enter into a binding agreement (§ 3540.1, subd. (h)), and they may agree
that disputes involving interpretation, application or violation of the agreement will be
resolved through binding arbitration (§§ 3548.5, 3548.6, 3548.7). The employer must
negotiate in good faith and must submit to mediation and advisory fact-finding when an
impasse in negotiations is determined to have been reached. (§§ 3548-3548.3.) But the
final decision as to the terms of the negotiated agreement, including those matters within
the scope of representation, is reserved to the employer. (§ 3549.)
“The purpose of the EERA is set forth in section 3540: „to promote the
improvement of personnel management and employer-employee relations within the
public school systems in . . . California by providing a uniform basis for recognizing the
right of public school employees to join organizations of their own choice, to be
represented by such organizations in their professional and employment relationships
with public school employers, to select one employee organization as the exclusive
representative of the employees in an appropriate unit, and to afford certificated
employees a voice in the formulation of educational policy.‟ ” (San Mateo, supra, 33
Cal.3d at pp. 855-856.)
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One of the issues in San Mateo was the relationship between the EERA and the
Education Code, and specifically the meaning of Government Code section 3540‟s
statement that “[t]his chapter [pertaining to the EERA] shall not supersede other
provisions of the Education Code . . . .” In San Mateo, we adopted the view of the Public
Employment Relations Board (PERB) that this clause of section 3540 — sometimes
called the “non-supersession clause” — prohibits negotiations when “provisions of the
Education Code would be „replaced, set aside or annulled by the language of the
proposed contract clause.‟ . . . „Unless the statutory language [of the Education Code]
clearly evidences an intent to set an inflexible standard or insure immutable provisions,
the negotiability of a proposal should not be precluded.‟ ” (San Mateo, supra, 33 Cal.3d
at pp. 864-865.)
Elaborating on this framework, the court in San Mateo considered the school
districts‟ argument that “some parts of the Education Code exhibit a legislative intent to
fully occupy the field to which they pertain thereby denoting that the Legislature also
clearly intended to preclude collective negotiations and agreements in the same field.
Where such statutory schemes are involved, a contract proposal may be in conflict
without „annulling‟ the statute, and negotiations should be prohibited. [¶] The primary
example offered is those sections establishing a scheme for the layoff of classified
employees. (Ed. Code, §§ 45101, subd. (g), 45114, 45115, 45117, 45298, and 45308.)
Another example would be found in Education Code sections 45113 and 45116,
pertaining to causes and procedures leading to disciplinary action.” (San Mateo, supra,
33 Cal.3d at p. 866.) We agreed with the school districts that “these particular statutes
mandate certain procedures, protections and entitlements for classified employees who
are to be laid off or disciplined. The intent of section 3540 is to preclude contractual
agreements which would alter these statutory provisions. [¶] Where statutes are
mandatory, . . . a contract proposal which would alter the statutory scheme would be
nonnegotiable under PERB‟s application of section 3540 because the proposal would
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„replace or set aside‟ the section of the Education Code.” (Ibid.) On the other hand,
where collective bargaining on a subject regulated by the Education Code “would not
supersede the relevant part of the Education Code, but would strengthen it,” bargaining is
permitted. (Ibid.)
We applied the San Mateo framework to arbitration in Round Valley, where we
vacated an arbitration award reinstating a probationary teacher who had not been
reelected (i.e., permanently retained). Although the district had not followed the due
process and just cause provisions of the collective bargaining agreement, we concluded
that those provisions were unenforceable because they conflicted with the district‟s
authority under section 44929.21, subdivision (b) to decide not to reelect a probationary
teacher without affording the teacher such due process protections. (Round Valley,
supra, 13 Cal.4th at pp. 283-285.) We explained that this conclusion was consistent with
San Mateo‟s “observ[ation] that the intent of the Government Code is to preclude
contractual agreements that would alter the meaning of other statutory provisions. As
District observes, if we were to validate the requirements of [the collective bargaining]
agreement with Association, we would severely undermine section 44929.21(b). Indeed,
under San Mateo, supra, enforcement of [the collective bargaining provision] would
result in replacing or setting aside a nonnegotiable and mandatory provision of the
Education Code, a result . . . Government Code section 3540 et seq. sought to avoid.”
(Round Valley, at p. 286, italics in original.) We held that “[w]hen the Legislature vests
exclusive discretion in a body to determine the scope of procedural protections to specific
employees, the subject matter may not be the subject of either mandatory or permissive
collective bargaining” and, on that basis, vacated the arbitration award because it sought
to enforce an unlawful collective bargaining provision. (Id. at p. 287; see also Sunnyvale
Unified School Dist. v. Jacobs (2009) 171 Cal.App.4th 168 [where probationary teacher
claims nonreelection was motivated by retaliation for participation in union activities, the
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only remedy is filing an unfair labor practice charge with PERB, not arbitration pursuant
to collective bargaining agreement].)
