UNITED TEACHERS LOS ANGELES v. LOS ANGELES UNIFIED SCHOOL DISTRICT

Respondent's Petition for Review

Cal.October 26, 2009

U S17'7403 Case No. | SUPREME COURT IN THE — SUPREME COURT OF CALIFORNIA OcT 26 2009 Frederick K, Ohirich Clerk UNITED TEACHERS LOS ANGELES, Deputy Plaintiff and Appellant, Vv. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent. After a Decision by the Court of Appeal, Second Appellate District, Division 5 Case No. 2™ Civil No. B214119 PETITION FOR REVIEW Sue Ann Salmon Evans (State Bar No. 151562) Miller Brown & Dannis 301 E. Ocean Blvd., Suite 1750 Long Beach, California 90802 Telephone: (562) 366-8500 Facsimile: (562) 366-8505 Attorneys for Respondent Los Angeles Unified School District [Exemptfromfiling fees pursuant to Gov. Code, § 6103] Case No. IN THE SUPREME COURT OF CALIFORNIA UNITED TEACHERS LOS ANGELES, Plaintiff and Appellant, Vv. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent. After a Decision by the Court of Appeal, Second Appellate District, Division 5 Case No. 2" Civil No. B214119 PETITION FOR REVIEW Sue Ann Salmon Evans(State Bar No. 151562) Miller Brown & Dannis 301 E. Ocean Blvd., Suite 1750 Long Beach, California 90802 Telephone: (562) 366-8500 Facsimile: (562) 366-8505 Attorneys for Respondent Los Angeles Unified School District [Exempt from filing fees pursuant to Gov. Code, § 6103] TABLE OF CONTENTS ISSUES PRESENTED 0.00. cecceeceeeeeerceceesereeeseeseeeceaeeaetaeeaeesecasenseeseeeness 1 WHY REVIEW SHOULD BE GRANTED....veeeeeeeeseseesseeseenaeeenee 2 PETITION FOR REHEARING uuu... eececccesteenteseeeneeeeeseseeaeeeseessneeessesseeees 8 BACKGROUND 0. ecccccccceeccssetesesaeceeeeetenseessaeeaeeaeesseversneeseeseeseseenensessees 8 LEGAL DISCUSSIONoieceeceeeeeeeeceeeceneeeeeesenaeeeseeseeseseaeenseeseessteneees 12 EDUCATION CODESECTION 47611.5(e) PREEMPTS AND INVALIDATES COLLECTIVE BARGAINING AGREEMENT PROVISIONS GOVERNING THE PROCESS FOR ESTABLISHMENT OF A CHARTER SCHOOL...eeeeeseseeteeeees 12 A PETITION TO COMPEL ARBITRATION IS PROPERLY DENIED WHERE THE COLLECTIVE BARGAINING PROVISIONS ARE PREEMPTED AND/OR INVALIDATED BY STATUTE... ccccscscssscsecsssscssecseenaesecseceaesevaesseeessaeeeseasesaecnseeeesesseeseses 16 CONCLUSION o.ooeceeeccnecececneeeneceaceneeeseesessaesaeeneeeaeenseceeeeesseeseceueensenes 22 TABLE OF AUTHORITIES Cases California Correctional Peace Officers Assn. v. State ofCalifornia (2006) 142 Cal.App.4th 198 oo. cccccccccsecsscsessssessesscsstsessesssecaces 11, 21, 22 Fontana Teachers Association v. Fontana Unified School District (1988) 201 Cal.App.3d 1517 weccccceseseeeeeeees 5, 7, 11, 12, 15, 17, 18, 20 Round Valley Unified School District v. Round Valley Teachers Association (1996) 13 Cal.4th 269 occcccccssessceeeterereens 4,11, 12, 14, 15, 18, 19, 20 San Mateo City School District vy. Public Employment Relations Board (1983) 33 Cal.3d 850 oo. ccceccccesccccssesseseesscescercseseesseessscscssssasesseeneers 15, 19 Sunnyvale Unified School District v. Jacobs (2009) 171 Cal.App.4™ 168 voccecccccssssscssesessecssesssesssersssessvesseeseanessees 5,19 United Steelworkers ofAmerica, Local 8599, AFL-CIO v. Board of Education ofthe Fontana Unified School District (1984) 162 Cal.App.3d 823 oocccccccsssessesseseesseeees 5, 11, 12, 15, 17, 18 Statutes Civil Codesection 3532 sasesseessrsaneseseenecvesecnsersecossuscusessncececsecsnenestenasssnaans 7,18 Code of Civil Procedure section 1281 ....eccccssesssssesscssesecsececseessseessessasses 20. Code of Civil Procedure section 1281.1 .....cccccccsceseessesssesesssescsstssscesesvereees 21 Code of Civil Procedure section 1281.2 ...cc..cccccccsccsscssectecssescssvsessesestsseneens 17 Code of Civil Procedure section 1286.4 00.0... ce cceececeserecentseeeeseeees 15, 19, 20 Code of Civil Procedure section 1859 ......ccccccccseccssesscseescsscntesessesetansseases 20 Education Code section 44929.21 oooc.cecccccccssccssccsssessscessecserecserenseenaes 14, 20 il Education Code section 45113 woc..cccccccsssccesssscceseececssseccescssessescssscecsusentecees 17 Education Code Section 47601 ooeeiiiccccssssssssssssseessvesssssssssssssssessssensssseene 2 Education Code section 47605 .....c..ecccceeeescccescesecceesseeeseeees 1, 4, 6, 8, 10, 12 Education Code section 47605(a).......:cccccsccsccssssessssessseseseeee coeteeeeseteserseeseeens 10 Education Code section 47605(a)(1) ..cccccssccsccscsssesceseescesssesecsesscsssessesecsevateee 9 Education Code section 47605(a)(2) ....cccsecsssssescesecssssessssssesessesens eteeenensnee 9 Education Code section 47605(€).......c:sccccssssesessessecssesseeesssseserssseesssesesesnes 10 Education Code section 47611.5(€)......cecccceeeseeees 1, 2,3, 4, 5, 6, 7, 11, 12, 13, 14, 16, 18, 19, 21, 22, 23 Government Code section 3529 oo. .eecccesseessessscsssescssessessesseseeeeesveaeeseeenaes 21 Government Codesection 3540 .......... 4,5, 12, 13, 15, 16, 17, 20, 21, 22, 23 Other Authorities Barack Obama, President of the United States, address to United States Hispanic Chamber of Commerce (Mar. 10, 2009) Taking on Education .6 United Educators ofSan Francisco v. San Francisco Unified School District (2001) Docket No. SF-CE-2015 (adopted by PERB in PERB Dec. No. 1438 [25 PERC 4 32027] ..........00seseeteeeteseseseseseetetaseneseseeneseees 13 Webster’s Collegiate Dict. (10ed. 1993) p. 917 cesses. secsresuetessssesesnessee 15 Rules California Rules of Court, rule 8.500(b)(1).......ceccecssesseceesesscesesssceeeesetseeees 7 California Rules of Court, rule 8.500(C)(2) ...cccccccccsscscesessesccssesseseesseeseseeees 8 California Rules of Court, rule 8.504(b)(4)....cccceecccsssesessescesesecssestseveeeeees 11 ill Case No. IN THE SUPREME COURT OF CALIFORNIA UNITED TEACHERS LOS ANGELES, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent. PETITION FOR REVIEW ISSUES PRESENTED 1) Does Education Codesection 47611.5(e) which provides that “The approvalor 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 subjectto review or regulation by the Public Employment Relations Board” preempt andinvalidate collective bargaining agreement provisions governing the process for establishment of a charter school? 2) Is a petition to compel binding arbitration properly denied where the collective bargaining provisions upon which the grievanceis based are preemptedbystatute? WHY REVIEW SHOULD BE GRANTED This Petition brings before the Court a case involving the intersection of education reform and collective bargaining. California’s charter school legislation was enacted to provide education reform to improvethe quality of education for California’s children. (Ed. Code, § 47601.) However, by holding that the arbitrator, rather than the court, must evaluate whether the Education Code preemptscollective bargaining provisions, the Court of Appeal decision defies the Legislature’s intent that establishment of a charter school not be subjectto collective bargaining, creates a barrier to California schooldistricts’ delivery of educational reform, and unnecessarily taxes school district resources by requiring participation in binding arbitration even wherethe collective bargaining provision is preempted and invalid. The implications of the Court of Appeal Opinion reach beyond the application of Education Code section 47611.5, subdivision(e),’ impacting the preemption doctrine underthe Educational Employment Relations Act (“EERA”), generally. The decision puts schooldistricts in an impossible position: comply with illegal provisionsof a collective bargaining agreement orface binding arbitration. Schooldistricts are bound to face legal challenge either from the charter school or the union, undermining the Court ofAppeal suggestion that allowing matters to proceed through binding arbitration will preserve the court’s resources. This Court’s review is essential to protect a primary and express public policy to expedite the process of improving public education by establishing charter schools without hindrance of collective bargaining and to clarify the impact ofpreemption upon collective bargaining agreement. Los Angeles Unified School District (“District”) acknowledges chronic academic