BOARD OF EDUCATION OF THE ROUND VALLEY UNIFIED SCHOOL DISTRICT v. ROUND VALLEY TEACHERS ASSOCIATION (1995)

This is an appeal from an order vacating an arbitration award.   The question presented is whether the procedures set forth in a collective bargaining agreement for nonretention of probationary teachers are in conflict with statutory procedures so that an arbitration award enforcing those contractual procedures must be vacated.

FACTS

The Round Valley Teachers Association and the Round Valley Unified School District entered into a collective bargaining agreement effective from July 1, 1987, to June 30, 1990.   Included in article 19, section B(1), of the agreement are procedures for dismissal or nonreemployment of probationary teachers, calling for, among other things, a statement of reasons “as they relate to the teacher's alleged incompetency to teach” and advance 30 days' notice, including notice that the employee may appeal the dismissal or nonreemployment to arbitration.¹

In 1990 Kurt Gritts was completing his second year as a probationary teacher.   In February 1990, Gritts was notified by the district's superintendent that his teaching contract would not be renewed for the 1990–91 school year.   The district, however, did not comply with the procedures of article 19 of the collective bargaining agreement.

On March 26, 1990, Gritts filed a grievance alleging that the school district had violated article 19, section B, of the collective bargaining agreement.   The district denied the grievance, and the matter eventually was submitted to arbitration.²  The arbitrator concluded that the district had violated the agreement and ordered the district to comply with the procedures of article 19, section B(1), and to reconsider its decision not to renew Gritts' teaching contract.   Although the district challenged the validity of the contractual provisions, the arbitrator left that issue to judicial determination.

The school district then filed a petition to vacate the arbitration award asserting that the arbitrator exceeded his powers because the provisions of article 19, section B(1), are preempted by the Education Code and cannot be given effect.   The trial court agreed with the district and vacated the arbitration award.   The teachers association appeals.

DISCUSSION

I. Powers of the Arbitrator

 The Supreme Court has made clear that in light of the strong policy in favor of private arbitration, judicial review of an arbitrator's award is severely limited.   Neither the trial court nor the appellate court will ordinarily review an arbitrator's decision for errors of fact or law.   (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9–13, 10 Cal.Rptr.2d 183, 832 P.2d 899.)

Section 1286.2 of the Code of Civil Procedure sets forth the limited grounds for vacating an arbitrator's award.   Pursuant to subdivision (d), the court shall vacate an arbitrator's award if the court finds that the arbitrator exceeded his or her powers.

 Here, the trial court found that the arbitrator exceeded his powers by giving effect to provisions of the collective bargaining agreement which are in conflict with and superseded by statutory procedures for nonretention of probationary teachers.   The trial court reasoned that the school district had no power to enter into an agreement in conflict with the Education Code.   As we will explain in the discussion which follows, the trial court's decision was erroneous.   We conclude that the provisions of article 19, section B(1), of the collective bargaining agreement are valid and enforceable.³  Hence, we hold that the arbitrator did not exceed his powers, and the arbitration award should not have been vacated.

II. Conflict with the Education Code

 Since the 1983 amendments to the Education Code, school districts have been permitted by statute to choose not to reemploy a probationary teacher for the ensuing school year without any showing of cause, without any statement of reasons, and without an administrative hearing or appeal, as long as the district gives notice to the teacher on or before March 15.  (Ed.Code, § 44929.21;  Grimsley v. Board of Trustees (1987) 189 Cal.App.3d 1440, 1447–1448, 235 Cal.Rptr. 85 [interpreting former Ed.Code, § 44882, the language of which is now contained in § 44929.21].) ⁴

 If, however, the school district terminates a probationary employee because of a decline in pupil attendance, discontinuance of a service, or modification of curriculum, then the school district is obligated to comply with procedures governing layoffs, including notice, hearing, and rights to reappointment if the work force is reinstated.  (Ed.Code, §§ 44955, 44957;  Cousins v. Weaverville Elementary School Dist. (1994) 24 Cal.App.4th 1846, 1852–1854, 30 Cal.Rptr.2d 310.)   We are not concerned here with a layoff;  it is undisputed that Kurt Gritts received a notice of nonreelection pursuant to Education Code section 44929.21.

