Duarte Unified School District (PERB 0281E)

STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
DUARTE UNIFIED 	SCHOOL 	DISTRICT,
Charging 	Party,
v.
DUARTE 	UNIFIED 	EDUCATION ASSOCIATION,
CTA/NEA,
Respondent.
CaseNo. LA-CO-202
PERB Decision No. 281
February 3, 1983
Appearances; 	James C. 	Romo, Attorney 	(Atkinson, Andelson,
Loya, 	Ruud 	& Romo) 	for 	Duarte 	Unified School District;
Charles 	R. 	Gustafson, 	Attorney 	for 	Duarte 	Unified 	Education
Association, CTA/NEA.
Before Tovar, 	Jaeger 	and Morgenstern, Members.
DECISION
JAEGER, Member: 	This case 	is before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on 	appeal by 	the 	Duarte 	Unified
Education Association, 	CTA/NEA 	(Association) 	of a hearing
officer's 	partial 	refusal 	to 	issue 	a 	complaint 	and 	partial
dismissal without 	leave 	to 	amend 	of 	a 	charge 	filed 	by 	the
Duarte Unified 	School District 	(District) 	against 	the
Association. 	In the dismissed portion of 	the charge, 	the
District 	alleged 	that 	the 	Association 	violated 	subsections
3543.6(c) 	and 	(d) 	of 	the Educational Employment Relations Act
by 	engaging 	in a pre-impasse 	strike 	in breach of a contractual
no-strike 	clause. 	The hearing 	officer 	based 	her 	partial
dismissal on a 	finding 	that 	the District's 	breach 	of 	contract
allegation 	was 	outside of 	the 	jurisdictional 	limitation 	set
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forth 	in subsection 	3541.5(b).1 The Association appeals,
arguing 	that 	the 	dismissed 	portion 	of 	the 	charge 	was 	within 	the
Board's 	jurisdiction.
We find, 	pursuant to PERB rules, 	that, 	since the
Association 	was 	not 	the 	charging 	party, 	it 	had 	no 	standing 	to
appeal the 	hearing 	officer's partial 	refusal 	to 	issue 	a
complaint and 	partial dismissal.2 Accordingly, 	the
Association's 	appeal 	is 	dismissed.3
1Subsection 3541.5(b) 	provides:
The 	board 	shall 	not 	have 	authority 	to
enforce agreements 	between 	the parties, 	and
shall 	not 	issue 	a 	complaint on 	any 	charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
2PERB 	rules 	are 	codified 	at 	title 	8, 	California
Administrative Code, 	section 	31001 et 	seq. 	Prior 	to
September 	20, 	1982, 	the rules governing appeal of a hearing
officer's 	refusal 	to 	issue 	a 	complaint 	were 	located 	at 	section
326 30. 	That 	section provided 	in relevant part:
(b) 	The charging party may 	. 	. 	. 	(2) 	file an
original and 	four 	copies 	of 	an 	appeal of 	the
refusal with 	the 	Board 	itself within 	20 	days
following 	service. 	The 	appeal shall be
filed 	with 	the 	Executive 	Assistant 	to 	the
Board 	and 	shall 	be 	in writing, 	signed 	by 	the
party or 	its 	agent, 	and contain 	the 	facts
and 	arguments 	upon which 	the 	appeal 	is
based. 	Service 	and 	proof of 	service 	of 	the
appeal pursuant 	to 	section 	32140 	are
required. 	(Emphasis added).
3s
2
3since	ince 	our 	determination 	is 	based 	on 	a 	finding 	that 	the
Association 	lacked 	standing 	to bring 	this 	appeal, 	we 	need 	not
consider, 	and 	expressly decline 	to adopt, 	the hearing officer's
reason 	for 	dismissing 	the 	District's 	breach 	of contract
allegation.
2

ORDER
After 	a 	review of 	the 	entire 	record 	in 	this case, 	the
Public 	Employment Relations 	Board 	ORDERS 	that paragraph 	4 	of
the 	amendment 	to 	unfair 	practice 	charge LA-CO-202 	is 	DISMISSED
without 	leave 	to 	amend.
Members 	Tovar 	and 	Morgenstern 	joined 	in 	this 	Decision.
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PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE OP CALIFORNIA
DUARTE 	UNIFIED 	SCHOOL 	DISTRICT
Charging 	Party,
v.
