Los Angeles Unified School District (PERB 0737E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LYNN PRAGER, 	ERROL JACOBS, 	LARRY
MERKEN, 	MICHAEL BOYER,
Charging Parties,
v.
LOS ANGELES 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
)
)
) 	Case No. 	LA-CE-2813
LA-CE-2814
PERB Decision No. 	737
May 24, 	1939
)
)
)
)
)
)
Appearance: 	Michael John Boyer for Lynn Prager, 	Errol Jacobs,
Larry Merken and Michael 	Boyer.
Before Porter, 	Craib and Camilli, 	Members.
DECISION AND 	ORDER
CAMILLI, 	Member: 	These cases1 are before the Public
Employment Relations 	Board 	(Board) 	on appeal by the 	charging
parties 	of the Board agent's dismissal, 	attached hereto, 	of 	their
charge that respondent violated sections 	3543.5, 	3543.6, 	and
3 541.5 	of the Educational Employment Relations Act. 	We have
reviewed the dismissal and, 	to 	the 	extent that the Board agent
found 	that 	the 	unfair practice 	charges 	alleged a pure 	contract
violation and that there was 	no prima 	facie case, 	we adopt 	it as
the decision of 	the Board 	itself.
1Except for the 	fact that 	service 	in Case No. 	LA-CE-2813 was
on Dr. 	Leonard Britton, 	Superintendent of Los Angeles 	Unified
School District, 	and that 	service 	in Case No. 	LA-CE-2814 was 	on
Los Angeles 	Unified School 	District, 	the unfair practice 	charges
are 	identical. 	Therefore, 	the Board hereby consolidates 	these
two cases.
c--------------
e

The unfair practice charges 	in Case Nos. 	LA-CE-2813 	and
LA-CE-2814 	are hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Member Porter 	joined 	in this 	Decision.
Member Craib's 	concurrence begins 	on page 	3.
22

Member Craib, 	concurring: 	I 	do not agree that the charges
merely allege a 	"pure contract" 	violation. 	Because the 	charges
allege 	that 	the respondent has 	repudiated a provision of 	the
parties' 	contract, 	that conduct would constitute a unilateral
change 	in policy and, 	thus, 	an unfair practice. 	(Grant 	Joint
Union High School District 	(1982) 	PERB Decision No. 	196 	[6 PERC
par. 	13064].)
However, 	I concur in the dismissal for two reasons. 	One, 	as
explained by the 	Board 	agent 	in the 	attached dismissal 	letter,
the 	case 	must be 	deferred 	to 	arbitration because 	the 	charging
parties 	have 	failed to 	show that resort 	to 	the 	contractual
grievance procedure would be 	futile. 	Two, 	though the allegation
is 	in the nature of a change 	in policy, 	I would find that the
charges 	fail 	to 	state a prima 	facie 	case of 	contract 	repudiation.
In essence, 	the charges 	allege that the respondent has
refused 	to 	follow the 	first 	step 	in the 	grievance procedure.
However, 	another provision of the contract provides 	that, 	should
the 	respondent 	fail 	to 	respond 	in a timely manner at 	any 	step 	of
the procedure, 	the grievant may proceed directly to 	the 	final
step of the procedure. 	Thus, 	the contract expressly recognizes
the 	possibility 	of 	the 	conduct 	alleged herein and provides 	a
remedy for that conduct. 	Given such a provision, 	I would
conclude that, 	as a matter of law, 	the charging parties have
failed to 	allege a prima 	facie 	case 	of 	contract repudiation.
33

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard. Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
January 13, 	1989
Lynn 	Prager
Errol 	Jacobs
Larry 	Merken
Michael 	Boyer
Re: 	DISMISSAL OF 	UNFAIR PRACTICE CHARGE 	/ 	REFUSAL TO 	ISSUE
COMPLAINT
Lynn Praqer, 	et al. 	v. 	Los Angeles Unified School District
(Board 	of 	Education)
Lynn Prager, 	et al. 	v. 	Leonard Britton 	(Superintendent, 	Los
Angeles 	Unified 	School 	District)
Case Nos. 	LA-CE-2813; LA-CE-2814
Dear Ms. 	Prager:
The 	above-referenced unfair practice 	charges, 	filed on December
9, 	1988, 	allege that the Los Angeles Unified School District
(District), 	acting through the Board of Education and Leonard
Britton, 	Superintendent, 	has directed that the local 	school
administrator 	refrain 	from meeting with Charging. Parties 	or
issuing 	a written decision 	concerning 	their 	grievances 	at 	the
first 	step of the 	grievance procedure. 	This 	conduct 	is 	alleged
to violate Government Code 	sections 	3543.5, 	3543.6 and 	3541.5 of
the Educational Employment Relations Act 	(EERA).
I 	indicated to you in my attached letter dated January 	3, 	198 9
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 	that 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 January 	12, 	1989, 	the charge would be dismissed.
I 	have 	not received either 	a request 	for withdrawal 	or 	an 	amended
charge. 	I 	am therefore dismissing the 	charge 	based on the 	facts
and reasons 	contained 	in my January 	3, 	1989 	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 no
later 	than 	the 	last date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	The 	Board's 	address 	is:
Warning 	Letter
LA-CE-2813; LA-CE-2814
January 3, 	1989
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 	(California
Administrative Code, title 8, 	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 California Administrative Code,
title 	8, 	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 	(California
Administrative Code, title 8, 	section 32132).

