Los Angeles Community College District (PERB 0761E)

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-2833
PERB Decision No. 	761
September 13, 	1989
Appearance: 	Robert Ray Bradley, 	on his own behalf.
Before Hesse, Chairperson; 	Porter, 	Craib, 	Shank and Camilli,
Members.
DECISION AND 	ORDER
This 	case 	is 	before the Public 	Employment Relations 	Board
(Board) 	on appeal by the 	charging party of a Board agent's
dismissal 	(attached hereto) 	of his 	charge that the respondent
violated 	section 	3543.5 	of 	the 	Educational 	Employment 	Relations
Act 	(Gov. 	Code sec. 	3540 et seq.). 	We have reviewed the
dismissal and, 	finding it 	free of prejudicial 	error, 	adopt 	it as
the 	Decision of 	the 	Board 	itself.
The unfair practice 	charge 	in Case No. LA-CE-2833 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
By 	the 	BOARD

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	PERD
May 19, 1989
Robert 	Ray 	Bradley
RE: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair 	Practice
Charge No. 	LA-CE-2833, 	Robert Ray Bradley v. 	Los Angeles
Community 	College 	District
Dear Mr. 	Bradley:
I 	indicated to you 	in my attached 	letter dated May 	8, 	1989, 	that
the 	above-referenced 	charge was 	subject 	to deferral 	to
arbitration. 	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 or withdrew it prior to May 	18, 	1989, 	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 May 	8 	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:
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).
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
Thomas 	J. Allen
Regional 	Attorney
- ."
Attachment
cc: 	James H. 	Aguirre
•

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Gov
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles. CA 90010-2334
(213) 736-3127
May 8, 1989
Robert 	Ray 	Bradley
RE: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-2833,
Robert 	Ray 	Bradley 	v. 	Los 	Angeles 	Community 	College 	District
Dear Mr. 	Bradley:
In the 	above-referenced charge, 	you allege 	that Los Angeles
Community 	College 	District 	(District) 	retaliated 	against 	you 	by
releasing 	confidential 	information 	about 	a 	grievance 	you 	had
filed. 	You 	allege 	that 	this 	conduct violated Government 	Code
section 	3571(a) 	of 	the 	Higher Education Employer-Employee
Relations Act 	(HEERA). 	The District is covered, 	however, 	not by
HEERA but the 	Educational 	Employment Relations Act 	(EERA), 	and
the 	District's 	alleged 	conduct 	is 	covered by Government 	Code
section 	3543.5(a) 	of EERA.
My 	investigation 	of 	this 	charge 	revealed 	the 	following
information.
On November 	7, 	1988, 	you 	filed a grievance 	(first grievance)
alleging 	in 	part 	that Janet 	H o m e 	of 	the 	District's 	Office
Administration 	department 	"is 	scheduled 	to 	receive 	release 	time
so 	she 	can develop 	a microcomputer 	class which will 	be 	taught 	by
the 	Business 	Administration 	department." . -
On November 	9, 	1988, 	John Farhood, 	the District's Acting Vice
President 	for Academic Affairs, 	responded 	to your 	first 	grievance
with a memorandum that 	stated in part, 	"Ms. 	H o m e has 	not been
assigned any released time," 	and asked you, 	"With 	the 	above 	in
mind, 	do you 	still wish to pursue 	the Step 	I 	grievance 	process?"
A copy of 	the memorandum was 	sent 	to Lee 	Sirakides, 	chairman of
the Office Administration department, 	among others.
On or about November 	15, 	1988, 	you 	filed another grievance
(second grievance), 	alleging in part that Farhood's 	"release 	of
information 	concerning 	my 	grievance 	to 	Lee 	Sirakides 	was 	improper
and 	unnecessary" 	and 	that 	Farhood 	"knew or 	had 	reason 	to 	know
that 	the 	release 	of 	confidential 	information 	concerning 	my
grievance would 	cause 	harassment 	and 	intimidation 	of 	me." 	You
""'"