Although Round Valley involved vacatur of an award arising from an already
completed arbitration, the principles expounded in Round Valley and San Mateo have
been applied in two Court of Appeal cases to deny a petition to compel arbitration. In
United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, the
court upheld the denial of a petition to compel arbitration of a disputed collective
bargaining provision concerning the Fontana Unified School District‟s termination of a
bus driver who was a permanent classified employee. The court determined that such
arbitration would directly conflict with section 45113, which at the time stated that
“ „[a]ny employee designated as a permanent employee shall be subject to disciplinary
action only for cause as prescribed by rule or regulation of the governing board, but the
governing board‟s determination of the sufficiency of the cause for disciplinary action
shall be conclusive.‟ ” (United Steelworkers, at p. 832, italics omitted.) Noting that our
decision in San Mateo had specifically cited section 45113 as an example of an Education
Code statute mandating “certain, procedures, protections and entitlements” that cannot be
altered by a collective bargaining agreement (United Steelworkers, at p. 832, citing San
Mateo, supra, 33 Cal.3d at p. 866, italics omitted), the court concluded that “under the
San Mateo rationale, the governing board‟s determination as to sufficiency of cause to
terminate is conclusive and cannot be usurped by an agreement with the Union to
subsequently submit grievances to binding arbitration” (United Steelworkers, at p. 833).
In Fontana Teachers Assn. v. Fontana Unified School Dist. (1988) 201
Cal.App.3d 1517, 1521-1526 (Fontana), the court undertook a statutory analysis similar
to our own in Round Valley to conclude that collective bargaining provisions for non-
reelection of a probationary teacher were preempted by the Education Code and thus not
subject to arbitration. In Round Valley, we specifically endorsed the result in Fontana,
though not all of its reasoning. (Round Valley, supra, 13 Cal.4th at p. 283 [approving
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Fontana‟s refusal to compel arbitration in light of Government Code section 3543.2,
subdivision (a)‟s “general intent to exclude the procedures governing the reelection of
probationary teachers as a proper subject of collective bargaining”].)
The conclusion that courts should refuse to compel arbitration of collective
bargaining provisions in conflict with the Education Code is consistent with the statutory
scheme governing arbitration under the EERA. Government Code section 3548.5
provides: “A public school employer and an exclusive representative who enter into a
written agreement covering matters within the scope of representation may include in the
agreement procedures for final and binding arbitration of such disputes as may arise
involving the interpretation, application, or violation of the agreement.” The statute
makes clear that authorization to arbitrate is predicated on the existence of a collective
bargaining agreement “covering matters within the scope of representation.” Under
Government Code section 3543.2, subdivision (a), the “scope of representation” is
defined broadly to include wages, hours, benefits, leave, transfer and reassignment
policies, safety conditions, class size, and procedures for evaluation, discipline, layoff,
and grievance, among other topics. But, as we held in San Mateo, the scope of
representation does not include matters that would annul, set aside, or replace portions of
the Education Code. (San Mateo, supra, 33 Cal.3d at pp. 863-866.) Therefore,
Government Code section 3548.5, read in conjunction with Government Code section
3540‟s non-supersession clause, means that the EERA does not authorize arbitration of
collective bargaining provisions that directly conflict with the Education Code.
B.
Our conclusion is not at odds with the California Arbitration Act. (Code Civ.
Proc., § 1280 et seq.) The act states that a trial court faced with a petition to compel
arbitration “shall order the petitioner and the respondent to arbitrate the controversy if it
determines that an agreement to arbitrate the controversy exists, unless it determines that:
[¶] (a) The right to compel arbitration has been waived by the petitioner; or
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[¶] (b) Grounds exist for the revocation of the agreement.” (Id., § 1281.2.) The act
further provides that “[i]f the court determines that a written agreement to arbitrate a
controversy exists, an order to arbitrate such controversy may not be refused on the
ground that the petitioner‟s contentions lack substantive merit.” (Ibid.)
It is well established that a court will not grant a petition to compel arbitration
filed pursuant to Code of Civil Procedure section 1281.2 if the subject matter to be
arbitrated is not within the scope of the arbitration agreement. (See Service Employees
Internat. Union v. City of Los Angeles (1994) 24 Cal.App.4th 136, 143-144.) Generally,
a court will look to the arbitration agreement itself to determine its scope. But, as
explained above, the scope of arbitration between a school district and a union
representing school employees is further limited as a matter of law by the EERA‟s non-
supersession clause. Thus, Code of Civil Procedure section 1281.2‟s general mandate
that a court shall compel arbitration where a valid arbitration agreement exists is qualified
by the EERA‟s placement of certain subjects governed by the Education Code beyond the
scope of an arbitration agreement between a school district and an employee union.
The EERA‟s qualification of Code of Civil Procedure section 1281.2 illuminates
why California Correctional Peace Officers, supra, 142 Cal.App.4th 198, on which the
Court of Appeal relied, does not aid UTLA. In that case, the union represented rank-and-
file state correctional officers as well as their supervisors. Although the two groups
engaged in separate negotiations, the union alleged that a longtime practice, arguably
ratified by the collective bargaining agreement, allowed supervisors to sit in on rank-and-
file negotiations as observers, and vice versa. (Id. at pp. 202-203.) Shortly before the
commencement of the litigation, the Department of Personnel Administration
(Department) announced it was discontinuing the practice of allowing observers because
rank-and-file observers had been disruptive in previous bargaining sessions with
supervisors. (Id. at p. 202.)