 The question before us in this appeal is whether the school district may, through collective bargaining, agree to give greater procedural protections to probationary employees, i.e., a statement of reasons and 30 days' advance notice, than those set out in section 44929.21.   We conclude it may.

Government Code sections 3540–3549.3 establish a system of collective bargaining for school district employees.  Government Code section 3543.2, subdivision (a), limits negotiations between a school district and an employee organization to matters relating to wages, hours and other “terms and conditions of employment.” ⁵  By the terms of the statute, all matters not specifically enumerated as matters for negotiation “are reserved to the public school employer and may not be a subject of meeting and negotiating․”  (Gov.Code, § 3543.2, subd. (a).)  Nonreelection of probationary certificated school district employees is not specifically enumerated as a matter for negotiation.⁶

Yet, the Supreme Court has held that the scope of bargaining is not strictly confined to the matters specifically listed in section 3543.2, because section 3543.2 permits collective bargaining on matters “relating to” wages, hours, and other terms and conditions of employment.  (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 191 Cal.Rptr. 800, 663 P.2d 523.)   At the same time, however, the court noted that Government Code section 3540 provides that “[n]othing contained herein shall be deemed to supersede other provisions of the Education Code․”   Pursuant to that statute, the court concluded that negotiations and contractual agreements are precluded if provisions of the Education Code would be “replaced, set aside or annulled” by the contract.  (Id. at pp. 864–866, 191 Cal.Rptr. 800, 663 P.2d 523.)

One party in the San Mateo case raised a “preemption” argument, much like the argument of the school district here, that some parts of the Education Code exhibit a legislative intent to fully occupy the field so as to preclude collective negotiations and agreements in the same field.   The court, however, rejected this theory in favor of an approach which harmonizes the statutes where possible.  (33 Cal.3d at pp. 864–865, 191 Cal.Rptr. 800, 663 P.2d 523.)

The Supreme Court in San Mateo, supra, cited with approval Certificated Employees Council v. Monterey Peninsula Unified Sch. Dist. (1974) 42 Cal.App.3d 328, 333–335, 116 Cal.Rptr. 819, in which the Court of Appeal harmonized sections of the Education Code regulating tenure with sections of the Winton Act (former Ed.Code, § 13080 et seq., now repealed by Stats.1975, ch. 961, § 1, p. 2247) regarding meeting and conferring between public school employers and their employees.   The Court of Appeal held it permissible for the school district to meet and confer on tenure notwithstanding the fact that tenure was regulated by the Education Code, as negotiations on the subject would strengthen the existing tenure rules by promoting orderly and uniform communication between teachers and administrators.

 The San Mateo court emphasized that the mere fact that the Education Code regulates certain matters is not enough to preclude negotiations, since Government Code section 3543.2 explicitly includes matters which are also regulated by the Education Code (e.g. leave, transfer and reassignment policies).  (33 Cal.3d at p. 865, 191 Cal.Rptr. 800, 663 P.2d 523.)   Negotiations are prohibited only if the contract proposal would be in conflict with mandatory procedures, protections or entitlements for employees (e.g. causes and procedures for disciplinary action or procedures for layoffs.)   “Where statutes are mandatory, as are these, a contract proposal which would alter the statutory scheme would be nonnegotiable ․ because the proposal would ‘replace or set aside’ the section of the Education Code․”  (Id. at p. 866, 191 Cal.Rptr. 800, 663 P.2d 523.)

Our effort, then, is to harmonize, if possible, Education Code section 44929.21 pertaining to nonreelection of probationary teachers and Government Code sections 3540 and 3543.2 pertaining to the scope of collective bargaining by school districts.   The question we must resolve is whether the negotiated procedures for nonretention of probationary teachers set forth in article 19, section B(1), of the collective bargaining agreement replace, set aside or annul mandatory directives of the Education Code.