underperformanceofa significant numberofits schools and is committed to education reform, including establishment of charter schools. The District’s recently adopted Public School Choicepolicy calls for reform of 250 schools, including operation as charter schools. In order to foster implementation of the Charter Schools Act, the Legislature expressly provided in section 47611.5(e) that the establishment of charter ' Hereafter referred to as “section 47611 5(e).” schoolsshall not to be hindered by collective bargaining and is not to be subject to the impediments of the arbitration process: The approvalor a denial of a charterpetition 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. (Emphasis added.) While the District and union negotiated provisions regarding the charter petition process, the parties were without the powerto do so and the provisions have noforce or effect. (Round Valley Unified School Districtv. Round Valley Teachers Association (1996) 13 Cal.4th 269.) Here, the collective bargaining provisions are not only barred by section 47611.5(e) but are further preempted by the nonsupercession clause of the EERA (Gov. Code, § 3540) becausethe provisions are in conflict with the statutory process for establishmentof a charter schoolset forth in Education Code section 47605. Under these circumstances, longstanding case law interpreting the EERA holds, contrary to the Court of Appeal decision, that collective bargaining provisions in conflict with the Education Code are preempted and that a petition to compelarbitration under the collective bargaining agreement is properly denied. (Gov. Code, § 3540; Round Valley Unified * Hereafter referred to as “section 3540.” School District v. Round Valley Teachers Association, supra, 13 Cal.4th 269, 286 |preempted provisions of collective bargaining agreementare invalid]; United Steelworkers ofAmerica, Local 8599, AFL-CIO v. Board ofEducation ofthe Fontana Unified School District (1984) 162 Cal.App.3d 823 [“the schooldistrict is barred from applying the binding arbitration step of its grievance procedure” where collective bargaining provisions are inconsistent with Education Code]; Fontana Teachers Association v. Fontana Unified School District (1988) 201 Cal.App.3d 1517, [disapproved in part on other grounds but cited with approval by Round Valley with regard to the holding that preempted provisions of collective bargaining agreementare not subjectto arbitration]; see also, Sunnyvale Unified School District v. Jacobs (2009) 171 Cal.App.4” 168, 180 [preemption precludes the decision from being challenged as a breach of the collective bargaining agreement andis outside the scope of the agreement as a matter of law].) Notably, the Court ofAppeal did not interpret section 47611.5(e) or section 3540, nor did it address the case authorities holding a petition to compel arbitration is properly denied where the collective bargaining provisions are preempted. That the charter school concept is central to education reform is reflected in President Obama’s education strategy for America, “Oneof the places where muchofthat innovation occurs is in our most effective charter schools. These are public schools founded by parents, teachers, and civic or community organizations with broad leeway to innovate... .I call on states to reform their charterrules, and lift caps on the numberofallowable charter schools, wherever such caps are in place.” (Barack Obama, President of the United States, address to United States Hispanic Chamber of Commerce (Mar. 10, 2009) Taking on Education.) California’s Legislature is also clear in its mandate: “In reviewing petitions for the establishment of charters .. . 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.” (Ed. Code, § 47605(b).) Governor Wilson, in signing the Charter Schools Act of 1992 and in rejecting a competing bill which included union participation in the charter petition process, stated that any union involvementin the review and approval process wasspecifically rejected as in contravention of the “charter school concept.” (Joint Appendix (“JA”) 104.) This policy statement is reinforced in section 47611.5(e). The Court of Appeal decision gives effect to invalid provisions and conflicts with the Legislature’s intent in enacting the Charter Schools Act generally, and section 47611.5(e) specifically, that unions shall not be involved in the process for establishmentof a charter school and that related issues are not subject to the jurisdiction of the Public Employment Relations Board. Therefore, arbitration is not an available remedy,is barred as a matter of law, and requiring arbitration is an “idle act.” (Civ. Code, § 3532 [“the law neither does nor requires idle acts”]; Fontana Teachers Association v. Fontana Unified School District, supra, 201 Cal.App.3d at 1526.) The Court of Appeal, by giving effect to provisions that violate the law, further opens the door to unionsasserting a right to negotiate over the charter petition process, despite the express language of section 47611.5(e) which specifically prohibits the charter petition process from being controlled by collective bargaining agreements. Supreme Court review is necessary to settle an important issue of law related to the efficient implementation ofthe Charter Schools Actto improve public education through the application of section 47611.5(e), to set forth the application and effect of the preemption doctrine under the EERA,to secure uniformity of decisions including the Supreme Court’s authority, to protect education resources, and to address the important policy issues impacting education reform in California. (Cal. Rules of Court, rule 8.500(b)(1).) PETITION FOR REHEARING On October I, 2009, the District filed its Petition for Rehearing on the groundsthat the Court ofAppeal’s Opinion (“Opinion”) fails to account for and conflicts with relevant authority, misstates or omits material facts, fails to address arguments madebythe District within the meaning of California Rules of Court, rule 8.500(c)(2) and fails to consider the important public policy giving priority to the establishment of charter schools to improve the State of California’s education system. Although the Opinion was modified by Order dated October 16, 2009, the Petition for Rehearing was denied. BACKGROUND On September 11, 2007, the District’s Board of Education granted _ the Alain Leroy Locke Conversion Charter Petition (“Locke Charter Petition”) pursuant to Education Code section 47605, subdivision (b), creating the Locke Charter Schools (JA 113-130.) Locke High School, located in the Watts neighborhood of Los Angeles, was a troubled school experiencing severe drop out and performance problems. The Locke Charter Schools are now operational and began instructional operations in Fall 2008. (JA 165, lines 10-12.) United Teachers Los Angeles (“UTLA”), the union that serves as the exclusive representative of the certificated staff employed by the District, has never challenged the District Board’s decision to grant the Locke Charter Petition as in violation of Education Code section 47605. Instead, on September 4, 2007, UTLA, on its own behalf, submitted a grievance alleging that the District had violated Article XII-B, Sections 2.0 and 3.0, of the collective bargaining agreement (“CBA”) and requesting that the Board’s approval of the Locke Charter Petition be rescinded based uponthe alleged failure to comply with the collective bargaining agreement. (JA 68.) The CBA between UTLAandthe District addresses conversion charter schools at Article XII-B. (JA 19-26.) A conversion charter school refers to a traditional district school that has “converted” to charter status by petition pursuant to Education Code section 47605(a)(2). The other form of charter school is commonlyreferred to as “start up” and represents a charter school established by petition pursuant to section 47605(a)(1) that has no connection to an existing schooldistrict program. Bystatute, to establish a conversion charter school, the petition must be signed by not less than 50 percent of the permanentstatus teachers concurrently