California Community Colleges (PERB 0636S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA COMMUNITY COLLEGES,
Respondent.
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Case 	No. 	S-CE-306-S
PERB 	Decision 	No. 	636-S
October 	6, 	1987
Appearances; 	Mary Williams-Edwards, 	Labor 	Relations
Representative, 	for 	California 	State 	Employees 	Association.
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 	its 	charge 	alleging that 	the
California 	Community Colleges, 	Office 	of 	the 	Chancellor,
violated 	section 	3519(c)1 of 	the 	Ralph C. 	Dills Act 	(Act).2
We have 	reviewed 	the dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it 	as 	the 	Decision of 	the 	Board
itself, 	insofar as 	the Board agent 	concludes 	that 	the
1Although 	charging party 	alleged 	a 	violation 	of 	section
3 519(b) 	of 	the Act, 	it 	is apparent 	from the 	facts 	that 	this
charge 	essentially alleges 	a 	violation of 	section 	3519(c).
2 The 	Act, 	formerly known as 	the 	State 	Employer-Employee
Relations 	Act, 	is 	codified at Government 	Code section 3 512 et
seq.

allegations 	in 	the 	instant 	charge 	fail 	to 	state 	a prima 	facie
violation of 	the 	Act.
By 	the 	Board.3
3Members 	Shank 	and 	Cordoba 	did 	not 	participate 	in 	this
Decision.
N
	2

STATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN,
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
(914 323-8013044174
April 28, 	1987
Ms. Mary L. Williams-Edwards
Labor 	Relations 	Representative
Mr. 	Darrell Steinberg
Attorney
California State Employees Association
1108 O Street
Sacramento, 	CA 	95814
Re: 	CSEA v. 	State of California 	(Calif. 	Community Colleges),
Case No. 	S-CE-306-S, 	Dismissal of Charge
Dear Ms. Williams-Edwards and Mr. 	Steinberg:
You have 	filed a 	charge 	alleging that 	Respondent 	State 	of
California, 	California Community Colleges 	(CCC) 	violated the
State Employer-Employee Relations Act 	(SEERA) 	when 	it,
"continuously 	implemented 	a 	policy of 	making 	out-of-class
assignments 	between bargaining 	units 	when 	assigning 	employees
to assist 	in evaluation community colleges." 	The 	charge was
filed on February 18, 	1987 and asserts 	that 	this 	conduct
violates 	SEERA section 35l9(b).
I 	indicated 	to you 	in my attached 	letter 	dated April 	14, 	1987,
that 	the 	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 April 	21,
1987, 	they would be dismissed. 	On April 	17, 	1987 you requested
an extension of 	time to 	file an amendment 	until April 	27,
1987. 	That 	request was granted.
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 April 	7, 	1987 	letter.
Right 	to Appeal
Pursuant 	to Public Employment Relations 	Board 	regulations, 	you
may obtain 	a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing
-

Mary L. 	Williams-Edwards
Darrell 	Steinberg
April 28, 	1987
Page 2
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
filing. 	Code of 	Civil 	Procedure 	section 	1013 	shall 	apply
(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 	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).

Mary L. 	Williams-Edwards
Darrell 	Steinberg
April 28, 	1987
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
Jorge
staff	s 	ff
BY
Jorge A. Leon
Staff Attorney
Attachment
8913d
Jme 	,,

STATE Of 	CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3068
April 14, 	1987
Ms. Mary L. Williams-Edwards
Labor 	Relations 	Representative
Mr. 	Darrell Steinberg
Attorney
California 	State 	Employees 	Association
1108 O 	Street
Sacramento, 	CA 	95814
Re: 	CSEA v. 	State of California 	(Calif. 	Community Colleges)
Case No. 	S-CE-306-S
Dear Ms. Williams-Edwards and Mr. 	Steinberg:
You have 	filed a 	charge 	alleging 	that 	Respondent 	State 	of
California, 	California Community Colleges 	(CCC) 	violated the
State Employer-Employee Relations Act 	(SEERA) 	when 	it,
"continuously 	implemented 	a 	policy of 	making out-of-class
assignments 	between 	bargaining 	units 	when 	assigning 	employees
to assist 	in evaluation community colleges." 	The 	charge
asserts 	that 	this 	conduct 	violates 	SEERA section 	3519(b) 	and
was 	filed on 	February 18, 	1987.
My 	investigation 	revealed 	the 	following 	information. 	Charging
Party California State 	Employees Association 	(CSEA) 	represents
CCC employees 	in Units 	1 	and 	3. 	The Chancellor's Office of 	the
CCC 	performs 	accreditation 	evaluations 	of 	the 	community
colleges 	on 	an annual basis. 	According 	to Charging 	Party the
evaluation work 	is 	a 	classification assignment 	intended 	for 	the
Unit 	3 	employees. 	However, 	during 	the 	last 	three years 	the CCC
has 	assigned evaluation work 	to Unit 	1 	employees.
Charging 	Party cites 	examples 	of 	this 	alleged 	transfer 	of 	work
from one 	unit 	to another 	on approximately November 	29, 	1984
when 	CCC 	assigned Moni Van Camp and Dale 	Clevenger, 	Unit 	1
employees 	in place of Unit 	3 	employees 	Barbara Sullivan and
Jean Clawson; 	and 	October 	4, 	1985 when Unit 	1 	employees 	Ed
Connolly and John Puthuff 	replaced Unit 	3 	employees 	Al Wilson
and Win Silva. 	On both occasions, 	Charging Party 	filed
(I)

