Los Angeles School District Peace Officer's Association (Brown) (PERB 0627E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JAMES 	VERNON BROWN,
Charging 	Party,
v.
LOS 	ANGELES 	SCHOOL 	DISTRICT
PEACE 	OFFICER'S 	ASSOCIATION,
Respondent.
Case No. 	LA-CO-379
PERB Decision No. 	627
June 23, 	1987
Appearance; 	James V. 	Brown, 	on his 	own behalf.
Before Hesse, 	Chairperson; 	Porter, 	Craib and Shank, 	Members.
DECISION AND 	ORDER
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 	Los
Angeles 	School 	District 	Peace 	Officer's 	Association 	violated
section 	3543.6(b)1 of 	the 	the 	Educational 	Employment
Relations 	Act 	(Act). 	We 	find 	Charging 	Party's 	claim that 	the
Board 	agent 	showed 	favoritism 	or bias 	to be 	unsupported 	by 	any
factual 	assertions 	and 	thus without merit. 	Moreover, 	having
1Although 	Charging 	Party 	alleged 	that 	the 	Respondent's
conduct 	violated 	section 	3543.6(c) 	of 	the Act, 	a 	duty of 	fair
representation 	allegation 	is 	correctly plead 	as 	a 	3543.6(b)
violation. 	The 	Board 	agent 	considered 	the 	charge 	as 	such 	and
we 	agree 	that his 	analysis 	was 	appropriate. 	See 	Rocklin
Teachers 	Professional Association 	(1980) 	PERB Decision No. 	124.
)
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_____________ )

reviewed 	the dismissal 	de novo, 	we 	find 	it 	to be 	free of
prejudicial 	error 	and 	adopt 	it as 	the 	Decision 	of 	the 	Board
itself. 	This 	Decision 	is 	consistent 	with our previous
determination 	in 	Clovis 	Unified 	School 	District 	(1986) 	PERB
Decision No. 	597.
The unfair practice 	charge 	in Case No. 	LA-CO-379 	is hereby
DISMISSED 	WITHOUT LEAVE TO 	AMEND.
By 	the 	BOARD
22

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
LOS ANGELES, CALIFORNIA 	90010
(213) 736-3127
March 4, 	1987
James 	Vernon 	Brown
Re 	James Vernon Brown v. 	Los Angeles School District Peace
Officer's Association, 	Unfair 	Practice 	Charge 	No. 	LA-CO-379
DISMISSAL 	OF 	UNFAIR 	PRACTICE 	CHARGE
Dear Mr. Brown:
The 	above-referenced charge, 	filed 	on October 	27, 	1986, 	alleges
that 	the 	Los Angeles 	School District 	Peace 	Officers Association
breached 	a 	settlement 	agreement 	reached 	with 	the 	Charging 	Party
concerning 	a 	complaint 	against 	the 	Personnel 	Commission 	of 	the
Los Angeles 	Unified 	School District. 	This 	conduct 	is 	alleged
to violate 	section 	3543.6 	of 	the 	Educational 	Employment
Relations Act 	("EERA").
I 	indicated 	to you 	in my 	attached 	letter 	dated 	February 	3, 	1987
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 February 	10, 	1987, 	it would be dismissed. 	On February
10, 	1987 	you 	left 	a handwritten note 	at 	this 	office 	requesting
additional 	time 	to 	file 	an amended 	charge. 	In my 	letter 	of
February 	23, 	1987 	I 	granted you 	an 	extension 	until 	February 	27
to 	file 	your 	amended 	charge. 	In my 	telephone 	conversation 	with
you 	on 	February 	25, 	1987 	you 	acknowledged 	that 	you 	had 	received
this 	letter 	and 	that you would 	be 	filing 	your 	amended 	charge 	by
the 	27th. 	It 	is 	now March 	4 	and 	I have 	still 	not 	received 	any
new 	filing 	from you.
Since 	I have 	not 	received 	either 	a 	request 	for 	withdrawal 	or 	an
amended 	charge 	I 	am dismissing 	the 	charge 	based 	on 	the 	facts
and 	reasons 	contained 	in my 	February 	3, 	1987 	letter.
Right 	to Appeal
Pursuant 	to Public 	Employment 	Relations Board 	regulations, 	you
.. -- - -------------
--- - -- ------------- 	---

LA-CO-379
March 	4, 	1987
Page 2
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 	no 	later 	than 	the 	last 	date 	set 	for
filinq. 	Code 	of 	Civil 	Procedure 	section 	1013 	shall 	apply.
(See 	section 	32135.) 	The Board's 	address 	is:
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 	hostage 	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).

