Compton Community College District (PERB 0915E)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COMPTON 	COMMUNITY COLLEGE
FEDERATION OF 	EMPLOYEES, 	LOCAL
3486 	AND 	FLOYD 	SMITH,
Charging 	Party,
v.
COMPTON COMMUNITY COLLEGE DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3096
PERB Decision No. 	915
December 20, 	1991
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Appearance: 	Lawrence Rosenzweig, 	Attorney, 	for Compton Community
College 	Federation of Employees, 	Local 	3486 	and Floyd Smith.
Before: 	Hesse, 	Chairperson; 	Shank and Carlyle, 	Members
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on appeal 	by Compton
Community College Federation of Employees, 	Local 	3486 	and Floyd
Smith 	(Federation and Smith 	or Charging 	Parties) 	to 	a 	Board
agent's 	dismissal 	(attached) 	of 	its 	original and amended unfair
practice charge. 	In its 	charge, 	the Federation and Smith allege
that 	the Compton Community College District 	(District) 	failed to
negotiate in good faith in violation of 	section 3543.5(a), 	(b)
and 	(c) 	of 	the Educational Employment Relations Act 	(EERA).1 We
1EERA is 	codified at Government Code 	section 3540, 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3 543.5 	states 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer 	to do 	any of 	the 	following:
______________ )

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 	consistent with 	the 	following 	discussion 	addressing
Charging Parties' 	appeal.
CHARGING PARTIES' 	APPEAL OF DISMISSAL
Charging 	Parties 	argue that 	the 	District's 	Board of
Trustees' 	(Trustees) 	ratification of a contract on October 30,
1990, 	did not give actual 	or constructive notice that the
Trustees were not going to ratify the retirement bonus. 	As 	the
Trustees 	have 	neither ratified 	nor 	rejected 	the 	retirement 	bonus,
Charging Parties 	argue 	there 	is 	a 	continuing violation.
Charging Parties also assert that the Board agent, 	in his
dismissal 	letter, 	failed to address 	the 	allegation in the 	amended
unfair practice 	charge, 	that the District has 	not 	fulfilled 	its
obligation 	in accordance with 	the 	ground 	rule 	for the
ratification of 	tentative 	agreements 	reached between 	the parties.
Since 	the District has 	never acted on the tentative 	agreement 	to
(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.
(b) 	Deny to employee organizations 	rights
guaranteed to them by this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
22

give a retirement bonus, 	the District's 	failure to act 	is 	a
continuing 	violation.
Charging 	Parties 	next 	allege 	the 	Trustees 	never 	acted upon
the 	retirement bonus when 	it 	ratified the 	contract 	on October 	30,
1990. 	Charging Parties 	note that 	even the District's 	letter of
January 28, 	1991, 	rejecting Smith's request for a retirement
bonus, 	does not make any reference to the Trustees' 	action on
October 30, 	1990, 	when it ratified a contract. 	Further, 	Charging
Parties 	dispute 	the 	Board 	agent's 	citation to 	Inglewood 	Unified
School District 	(1984) 	PERB Decision No. 	401. 	Rather, 	Charging
Parties 	rely on The 	Regents 	of 	the 	University of California
(1983) 	PERB Decision No. 	359-H as a better comparison.2
DISCUSSION
Charging Parties 	argument that the Trustees' 	ratification of
the contract on October 30, 	1990, 	did not give actual or
constructive 	notice 	that 	the Trustees 	were 	not 	going to 	ratify
the retirement bonus 	is without merit. 	As 	noted by the Board
agent 	in his warning 	letter, 	the collective bargaining agreement
(CBA) 	did not include the retirement bonus. 	Additionally, 	the
CBA 	included 	a 	provision that 	the CBA:
[s]hall 	constitute the 	full 	and 	complete
commitment 	between the parties 	and 	shall
supersede 	and 	cancel 	all previous 	agreements
both written and oral.
The 	CBA 	also provided that:
2The District did not 	file 	a response to the 	Federation and
Smith's 	appeal 	of 	the Board agent's 	dismissal.
33