DUARTE 	UNIFIED 	EDUCATION
ASSOCIATION/CTA/NEA
Respondent
Case No. 	LA-CO-202
NOTICE 	OF 	PARTIAL
REFUSAL 	TO 	ISSUE
COMPLAINT 	AND
PARTIAL 	DISMISSAL
WITHOUT 	LEAVE 	TO
AMEND
(11/18/81)
NOTICE 	IS 	HEREBY GIVEN 	that 	no complaint 	will 	be 	issued 	on 	that
portion of 	the 	above-captioned 	unfair 	practice charge 	as 	is 	set
forth 	in. paragraph 	4 	of 	the 	amendment 	to 	the charge 	filed 	September
4, 	1981, 	and 	that portion of 	the 	charge 	is 	hereby dismissed without
leave 	to amend. 	Acting on 	its own motion, 	this partial 	dismissal 	is
ordered 	by 	the 	Chief 	Administrative 	Law Judge pursuant 	to 	PERB
Regulation 	section 	32630(a) 	(California Administrative Code, 	title
8, 	part 	III). 	This partial dismissal 	is made on the ground that
paragraph 	4 	of 	the 	amended 	charge 	fails 	to allege 	facts 	sufficient
to 	state 	a 	prima 	facie 	violation of 	the 	Educational 	Employment
Relations Act 	(hereafter EERA). 1	1
It 	is 	concluded 	that 	the 	balance 	of 	the 	amended 	charge 	states 	a
prima 	facie 	case. 	Thus 	respondent's 	request 	to dismiss 	all
1California 	Government Code 	section 	3540 	et 	seq. 	All
statutory 	references 	herein 	are 	to 	the 	EERA unless 	otherwise
noted.
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allegations 	which 	respondent 	asserts 	are 	barred 	by 	the 	statute of
limitations provisions 	in 	section 	3541.5(a) 	is 	denied.
BACKGROUND
The 	charging 	party, 	Duarte Unified 	School 	District, 	filed 	the
original 	unfair 	practice 	charge 	against 	the 	respondent, 	Duarte
Unified Education Association, 	on August 11, 	1981, 	alleging 	a
violation of 	section 	3543.6(c) 	and 	(d). 	The charge 	states 	the
following 	factual 	allegations:
During 	the 	last 	six months, 	the Respondent
has 	been 	guilty 	of 	violating 	the 	Educational
Employment 	Relations Act 	as 	described 	in 	the
paragraph 	below.
1. 	The 	Respondent Association 	violated 	the 	duty 	to
participate 	in 	the 	impasse procedures 	in good 	faith
when 	it 	engaged 	in 	a work 	stoppage 	on February 	10
and 	11, 	1981 prior 	to 	the 	exhaustion of 	the 	impasse
procedures; and,
2. 	The 	Respondent Association 	violated 	the 	duty 	to
bargain 	in 	good 	faith when 	it 	engaged 	in 	a work
stoppage on February 10 	and 	11, 	1981 	during
negotiations 	even 	through 	a 	valid 	no 	concerted
activities 	clause was 	in 	existence at 	the 	time.
On August 	17, 	1981, 	the parties participated 	in an 	informal
settlement 	conference, 	but were 	unable 	to 	reach 	agreement.2
2Unfair 	practice Case 	No. 	LA-CO-202 	was 	consolidated with
unfair practice Case Nos. 	LA-CE-1309 	and LA-CE-1362 	for
informal purposes 	since 	all 	three 	charges 	involve 	the 	same 	two
parties.
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Nonetheless, 	during 	the 	informal, 	the District 	agreed 	to amend 	the
charge 	and 	subsequently 	filed 	an 	amendment 	September 	4, 	1981.
Paragraph 	4 	of 	the 	amendment 	states 	that
. 	. 	.on or 	about February 10 	and 11, 	1981
prior 	to 	the 	exhaustion 	of 	the 	impasse
procedures 	referred 	to 	in paragraph 	2
hereinabove, 	Respondent Association engaged
in a work 	stoppage 	in 	violation of 	a valid
existing 	no 	concerted 	activities 	clause
contained 	in 	the 	collective 	bargaining
agreement 	between 	Respondent 	Association 	and
Charging 	Party.
Respondent 	answered 	the 	original 	charge 	as 	amended 	October 	22,
1981, 	and 	requested 	dismissal 	of 	all 	allegations 	barred 	by 	statute
of 	limitations 	provision 	of 	section 	3541.5(a)
3 3. 	Disposition 	of
this 	request 	was 	stated 	above.
