Decision to Nonreelect a Probationary Certificated Employee Is Not Subject to Arbitration Under a Collective Bargaining Agreement.

March 10, 2009
Michael Jacobs was in his second year as a probationary teacher when the Sunnyvale Unified School District timely notified him that he would be nonreelected for the following school year. The Sunnyvale Education Association, the exclusive representative for the teachers of the District, filed a grievance alleging that the District's decision to nonreelect was in retaliation for Jacobs' participation in Association activities. The grievance was based on an article in the collective bargaining agreement which prohibited retaliation.

The grievance went to arbitration. The District denied that it retaliated against Jacobs, and also challenged the arbitrator's power to order reinstatement. The arbitrator rejected the challenge and found that the nonreelection was motivated by retaliation by the District for Jacobs' "protected rights under the Collective Bargaining Agreement and related statutes." The arbitrator ordered the District to reinstate Jacobs and pay him for lost wages and benefits.

The District petitioned the superior court to vacate the portion of the award ordering reinstatement. The superior court found in favor of the district and the Association appealed.

The Court of Appeals began its opinion by outlining the relevant statutes: Education Code section 44929.21, which governs the nonreelection of probationary employees, provides a District the ability to nonreelect a probationary teacher without any right of appeal or administrative redress; and a district has the "absolute right" to decide not to reelect probationary teachers without cause and without providing procedural protections. The Court also noted that nonreelection is distinct from dismissal for cause, and distinct from layoffs, both of which provide teachers with the right to a hearing.

The Court also noted that the Education Employment Relations Act (EERA) prohibits school districts from retaliating against employees for associational activities. The EERA is limited, however, in that it "shall not supercede other provisions of the Education Code and the rules and regulations of public school employers which establish and regulate tenure."

The Court framed the issue in the instant case as: "whether a school district's allegedly retaliatory decision not to reelect a probationary teacher may be subject to contractual arbitration procedures." The Court first looked to a case entitled Round Valley Unified School District v. Round Valley Teachers Association, where a district challenged a collective bargaining provision which provided probationary employees more notice of nonreelection than required in the Education Code. In Round Valley, the California Supreme Court held that the EERA implicitly exempted the nonreelection from the permissible scope of bargaining. As a result, the Court held that parties are not allowed to negotiate greater protections for probationary teachers than that afforded by the Education Code. Rather, Education Code section 44929.21 preempts collective bargaining agreements as to causes and procedures governing the reelection of probationary employees.

The Court here noted that Round Valley's holding does not apply only to procedural rights related to nonreelection. Instead, it applies to the decision to nonreelect as a whole. As the Court noted, "the decision [to nonreelect] is outside the scope of the [collective bargaining] agreement as a matter of law." The Court further held that providing a grievance procedure to a nonreelected employee grants the probationary employee a hearing on his or her nonreelection. The Education Code, however, specifically provides that the District's decision to nonreelect does not entitle an employee to any procedural protections. In effect, the Association's use of the grievance procedure would make an end run around the statute.

The Court held that where a teacher complains that his or her nonreelection was in retaliation for associational activities, the appropriate remedy is found under the EERA which prohibits retaliation. As a result, the Association should have filed an unfair labor charge with PERB. PERB would have the authority to reinstate the employee under these circumstances. The Court further held that the matter could not be deferred to arbitration based on the fact that the contract contains a prohibition on retaliation, because the decision to nonreelect a probationary teacher cannot be the subject of collective bargaining.

Sunnyvale Unified School Dist. v. Michael Jacobs (2009) 171 Cal.App.4th 168.
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