A similar question was presented in United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 832, 209 Cal.Rptr. 16.   There, a school bus driver had been discharged, and the teachers association sought to compel arbitration pursuant to the collective bargaining agreement.   The Court of Appeal upheld the trial court's decision to deny the petition to compel arbitration, finding that the provisions of the collective bargaining agreement, which would have delegated disciplinary decisions to an arbitrator, conflicted with the mandatory provisions of Education Code section 45113, which made disciplinary action by the school board against permanent classified (i.e., non-teaching) employees “conclusive.”   The court held that the provisions of the collective bargaining agreement could not be given effect and the grievance could not be submitted to arbitration.  (See also California Teachers Assn. v. Parlier Unified School Dist. (1984) 157 Cal.App.3d 174, 183–184, 204 Cal.Rptr. 20;  Jefferson Classroom Teachers Assn. v. Jefferson Elementary School Dist. (1982) 137 Cal.App.3d 993, 1001, 187 Cal.Rptr. 542 [contract provision which conflicted with Education Code provision governing entitlement to sick leave was void].)

In the present case, in contrast, there is nothing in the Education Code making the decision of the school district to nonreelect probationary teachers “conclusive.”   Nor is there anything in the Education Code which explicitly prohibits a negotiated agreement that gives greater protections to probationary employees than provided by statute.   The statute's only mandate is that the school district must give notice to the teacher by March 15.   There is nothing to prohibit 30 days' advance notice.   Moreover, the statute does not dictate the contents of that notice;  hence, there is nothing to prohibit the school district from agreeing to provide a statement of reason for the nonreelection insofar as the reason relates to incompetency to teach or misconduct.⁷  In short, we can discern no direct conflict between article 19, section B(1), of the collective bargaining agreement and the Education Code.

The school district argues, however, that the intent of Education Code section 44929.21 was to vest exclusive discretion in the school district to decide whether or not to reelect probationary teachers, and the procedures set forth in article 19, section B(1), effectively supersede that discretion.

A substantially similar argument was rejected by the Supreme Court in Taylor v. Crane (1979) 24 Cal.3d 442, 155 Cal.Rptr. 695, 595 P.2d 129.   There, the city charter gave the city manager exclusive power to discipline or discharge city employees.   After the city manager discharged a police officer for an off-duty shooting, the employee filed a grievance pursuant to the collective bargaining agreement, and the arbitrator ordered the employee reinstated.   On appeal from an order vacating the arbitrator's award, the city argued that to allow an arbitrator to decide the propriety of the discharge would constitute an unlawful delegation of the city manager's discretion.   The Supreme Court disagreed, finding no express prohibition in the city charter to prohibit an agreement to arbitrate.   The court reasoned that the city charter merely vested the initial discretion in the city manager;  it did not limit his authority to agree to subject his decisions to review by an arbitrator.  (24 Cal.3d at pp. 450–453, 155 Cal.Rptr. 695, 595 P.2d 129.)

In the present case, Education Code section 44929.21 is far less explicit than the charter provision in Taylor v. Crane in granting exclusive discretion to the school district.   As we have observed above, section 44929.21 simply requires the school district to give notice to the teacher by March 15.   Although we agree that the statute can be construed as vesting broad discretion in the school district to decide whether or not to reelect probationary teachers (Grimsley v. Board of Trustees, supra, 189 Cal.App.3d 1440, 1447–1448, 235 Cal.Rptr. 85), we construe that discretion, by analogy to Taylor v. Crane, supra, as initial discretion.   There is nothing in Education Code section 44929.21 which precludes the school district from agreeing to create additional procedures to protect the probationary employees.