[p]ast practices, 	standards, 	obligations and
commitments 	of 	the 	District 	to 	its 	employees
relating to this Agreement 	are 	rejected
mutually as 	a 	condition of 	entering 	into 	this
Agreement, 	except as they are expressly
stated herein.
The 	Board 	finds 	the 	Board 	agent was 	correct 	in 	concluding 	that
the October 	30, 	1990 	ratification of 	the CBA constituted notice
to the 	Federation and 	Smith that 	the 	District 	failed 	to 	ratify
the retirement bonus.
Charging Parties' 	next argument that the Trustees' 	alleged
inaction regarding 	the 	retirement 	bonus 	constituted 	a 	continuing
violation is without merit. 	First, 	the Trustees' 	ratification of
a 	complete 	contract 	failed to 	include 	a provision for a
retirement bonus. 	Additionally, 	the contract 	language 	stated
that 	the 	contract was 	the 	full 	and 	complete 	agreement between the
parties 	and 	superseded any 	other previous 	agreements. 	Clearly,
the 	contract 	constituted 	a 	rejection of 	the 	retirement 	bonus
tentative 	agreement.
Second, 	even assuming that the Trustees' 	ratification of a
contract did 	not 	constitute 	an approval 	or rejection of 	the
retirement bonus, 	there is 	still no evidence of a continuing
violation. 	Generally, 	a violation is 	a continuing one 	if the
violation has 	been revived by 	subsequent 	unlawful 	conduct within
the 	six-month 	statute of 	limitations. 	(San Dieguito 	Union High
School District 	(1982) 	PERB Decision No. 	194.) 	In San Dieguito
Union High School District, 	supra. 	the 	school district was
charged with having 	unilaterally 	changed 	a 	prior practice 	when 	it
enforced on a 	daily basis 	a policy 	that 	required 	teachers 	to 	sign
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out before 	leaving 	campus. 	The 	Board 	found there was 	no
continuing 	violation even though 	the 	employer's 	sign-out policy
was 	enforced on a 	continuing basis well 	into the 	statute 	of
limitations 	period. 	In El 	Dorado Union High School 	District
(1984) 	PERB Decision No. 	382, 	the Board followed San Dieguito
Union High 	School 	District 	and determined 	that:
. 	. 	. 	a continuing violation would only be
found where 	active 	conduct 	or 	grievances
occurred within 	the 	limitations 	period 	that
independently 	constituted 	an unfair practice.
(Citation omitted.) 	However, 	a continuing
violation would not be 	found where 	the
employer's 	conduct 	during 	the 	limitations
period 	constituted 	an unfair practice 	only 	by
its 	relation to the original offense.
(Citation omitted.) 	Where the underlying
theory of 	the 	charge 	is 	an alleged unilateral
change 	occurring 	outside 	the 	limitations
period, 	the employer must engage 	in conduct
during 	the 	limitations 	period 	"such 	as
reimplementation or 	subsequent 	refusals 	to
negotiate . 	. 	. 	[which] revive[s] the
viability of 	the 	unfair practice." 	(Citation
omitted.) 	(Id., 	at pp. 	4-5.)
In El Dorado Union High School District, 	supra, 	the 	school
district 	unilaterally 	instituted 	a 	new policy 	requiring 	all
teachers 	hired by the district 	to 	sign an addenda 	to 	their
teaching 	contract 	agreeing to 	coach 	at 	least 	two 	school 	sports
teams 	during the year. 	The 	Board held that 	the 	sole violation
occurred when 	the 	school 	district 	adopted 	the 	new policy.
Requiring 	new teachers 	to 	sign the 	addenda 	during 	the 	limitations
period 	did 	not 	satisfy 	the 	requirement 	that 	the 	employer's
subsequent 	conduct 	constitute 	a 	"reimplementation or 	revival 	of
the policy."
1 ..
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In the present 	case, 	Smith retired and made 	inquiries 	as 	to
his 	retirement bonus. 	In a memorandum dated February 26, 	1990,
the 	District 	informed 	Smith 	that 	the 	retirement bonus 	could 	not
be 	implemented until 	final 	ratification of 	the 	full 	contract 	by
the Federation and District. 	On October 30, 	1990, 	the full
contract, 	without the retirement bonus provision, 	was 	ratified by
the Trustees. 	After filing a grievance relating to 	the denial 	of
the retirement bonus, 	Smith received a 	letter dated January 	28,
1991, 	informing him that the District was denying his 	grievance.
The 	denial 	of 	subsequent 	requests 	for Smith's 	retirement 	bonus
does 	not constitute a continuing violation. 	(See California
State Employees' 	Association 	(Calloway) 	(1985) 	PERB Decision No.
497-H, 	where the denial 	of 	subsequent 	requests 	for representation
did not 	constitute 	a 	continuing violation; 	UCLA Labor 	Relations
Division 	(1989) 	PERB Decision No. 	735-H, 	where the university's
failure 	to 	change 	its position did not 	constitute 	a 	continuing
violation; 	and Oakland Education Association. 	CTA/NEA 	(Mingo)
(1984) 	PERB Decision No. 	447, 	where subsequent requests that the
association file grievances, 	and the 	association's 	refusal 	to
file 	a grievance, 	did not constitute 	a 	continuing violation.)
Rather, 	when the Trustees 	ratified the 	full 	and 	complete 	contract
on October 	30, 	1990, 	the Federation and Smith knew or 	should have
known that the ratification of the contract was, 	in essence, 	a
rejection or denial 	of 	the tentative 	agreement 	on retirement
bonuses. 	As 	the original unfair practice charge was 	filed on
June 	18, 	1991, 	more than six months after the District's
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ratification of 	the 	full 	and complete 	contract, 	the 	Board agent
properly dismissed 	the 	unfair practice 	charge 	on 	the 	basis 	of
Untimeliness.
Finally, 	the argument that 	the District has 	not 	fulfilled
its 	obligation 	in 	accordance with 	the 	ground 	rule 	regarding 	the
ratification procedures 	of 	tentative agreements 	has 	no 	effect 	on
the timeliness 	issue. 	The alleged ground rule 	states:
Each party 	shall 	be 	responsible 	for
fulfilling 	its 	respective procedures 	for
ratification of 	the 	tentative 	agreement
reached between the negotiating teams.
There is 	no evidence as 	to the procedures 	for ratification, 	or
how the 	District 	failed 	to 	follow these 	ratification procedures.
Instead, 	the 	amended unfair practice 	charge 	simply alleges 	that:
[t]he 	District has 	not 	fulfilled 	its
obligations because 	the 	retirement bonus 	has
not 	been taken to 	the 	Board 	for 	consideration
or ratification.
Even 	if 	the 	District 	violated 	the 	ground 	rule 	or 	failed 	to 	follow
the procedures 	for ratification, 	this 	allegation would be
considered a mere breach of 	contract. 	It 	is well-established
that 	PERB does 	not have 	jurisdiction to resolve pure 	contract
disputes. 	(See EERA section 3541.5(b); 	Victor Valley Joint Union
High School District 	(1981) 	PERB Decision No. 	192; 	and Grant
Joint Union High School District 	(1982) 	PERB Decision No. 	196.)
Finally, 	Charging Parties 	disagreement with the 	Board
agent's 	reliance on Inglewood Unified School 	District, 	supra,-
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PERB Decision No. 	401 	is without merit.3 In Inglewood Unified
School District, 	supra. 	the Board discussed the timeliness 	of an
unfair practice 	charge, 	and determined that the charging party-
should have 	known that 	the 	school 	district was 	proceeding 	against
an employee 	in a dismissal 	action because of 	excessive absences.
Similarly, 	in the 	instant case, 	the Board agent determined that
Charging Parties 	should have known on October 	30, 	1990, 	that the
District was 	not going to 	adopt the 	tentative 	agreement 	on
retirement bonuses. 	Charging Parties' 	assertion that The Regents
of the University of California, 	supra, 	PERB Decision No. 	359-H- -
is 	a better comparison to the 	instant 	case 	is 	incorrect. 	In The
Regents 	of the University of California, 	supra. 	the Board found
that the 	university failed to 	give 	advance 	notice 	of 	its
reduction of 	the maximum duration of 	full-time 	lecture positions.
In the present 	case, 	there was 	notice that the tentative
agreement on retirement bonuses 	had not been ratified. 	As
discussed above, 	the 	Board agent 	correctly determined that 	on
October 	30, 	1990, 	the Federation and Smith should have known that
the 	tentative 	agreement 	on retirement 	bonuses 	had 	not 	been
ratified.
3Charging Parties 	discussion of 	the 	Board agent's 	use 	of
"Cf." 	when referring to Inglewood Unified School District, 	supra,
PERB Decision No. 	401 	is 	in error. 	Charging Parties 	assert that
"Cf." 	means 	that the case 	cited 	is 	contrary to the 	situation
being discussed. 	Section 	101 	of 	the California 	Style Manual
(1986) 	Third Edition 	states 	that 	the 	citation 	should be preceded
by 	the abbreviation 	"Cf." 	when the 	cited 	case deals 	with 	an
analogous 	situation, 	as when there is a 	similar statute, 	and a
decision 	is 	in accord.
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ORDER
The 	original 	and amended unfair practice 	charge 	in Case No,
LA-CE-3096 	is 	hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Shank and Carlyle 	joined 	in this 	Decision.
9

