Los Angeles Community College District (PERB 0618E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ROBERT 	RAY BRADLEY,
Charging 	Party,
v.
LOS 	ANGELES 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-2402
PERB Decision No. 	618
March 31, 	1987
Appearances; 	Robert 	Ray Bradley, 	on his 	own behalf; 	Mary L.
Dowell, 	Attorney, 	for Los Angeles 	Community College District.
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(Board) 	on 	appeal 	by charging party of 	the 	Board 	agent's
dismissal, 	attached hereto, 	of his 	charge 	alleging that 	the
respondent 	violated 	the 	Educational 	Employment 	Relations 	Act
(EERA) section 3543.5(c).
We have 	reviewed 	the 	dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the 	Decision of 	the Board
itself.1
1Member 	Porter 	would 	affirm 	also 	on 	the 	basis 	that 	an
individual 	does 	not have 	standing 	to 	file 	a 	charge 	alleging a
violation 	of EERA 	section 	3543.5(c). 	(See Member 	Porter's
Dissent 	in 	Riverside 	Unified 	School 	District 	(1986) 	PERB
Decision 	No. 	571.)
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ORDER
The 	unfair practice 	charge 	in 	Case No. 	LA-CE-2402 	is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
By 	the 	BOARD.

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
December 22, 	1986
Mr. 	Robert Ray Bradley
RE: 	Robert 	Bradley v. 	Los 	Angeles 	Community College District,
Case 	No. 	LA-CE-2402
Dear Mr. 	Bradley:
You 	have 	filed 	a 	charge 	against Respondent 	Los 	Angeles
Community College District 	(District) 	alleging 	that 	it has
violated Educational 	Employment Relations Act 	(EERA) 	section
3543.5(c) 	by refusing to accept 	a performance evaluation which
you 	participated 	in preparing 	for 	another 	employee 	and by
permitting 	that 	employee 	to 	file 	a 	grievance 	regarding 	the
evaluation 	beyond 	the 	20-day 	time 	limit 	contained 	in 	the
applicable 	collective 	bargaining 	agreement.
I 	indicated 	to you 	in my attached 	letter 	dated December 	11,
1986, 	that 	the above-referenced charge did not 	state a prima
facie 	case. 	You were advised that 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended 	the charge 	to state a prima facie case, 	or withdrew 	it
prior 	to December 	12, 	1986, 	it would be dismissed.
I 	have 	not 	received either 	a 	request 	for 	withdrawal 	or 	an
amended 	charge 	and 	am therefore 	dismissing 	the 	charge 	based 	on
the 	facts 	and 	reasons contained 	in my December 	11, 	1986 	letter.
Right 	to Appeal
Pursuant 	to Public 	Employment Relations 	Board 	regulations, 	you
may obtain 	a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an 	appeal 	to 	the 	Board 	itself within 	twenty 	(20) 	calendar 	days

after 	service 	of 	this 	dismissal 	(California Administrative
Code, title 8, 	section 32635(a)). 	To be timely filed, 	the
original 	and 	five 	copies 	of 	such 	appeal 	must 	be 	actually
received 	by 	the 	Board 	itself 	before 	the 	close 	of 	business
(5:00 p.m.) 	or sent by telegraph, 	certified or 	Express United
States mail postmarked not later than the last date set for
filing. 	Code of Civil Procedure 	section 	1013 	shall 	apply,
(section 32135). 	The Board's address is:
Mr. 	Robert Ray Bradley
December 22, 1986
Page 2
Public Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 95814
If 	you 	file a 	timely appeal of 	the 	refusal 	to 	issue a
complaint, 	any other 	party may file with 	the 	Board 	an 	original
and five 	copies 	of 	a 	statement 	in 	opposition within 	twenty
calendar 	days 	following 	the 	date 	of 	service 	of 	the 	appeal
(section 32635(b)).
Service
All 	documents 	authorized 	to be 	filed 	herein must 	also 	be
"served" 	upon all parties 	to the proceeding, 	and a 	"proof of
service" 	must 	accompany each 	copy of 	a 	document 	served upon 	a
party or 	filed with 	the Board 	itself. 	(See 	section 	32140 	for
the 	required contents and a 	sample 	form.) 	The 	document will 	be
considered 	properly 	"served" 	when 	personally 	delivered 	or
deposited 	in 	the 	first-class 	mail 	postage 	paid 	and properly
addressed.
Extension 	of 	Time
A 	request 	for 	an extension of 	time 	in which 	to 	file 	a 	document
with 	the 	Board 	itself must 	be 	in writing 	and 	filed 	with 	the
Board at 	the previously noted address. 	A request 	for 	an
extension must 	be 	filed at 	least 	three 	calendar 	days 	before 	the
expiration 	of 	the 	time 	required 	for 	filing 	the 	document. 	The
request must 	indicate good cause for 	and, 	if known, 	the
position 	of 	each 	other 	party 	regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party (section 32132).