Nor is there anything in the collective bargaining agreement which interferes with the school district's initial discretion.   Article 19, section B(1), merely provides for a statement of the reason for the decision not to reelect insofar as the reason relates to incompetency to teach or misconduct.   These contractual procedures serve to supplement the March 15 notice required by Education Code section 44929.21;  they do not supersede any statutory directive.

There are, however, two Court of Appeal decisions involving nonreelection of probationary employees which have reached a result contrary to the one suggested by our analysis.

First, in Fontana Teachers Assn. v. Fontana Unified School Dist. (1988) 201 Cal.App.3d 1517, 247 Cal.Rptr. 761, a probationary teacher received a notice of nonreelection and filed a grievance alleging that the school district had violated the collective bargaining agreement, which required just cause for employee discipline.   The district asserted that the teacher's nonreelection was not grievable because (1) the agreement covered discipline, not dismissals and (2) the agreement could not cover dismissals or nonreelections because they are preempted by the Education Code.   On appeal from the denial of a petition to compel arbitration, the Court of Appeal agreed that the teacher's nonreelection was not arbitrable:  “even assuming that dismissal via nonreelection can be a form of discipline, we yet hold that the Education and Government Codes have preempted collective bargaining agreements as to this particular form of discipline.”  (201 Cal.App.3d at p. 1524, 247 Cal.Rptr. 761;  italics in original.)   In so holding, the court reasoned that Government Code section 3543.2, subdivision (b), specifically excludes dismissal of certificated employees from the scope of collective bargaining.  (201 Cal.App.3d at p. 1525, 247 Cal.Rptr. 761.)

 We are not persuaded by the reasoning of Fontana.   The Fontana court mistakenly relied upon Government Code section 3543.2, subdivision (b), but that statute has no bearing upon nonreelection of probationary employees.  Section 3543.2, subdivision (b) provides:  “Notwithstanding Section 44944 of the Education Code, the public school employer and the exclusive representative shall, upon request of either party, meet and negotiate regarding causes and procedures for disciplinary action, other than dismissal, including a suspension of pay for up to 15 days,․”  (Italics added.)   The nonreelection of a probationary employee is not a “dismissal.”

Dismissal of employees is governed by Education Code sections 44932 through 44953.   These sections pertain to permanent employees and require cause for the dismissal as well as a hearing and administrative review.   It is true that before the 1983 amendments to the Education Code these sections also applied to probationary employees in that a probationary employee could be dismissed during the school year only for cause.   Today, however, the provisions for “dismissal” of a probationary employee for cause apply only in school districts with less than 250 pupils.  (Ed.Code, § 44948.)   Instead, probationary employees are governed by Education Code section 44929.21, and under that section the decision to terminate a probationary employee is no longer termed a dismissal;  it is a decision to “not reelect” the employee.  (Ed.Code, § 44929.21.)   The Legislature obviously chose its terms carefully to avoid bringing probationary employees within the dismissal statutes.⁸

Moreover, the Fontana court's use of the “preemption” theory is inconsistent with the Supreme Court's opinion in San Mateo City School Dist. v. Public Employment Relations Bd., supra, 33 Cal.3d 850, 191 Cal.Rptr. 800, 663 P.2d 523, that when several provisions of state law address a similar subject the correct approach is not to examine whether one statute fully occupies the field, but to determine whether the statutes can be harmonized.  (33 Cal.3d at p. 865, 191 Cal.Rptr. 800, 663 P.2d 523.)   In finding the collective bargaining agreement “preempted,” the Fontana court seems to have concluded that because Education Code section 44929.21 regulates nonretention of probationary employees, Government Code section 3540 prohibits a collective bargaining agreement on the same matter.   The San Mateo case has explained, however, that the mere fact that the Education Code regulates a matter is not enough to preclude negotiations.   As we have discussed above, Education Code section 44929.21 is silent on the contents of the notice to a nonretained probationary employee.   Collective bargaining would be essentially destroyed if a collectively negotiated agreement could be read to replace or set aside the silent provisions of Education Code section 44929.21.