employedat the public school to be converted. (Ed. Code, § 47605(a)(2).) However, a signature does not commit the teacher to employmentat the charter school. (Ed. Code, § 47605(a), (e).) Article XII-B, Section 2.0 of the CBAsets forth a series of procedures pertaining to processing and approvalofcharterpetitions for conversion charters. (JA 60-61.) Article XII-B, Section 3.0 sets forth a series of procedures pertaining to disclosures to be madeby charter petitioners to employees at a schoolthat is the subject of a conversion charter petition. (JA 61-63.) (“Article XJI-B ofthe collective bargaining agreementsets forth procedures for converting a school to a charter school”; Opinion p. 3.) The proceduresset forth in Article XTI-B, Sections 2.0 and 3.0 are not required by Education Code section 47605, subdivision (b), and are inconsistent with the statutory procedures for establishment of a charter schoolset forth therein. In responseto the grievance, the District informed UTLA on December4, 2007, that the grievance did not present an arbitrable dispute and is not properly the subject of collective bargaining. (JA 69.) UTLA filed its Petition to Compel Arbitration seeking an order compelling the District to submit to binding arbitration. On November 12, 2008, the Honorable Superior Court Judge Mary Ann Murphy deniedthe Petition on 10 the groundsthat the grievanceis not arbitrable “under the Charter Schools Act and Round Valley.” (Reporter’s Transcript (“RT”) p. 16.) UTLAfiled its appeal. The Court of Appeal issued its Opinion on September 17, 2009, reversing thetrial court’s order denying the Petition to Compe! Arbitration and holding that the question ofwhether the collective bargaining agreement was preempted or invalidated by section 47611.5(e) was a “defense” that must be determined bythearbitrator. (Opinion p. 9.) The Court of Appeal relied upon California Correctional Peace Officers Assn. v. State ofCalifornia (2006) 142 Cal.App.4th 198, which was decided underthe Dills Act. (/d. at 202.) The Court ofAppeal failed to address the cases interpreting the EERA which hold that where the collective bargaining provisions are preempted, the petition to compel arbitration is properly denied and submission to arbitration would be a “pointless act.” (Fontana Teachers Association v. Fontana Unified School District (1988) 201 Cal.App.3d 1517, 1526; United Steelworkers of America, Local 8599, AFL-CIO v. Board ofEducation ofthe Fontana Unified School District (1984) 162 Cal.App.3d 823, 827.) The Opinion and the Order Modifying Opinion are attached hereto in conformity with California Rules of Court, rule 8.504(b)(4).) 11 LEGAL DISCUSSION EDUCATION CODE SECTION 4761T.3(e) PREEMPTS AND INVALIDATES COLLECTIVE BARGAINING AGREEMENT PROVISIONS GOVERNING THE PROCESS FOR ESTABLISHMENT OF A CHARTER SCHOOL Section 47611.5 (e) states: “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.” (Emphasis added.) This statute is a jurisdictional bar to arbitration and renders the CBAprovisions inarbitrable as a matter of law. In addition, the preemption doctrine foundin section 3540of the EERA, demonstrates that the CBA agreementto arbitrate is invalid and “that the schooldistrict is barred from applying the binding arbitration step of its grievance procedure.” (United Steelworkers ofAmerica, Local 8599, AFL-CIO v. Board ofEducation ofthe Fontana Unified School District (1984) 162 Cal.App.3d 823, 832 [petition to compel arbitration properly denied where collective bargainingprovision conflicts with Education Code]; Fontana Teachers Association v. Fontana Unified School District (1988) 201 Cal.App.3d 1517 [preempted provisions ofcollective bargaining agreement are not subject to arbitration]; Round Valley Unified School Districtv. 12 Round Valley Teachers Association, supra, 13 Cal.4th 269, 286 [the intent of the EERA is to preclude contractual agreements that would alter the meaning of statutory provisions and preemptedprovisions are invalid].) Here, the CBAprovisions are preempted and invalid pursuant to section 47611.5(e) and under section 3540 because they are inconsistent with Education Code section 47605 which governs the process for establishing a charter school. To give the provisions effect flies in the face of the legislative intent and underminesa schooldistrict’s exercise of discretion in the delivery of education andits ability to implement reform. The Public Employment Relations Board (“PERB”) is charged with interpreting the EERA. As PERB recognized, the omission of any role for a union in the chartering process was not inadvertent. (United Educators of San Francisco v. San Francisco Unified School District (2001) Docket No. SF-CE-2015 (adopted by PERB in PERB Dec. No. 1438 [25 PERC 4 32027], JA 102-108.) When the Charter Schools Act became law, there were tworival bills enacted by the Legislature. Assembly Bill 2585 providedfor collective bargainingas a part of the ongoing charter school process, whereas Senate Bill 1448, signed by the Governor, did not provide for collective bargaining. In vetoing AB 2585, Governor Wilson stated: This bill [AB 2585] requires teacher union approvalofall charter schools, state review and approval of the charter application, continuation of elaborate collective bargaining processes, and limitations on who can attend a charter school. On all accountsthis bill fails to embrace the basic ingredients of the charter school concept. (JA 104.) As the Governor’s message makesclear, any union involvementin the review and approvalprocess was specifically rejected as in contravention of the “charter school concept.” (JA 104.) In 1999, the Charter Schools Act was amendedto subject charter schools to the EERA to the degree charter employees wish to organize; however, the amendment specifically continued the ban on union and PERB involvementin the charter petition process. (Ed. Code, § 47611.5(e).) In Round Valley Unified School District v. Round Valley Teachers Association, supra, 13 Cal.4th 269, the California Supreme Court considered whether a schooldistrict could, through collective bargaining, agree to give greater procedural protections to probationary employees than those set forth in Education Code section 44929.21. The collective bargaining agreementat issue gave greater notice and disclosure rights to a probationary teacherprior to nonreelection than provided bystatute. This Court concluded that: 1) the schooldistrict had the statutory right to not retain a probationary teacher without cause ora right to a hearing; and, 2) the entire reelection issue cannot, pursuant to the EERA, be madethe 14 subject of collective bargaining. Ud. at 276.) Citing San Mateo City School District v. Public Employment Relations Board (1983) 33 Cal.3d 850, the Round Valley Court further concluded that such provisions are not to be validated and that “the intent of the Government Code [section 3540] is to preclude contractual agreements that would alter the meaning ofother - statutory provisions.” (Round Valley Unified School District v. Round Valley Teachers Association, supra, 13 Cal.4th at 286, citing Gov. Code, § 3540; emphasis added.) “Preclude: to make impossible by necessary consequence:rule out in advance.” (Webster’s Collegiate Dict. (10™ ed. 1993) p. 917.) (See also, Local 8599, United Steelworkers ofAmerica, AFL-CIO v. Board ofEducation ofthe Fontana Unified School District (1984) 162 Cal.App.3d 823, 833 [statutory authority given to school district cannot be usurped by provisionsofcollective bargaining agreement].) The Court of Appeal decision turns this Court’s ruling in Round Valley Unified School District v. Round Valley Teachers Association, supra, 13 Cal.4th 269, on its head; ignoring the high court’s application of the preemption doctrineby ruling that the question of preemptionmustbe submitted to arbitration and may only be considered by the court post bindingarbitration pursuant to Code ofCivil Procedure section 1286.4. The decision further undermines this Court’s holding in Round Valley that 15 the effect of preemption is to preclude such collective bargaining agreements. Where, as here, such agreements are preempted as in conflict with the Education Code, they are precluded and there is no valid agreementto arbitrate. A PETITION TO COMPEL ARBITRATIONIS PROPERLY DENIED WHERE THE COLLECTIVE BARGAINING PROVISIONS ARE PREEMPTED AND/OR INVALIDATED BY STATUTE The Court of Appealruled that the section 47611.5(e) is a defense to be presented to the arbitrator and, “if the arbitrator concludesthat the district violated the collective bargaining agreement, it may then challenge the awardin the trial court based uponits defense that section 49711.5 [sic], subdivision (e) preempts the union’s grievancerights.” (Opinionp. 