LA-CO-379
March 	4, 	1987
Pace 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 Donn Ginoza
Regional Attorney
Attachment
c c : 	N. 	Culver
R. Keith

STATE 	Of 	California 	GEORGE 	DEUKMEJIAN, 	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3470 Wilshire Blvd., Suite 1001
Los Angeles, California 90010
(213)736-3127
February 3, 	1987
James Vernon Brown
Re: 	James Vernon Brown v. Los Angeles School District Peace
Officer's 	Association
Unfair Practice Charge No. LA-CO-379
Dear Mr. Brown:
The above-referenced charge, 	filed on October 	27, 1986, 	alleges
that 	the Los Angeles School District Peace Officer's
Association breached a settlement agreement 	reached with 	the
Charging Party concerning a complaint against 	the Personnel
Commission of the Los Angeles Unified School District. 	This
conduct 	is alleged to violate 	section 3543.6 of 	the Educational
Employment Relations Act 	("EERA").
My investigation revealed the following 	facts. 	Previous to
this unfair 	practice charge, 	the 	Charging Party 	filed an unfair
practice charge on May 12, 	1986 	(Unfair Practice Charge No.
LA-CO-367). 	That charge, 	and the amended charge of July 9,
1986, 	alleged 	that 	the Respondent 	failed to provide assistance
to the Charging Party concerning 	his appeal of promotional exam
test results. 	The Charging Party 	further 	alleged 	that after
some difficulty 	in ascertaining 	that Respondent was his
representative, 	Respondent 	failed to 	answer his 	telephone 	calls
and letters seeking assistance. 	The Respondent claimed that
its president, 	Richard Keith, 	did 	talk 	to the 	Charging Party
and informed him that Respondent did not pursue appeals of
personnel examinations, 	advising him instead how to pursue his
appeal 	individually. 	The Respondent 	took 	the 	position 	that 	it
had 	no obligation affirmatively to assist 	the 	Charging Party
because 	the collective bargaining 	agreement 	restricted
grievances to violations of 	express 	terms of 	the 	agreement,
which did 	not 	contain provisions applicable 	to Personnel
Commission examinations.
The parties entered 	into a settlement 	agreement following the
Informal Conference before Public Employment 	Relations 	Board
(PERB) 	Administrative 	Law Judge Barbare E. Miller on August 15
1986. 	The settlement agreement provided, 	in pertinent part,

LA-CO-379
February 	3, 	1987
Pace 	2
the 	following:
1. 	A 	representative 	of 	the 	Association
[Respondent] 	and 	the 	Association's 	attorney
will meet 	with 	Mr. 	Brown 	and 	representatives
from 	either 	the 	District 	or 	the 	Personnel
Commission 	to 	assist 	Mr. 	Brown 	in getting
the 	information 	to 	which 	he 	is 	entitled
regarding the 	examination 	for 	Plant 	Security
Supervisor.
2. 	Article 	IV, 	Section 	5.0 	of 	the
collective 	bargaining 	agreement 	between 	the
District 	and 	the 	Association 	provides 	that
"[t]he 	District 	shall provide 	to 	POA 	twice
yearly 	a 	listing 	of 	employees 	in 	the 	unit,
including 	name, 	employee number, 	class code
and 	title, 	work 	location, 	and mailing
address." 	When 	the 	Association 	receives
that 	list, 	it 	shall communicate with 	all 	new
employees, 	informing 	them that 	they 	are
represented 	by 	the 	Association 	and 	how 	to
contact 	the Association. 	The 	communication
will 	also 	contain 	information 	about 	the
collective 	bargaining 	agreement 	and 	the
benefits 	which 	attach 	to 	membership 	in 	the
Association or 	employment 	in 	the 	unit. 	The
information 	described 	above 	shall 	also 	be
provided 	to Mr. 	Brown on or 	before
September 3, 	1986.
On September 	6, 	1986, 	approximately, 	the Respondent mailed 	the
Charging Party 	the 	information 	concerning 	membership 	rights 	and
representation 	as 	described 	in paragraph 	2 	of 	the 	Settlement
Agreement, 	cited 	above. 	The 	Charging 	Party 	is 	not 	alleging
that 	this 	unfair 	practice 	charge 	is predicated 	on 	the 	failure
to 	fulfill 	the 	terms 	of 	paragraph 	2 of 	the 	settlement 	agreement,
Charging Party 	does 	allege 	that 	Respondent 	has 	breached 	the
terms 	of 	paragraph 	1 of 	the 	settlement 	agreement 	by 	not
scheduling 	a 	meeting 	between 	himself 	and 	the 	Association 	and
the 	District 	in 	a 	timely manner. 	First, 	he 	contends 	that 	the
settlement 	agreement 	obligated 	the 	Respondent 	to 	schedule 	the
meeting 	with 	the District 	before September 	3, 	1986. 	Although
acknowledging 	that 	this 	date 	appears 	in 	the 	second 	rather 	than
the 	first paragraph 	of 	the 	settlement 	agreement, 	he 	claims 	that
the 	Respondent's 	attorney, 	Nancy Culver, 	orally 	represented 	to
the 	Administrative 	Law Judge 	that 	the 	meeting 	referred 	to 	in
ParaGraph 1 	could 	be 	arranged 	by 	the 	same 	date. 	In 	any 	event,

