North Orange County Community College District (PERB 1376E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ELIZABETH KISZELY,

Charging Party, Case No. LA-CE-4120

Vv. PERB Decision No. 1376

NORTH ORANGE COUNTY COMMUNITY
COLLEGE DISTRICT,

February 28, 2000

Respondent .

mer Me a ee ee ee ee

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

DYER, Member: This case is before the Public Employment
Relations Board (Board) on appeal by Elizabeth Kiszely (Kiszely)
of a Board agent's dismissal (attached) of her unfair practice
charge. In her charge, Kiszely alleged that the North Orange

County Community College District violated section 3543.5(a) of

the Educational Employment Relations Act (EERA)* by retaliating

“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.

against 	her 	for her participation 	in protected activities.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the unfair practice 	charge, 	the warning and dismissal
letters 	and Kiszely's appeal. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	from prejudicial 	error and adopts
them as 	the decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-4120 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
& PERS
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
December 23, 	1999
Elizabeth 	Kiszely
RE: 	Elizabeth Kiszely v. 	North Orange 	County Community
College 	District
Unfair Practice 	Charge No. 	LA-CE-4120, 	First Amended Charg
DISMISSAL AND REFUSAL TO 	ISSUE A COMPLAINT, 	DEFERRAL TO
ARBITRATION
e
Dear Ms. 	Kiszely:
I 	indicated 	to you, 	in my attached letter dated October 	1, 	1999,
that 	the 	above-referenced 	charge 	was 	subject 	to 	deferral 	to
arbitration. 	On November 3, 	1999, 	you filed a 	first 	amended
charge. 	My 	investigation revealed 	the 	following 	information.
Elizabeth Kiszely 	is 	a 	faculty member at 	the District. 	The
faculty 	are 	exclusively 	represented by 	the 	United 	Faculty
Association 	(Association). 	The District's 	and the Association's
1998-2001 	collective 	bargaining 	agreement 	includes 	a 	grievance
procedure 	that 	ends 	in binding 	arbitration. 	Article 	4.4.2 	of 	the
parties' 	1998-2001 Agreement provides:
No 	Unit 	Member 	shall 	be 	in any way
discriminated against, 	intimidated,
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.
On August 	19, 	1998, 	Dean Janet 	Portolan sent 	a memorandum to the
faculty 	indicating 	she 	would be 	conducting 	evaluations 	in 	the
spring semester. 	On January 22, 	1999, 	Portolan scheduled
Kiszely's evaluation for March 10, 	1999. 	On February 2, 	1999,
Kiszely wrote 	to 	Chancellor Harris 	and the 	Board of 	Trustees
requesting 	that 	an 	alternate 	evaluator 	conduct 	her 	evaluation.
Kiszely explained 	that 	Portolan would not 	be 	able 	to 	conduct 	an
objective 	evaluation because 	Kiszely was 	suing 	Portolan's
housemate. 	The 	District 	did not 	respond to 	Kiszely's 	letter. 	On
February 16, 	1999, 	Kiszely reiterated her request. 	On February
24, 	1999, 	Vice Chancellor, 	Human Resources, 	Jeff Horsely, 	denied
Kiszely's 	request. 	On March 10, 	1999, 	Portolan conducted
Kiszely's 	evaluation. 	On April 	8, 	1999, 	Kiszely received the
evaluation 	which 	indicated 	her 	performance 	was 	competent.