13.) However, this ruling places schooldistricts in an untenable position, especially when faced with an arbitrator’s decision to invalidate a charter school established in compliance with section 47605. In such a case, a school district must either comply with the award, facing a lawsuit from the charter school, or the district must continue to spend resourcesfighting the arbitrator’s award. — | Moreover, the Opinion conflicts with the long-standing authority interpreting Government Code section 3540 of the EERA, holding that where the collective bargaining provision is inconsistent with the Education 16 Codeit is preempted and the schooldistrict is barred from proceeding to arbitration under preempted provisions. Notably, the Court of Appeal did not address the cases decided under the EERA which holdthatpetition to compelarbitration pursuant to Code of Civil Procedure section 1281.2 is properly denied where the collective bargaining provisions are preempted. In United Steelworkers ofAmerica, Local 8599, AFL-CIO y. Board ofEducation ofthe Fontana Unified School District (1984) 162 Cal.App.3d 823, the court affirmedthetrial court’s denial of a petition to compel arbitration pursuant to Code of Civil Procedure section 1281.2 wherethe collective bargaining provision was in conflict with Education | Code section 45113: “[W]e hold that the schooldistrict is barred from applying the bindingarbitration step of its grievance procedureto disciplinary decisions of the governing board....” The court further stated: “Pursuant to these statutes [Ed. Code, § 45113 and Gov. Code, § 3540]... the potential double remedy of subjecting a conclusive governing board decision to the subsequentfinal and binding arbitration of the general collective bargained for agreement simply wasneither authorized nor intended by the California Legislature.” (/d. at 840.) In Fontana Teachers Association v. Fontana Unified School District (1988) 201 Cal.App.3d 1517, 1521, the court considered whether to compel 17 arbitration where the collective bargaining provisions were, as here, | preempted by the Education Code. The court confirmed that absent an agreement to submit the question of arbitrability to the arbitrator, it is the duty ofthe court, not the arbitrator, to determine whetherornotthe parties’ agreement to arbitrate covers the particular dispute. The court further held that since the collective bargaining agreement was preempted,thepetition to compel arbitration was properly denied. (/d. at 1521.) In the instant case, it is undisputed that the parties have not granted the arbitrator authority to determine arbitrability (JA 53, 57) and the Court of Appeal provides no reference to the collective bargaining agreement to support its conclusion that the question of arbitrability is to be considered by the arbitrator. The /ontana court further held that where the arbitrator would have no powerto provide the requested remedy,arbitration is an idle act barred by Civil Code section 3532. (Ud. at 1526.) Here, the law is clear that the arbitrator would have no authority to order compliance with the collective bargaining agreementor grant the requestedrelief, which is rescission of the Board’s approval of the charter petition, as to do so would violate both Education Code sections 47611.5(e) and 47605. This Court in Round Valley cited both United Steelworkers and Fontana with approval. (Round Valley Unified School District v. Round 18 Valley Teachers Association, supra, 13 Cal.4th at 286.) The Court of Appeal Opinion also conflicts with the Court of Appeal, Sixth District’s recent decision in Sunnyvale Unified School District v. Jacobs (2009) 171 Cal.App.4™ 168, which recognizedthe preclusive effect of preemption: “In’ sum, as Round Valley specifically held, a schooldistrict’s decision notto reelect a probationary teacher cannotbe the subjectof collective bargaining. Jtfollows that the decision cannot be challenged as a breach of the collective bargaining agreement. The decision is outside the scope of the agreement, as a matter oflaw.”(Id. at 180; emphasis added.) Here, section 47611.5(e) prohibits the establishment of charter schools from being the subject of collective bargaining. Moreover, the CBA provisions are preempted as inconsistent with the proceduresset forth in Education Code section 47605. Therefore the decision to approve the Locke Charter Petition cannot be challenged as a breach ofthe collective bargaining agreement. (Ud. at 180.) While the Court of Appeal views the Round Valley decision as only applying to undo an improperarbitration decision post bindingarbitration pursuant to Code of Civil Procedure section 1286.4, this does not take into account the following Supreme Court statement: Moreover, in contrast to assertions made by Association and the Court of Appeal below, San Mateo, supra, 33 Cal.3d 850, 19 observed that the intent ofthe Government Codeis to preclude contractual agreements that would alter the meaning of other statutory provisions. As District observes, if we wereto validate the requirements ofarticle 19, section B(1) ofthe agreement with Association, we would severely undermine section 44929.21(b). Indeed, under San Mateo, supra, enforcementofarticle 19, section B(1), would result in replacing or setting aside a nonnegotiable and mandatory provision of the Education Code, a result the Fontana court explained Government Codesection 3540 et seq. sought to avoid. (Round Valley, supra, 13 Cal.4th at 286; emphasis added.) This statement demonstrates that although this Court received the issue post arbitration in Round Valley, and did hold the matter subject to review under Code of Civil Proceduresection 1286.4, it also held that the contract provisions were invalid, precluded, and without force and effect. (1bid.) The Court of Appeal assumes, ab initio, that the parties to a collective bargaining agreement must pursue arbitration because Code of Civil Procedure section 1281 provides that an agreement to arbitrate a dispute is enforceable. However, this analysis did not consider the overriding authority, the preemptory effect, of the particular statutes set forth in the Charter School Act and the EERA that are paramount and abrogate the general statutes, including Code of Civil Procedure sections 1281 et seq. (See, Code Civ. Proc., § 1859 [in construing statute “a 20 particular intent will control a general one that is inconsistent with it.”].) The “particular intent” of the Legislature in enacting section 47611.5 (e) and section 3540 is to abrogate and override inconsistent general statutes found in Code of Civil Procedure sections 1281.1 et seq. The Court of Appeal incorrectly relied upon California Correctional Peace Officers Assn. v. State ofCalifornia (2006) 142 Cal.App.4th 198, which was decided under the Dills Act rather than the EERA. (Ud. at 202.) Importantly, there was no similar jurisdictional statute to 47611.5 (e) at issue in Peace Officers, nor does the Dills Act include a nonsupercession clause as does the EERA (Gov. Code, § 3540). In Peace Officers, the Department opposed the Union’s petition to compel arbitration based upon Government Codesection 3529 ofthe Dills Act, whichstates that supervisory employees “shall not participate in meet and confer sessions on behalf of” rank-and-file employees, and vice versa. (/d. at 201.) In other words, the Department defended the conductalleged in the grievance by relying upon a statute in an otherwise