LA-CO-379
February 	3, 	1987
Pace 3
he 	claims 	that 	this 	is 	the 	true 	intent 	of 	the 	settlement
agreement. Even 	if 	this 	is 	not 	the 	case, 	he 	argues 	in 	the
alternative 	that 	the 	Respondent 	delayed 	unreasonably 	in
attempting 	to 	arrange 	for 	the meeting.
This claim 	is 	based 	on 	his 	allegation 	that 	he 	called 	Culver 	on
approximately 	August 	22, 	1986 	to 	ask when 	the meeting 	would 	be
arranged. 	He 	alleges 	he was 	told 	that 	it 	would 	be 	arranged 	by
September 	3, 	1986. 	Respondent 	acknowledges 	the 	telephone
conversation 	but 	alleges 	that 	Culver 	made 	no promise 	to 	have
the meeting 	by September 	3, 	1986. 	She claims 	she did 	assure
him 	that 	she 	would 	contact 	him 	to 	determine 	his 	availability
after 	the 	president 	of 	the Association 	returned 	from his
vacation. 	Keith 	returned 	from his 	vacation 	on 	September 	2,
1986, 	approximately. 	Culver 	alleges 	that 	she 	attempted 	to
contact 	Brown 	and 	left 	a 	message 	on 	Charging 	Party's answering
machine 	in 	late 	September. 	Charging 	Party alleges 	that he
received 	no 	further 	communication 	from 	Culver 	from 	the 	August
21 	conversation 	until 	after 	he 	filed 	this 	unfair 	charge 	on
October 	27, 	1986. 	Charging 	Party made 	no 	other 	attempts 	to
contact 	Culver 	to 	determine 	the progress 	in 	scheduling 	the
meeting, prior 	to 	filing 	this 	charge.
Following 	the 	filing, 	Charging 	Party 	received 	a 	letter 	from
Culver, 	dated November 	25, 	1986 	requesting 	to 	know whether 	he
would 	prefer 	to 	proceed 	by 	having 	the 	District 	respond 	in
writing or 	at 	a 	meeting. 	He 	was 	also 	asked 	about 	his
availability 	for 	a 	meeting. 	Charging 	Party 	responded 	in
writing by 	a 	letter 	dated 	December 	1, 	1986, 	stating 	that 	he
would 	prefer 	a 	written 	response 	initially 	and 	that 	he 	would 	be
available 	on 	one 	or 	two days 	notice 	for 	a 	meeting.
Based 	on 	the 	facts 	described 	above, 	the 	allegation 	that 	the
Association 	breached 	the 	settlement 	agreement 	contained 	in 	this
chare fails 	to 	state 	a 	prima 	facie 	violation 	of 	the 	EERA 	for
the 	reasons 	which 	follow.
Section 	3541.5(b) 	of 	the EERA 	states:
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.
The 	PERB 	has 	held 	that 	this 	requirement 	prohibits 	issuance 	of 	a
complaint 	unless 	the 	facts 	in 	the 	charge 	state 	an 	independent
violation 	of 	the 	EERA 	in 	addition 	to 	a 	possible 	violation 	of
the 	agreement. 	Baldwin Park 	Unified 	School 	District 	(1979)