LA-CE-4120
Dismissal 	Letter
Page 2
With 	regard 	to 	a 	faculty member's 	right 	to 	choose 	an 	alternate
evaluator, 	the 	charge 	indicated 	that 	under 	certain 	circumstances
alternate 	evaluators 	could be 	provided.
The 	District 	and 	the Association have 	agreed 	that 	faculty
evaluations 	will 	be 	performed by a peer 	review 	system. 	However,
due 	to difficulties, 	the 	District 	and Association agreed not 	to
implement 	the 	peer 	review procedures 	and 	instead 	are 	using 	the
"old" 	evaluation process. 	Under this process 	the Dean conducts
the 	faculty evaluations.
On October 	1, 	1999, 	I 	issued a Warning Letter regarding the
original 	charge. 	The Warning Letter indicated that 	the 	above-
referenced 	information 	failed 	to 	state 	a prima 	facie 	violation of
the 	EERA within the 	jurisdiction of 	PERB. 	The 	Warning Letter
indicated: 	(1) 	the 	charge met 	the requirements 	for deferring the
charge 	to binding arbitration; 	(2) 	the 	charge did not 	demonstrate
exhaustion of 	the grievance procedure was 	futile; 	and 	(3) 	that
even 	if 	the 	charge was within 	the 	jurisdiction of 	PERB 	that 	it
did not 	state 	a prima 	facie 	retaliation violation.
Review of 	the 	first 	amended 	charge 	reveals 	the 	following
information.
The 	Charging 	Party alleges 	that 	eight 	facts 	establish 	that 	"the
union would 	have 	denied a good 	faith pursuit 	of 	a 	grievance 	on
this 	matter 	to 	arbitration 	. . . " 	The 	Charging 	Party's 	eight
facts 	are 	summarized as 	follows: 	(1) 	issues deferred to binding
arbitration on January 24, 	1997, 	were not presented to an
arbitrator; 	(2) 	the union did not 	respond to her February 20,
1999 request 	for help; 	(3) 	there 	is 	"ample evidence" 	in the
materials 	on 	file 	with PERB 	that 	the Association 	ignored her
rights 	every time 	she mentioned them; 	(4) 	the deadline 	for filing
a grievance 	is past; 	(5) 	the National 	Education Association 	(NEA)
wrote her a 	letter on March 	18, 	1998 	indicating that 	it 	did not
assist 	members 	when 	they have 	legal 	actions 	pending 	against 	the
NEA or its 	state 	or 	local 	affiliates; 	(6) 	the union did not
dispute the 	Charging 	Party's 	June 	7, 	1999 	claim that 	the
grievance 	process 	was 	futile 	when 	she 	wrote 	to 	them regarding
another grievance; 	(7) 	the union was not 	adequately prepared to
pursue 	a 	grievance 	because 	the 	grievance 	representative 	for 	the
Fullerton College was on sabbatical; 	and 	(8) 	the Association's
past 	practices 	in handling 	the 	Charging 	Party's 	grievances
convinced 	the 	Charging 	Party 	that 	"the 	union would 	not 	have
agreed 	to 	pursue 	a 	grievance 	in good 	faith 	to 	arbitration."
On December 	16, 	1999 	I 	spoke with the Charging 	Party regarding
this 	charge. 	After 	I 	asked the 	Charging 	Party a 	few questions
she 	indicated 	that 	she 	did not 	feel 	comfortable 	answering my
questions 	and 	indicated 	she 	wanted me 	to 	send her 	the 	questions

LA-CE-4120
Dismissal 	Letter
Page 3
in writing. 	I 	asked whether 	another day might 	be 	better 	for us
to continue 	talking and agreed to call 	her on December 21, 	1999.
On December 21, 	1999, 	the Charging Party and I 	spoke regarding
this 	charge. 	However, 	no new 	facts were 	added as 	the 	result 	of
our discussions.
The 	above-stated 	information 	does 	not 	establish 	that 	exhaustion
of 	the grievance process 	was 	futile 	for the 	reasons 	that 	follow.
As previously noted in the warning letter, 	EERA § 	3541. (a) (2)
does 	not 	require 	exhaustion 	of 	the 	grievance procedure 	when
resort 	to 	that 	procedure would be 	futile. 	Futility may be 	found
when 	the 	arbitration process 	itself 	is 	at 	issue 	or when the
association 	is 	unwilling 	to 	take 	the grievance 	to 	arbitration.
(State 	of 	California 	(Department 	of 	Parks 	and Recreation) 	(1995)
PERB Decision No. 	1125.) 	However, 	mere animosity between the
grievant 	and the union is 	insufficient, 	the grievant 	must
demonstrate 	the 	union's 	unwillingness 	to pursue 	the matter.
(State of 	California 	(Department of Corrections) 	(1986) 	PERB
Decision No. 	561-S.) 	In State 	of California 	(Department of
Developmental 	Services 	(1985) 	PERB Decision No. 	Ad-145-S, 	the
Board 	deferred 	a 	charge 	to 	arbitration when 	the 	charging party
failed 	to provide 	"evidence 	that 	the 	union has 	acted 	in
furtherance 	of, 	or even condones, 	the 	employer's 	action 	. . . "
The 	Board 	noted 	that 	there 	was 	no 	indication 	that 	the 	charging
party had 	requested 	the 	union's 	assistance 	or 	that 	the 	union had
refused to 	represent 	him. 	The 	Board cited with approval 	federal
caselaw 	indicating 	that 	futility 	required 	a 	direct 	showing 	that
the 	union 	had 	committed 	itself 	to 	a position 	in 	conflict 	with 	the
interests 	of 	the grievants. 	(State of 	California 	(Department 	of
Developmental Services), 	supra.)
Here, 	the 	Charging 	Party presented 	information 	indicating that 	it
was 	her belief 	that 	the Association would not 	have 	pursued a
grievance 	on her behalf. 	However, 	speculation that 	a union would
not 	be 	supportive 	of 	a grievance 	does 	not 	demonstrate 	that 	resort
to 	the grievance 	process 	would be 	futile. 	(State 	of 	California
(Office of Emergency Services) 	(1995) 	PERB Decision No. 	1122.)
The 	facts 	indicate 	that 	the 	Charging 	Party did not 	ask 	the
Association 	to 	file 	a grievance 	on her behalf. 	Nor did the
Charging 	Party 	file 	a grievance 	on her own behalf, 	and then
request 	the Association's help with the grievance. 	Thus, 	the
charge's 	allegation 	that 	the Association would not 	have pursued 	a
grievance 	on 	the 	Charging 	Party's 	behalf 	is 	not 	based any
position 	taken by 	the 	Association with 	regard 	to 	the 	issue 	raised
by this 	unfair practice 	charge.
In support 	of 	her argument 	that 	arbitration would be 	futile, 	the
Charging 	Party 	cited 	a Warning 	Letter 	in Unfair 	Practice 	Charge
LA-CE-3965, 	and alleged that 	the 	issues 	deferred 	to binding

