Los Angeles Unified School District (Kesley) (PERB 0887E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARILYN L. 	KESKEY,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-3044
PERB Decision No. 887
June 17, 1991
Appearance: 	Marilyn L. 	Keskey, 	on her own behalf.
Before Hesse, 	Chairperson; 	Shank and Carlyle, 	Members.
DECISION AND 	ORDER
SHANK, 	Member: 	This 	case is before the Public 	Employment
'Relations 	Board 	(Board) 	on appeal by Marilyn L. 	Keskey to 	a Board
agent's 	dismissal 	(attached hereto) 	of her charge 	that the
Los Angeles 	Unified 	School 	District violated 	section 	3543.5(a) 	of
the 	Educational 	Employment Relations Act 	(EERA).1 The Board has
reviewed the dismissal, 	and finding it to be free of prejudicial
error, 	adopt it as 	the decision of the Board itself.
EERA 	is 	codified at 	Government Code 	section 	3540 	et 	seq.
Section 3543.5(a) 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
)
)
)
)
)
)
)
)
)
)
_______________ )

The unfair practice charge 	in Case No. 	LA-CE-3044 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Carlyle 	joined 	in this 	Decision.
N
2

"STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
March 20, 	1991
Marilyn L. 	Keskey
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT
Unfair Practice Charge No. 	LA-CE-3044
Marilyn L. 	Keskey v. 	Los Angeles 	Unified School District
Dear Ms. 	Keskey:
I 	indicated to you 	in my attached 	letter dated March 	7, 	1991,
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 March 	15, 	1991, 	the charge would be dismissed.
On March 	19, 	1991, 	I 	received from you an amended charge 	sent by
certified mail on March 	14, 	1991. 	The amended charge contains
three 	allegations 	relevant to the 	six-month 	jurisdictional
limitation discussed 	in my March 	7 	letter:
1. 	"My present charge and the February of 	1990 	grievance 	I
filed against LAUSD 	[the District] 	involve the 	same 	issue of
discrimination."
2. 	"PERB's Attorney Mr. 	Thomas Allen repeatedly told me
[that] 	until June 	9, 	1990, 	[when you were informed that your
grievance would not go to arbitration] 	'was dead time. '
3. 	"[T]he 	UTLA union convinced me 	not 	to 	file additiona	" 	l
grievances. 	I 	asked UTLA if 	I 	could file a grievance to the
April 	letter of 	termination."
The amended 	charge 	still 	does 	not 	state a prima 	facie 	case
within PERB's 	jurisdiction, 	for the reasons 	that 	follow.
Your 	conclusion that 	your present 	charge 	and your 	earlier
grievance 	involve 	"the 	same 	issue of discrimination" 	is 	contrary
to the undisputed 	facts 	outlined in my March 	7 	letter. 	Your
charge 	alleges 	that 	the 	District 	retaliated 	against you 	in April
1990 	for your union activity 	in February 	1990. 	Your grievance,
on the 	other hand, 	challenged an 	Inadequate 	Service 	Report 	you

Dismissal 	and 	Refusal
to 	Issue 	Complaint
LA-CE-3044
March 20, 	1991
Page 2
received prior to your alleged union activity, 	and 	your grievance
did not 	allege retaliation.
It 	is 	true 	that 	I 	informed you that 	the 	six-month 	limitation 	is
tolled while 	a 	charging party pursues 	a 	grievance procedure
ending in binding arbitration. 	(I 	did not use the phrase 	"dead
time.") 	As 	indicated in my March 7 	letter, 	however, 	this 	tolling
takes place only when a 	charge and a 	grievance 	involve 	the 	same
issues. 	Until after you filed your charge, 	I 	did not know that
your 	charge 	and your grievance 	involved different 	issues.
The 	fact that you were not 	fully 	informed on the tolling doctrine
and the 	fact 	that UTLA convinced you 	not 	to 	file 	additional
grievances 	in April 	1990 do not alter the operation of 	the 	six-
month limitation. 	Because that limitation is 	jurisdictional 	(as
noted in my March 7 	letter), 	it is not subject to equitable
tolling on the basis of 	such facts. 	I 	am therefore dismissing
the 	charge based on the 	facts 	and reasons 	contained 	in this
letter and 	in my March 	7 	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 Code of Regulations, 	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 Code 	of
Regulations, 	title 8, 	section 32635(b)).