LA-CO-379
February 	3, 	1987
Page 4
PERB Decision No. 	92. 	Although 	the 	Association's 	failure 	to
schedule 	the 	meeting 	at 	the 	time 	the 	unfair 	practice 	charge 	was
filed 	may 	constitute 	a 	violation 	of 	the 	settlement 	agreement,
there 	is 	no evidence which 	indicates 	that 	these 	facts give 	rise
to 	an 	independent 	unfair practice. 	In 	order 	to 	state 	an
independent 	unfair 	practice 	the 	Charging 	Party 	would 	have 	to
show that 	the 	Association 	acted 	in 	an 	"arbitrary, 	capricious 	or
bad 	faith" 	manner 	by 	not 	scheduling 	the 	meeting 	according 	to
Charging Party's 	understanding 	of 	the 	settlement 	agreement.*
Rocklin Teachers 	Professional 	Association 	(1980) 	PERB 	Decision
No. 	124. 	Without 	such 	evidence 	EERA section 	3541.5(b) 	prevents
issuance 	of 	a complaint 	in 	this case.
As 	stated 	in 	Rocklin, 	"[a] 	prima 	facie case 	alleging 	arbitrary
conduct 	violative 	of 	the 	duty 	of 	fair 	representation 	must 	at 	a
minimum 	include 	an 	assertion 	of 	sufficient 	facts 	from 	which 	it
becomes 	apparent 	how or 	in what manner 	the 	exclusive
representative's 	action 	or 	inaction 	was 	without 	a 	rational
basis 	or 	devoid 	of 	honest 	judgment." 	Because 	the 	date 	of
September 	3, 	1986 	appears 	in 	a 	different paragraph 	from 	the 	one
obligating 	the 	Association 	to 	arrange 	a 	meeting 	with 	the
District, 	the Association was 	not 	without 	a 	rational 	basis 	for
believing 	that 	that 	date 	did 	not 	apply 	to 	scheduling 	the
meeting.
Considering 	the 	paucity 	of 	communications 	between 	the 	parties
up to 	the date 	the 	unfair 	chare 	was 	filed on October 	27, 	1986,
it 	does 	not 	appear 	that 	in 	failing 	to 	arrange 	the 	meeting 	by
that date 	the 	Respondent 	acted 	in 	a capricious 	or 	bad 	faith
manner 	toward 	the 	Charging 	Party. 	Since 	the 	unfair 	chare 	was
filed, 	the 	Respondent 	has 	taken 	steps 	toward 	fulfilling 	the
terms 	of 	the 	settlement 	agreement. 	Even 	if 	the 	Respondent 	may
have delayed 	in 	seeking 	to 	obtain 	the 	information desired, 	no
facts 	are 	alleged 	from which 	it 	can 	be 	inferred 	that 	such 	delay
is motivated 	by 	bad 	faith on 	its part. 	The mere 	fact 	that 	the
Respondent's conduct 	is 	"negligent, 	unwise or 	otherwise
unsatisfactory 	to 	the 	charging 	parties," 	does 	not 	establish 	a
prima 	facie 	case. 	Los 	Angeles 	City 	and 	County 	School 	Employees
Union 	(1983) 	PERB Decision No. 	341, 	at p. 	11.
For 	these 	reasons, 	the 	chare 	as presently written does 	not
* 	Although 	the 	Charging 	Party 	cites 	section 	3543.6(c) 	of 	EERA
as 	the 	basis 	for 	the 	violation, 	that 	section does 	not provide 	a
remedy 	for 	a 	member 	of 	a 	negotiating 	unit 	against 	the 	exclusive
representative. 	However, 	to 	the extent 	that 	section 	3543.6(b)
does 	provide 	a 	remedy 	by 	ensuring 	against 	violations 	of 	the
duty 	of 	fair 	representation, 	the 	chare 	is considered 	on 	the
basis 	of 	this 	theory. 	Rocklin 	Teachers 	Professional
Association, 	supra, 	at p. 3.

LA-CO-379
February 3, 	1987
Page 5
state 	a 	prima 	facie 	case. 	If 	you 	feel 	that 	there 	are 	any
factual 	inaccuracies 	in 	this 	letter 	or 	any 	additional 	facts
which 	would 	correct 	the 	deficiencies 	explained 	above, 	please
amend 	the 	charge 	accordingly. 	The 	amended 	chare 	should 	be
prepared 	on 	a 	standard 	PERB 	unfair 	practice 	chare 	form
clearly 	labeled 	First 	Amended 	Chare, 	contain 	all 	the 	facts 	and
allegations you 	wish 	to 	make, 	and 	be 	signed 	under 	penalty 	of
perjury 	by 	the 	charging 	party. 	The 	amended 	chare 	must 	be
served 	on 	the 	respondent 	and 	the 	original 	proof 	of 	service 	must
be 	filed 	with 	PERB. 	If 	I 	do 	not 	receive 	an amended 	chare 	or
withdrawal from you before February 10, 	1987, 	I 	shall dismiss
your 	chare. 	If 	you 	have 	any questions 	on 	how 	to proceed,
please call me at 	(213) 	736-3127.
Sincerely,
Donn Ginoza
Regional 	Attorney