North Orange County Community College District (PERB 1342E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ELIZABETH KISZELY,
Charging Party, Case No. LA-CE-3965
Vv. PERB Decision No. 1342

NORTH ORANGE COUNTY COMMUNITY
COLLEGE DISTRICT,

August 19, 1999

Respondent.

Appearances: Elizabeth Kiszely, on her own behalf; Parker,
Covert & Chidester, by Cathie L. Fields, Attorney, for North
Orange County Community College District.
Before Caffrey, Chairman; Dyer and Amador, Members.
DECISION AND ORDER

AMADOR, Member: This case is before the Public Employment
Relations Board (Board) on appeal by Elizabeth Kiszely (Kiszely)
to a Board agent's dismissal (attached) of the unfair practice
charge. In the charge, Kiszely made a request for repugnancy
review of an arbitration award, and also alleged that the North
Orange County Community College District (District) retaliated
against her for her participation in protected activities, in

violation of section 3543.5(a) and (b) of the Educational

Employment Relations Act (EERA) .*

“EERA 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.
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the Board agent's 	warning and dismissal 	letters, 	the
original 	and amended unfair practice 	charge, 	Kiszely's appeal,2
and the District's 	response. 	The Board 	finds 	the 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. 	LA-CE-3965 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman Caffrey and Member Dyer 	joined 	in 	this 	Decision.
Kiszely's 	6/27/99 	request 	to provide 	additional 	materials
is 	hereby denied.
22

STATE OF CALIFORNIA 	I 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
May 	4 , 	1999
Elizabeth 	Kiszely
Re: 	Elizabeth Kiszely v. 	North Orange 	County Community
College 	District
Unfair 	Practice 	Charge No. 	LA-CE-3 965--Amended Charge
DISMISSAL 	AND 	REFUSAL 	TO 	ISSUE A COMPLAINT
Dear Ms. 	Kiszely:
You 	have 	alleged 	that 	the 	North Orange 	County 	Community 	College
District 	(District) 	violated the 	Educational 	Employment 	Relations
Act 	(EERA) 	Section 3543.5 (a) 	and 	(b) 	by retaliating against you
for your participation 	in protected activities. 	The original
charge 	in this 	case 	was 	a 	request 	for repugnancy review of 	the
"arbitration hearing on April 	15, 	1997, 	that pertained to unfair
practice 	charges 	LA-CE-3699 	and LA-CO-714"1 that 	you 	filed on
July 23, 	1998. 	You further requested to reactivate unfair
practice 	charge LA-CE-3699.
As 	I 	indicated to you in my letter dated December 	7, 	1998,
(attached) 	the 	above-referenced charge 	requesting 	repugnancy
review of 	the 	arbitrator's 	award was 	untimely and 	the 	Public
Employment 	Relations 	Board 	(PERB) 	lacked 	jurisdiction to do
anything other than dismiss it. 	Further, 	the December 7, 	1998,
warning 	letter 	stated 	that 	you have 	no 	issues 	before 	PERB which
have not 	been either 	settled, 	withdrawn, 	or dismissed without
leave 	to 	amend. 	You were 	advised that 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts 	which would correct 	the
deficiencies 	explained 	in 	the 	warning 	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
December 17, 	1998, 	the charge would be dismissed. 	I 	later
extended that deadline 	to December 28, 	1998. 	On December 27,
1998, 	you 	filed your amended charge by certified mail.
1 Unfair practice 	charge 	LA-CO-714 	was 	addressed 	in a
separate 	letter 	as 	it 	concerns 	the United Faculty Association of
North Orange County 	(Association), 	and not 	the employer, 	North
Orange County Community College District, 	the 	subject 	of 	this
charge.
r
' 	_,.