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The union filed a grievance and eventually a petition to compel arbitration,
claiming that the collective bargaining agreement supported the continuation of the
practice. The Department opposed the petition based on Government Code section 3529,
subdivision (c), which states: “Excluded employees [i.e., supervisors] shall not
participate in meet and confer sessions on behalf of nonexcluded employees [i.e., rank-
and-file]. Nonexcluded employees shall not participate in meet and confer sessions on
behalf of supervisory employees.” “This statute, the Department argued, prohibits
supervisory employees from observing bargaining sessions of rank-and-file employees,
superseding any inconsistent language in the [memorandum of understanding] or the
ground rules. From this premise, the Department argued that the petition to compel
arbitration should be denied because courts have exclusive power to interpret and apply
state statutes.” (California Correctional Peace Officers, supra, 142 Cal.App.4th at
p. 204.)
The court rejected the Department‟s argument based largely on its reading of Code
of Civil Procedure section 1281.2. The court stated that “[s]ection 1281.2 expressly
forbids the court from reaching the merits of the parties‟ dispute” and that “ „[i]f the court
determines that a written agreement to arbitrate a controversy exists, an order to arbitrate
such controversy may not be refused on the ground that the petitioner‟s contentions lack
substantive merit.‟ ” (California Correctional Peace Officers, supra, 142 Cal.App.4th at
p. 205.) While correct that a court generally may not examine the merits of the
underlying dispute in deciding a petition to compel arbitration, California Correctional
Peace Officers is distinguishable on two grounds that limit the applicability of that
general rule.
First, because California Correctional Peace Officers did not address a petition to
compel arbitration in the context of the EERA, it had no occasion to consider the EERA‟s
limitations on the scope of collective bargaining. Instead, the case was decided under the
Ralph C. Dills Act (Dills Act), which governs collective bargaining with state
11
government employees. (Gov. Code, § 3512 et seq.) Second, even if the Dills Act were
construed to mean that a collective bargaining provision in direct conflict with that act is
inarbitrable, no such conflict was present in California Correctional Peace Officers.
Government Code section 3529‟s prohibition against supervisory employees participating
“in meet and confer sessions on behalf of” rank and file employees does not appear to
categorically preclude supervisors from acting as observers in such meet and confer
sessions. Whether an observer could properly be characterized as participating “on
behalf of” rank-and-file employees is not clear from the statute and would likely depend
on the facts of a particular case. It was thus reasonable for the court to invoke the
principle that “ „ “ „[d]oubts as to whether an arbitration clause applies to a particular
dispute are to be resolved in favor of sending the parties to arbitration.‟ ” ‟ ” (California
Correctional Peace Officers, supra, 142 Cal.App.4th at p. 205.) By contrast, in United
Steelworkers of America v. Board of Education, supra, 162 Cal.App.3d 823, and
Fontana, supra, 201 Cal.App.3d 1517, there was no doubt that the collective bargaining
provisions at issue conflicted with mandatory directives of the Education Code and could
not be enforced pursuant to collective bargaining arbitration.
C.
The principle that collective bargaining provisions in conflict with the Education
Code may not be enforced through arbitration is also consistent with precedents of our
court and the United States Supreme Court. The case law generally favors arbitration,
but within limits. In Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169 (Posner), a
union sought to compel the employer to arbitrate questions of eligibility for vacation and
holiday pay pursuant to a collective bargaining agreement. The trial court denied the
petition, concluding that “ „[t]he wording of the collective bargaining agreement is
without ambiguity as to vacation pay and holiday pay‟ ” and clearly favored the
employer. (Id. at p. 174.) In so holding, the trial court applied “the so-called „Cutler-
Hammer‟ doctrine, which is that: „While the contract provides for arbitration of disputes
12
as to the “meaning, performance, non-performance or application” of its provisions, the
mere assertion by a party of a meaning of a provision which is clearly contrary to the
plain meaning of the words cannot make an arbitrable issue. . . . If the meaning of the
provision of the contract sought to be arbitrated is beyond dispute, there cannot be
anything to arbitrate and the contract cannot be said to provide for arbitration.‟
(International Assn. of Machinists v. Cutler-Hammer, Inc. [(1947)] 271 App.Div. 917 [67
N.Y.S.2d 317, 318], affd. 297 N.Y. 519 [74 N.E.2d 464].)” (Ibid.)
In Posner, we rejected the Cutler-Hammer doctrine and reversed the denial of the
petition to compel arbitration. We followed the rule formulated by the United States
Supreme Court in the context of federal labor law, articulated the previous year in the
“Steelworkers Trilogy” cases. (See Steelworkers v. American Mfg. Co. (1960) 363 U.S.
