San Francisco Community College District (Leptich) (PERB 1081E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELISA MARIA 	LEPTICH,
Charging 	Party,
y.
SAN FRANCISCO 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1725
PERB Decision No. 	1081
January 	12, 	1995
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Appearance: 	Elisa Maria Leptich, 	on her own behalf.
Before Blair, 	Chair; 	Carlyle and Johnson, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This 	case 	is before the 	Public Employment
Relations Board 	(PERB or Board) 	on appeal by Elisa Maria Leptich
(Leptich) 	of a Board agent's dismissal 	(attached hereto) 	of her
unfair practice 	charge. 	In her charge, 	Leptich alleged that 	the
San 	Francisco 	Community 	College 	District 	violated 	section
3543.5(a) 	of 	the Educational Employment Relations Act 	(EERA)1
when 	it 	terminated her employment.
The 	Board has 	reviewed 	the warning and dismissal 	letters,
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	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.

Leptich's 	unfair practice 	charge2, 	and the 	entire 	record 	in this
case. 	The Board 	finds 	the 	Board agent's 	warning and dismissal
letters 	to be 	free 	of prejudicial 	error and adopts 	them as 	the
decision of 	the Board itself.
The unfair practice 	charge 	in Case No. 	SF-CE-1725 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Johnson 	joined 	in 	this 	Decision.
2Leptich 	claims 	on appeal 	that 	she 	timely 	filed an amendment
to her charge. 	Leptich was 	granted an extension until August 	26,
1994 	to amend her charge. 	However, 	the amended charge was 	not
received by the Board until 	September 	19, 	1994. 	PERB Regulation
32136 	(Cal. Code Regs., 	tit. 	8, 	sec. 	17) 	states, 	in part:
A 	late 	filling may be 	excused 	in 	the
discretion of 	the 	Board 	for good 	cause
only.
Since 	no 	good 	cause was 	demonstrated 	for 	this 	delay, 	the Board
declines 	to 	consider Leptich's 	amended 	charge and, 	accordingly,
we 	deny her 	"request 	for 	remandment" 	and 	the 	return of 	this
matter to 	the 	regional 	office 	for 	further 	review.
Leptich also 	claims 	that 	a 	filing 	on 	this 	matter with 	the
National 	Labor Relations 	Board 	(NLRB) 	constitutes 	a 	filing with
this body, 	thus making her amended charge 	timely filed. 	The
Board has 	found no NLRB 	or Board authority 	to 	support 	such a
position. 	Accordingly, 	the Board also rejects 	this argument.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
September 1, 	1994
Elisa Maria Leptich, 	Ph.D.
Re: 	NOTICE OF DISMISSAL AND REFUSAL TO ISSUE COMPLAINT
Elisa Maria Leptich v. 	San Francisco Community College
District: 	Unfair Practice Charge No. 	SF-CE-1725
Dear Dr. Leptich:
I indicated to you, 	in my attached letter dated August 2, 	1994,
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 which would correct the
deficiencies explained in that letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to
August 12, 	1994, 	the charge would be dismissed. 	Your subsequent
request 	for an extension of time to respond was approved, 	and the
deadline was extended to August 26, 	1994.
I have not received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons contained in my August 2, 	1994 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. 	(Cal. 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 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	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 	(20) 	calendar

Dismissal 	Letter
SF-CE-1725
September 1, 	1994
Page 2
days following the date of service of the appeal. 	(Cal. 	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 Cal. 	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 	(3) 	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. 	(Cal. Code of Regs., tit. 8, sec. 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,
ROBERT THOMPSON
Deputy General 	Counsel
By
Les Chisholm
Regional Director
Attachment
cc: 	Jeffrey Sloan
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By---------

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
( 9 1 6 ) 3 2 2 - 3 1 9 8
PERS
August 2, 	1994
Elisa Maria Leptich, 	Ph.D.
Re: 	WARNING LETTER
Elisa Maria Leptich v. 	San Francisco Community College
District; Unfair Practice Charge No. 	SF-CE-1725
Dear Ms. Leptich:
The above-referenced charge, 	filed with the Public Employment
Relations Board 	(PERB or Board) 	on July 12, 	1994, 	alleges that
San Francisco Community College District 	(SFCCD)1 terminated your
employment and otherwise took reprisals against you in violation
of Government Code sections 3543 and 3543.5(a).2
The facts pertinent to an analysis of this charge are as follows.
You were employed by the SFCCD for some 20 years but classified
as a part-time, 	temporary teacher without tenure. 	Your position
was 	included in a bargaining unit 	for which AFT is 	the exclusive
representative. 	For the five-years preceding the Spring 1992
semester your assignment was 	in the Recreation Center for the
Handicapped. 	While so employed, 	you had initiated grievances and
filed other complaints alleging illegal practices by the
department. 	In December 1991 you filed a complaint with the
SFCCD Affirmative Action Office alleging discrimination based on
handicap, 	physical or mental disability. 	On January 7, 	1992, AFT
filed a grievance protesting your reassignment 	to a different
program and alleging that 	the 	reassignment 	constituted reprisal
in violation of the written agreement between SFCCD and AFT.
That grievance was denied by SFCCD.
Following the Spring 1992 	semester, 	you were not given an
assignment for the Fall 1992 semester and were, 	in effect,
terminated by SFCCD. 	AFT filed three additional appeals or
lAlso known as City College of San Francisco.
2An identical 	charge 	(SF-CO-472) 	has been filed against AFT
Local 2121 	(AFT). 	Alleged violations of Government Code section
3543.6 are properly analyzed in that case rather than the instant
charge. 	In addition, 	the facts alleged do not warrant analysis
under the Higher Education Employer-Employee Relations Act
(Government Code section 3560 et seq.) 	or the Ralph C. 	Dills Act
(Government Code section 3512 et seq.) 	as no party to either case
is under the jurisdiction of those provisions.