arbitrable case. “While no California case has expressly ruled on the exclusive right of judges to consider otherwise arbitrable cases raising issues ofstatutory interpretation, the Department’s position runs counter to the assumptions that underlie many California decisions, which anticipate that arbitrators 21 will engage in statutory interpretation.” (/d. at 208; emphasis added.) The court held that the arbitrator may interpret statutes asserted as a defense to the grievance. (/d. at 210.) | Unlike in Peace Officers, this is not an “otherwise arbitrable case” upon whicha statute is relied upon in defense of conduct alleged in the grievance. Neither section 47611.5 (e) or section 3540is relied upon to defend any act or omission alleged in the grievance. Rather, these statutes renderthe arbitration agreement preempted, thereby precluding the parties from giving any force and effect to the preempted provisions, barring arbitration. CONCLUSION By requiring the parties to engagein arbitration, the Court of Appeal gives effect to provisions that the Legislature has expressly stated are contrary to law leading to the exact result the Legislature sought to avoid — union involvementin the chartering process impairing the implementation of the Charter Schools Act. Ifthe Court of Appeal decision stands, the District and schooldistricts across the state would be repeatedly required to either comply with illegal provisions or be put throughthe grievance process, including binding arbitration. Not only is submitting to arbitration underillegal provisions an “idle act,” this approach would unnecessarily 22 drain already strained resources and is contrary to both section 47611.5(e) and section 3540 whichis to “preclude” contracts that conflict with the Education Code. This Court’s review is necessary to give effect to the Education Code andlegislative policy supporting education reform, to clarify the effect of preemption under the EERA upon the grievance process as set forth in the collective bargaining agreement, and to bring uniformity to the case law addressingthis issue. Dated: October 26, 2009 MILLER BROWN & DANNIS SUE ANN SALMON EVANS wy QuemSmaAS SUE ANN SALMON EVANS Attorneys for Respondent LOS ANGELES UNIFIED SCHOOL DISTRICT 23 CERTIFICATE OF COMPLIANCE Counsel ofRecord hereby certifies that pursuant to Rule 8.504(d)(1) of the California Rules of Court, Respondent’s Petition for Review was produced using 13-point Roman type including footnotes and does not exceed 8,400 words and contains approximately 5,450 words, whichis less than the total words permitted by the rules of court. Counselrelies on the word count of the computer program used to prepare this Petition. Dated: October 26, 2009 MILLER BROWN & DANNIS SUE ANN SALMON EVANS aacbinSalmaAaKS SUE ANN SALMON EVANS Attorneys for Respondent LOS ANGELES UNIFIED SCHOOL DISTRICT ATTACHMENT (OPINION OF THE COURT OF APPEAL DATED SEPTEMBER17, 2009) CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT COURT OF APPEAL- SECOND DIS” rFILs D DIVISION FIVE | SEP 17 2009 UNITED TEACHERS LOS ANGELES, Plaintiff and Appellant, Vv. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent. . JOSEPH A. LANE - Clerk B214119 Deouty Clerk (Los Angeles County Super. Ct. No. BS116739) APPEAL from an order of the Superior Court of Los Angeles County, Mary Ann Murphy, Judge. Reversed. Holguin, Garfield & Martinez, Jestrs Quifionez and John J. Kim for Plaintiff and Appellant. Miller Brown & Dannis and Sue Ann Salmon Evans for Defendant and Respondent. I. INTRODUCTION The United Teachers Los Angeles (“the union”) appeals from an order denying its petition tocompelarbitration of a dispute with Los Angeles Unified SchoolDistrict (“the district”) over alleged collective bargaining agreementviolations. The alleged violations ofthe collective bargaining agreement concern the district’s approval of a charter school petition, which was madepursuant to The Charter Schools Act of 1992. (Ed. Code,' § 47600 et seq.) Thedistrict refused to submit the dispute to arbitration on the ground the charter schoolprovision of the collective bargaining agreementeither violated or was preempted by section 47611.5, subdivision (e), Citing Board ofEducation v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 277-288, the trial court agreed with the district and denied the union’s petition to compelarbitration. We reverse the order denying the petition to compelarbitration. YY. BACKGROUND On May 11, 2007, Green Dot Public Schools filed a charter petition with the. district. The petition sought to convert Alain Leroy Locke Senior High School (“Locke high school”) to a charter school. The district’s education board granted the charter school petition on September 11, 2007. . On May9, 2008, the union filed a petition to compelarbitration pursuant to a written collective bargaining apreement. Thepetition alleges that Article V of the | collective bargaining agreementoutlines the three-step erievance procedure. The three- step grievance procedure must be pursued whenthe union claims the district violates the collective bargaining agreement. Article V, section 11.0 provides that if the grievance is not settled in step two, the union may submit the matter to arbitration. Article V, section 1.0 of the collective bargaining agreement defines a grievance as “a claim that the district All further statutory references are to the Education Code unless otherwise indicated. has violatedan express term”ofthe collective bargaining agreement. Article XII-B of charter school. Article XII-B states in part, “The primary purposeofthis Article is to mitigate the potentially disruptive effect upon employees assigned to schools which are converting (or considering converting to independent charter schools.” Article XII-B, section 2.0 sets forth the duties of the union and its members in processing a conversion charterpetition. Article XII-B, section 3.0 establishes disclosure requirements by a charter schoo! operator to employees of a proposed charter school. The petition also alleges that,on August 30, 2007, the union filed a grievance againstthe district. The grievance alleged that the district had violated Article XII-B, sections 2.0 and 3.0 of the collective bargaining agreement in connection with the Locke high school conversion. The grievance asserted the district had violated the collective bargaining agreement by: not presenting the complete charter to employees; not giving ample time to permit affected employees and the community a reasonable opportunity to review and discuss the plan; not giving the union a copy of the proposed charter for | review; and not clearly and fully disclosing the conditions of employment with the charter school. The district denied the union’s grievance on December 4, 2007. To comply with step 2 of the grievance procedures, the union sent letter dated January 9, 2008, to the district. The union subsequently requested arbitration of the dispute by letter dated January 29, 2008. The district refused to submitto arbitrate the controversy. The union’s points and authorities argued: Government Code section 3548.7, which is part of the Educational Employment Relations Act, permits an aggrieved party to an arbitration clauseto file a petition to compel arbitration pursuant to Code ofCivil Proceduresection 1281.2; there was no dispute aboutthe validity of the collective bargaining agreement; the trial court’s jurisdiction was limited to determining whether there wasanarbitration agreement, a refusal to do so or an exception to the duty to arbitrate; and the arbitrator must decide the substantive merits of the dispute. The district opposed the union’s petition to compel arbitration. First, in a footnote, the district argued the union had nostanding to challenge the alleged violations ofthe 3 collective bargaining agreement on behalf of its members. Second, relying upon Board of Education v. Round Valley Teachers Assn, supra, \3 Cal4th at pages 277-288,the district asserted the union’s claims concerning the alleged violations of the collective bargaining agreementcould notbe arbitrated. The