LA-CE-4120
Dismissal 	Letter
Page 4
arbitration on January 24, 	1997 	were 	not 	presented 	to 	an
arbitrator. 	In other words, 	the 	Charging Party argues 	that
because 	the 	issues 	in that 	charge were not 	arbitrated 	the
allegations 	in 	the 	instant 	charge 	would not 	have 	been 	arbitrated.
However, 	as 	explained 	in the 	Warning Letter and 	subsequent
Dismissal 	Letter 	in that 	charge, 	the reason that 	the 	issues were
not 	arbitrated was 	because 	the 	grievance 	was 	technically
deficient.1 The 	charge 	does 	not 	demonstrate 	that 	a properly
filed grievance 	would not 	have 	been 	appropriately processed
through 	the 	grievance procedure.
The 	Charging 	Party also argues 	that 	there 	is 	"ample 	evidence" 	in
the 	materials 	on 	file 	with 	PERB 	that 	the Association 	ignored her
rights 	every time 	she mentioned them. 	However, 	facts presented
in United 	Faculty Association 	of 	North Orange 	County 	Community
College District 	(1998) 	PERB Decision No. 	1269 	indicate that 	the
Association had helped the 	Charging 	Party 	in the 	past. 	Facts
presented 	in 	United 	Faculty Association 	of 	North Orange 	County
(1999) 	PERB Decision 	1343 	also 	indicate 	that 	the Association has
helped the 	Charging 	Party 	in 	the past. 	That 	decision 	indicates
that 	the Association 	took a grievance 	to binding 	arbitration on
the 	Charging 	Party's 	behalf.
The 	Charging 	Party alleges 	the 	deadline 	for 	filing 	a grievance
has past 	and 	therefore arbitration would be 	futile. 	However, 	the
Board has 	held 	that 	a 	charging party's 	failure 	to 	use 	the
grievance process 	in accordance 	with the 	terms 	of 	the 	agreement,
even 	if 	that 	precludes 	further pursuit 	of 	the grievance, 	and
arbitration, 	does 	not 	create 	futility. 	(State of 	California
(Office of Emergency Services 	(1995) 	PERB Decision No. 	1122;
Desert 	Sands 	Unified 	School 	District 	(1995) 	PERB Decision No.
1102; 	Eureka City School District 	(1988) 	PERB Decision No. 	702.)
With regard to 	the March 	18, 	1998 	letter from the NEA, 	the 	first
amended charge 	alleges 	the 	letter 	shows 	the 	union would have
denied a 	request 	to pursue 	a grievance 	in good 	faith.2 The
first 	amended 	charge 	included 	the 	following 	quote:
You 	are 	currently 	involved 	in a 	Duty of 	Fair
Representation 	action 	filed with 	the 	Public
Relations 	Employment 	Board 	[sic] 	against
1The Warning 	Letter 	and 	subsequent 	Dismissal 	Letter 	in 	LA-
CE-3695, 	were 	upheld in North Orange County Community College
District 	(1999) 	PERB Decision No. 	1342.)
2NEA's 	feelings 	regarding 	grievances 	are 	nevertheless
tangential 	to 	the 	issue 	at 	hand 	since 	the 	duty of 	fair
representation 	is 	owed by the 	exclusive 	representative, 	not 	NEA.