Warning 	Letter
LA-CE-2813; 	LA-CE-2814
January 3, 	1989
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,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By
DONN GINOZA
Regional 	Attorney
Attachment
cc: 	Michael J. 	Boyer
Richard N. 	Fisher

STATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional office
3530 Wilshire Blvd.
Los Angeles, CA 	90010-2334
213-736-3127	PERB
January 	3, 	1989
Lynn 	Prager
Errol 	Jacobs
Larry 	Merken
Michael 	Boyer
Re: 	WARNING 	LETTER
Lynn Praqer, 	et al. 	v. 	Los Angeles 	Unified School 	District
(Board 	of 	Education)
Lynn Prager, 	et al. 	v. 	Leonard Britton 	(Superintendent, 	Los
Angeles 	Unified 	School 	District)
Case Nos. 	LA-CE-2813; 	LA-CE-2814
Dear Ms. 	Prager:
The 	above-referenced unfair 	practice 	charges, 	filed 	on 	December
9, 	1988, 	allege 	that the 	Los Angeles 	Unified School 	District
(District), 	acting through the 	Board of 	Education 	and Leonard
Britton, 	Superintendent, 	has 	directed that the 	local 	school
administrator 	refrain 	from meeting 	with 	Charging 	Parties 	or
issuing 	a written decision 	concerning 	their 	grievances 	at 	the
first 	step of 	the 	grievance 	procedure. 	This 	conduct 	is 	alleged
to violate Government Code 	sections 	3543.5, 	3543.6 	and 	3541.5 	of
the 	Educational 	Employment 	Relations 	Act 	(EERA).
My 	investigation revealed 	the 	following 	facts. 	Charging 	Parties
are 	employed by 	the 	District 	as 	credentialed 	teachers 	and 	are
members 	of 	the 	bargaining 	unit 	represented by 	United Teachers 	-
Los Angeles 	(UTLA). 	Beginning 	in September 	1988, 	UTLA initiated
a 	boycott 	of 	certain activities 	traditionally 	performed 	by
teachers. 	UTLA contends 	that 	these 	activities 	are 	voluntary 	and
hence 	that 	the 	teachers 	are 	free 	to 	refrain 	from performing 	them.
The 	boycott was 	initiated as 	a 	response 	to 	UTLA's 	dissatisfaction
with progress 	in negotiations 	with 	the 	District 	for 	a 	collective
bargaining 	agreement.
Charging Parties, 	who are 	assigned 	to Taft High School,
participated 	in 	the 	boycott 	by refusing 	to 	fill 	out 	progress
reports 	on the District's 	computerized forms. 	In response, 	the
principal 	of Taft High School, 	Ron Berz, 	deducted the equivalent
of 	twenty minutes 	of wages 	for 	each 	class 	assigned 	to the
teachers. 	Charging 	Parties 	then 	filed 	timely 	grievances 	with
Berz 	challenging 	the docking 	of 	pay.
Charging 	Parties 	allege 	that 	under 	directives 	of 	the 	Board 	cf
Education 	and 	the 	District's 	Superintendent, 	Leonard 	Britton,
Berz 	has 	refused 	to meet with Charging 	Parties 	at 	the 	first 	step