district asserted that Code of Civil Procedure section 1281.2 requires the existence of a valid agreementto arbitrate. Accordingto the district, there was no valid agreementto arbitrate the alleged violation of the collective bargaining agreement. The district reasoned that Article XJI-B of the collective bargaining agreement was either preemptedor invalidated by section 47611.5, subdivision (e) which provides that the approval of a charter schoolpetition shal! not be controlled by a collective bargaining agreementnor subject to review or regulation by the Public Employment Relations Board. Further, the district argued that Article XII-B of _ the collective bargaining agreementis invalid because it imposes procedural] steps on the district beyond what is required under section 47605. Citing Board ofEducation y. Round Valley Teachers Assn., supra, 13 Cal.4th at pages 277-288,the trial court denied the petition to compelarbitration. Notice of entry of the trial court’s ruling denying the petition was given on December 17, 2008. The union filed a notice of appeal on February 13, 2009. If. DISCUSSION A. Standing The district asserts the union lacks standing to pursue the grievance because neither the charter school operator nor Locke high school’s staff are parties to the collective bargaining agreement. The determination of standing to compelarbitration of » a controversy is a legal question. (Bouton vy, USAA, Cas. Ins. Co. (2008) 167 Cal.App.4th 412, 425; Smith v. Microskills San Diego L.P. (2007) 153 Cal.App.4th 892, 900.) We conclude the union had standing to file the petition to compel arbitration. Code of Civil Procedure section 1281.2 provides that the court should compel written agreementto arbitrate” subject to specified exceptions. Code of Civil Procedure section 1280, subdivision (e) states in part: “Party to the arbitration’ means a party to the arbitration agreement: [{] (1) Who seeksto arbitrate a controversy pursuant to the agreement.” The generalruleis that a party or signatory to an arbitration agreement may seek to enforce it. (Bouton y. USAA Cas. Ins. Co., supra, 167 Cal.App.4th at pp. 423- 424; City ofHope v. Bryan Cave, L.L.P. (2002) 102 Cal.App.4th 1356, 1369.) It is undisputed that the district and the union are both parties to the collective bargaining agreement. The union is seeking to enforce provisions of the collective bargaining agreement. The union andthe district are in a dispute about a provision ofthe collective bargaining agreement. Thus, one party to an agreementto arbitrate is seeking to enforce the arbitration clause against another signatory. (Code Civ. Proc., §§ 1280, subd.(e), 1281.2; Melander v. Hughes Aircraft Co. (1987) 194 Cal.App.3d 542, 546; see also Bouton v. USAA Cas. Ins.-Co., supra, 167 Cal.App.4th at pp. 423-424.) The district nevertheless argues that the union has no standing to compel arbitration. The district argues neither the charter school nor the union membersare a party to the collective bargaining agreement. Government Codesection 3543.8, whichis part of the Educational Employment Relations Act, provides in part, “Any employee organization shall have standing to sue in any action or proceeding heretofore or hereafter instituted by it as representative and on behalf of one or more of its members.” Government Codesection 3543.8 confers standing on a labor union to representits members. (Professional Fire Fighters, Inc. y. City ofLos Angeles (1963) 60 Cal.3d 276, 283-284, disapproved on a different point in Bishop vy. City ofSan Jose (1969) 1 Cal. 3d 56; 63, fn.6 [labor union has standing to represent members]; California School Employees Assn. v. Tustin Unified School Dist. (2007) 148 Cal.App.4th 510, 523-524 {union had standing to seek relief on behalf of employees other than the specific aggrieved employee]; Anaheim Elementary Education Assn. y. Board ofEducation (1986) 179 Cal.App.3d 1153, 1157 [standing to sue extends to former members even if 5 the union is no longer the exclusive bargaining representative]; International Union of uto etc. Workers v. Dept. 0 App. , 933 (union had standing “to represent its members in an action whichis inseparably founded upon its members’ employment”; California School Emp. Assn. v. Sequoia Union High School Dist. (1969) 272 Cal.App.2d 98, 104 [union had standing to sue on behalf of cafeteria employees who were dismissed after cafeteria operation discontinued]; California School Employees. Assn. v. Willits Unified School Dist. (1966) 243 Cal.App.2d 776, 779-780 [Gov. Code, § 3500 et seq. gave union standingto sue to enforce employmentrights of its members including formerly employed janitors].) Thus, the union has standing to pursue the claims raised by the petition to compel arbitration. Our Supreme Court’s recent decision in Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1000-1001 is not pertinent to the outcomeofthis appeal. In that case, our Supreme Court held that a union, which has not suffered any damage, has no standingto file an unfair competition law or Labor Code Private Attorney Generals Act of 2004 representative action on behalf of the rank-and- filemembership. (/d. at pp. 998, 1001.) Our Supreme Court reasoned that under the unfair competition law or Labor CodePrivate Attorney Generals Act of 2004, the plaintiff must have suffered injury. (/d. at pp. 1000-1001.) Our case does not involve the unfair competition law or Labor CodePrivate Attorney Generals Act of 2004. Rather, our case is controlled by the specifically applicable provisions of Government Code section 3543.8 which generally grants standing to a union to represent its members. B. Merits The present dispute arises in the context of an arbitration provision in a collective _ bargaining agreement. Assuch,the controlling statute is Government Codesection 3548.7 whichstates, “Where a party to a written agreementis aggrieved by the failure, neglect, or refusal of the other party to proceedto arbitration pursuantto the procedures provided therefor in the agreementor pursuant to an agreement made pursuantto Section 6 3548.6, the aggrieved party may bring proceedings pursuant to Title 9 (Commencing with arbitration proceed pursuant to the procedures provided therefor in such agreement or pursuant to Section 3548.6.” (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 855; South Bay Union School Dist. v. Public Employee Relations Bd. (1991) 228 Cal.App.3d 502, 507. fn. 5.) Government Code section 3548.7 is part of the Educational Employment Relations Act which wasoriginally adopted in 1975, (Stats. 1975, ch. 961, § 2, p. 2247; Gov. Code, § 3540 et seq.; see Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 177.) Code of Civil Procedure section 1281 states, “A written agreement to submit to arbitration an existing controversy- or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds asexist for the revocation of any contract.” The trial court has authority to compel arbitration pursuant to Code of Civil Procedure section 1281.2 which providesin part: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreementto arbitrate the controversy exists, unlessit determinesthat: [{] (a) The right to compelarbitration has been waived by the petitioner; or [§] (b) Grounds exist for the revocation of the agreement...” Code of Civil Procedure section 1281.2 further provides in part, “If the court determines that a written agreementto arbitrate a controversy exists, an orderto arbitrate such controversy may not be refused on the groundthat the petitioner’s contentions lack substantive merit.” The statutory provisions set forth in this paragraph control the outcomeofthis case, ~ Doubts as to whetheran arbitration clause applies to a particular dispute should be | resolved in favor of sending the parties to arbitration. (Cronus Investment, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 386; Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189.) However, the right to compel arbitration depends upon the existence of a valid contract between the parties. (County ofContra Costa v. 7 Kaiser Foundation Health Plan, Inc. (1996) a7 Cal.App.4th 237, 245; Marsch v. illiams al. App. ; . € question of w ra valid agreement to arbitrate exists is determined by reference to state law applicable to contracts generally. (Doctor's Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 686-687; Engallav. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-972.) California has a strong public policy in favor of arbitration. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9; Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 322.) But there is no public policy favoring arbitration of disputes whichparties have not agreed to arbitrate. (Freeman v. State Farm Mut. Auto Ins. Co. (1975) 14 Cal.3d 473, 481; Cione v. Foresters Equity Services, Inc. (1997) 58 Cal.App.4th 625, 634.) The moving party has the burden of proving the existence of a valid arbitration clause and the dispute is covered by the agreement. (Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.Ath at p. 972; Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413-414.) Ifthe moving party meets the foregoing burden,the opposing litigant has the responsibility to prove by a preponderance of the evidence any defenseto the petition. (Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 972; Rosenthal v. Great Western Financial Securities Corp., supra, 14 Cal.4th at p. 413.) In the absence of any disputedhistorical facts, we review the order denying the petition to compel arbitration de novo. (Ghirardo vy. Antonioli (1994) 8Cal.4th 791, 799; Valentine Capital Asset Management, Inc. v. Agahi (2009) 174 Cal.App.4th 606, 613.) The district contendsthetrial court properly concludedthat the Article XTI-B of the collective bargaining agreement was preemptedor invalidated by section 47611.5, | subdivision (e). The district asserts that the collective bargaining agreementprovision governingthe charter schoolpetition process cannot be reviewed by anarbitrator. . Therefore, the district argues the arbitration agreement cannot be enforced. In this vein, the district argues an arbitrator cannot enforce Article XH-B ofthe collective bargaining agreement, which delineates the procedures to be followed in the case of a charter school conversion, because of section 47611.5, subdivision (e). We respectfully disagree. 8 The district is arguing the union’s position concerning its members’ rights under section 47611.5, subdivision (e). But the merits of a dispute, such as the effect of section 47611.5, subdivision (e), must be resolved in the first instance by the arbitrator. Whether there is a meritorious defense to the enforcementofthe Article XII-B was not properly raised as a defenseto the petition to compel arbitration. (Code Civ. Proc., § 1281.2; California Correctional Peace Officers Assn. v. State ofCalifornia (2006) 142 Cal.App.4th 198, 205; see Service Employees International Union, Local 1000 vy. Department ofPersonnel Administration (2006) 142 Cal.App.4th 866, 874-875.) And the arbitrator is authorized to decide the merits of the district’s section 47611.5, subdivision (e) defense. Rather, at this stage, our determination andthatof a trial court is limited to whether there was a valid agreementto arbitrate. (Code Civ. Proc., §§ 1281, 1281.2; California Correctional Peace Officers Assn. y. State ofCalifornia, supra, 142 Cal.App.4th at pp. 210-211; see also Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 972; Rosenthal v. Great Western Financial Securities Corp., supra, 14 Cal.4th at pp. 413-414.) Arbitrators are authorized to resolve statutory claims. This includes interpreting statutes and considering statutory defenses. (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1075; Moncharsh v. Heily & Blasé, supra, 3 Cal.4th at p. 33; California Correctional Peace Officers Assn. y. State ofCalifornia, supra, 142 Cal.App.4th at pp. 208-209.) This includes the district’s section 47611.5, subdivision (e) defense. The present case is similar to the scenario in California Correctional Peace Officers Assn. v. State ofCalifornia, supra, 142 Cal.App.4th atpages 204-211. In California Correctional Peace Officers Assn., the union asserted that rank-and-file- members could participate in meet and confer sessions involving supervisors and vice- versa. When management refused to permit negotiations to occur in the presence of others, the union filed a petition to compelarbitration. (/d. at pp. 202-203.) Management resisted the petition arguing that Government Codesection 3529, subdivision (c)’ employees and vice-versa. (Ud. at p. 204.) Thetrial court denied the petition to compel arbitration because the dispute was governedin its view by Government Code section 3529, subdivision (c). bid.) Our colleague, Associate Justice Sandra Lynn Margulies, held the petition to compel arbitration should have been granted. Associate Justice Margulies explained: “(Parties to a dispute have agreed to arbitrate the dispute, section 1281.2 requires arbitration unless the agreementis revocable orarbitration has been waived. Further, there is a strong public policy favoring arbitration. [Citation.] There is no statutory exception for arbitrations presenting issues of statutory construction. [{] Fundamentally, the Departmentis attempting to leverage its contention that Government Code section 3529 supersedes the substantive terms of the MOUinto an argument that section 3529 supersedesthe obligation to arbitrate entirely. Even assuming the Departmentis correct that section 3529 supersedes any inconsistent provisions of the MOU,section 3529 in no way prevents the presentation of this argumentto an arbitrator. Reducedto its essence, the Department’s claim is that it should be permitted to avoid arbitration because the Union’s positionis barred by section 3529-in other words, that the Union’s claim, as a matter of law, has no merit. As discussed above, Code of Civil Procedure section1281.2 expresslyforbids courts from denying arbitration on the groundthatthe petitioner’s claim is meritless.” (California Correctional Peace Officers Ass’n. v. State ofCalifornia, supra, 142 Cal.App.4th at p. 211, original italics.) In our case, the district is contending that section 47611.5, subdivision (e)} prevents the arbitrator from granting the union any relief. Associate Justice Margulies’s analysis in California Correctional Peace Officers , Government Codesection 3529, subdivision (c) provides, “Excluded employees shall not participate in meet and confer sessions on behalf of nonexcluded employees. Nonexcluded employees shall not participate in meet and confer sessions on behalf of supervisory employees.” . 10 Ass'n. is directly relevant here—theissue the district contendsis dispositive mustfirst be presented to the arbitrator Further, there is no merit to the district’s argument that Board ofEducationv. Round Valley Teachers Assn., supra, 13 Cal.4th at pages 277-288 mandatesthat the statutory section 47611.5, subdivision (e) defense is a matter whichonly thetrial court can resolve in connection with the petition to compelarbitration. In Board ofEducation, our Supreme Court held an arbitrator exceeded his powers thereby permitting the award _ to be set aside pursuant to Code ofCivil Procedure section 1286.2, subdivision (a)(4).