LA-CE-4120
Dismissal 	Letter
Page 5
CTA...As 	a matter of 	policy, 	NEA does 	not
assist 	members 	when 	they have 	legal 	action
pending 	against 	NEA or 	its 	state 	or 	local
affiliates. 	I 	regret 	that 	there 	is no
assistance 	that 	NEA can provide 	you.
[omission 	in original]
s
The March 	18, 	1999 	letter was 	in response 	to two 	requests by the
Charging 	Party: 	(1) 	for the NEA to help her pursue 	her employment
dispute against 	her employer; 	and 	(2) 	for the NEA to help her
pursue 	her 	duty 	of 	fair 	representation unfair practice 	charge
against 	the Association. 	The 	letter 	indicates 	that 	the NEA will
not 	help 	her 	with 	the 	claim against 	the 	employer because:
Your 	local 	affiliate 	and CTA are 	responsible
for 	determining 	the 	best 	manner 	in which 	to
pursue 	grievances 	under 	the 	labor 	agreement
between 	the 	NOCCD 	and 	the 	United
Faculty/CCA/CTA.
The 	quoted portion of 	the 	letter 	in 	the 	first 	amended 	charge
refers 	to 	the 	Charging Party's 	second request, 	i.e., 	whether the
NEA would 	help 	her pursue 	her 	unfair practice 	charge 	against 	the
Association. 	The 	letter actually states:
You 	are 	currently 	involved 	in a Duty of 	Fair
Representation 	action 	filed with 	the 	Public
Relations 	Employment 	Board 	against 	CTA 	and
you have 	requested NEA's 	assistance 	in
pursuing this 	action. 	As 	a matter of policy,
NEA does 	not 	assist 	members 	when 	they have
formal 	legal 	action pending 	against 	NEA or
its 	state 	or local 	affiliates. 	[emphasis
added.]
Thus, 	with the omitted portion of the letter included, 	it 	is
clear 	that 	the 	NEA was 	simply 	indicating 	that 	it 	would not 	help
the 	Charging 	Party pursue 	its 	unfair practice 	charge 	against 	the
United Faculty. 	The 	letter does 	not 	indicate 	that 	the 	United
Faculty would 	fail 	to 	fairly represent 	her 	in a 	grievance 	against
her employer. 	Moreover, 	the March 18, 	1998 	letter predates 	the
Charging Party' 	receipt of her evaluation on April 	8, 	1999.
The 	Charging 	Party's 	other arguments 	similarly 	fail. 	The mere
fact 	that 	the 	Association did not 	challenge 	the 	Charging 	Party's
June 	7, 	1999 	claim that 	the grievance process was 	futile 	is not
dispositive 	of 	the 	issue. 	Futility is 	similarly not 	established
by a grievance 	representative's 	Spring 	sabbatical. 	The
September 	1, 	1999 Association memorandum naming 	the 	grievance
representative 	named 	eleven other 	individuals, 	and 	indicated 	the