of 	the 	grievance 	procedure 	or 	issue 	a 	written 	decision 	regarding
the 	grievances 	filed. 	Berz 	informed 	Charging 	Parties 	that 	he 	was
obligated 	to 	follow the 	Board's 	directive.
Warning 	Letter
LA-CE-2813; 	LA-CE-2814
January 3, 	1989
Page 	2
Charging 	Parties 	allege 	that 	the 	District 	is 	obligated 	under 	the
terms 	of 	the 	collective 	bargaining 	agreement 	to 	meet with
grievants 	at Step One 	of 	the 	grievance 	procedure 	and 	issue 	a
written 	decision 	following 	the 	meeting. 	Article 	V 	("Grievance
Procedure"), 	section 	8.2, 	pertaining to the processing of 	a
grievance 	at Step One 	of 	the procedure, 	states:
A meeting 	between 	the 	grievant 	and 	the
immediate 	administrator 	shall 	take 	place
within 	five 	(5) 	days 	from presentation 	of 	the
grievance. 	The 	administrator 	shall 	reply 	in
writing within 	five 	(5) 	days 	following 	the
meeting. 	The 	receipt 	of 	such reply will
terminate 	Step One.
Article V, 	section 	5.0 	of 	the agreement, 	concerning effects 	of
the 	grievance 	procedure 	time 	limits, 	states 	in pertinent part:
. 	. 	. 	The District shall respond, 	in writing,
in 	a timely manner as 	provided in this
Article. 	If 	the 	District 	fails 	to respond to
the 	grievance 	in a 	timely manner 	at 	any 	step,
the 	grievant 	has 	the 	option 	to proceed
directly 	to 	the 	final 	step 	of 	this
p r o c e d u r e ) . . .
The 	Charging 	Parties 	indicate 	that 	the 	District 	has 	claimed 	that
this 	provision 	obviates 	any 	claim 	of 	harm 	because 	grievants 	may
simply proceed 	to 	the 	next 	step 	of 	the 	grievance 	procedure. 	They
argue 	that 	this 	contention misses 	the 	point. 	They 	claim 	that
they have been denied 	their 	full 	contract rights, 	including 	the
right 	to 	have 	the 	grievances 	resolved 	expeditiously 	at 	the 	lowest
step 	in the 	grievance 	process 	and 	to 	avoid the 	expense 	and
inconvenience 	of 	arbitration.
Article V, 	section 	1.0 	defines 	a 	grievance 	and 	states 	in
pertinent part as 	follows:
A grievance 	is 	defined as 	a 	claim 	that 	the
District 	has 	violated 	an 	express 	term 	of 	this
Agreement 	and 	that 	by 	reason 	of 	such
violation 	the 	grievant's 	rights 	under 	this
Agreement 	have 	been 	adversely 	affected.
Grievances 	as 	so 	defined may 	be 	filed 	by:

Warning 	Letter
LA-CE-2813; 	LA-CE-2814
January 	3, 	1989
Page 3
a. 	An employee; 	. 	. 	.
The 	contract 	provides 	for 	binding 	arbitration 	of 	grievances.
Article V, 	section 	19.0.
Based 	on the 	facts 	stated 	above, 	the 	charges 	as 	present written
must 	be 	dismissed 	and 	deferred 	to 	arbitration.
Section 	3541.5(a)(2) 	of 	the 	EERA 	states, 	in pertinent part, 	that
PERB:
shall not. 	. 	. 	issue a complaint against
conduct 	also prohibited by the 	provisions 	of
the. 	. 	. 	[collective bargaining agreement in
effect] 	between the 	parties until 	the
grievance machinery of 	the 	agreement, 	if 	it
exists 	and covers 	the 	matter at 	issue, 	has
been 	exhausted 	either 	by 	settlement 	or
binding 	arbitration.
In Lake Elsinore 	School District, 	(1987) 	PERB Decision No. 	646,
PERB held 	that 	this 	section 	established 	a 	jurisdictional 	rule
requiring that a 	charge be dismissed and deferred 	if: 	(1) 	the
grievance 	machinery 	of 	the 	agreement 	covers 	the 	matter 	at 	issue
and culminates 	in binding arbitration; 	and, 	(2) 	the 	conduct
complained 	of 	in 	the 	unfair 	practice 	charge 	is 	prohibited 	by 	the
provisions 	of the 	agreement 	between the parties. 	PERB 	Rule
32620(b)(5) 	(California Administrative 	Code 	title 	8,
section 	32620(b)(5)) 	also 	requires 	the 	investigating 	board 	agent
to 	dismiss 	a 	charge where 	the 	allegations 	are 	properly 	deferred
to 	binding 	arbitration.
These 	standards are met with respect to this 	case. 	First, 	the
grievance 	machinery of 	the 	agreement 	covers 	the 	dispute 	raised by
the 	unfair 	practice 	charge 	and 	culminates 	in 	binding 	arbitration.
Second, 	the 	conduct 	complained of 	in this 	charge 	that 	the
District 	has 	deprived 	Charging 	Parties 	of 	their 	rights 	under 	the
contract to participate 	in 	formal 	Step One 	meetings 	and receive 	a
written 	decision 	is 	arguably 	prohibited 	by Article 	V, 	section 	8.2
of 	the 	collective 	bargaining 	agreement. 	That 	section 	mandates
that 	the 	local 	administrator meet with 	a 	grievant within 	five
days 	of 	the presentation of 	the 	grievance 	and 	issue 	a written
decision within 	five 	days 	thereafter.
Charging 	Parties 	advance 	the 	argument 	that 	the 	above-cited
jurisdictional 	limitation 	does 	not 	apply 	to 	these 	charges 	because
attempts 	to 	obtain 	an 	administrative 	remedy would 	be 	futile.
This 	claim 	is without merit 	for three 	reasons. 	First, 	there 	are
no 	facts 	alleged 	demonstrating 	that 	grievances 	which may 	be 	filed

