Labor Relations Fundamentals for Community College Districts

Either the affected employee or the exclusive bargaining representative may file Section 87610.1(b) grievances. The exclusive representative has no duty of fair representation with respect to taking these types of grievances to arbitration, and the employee is entitled to proceed to arbitration with or without representation by the exclusive representative. 136 The Education Code defines the authority of the arbitrator with regard to these types of grievances. Importantly, an arbitrator does not have the power to grant tenure, except where a district failed to issue a “March 15” notice. 137 An arbitrator’s authority includes ordering back pay and benefits, reemployment in a probationary position, and reconsideration. 138 With regard to the reconsideration of decisions not to grant tenure, the governing board and the exclusive representative will agree to applicable procedures. 139 7. P AST P RACTICE Past practice can be a significant factor in an arbitrator's decision. The following elements define a course of conduct that creates a binding practice. Normally, management cannot change a past practice that affects a term and condition of employment without compliance with the duty to negotiate under the EERA.

a. Keys to Finding Past Practice A past practice is a condition of employment, within the scope of representation, which is:

 Unequivocal: The conduct that is followed or allowed is deliberate and unambiguous.  Clearly Enunciated and Acted Upon: The conduct occurs openly and clearly demonstrates to both parties how the practice works.  Readily Ascertainable over a Reasonable Period of Time as a Fixed and Established Practice Accepted by Both Parties: The conduct occurs several times and in a consistent manner over a meaningful period of time. One act is insufficient to establish a past practice without both parties expressly declaring that there is a past practice. Consistency means that the conduct occurs in the same manner each time. 140

b. Identifying and Avoiding Negative Past Practice Failure to act can create a binding working condition and therefore result in a negative past practice. The following are some basic questions to ask:

 Am I consistently implementing, and if necessary, enforcing current rules and policies?  Am I holding employees in my unit accountable for basic responsibilities to their employer, e.g., punctuality and satisfactory attendance?

Labor Relations Fundamentals for Community College Districts © 2019 (c) Liebert Cassidy Whitmore 55