LA-CE-4120
Dismissal 	Letter
Page 6
faculty 	could 	"contact 	any member 	of 	the 	negotiating 	team or 	the
Board of 	Directors." 	As 	discussed previously, 	the 	Charging 	Party
sent 	a single 	letter on February 20, 	1999, 	and did not 	attempt 	to
contact 	any of 	the 	named 	representatives. 	The 	absence 	of 	one
representative 	does 	not 	establish 	that 	the 	entire 	grievance 	and
arbitration process 	is 	futile.
Finally, 	the 	Charging 	Party believes 	that 	the Association's past
practice 	in handling 	her grievances was 	convincing 	evidence 	that
the 	"the 	union would not 	have 	agreed to pursue 	a grievance 	in
good 	faith to 	arbitration." 	As 	discussed previously, 	Board
decisions 	indicate 	that 	the Association has 	helped 	the 	Charging
Party 	in 	the 	past 	and 	that 	Charging 	Party did not 	request 	that
the Association pursue 	a 	grievance 	on her behalf 	regarding 	the
issue 	raised 	in 	this 	unfair practice 	charge. 	The 	charge 	does 	not
establish 	that 	the Association 	committed 	itself 	to 	a 	position 	in
conflict 	with the Charging Party's 	interests. 	Thus, 	the 	charge
fails 	to 	demonstrate 	that 	exhaustion of 	the 	arbitration process
is 	futile, 	and the 	charge must be deferred to binding
arbitration.
Even 	if 	the 	charge was within the 	jurisdiction of 	PERB, 	it 	does
not 	state 	a prima 	facie 	retaliation violation. 	As 	noted 	in the
Warning Letter, 	to demonstrate 	a violation of EERA 	section
3543.5 (a), 	the charging party must 	show that: 	(1) 	the employee
exercised rights under EERA; 	(2) 	the employer had knowledge of
the exercise 	of 	those 	rights; 	and 	(3) 	the employer 	imposed or
threatened 	to 	impose 	reprisals, 	discriminated or 	threatened 	to
discriminate, 	or otherwise 	interfered with, 	restrained or coerced
the employees 	because of 	the 	exercise of 	those 	rights. 	(Novato
Unified School 	District 	(1982) 	PERB Decision No. 	210.)
The 	original 	charge 	alleged 	Kiszely engaged 	in 	the 	following
protected activities: 	(1) 	advocating faculty opinions 	contrary to
those of an immediate 	supervisor, 	(2) 	filing a civil 	lawsuit
against 	the Dean's housemate, 	and 	(3) 	questioning of 	the dean's
role 	in coercing 	faculty voting 	rights 	in 	1995.
The 	Warning 	Letter 	indicated 	that:
PERB 	has 	held that 	the 	right 	to 	self-
representation under 	EERA 	includes 	the 	right
of 	an 	individual 	to 	complain 	to her employer
about 	her unsafe 	working 	conditions.
(Pleasant Valley School District 	(1988) 	PERB
Decision No. 	708.) 	The 	instant 	charge does
not 	include 	information 	indicating 	the 	nature
of 	the 	faculty opinions 	Kiszely alleges 	she
advocated. 	Nor does 	the 	charge 	explain the
nature 	of 	the 	lawsuit 	against 	the 	Dean's

LA-CE-4120
Dismissal 	Letter
Page 7
housemate. 	Nor does 	the 	charge 	include 	facts
explaining 	the 	questions 	Kiszely posed 	to 	the
Dean in 1995. 	Thus, 	without additional
information 	it 	cannot 	be 	determined whether
these 	activities 	are 	protected under 	EERA.
Rather 	than 	providing 	specific 	information 	regarding 	the
protected 	activities 	raised 	in 	the 	original 	charge, 	the 	first
amended 	charge 	alleged 	that 	the 	Charging 	Party 	engaged 	in 	the
following protected activities: 	(1) 	pursuit 	of a grievance
against a 	statutory notice of 	just 	cause; 	and 	(2) 	pursuit of
Unfair Practice 	Charge No. 	LA-CE-3695.
The 	first 	amended 	charge 	fails 	to 	demonstrate 	the 	requisite 	nexus
between 	the 	Charging 	Party's 	protected 	activities 	and 	the 	alleged
adverse 	action. 	The 	charge 	fails 	to 	indicate when 	the 	Charging
Party 	filed 	a 	grievance 	against 	a 	statutory notice 	of 	just 	cause.
Thus, 	timing 	cannot 	be established. 	The 	Charging Party filed
LA-CE-3695 	on July 22, 	1998, 	more than seven months 	before the
alleged adverse 	action. 	Thus, 	the 	charge 	does not 	demonstrate
timing. 	Even 	if 	the 	charge demonstrated timing, 	that 	factor
alone 	is 	insufficient. 	(Moreland Elementary School 	District
(1982) 	PERB Decision No. 	227.)
The 	first 	amended 	charge 	alleges 	that 	the 	District 	engaged 	in
disparate 	treatment 	because 	other 	employees 	who 	had 	filed 	civil
suits 	against 	their 	supervisor's 	housemate 	had not 	been 	evaluated
by their 	supervisors. 	However, 	the charge 	does not 	include 	facts
indicating 	that 	any other 	employees 	had 	filed 	civil 	suits 	against
their 	supervisor's 	housemate. 	Nor does 	the 	charge 	provide 	facts
supporting 	its 	allegation that 	the 	Charging 	Party's 	request 	for
an exception was 	handled 	in a 	manner different 	than 	other
employees' 	requests. 	While the District's policy indicates
exceptions 	are 	a possibility, 	it 	does 	not 	require 	the District 	to
make 	an exception in every instance. 	Here, 	the District
determined 	the 	supervisor 	could 	make 	an 	impartial 	evaluation 	and
included 	this 	information 	in 	the 	denial 	of 	the 	Charging 	Party's
request. 	Thus, 	the charge 	fails 	to demonstrate 	the 	requisite
nexus, 	and must be dismissed.
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 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.