LA-CE-3965
Dismissal 	Letter
Page 2
In regard to 	the 	timeliness 	of 	your 	filing, 	you assert 	that 	your
repugnancy 	review 	request 	should be 	considered 	timely because 	you
could 	not 	confirm that 	the 	arbitration proceedings 	were 	unfair
and 	irregular until 	April 	1998, 	when you discovered the American
Arbitration Association had no 	record of 	the 	arbitration. 	You
believe 	the 	unlawful 	conduct 	is 	a 	continuing act 	of 	retaliation
and 	a 	continuing breach of 	the 	contract 	because 	you have 	been
denied 	the 	right 	to properly grieve 	the 	retaliation 	against 	you
and 	in 	this 	regard 	the 	arbitration process 	has 	proven 	futile.
After additional 	investigation, 	I 	conclude 	that 	the amended
charge 	fails 	to 	state 	a prima 	facie violation of 	the 	EERA within
the 	jurisdiction of 	PERB 	for 	the 	reasons 	that 	follow.
The 	Charge 	is 	Untimely
As 	stated 	in 	the warning 	letter, 	the 	Board's 	jurisdiction 	is
limited by a 	six-month 	statute 	of 	limitations 	period. 	EERA
section 3541.5 (a) (1) 	provides 	the Board shall not 	"[i]ssue 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." 	You 	state 	that 	you could not 	confirm that 	the
arbitration process was 	"unfair and irregular" 	until April 	1998,
suggesting 	that 	that 	date 	should be 	used 	in 	determining whether
your filing of July 23, 	1998, 	is timely. 	Page 4 of the warning
letter 	sets 	forth 	the 	statutory limitations 	period of 	six months
for unfair labor practices. 	If we 	consider the date of 	the
arbitration hearing, 	or even the date 	of 	receipt 	of 	the
arbitrator's 	award as 	the date 	of 	the unlawful 	conduct 	for your
repugnancy review, 	the charge 	is 	still untimely. 	(You received
the arbitrator's opinion of the April 	15, 	1997, 	hearing on June
3, 	1997, 	and 	filed the 	repugnancy review request 	on July 23,
1998.). 	Your inability to 	find counsel 	or to 	"confirm" 	your
belief 	that 	the 	arbitrator's 	opinion was 	repugnant 	to EERA does
not 	toll 	the 	statute 	of 	limitations 	as 	discussed 	in the warning
letter.
Not 	a 	Continuing Violation
In your amended charge you assert 	that 	"the unlawful 	conduct 	is 	a
continuing 	act 	of 	retaliation 	and a 	continuing breach of 	the
contract 	because 	[you] 	have been denied the 	right 	to grieve 	the
retaliation against 	[you], 	and in this regard, 	the arbitration
process 	proved 	futile."
PERB has 	recognized 	"continuing violations" 	of 	certain types 	of
claims 	to bring 	them within 	its 	jurisdiction even 	if 	the 	original
conduct 	was 	outside 	the 	six-month period. 	In San Dieguito Union
High School 	District 	(1982) 	PERB Decision No. 	194 	(San Dieguito)
the 	Board 	found 	that 	a 	continuing violation would only be 	found
(