564; Steelworkers v. Warrior & Gulf Co. (1960) 363 U.S. 574; Steelworkers v. Enterprise
Corp. (1960) 363 U.S. 593.) “This rule is to the effect that, where the collective
bargaining agreement provides for arbitration of all disputes pertaining to the meaning,
interpretation and application of the collective bargaining agreement and its provisions,
any dispute as to the meaning, interpretation and application of any specific matter
covered by the collective bargaining agreement is a matter for arbitration. Doubts as to
whether the arbitration clause applies are to be resolved in favor of coverage. The parties
have contracted for an arbitrator‟s decision and not for that of the courts. The high court
declared that „The function of the court is very limited when the parties have agreed to
submit all questions of contract interpretation to the arbitrator. It is confined to
ascertaining whether the party seeking arbitration is making a claim which on its face is
governed by the contract. Whether the moving party is right or wrong is a question of
contract interpretation for the arbitrator. In these circumstances the moving party should
not be deprived of the arbitrator‟s judgment, when it was his judgment and all that it
connotes that was bargained for.‟ (United Steelworkers v. American Mfg. Co., supra, 363
U.S. 564, 567-568.)” (Posner, supra, 56 Cal.2d at p. 175.)
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At the same time, however, one of the Steelworkers Trilogy cases that Posner
relied on, Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at pages 584-585
(Warrior & Gulf Co.), recognized that a matter expressly excluded from the collective
bargaining agreement cannot be arbitrated. In that case, the union filed a grievance
claiming that the employer had violated the collective bargaining agreement by laying off
some employees and contracting with other companies for work previously done by those
employees. The district court dismissed the union‟s suit to compel arbitration, and the
Court of Appeal upheld the dismissal, concluding that “the collective agreement had
withdrawn from the grievance procedure „matters which are strictly a function of
management‟ and that contracting out fell in that exception.” (Id. at p. 577.)
The United States Supreme Court reversed on the ground that it is generally for
the arbitrator and not the court to determine whether contracting out is strictly a
management function or is subject to limitation by the collective bargaining agreement.
(Warrior & Gulf Co., supra, 363 U.S. at p. 584.) The court explained that the labor
arbitrator is “ „part of a system of self-government,‟ ” who uses “his knowledge of the
common law of the shop” and of the industry to fill in the gaps in the collective
bargaining agreement. (Id. at pp. 581-582.) Nevertheless, the high court said, “[a]
specific collective bargaining agreement may exclude contracting out from the grievance
procedure. Or a written collateral agreement may make clear that contracting out was
not a matter for arbitration. In such a case a grievance based solely on contracting out
would not be arbitrable.” (Id. at p. 584, italics added.) Because there was no “express
provision excluding [the contracting out] grievance from arbitration” in Warrior & Gulf
Co., the high court held that the union‟s grievance was arbitrable. (Id. at p. 585.)
In the EERA, as in federal labor law, collective bargaining arbitration is part of a
system of workplace self-government that allows employees to join organizations that
represent them “in their professional and employment relationships with public school
employers” and afford them “a voice in the formulation of educational policy.” (Gov.
14
Code, § 3540.) However, because labor relations in this area significantly intersect with
educational goals affecting society as a whole, the Legislature has limited the scope of
such self-governance by withdrawing from collective bargaining certain matters in the
Education Code. The Legislature has decided that those matters should be exclusively
management prerogatives, subject only to the constraints of statute. Just as Warrior &
Gulf Co. recognized that a grievance is inarbitrable when it arises from a matter expressly
excluded by the parties from the collective bargaining agreement, the EERA makes clear
that a grievance is inarbitrable when it arises from a matter, such as the reelection of
probationary teachers (see Fontana, supra, 201 Cal.App.3d 1517), on which collective
bargaining is statutorily preempted.
D.
In sum, we reaffirm the principle set forth in San Mateo and its progeny that
collective bargaining provisions pursuant to the EERA that annul, set aside, or replace
provisions of the Education Code cannot be enforced. That nonenforcement will take
various forms, depending on the point at which the attempt to enforce the unlawful
provision occurs. A court will refuse to compel a school district to negotiate about a
subject that the Education Code places off-limits to collective bargaining. (San Mateo,
supra, 33 Cal.3d at pp. 864-866.) If a court is asked to compel arbitration of a collective
bargaining provision that directly conflicts with the Education Code — in other words,
when the Education Code makes clear that the arbitrator would be unable to lawfully
grant the aggrieved party any form of relief — it should deny the petition to compel
arbitration. (United Steelworkers of America v. Board of Education, supra, 162
Cal.App.3d 823; Fontana, supra, 201 Cal.App.3d 1517.) When there are doubts about
the arbitrability of a grievance, however, those doubts should be resolved in favor of
arbitration. (California Correctional Peace Officers, supra, 142 Cal.App.4th at p. 205.)
Once a grievance crosses the threshold of arbitrability because the matter in dispute is not
excluded from collective bargaining by the Education Code or by the parties themselves,
15
a court may not deny a petition to compel arbitration on the ground that the grievance
lacks merit. (Posner, supra, 56 Cal.2d at pp. 175-176.) If the matter proceeds to
arbitration and results in an award that conflicts with the Education Code, the award must
be vacated. (Round Valley, supra, 13 Cal.4th at pp. 287-288.)
III.
In light of the discussion above, the question of whether the Education Code
precludes the collective bargaining provisions that UTLA seeks to enforce is not, as the
Court of Appeal held, irrelevant to the issue of arbitrability. Rather, it goes to the heart of
the issue. We now turn to that question.
A.
