Los Angeles Community College District (PERB 1377E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAM POOLSAWAT,
Charging 	Party,
v.
LOS ANGELES 	COMMUNITY
COLLEGE DISTRICT,
Respondent.
Case No. 	LA-CE-4069
PERB Decision No. 	1377
February 28, 	2000
Appearance: 	Thomas W. 	Gillen, 	Attorney, 	for Sam Poolsawat.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal by Sam Poolsawat 	(Poolsawat) 	of
a Board agent's 	dismissal 	(attached) 	of 	his unfair practice
charge. 	In his 	charge, 	Poolsawat alleged that 	the Los Angeles
Community College District violated 	section 3543.5(a) 	of 	the
Educational 	Employment Relations Act 	(EERA)1 by discriminating
against 	him 	for 	engaging 	in protected activities.
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.
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The Board has 	reviewed the 	entire 	record in this 	case,
including the unfair practice 	charge, 	the warning and dismissal
letters, 	and Poolsawat'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-4069 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
2
2

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1 77 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
November 3, 	1999
Ken Hagan
Law Offices 	of 	Thomas W. 	Gillen
2501 E. 	Chapman Avenue, 	Suite 	100
Fullerton, 	CA 	92831
Re: 	DISMISSAL 	OF 	CHARGE/REFUSAL TO 	ISSUE 	COMPLAINT
Sam Poolsawat 	v. 	Los Angeles 	Community College 	District
Unfair 	Practice 	Charge No. 	LA-CE-4069; 	First Amended Charge
Dear Mr. 	Hagan & Mr. 	Poolsawat:1
The above-referenced unfair practice charge, 	filed May 25, 	1999,
alleges 	the 	Los 	Angeles 	Community College 	District 	(District)
discriminated 	against 	you because 	of 	your protected 	activity.
You 	allege 	this 	conduct violates 	Government 	Code 	section 	3543.5
of 	the Educational 	Employment 	Relations Act 	(EERA or Act).
I 	indicated 	to you, 	in my attached letter dated 	September 	22,
1999, 	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
September 29, 	1999, 	the charge would be dismissed.
On September 27, 	1999, 	Charging Party's representative 	telephoned
me 	and requested an extension to 	file 	an amended charge. 	I
extended the 	deadline until 	October 6, 	1999. 	On October 	6, 	1999,
Charging 	Party's 	representative 	requested 	a 	second 	extension. 	In
response, 	I 	extended the deadline until October 13, 	1999.
1 Charging 	Party 	is 	the 	authorized 	representative 	until 	a
Notice of Appearance 	is 	filed with this office. 	To date, 	no
Notice 	of Appearance has been 	filed. 	However, 	after 	issuance of
the Warning Letter on September 22, 	1999, 	Mr. 	Hagan telephoned
this office on several occasions, 	stating he was Mr. 	Poolsawat's
representative. 	On October 20, 	1999, 	Mr. 	Hagan stated, 	in
response 	to my 	inquiry, 	that 	he was 	the 	designated 	representative
in this matter. 	For this 	reason, 	the Warning Letter was 	served
on both 	individuals.