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
August 28, 	1991
Lawrence 	Rosenzweig
2001 Wilshire Blvd., 	Suite 600
Santa Monica, 	California 	90403
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair
Practice Charge No. 	LA-CE-3096, 	Compton Community
College Federation of Employees. 	Local 	3486. 	and Floyd
Smith v. 	Compton Community College 	District
Dear Mr. 	Rosenzweig:
I 	indicated to you 	in my attached letter dated August 	9, 	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 August 	16, 	1991, 	the charge would be dismissed.
On August 23, 	1991, 	I received from you an amended charge. 	The
amended 	charge makes 	explicit what was 	implicit 	in the 	original
charge: 	that the District's letter of January 28, 	1991, 	was 	"the
first 	notice 	received by 	charging party 	that 	the 	District 	did 	not
intend to act upon or ratify the retirement bonus."1 The 	amended
charge does not, 	however, 	address the key issue raised by my
letter of August 	9: 	whether 	charging party knew or 	should have
known on 	(at the latest) 	October 30, 	1990, 	when the District
ratified a 	complete contract without the retirement bonus, 	that
the District was 	not going 	to 	consider ratifying the 	retirement
bonus, 	which had been tentatively agreed to on June 	23, 	1988.
(Cf. 	Inglewood Unified School 	District 	(1984) 	PERB Decision
No. 	401.) 	I 	am therefore dismissing the 	charge based on the
facts 	and reasons 	contained 	in my August 	9 	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
The 	letter, 	attached to the amended charge, 	actually 	said
nothing 	about 	ratification; 	it merely denied Floyd 	Smith's
request 	for a retirement bonus.