Warning 	Letter
LA-CE-2833
May 8, 	1989
Page 2
alleged 	that 	Farhood's 	conduct violated Article 	6, 	paragraph 	E,
of 	the 	collective 	bargaining 	agreement 	(effective 	September 	30,
1987, 	through September 29, 	1990), 	in which the District agreed
"to comply with state and/or 	federal 	laws." 	(In Article 	5, 	the
District 	more 	specifically 	agreed 	to 	"comply with 	all 	federal 	and
state 	laws 	regarding non-discrimination.") 	You alleged 	that
Farhood's 	conduct 	violated 	the 	agreement 	by 	violating 	Government
Code 	section 	3571(a) 	"by 	initiating a reprisal 	against me 	for
filing a 	grievance." 	(As 	previously noted, 	the applicable
Government 	Code 	section 	is 	actually 	3543.5(a).)
Your 	second grievance proceeded to a 	Step One 	conference, 	at
which 	you were 	accompanied 	by 	Eloise 	Crippens 	of 	the American
Federation of Teachers College Guild 	(AFT), 	the exclusive
representative 	for 	your bargaining unit. 	You decided 	to 	drop 	the
grievance 	rather 	than proceed 	to 	Step Two 	(appeal 	to the 	College
President or Division Head) 	and Step Three 	(binding arbitration).
You decided to drop 	the 	grievance 	because 	in the 	past 	the AFT had
refused 	to 	give 	the 	approval 	necessary 	for other 	grievances 	that
you had 	filed to go to binding arbitration. 	Eloise Crippens did
not, 	however, 	tell 	you that the AFT would refuse 	to give 	approval
for 	this 	particular 	grievance.
Based on the 	facts 	stated above, 	this 	charge must be dismissed
and deferred to 	arbitration, 	for the reasons 	that 	follow.
Section 	3541.5(a)(2) 	of 	the 	Educational 	Employment 	Relations Act
(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

Warning 	Letter
LA-CE-2833
May 8, 	1989
Page 3
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 retaliated 	against you 	for 	filing a 	grievance, 	is
arguably prohibited by Article 	6, 	paragraph E, 	of 	the 	agreement,
in which 	the 	District agreed 	to 	comply with 	state 	laws 	(and also
by Article 	5, 	in which the 	District agreed more 	specifically to
comply with all 	state 	laws 	regarding nondiscrimination). 	EERA is
a 	state 	law that prohibits, 	among other things, 	discrimination
against 	employees 	because 	of 	their 	exercise 	of 	rights 	guaranteed
by EERA, 	and 	filing a grievance pursuant to a negotiated
grievance procedure 	is 	an exercise of 	such rights. 	North
Sacramento School 	District 	(1982) 	PERB Decision No. 	264.
Section 	3541.5(a)(2) 	of EERA also 	states 	that 	"when the 	charging
party demonstrates 	that resort 	to 	contract 	grievance 	procedure
would be 	futile, 	exhaustion 	shall 	not necessary." 	The 	identical
language 	appears 	in Government Code 	section 	3514.5 	of 	the 	Dills
Act, 	also known as 	the 	State 	Employer-Employee 	Relations 	Act
(SEERA). 	PERB has 	interpreted this 	language as establishing a
standard of 	futility that may be met if: 	(1) 	the 	exclusive
representative 	is 	committed 	to 	a position 	in 	conflict with 	the
grievant's position in the grievance; 	or 	(2) 	the 	exclusive
representative 	has 	refused 	the 	grievant's 	request 	for 	assistance
with 	the 	grievance. 	State 	of California 	(Department 	of
Corrections) 	(1986) 	PERB Decision No. 	561-S; 	State of California
(Department of Development Services) 	(1985) 	PERB Order No.
Ad-145-S.
Neither part of this 	standard is met in this 	case. 	First, 	there
is 	no 	allegation or evidence 	that AFT approves 	or 	condones 	the
District's 	alleged release 	of 	confidential 	information 	concerning
your 	first grievance 	in retaliation 	for your 	filing of 	that
grievance. 	Second, 	there 	is no allegation or evidence 	that you
requested AFT's 	assistance 	with 	your 	second 	grievance 	and AFT
refused. 	There is 	therefore no demonstration that use of the ...
grievance 	procedure was 	futile as 	a means 	of having your 	second
grievance 	resolved by binding 	arbitration.
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

Warning 	Letter
LA-CE-2833
May 8, 	1989
Page 4
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 	(1980) 	PERB Order No. 	Ad-81a.
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 	May
18, 	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,
Thomas J. 	Alien
Regional 	Attorney
•