Mary 	Williams-Edwards
Darrell 	Steinberg
April 14, 	1987
Page 2
grievances 	contesting 	the 	assignments. 	Both grievances 	were
pursued 	to 	the 	Chancellor's 	Office 	level 	and 	then 	dropped. 	The
1985 grievance ended in June, 	1986.
The most 	recent 	incident 	took place 	in September, 	1986, 	when
Unit 	1 	employees 	Norma 	Morris 	and Walter 	Reno 	replaced 	Unit 	3
employees Bill 	Boakes 	and Al 	Metzler. 	Charging Party has
presented 	no 	further 	information 	regarding 	assignment 	of 	the
evaluation work 	prior 	to 	1984 	or 	at 	any other 	time.
ANALYSIS
Government 	Code 	section 	3514.5 	provides 	that the 	PERB 	shall 	not:
(1) 	issue a complaint 	in respect of any
charge 	based 	upon 	an 	unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing of the charge. 	. 	.
The 	November, 	1985 	and October, 	1985 	conduct 	occurred 	before
the 	six-month 	preceding 	the 	filing of the 	charge. 	Furthermore,
the 	grievances 	which 	followed were 	dropped 	before 	the 	same
period. 	Under 	the 	doctrine 	of 	equitable 	tolling, 	the 	statute
of 	limitations 	is 	tolled 	during the period 	in which 	a 	grievance
concerning 	the 	complained-of 	conduct 	is 	pursued. 	Los 	Angeles
Unified 	School 	District 	(1983) 	PERB Decision 	No. 	311. 	The
doctrine 	does 	not 	appear 	to 	apply here because 	the 	charge
itself was 	filed on February 18, 	1987, 	which 	is 	more 	than six
months 	after 	the 	date 	when 	the 	grievances 	were 	terminated. 	The
allegations of November, 	1984 and October, 	1985 	conduct are
thus 	time-barred.
Charging Party asserts 	that 	CCC's 	September, 	1986 	conduct 	is 	a
violation of 	SEERA 	section 	3519(b). 	That provision makes 	it
unlawful 	for 	the 	employer 	to 	deny 	an 	employee 	organization
rights 	guaranteed under 	the 	SEERA. 	The 	employer's 	conduct 	is
more 	appropriately 	analyzed 	as 	a 	transfer 	of 	unit 	work 	in
violation of 	SEERA section 	3519(c), 	which provides 	that 	it 	is
unlawful 	for 	an 	employer 	to 	fail 	to meet 	and 	confer 	in 	good
faith 	with 	a 	labor 	organization. 	In 	determining whether 	a
party has violated 	section 	3519(c) 	of SEERA, 	the 	PERB 	utilizes
either 	the 	"per 	se" 	or 	"totality of 	the conduct" 	test,
depending 	on 	the 	specific 	conduct 	involved 	and 	the 	effect 	of

Mary 	Williams-Edwards
Darrell 	Steinberg
April 14, 	1987
Page 3
such 	conduct 	on 	the negotiating process. 	Stockton 	Unified
School 	District 	(1980) 	PERB Decision 	No. 	143. 	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. 	19b.
Although 	the 	cases 	cited 	arose 	under 	the 	Educational 	Employment
Relations Act 	(EERA), 	is equally applicable to cases 	under
SEERA as 	section 	3543.5(c) 	of 	the 	EERA and 	3519(c) 	of 	the 	SEERA
are 	identical.
It 	does 	not 	appear 	that 	a prima 	facie 	case 	of 	a 	SEERA violation
has 	been 	established 	for 	the 	following 	reasons. 	The 	parties'
current 	Memorandum of 	Understanding 	(MOU) 	contains 	no 	provision
which 	gives 	the 	evaluation 	work 	exclusively 	to 	Unit 	3
employees. 	Thus, 	there 	is no change 	in any policy provided 	in
the MOU.
Furthermore, 	there does 	not appear 	to be a 	change 	in a past
practice. 	Other 	than 	citing 	the 	three 	examples 	when 	the
alleged Unit 	3 	work was 	given 	to Unit 	1 	employees, 	the 	charge
fails 	to present 	any other 	instances 	of 	the 	evaluation 	work
being given to Unit 	3 	employees. 	Under 	the 	facts presented, 	it
cannot 	be 	concluded 	that 	there 	has 	been 	a 	past 	practice 	to
provide 	this work 	exclusively to Unit 	3 	employees. 	Thus, 	the
charge 	does 	not 	support 	an 	allegation 	that 	the 	CCC 	has 	effected
any 	change 	in policy.
For 	these 	reasons, 	the 	charge 	as presently written 	does 	not
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 	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

Mary 	Williams-Edwards
Darrell 	Steinberg
April 14, 	1987
Page 4
withdrawal from you before April 	21, 	1987, 	I 	shall dismiss your
charge. 	If you have any questions 	on how to proceed, 	please
call me at 	(916) 	323-8015.
Sincerely,
Jorge A. 	Leon
Staff 	Attorney
8511d