We begin with an examination of the pertinent statutes. By enacting the Charter
Schools Act of 1992, the Legislature authorized the creation of charter schools in order to
“provide opportunities for teachers, parents, pupils, and community members to establish
and maintain schools that operate independently from the existing school district
structure, as a method to accomplish all of the following: (a) Improve pupil learning.
(b) Increase learning opportunities for all pupils, with special emphasis on expanded
learning experiences for pupils who are identified as academically low achieving.
(c) Encourage the use of different and innovative teaching methods. (d) Create new
professional opportunities for teachers, including the opportunity to be responsible for the
learning program at the schoolsite. (e) Provide parents and pupils with expanded choices
in the types of educational opportunities that are available within the public school
system. (f) Hold the schools established under this part accountable for meeting
measurable pupil outcomes, and provide the schools with a method to change from rule-
based to performance-based accountability systems. (g) Provide vigorous competition
within the public school system to stimulate continual improvements in all public
schools.” (§ 47601, paragraphing omitted.)
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The charter school legislation sought to encourage educational innovation by
creating schools that would be “free from most state laws pertaining uniquely to school
districts.” (Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1130.) At the
same time, “charter schools are strictly creatures of statute. From how charter schools
come into being, to who attends and who can teach, to how they are governed and
structured, to funding, accountability and evaluation — the Legislature has plotted all
aspects of their existence.” (Id. at p. 1135.)
Section 47605 details the means by which a charter school may be established.
The first step, set forth in subdivision (a), is submission to the governing board of a
school district a petition signed either by “a number of parents or legal guardians of
pupils that is equivalent to at least one-half of the number of pupils that the charter school
estimates will enroll in the school for its first year of operation” or by “a number of
teachers that is equivalent to at least one-half of the number of teachers that the charter
school estimates will be employed at the school during its first year of operation.”
(§ 47605, subd. (a)(1)(A) & (B).) When the petition “proposes to convert an existing
public school to a charter school,” as in the present case, “[t]he petition may be submitted
to the governing board of the school district for review after the petition has been signed
by not less than 50 percent of the permanent status teachers currently employed at the
public school to be converted.” (Id., subd. (a)(2).) The petition “shall include a
prominent statement that a signature on the petition means that the parent or legal
guardian is meaningfully interested in having his or her child or ward attend the charter
school, or in the case of a teacher‟s signature, means that the teacher is meaningfully
interested in teaching at the charter school. The proposed charter shall be attached to the
petition.” (Id., subd. (a)(3).)
Subdivision (b) of section 47605 (hereafter section 47605(b)) prescribes the
manner by which a school district governing board is to approve or deny a charter
petition: “No later than 30 days after receiving a petition, in accordance with subdivision
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(a), the governing board of the school district shall hold a public hearing on the
provisions of the charter, at which time the governing board of the school district shall
consider the level of support for the petition by teachers employed by the district, other
employees of the district, and parents. Following review of the petition and the public
hearing, the governing board of the school district shall either grant or deny the charter
within 60 days of receipt of the petition, provided, however, that the date may be
extended by an additional 30 days if both parties agree to the extension. In reviewing
petitions for the establishment of charter schools pursuant to this section, the chartering
authority shall be guided by the intent of the Legislature that charter schools are and
should become an integral part of the California educational system and that
establishment of charter schools should be encouraged. The governing board of the
school district shall grant a charter for the operation of a school under this part if it is
satisfied that granting the charter is consistent with sound educational practice.”
Section 47605(b) also sets forth the grounds on which a governing board can deny
a petition: “The governing board of the school district shall not deny a petition for the
establishment of a charter school unless it makes written factual findings, specific to the
particular petition, setting forth specific facts to support one or more of the following
findings: (1) The charter school presents an unsound educational program for the pupils
to be enrolled in the charter school. (2) The petitioners are demonstrably unlikely to
successfully implement the program set forth in the petition. (3) The petition does not
contain the number of signatures required by subdivision (a). (4) The petition does not
contain an affirmation of each of the conditions described in subdivision (d) [requiring a
charter school to be nonsectarian and not to engage in certain types of discrimination].”
(Paragraphing omitted.)
A petition can also be denied under section 47605(b) if it does not “contain
reasonably comprehensive descriptions” of an extensive list of items, including “the
educational program of the school,” “measurable pupil outcomes,” “[t]he method by
18
which pupil progress in meeting those pupil outcomes is to be measured,” “[t]he
governance structure of the school,” “the qualifications to be met by individuals to be
employed by the school,” “[a]dmission requirements, if applicable,” “[t]he manner by
which staff members of the charter schools will be covered by the State Teachers‟
Retirement System, the Public Employees‟ Retirement System, or federal social
security,” “[a] description of the rights of any employee of the school district upon
leaving the employment of the school district to work in a charter school, and of any
rights of return to the school district after employment at a charter school,” and “[a]
declaration whether or not the charter school shall be deemed the exclusive public school
employer of the employees of the charter school” for purposes of the EERA.
(§ 47605(b)(5).)