°> In Board ofEducation, the Round Valley education board refused to rehire a probationary teacher. Pursuant to a collective bargaining agreement,the legality of the refusalto rehire was contested by the probationary employée’s union. Thearbitrator, acting pursuantto a collective bargaining agreement, returned an award in favorofthe probationary teacher. The award required that the teacher be given a hearing at which he could contest the correctness ofthe refusal to rehire. Further, the collective bargaining agreement required good causebepresent to terminate a probationary teacher. (/d.at pp. 273-274.) Our Supreme Court, in passing on a petition to vacate the award held that section 44929.21, subdivision (b)* preempted the procedural protections containedin the 3 Code of Civil Procedure section 1286.2, subdivision (a)(4) states: “(a) Subject to Section 1286.4, the court shall vacate the award if the court determines any ofthe following: [{] ... (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted, 4 Section 44929.21, subdivision (b) states in part: “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 commencementofthe succeeding school year be classified as and become a permanent employeeof 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 schoolyear to theposition: In the event that the governing board does not give notice pursuant to this section on or ll collective bargaining agreement. (/d. at pp. 272, 277-288.) Before deciding the was warranted as an exceptional circumstanceto the arbitrationfinality rule. (d. at pp. 273-276.) Our Supreme Court held: “We conclude section 44929.21(b) preempts collective bargaining agreements as to causes and procedures governingthe reelection of . probationary teachers. The statutory scheme governing the proper subjects for collective . bargaining (Government Code section 3540, et seq.) and the reelection of probationary teachers (section 44929.21(b)) makes it clear that a school district’s decision not to reelect a probationary teacher after the second year of employmentis vested exclusively in the district and may not be the subject of:collective bargaining. Moreover, because the arbitrator’s decision below is inconsistent with District’s statutory rights under the Education Code, the issue is subject to judicial review. [Citation.]” (/d. at pp. 287-288.) Board ofEducation only holds that an award issubject to judicial review on preemption grounds because,in that case, the arbitrator exceededhis powers. Board ofEducation does not address the issue of nor hold that the statutory defense was not subject, in the first instance, to arbitration. | . Our views concerning Board ofEducation y. Round Valley Teachers Assn., supra, 13 Cal.4th at pages 277-288 are consistent with the Associate Justice Margulies’s analysis in California Correctional Peace Officers Assn. v. State ofCalifornia, supra, 142 Cal.App.4th at page 209: “In... Board ofEducation y. Round Valley Teachers Assn. ..., the school district claimed that the collective bargaining agreement, as interpreted bythe arbitrator, was inconsistent with provisions of the Education Code and the code supersededthe provisions ofthe collective bargaining agreement-an argument similar in nature to the defense asserted by [the state agency in responseto a Code of Civil Procedure section 1281.2 petition]. [Citation.] Despite the school district’s purportedly conclusivestatutory defense, the Supreme Court did not suggest that such a case should never have reached the arbitrator. Rather, it ruled that the Education Code before March 15, the employee shall be deemedreelected for the next succeeding school year.” 12 provisions represented an ‘“explicit legislative expression of public policy” permitting = [Citation.]” In our case, if the arbitrator concludesthat the district violated the collective bargaining agreement, it may then challenge the awardin the trial court based onits defense that section 49711.5, subdivision (e) preempts the union’s grievancerights. (See Board ofEducation v. Round Valley Teachers Assn., supra, 13 Cal.4th at pp. 277, 287- 288; Service Employees International Union, Local 1000 v. Department ofPersonnel Administration (2006) 142 Cal.App.4th 866, 874-875; California Correctional Peace Officers Assn. v. State ofCalifornia, supra, .142 Cal.App.4th at pp. 210-211.) By contrast, the arbitrator may decide that the district did not violate the collective bargaining agreement. In such a case, there would be no needto decide the preemption issue in the courts. (See Service Employees International Union, Local 1000 v. Department ofPersonnel Administration, supra, 142 Cal.App.4th at pp. 874-875 [statutory and constitutional claims can await arbitrator’s decision on the contract where decision may disposeof constitutional andstatutory issues and thereby savejudicial resources]; California Correctional Peace Officers Assn. y. State, supra, 142 Cal.App.4th at pp. 210-211 [state agency may not skip arbitration on the basis that the union’s claims are either inconsistent with statutory law or public policy because the arbitrator can decidethe issue in thefirst instance].) In sum, the petition to compel arbitration should | have been granted. 13 — IV. DISPOSITION The order denying the petition to compel arbitration is reversed. Plaintiff, United Teachers Los Angeles, shall recover its costs incurred on appeal from defendant, Los Angeles Unified School District. CERTIFIED FOR PUBLICATION TURNER,P.J. We concur: _ ARMSTRONG,J. KRIEGLER,J. 14 CERTIFIED FOR PUBLICATION 1 Qe APPEAL - SECOND DIS” i ToS ID SECOND APPELLATE DISTRICT Oct1 6 2008 DIVISION FIVE JOSEPHALANE__ler . — Deouly Clerk UNITED TEACHERS LOS ANGELES, B214119 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BS116739) Vv. ORDERS: MODIFYING OPINION LOS ANGELES UNIFIED SCHOOL ' AND DENYING REHEARING DISTRICT, PETITION Defendant and Respondent. [NO CHANGE IN JUDGMENT] The opinion filed September 17, 2009, is modified in the followingparticulars: 1. On page five in the second sentence of the second paragraph,delete the words “union members”andinsert in their place the words “charter school employees”. 2, On page nine, at the end of the first paragraph,after the word “defense”delete the period, and insert “which will be subject to judicial review as authorized by section 1286.4, subdivision (a)(4) (see post, fn. 3) as discussed in Board ofEducation v. Round Valley Teachers Assn., supra, 13 Cal.4th at pages 273-276. It may very well be the arbitrator will concludeall of the union’s claims are barred by section 47611.5, subdivision (e)”. 3. On page nine,at the start ofthe second paragraph,delete “Rather,at” andits place, insert “AC. | | 4. Onpage nine, in the last sentence of the second paragraph,after the “defense” and before the period, insert “to the merits of the grievance including the argumentthat the arbitrator must reject it because of the statute’s preemptive effect”. 5. On page 13, in thefirst full paragraph, insert the following as the new third sentence, “Or the arbitrator may issue an award that has nothing to do with the charter school petition but only reaches issues such as the adequacyofnotice andits effect on union members who will not be involved in the charter school operation.” 6. On page 13, in the new fourth sentenceofthe first full paragraph, which begins with “In such case,” delete “would” and insert “may”. The rehearingpetition filed October 1, 2009, is denied. TURNER,P.J. ARMSTRONG,J. KRIEGLER,J. PROOF OF SERVICE SS. e e e COUNTY OF LOS ANGELES I am employedin the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 301 East Ocean Boulevard, Suite 1750, Long Beach, CA 90802. On the date set forth below I served the foregoing document described as PETITION FOR REVIEWoninterested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: 1 Copy: 1 Copy: Jesus Quinonez Clerk John Kim California Court of Appeal Holguin, Garfield & Martinez, APLC Second Appellate District 800 West Sixth Street, Suite 950 300 South Spring Street Los Angeles, CA 90017 Los Angeles, CA 90012 Telephone: (213) 623-0170 Facsimile: (213) 623-0171 1 Copy: Honorable Mary Ann Murphy Los Angeles Superior Court, Central District 111 N. Hill Street Los Angeles, CA 90012 (VIA U.S. MAIL) I caused such document to be placed in the U.S. Mail at Long Beach, California with postage thereonfully prepaid. Iam “readily familiar” with the firm’s practice of collection and processing correspondencefor mailing. It is deposited with the U.S. PostalService on that same day in the ordinary course of business. I am aware that on motion ofparty served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (STATE)I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. AND: I declare that on October 26, 2009, the original and 13 copies have been hand deliveredfor filing on this date to: Clerk California Supreme Court 350 McAllister Street San Francisco, CA 94102-4797 Executed on October 26, 2009 at Long Beach, California. Ila Friend \Ven! Type or Print Name Signature