Dismissal 	and 	Refusal
to 	Issue 	Complaint
LA-CE-3044
March 20, 	1991
Page 3
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 Code of Regulations,
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 Code of
Regulations, 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,
JOHN W. 	SPITTLER
General 	Counsel
By Thomas 	J. 	Allen
Regional 	Attorney
Attachment
cc: 	Kerry Cunningham

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
March 7, 	1991
Marilyn L. 	Keskey
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3044
Marilyn L. 	Keskey v. 	Los Angeles 	Unified School
District
Dear Ms. 	Keskey:
In the above-referenced charge, 	you allege that the Los Angeles
Unified 	School 	District.(District) 	retaliated against you 	for
union activity. 	This 	conduct 	is 	alleged to violate Government
Code 	section 3543.5(a) 	of 	the Educational 	Employment Relations
Act 	(EERA).
My 	investigatio	. . 	n of 	this 	charge 	revealed 	the 	following 	facts.
You were employed by the District as 	a 	substitute teacher, 	in a
unit for which United Teachers-Los Angeles 	(UTLA) 	is 	the
exclusive representative* 	On February 	13,.1990, 	you received an
Inadequate 	Service 	Report 	for Day-to-Day 	Substitute 	Teacher
(Report), 	dated February 9, 	1990, 	and referring to service you
provided on February 6, 	1990. 	On February 21, 	1990, 	you filed a
grievance challenging the 	Report and asserting that 	it 	"was
issued without 	cause or benefit of progressive discipline 	and
does 	not 	accurately reflect 	the 	services 	rendered by grievant 	on
that date." 	The grievance did not 	allege 	any retaliation 	for
union 	activity.
The charge alleges 	that Robert J. 	Fisher, 	District Coordinator,
Certificated Substitute Assignments, 	was 	aware of your grievance.
On March 	17, 	1990, 	Fisher was 	guest 	speaker at a UTLA meeting,
and you asked him 	"a question or two." 	On April 	12, 	1990, 	Fisher
sent you 	the 	following 	letter:
This 	letter 	concerns 	your 	service 	availability as 	a
substitute 	teacher. 	Our 	records 	indicate 	that you have
been unavailable 	for 	substitute 	service 	for 	5 	days
since February 5, 	1990. 	This 	is your official
notification that 	if you receive 	5 	more unavailables
you will 	be placed on 	standby 	status.

Warning 	Letter
LA-CE-3044
March 7, 	1991
Page 	2
The purpose of 	this 	letter is 	to alert you to 	the
potential 	consequences 	of 	continued 	service
unavailability. 	Article XIX, 	Section 	5.6 	of 	the
District/UTLA Agreement 	states:
"A 	substitute 	may be 	changed 	from a higher
priority 	to 	the 	Certificated 	Personnel
Office's 	"standby 	list" 	for having 	ten 	(10)
"unavailables" 	in any one 	semester or four
(4) 	during 	summer session from July 	1 	through
the 	start of the 	Fall 	semester."
Placement on standby 	status 	is 	for a period of 	six 	(6)
working months. 	Substitutes 	on 	standby are called
after all 	other available 	substitutes 	have been
assigned. 	Name 	requests will 	not be honored 	for a
substitute while on standby. 	This 	letter is 	advisory
in nature. 	If 	you wish to 	review your 	substitute
record please 	contact 	the 	substitute 	unit 	supervisor
for the unit you are 	currently 	serving at 	the 	named
[sic] 	listed below.
North Certificated Unit 	. 	.
. 	.
. 	.
(213) 	625-6114
Central Certificated Unit 	(213) 	625-6117
South Certificated Unit 	(213) 	625-6126
In previous 	years 	you had 	not 	received 	such 	a 	letter even when
you had more than 	5 	"unavailables."
On April 24, 	1990, 	Irene G. 	Yamahara, 	District Associate
Superintendent, 	Personnel Division, 	sent you the following
letter:
As 	a result of 	the 	Inadequate 	Service 	Report 	issued 	to
you on February 	9, 	1990, 	for substitute 	service you
provided 	at 	Yorkdale 	Elementary 	School 	on 	February 	6,
1990, 	a review of your day-to-day 	substitute 	status was
conducted. 	This 	review of 	your 	service with 	the
District 	indicated 	that 	you 	had previously 	been 	issued
Inadequate Service Reports 	as 	follows:
School 	from Which 	Issued 	Date 	Issued
Glenfeliz 	Elementary 	School 	May 	2, 	1988
El 	Sereno 	Elementary 	School 	March 	2, 	1988