What the Fontana court failed to perceive was that the statutes can be harmonized.   A collectively negotiated contract may supplement the notice requirements of Education Code section 44929.21 without superseding it.   The provisions of article 19, section B(1), do just that.

The second case deserving mention is Bellflower Education Assn. v. Bellflower Unified School Dist. (1991) 228 Cal.App.3d 805, 279 Cal.Rptr. 179.   There the collective bargaining agreement established general procedures for evaluation of employees and for grievances.   A probationary teacher who received notice she would not be reelected for employment filed a grievance alleging the school district had failed to comply with the procedures for performance evaluation.   The arbitrator agreed and ordered her reinstated.   On appeal from the trial court's order vacating the arbitrator's award, the Court of Appeal concluded that the subject of the grievance, violation of the bargained-for evaluation procedures, was a proper subject for collective bargaining under Government Code section 3543.2, subdivision (a), and accordingly, was an arbitrable grievance.⁹  (228 Cal.App.3d at p. 812, 279 Cal.Rptr. 179.)   However, in dictum, the court noted that had the agreement established procedures for dismissals or nonreelections (not just general evaluation procedures) the agreement would have been preempted by the Government and Education Codes, under the authority of Fontana.  (228 Cal.App.3d at pp. 811–812, 279 Cal.Rptr. 179.) ¹⁰

For the same reasons underlying our conclusion that Fontana was wrongly decided, we disagree with the foregoing dictum, as well as the court's declaration that the discretion of school boards to reelect or nonreelect probationary teachers may not be “relegated to the collective bargaining process.”  (Bellflower, supra, 228 Cal.App.3d at p. 812, 279 Cal.Rptr. 179.)

We hold that the procedural protections provided by article 19, section B(1), of the collective bargaining agreement requiring advance notice of 30 days and a statement of reasons, do not conflict with any mandatory directives in Education Code section 44929.21.   Accordingly, we conclude that the contract provisions are valid and enforceable and the arbitrator did not exceed his powers in giving them effect.

The order vacating the arbitration award is reversed.   Costs are awarded to appellant.

FOOTNOTES

1.   In section B(2) of article 19, with which we are not concerned, “just cause” is required for dismissal or nonreemployment.   The present case concerns only the procedures, not the cause, for nonreemployment.

2.   The district consistently asserted that the grievance was not arbitrable.   In December 1990 the teachers association filed a petition in superior court to compel arbitration, and that petition was granted.

3.   In light of our decision, we need not decide whether an arbitrator exceeds his powers in enforcing a contract that could not be enforced by a court of law.   It has been held that an arbitrator exceeds his powers when the entire contract is invalid, for there is no valid agreement to arbitrate.  (Loving & Evans v. Blick (1949) 33 Cal.2d 603, 610, 204 P.2d 23 [where building contractor was unlicensed, construction contract was illegal and could not be enforced by arbitrator];  see All Points Traders, Inc. v. Barrington Associates (1989) 211 Cal.App.3d 723, 738, 259 Cal.Rptr. 780 [where stock trader was not licensed, contract for payment of commission was invalid and could not be enforced by arbitrator].)  On the other hand, the Supreme Court more recently declined to vacate an arbitration award where only a portion of the agreement was claimed to be illegal and unenforceable.  (Moncharsh v. Heily & Blase, supra, 3 Cal.4th 1, 31–32, 10 Cal.Rptr.2d 183, 832 P.2d 899.)   The court recognized an exception, however, when granting finality to an arbitrator's decision would violate a clear expression of illegality or public policy.  (3 Cal.4th at p. 32, 10 Cal.Rptr.2d 183, 832 P.2d 899.)