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Dismissal 	Letter
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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"
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

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Dismissal 	Letter
Page 9
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
Tammy L. 	Samsel
Regional 	Director
Attachment
cc: 	Cathie 	Fields

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
Zum
October 1, 	1999
Elizabeth 	Kiszely
RE: 	Elizabeth 	Kiszely v. 	North Orange 	County Community
College 	District
Unfair Practice Charge No. 	LA-CE-4120
WARNING 	LETTER, 	DEFERRAL 	TO ARBITRATION
Dear Ms. 	Kiszely:
In the 	above-referenced unfair 	practice 	charge 	you 	allege 	the
North 	Orange 	County 	Community 	College 	District 	(District)
violated the 	Educational 	Employment 	Relations Act 	(EERA or Act) 	§
3543.5(a) 	by 	retaliating 	against 	you 	for your participation 	in
protected 	activities. 	My 	investigation 	revealed 	the 	following
information.
Elizabeth Kiszely 	is 	a 	faculty member at 	the District. 	The
faculty 	are 	exclusively 	represented 	by 	the 	United 	Faculty
Association 	(Association). 	The District's 	and the Association's
1998-2001 	collective 	bargaining 	agreement 	includes 	a 	grievance
procedure 	that 	ends 	in binding 	arbitration. 	Article 	4.4.2 	of 	the
parties' 	1998-2001 Agreement provides:
No Unit 	Member 	shall 	be 	in any way
discriminated against, 	intimidated,
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.
On August 	19, 	1998, 	Dean Janet 	Portolan sent 	a memorandum to the
faculty 	indicating 	she 	would be 	conducting 	evaluations 	in 	the
spring semester. 	On January 22, 	1999, 	Portolan scheduled
Kiszely's evaluation for March 10, 	1999. 	On February 2, 	1999,
Kiszely wrote 	to 	Chancellor Harris 	and 	the 	Board 	of 	Trustees
requesting 	that 	an 	alternate 	evaluator 	conduct 	her 	evaluation.
Kiszely explained 	that 	Portolan would not 	be 	able 	to 	conduct 	an
objective 	evaluation because 	Kiszely was 	suing 	Portolan's
housemate. 	The 	District 	did not 	respond to 	Kiszely's 	letter. 	On
February 16, 	1999, 	Kiszely reiterated her request. 	On February
24, 	1999, 	Vice Chancellor, 	Human Resources, 	Jeff Horsely, 	denied
Kiszely's request. 	On March 10, 	1999, 	Portolan conducted
Kiszely's 	evaluation. 	The 	evaluation 	indicated Kiszely's
performance 	was 	competent.

LA-CE-4120
Warning 	Letter
Page 2
With 	regard 	to 	a 	faculty member's 	right 	to 	choose 	an 	alternate
evaluator, 	the 	above-referenced unfair practice 	charge 	indicated
that 	under 	certain 	circumstances 	alternate 	evaluators 	could be
provided.
The 	District 	and 	the Association have 	agreed 	that 	faculty
evaluations 	will 	be 	performed by 	a peer 	review 	system. 	However,
due 	to difficulties, 	the 	District 	and Association agreed not 	to
implement 	the 	peer 	review procedures 	and 	instead 	are 	using 	the
"old" 	evaluation process. 	Under this process 	the Dean conducts
the 	faculty evaluations.
The 	above-referenced 	information 	fails 	to 	state 	a prima 	facie
violation of 	the 	EERA within 	the 	jurisdiction of 	PERB 	for 	the
reasons 	that 	follow.
Section 3541.5(a) 	of 	the 	Educational 	Employment 	Relations Act
states, 	in pertinent part, 	that 	PERB shall not:
Issue 	a 	complaint 	against 	conduct 	also
prohibited by 	the 	provisions 	of 	the
[collective 	bargaining] 	agreement 	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 	Regulation
32620(b)(5) 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	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 	retaliated 	against 	Kiszely 	for 	her participation 	in
protected 	activities 	is 	arguably prohibited 	by Article 	4.4.2 	of
the 	1998-2001 	CBA. 	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. 	(See 	PERB Reg. 	32661 	[Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	32661]; Los Angeles Unified School District

