San Diego Unified School District (PERB 0901E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
REYNALDO 	HERNANDEZ,
Charging 	Party,
v.
SAN DIEGO UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3084
PERB 	Decision No. 	901
September 19, 	1991
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Appearances: 	Reynaldo Hernandez, 	on his own behalf; 	Jose A.
Gonzales, 	Attorney, 	for San Diego Unified School District.
Before Hesse, 	Chairperson; 	Shank and Carlyle, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This case is before the Public Employment
Relations 	Board 	(Board) 	on appeal by Reynaldo Hernandez
(Hernandez) 	of a Board agent's dismissal 	(attached hereto) 	of
his 	charge 	that 	the 	San Diego 	Unified 	School 	District 	violated
section 3543.5(a) 	and 	(b)1 of the Educational Employment
Relations Act 	(EERA).22 	We have reviewed the Board agent's
dismissal and, 	finding it to be free of prejudicial error, 	adopt
it as 	the decision of the Board 	itself.
The unfair practice charge 	in Case No. 	LA-CE-3084 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
1Hernandez does 	not 	appeal 	the 	dismissal 	of 	an alleged
violation of 	3543.5(b) 	as he 	states 	that he withdrew the alleged
violation of 	this 	section.
2EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
______ )

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
May 30, 1991
Reynaldo 	Hernandez
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair
Practice Charge No. 	LA-CE-3084, 	Reynaldo Hernandez v.
San 	Diego 	Unified 	School 	District
Dear Mr. 	Hernandez:
I 	indicated to you 	in my attached letter dated May 23, 	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 May 30, 	1991, 	the
charge would 	be 	dismissed.
I 	have 	not 	received 	either 	a 	request 	for withdrawal 	or 	an 	amended
charge. 	On November 29, 1991, however, 	I 	received from you a
written 	Statement 	in response to my May 	23 	letter. 	The 	Statement
raises 	only one 	new issue: 	it 	asserts 	that 	it would be 	futile
for you 	to 	use 	the 	grievance procedure 	to 	challenge 	the
District's 	alleged 	breach 	of 	the 	collective 	bargaining 	agreement
with respect to academic 	class 	size. 	Neither the 	Statement 	nor
the charge, 	however, 	contains 	factual allegations that
demonstrate 	such futility. 	For example, 	there 	is 	no allegation
that you 	ever 	even attempted to 	file 	a 	grievance 	on this 	issue.
I 	am therefore 	dismissing 	the 	charge 	based 	on the 	facts 	and
reasons 	contained in my May 2 3 	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 	a£t.er

Dismissal 	and 	Refusal 	to
Issue 	Complaint
LA-CE-3084
Page 	2
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)).
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).

Dismissal 	and Refusal 	to
Issue 	Complaint
LA-CE-3084
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,
JOHN W. 	SPITTLER
General 	Counsel
By Thomas J. 	Allen
Regional 	Attorney
Attachment
cc: 	Jose A. 	Gonzales
(

STATE Of CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PEAS
Los Angeles Regional Office
3S30 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
May 23, 1991
Reynaldo 	Hernandez
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3084,
Reynaldo 	Hernandez 	v. 	San Diego 	Unified 	School 	District
Dear Mr. 	Hernandez:
In the above-referenced 	charge, 	you allege 	that 	the 	San Diego
Unified 	School 	District 	(District) 	interfered with your 	rights
under the Educational Employment Relations Act 	(EERA), 	in alleged
violation of Government Code 	sections 	3543.5(a) 	and 	(b) 	of 	the
EERA.1
My 	investigation of 	this 	charge 	reveals 	the 	following 	facts.
You 	are 	employed by the 	District as 	a 	teacher of 	Spanish 	and
physical 	education at the 	secondary 	level, 	in a bargaining unit
for which the 	San Diego Teachers Association 	(Association) 	is 	the
exclusive representative. 	On July 	1, 	1989, 	the District and the
Association 	entered 	into 	a 	collective 	bargaining 	agreement 	for 	a
three-year period 	ending June 	30, 	1992. 2 The agreement provides
in Article VII 	("Wages"), 	Section 	1 	("Salary Schedule"),
Paragraph A, 	that 	the 	salary 	schedule 	shall 	be 	increased 	each
year based on 	"the cost-of-living, 	COLA, 	(inflation) 	adjustment
funded by the 	state 	each year." 	The agreement also provides, 	in
Article XIII 	("Class 	Size"), 	Section 4 	("Secondary"), 	Paragraph
B, 	"Academic 	classes will 	average 	no more 	than thirty-six 	(36)
pupils 	each," 	but 	in Paragraph C of 	the 	same 	section it provides,
"Classes 	in 	. . . 	physical 	education may 	exceed 	the 	average 	size
established 	for other 	classes." 	The 	agreement 	further provides,
1It 	is 	not 	clear why you 	allege 	that 	the 	District violated
Government Code 	section 3543.5(b), 	which makes 	it unlawful 	to
deny 	employee 	organizations 	their rights 	under 	the 	EERA. 	No
denial 	of 	an 	employee organization's 	rights 	under the 	EERA 	is
alleged.
2According to 	records 	of 	the 	Public 	Employment 	Relations
Board, 	of which official 	notice may be taken, 	the agreement was
ratified on November 29, 	1988.