Dismissal
LA-CE-3096
August 28, 	1991
Page 2
appeal 	to 	the Board 	itself within twenty 	(20) 	calendar days 	after
service of this dismissal 	(California Code of Regs., 	tit. 	8,
sec. 	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 Code of Regs., 	tit. 	8,
sec. 	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
Regs., 	tit. 	8, 	sec. 	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 Regs., 	tit. 	8,
sec. 	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
RADA .	RAOR. 	tit. 8, sec. 32132) .

Dismissal
LA-CE-3096
August 28, 	1991
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: 	Urrea C. 	Jones, 	Jr.

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	
Pene
August 9, 	1991
Lawrence 	Rosenzweig
2001 Wilshire Blvd., 	Suite 600
Santa Monica, 	CA 	90403
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3096,
Compton Community College 	Federation of 	Employees. 	Local
3486. 	and Floyd Smith v. 	Compton Community College District
Dear Mr. 	Rosenzweig:
In the above-referenced charge, 	the Compton Community College
Federation of Employees, 	Local 	3486 	(Federation) 	and employee
Floyd Smith 	(Smith) 	allege that the Compton Community College
District 	(District) 	failed to negotiate 	in good faith, 	in alleged
violation of Government Code sections 3543.5(a), 	(b) 	and 	(c) 	of
the Educational Employment Relations Act 	(EERA).1
My 	investigation of the 	charge reveals 	the 	following 	facts.
During the 	1987-88 	school year, 	the Federation and the District
began negotiations 	on a 	new collective bargaining agreement. 	On
June 	23, 	1988, 	the Federation and the District reached tentative
agreement on a new 	"Article X" 	on 	"Retirement Options" 	that
included a retirement bonus 	for unit members retiring on or
before July 29, 	1988. 	Unit member Smith had retired on June 	17,
1988. 	The tentative agreement, 	however, 	was never taken to the
District's Board of Trustees 	for ratification, 	and this 	is what
is 	alleged to 	constitute a 	failure 	to negotiate 	in good 	faith.
Sometime 	in 	1990 	the Federation and the 	District reached
agreement on a 	complete contract, 	which the District Board
ratified on October 30, 	1990. 	The contract does not include the
retirement bonus 	or any other provision concerning the period
prior to July 	1, 	1989. 	(The term of the contract is July 	1,
1989, 	through June 30, 	1992.) 	The Federation signed the contract
on May 	9, 	1991. 	Article XXIII 	of 	the 	contract 	("General
Provisions") 	provides in relevant parts as 	follows:
1As an 	individual 	employee, 	Smith actually does 	not have
standing to allege that 	the 	District 	failed 	to 	negotiate 	in good
faith. 	Oxnard School District 	(1988) 	PERB Decision No. 	667. 	The
charge does 	not 	contain 	allegations 	of 	any other 	independent
violation of 	the 	EERA.