Dismissal 	Letter
LA-CE-4069
Page 2
On October 	18, 	1999, 	I 	received a 	first 	amended charge 	from Mr.
Poolsawat.2 While 	reviewing 	the 	charge, 	I 	noticed Charging
Party 	failed 	to 	serve 	the 	amended 	charge 	on the 	Respondent 	as
required by 	PERB Regulation 3 214 0 	and as 	stated 	in my September
22, 	1999, 	letter. 	On October 20, 	1999, 	I telephoned Charging
Party's 	representative Mr. 	Hagan regarding 	this problem. 	Mr.
Hagan 	stated 	the 	amended 	charge 	would be 	served 	on 	Respondent 	and
a proper proof 	of 	service 	would be provided to 	this 	office. 	On
October 22, 	1999, 	Charging Party served the 	amended charge on the
District.
The 	amended 	charge 	presents 	three 	issues 	also 	raised 	in 	the
original 	charge: 	(1) 	Discrimination in overload credit; 	(2)
Discrimination regarding conference 	attendance 	in May 	1998; 	and
(3) 	Discrimination by Dean Herman Bacchus 	regarding 	conference
reimbursement 	in September 	1998.3 However, 	as 	demonstrated
below, 	each of 	the 	allegations 	is 	time barred, 	and thus must 	be
dismissed.
I. 	Overload Claim
Government 	Code 	section 3541.5(a)(1) 	prohibits 	the 	Board 	from
issuing 	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 	case of discrimination such as
that 	alleged herein, 	the 	statute 	of 	limitations 	begins 	to run
when 	charging party discovered 	the 	disparate 	treatment. 	(Peralta
Community College District 	(1998) 	PERB Decision No. 	1281.) 	Facts
2 PERB 	Regulation 32135 	states 	in relevant 	part:
All 	documents 	shall 	be 	considered 	"filed"
when 	actually 	received 	by 	the 	appropriate
PERB office 	before 	the 	close 	of 	business 	on
the 	last 	day 	set 	for 	filing 	or when mailed by
certified 	. 	. 	. 	mail, 	as shown on the postal
receipt 	. 	. 	. 	not later than the last day set
for 	filing 	and 	addressed 	to 	the 	proper 	PERB
office.
Charging 	Party 	sent 	the 	amended 	charge 	certified mail 	on October
14, 	1999, 	one day after the 	last 	day set 	for filing.
3 The 	amended charge 	does 	not 	address 	the 	only 	timely
allegation considered in my September 22, 	1999, 	letter; 	that 	is,
the 	allegation 	that 	the 	District 	discriminated 	against 	Charging
Party by denying his 	tort 	claim. 	Therefore, 	that 	allegation is
dismissed 	for 	the 	reasons 	I 	provided in my September 22, 	1999,
letter.

Dismissal 	Letter
LA-CE-4069
Page 3
provided below 	demonstrate 	Charging 	Party was 	aware 	of 	the
disparate 	treatment, 	and thus 	this 	allegation is 	untimely.
The 	original 	charge 	contends 	that 	from 	1980 	through 	1984,
Charging 	Party had 	a 	workload 	overload 	for which 	he 	was 	not
compensated. 	From 1990 	to 	the present, 	Charging 	Party has been
attempting to resolve 	this matter. 	My September 22, 	1999,
letter, 	indicated 	this 	allegation was 	time barred 	as 	the 	adverse
action took place 	in the 	1980's. 	The 	amended charge 	contends
Charging 	Party did not 	become 	aware 	that 	he 	was 	being 	disparately
treated until 	April 	1999,4 thus 	making 	the 	allegations 	timely.
More 	specifically, 	Charging 	Party alleges 	in paragraph 	10:
At 	no 	time 	prior 	to 	the 	December 	1998-April
1999 	period, 	did the 	Charging 	Party have 	any
reason to believe 	that 	his 	colleagues 	had
been paid 	for 	their past 	class 	assignments
which 	they have 	carried 	as 	hourly 	overload
since 	1970's. 	(emphasis 	in original)
However, 	facts presented by Charging Party, 	himself, 	demonstrate
the 	above-quoted 	statement 	is 	false, 	and 	further demonstrate
Charging 	Party knew as 	early as 	1992, 	that 	fellow employees 	had
been paid 	for 	their hourly overloads.5
On January 29, 	1992, 	Charging Party wrote a 	letter to union
president 	Gwen Hill. 	In this 	letter, 	Charging 	Party discusses
the 	settlement 	offer made 	by 	the 	District 	regarding 	the 	overload
claim, 	and 	further explains 	his 	reasons 	for not 	agreeing 	to 	the
settlement. 	Specifically, 	Charging Party contends 	that 	he 	should
not 	be 	required 	to 	sign a 	general 	release 	in accepting 	the
settlement 	and 	further 	states:
Six 	other biology 	instructors 	in my
department 	received 	backpay 	recently. 	They
4 The 	amended charge 	actually alleges 	in paragraph 	9, 	that
Charging 	Party became 	aware 	of 	the 	disparate 	treatment 	in April
1998. 	However, 	it 	is 	assumed that 	Charging Party is 	alleging
knowledge 	in April 	1999.
5 In Temple 	City 	Unified 	School 	District 	(1990) 	PERB
Decision No. 	843, 	the Board stated that 	a Regional Attorney may
not 	resolve 	disputes 	of material 	facts 	between a 	Charging 	Party
and a Respondent. 	However, 	the 	factual 	dispute presented herein
is 	not 	the 	type 	of 	factual 	dispute 	discussed 	in Temple 	City.
Herein, 	Charging 	Party provided documents 	that 	demonstrate 	his
allegations 	are 	false. 	This 	type 	of 	dispute may be 	resolved by a
Board Agent 	in the 	investigation of 	a 	charge.

