(Santa Clara County Super. Ct. Nos. 1-06-CV072102, 1-06-CV073176). Trial Judge: Hon. Kevin E. McKenney.
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
The question before us is whether a school district‟s decision not to re-elect a probationary teacher is subject to arbitration under a collective bargaining agreement, where it is alleged that the decision was made in retaliation for the teacher‟s participation in protected activities. We conclude that, pursuant to Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 281 (Round Valley), the decision is not subject to contractual arbitration. Where, as here, the decision is alleged to be a violation of the Educational Employment Relations Act (EERA) (Gov. Code, §§ 3540-3549.3), the remedy lies with the Public Employee Relations Board (PERB). (Id., §§ 3541, 3541.3.)
Michael Jacobs was in his second year as a probationary teacher with plaintiff Sunnyvale Unified School District (the District) when, on March 7, 2005, the District notified him that he would not be reelected for the following school year. In so doing, the District denied Jacobs the tenure that he would have otherwise acquired at the close of his second year teaching in the District. (Ed. Code, § 44929.21, subd. (b).) Defendant Sunnyvale Education Association, CTA/NEA (the Association), the exclusive representative of certificated employees within the District, filed a grievance alleging that the District‟s decision was in retaliation for Jacobs‟s participation in Association activities. Although the allegation, if true, would be an unfair labor practice under the EERA, the Association did not pursue a charge with PERB, the administrative body created by the Legislature to, "investigate unfair practice charges or alleged violations of [the EERA]." (Gov. Code, § 3541.3, subd. (i).) Rather, since the collective bargaining agreement prohibited the same conduct the EERA prohibited, the Association pursued the matter as a breach of the collective bargaining agreement. Accordingly, the dispute was adjudicated pursuant to the contractual grievance procedures which called for binding arbitration.
The District denied that its decision was retaliatory and challenged the arbitrator‟s power to order reinstatement. The arbitrator rejected the challenge, found that Jacobs‟s nonreelection was "motivated by retaliation of the District for [Jacobs‟s] protected rights under the Collective Bargaining Agreement and related statutes," and ordered the District to reinstate Jacobs and purge his personnel file of the 2004-2005 evaluation. The arbitrator also ordered the District to credit Jacobs with several days of personal leave and to pay him for lost wages, benefits, and the extra cost he incurred by commuting to a different job during the 2005-2006 school year.
The Association petitioned the superior court to confirm the award. The District petitioned to vacate that portion of the award ordering reinstatement. The District argued that Education Code section 44929.21, subdivision (b), gave it the absolute right to decide whether or not to re-elect a probationary teacher and, under the decision in Round Valley, supra,13 Cal.4th 269, the arbitrator did not have the power to order reinstatement.
The superior court accepted the District‟s argument. The court noted that it was "concerned with the arbitrator‟s finding of illegal motivation." Nevertheless, the court held that under Round Valley, "the award of reinstatement was not within the arbitrator‟s authority and that portion of the award must be vacated." In its order dated May 4, 2007, the court ruled "that the petition to partially vacate the arbitration award is granted, striking the order reinstating Michael Jacobs and that the petition to confirm the arbitration award is denied." The portion of the award granting Jacobs back pay and benefits was not expressly vacated or confirmed. The Association has appealed.
II. PRELIMINARY CONSIDERATIONS
We initially questioned whether the order from which the Association purports to appeal is an appealable order.*fn1 Code of Civil Procedure section 1294 lists the types of orders associated with arbitration that may be appealed. As pertinent here, appeal may be taken from a judgment confirming an arbitration award (Code Civ. Proc., § 1294, subd. (d)), from an order dismissing a petition to confirm, correct or vacate an award (id., subd. (b)), or from an order vacating an award (unless the court has ordered rehearing) (id., subd. (c)). In this case, we have an order denying the Association‟s petition to confirm and granting the District‟s petition to partially vacate the award. An order denying a petition is not the same as an order dismissing such a petition (Mid-Wilshire Associates v. O‟Leary (1992) 7 Cal.App.4th 1450, 1454), and an order partially vacating is not specifically allowed by the statutes at all (see Code Civ. Proc., § 1286). Thus, neither ruling is nominally appealable.
The Association argues in its supplemental brief that the court‟s ruling was equivalent to an order vacating the award. We shall construe it as such. Under Code of Civil Procedure section 1286, once a petition to confirm, correct, or vacate is filed, the superior court has only four choices: It may (1) confirm the award, (2) correct the award and confirm it as corrected, (3) vacate the award, or (4) dismiss the proceedings. The order partially vacating the award neither confirmed the award nor dismissed the proceedings. And it cannot be an order correcting the award because, as pertinent here, the court may correct the award if "[t]he arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision." (Id., § 1286.6, subd. (b).) The present order affected the merits of the arbitrator‟s decision in that it precluded any meaningful remedy. Indeed, the Association concedes as much by arguing that the order "made every other part of the award, such as purging personnel files, irrelevant" and ended any further litigation in the superior court. If the award cannot be corrected without affecting the merits of the decision, the court must vacate the award. (Id., § 1286.2, subd. (a)(4).) We conclude, therefore, that the order partially vacating the award was, in effect, an order vacating the award, which is appealable. Accordingly, we shall construe it as such and proceed to consider the merits of the appeal.
B. Contentions and Standard of Review
The issue, as framed by the Association, is whether the arbitrator had the power to order Jacobs‟s reinstatement. There is no dispute that, as a general matter, PERB has the power to reinstate a probationary teacher who was not reelected in retaliation for his exercising his rights under the EERA. The Association maintains that since the collective bargaining agreement granted the teacher the same rights he had under the EERA, PERB would have had to defer the charge to the arbitrator for adjudication. Under those circumstances, so the Association maintains, the arbitrator has the same remedial authority PERB has. The District argues that the entire ...