After a charter is granted, the granting authority can revoke the charter “if the
authority finds, through a showing of substantial evidence, that the charter school did any
of the following: (1) Committed a material violation of any of the conditions, standards,
or procedures set forth in the charter. (2) Failed to meet or pursue any of the pupil
outcomes identified in the charter. (3) Failed to meet generally accepted accounting
principles, or engaged in fiscal mismanagement. (4) Violated any provision of law.”
(§ 47607, subd. (c) (hereafter section 47607(c), paragraphing omitted).) “Prior to
revocation, the authority that granted the charter shall notify the charter public school of
any violation of this section and give the school a reasonable opportunity to remedy the
violation, unless the authority determines, in writing, that the violation constitutes a
severe and imminent threat to the health or safety of the pupils.” (§ 47607, subd. (d)
(hereafter section 47607(d)).)
The role of collective bargaining in charter schools has evolved since the original
passage of the Charter Schools Act of 1992. The legislative history shows that there were
two versions of the statute that the Legislature enacted in 1992. One of them, Assembly
Bill No. 2585 (1991-1992 Reg. Sess.), would have required teachers‟ union consent for
19
conversion of an existing school to a charter school. The other, Senate Bill No. 1448
(1991-1992 Reg. Sess.), did not authorize union approval of charter schools or require
collective bargaining. Governor Wilson vetoed the former bill and signed the latter.
In his veto message for Assembly Bill No. 2585, he identified that bill‟s provisions
requiring “teacher union approval of all charter schools” and “elaborate collective-
bargaining processes” as reasons for his veto. (Governor‟s Veto Message to Assem.
on Assem. Bill No. 2585, Sept. 20, 1992, 6 Assem.J. (1991-1992 Reg.Sess.)
pp. 10208-10209.)
The role of employee unions and collective bargaining in charter schools changed
with the passage of section 47611.5 in 1999. (Stats 1999, ch. 828, § 2, p. 6014.)
Subdivision (a) of section 47611.5 provides that the EERA “shall apply to charter
schools,” thereby authorizing union representation of charter school employees.
Subdivision (e) of section 47611.5 (hereafter section 47611.5(e)), however, establishes an
important limit to that representation: “The approval or a denial of a charter petition by a
granting agency pursuant to subdivision (b) of Section 47605 shall not be controlled by
collective bargaining agreements nor subject to review or regulation by the Public
Employment Relations Board.”
From the above statutes, three conclusions important to the resolution of this case
emerge. First, by stating that “[t]he governing board of the school district shall not deny
a petition for the establishment of a charter school unless it makes written factual
findings” that the charter does not meet one or more of the statutorily specified
requirements, section 47605(b) makes clear that the grounds for denying a charter school
petition enumerated in that subdivision are exclusive. Second, because section 47607(d)
provides that “[p]rior to revocation, the authority that granted the charter shall notify the
charter public school of any violation of this section” (italics added), it is clear that
section 47607(c) sets forth the exclusive grounds for revocation of an existing charter.
Third, section 47611.5(e), read in conjunction with the non-supersession clause of
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Government Code section 3540, makes clear that while union representation and
collective bargaining do have a place in charter schools, the approval or denial of a
charter petition may not be controlled by a collective bargaining agreement.
B.
We now examine whether the collective bargaining provisions at issue in this case
conflict with the statutes above. UTLA‟s grievance contends that the District, in the
course of reviewing and approving the Locke High School charter conversion, violated
sections 2.0 and 3.0 of Article XII-B of the 2006-2009 collective bargaining agreement
between the District and UTLA (hereafter sections 2.0 and 3.0). The District argues that
sections 2.0 and 3.0 in their entirety are preempted by the Education Code. By contrast,
UTLA argues that the collective bargaining provisions do not conflict with section 47605
or other charter school statutes but rather advance their efficacy by facilitating greater
communication between the District, UTLA, and represented employees.
As an initial matter, we note that “[a]n agreement may authorize an arbitrator,
rather than a court, to determine whether a given controversy is subject to arbitration, but
if it does not, then the court must make this determination. [Citation.]” (Fontana, supra,
201 Cal.App.3d at p. 1521.) In the present case, the agreement does not authorize the
arbitrator to determine arbitrability. Accordingly, we need not decide whether a
collective bargaining agreement under the EERA that delegates that determination to an
arbitrator means that the arbitrator would decide in the first instance whether a collective
bargaining provision conflicts with the Education Code. The arbitrability issue in this
case is for the court.
Section 2.0 of the collective bargaining agreement addresses the District‟s
obligations to the union and its employees during the charter application process. It
provides: “Charter Application Procedures: In addition to whatever procedures the
Board of Education may establish in its discretion, the District shall adhere to the
following procedures in processing or considering approval of any proposal to convert an
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existing District school to Charter School status.” Section 2.0 then provides that the
District‟s “procedures and instructions” should “urge” or “encourage” the charter school
petitioner to present the complete charter to employees before soliciting signatures, to
discuss alternatives to charter conversion with the District and UTLA, and to fully
disclose the terms and conditions of employment as specified in section 3.0. In addition,
section 2.0 (c) provides: “Within five days of receipt of a Charter School proposal from a
formative Conversion Charter School, the District Charter Schools office shall forward a
copy to UTLA. UTLA shall then be granted not less than 30 days in which to submit
comments and/or recommendations to the Board of Education concerning the charter
application.”