Mr. 	Robert Ray Bradley
December 22, 1986
Page 3
Final 	Date
If no appeal 	is 	filed within the specified time 	limits, 	the
dismissal 	will 	become 	final when 	the 	time 	limits 	have 	expired,
Sincerely,
JEFFREY 	SLOAN
General 	Counsel
By Jorge A. Leon
Staff 	Attorney
Attachment
7194d

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 	18th Street
Sacramento, California 95814
(916) 322-3088
December 11, 1986
Mr. 	Robert Ray Bradley
RE: 	Robert Bradley v. 	Los Angeles Community College District,
Case No. 	LA-CE-2402
Dear Mr. 	Bradley:
You 	have 	filed 	a 	charge against Respondent 	Los 	Angeles
Community College District 	(District) 	alleging 	that 	it has
violated Educational 	Employment Relations 	Act 	(EERA) 	section
3543.5(c) 	by 	refusing 	to accept 	a performance evaluation which
you 	participated 	in 	preparing 	for 	another 	employee 	and by
permitting 	that 	employee 	to 	file 	a 	grievance 	regarding 	the
evaluation 	beyond 	the 	20-day time 	limit 	contained 	in 	the
applicable 	collective 	bargaining 	agreement.
My 	investigation 	has 	revealed 	the 	following 	information.
You 	are 	employed 	by Respondent 	as 	an 	instructor 	at 	Pierce
College. 	You serve as Chairman of 	the Department of Business
Administration and are 	a member 	of 	the bargaining 	unit
exclusively 	represented by 	the 	American 	Federation 	of 	Teachers,
College Guild, Local 1521 (AFT).
At 	the end of the Fall, 	1985 semester 	you and other 	members 	of
the 	department 	evaluation 	committee 	prepared 	a 	peer 	evaluation
on 	instructor 	Al 	Partington, 	giving him an 	"unsatisfactory"
overall 	rating, 	principally based on 	extensive 	unexplained
absences 	from work. 	Initially, 	Partington approached Vice
President 	for 	Academic Affairs 	Jean 	Loucks 	and 	discussed 	the
matter 	with her. 	She 	replied by memo 	dated January 	30 f 	1986,
concluding 	that 	it 	appeared 	that 	the 	committee 	had 	abided 	by
the 	collective bargaining 	agreement 	provisions 	relating 	to 	such
evaluations. 	Later, however, on April 7, 	1986, Loucks sent a
memo 	to Partington 	stating 	that 	she 	had met with you 	and was
now of 	the 	opinion 	that there had been 	some 	irregularities 	in
the 	evaluation procedures, 	particularly 	regarding 	Partington's
right to challenge a member of the committee. 	On April 	15,
1986, 	Mr. 	Partington filed a grievance alleging that he was

denied his 	right 	to 	challenge 	a 	member 	of 	the 	committee 	and
that 	the procedure used 	in the 	selection 	of 	the 	department
representative 	to the committee was flawed. 	On April 	28, 	1986,
Loucks 	issued a memo 	in which she granted the grievance, 	and
requiring 	the 	committee 	to 	conduct 	the 	evaluation 	anew.
Mr. 	Robert Bradley
December 	11, 	1986
Page 2
On May 7, 	1986, 	you 	filed a grievance requesting that Loucks
accept 	the original 	evaluation on Partington, 	asserting 	that
the evaluation was properly done and that 	there were 	no
procedural 	infirmities.
The 	collective 	bargaining 	agreement 	in effect 	between 	the
District 	and 	the 	AFT 	contains 	a 	comprehensive 	provision
relating 	to procedures 	for 	evaluation of 	faculty members 	by
peers. 	That provision is 	included at Article 19, 	section
H.7.a. 	The 	agreement 	also contains 	provisions 	relating 	to
Administrative 	Evaluation 	(Section 	H.7.b.) 	and 	to Review of
Performance Report. 	(Section H.7.c.)
The agreement 	provides 	a 	20-day deadline 	for 	the 	filing 	of
grievances. 	(Article 	28, 	section D.I.) 	and a further 	provision
which reads as follows:
Failure of 	the grievant(s) 	to act on any
grievance within 	the prescribed 	time 	limits,
unless mutual 	agreement 	to extend 	the 	time
has been reached, 	shall 	conclude the
grievance. 	(Article 28, 	section C.I)
You assert that AFT represents Partington 	in this 	dispute, 	and
that 	although 	the 	collective bargaining 	agreement 	contains 	a
provision 	for 	binding arbitration of disputes, 	this 	matter
should 	not 	be 	deferred 	to arbitration 	for 	that 	reason.
ANALYSIS
In 	determining 	whether 	a 	party has 	violated 	section 	3543.5(c)
of EERA, 	the PER3 utilizes either 	the 	"per se" 	or 	"totality of
the conduct" 	test, 	depending on the specific conduct 	involved
and 	the 	effect 	of 	such conduct 	on the negotiating process.
Stockton Unified School District 	(1980) 	PERB Decision No. 	143.