Warning 	Letter
LA-CE-3084
May 23, 1991
Page 2
in Article XV 	("Grievance 	Procedure"), 	Section 	5 	("Step Four 	-
Arbitration"), 	for binding arbitration of grievances.
You allege 	that 	the 	operation 	of 	the 	agreement 	impinged 	on your
freedom as 	a 	citizen to vote 	your conscience 	in the 	state-wide
general 	election on November 	6, 	1990. 	Apparently your conscience
impelled you to vote 	for one 	gubernatorial 	candidate, 	who had not
promised a 	cost-of-living 	adjustment, 	while the 	operation of 	the
agreement 	impelled you to vote 	for 	another candidate, 	who had
promised 	such an adjustment. 	You also allege 	that 	the
agreement's 	failure to 	limit physical 	education class 	sizes
creates 	an unsafe 	situation. 	Furthermore, 	you allege that the
District breached the agreement 	in the 	1989-90 	school year, 	by
requiring you 	to 	teach two 	academic 	classes 	in excess 	of 	the
36-pupil 	limitation, 	one of 	them a 	Spanish class with 	44 	pupils.
You 	filed your unfair practice 	charge 	on May 	6, 	1991.
The unfair practice 	charge does 	not 	state a 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) 	forbids 	PERB to 	"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." 	Your charge 	alleges 	that the 	District 	committed
unfair practices 	by 	entering 	into 	the 	current 	collective
bargaining 	agreement 	in 	1989 	and by breaching 	that 	agreement 	in
1989-90. 	These 	alleged unfair practices 	occurred more 	than 	six
months 	before you 	filed your charge on May 	6, 	1991. 	The
allegations 	are 	therefore untimely.
Even 	if 	your 	allegations 	about 	the 	agreement 	had been 	timely,
they would not 	state 	a violation of 	the 	EERA. 	Government Code
section 	3543 	of 	the EERA defines 	the 	rights 	of 	employees 	under
the 	EERA. 	The EERA does 	not 	guarantee 	employees 	the 	right 	to
vote 	in general 	elections 	free 	from the 	influence 	of 	financial
self-interest. 	Also, 	the EERA does 	not 	in itself 	guarantee
employees 	a 	safe working 	situation, 	although 	it does 	give
employees 	the 	right 	to 	raise 	and to 	collectively bargain 	issues
that 	concern their 	safety.
Similarly, 	even if your allegation about the breach of 	the
agreement had been timely, 	it would not 	state a violation of 	the
EERA that you have 	standing 	to allege. 	Government Code 	section
3541.5(b) 	of the EERA forbids 	PERB to 	"issue a 	complaint on any
charge based on alleged violation of 	such 	an agreement 	that would

Warning 	Letter
LA-CE-3084
May 23, 	1991
Page 	3
not 	also 	constitute 	an unfair practice 	under this 	chapter 	[the
EERA]." 	The alleged violation of 	the 	agreement here would
constitute 	an unfair practice 	only 	if 	it 	amounted to 	an
unbargained 	change of policy. 	Grant Joint 	Union High 	School
District 	(1982) 	PERB Decision No. 	196. 	An unbargained change of
policy would violate Government Code 	section 3543.5(c) 	of 	the
EERA, 	but 	only the 	exclusive 	representative has 	standing to
allege 	such a violation; 	individual employees do not. 	Oxnard
School District 	(1988) 	PERB Decision No. 	667.
There 	is 	yet 	one more 	reason why 	your 	allegation about 	the 	breach
of 	the 	agreement 	fails 	to 	state 	a violation of the 	EERA within
PERB's 	jurisdiction. 	Government Code 	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 Code of Regulations, 	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 	required you to 	teach 	academic 	classes 	with more 	than 	36
pupils, 	is 	arguably prohibited by Article XIII, 	Section 4,
Paragraph B, 	of the agreement.
For all 	these reasons, 	the 	charge as presently written does 	not
state 	a prima 	facie 	case within PERB's 	jurisdiction. 	If 	you 	feel
that 	there 	are any 	factual 	inaccuracies 	in this 	letter or 	any

Warning 	Letter
LA-CE-3084
May 23, 	1991
Page 	4
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 30, 	1991, 	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. 	Allen
Regional 	Attorney
TJA:eb