- -
LA-CE-3965
Dismissal 	Letter
Page 3
where 	active 	conduct 	or grievances 	occurred within 	the
limitations 	period 	that 	independently 	constituted 	an 	unfair
practice. 	[Citations 	omitted.] 	Examples 	of 	continuing
violations 	include 	the 	monthly withholding 	of 	union dues 	from the
union 	"since 	the 	failure of 	the employer to 	transmit 	the dues 	to
the 	union was 	repeated 	each month upon 	receiving 	the 	union's
request 	for 	the 	dues." 	(San Dieguito at 	page 	9.) 	A continuing
violation 	is 	not 	found where 	the 	employer's 	conduct 	during 	the
limitations 	period 	constituted 	an unfair practice 	only by 	its
relation to 	the 	original 	offense. 	(El 	Dorado Union High School
District 	(1984) 	PERB Decision No. 	382 	at p. 	4.) 	Here the conduct
you 	complained of 	against 	the 	District 	concerns 	the 	original
filing of 	the 	unprofessional 	conduct 	notice 	and 	is 	not 	a
continuing 	violation.
Repugnancy 	Review
You 	also 	make 	several 	additional 	statements 	on why you disagree
with 	the 	arbitrator's 	decision 	and 	conclude 	that 	it 	was 	repugnant
to 	the EERA. 	However, 	you have 	failed to produce 	facts which
demonstrate 	that 	the 	arbitrator's 	decision 	is 	"clearly repugnant"
or 	"palpably wrong" 	as 	required. 	(Fremont 	Unified School
District 	(1994) 	PERB Decision No. 	103 6 at p. 	5) 	Your allegations
do 	not 	demonstrate 	defects 	in 	the 	arbitration process 	or 	award
which 	rise 	to 	the 	level 	of 	making 	the 	arbitration 	repugnant 	to
the 	EERA.
Warning 	Letter 	"Errors"
In addition to 	the 	above, 	your amended charge 	states 	that 	there
are three 	"errors" 	in the warning letter. 	However, 	a review of
these 	alleged errors 	indicates 	the 	following: 	In the 	first
"error", 	you explain what portions of 	the 	collective bargaining
agreement 	(CBA) 	the Association 	instructed you 	to 	include 	in the
informal 	notice 	of 	in-house grievance. 	You do not 	describe an
error but 	merely 	indicate 	why you 	filed what 	you did. 	The 	second
alleged 	"error" 	explains 	how unfair practice 	charge 	LA-CE-3837
resulted 	from your attempt 	to 	amend your earlier 	charge, 	LA-CE-
3699. 	The 	third 	"error" 	you describe would only have 	an 	impact
on 	charges 	against 	the Association and will 	not 	be 	addressed 	in
this 	dismissal 	letter 	regarding 	charges 	against 	the 	District.
Summary
Unfair 	Practice 	Charge 	LA-CE-3965 	was 	not 	filed 	in 	a 	timely
manner. 	Therefore, 	PERB does not 	have 	jurisdiction to 	issue 	a
complaint. 	There was no continuous violation, 	the arbitration
award was 	not 	irregular 	and 	is 	not 	considered 	repugnant 	to 	the
EERA. 	For these reasons 	the 	charge, 	as presently written, 	does
( 	(

LA-CE-3965
Dismissal 	Letter
Page 4
not 	meet 	the 	standards 	for a viable 	unfair practice 	against 	the
District 	and 	is dismissed; 	Therefore 	no compliant 	will 	be 	issued.
Right 	to Appeal
Pursuant 	to 	PERB 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 Regs., 	tit. 	8, 	sec. 	32635(a).) 	Any document filed
with the 	Board must 	contain the 	case name 	and number, 	and the
original 	and five 	(5) 	copies 	of 	all 	documents must be provided to
the 	Board.
A document 	is 	considered 	"filed" 	when actually 	received before
the 	close of business 	(5 p.m.) 	on the 	last 	day set 	for filing or
when mailed by certified or Express United 	States 	mail, 	as 	shown
on 	the postal 	receipt 	or postmark, 	or delivered to 	a 	common
carrier promising overnight 	delivery, 	as 	shown on 	the 	carrier's
receipt, 	not 	later than the 	last 	day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of business 	on the 	last 	day for
filing 	together with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided 	the 	filing party also places 	the 	original, 	together with
the 	required number of 	copies 	and proof of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d) ;
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
days 	following the date of 	service of the appeal. 	(Cal. 	Code
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"
(

LA-CE-3965
Dismissal 	Letter
Page 	5
must 	accompany each 	copy of 	a 	document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code 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. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135 (c) .)
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 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
JANICE 	F. 	HILL
Board 	Agent
Attachment
cc: 	Margaret 	Chidester, 	Esquire

STATE OF CALIFORNIA 	V 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3198
December 7, 	1998
Elizabeth Kiszely
Re: 	Elizabeth Kiszely v. 	North Orange County Community
College District
Unfair Practice Charge No. 	LA-CE-3965
Warning Letter
Dear Ms. Kiszely:
On July 23, 	1998, 	you filed unfair practice charge
No. 	LA-CE-3965, 	a request for repugnancy review of the
"arbitration hearing on April 15, 	1997, 	that pertained to unfair
practice charges LA-CE-3699 and LA-CO-714."1 You further
requested that unfair practice 	charge LA-CE-3699 be reactivated.
My 	investigation revealed the 	following 	information relevant 	to
this charge.
On July 30, 	1996, 	you filed unfair practice charge LA-CE-3699
alleging 	that 	the North Orange County Community College District
(District) 	retaliated against you for your participation in
protected activities. 	Among other allegations, 	you asserted that
you received a Notice of Unprofessional Conduct 	(Notice) 	in your
file on July 3, 	1996. 	On November 21, 	1996, 	a warning
letter/deferral 	to arbitration was 	issued by the Public
Employment Relations Board 	(PERB) 	regional director.2 On
1 Unfair practice charge LA-CO-714 will be addressed in a
separate letter as it concerns the union, 	United Faculty, 	and not
the employer, 	North Orange County Community College District, 	the
subject of this charge.
2Page three of the November 21, 	1996, Warning
Letter/Deferral 	to Arbitration addressed to you states the
following:
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
criteria, 	[citations omitted]
,-