4.   The statute refers to the decision not to reemploy a probationary teacher as a decision to “not reelect” the employee to his or her position.  Section 44929.21, subdivision (b), provides:  “Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for two complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district.  [¶] The governing board shall notify the employee, on or before March 15 of the employee's second complete consecutive school year of employment by the district in a position or positions requiring certification qualifications, of the decision to reelect or not reelect the employee for the next succeeding school year to the position.   In the event that the governing board does not give notice pursuant to this section on or before March 15, the employee shall be deemed reelected for the next succeeding school year.  [¶] This subdivision shall apply only to probationary employees whose probationary period commenced during the 1983–84 fiscal year or any fiscal year thereafter.”

5.   “Terms and conditions of employment” is defined to mean “health and welfare benefits ․, leave, transfer and reassignment policies, safety conditions of employment, class size, procedures to be used for the evaluation of employees, organizational security ․, procedures for processing grievances ․, the layoff of probationary certificated school district employees, pursuant to Section 44959.5 of the Education Code, and alternative compensation or benefits for employees adversely affected by pension limitations․”  (Italics added.)   Subdivisions (b) and (c) of section 3543.2 further authorize negotiations regarding “causes and procedures for disciplinary action, other than dismissal ․” and “procedures and criteria for the layoff of certificated employees for lack of funds.”

6.   As noted above, a probationary employee who has been laid off has certain statutory protections.  (Ed.Code, §§ 44949, 44955, 44957;  Cousins v. Weaverville Elementary School Dist., supra, 24 Cal.App.4th at p. 1854, 30 Cal.Rptr.2d 310.)  Section 44959.5 of the Education Code authorizes alternative provisions for the layoff and reassignment of probationary employees pursuant to a collective bargaining agreement.   A “layoff” is not the same as a decision not to reemploy a probationary teacher pursuant to section 44929.21.  (Cousins, supra.)

7.   The procedures set forth in article 19, section B(1), require a statement of the reason for the nonreemployment insofar as the nonreemployment is based upon incompetency to teach or a list of the dates and infractions insofar as the nonreemployment is based upon misconduct.   Contrary to the assertion by the school district, there is nothing in this requirement to compel a statement of reasons in every case, i.e., where the nonreemployment is based on something other than incompetency to teach or misconduct.   Counsel for the teachers association has pointed out the importance such a statement of reasons may have for the nonretained teacher:  it may allow the teacher to refute an unfounded charge;  it may alert the teacher to areas in which his or her performance can be improved;  it may reveal that the nonretention is in reality a layoff, giving rise to layoff procedures.

8.   In Fontana, the parties treated the teacher's nonreelection as the equivalent of a dismissal.  (201 Cal.App.3d at p. 1520, fn. 3, 247 Cal.Rptr. 761.)   The court obviously accepted that equivalency for purposes of its analysis.   We believe it was that faulty premise which led the Fontana court astray.In the present case, in contrast, both parties agree the teacher's nonreelection was not a dismissal.   We therefore find it unnecessary to examine the Fontana court's conclusion that Government Code section 3543.2, subdivision (b), excludes the entire topic of dismissal from the scope of collective bargaining.

9.   Subdivision (a) of section 3543.2 specifically mentions “procedures to be used for the evaluation of employees, ․”

10.   The Bellflower court went on to hold that the arbitrator's remedy of reinstatement was beyond the arbitrator's authority, reasoning that “[r]einstatement would interfere with the District's exclusive right and statutory duty to dismiss probationary employees under applicable provisions of the Education Code, for any reason, without providing a statement of that reason and without the need for hearing and appeal from such decisions.”  (228 Cal.App.3d at p. 812, 279 Cal.Rptr. 179.)This holding of Bellflower, that the arbitrator had no power to order reinstatement, is inapplicable to the issue before us.   The arbitrator here did not order Gritts reinstated;  the arbitrator simply ordered the district to provide Gritts with a statement of the reason for his nonretention and to reconsider its decision not to renew Gritts' teaching contract.   Hence, we are not concerned here with the power of the arbitrator to fashion an appropriate remedy.  (Cf. Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 36 Cal.Rptr.2d 581, 885 P.2d 994).

DOSSEE, Associate Justice.

STRANKMAN, P.J., and STEIN, J., concur.