Dismissal 	Letter
LA-CE-4069
Page 4
received 	their paychecks 	without 	signing 	a
release 	form of 	the 	type 	which 	I 	was 	required
to sign.
Additionally, 	on December 17, 	1997, 	Charging Party wrote another
letter to 	the union; 	this 	time 	to 	then-union president 	Karl
Friedlander. 	Regarding his 	overload backpay claim, 	Charging
Party 	stated:
B. 	Unpaid Teaching Overload Assignment 	(a
separate 	issue 	from MBRS). 	Due to my
involvement 	with ELAC MBRS, 	the College 	and
the 	College 	District 	also 	have 	refused 	to 	pay
for 	my past 	unpaid 	teaching 	overload.
Several 	faculty members 	in my department 	had
received 	their 	unpaid 	overload 	several 	years
ago. 	(emphasis added)
Indeed, 	this 	letter 	even demonstrates 	Charging 	Party belief 	that
he 	was 	disparately 	treated 	for his 	involvement 	with 	the 	Minority
program 	and 	his 	whistle-blowing 	activity 	regarding 	that 	program.
Thus, 	despite 	the 	amended charge's declarations, 	facts presented
demonstrate 	Charging 	Party knew 	fellow 	employees 	were 	paid 	for
their overload assignments 	in 	1992. 	Charging Party makes 	no
attempt 	to 	explain 	the 	contradiction 	raised by 	the 	two 	documents
he provided. 	As 	such, 	they must 	be 	credited and the 	allegation
is 	dismissed 	as 	time 	barred.
II. 	May 	1998 	Conference Attendance
On May 4, 	1998, 	Charging Party filed a 	request 	to attend a
conference 	at 	the Massachusetts 	Institute 	of 	Technology, 	in June
1998. 	Charging 	Party was 	scheduled to 	teach during 	the 	summer
session. 	On May 26, 	1998, 	Charging Party's 	request was denied as
the District 	stated 	it 	was 	unable 	to 	accommodate 	summer
conference 	requests. 	Shortly after this 	denial, 	Charging Party
filed a grievance 	alleging disparate 	treatment. 	Specifically, 	in
August 	1998, 	Charging 	Party stated to District 	administrators
that 	other 	employees 	were 	allowed 	to 	attend graduations 	and
conferences 	during 	the 	summer 	session.
As stated above, 	and in my September 22, 	1999, 	letter, 	the
statute 	of 	limitations 	requires 	charges 	be 	filed within 	six
months 	of 	the 	conduct 	giving 	rise 	to 	the unfair practice. 	Since
Charging 	Party knew 	in the 	summer of 	1998 	that 	he 	was 	denied
conference 	attendance 	and potentially discriminated 	against, 	the
allegation 	is 	time 	barred and 	thus 	must 	be 	dismissed.

Dismissal 	Letter
LA-CE-4069
Page 5
III. 	Conference 	Reimbursement 	for 	July 	1998
From July 	12 	through July 	16, 	1999, 	Charging 	Party attended a
conference in Atlanta, 	Georgia. 	In August 	1998, 	Charging Party
filed 	a 	request 	for 	reimbursement 	with 	the 	proper District
office. 	On September 9, 	1998, 	the request 	for reimbursement was
denied by Dean Herman 	Bacchus.
On 	September 	15, 	1998, 	Charging 	Party filed a grievance 	over the
District's 	failure 	to 	reimburse 	him. 	The grievance 	alleged
disparate 	treatment 	and discrimination. 	On September 	16, 	1998,
the 	District 	admitted 	it 	made 	a mistake 	in denying 	the
reimbursement 	and 	requested 	Charging 	Party 	refile 	his 	request 	for
payment.
It 	is 	unclear whether Charging 	Party refiled his 	request.
However, 	such a 	fact 	is 	immaterial, 	give that this 	allegation is
also 	time 	barred 	as 	Charging 	Party knew 	in 	September 	1998 	of 	the
adverse 	action and alleged disparate 	treatment. 	As 	such, 	this
allegation 	is 	also 	dismissed as 	untimely.
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 	(2 0) 	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.)