January 24, 	1997,-. 	the PERB regional director dismissed and
deferred to arbitration the 	following allegations 	of adverse
action by the District: 	letters of complaint by department
members and the college president 	in January and March 1996; 	and
the June 27, 	199/6, Notice, 	received by you on July 3, 	1996. 	The
complaint which had issued on other allegations 	in the charge was
settled and withdraw	" 	n on June 10, 	1997.
On August 23, 	1996, 	you filed an informal notice of in-house
grievance against the District 	for violating District Board
Policy Sec. 	3003 	on Academic Freedom and Shared Governance
Rights, 	the Policy on Academic Personnel 	(24.2.3), 	and for
reprisal 	(24.7). 	Attempts to resolve the matter on September 10
and October 7, 	1996, were not successful. 	On October 8, 	1996,
you submitted your formal grievance against the District. 	In it,
you protested that the Notice received by you on July 3, 	1996,
was 	"unwarranted and unjust" 	because it violated your 	"academic
freedom" 	under District policy and that 	it 	"impinged" upon your
First Amendment rights. 	You further asserted that the Notice
violated the collective bargaining agreement 	(CBA) 	in several
respects. 	First, 	you claimed you were not 	"reprimanded within a
reasonable time of the incident(s) 	giving rise to the reprimand
in violation of CBA section 4.6 	[Complaint Against a Unit Member]
and CBA section 24.3.4.3 	[Failure to respond at a step in the
Grievance Procedure]. 	You also alleged that you did not
participate 	in 	"determination of the facts 	related to complaints
used by the District to make its judgment," 	in violation of CBA
sections 	4.6.2 	and 4.7.3.2 	[right 	to respond to derogatory
statement]. 	Finally you complained of 	"gender discrimination"
for displaying a pattern of assertiveness and outspokenness on
controversial 	issues 	in violation of CBA section 4.4.1 and
"Affirmative Action Policies".3
On November 6, 	1996, 	the District denied the grievance. 	The
arbitration hearing was held on April 15, 	1997, 	and the
arbitrator's opinion and award was issued on May 29, 	1997. 	The
arbitrator found that the grievance was not arbitrable under the
CBA because although the notice of unprofessional 	conduct was
akin to a reprimand subject 	to review under Article 4.5 	of the
CBA, 	the record revealed that you had already been afforded an
opportunity to review and comment on the notice of unprofessional
3Your grievance did not allege that 	the District had
violated CBA section 4.4.2 	which states 	in pertinent part:
No Unit Member shall be in any way
discriminated against, 	intimated, 	restrained
or coerced because of affiliation with or
participation in the Association, 	or the
exercise of 	rights guaranteed by Chapter
10.7, 	sections 3540-3549 of the Government
Code.
r