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Warning 	Letter
Page 3
(1982) 	PERB Decision No. 	218; 	Dry Creek Joint Elementary School
District 	(1980) 	PERB Order No. 	Ad-8la.)
The 	Charging 	Party 	alleges 	the 	charge 	should 	not 	be 	deferred 	to
arbitration 	because 	exhaustion 	of 	the 	grievance 	procedure 	would
be 	futile. 	The 	charge alleges 	it 	is 	futile 	for three 	reasons:
(1) 	the Association will 	not 	help 	a 	faculty member who has 	filed
an unfair practice 	charge against 	them; 	(2) 	the Association
failed to 	respond to 	Kiszely's 	February 20, 	1999 	letter voicing
concern 	about 	the 	evaluation 	and 	requesting 	that 	the 	Association
help 	in preventing another grievance; 	and 	(3) 	the Association's
conduct 	in handling previous 	grievances.
EERA § 3541. (a) (2) 	does not require exhaustion of the grievance
procedure 	when 	resort 	to 	that 	procedure 	would be 	futile.
Futility m a y be 	found when 	the 	arbitration process 	itself 	is 	at
issue 	or when 	the 	association 	is 	unwilling 	to 	take 	the 	grievance
to 	arbitration. 	(State 	of 	California 	(Department 	of 	Parks 	and
Recreation) 	(1995) 	PERB Decision No. 	1125.) 	However, 	mere
animosity between the 	grievant 	and 	the 	union 	is 	insufficient, 	the
grievant 	must 	demonstrate 	the 	union's 	unwillingness 	to 	pursue 	the
matter. 	(State 	of 	California 	(Department 	of 	Corrections) 	(1986)
PERB Decision No. 	561-S.)
In the 	instant 	charge, 	the 	Charging 	Party does 	not present 	facts
demonstrating 	that 	PERB 	should bypass 	the 	statutory 	deferral
requirement. 	The 	District 	and 	the Association negotiated 	a
grievance 	and 	binding 	arbitration 	procedure 	incorporating
discrimination 	allegations 	arising under the 	EERA. 	The 	facts 	of
the 	instant 	charge 	do 	not 	demonstrate 	that 	the 	Charging 	Party
should be 	able 	to 	opt 	out 	of 	this 	contractual 	mechanism without
any evidence 	that 	it 	has 	been 	invoked at 	all.
The 	charge 	does 	not 	allege 	facts 	establishing Kiszely attempted
to pursue 	a grievance 	on this 	issue 	to arbitration. 	The 	charge
does 	not 	indicate 	Kiszely asked 	the Association 	to 	file 	a
grievance. 	Nor does 	the 	charge 	demonstrate 	Kiszely 	filed a
grievance 	on her own behalf, 	and 	then 	requested 	the Association
to pursue 	it 	into arbitration. 	The 	charge 	indicates, 	only that
Kiszely 	contacted 	the 	Association before 	the 	District 	took 	the
adverse 	actions 	alleged herein 	and 	requested 	they help 	take
preventive 	measures. 	The 	charge presents 	no 	facts 	establishing
that 	the Association denied, 	or would have 	denied 	if 	asked, 	a
request 	to pursue 	a 	grievance 	on this 	matter 	to 	arbitration.
Thus, 	the 	charge 	fails 	to demonstrate 	futility and must 	be
dismissed 	and 	deferred 	to 	arbitration.
Even 	if 	the 	charge was within the 	jurisdiction of 	PERB, 	it 	does
not 	state 	a prima 	facie 	retaliation violation. 	To 	demonstrate 	a
violation of 	EERA section 3543.5(a), 	the 	charging party must 	show