Section 3.0 provides: “Full Disclosure by Charter Schools: Conversion Charter
Schools operate independently of the District, and may or may not choose to adopt pay,
benefits and other employment practices comparable to those of the District. Conversion
Charter Schools (including proposed Charter Schools) therefore will be expected, in
fairness to affected employees and all other concerned persons, to disclose clearly and
fully the basic terms and conditions of employment to be provided by the Charter School
— and do so prior to asking the employees for any formal commitments of support
and/or employment, and also to do so when the Charter School‟s employees annually
decide whether to renew their District leaves of absence (see below) in order to remain
employed by the Charter School.” It then enumerates various disclosures that charter
school petitioners “should” make, including “a. Whether the Charter School intends to
request that the District grant leaves of absence to the charter school‟s employees to
facilitate their charter school service and protect their rights of return, as discussed in
Sections 5.0 and 6.0 below; b. Whether the Charter School intends to request that the
District provide, at charter school expense, continued coverage under the District health
benefits programs, as described in Section 7.0 below; c. The salaries to be paid to the
22
Charter School‟s employees, and the salary progression system to be observed, if any;
also, the pay rates, if any, to be offered for identified extra duty assignments.”
The District takes the position that sections 2.0 and 3.0 in their entirety conflict
with the Education Code in part because one of the remedies UTLA requested on its
grievance form for the alleged violations of sections 2.0 and 3.0 is to “rescind Charter
approval and all references thereafter.” The District contends that any such rescission
would necessarily run afoul of key charter school statutes. We agree that rescission is not
a permissible remedy here. As discussed above, section 47605(b) provides the exclusive
grounds for denying a charter petition, and section 47607(c) sets forth the exclusive
grounds for revoking a charter. Section 47611.5(e) prohibits a collective bargaining
agreement from controlling the approval or a denial of a charter petition, and Government
Code section 3540‟s non-supercession clause forbids collective bargaining provisions
that conflict with the Education Code. These statutes taken together squarely prohibit
rescission of a charter approval because of noncompliance with requirements imposed by
a collective bargaining agreement. Thus, rescission of the Locke High School charter
pursuant to UTLA‟s grievance would clearly annul or set aside provisions of the
Education Code and may not be granted.
Moreover, we agree with the District that section 47605 establishes a
comprehensive process for approval of charter petitions, spelling out precisely what is
expected of a charter applicant. Any collective bargaining provision that delays the
timelines set forth in section 47605 or adds to an applicant‟s statutory obligations for
securing approval of a charter conflicts with section 47605 and may not be enforced.
These conclusions, however, do not necessarily render all of UTLA‟s grievances
inarbitrable. UTLA‟s grievance form also requests as a remedy “full and complete
compliance with the Collective Bargaining Agreement,” “express acknowledgement of
UTLA rights,” and “such further relief as may be granted under the Collective Bargaining
Agreement.” These remedies arguably may take the form of prospective relief against
23
the District that neither controls the approval or denial of a charter petition nor delays or
obstructs the charter petition approval process.
Moreover, some parts of sections 2.0 and 3.0 require the District to take certain
steps that will lead to the provision of information about the charter petition to affected
employees and to UTLA. It is not clear whether the charter school statutes preclude a
school district from voluntarily consenting in a collective bargaining agreement to take
such steps. It is also unclear whether enforcement of such an agreement will invariably
delay or obstruct the charter petition process. For example, to what extent, if any, would
the charter petition process be unlawfully delayed or obstructed by section 2.0(c)‟s
requirement that the District must make a charter proposal available to UTLA within five
days of receipt?
As this case stands before us, we decline to decide which parts of sections 2.0 and
3.0, if any, conflict with the Education Code because it is unclear which parts of sections
2.0 and 3.0 UTLA seeks to enforce in its grievance. This lack of clarity is due to the fact
that most of UTLA‟s grievances do not precisely correspond to any provision in section
2.0 or section 3.0. For example, whereas UTLA‟s first grievance states that the District
did “not present[] the complete Charter to employees,” the collective bargaining
provision that appears to be most closely related, section 2.0(a), requires the District to
adopt “procedures and instructions” that “urge” charter applicants to present a complete
charter to employees before soliciting signatures on a charter petition. Similarly, whereas
UTLA‟s fourth grievance states that the District failed to “disclos[e] clearly and fully the
basic terms and conditions of employment to be provided by Charter School,” the
collective bargaining provision that appears to be most closely related, section 2.0(d),
requires the District to adopt “procedures and instructions” that “encourage” charter
applicants to disclose terms and conditions of employment. Further, whereas UTLA‟s
grievance form lists section 3.0 as one of the collective bargaining provisions “allegedly
violated” by the District, section 3.0 by its terms imposes no obligations on the District;
24
instead, it lists various disclosures that charter schools or charter applicants are
“expected” to make.
Rather than guess which collective bargaining provisions UTLA is actually
invoking, we remand the case to the trial court with instructions to direct UTLA to
identify such provisions in an amended petition to compel arbitration and to explain why
those provisions do not set aside, annul, or replace provisions of the Education Code.