conduct which satisfied the requirements under that section of
the CBA.4 You 	indicated that you had received a copy of 	the
arbitrator's opinion and award on June 3, 	1997.
On September 2, 	1997, 	you filed unfair practice charge
LA-CE-3837. 	The charge stated several allegations including the
previous allegation that 	the District 	issued a Notice against you
in June 1996. 	The allegations 	in your charge were determined to
be untimely and the charge was dismissed by the regional attorney
on February 27, 	1998, 	and appealed to the Board on March 24,
1998. 	You asserted in LA-CE-3837 that a grievance had been filed
regarding the July 3, 	1996, 	Notice; 	that the grievance was
initiated October 8, 19965 and ruled inarbitrable on May 30,
1997; 	and that the arbitration was binding. 	On June 18, 	1998,
the Board adopted the Board agent's warning and dismissal 	letters
as 	the decision of 	the Board itself and dismissed unfair practice
charge LA-CE-3837 without leave to amend.
On July 23, 	1998, 	you filed this request for repugnancy review of
the May 29, 	1997, 	arbitrator's opinion and award. 	As we have
discussed, 	the above-stated allegations do not state a prima
facie violation within the jurisdiction of PERB for the reasons
that follow.
PERB Jurisdiction
Untimeliness
PERB has discretionary jurisdiction pursuant to section
3541.5(a)(2) 	of the Educational Employment Relations Act 	(EERA)
to review the arbitration award reached pursuant 	to the grievance
machinery solely for the purpose of determining whether it is
repugnant to the purposes of this chapter. 	If the Board finds
that the arbitration award is repugnant to the purposes of this
chapter, 	it shall issue a complaint on the basis of a timely
4The parties had stipulated to putting the 	following three
issues before the arbitrator: 	Is the grievance of Elizabeth
Kiszely, 	dated October 8, 	1996, 	arbitrable? 	If so, 	did the
notice of unprofessional conduct issued to Elizabeth Kiszely, 	'
dated June 27, 	1996, violate the Collective Bargaining Agreement?
If so, what is the appropriate remedy?
5In your amended charge filed on February 23, 	1998, 	you
changed your response to section 5 of the Unfair Practice Charge
form regarding the grievance procedure to 	"initiated May 13, 	1996
& August 23, 	1996". 	August 23, 	1996 will be considered the
beginning of your grievance process 	for tolling purposes based on
your letter to the District dated August 23, 	1996, 	setting forth
your intent to grieve your concerns regarding the July 3, 	1996,
notice.
3
(
3

C
filed charge, 	and hear and decide the case on the merits.
Otherwise, 	it shall dismiss the charge.
The Board's 	jurisdiction is 	limited by a six-month statute of
limitations period. 	EERA section 3541.5(a)(1) 	provides the Board
shall not, 	"[i]ssue 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." 	It is your burden, 	as the
charging party to demonstrate 	that 	the charge has been timely
filed. 	(See Tehachapi Unified School District 	(1993) 	PERB
Decision No. 	1024.)
On July 23, 	1998, 	you filed this repugnancy review 	(Unfair
Practice Charge LA-CE-3965) 	of the arbitrator's opinion and award
which you received on June 3, 	1997. 	The statute of limitations
begins running on the day of the alleged unlawful conduct, 	in
this case, 	July 3, 	1996. 	This charge was filed July 23l 	1998.
More than two years have passed since the complained-of conduct
and the filing of this charge. 	The statute provides 	for tolling
during the time the grievance is in process. 	Here you initiated
the grievance process on August 23, 	1996, 	and it concluded with
your receipt of the arbitrator's award on June 3, 	1997. 	The
grievance machinery processing took approximately nine and one-
half months. 	Even after subtraction of the nine and one-half
months, 	more than six months have elapsed between the alleged
unlawful 	conduct and the filing of this charge. 	Your repugnancy
review of 	the arbitrator's award is untimely and PERB lacks
jurisdiction to do anything other than dismiss it.
However, 	the statute of limitations is tolled only if the
grievance raises the same issues with the arbitrator as would
have been raised by the charging party at 	PERB. 	(North Orange
County Community College District 	(1998) 	PERB Decision
No. 	1268.)6 Your grievance did not raise the proper issues.
Your request 	for repugnancy review is thus even more untimely
since tolling does not apply in your case.
But even if your charge had been timely filed, 	the arbitration
award would not be considered repugnant 	to the Act 	for the
following reasons.
6The original charge 	(LA-CE-3699) 	was filed July 30, 	1996,
and deferred to arbitration on January 24, 	1997. 	The issues
deferred to arbitration were not 	included in your grievance or
your arbitration request. 	This was discussed in detail 	in the
dismissal and warning letters of unfair practice charge
LA-CE-3837 which concluded that 	"Thus, 	the October 8, 	1996
grievance did not toll the statute of limitations period. 	. 	. 	. "
4