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Warning 	Letter
Page 4
that: 	(1) 	the 	employee exercised rights under EERA; 	(2) 	the
employer had knowledge of 	the 	exercise of 	those 	rights; 	and
(3) 	the employer 	imposed or threatened to 	impose 	reprisals,
discriminated 	or 	threatened 	to 	discriminate, 	or 	otherwise
interfered with, 	restrained or 	coerced the 	employees 	because 	of
the 	exercise 	of 	those 	rights. 	(Novato Unified School 	District
(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School District
(1979) 	PERB Decision No. 	89; 	Department of Developmental 	Services
(1982) 	PERB Decision No. 	228-S; 	California State University
(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
Although the 	timing 	of 	the 	employer's 	adverse 	action 	in 	close
temporal 	proximity 	to 	the 	employee's 	protected 	conduct 	is 	an
important 	factor, 	it does not, 	without more, 	demonstrate the
necessary connection 	or 	"nexus" 	between 	the 	adverse 	action 	and
the 	protected 	conduct. 	(Moreland Elementary 	School 	District
(1982) 	PERB Decision No. 	227.) 	Facts 	establishing one or more
of 	the 	following 	additional 	factors 	must 	also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's 	departure 	from established 	procedures 	and 	standards
when dealing with the 	employee; 	(3) 	the 	employer's 	inconsistent
or contradictory justifications 	for its 	actions; 	(4) 	the
employer's 	cursory 	investigation of 	the 	employee's 	misconduct;
(5) 	the employer's 	failure 	to offer the 	employee 	justification at
the 	time 	it 	took action or the offering of 	exaggerated, 	vague, 	or
ambiguous 	reasons; 	or 	(6) 	any other 	facts which might 	demonstrate
the 	employer's 	unlawful 	motive. 	(Novato Unified 	School 	District,
supra; 	North Sacramento 	School 	District 	(1982) 	PERB Decision
No. 2 64.)
The 	instant 	charge 	alleges 	Kiszely engaged 	in 	the 	following
protected activities: 	(1) 	advocating faculty opinions 	contrary to
those of 	an immediate 	supervisor, 	(2) 	filing a civil 	lawsuit
against 	the Dean's housemate, 	and 	(3) 	questioning of 	the dean's
role 	in coercing 	faculty voting 	rights 	in 	1995.
PERB 	has 	held 	that 	the 	right 	to 	self-representation under EERA
includes 	the 	right 	of 	an 	individual 	to 	complain to her employer
about 	her unsafe 	working 	conditions. 	(Pleasant 	Valley 	School
District 	(1988) 	PERB Decision No. 	708.) 	The 	instant 	charge does
not 	include 	information 	indicating 	the 	nature 	of 	the 	faculty
opinions 	Kiszely alleges 	she 	advocated. 	Nor does 	the 	charge
explain the 	nature 	of 	the 	lawsuit 	against 	the Dean's 	housemate.
Nor 	does 	the 	charge 	include 	facts 	explaining 	the 	questions
Kiszely posed to 	the 	Dean in 	1995. 	Thus, 	without 	additional
information 	it 	cannot 	be 	determined whether 	these 	activities 	are
protected 	under 	EERA.
The 	charge names 	two adverse 	actions: 	(1) 	the denial 	of 	Kiszely's
request 	for an alternate evaluator; 	(2) 	the subsequent

LA-CE-4120
Warning 	Letter
Page 5
evaluation. 	A review of 	the 	evaluation 	itself 	does 	not 	reveal
any negative 	statements. 	However, 	even 	if 	Kiszely's 	activities
are protected 	and 	the 	actions 	are 	adverse, 	the 	charge 	does 	not
demonstrate 	nexus. 	The 	charge 	does 	not 	indicate when 	the 	first
two activities 	occurred, 	and the 	third occurred 	in 	1995. 	The
alleged 	adverse 	actions 	occurred 	in 	February and March 	1999, 	four
years 	later. 	Thus, 	the 	charge does not 	establish that 	the
District 	took adverse 	action close 	in 	time 	to 	these 	activities.
For 	the 	above-stated 	reasons 	the 	charge 	fails 	to 	demonstrate 	a
prima 	facie 	violation within 	the 	jurisdiction of 	PERB 	and must 	be
dismissed.
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 	have 	the 	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 October 	8, 	1999, 	I
shall 	dismiss your charge. 	If you have 	any questions, 	please
call me at 	(415) 	439-6944.
Sincerely,
TAMMY L. 	SAMSEL
Regional 	Director