C
Warning 	Letter
SF-CE-1725
August 2, 	1994
Page 2
grievances 	on your behalf 	regarding both personnel 	file 	issues
and the 	termination itself, 	and you 	filed one 	"no reprisal"
grievance yourself. 	Under the written agreement, 	only the 	"no
reprisal" 	grievance 	over your 	termination 	could be 	taken to
binding 	arbitration by AFT.
SFCCD denied all 	grievances 	and appeals.3 By 	letter dated
September 1, 	1993, 	and with a two-plus pages 	explanation
attached, 	AFT advised you of 	a 	recommendation being made 	to 	its
executive board 	to not 	pursue 	the 	termination or 	"no 	reprisal"
grievance 	to 	arbitration.4 The 	executive 	board approved 	the
recommendation on September 	14, 	1993 	and you were 	so advised.
You 	currently 	have 	pending before 	the 	Unemployment 	Insurance
Appeals 	Board and Workers' 	Compensation Appeals 	Board 	(WCAB)
matters 	pertaining 	to your 	former employment 	with SFCCD. 	A WCAB
judge 	issued an order 	in February 	1994 	that 	the 	defendant 	in 	that
action produce 	a 	complete 	copy of 	your personnel 	file 	and other
information.
Discussion
The 	Educational 	Employment 	Relations Act 	(EERA) 	specifies as 	a
jurisdictional 	matter at 	Government 	Code 	section 	3541.5(a)(1)
that 	PERB 	shall 	not 	issue a 	complaint 	concerning 	"any charge
based upon 	an 	alleged unfair practice 	occurring more 	than 	six
months 	prior 	to 	the 	filing of 	the 	charge."
Your 	employment 	with the 	SFCCD was 	terminated 	in 	the 	Fall 	of 	1992
and grieved by AFT 	in November 	1992. 	The 	grievance procedure was
exhausted with AFT's 	decision 	in September 	1993 	not 	to pursue 	the
grievance 	to arbitration. 	Thus, 	even allowing tolling of all
time prior to September 	14, 	1993,5 any unfair practice 	charge
over 	the 	termination itself 	or AFT's 	discharge 	of 	its 	duty 	to
represent you 	concerning 	the 	termination, 	would have had to be
3Copies 	of 	the SFCCD responses were provided 	to you by AFT.
4Earlier, 	an AFT attorney had written 	to you 	regarding an
assessment 	of 	the likelihood, 	or lack thereof, 	of prevailing in
an appeal 	such as 	yours.
5EERA section 3541.5(a)(2) 	provides 	that 	the 	six-month
limitation 	is 	tolled 	"during 	the 	time 	it 	took 	the 	charging party
to 	exhaust 	the 	grievance machinery," 	referring 	specifically 	to
any grievance machinery 	included 	in an 	agreement 	between a public
school 	employer and 	exclusive 	representative.
(

Warning Letter
SF-CE-1725
August 2, 	1994
Page 3
filed no later than March 1994. 	As noted, 	this charge was not
filed until another four months had passed. 	The charge must
therefore be dismissed as untimely.
Summary
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 additional 	facts which would correct the
deficiencies explained above, 	please amend the charge. 	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
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 12. 	1993. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, ext. 359.
Sincerely,
Les Chisholm
Regional Director

PROOF OF SERVICE BY MAIL
C C P . 	1013a
I declare 	that 	I 	am a 	resident 	of 	or employed 	in the 	County
of 	Sacramento, 	California. 	I am over the age of 	18 years and not
a party 	to 	the within entitled cause. 	The 	name and address 	of my
residence 	or business 	is 	Public 	Employment 	Relations 	Board
1031 18th Street, 	Sacramento, 	California, 	95814-4174. 	I am
readily 	familiar with 	the 	ordinary practice 	of 	the business 	in
collecting, 	processing and depositing 	correspondence 	in 	the
United States 	Postal 	Service and that 	the 	correspondence will 	be
deposited 	the 	same 	day with postage 	thereon 	fully prepaid.
On January 12, 	1995, 	I 	served the attached PERB Decision
No. 	1081, 	San Francisco Community College District. 	Case
No. 	SF-CE-1725 	on the parties 	listed below by placing a 	true 	copy
thereof 	enclosed 	in 	a 	sealed 	envelope 	for 	collection 	and mailing
in 	the United States 	Postal 	Service 	following 	ordinary business
practices at 	Sacramento, 	California addressed as 	follows:
Jeffrey Sloan, 	Attorney
Liebert, 	Cassidy & Frierson
49 	Stevenson Street, 	Suite 1050
San Francisco, 	CA 	94105-2909
Elisa Maria 	Leptich
324 	Kittyhawk Road, 	#207
Alameda, 	CA 	94501.
I 	declare under penalty of 	perjury 	that 	the 	foregoing 	is
true and 	correct 	and that 	this 	declaration was 	executed on
January 12, 	1995, 	at Sacramento, 	California.
Teresa M. 	Stewart
(Type 	or 	print 	name) Teresa M. Stuart(Signature)