DISCUSSION
In 	ordering 	a 	dismissal 	of 	a charge 	on 	the ground 	that 	it 	fails
to 	allege 	a prima 	facie 	violation of 	the 	EERA, 	the 	PERB must 	assume,
for 	the purpose of 	acting on 	the motion, 	that 	"the 	essential 	facts
alleged 	in 	the 	charge 	are 	true". 	San 	Juan 	School 	District 	(3/10/77)
EERB Decision No. 	12.
33 Section 3541.5(a) 	provides, 	in pertinent part:
Any employee, 	employee organization, or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	issue 	a complaint 	in 	respect of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring 	more 	than 	six months 	prior 	to 	the
filing 	of 	the 	charge.
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In the 	present 	case 	the 	District 	is 	requesting 	that 	the
PERB 	assert 	jurisdiction 	over 	an 	alleged 	violation 	by 	the
Association of 	the 	"no 	concerted 	activities" 	provision 	of 	the
collective 	bargaining 	agreement 	between 	the 	parties.
However, 	section 3541.5(b) 	states that
[T]he 	board 	shall 	not 	have 	authority 	to
enforce 	agreements 	between 	the parties, 	and
shall 	not 	issue 	a 	complaint 	on 	any 	charge
based 	of 	alleged 	violation 	of 	such 	agreement
that 	would 	not 	also constitute an 	unfair
practice 	under 	this 	chapter.
In Baldwin 	Park Unified 	School 	District 	(4/4/79) 	PERB Decision
No. 	92, 	the PERB held 	that 	this 	agency 	"is prohibited from
enforcing 	negotiated 	agreements 	unless 	the 	facts 	alleged
constitute 	an 	independent 	violation of 	the 	EERA". 	The 	holding
in 	this 	case 	is 	essentially a restatement of 	section 3541.5(b).
In making 	an 	initial 	determination 	as 	to whether 	the
remainder 	of 	the 	District's 	charges 	are 	justified, 	and 	deciding
the outcome of 	the case, 	PERB 	is 	free 	to review evidence which
may 	include 	the 	conduct 	alleged 	to be 	a 	breach 	of 	contract.
However, 	PERB 	is not 	empowered 	to enforce 	the contract. 	The
alleged contract violation must, 	of 	itself, 	constitute 	an
independent 	unfair 	practice.
Paragraph 	3 	of 	the 	amendment 	to 	the 	charge 	alleges 	that 	the
Association 	engaged 	in 	the work 	stoppage prior 	to 	the
exhaustion 	of 	the 	impasse 	procedure 	"thus 	violating 	the 	duty 	to
participate 	in 	the 	impasse procedure 	in good 	faith." 	This
portion 	of 	the 	charge
A	
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addresses 	the 	work 	stoppage 	as 	a 	validly 	stated 	unfair 	practice
charge. 	Thus, 	any amendments 	to the 	allegation of 	contract
violation 	in paragraph 	4 	will 	not 	alter 	the 	jurisdictional 	limit on
PERB. 	For 	this 	reason, 	paragraph 4 	is dismissed without 	leave 	to
amend.
This 	partial 	refusal 	to 	issue 	a 	complaint 	and 	partial
dismissal 	of 	the 	charge without 	leave 	to amend 	is made 	pursuant 	to
California Administrative Code, 	title 8, 	section 32630(a). 	Charging
party may 	obtain 	review of 	this 	partial 	refusal 	to 	issue 	complaint
and 	partial 	dismissal 	of 	the 	charge 	by 	filing 	an 	appeal 	to 	the 	Board
itself 	within 	twenty 	(20) 	calendar 	days 	after 	service 	of 	this 	Notice
(section 	32630(b)). 	Such appeal must be 	actually 	received 	by 	the
executive 	assistant 	to 	the Board 	before 	the 	close of 	business 	(5:00
p.m.) 	on December 	8, 	1981 	in 	order 	to be 	timely 	filed. 	Such 	appeal
must 	be 	in writing, 	must 	be 	signed 	by 	the 	charging party or 	its
agent 	and 	must 	contain 	the 	facts 	and 	arguments 	upon which 	the 	appeal
is based 	(section 32630(b)). 	This 	appeal must be accompanied by
proof 	of 	service on all parties 	(sections 	32135, 	32142 	and
32630) (b)).
DATED: 	November 	18, 	1981
WILLIAM P. 	SMITH
Chief 	Administrative 	Law 	Judge
By W. 	Jean Thomas
Hearing 	Officer
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