UTLA should identify with specificity such collective bargaining provisions. For reasons
of judicial economy and judicial restraint, and to minimize incentives toward overbroad
and poorly drafted grievances, courts should apply Education Code preemption analysis
only to the specific collective bargaining provisions that are actually at issue in a given
case. Where, as here, it is unclear which collective bargaining provisions are at issue, the
court should request clarification. Moreover, a party may not claim that a nonpreempted
provision is at issue in order to compel arbitration, but then attempt to arbitrate a
preempted provision. Such a bait-and-switch tactic would lead to vacatur of the
arbitration award.
We emphasize that we express no view on the enforceability of the collective
bargaining provisions or the merits of UTLA‟s grievances. Nor do we suggest what
remedy, if any, would be available in the event that some of UTLA‟s grievances prove
meritorious. We hold only that a collective bargaining provision does not conflict with
the Education Code if its enforcement would neither control the approval or denial of a
charter petition nor delay or obstruct the charter petition approval process. Because it is
unclear which collective bargaining provisions are at issue in this case, we remand to the
trial court to identify those provisions and to determine whether their enforcement would
set aside, annul, or replace provisions of the Education Code. We also make clear that if
the arbitration process, in applying the collective bargaining agreement to the particulars
of this dispute, ends up imposing obligations on the District that run counter to the statute
or otherwise violate public policy, the arbitration award must be vacated.
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IV.
The District filed a motion shortly before oral argument requesting we take
judicial notice of legislative history materials pertaining to section 47611.5 and of certain
collective bargaining provisions not included in the appellate record. The District
explained that this motion was originally filed in the Court of Appeal and was denied
evidently because of the Court of Appeal‟s view that anything going to the issue of
whether a collective bargaining provision violated the Education Code was not relevant.
In this court, the District filed a motion requesting judicial notice of other material, but it
did not file a motion separately requesting that we judicially notice the material rejected
by the Court of Appeal. The District apparently believed that we would consider the
rejected motion for judicial notice as a matter of course. Our order shortly before oral
argument granting and denying various judicial notice requests did not include the
judicial notice motion rejected by the Court of Appeal. The District then filed the present
motion in this court.
The District‟s motion prompts us to make clear that we will not consider a judicial
notice motion filed in and rejected by the Court of Appeal unless a party files a separate
motion in this court seeking judicial notice. This requirement follows from the California
Rules of Court, rule 8.252(a) that “[t]o obtain judicial notice by a reviewing court under
Evidence Code section 459, a party must serve and file a separate motion with a proposed
order.” (See Cal. Rules of Court, rule 8.520(g) [“[t]o obtain judicial notice by the
Supreme Court . . . a party must comply with rule 8.252(a)].”) Also, once this court
grants review, not all matters and motions that were before the Court of Appeal continue
to be relevant to the case, and it is up to the party seeking judicial notice to renew the
motion in this court.
As for the merits, we grant the District‟s motion to notice relevant legislative
history and a relevant collective bargaining provision of undisputed authenticity. (See
Evid. Code, § 452, subds. (c), (h).)
26
CONCLUSION
The judgment of the Court of Appeal is reversed and the cause is remanded for
proceedings consistent with this opinion.
LIU, J.
WE CONCUR: CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
27
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion United Teachers Los Angeles v. Los Angeles Unified School District
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 177 Cal.App.4th 863
Rehearing Granted
__________________________________________________________________________________
Opinion No. S177403
Date Filed: June 28, 2012
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Mary Ann Murphy
__________________________________________________________________________________
Counsel:
Holguin, Garfield & Martinez, Holguin, Garfield, Martinez & Quiñonez, Jesús E. Quiñonez and John J. Kim for
Plaintiff and Appellant.
Altshuler Berzon, Stephen P. Berzon and Matthew J. Murray for California Teachers Association as Amicus Curiae
on behalf of Plaintiff and Appellant.
Miller Brown & Dannis, Dannis Woliver Kelley and Sue Ann Salmon Evans for Defendant and Respondent.
Lozano Smith, Martha Buell Scott and Edward Sklar for California School Boards Association‟s Education Legal
Alliance as Amicus Curiae on behalf of Defendant and Respondent.
Law Offices of Middleton, Young & Minner, James E. Young and Chastin H. Pierman for Green Dot Public
Schools as Amicus Curiae on behalf of Defendant and Respondent.
Procopio, Cory, Hargreaves & Savitch, Gregory V. Moser and Alyssa Aiko Osugi for California Charter Schools
Association as Amicus Curiae on behalf of Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jesús E. Quiñonez
Holguin, Garfield & Martinez
800 W. Sixth Street. Suite 950
Los Angeles, CA 90017
(213) 623-0170
Stephen P. Berzon
Altshuler Berzon
177 Post Street, Suite 300
Sam Francisco, CA 94108
(415) 421-7151
Sue Ann Salmon Evans
Dannis Woliver Kelley
301 E. Ocean Blvd., Suite 1750
Long Beach, CA 90802
(562) 366-8500
James E. Young
Law Offices of Middleton, Young & Minner
701 University Avenue, Suite 150
Sacramento, CA 95825
(916) 646-1400