Mr. 	Robert Bradley
December. 11, 1986
Page 3
Unilateral 	changes 	are considered 	"per 	se" 	violations 	if
certain criteria are met. 	Those criteria are: 	(1) 	the
employer 	implemented 	a 	change 	in 	policy 	concerning a 	matter
within the scope of representation, 	and 	(2) 	the change was
implemented prior 	to 	the employer 	notifying 	the 	exclusive
representative 	and giving 	it 	an opportunity 	to 	request
negotiations. 	Walnut Valley Unified 	School 	District 	(1981)
PERB Decision No. 	160; 	Grant Joint Unified High School District
(1982) 	PERB Decision No. 196.
In 	this 	case you assert 	that 	the District 	has 	effected 	two
unilateral 	changes. 	The first 	is 	its 	failure to accept the
evaluation which 	the 	committee prepared on Partington. 	The
collective 	bargaining agreement 	provides 	for 	an 	Administrative
Evaluation 	(Article 	19, 	section H.7.b) 	and for 	Review of
Evaluation. 	(Article 19, 	section H.7.c.) 	These provisions
provide 	for 	a 	method 	of 	review of 	the 	peer 	evaluation 	conducted
earlier, 	but 	do not appear 	to bind the District 	to accept 	that
evaluation. 	Thus, 	it does not appear 	that Loucks1 refusal 	to
accept 	the 	committee's 	evaluation 	of 	Partington 	in 	any way
changes 	a policy embodied 	in 	the contract. 	Even 	if 	it 	could be
successfully argued that the District's 	action 	does 	violate 	the
contract provisions, 	there 	is no evidence that 	the action
amounts 	to 	a change in policy. 	In Grant 	Joint Union High
School District 	(1982) 	PERB Decision No, 	10, 	the Board held
that 	to state 	a prima facie case of a 	change 	in policy the
Charging 	Party must 	show that 	the 	change 	had 	"a 	generalized
effect 	or 	continuing 	impact 	upon 	the 	terms 	and conditions 	of
employment of the bargaining unit members." 	Id, 	p. 	10. 	You do
not allege 	that 	the District has 	refused 	to accep	-- 	t 	a 	committee
evaluation on other occasions, 	thus a continuing 	impact 	is not
presented. 	Further, 	the matter 	appears 	to 	relate solely to
Partington and so a generalized effect 	is not shown. 	Thus, 	a
prima 	facie 	case 	of 	a violation of 	the 	EERA through 	the
District's 	refusal 	to accept 	the 	evaluation has 	not been
demonstrated.
The 	second alleged unilateral 	change 	is 	Louck's 	refusal 	to
enforce 	the 	20-deadline on the 	filing of 	grievances. 	The
evaluation was 	filed 	in the fall of 	1985, 	and yet, 	he did not

file a grievance until April, 	1986. 	While the contract
provides 	for 	a 	20-day deadline, 	it also provides 	that where
there 	is 	"mutual agreement", 	the deadline can be extended.
There apparently was mutual agreement 	in this case. 	It 	is
common practice to waive deadlines 	in order 	to 	facilitate
conclusion of a grievance at 	the lowest possible 	step 	in 	a
grievance procedure. 	Loucks was entitled, 	as the District's
representative, 	to waive the 20-day deadline for 	the purpose of
resolving the grievance. 	Furthermore, 	such waiver 	typically
occurs on a case-by-case basis. 	Thus, 	her waiver 	of the
deadline 	in this 	instance alone 	does 	not 	demonstrate a 	change
in policy. 	Grant, supra.
Mr. Robert Bradley
December 12, 1986
Page 4
For 	the 	reasons 	explained herein, 	the allegations 	contained 	in
the charge do not state a prima 	facie case of an 	EERA
violation. 	If you 	feel that 	there are 	any factual 	inaccuracies
in 	this 	letter 	or 	any additional 	facts which would 	require 	a
different 	conclusion than the one explained above, 	please 	amend
the charge accordingly. 	This amended charge should be prepared
on a 	standard PERB unfair 	practice 	charge 	form clearly 	labeled
First Amended Charge, 	contain all 	the facts and allegations you
wish 	to make, 	and be signed under penalty of perjury by 	the
charging party. 	The amended charge must 	be 	served on 	the
respondent 	and 	the 	original 	proof 	of 	service must 	be 	filed with
PERB. 	If 	I 	do not 	receive an amended charge or 	withdrawal 	from
you before December 	19, 	1986, 	I 	shall dismiss your charge
without 	leave 	to amend. 	If you have any questions 	on how to'
proceed, please call me at 	(916) 	323-8015.
Sincerely,
Jorge A. 	Leon
Staff 	Attorney
7048d