Dismissal 	Letter
LA-CE-4069
Page 6
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
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.)

Dismissal 	Letter
LA-CE-4069
Page 7
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
Kristin L. 	Rosi
Regional 	Attorney
Attachment
cc: LACCD

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1 77 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)439-6940
September 22, 	1999
Law Offices 	of 	Thomas W. 	Gillen
2501 E. 	Chapman Avenue, 	Suite 	100
Fullerton, 	CA 	92831
Re: 	WARNING LETTER
Sam Poolsawat 	v. 	Los Angeles 	Community College 	District
Unfair 	Practice 	Charge No. 	LA-CE-4069
Dear Mr. 	Gillen:1
The above-referenced unfair practice 	charge, 	filed May 25, 	1999,
alleges 	the 	Los Angeles 	Community College 	District 	(District)
discriminated 	against 	you 	because 	of 	your protected 	activity.
You allege 	this 	conduct 	violates 	Government 	Code 	section 	3543.5
of 	the 	Educational 	Employment 	Relations Act 	(EERA or Act).
Investigation of 	the 	charge 	revealed 	the 	following. 	You 	are
currently employed by 	the 	District 	as 	a 	Life 	Sciences 	Instructor
at 	East Los Angeles 	Community College 	(ELAC). 	As 	an Instructor,
you 	are 	exclusively 	represented by 	the American 	Federation 	of
Teachers, 	College Guild, 	Local 	1591 	(Federation). 	The District
and 	Federation 	are 	parties 	to 	a 	collective 	bargaining 	agreement
(Agreement) 	which expires on November 7, 	1999.
The 	charge 	states 	in 	its 	entirety:
Disparate 	treatment 	related 	to 	the 	way the
Charging 	Party 	administered 	minority 	programs
as 	set 	out 	in Charging 	Party's 	claim 	for
damages 	dated October 	12, 	1998 	and November
30, 	1998, 	copies attached.
In 	addition to 	the 	brief 	statement 	above, 	Charging 	Party attached
nearly 	100 	pages 	of 	additional 	materials. 	The 	relevance 	of 	these
materials 	is 	unclear 	as many documents 	are 	incomplete 	letters 	or
duplicates 	of 	the 	same exhibit, 	and lack any explanation. 	As 	the
importance of 	these 	documents 	is unclear, 	I will 	simply summarize
their detail 	herein.
1 Although 	Sam Poolsawat 	is 	the 	Charging 	Party, 	the 	charge
form 	indicates 	the 	charge 	was 	filed by 	the 	Law Offices 	of 	Thomas
Gillen. 	Therefore, 	I 	am assuming Mr. 	Gillen is Charging Party's
representative.

It 	appears 	that 	in 	1980 	through 	1984, 	Charging 	Party had a work
overload 	for which he was 	not 	compensated. 	Additionally, 	in 	1983
and 	1984, 	Charging 	Party complained about 	release 	time 	he 	was 	not
receiving. 	In 	1990, 	Charging 	Party 	filed a grievance 	over 	this
overload and 	the 	release 	time 	issue. 	It 	further appears 	the
Federation 	represented 	Charging 	Party 	during 	the 	grievance
procedure, 	although Charging 	Party 	failed to provide 	a 	copy of
the grievance 	with 	the 	charge.
On March 6, 	1990, 	the 	Federation and District met 	to discuss
Charging 	Party's 	grievance. 	During 	this meeting, 	the 	Federation
and 	District 	agreed 	to 	a 	settlement 	agreement 	which 	would 	pay
Charging 	Party 	$10,652 	for 	the 	overload 	he 	accumulated 	from 	1980
to 1990.
In September 	1990, 	the grievance 	settlement 	was presented to
Charging 	Party as 	a 	formal 	settlement 	agreement, 	containing
standard waiver 	language. 	Charging 	Party 	refused 	to 	sign 	the
settlement 	agreement, 	as he disagreed with the waiver 	language.
The 	Federation 	informed 	Charging 	Party that 	it 	would not
represent 	him 	further 	on 	this 	matter 	if 	he 	refused 	to 	sign 	the
settlement.
On September 26, 	1990, 	Charging Party sent 	a 	letter to District
administrators 	stating his 	grievance 	was 	really over 	the 	release
time 	and not 	the 	overload assignment. 	Moreover, 	Charging 	Party
reiterated his 	belief 	that 	he 	was 	entitled 	to overload pay
without 	having 	to 	sign 	the 	settlement 	agreement.
On January 29, 	1992, 	Charging Party sent 	a 	letter to the
Federation regarding his 	overload/release 	time 	grievance, 	despite
the 	Federation's 	refusal 	to 	represent 	him further. 	The
Federation did not 	respond to this 	letter. 	On March 	10, 	1992,
Charging 	Party 	sent 	another 	letter 	to 	the 	Federation 	regarding
his grievance. 	This 	letter, 	however, 	requested the 	Federation
turn over 	their grievance 	file 	to Charging 	Party's 	attorney, 	who
would be 	representing 	Charging 	Party 	in 	this 	matter. 	It 	appears
the 	Federation 	did not 	respond 	to 	this 	letter 	either.2
2 It 	appears, 	however, 	that 	Charging Party's 	representation
by an 	independent 	attorney may be 	contrary to Article 	22, 	Section
D(l), 	which states 	in relevant part:
At 	all 	grievance 	meetings 	under 	this Article,
the grievant 	shall 	be 	entitled 	to be
accompanied 	and/or 	represented 	by 	an AFT
representative(s). 	A grievant 	shall 	also be
entitled 	to 	represent 	himself/herself 	(but
may not 	be 	represented by 	any 	other person
other 	than an AFT representative) 	up 	to 	and
including 	Step 	Three 	of 	the 	Grievance
Procedure.

Warning 	Letter
LA-CE-4069
Page 3
On June 	17, 	1992, 	Charging Party sent 	another letter to the union
regarding his 	grievance. 	The 	Federation 	failed 	to 	respond. 	On
June 	24, 	1992, 	Charging Party's 	attorney sent 	a 	letter to 	the
Federation 	inquiring 	as 	to whether 	the 	Federation would be 	taking
the 	grievance 	to 	arbitration. 	It 	is 	unclear why Charging 	Party
or 	his 	attorney believed 	the 	Federation might 	take 	the 	grievance
to 	arbitration 	as 	the 	Federation had 	stated 	its 	refusal 	to pursue
the grievance 	further 	in 	1990, 	and the 	timelines 	under the
agreement 	had 	clearly 	elapsed.
On February 22, 	1993, 	Charging Party sent 	a 	letter to 	the
Federation 	inquiring 	as 	to why 	the 	Federation had not 	contacted
his 	attorney. 	The 	Federation did not 	respond. 	Documents
provided detail 	a May 26, 	1994, 	letter Charging Party sent 	to the
District 	Vice 	President 	of Academic Affairs, 	Maria Elena
Martinez. 	In this 	letter, 	Charging Party requests Ms. 	Martinez
look 	into 	the 	grievance, 	and respond to 	Charging 	Party. 	A
response 	from Ms. 	Martinez 	is 	not 	included 	in the 	documents
provided.
On December 4, 	1996, 	Charging Party sent 	another letter to Ms.
Martinez regarding the grievance. 	On March 3, 	1997, 	Charging
Party sent yet 	another letter to Ms. 	Martinez. 	It 	is unclear
what, 	if 	any, 	response Charging Party received from Ms. 	Martinez.
On May 14, 	1997, 	Charging Party sent 	a letter to Federation
representative 	Consuelo Rey, 	asking 	for assistance 	in 	reviving
the grievance. 	On May 19, 	1997, 	Consuelo Rey sent 	a 	letter to
Charging 	Party 	stating 	in 	relevant 	part:
As we 	discussed on the 	telephone, 	the 	choice
to resolve 	the MBRS grievance 	re: 	backpay
which 	is 	approximately four 	(4) 	years 	old
now, 	has 	always been at your own discretion.
The 	District 	made 	you 	an offer which you
refused to 	sign. 	If you wish to activate
this 	offer 	and 	sign 	the 	District's 	conditions
on your case, 	you need to 	contact 	Mary
Mundell 	at 	the AFT 	office 	. . . 	It 	may very
well 	have 	exceed 	the 	statute 	of 	limitations
and be 	in 	the dead 	file. 	Whatever the 	case,
it 	is 	no 	longer 	in my 	jurisdiction.
On July 14, 	1997, 	District 	representative Herb Spillman sent 	an
email 	message 	to 	another 	District 	representative 	regarding
Charging 	Party's 	grievance. 	The 	email 	states 	in relevant part:
I 	received 	the 	documents you 	sent 	to me 	re
Sam Poolsawat's 	claim 	for backpay. 	As 	I

Warning 	Letter
LA-CE-4069
Page 	4
suspected, 	he 	appears 	to be pursuing 	the 	same
issues he was 	in 	1990-1991.
Mr. 	Poolsawat 	grieved 	for back pay. 	He
rejected 	a 	settlement 	offer 	(which 	I 	believe
the union supported). 	He 	then petitioned for
a writ 	of 	mandate 	in 	superior 	court. 	His
petition was 	denied. 	The 	District 	spent 	alot
(sic) 	of 	time 	and money on this matter. 	As
far as we 	are 	concerned, 	the 	case 	is 	closed.
In 	early December 	1997, 	Charging 	Party 	filed a 	second grievance
regarding 	his 	overload assignment 	and MBRS 	release 	time. 	It
appears 	the grievance 	raises 	the 	same 	issues 	raised 	in 	1990.
On December 	17, 	1997, 	Charging Party sent 	another letter to the
Federation regarding 	his 	grievance.3 In early January 	1998, 	the
grievance was denied at 	Step I. 	On January 16, 	1998, 	the
grievance was 	denied at 	Step 	II. 	In their denial, 	the District
stated the grievance was untimely, 	as 	it 	related to matters 	in
from the mid-1980's. 	Additionally, 	the District 	stated the
matter was 	closed 	as 	Charging 	Party 	failed 	to pursue 	the 	1989
grievance 	to 	arbitration after 	it 	was 	denied at 	Step Three.
Article 	22, 	Section E, 	states 	the 	following with regard to 	time
limits:
1. 	Failure 	of 	the grievant(s) 	to 	act 	on any grievance
within 	the 	prescribed 	time 	limits 	unless 	mutual
agreement 	to extend 	the 	time 	has 	been reached, 	shall
conclude 	the grievance.
Article 22, 	Section F(4) 	states 	the 	following with regard to
arbitration 	requests:
a. 	If 	the 	grievance 	is not 	resolved at 	Step
Three, 	the grievant, 	subject 	to the approval
of AFT, 	may 	file 	a written request 	to the
Office 	of 	Employer-Employee 	Relations 	for 	a
hearing. 	The grievant 	shall 	have 	ten 	(10)
days 	from receipt 	of 	the 	decision 	in 	Step
Three 	to 	file 	said request.
3 Charging 	Party provides 	only 	the 	first 	page 	of 	this
letter.

Warning 	Letter
LA-CE-4069
Page 5
On January 26, 	1998, 	Charging Party sent 	a 	letter to 	the
Federation 	providing 	pertinent 	facts 	he 	believed 	the 	Federation
should 	know prior 	to 	elevating 	the 	grievance 	to 	Step 	Three.
On May 4, 	1998, 	Charging Party filed a 	request 	to attend a
conference 	during June 	1998. 	Charging 	Party was 	scheduled 	to
teach during 	the 	summer 	session.4 On May 26, 	1998, 	Charging
Party's 	request 	was 	denied as 	the District 	was 	unable 	to
accommodate 	summer 	conference 	requests.
On August 	26, 	1998, 	the 	Federation refused to take Charging
Party's May 6, 	1998, 	grievance to arbitration. 	The Federation
further 	informed 	Charging 	Party 	that 	he 	could 	appeal 	the 	decision
to 	the 	Federation's 	board.
On September- 9, 	1998, 	Charging Party filed a 	second request 	to
attend a 	conference. 	This 	request 	was 	also 	denied by the
District. 	On September 	15, 	1998, 	Charging Party filed a
grievance over the September 9, 	1998, 	refusal. 	On September 16,
1998, 	at 	Step 	I, 	the District admitted it made a mistake 	in
denying 	the 	request 	and 	requested 	Charging 	Party 	refile 	his
request 	for conference 	attendance. 	It 	is 	unclear whether
Charging 	Party refiled his 	request. 	On September 28, 	1998, 	the
District 	denied the grievance 	at 	Step 	II, 	for the 	same 	reasons
provided at 	Step 	I.
On October 	12, 	1998, 	Charging 	Party filed a 	claim against 	the
District 	under 	the 	Tort 	Claims Act, 	Government 	Code 	section 	900
et 	seq.5 The 	claim reiterates 	the 	above 	stated 	issues, 	with
most 	of 	the 	allegations 	dating back more 	than five 	(5) 	years.
Indeed, 	many of 	the 	allegations 	relate 	to 	actions 	occurring 	in
the mid-1980's.
On November 23, 	1998, 	Charging 	Party requested the 	Federation's
Grievance 	Review Committee 	reconsider 	its 	refusal 	to 	take 	the 	May
6, 	1998, 	grievance to arbitration. 	Additionally, 	Charging Party
requested the 	Federation take 	the 	September 	15, 	1998, 	grievance
to 	arbitration.
4 It 	appears 	that on May 6, 	1998, 	Charging Party filed
another grievance. 	However, 	as 	the 	charge 	fails 	to provide
copies 	of 	any of 	the grievances, 	it 	is unclear what 	allegations
were 	contained 	in 	this 	grievance.
5 Government 	Code 	900 	et 	seq. 	allows 	individuals 	to 	file 	a
claim 	for 	injury 	against 	public 	entities.

Warning 	Letter
LA-CE-4069
Page 	6
On November 	25, 	1998, 	the 	Federation 	refused 	to 	take 	the 	May 	6,
1998, 	and 	September 	15, 	1998, 	grievances 	to 	arbitration. 	As
such, 	the 	grievances 	were 	closed.
Also 	on November 	25, 	1998, 	the 	District 	returned 	Charging 	Party's
tort 	claim 	stating 	the 	claim was 	untimely, 	as 	the 	allegations
referred 	to 	conduct 	occurring 	more 	than 	six 	months 	prior 	to
filing 	of 	the 	claim.6 Additionally, 	the 	District 	stated 	the
claim 	failed 	to 	raise 	issues 	that 	are 	cognizable 	under 	the 	Tort
Claims 	Act.7 The 	District 	further 	informed 	Charging 	Party 	of
his 	right 	to 	seek 	leave 	to 	file 	a 	late 	claim.8
On November 	30, 	1998, 	Charging 	Party 	requested 	leave 	to 	file 	a
late 	claim with 	the 	District. 	On January 	14, 	1999, 	the 	District
6 Government 	Code 	section 	911.1 	states 	in 	relevant 	part:
A 	claim 	relating 	to 	a 	cause 	of 	action 	for
death 	or 	for 	injury 	to 	person 	or 	to 	personal
property 	. 	. 	. 	shall be presented 	. 	. 	. 	not
later 	than 	six 	months 	after 	the 	accrual 	of
the 	cause 	of 	action.
7 Government 	Code 	section 	905 	states 	the 	following 	with
regard 	to 	allowable 	claims:
There 	shall 	be 	presented 	in 	accordance 	with
Chapter 	1 	. . . 	and 	Chapter 	2 	. . . 	o f 	this
part 	all 	claims 	for 	money 	and 	damages 	against
local 	public 	entities 	except:
* 	* 	* 	* 	*
(c) 	Claims 	by public 	employees 	for 	fees,
salaries, 	wages, 	mileage 	or other expenses
and 	allowances.
8 Government 	Code 	section 	911.4 	states 	the 	following 	with
regard 	to 	late 	filing:
(a) 	When 	a 	claim that 	is 	required 	by 	Section
911.2 	to 	be 	presented 	not 	later 	than 	six
months 	after 	the 	accrual 	of 	the 	cause 	of
action 	is 	not 	presented within 	such 	time, 	a
written 	application 	may 	be 	made 	to 	the 	public
entity 	for 	leave 	to 	present 	such 	claim.
(b) 	The 	application 	shall 	be 	presented 	to 	the
public entity 	. 	. 	. 	within a reasonable time
not 	to 	exceed 	one 	year 	after 	the 	accrual 	of
the cause of action 	. 	. 	.