Warning 	Letter
LA-CE-3044
March 7, 	1991
Page 3
After 	careful 	evaluation of 	the 	conduct 	enumerated 	in
each Inadequate Service Report, 	it was determined that
you are 	to be dismissed from your 	substitute 	status
effective the date of 	this 	letter.
If you have any questions, 	please feel 	free to contact Mr.
Blatter at 	(213) 	625-6591.
You allege that the letters of April 	12, 	1990, 	and April 24,
1990, 	are both retaliatory in nature. 	You did not file
grievances 	challenging those 	letters.
The 	collective bargaining agreement between the 	District 	and 	UTLA
provides 	(at Article V, 	Section 	11.0) 	that if a grievance is not
settled 	in Step Two of 	the grievance procedure UTLA may, 	with the
concurrence of the grievant, 	submit the matter to binding
arbitration. 	Your grievance of February 21, 	1990, 	challenging
the Report of February 9, 	1990, 	was not settled at Step Two of
the procedure. 	On June 	9, 	1990, 	you were informed that UTLA
would 	not 	submit 	the matter to 	arbitration.
The unfair practice charge was 	filed on November 24, 	1990.
Based on the 	facts 	stated above, 	the charge does 	not state a
prima 	facie violation of the EERA within the 	jurisdiction of 	the
Public Employment Relations Board 	(PERB), 	for the reasons 	that
follow.
Government Code 	section 	3541.5(a) 	of 	the 	EERA provides 	in
relevant part that PERB 	"shall not 	. 	. 	. 	issue a complaint in
respect 	of 	any 	charge 	based 	upon an alleged unfair practice
occurring more 	than 	six months prior to the 	filing of 	the
charge." 	PERB has 	ruled that this 	limitation 	is 	jurisdictional.
California 	State University. 	San Diego 	(1989) 	PERB Decision
No. 718-H.
Government Code 	section 	3541.5(a) 	also provides 	in part, 	"The
board 	[PERB] 	shall, 	in determining whether the charge was 	timely
filed, 	consider the 	six-month 	limitation 	set 	forth 	in this
subdivision 	to have 	been tolled during 	the 	time 	it 	took the
charging party 	to 	exhaust 	the grievance 	machinery." 	This 	proviso
does 	not apply to the present charge, 	however, 	because the
present charge and the grievance of February 21, 	1990, 	do not
involve the 	same 	issues. 	While the charge 	challenges 	the 	letters
of April 	12, 	1990, 	and April 24, 	1990, 	and alleges that these
letters were 	in retaliation for union activity, 	the grievance
challenges 	only the Report of February 9, 	1990, 	and does 	not

Warning 	Letter
LA-CE-3044
March 7, 	1991
Page 4
allege 	any retaliation 	for union activity.1 The 	grievance 	thus
did not 	give 	the 	District 	notice of 	the 	claims 	made 	later 	in 	the
charge. 	United Teachers-Los Angeles 	(1985) 	PERB Decision
No. 526.
Because the proviso does 	not apply, 	the present charge 	is 	subject
to 	the 	six-month 	jurisdictional 	limitation. 	Because 	the 	charge
was 	filed on November 24, 	1990, 	the alleged retaliation that
occurred more than six months 	earlier 	(on April 	12, 	1990, 	and
April 24, 	1990) 	is outside PERB's jurisdiction.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie 	case. 	If there are any 	factual 	inaccuracies 	in
this 	letter or any additional 	facts 	that 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 must 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 	March
15, 	1991, 	I shall dismiss your charge. 	If you have any
questions, please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
1In fact, 	the 	only union activity 	identified 	in the 	charge,
the grievance filing on February 21, 	1990, 	and the questioning of
Fisher on March 	17, 	1990, 	occurred after the Report of February
9, 	1990. 	The Report could not have been issued 	in retaliation
for union activity 	that 	had 	not 	yet 	occurred.