Warning 	Letter
LA-CE-3096
August 9, 	1991
Page 2
23.1 	This Agreement 	shall 	constitute 	the 	full 	and complete
commitment between 	the parties 	and 	shall 	supersede and
cancel 	all previous 	agreements both written and oral. 	This
Agreement may be altered, 	changed, 	added to, 	deleted from or
modified only through the voluntary, 	mutual 	consent of 	the
parties by a written and 	signed 	amendment to this Agreement.
23.4 	The parties agree that past practices, 	standards,
obligations 	and commitments 	of 	the 	District to 	its 	employees
relating to this Agreement are 	rejected mutually as 	a
condition of 	entering into this Agreement, 	except as 	they
are 	expressly 	stated herein.
Meanwhile, 	back in November 	1989, 	Smith had applied for the
tentatively 	agreed-upon retirement 	bonus 	(stating 	that 	he 	had
learned of his eligibility 	"only last Thursday, 	November 9"). 	In
a letter dated February 26, 	1990, 	the District replied that 	"in
order to 	implement 	any 	compensation 	items we have 	agreed upon,
there must be 	final 	ratification of 	the 	full 	contract by the
Union and the District."
On or about August 21, 	1990, 	Smith submitted to the District a
grievance form, 	again requesting the retirement bonus. 	In a
letter dated October 4, 	1990, 	the District informed Smith that as
a 	retired employee he 	could not 	avail 	himself 	of 	the 	employee
grievance process. 	The District went on to 	state that Smith's
request was 	denied because 	the 	District Board had not 	ratified
the tentative agreement on the retirement bonus. 	By a 	letter
dated January 28, 	1991, 	the District Board itself informed Smith
that 	it had reviewed his 	request and had denied 	it. 	The
grievance process 	did not provide 	for binding arbitration.
The unfair practice charge was 	filed on June 	18, 	1991.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state a
prima 	facie violation of 	the EERA, 	for the reasons 	that 	follow.
Government Code 	section 	3541.5(a) 	provides 	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." 	In the present case, 	it appears 	that
the alleged unfair practice 	(the District's 	failure 	to 	take 	the
tentative agreement on the retirement bonus 	to the District Board
for ratification) 	occurred more than 	six months 	prior to the
filing of the charge on June 	18, 	1991. 	If 	(contrary to
appearances) 	the tentative 	agreement was 	separate 	from the
negotiation of the complete contract, 	then the 	failure to take
the tentative 	agreement 	to 	the 	Board 	for ratification took place

Warning 	Letter
LA-CE-3096
August 9, 	1991
Page 3
in 	1988, 	when the tentative agreement was 	reached. 	If 	(as
appears), 	however, 	the tentative agreement was part of the
negotiation of the complete 	contract, 	then the 	failure occurred
on or before October 30, 	1990, 	when the District Board ratified a
contract that did not 	include 	the 	tentative 	agreement 	on the
retirement bonus, 	and that 	specifically 	(in Article XXIII)
canceled 	"all previous 	agreements" 	and 	rejected past 	"obligations
and 	commitments."
The 	only event 	occurring within the 	six 	months 	prior 	to 	the
filing of the charge is 	the 	District 	Board's 	letter 	(dated
January 28, 	1991) 	denying Smith's request. 	Because the grievance
procedure 	Smith had 	attempted 	to 	use 	did 	not provide 	for binding
arbitration, 	his 	attempt did not 	toll 	the 	six-month 	limitation.
See Regents 	of the 	University of California 	(1990) 	PERB 	Decision
No. 	826-H; 	San Dieguito Union High School District 	(1982) 	PERB
Decision No. 	194. 	The District's 	earlier denial of Smith's
request 	(dated October 4, 	1990) 	appears 	to have been unambiguous;
any possible ambiguity was resolved on October 30, 	1990, 	when the
District 	Board 	ratified 	the 	complete 	contract without 	the
tentative agreement on the retirement bonus. 	There 	is 	no
allegation or evidence that the District ever represented, 	either
to Smith or to the Federation, 	that the tentative agreement on
the retirement bonus 	might be ratified 	separate 	from and
subsequent to the 	ratification of 	the 	complete 	contract.
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
August 	16, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney