Court Finds Broad Arbitration Clause In CBA Insufficient To Delegate Issue Of Arbitrability To An Arbitrator

In 2018, the California Legislature passed Assembly Bill No. 705 in response to concerns that too many students were being referred to remedial courses upon entering the community college system, which they believed discouraged students from pursuing a college education and timely completing their degree. Assembly Bill 705 amended the Education Code such that a district could not require students to enroll in remedial English or mathematics courses that lengthened their time to complete a degree unless a placement assessment shows the student is highly unlikely to succeed in transfer-level coursework. In response to this, the Los Angeles Community College District (District) sent an email to all faculty notifying them that the District removed remedial English and math courses two levels before transfer level from the Fall 2019 schedule because they were inconsistent with Assembly Bill No. 705, and would be directing students to other academic supports.

The Los Angeles College Faculty Guild (Guild) represents faculty at nine community colleges in the District. The Guild filed grievances in response to the District’s removal of the courses. When the District denied their grievances, the Guild submitted the matter to arbitration pursuant to the grievance procedure of the collective bargaining agreement (CBA). The District refused to arbitrate, stating that the claims in the grievances were outside the scope of representation under the Educational Employment Relations Act (EERA) and outside the scope of the CBA.

The Guild filed a motion and petition to compel arbitration. They argued the grievances involve violations of several provisions of the CBA that were subject to arbitration and therefore an arbitrator should decide on the issue, and not the court. The trial court denied both and dismissed the action, finding that the CBA did not delegate the arbitrability decision to the arbitrator, and so it was for the court to decide. The trial court also found that the claims were outside the scope of representation under the EERA and therefore not arbitrable. Additionally, the trial court found that the District’s decision to cancel the courses did not violate the CBA. The Guild appealed.

The California Court of Appeal for the Second District agreed with the trial court. It found that the court, and not an arbitrator, is the appropriate entity to review the question of arbitrability when the parties do not clearly agree to submit the question to arbitration, such as in the case here where the CBA did not delegate the issue of arbitrability to the arbitrator. The court also found that the District’s decision to cancel remedial English and mathematics courses was a decision about the content of courses and curriculum, a matter within the District’s discretion, and not within the scope of representation. Under the EERA, the “determination of the content of courses and curriculum” are matters within the discretion of the public school employer. The court found that the District’s decision to cancel these courses was a managerial one outside the scope of representation and therefore was not an arbitrable issue.

Los Angeles College Faculty Guild Local 1521 v. Los Angeles Community College District (2022) S.O.S. 5046.

The Los Angeles College Faculty Guild Local 1521 case is a good reminder that Community Colleges may need to implement layoffs even in situations where the District is not facing a decrease in funding.  Keep in mind that classified employees are now entitled to a March 15 notice and hearing process similar to faculty members.  Districts are required to comply with prescriptive procedures set forth in the Education Code in implementing reductions in force. While districts will not be able to issue employee layoff notices until March 15, 2023, they should begin preparing for layoffs far in advance of March 15.

Districts should consider the following non-exhaustive list in preparation for layoffs:

1. Classified Reductions-in-Force

• Ensure the district’s classified seniority list is up to date, including:
  • Correct dates of hire or hours worked (as applicable to each district); and
  • Classifications held.
• Provide the seniority list to the employees and exclusive representatives.
• Determine which employees have bumping rights and determine their new assignment.
• Provide notice to the classified exclusive representative of the intent to implement layoffs so that it may request impacts and effects bargaining.

2. Academic Reductions-in-Force

• Verify faculty service areas and hire dates of employees and have employees sign and date verification of current employment information.
• Update the district’s academic seniority list including faculty service areas, employee status (temporary, contract, permanent), and seniority dates. Review the following for purpose of calculating seniority dates:
  • Ensure “look back” time in temporary status has been included when calculating the seniority date;
  • Review temporary and part-time contracts to ensure the district provided notice of temporary status prior to the employee’s first day of work (i.e., Kavanaugh issues);
  • Review temporary employee FTE to ensure the district has sufficient employees on leave to “balance” all temporary employees (other than part-time, temporary faculty members);
  • Review part-time, temporary employee loads to ensure they have not worked more than 67 percent of a full-time load for more than two semesters in three years;
  • Add any administrators who the district intends to release and include retreat rights to the seniority list;
  • Ensure categorical employees are placed on the seniority list if the funding for their positions remains in place.
  • Provide the seniority list to the employees and their exclusive representative and notice of intent to implement layoffs so that they may request impacts and effects bargaining.

NOTE:

Liebert Cassidy Whitmore is available to provide advice and counsel on layoff preparation and support districts as they navigate these issues.