i
Repugnancy Review
An unfair practice charge 	concerning conduct subject 	to final and
binding arbitration for parties governed by EERA, 	may be 	filed
based on a claim that the settlement 	or arbitration award is
repugnant to the applicable Act.
Section 3541.5 entitled "Unfair practice; 	jurisdiction;
procedures for investigation, 	hearing and decision" 	sets out PERB
jurisdiction in claims of 	repugnancy review and states 	in
pertinent part:
The board shall have discretionary
jurisdiction to review the settlement or
arbitration award reached pursuant 	to the
grievance machinery solely for the purpose of
determining whether it is repugnant to the
purposes of this chapter. 	If the board finds
that 	the settlement 	or arbitration award is
repugnant to the purposes of this chapter, 	it
shall 	issue a complaint on the basis of a
timely filed charge, 	and hear and decide the
case on the merits. 	Otherwise, 	it shall
dismiss the charge. 	The board 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.
PERB Regulation 32661 	covers 	repugnancy claims and states 	in
pertinent part:
(a) 	An unfair practice charge concerning
conduct subject 	to Government Code
Section 3514.5(a)(2) 	or 3541.5(a)(2) 	. . .
may be 	filed based on a claim that 	the
settlement or arbitration award is repugnant
to the applicable Act.
(b) 	The charge shall comply with the
requirements of Section 32615.
PERB will uphold an arbitration award if: 	(1) 	the matters raised
in the unfair practice charge were presented to, 	and considered
by the arbitrator; 	(2) 	the arbitration proceedings were fair and
regular; 	(3) 	the parties agreed to be bound by the award; 	and 	(4)
the award is not repugnant to the purposes and policies of the
EERA. 	(Yuba City Unified School District 	(1995) 	PERB Decision
No. 	1095; Lake Elsinore School District(1987) 	PERB Dec. No. 	646.)
55

This case 	is anomalous in that 	the issues deferred to arbitration
were never grieved or presented to the arbitrator. 	On
January 24, 	1997, 	the PERB regional director dismissed and
deferred the 	following allegations to arbitration: 	"That letters
of 	complaint by department members and the College President 	in
January and March 1996 and a July 3, 	1996 notice of
unprofessional 	conduct were 	issued in retaliation for engaging in
activity protected under the EERA."
As noted previously above and in the PERB agent's dismissal 	of
LA-CE-3837, 	the issues grieved by you did not include the issue
of 	retaliation against you for participation in activities
protected by the EERA. 	The 	issues deferred to arbitration by
PERB were not arbitrated. 	Therefore, 	there is no appropriate
arbitration award to be reviewed at this time.
Request 	to reactivate LA-CE-3699
You have also requested that PERB 	"reactivate" that portion of
unfair practice charge LA-CE-3699 	that had been deferred to
binding arbitration. 	PERB followed the jurisdictional 	rule set
out 	in the EERA and deferred that portion of 	the charge to an
arbitrator. 	You did not arbitrate that issue. 	To allow you to
reactivate that charge now would be a circumvention of the
jurisdictional limitations of the EERA. 	Therefore, 	this request
for reactivation of a portion of charge No. 	LA-CE-3699 is also
denied.7
Summary
In summary, 	you did not file Unfair Practice Charge LA-CE-3965 in
a timely manner. 	Therefore, 	PERB does not have jurisdiction to
review the case. 	You have no issues before PERB which have not
been either settled in your June 10, 	1997, 	notice of withdrawal
or dismissed without leave to amend. 	For these reasons the
charge, 	as presently written, 	does not meet the standards for a
viable unfair practice against 	the District.
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 have the
7This 	is not a situation with special 	circumstances 	in which
one party 	fraudulently concealed operative 	facts underlying an
alleged violation and prevented a timely filing. 	(Ducane Heating
Corporation and International Union of Electrical, 	Radio and
Machine Workers. AFL-CIO 	(1985) 	273 NLRB 1389.)
(
6

case number written on the top right-hand corner of 	the charge
form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be 	filed
with PERB. 	If 	I do not receive an amended charge or withdrawal
from you before December 17. 	1998. 	I shall dismiss your charge.
If you have any questions, 	please call me at 	(916) 	322-3198
ext. 322.
Sincerely,
Janice F. Hill
Board Agent