Warning 	Letter
LA-CE-4069
Page 	7
denied 	Charging 	Party's 	request 	for 	leave, 	stating 	Charging 	Party
failed 	to 	provide 	any 	facts 	demonstrating 	his 	failure 	to 	file 	was
due 	to mistake, 	inadvertence, 	surprise or excusable neglect.
On April 	12, 	April 	15 and April 	20, 	1999, 	Charging Party sent
letters 	to 	the 	District 	providing more 	allegations 	regarding 	his
tort 	claim. 	It 	appears 	the 	District 	did not 	respond 	to 	these
allegations 	as 	it 	considered the matter 	closed.
Based on 	the 	above 	stated 	facts, 	the 	charge 	as 	presently written,
fails 	to 	state 	a prima 	facie violation of 	the EERA, 	for the
reasons 	provided below.
As 	noted above, 	Charging 	Party 	fails 	to 	allege 	a 	specific
violation of 	the EERA. 	As 	such, 	I will 	assume Charging Party
intends 	to 	allege 	the 	District 	discriminated 	against 	him because
of his protected activity. 	However, 	much of 	the 	facts provided
pertain 	to 	conduct 	occurring 	several 	years 	ago, 	and as 	such are
time 	barred.
Government 	Code 	section 3541.5(a)(1) 	prohibits 	the 	Board 	from
issuing 	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. 	The 	instant 	charge was 	filed on May
25, 	1999. 	As such, 	all 	allegations regarding conduct 	taking
place prior to November 25, 	1998, 	are untimely and must be
dismissed.9
Based on 	the 	facts 	provided, 	Charging 	Party 	could 	allege 	the
District 	denied his 	request 	for 	leave 	to 	file 	a 	late 	tort 	claim
based 	on 	his 	alleged 	protected 	activity.
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; 	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.)
Charging 	Party's 	filing his 	1990 	grievance 	regarding 	the 	work
overload and MBRS 	release 	time, 	and the 	May 	1998 	and 	September
9 There 	are 	no 	facts 	indicating 	the 	allegations 	should 	be
tolled.

Warning 	Letter
LA-CE-4069
Page 	8
1998, 	grievances 	regarding 	conference 	attendance 	are protected
activities. 	The 	employer had knowledge 	of 	this protected
activity, 	and Charging Party's November 30, 	1998, 	request 	for
leave 	to 	file 	a 	late 	tort 	claim was 	denied, 	demonstrating an
adverse 	action. 	However, 	facts presented 	fail 	to demonstrate 	the
requisite nexus, 	and as 	such, 	the allegation fails 	to 	state a
prima 	facie 	case.
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. 	264.) 	As presently written, 	this 	charge 	fails 	to demonstrate
any of 	these 	factors 	and therefore 	does 	not 	state 	a prima 	facie
violation of EERA section 3543.5(a).
In 	the 	instant 	charge, 	the District 	denied 	Charging 	Party's
request 	because 	Charging 	Party 	failed 	to 	explain why 	the
allegations 	should be 	considered 	for 	late 	filing. 	It 	does 	not
appear 	Charging 	Party met 	the 	requirements 	of 	Government 	Code
section 911.6, 	which require 	that 	the 	failure must 	be because of
mistake, 	inadvertence, 	surprise, 	or excusable mistake. 	Moreover,
Government 	Code 	section 	911.4 	requires 	the 	late 	claim be 	filed no
more 	than one 	year 	after 	the 	cause 	of 	action. 	In Charging
Party's 	case, 	most 	of 	the 	allegations 	occurred more 	than 	five 	(5)
years prior to 	the 	filing of 	the 	claim. 	As 	it 	appears 	the
District 	followed 	the 	provisions 	of 	Government 	Code 	section 	900
et 	seq., 	the 	allegation fails 	to state 	a prima 	facie violation of
the 	EERA.
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

Warning 	Letter
LA-CE-4069
Page 9
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 	September 29, 	1999,
I 	shall 	dismiss your charge. 	If you have 	any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. 	Rosi
Regional 	Attorney