Warning 	Letter
LA-CE-2813; 	LA-CE-2814
January 	3, 	1989
Page 4
alleging 	violations 	of 	the 	grievance 	procedure 	would 	not 	be
processed by 	the 	District.1 Second, 	there 	are 	no 	facts 	alleged
indicating 	that 	the 	District 	has 	refused 	to 	arbitrate 	any 	matters
raised 	in 	the 	grievances 	already 	filed 	challenging 	the 	docking 	of
pay. 	The 	concept 	of 	futility 	under Government 	Code 	section
3541.5(a) 	requires 	a demonstration 	that 	the 	arbitration 	step of
the 	grievance 	procedure 	cannot 	be 	invoked 	and/or 	completed.
State 	of California 	(Department of 	Corrections) 	(1986) 	PERB
Decision No. 	561-S. 	The denial of meeting rights 	prior to
arbitration does 	not demonstrate 	futility. 	Third, 	the 	contract
itself 	appears 	to 	contemplate 	that 	Step One 	rights 	may be
dispensed with where 	the 	District 	fails 	to 	comply 	with 	the
requirements 	of 	a 	timely meeting with 	the 	local 	administrator 	and
a 	written 	response.
Accordingly, 	this 	charge 	must 	be 	deferred 	to arbitration and will
be 	dismissed. 	Such dismissal 	is 	without 	prejudice 	to the
Charging 	Party's 	right, 	after 	arbitration, 	to 	seek a 	repugnancy
review by 	PERB 	of 	the 	arbitrator's 	decision 	under 	the 	Dry 	Creek
criteria. 	See 	PERB 	Regulation 	32661 	(California Administrative
Code, 	title 8, 	section 32661); 	Los Angeles Unified School
District 	(1982) 	PERB Decision No. 	218; 	Dry Creek Joint Elementary
School 	District, 	supra.
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
1 Although 	PERB has 	held 	that 	arbitration will 	not 	be
ordered 	where 	the 	challenged 	conduct 	involves 	the 	refusal 	to
process 	a 	grievance 	in 	good 	faith 	(California 	State 	University
(1984) 	PERB Decision No. 	392-H), 	the reasoning of that case is
not 	applicable 	here. 	PERB's 	decision 	in California 	State
University 	involved 	an 	application 	of 	the 	deferral 	policy 	of
Collyer 	Insulated Wire 	(1971) 	192 	NLRB 	837 	[77 	LRRM 	1931] 	and 	Dry
Creek Joint 	Elementary 	School 	District 	(1980) 	PERB 	Decision No.
Ad-81a 	(see 	also: 	Native 	Textiles 	and 	Communications Workers 	of
American, 	Local 	1127 	(1979) 	246 NRLB 228 	[102 	LRRM 	1456]}. 	Lake
Elsinore 	School 	District, 	supra, 	overrules 	Dry Creek Joint
Elementary 	School 	District, 	rejecting 	the 	applicability 	of
Collyer 	Insulated Wire 	to 	the 	EERA.

Warning 	Letter
LA-CE-2813; LA-CE-2814
January 3, 	1989
Page 	5
not 	receive 	an 	amended 	charge 	or 	withdrawal 	from 	you 	before
January 	12, 	1989, 	I 	shall dismiss your charge without leave 	to
amend. 	If you have 	any questions 	on how to proceed, 	please 	call
me at 	(213) 	736-3127.
Sincerely,
DONN 	GINOZA
Regional 	Attorney