San Diego Community College District (PERB 1455E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF TEACHERS
GUILD, CALIFORNIA FEDERATION OF
TEACHERS, LOCAL 1931,
Charging Party,
V.
SAN DIEGO COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-4207-E
PERB Decision No. 	1455
July 	31, 	2001
Appearances: 	Gattey, Cooney & Baranic by Michael P. Baranic, Attorney, for American
Federation of Teachers Guild, California Federation of Teachers, Local 1931; Liebert, Cassidy
& Whitmore by Bruce A. Barsook and Nathan J. Kowalski, Attorneys, for San Diego
Community College District.
Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the American Federation of Teachers Guild, California
Federation of Teachers, Local 1931 (AFT) of a Board agent's dismissal (attached) of its unfair
practice charge. The charge alleged that the San Diego Community College District (District)
violated the Educational Employment Relations Act (EERA) 1 by prohibiting the distribution
of certain materials through its internal mail system. AFT alleged that this conduct constituted
a violation of EERA section 3543.5.2
1EERA is codified at Government Code section 3540 et seq.
2Section 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.
( c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charge and their attachments, the warning and dismissal letters, AFT's
appeal and the District's opposition. The Board finds the Board agent's dismissal to be free
from prejudicial error and adopts it as the decision
of
the Board itself, subject to the following
discussion.
DISCUSSION
In support
of
its amended charge, AFT submitted two previously circulated AFT
communications which were critical
of
District actions and which were delivered through the
intrasite mail system. AFT maintained that, because
of
such prior postings, the District cannot
now refuse to deliver such materials.
In addressing these two prior communications, the Board agent noted that an employer
does not commit an unlawful unilateral change when its actions are consistent with a
previously unenforced provision
of
the collective bargaining agreement (CBA), citing to
Marysville Unified School District (1983) PERB Decision No. 314 (Marysville).
In Marysville the CBA provided that teachers were entitled to one duty free lunch
period
of
no less than 30 minutes each day. The Board found the CBA was not superceded by
2

a consistent practice of 55 minute lunch breaks, and that the District did not violate its duty to
bargain in good faith by unilaterally reducing the lunch period to 30 minutes. In addressing
this question, the Board held:
The mere fact that an employer has not chosen to enforce its
contractual rights in the past does not mean that, ipso facto, it is
forever precluded from doing so.
The Board finds that its decision in Marysville is inapposite to the facts of this case. In
the instant proceeding, there was no showing that the District had not ohosen to enforce its
contractual rights in the past. In other words, there was no evidence that the District had at one
time distributed defamatory materials through the intrasite mail system, but was now refusing
to do so under the provisions of Article 3.2 of the Office-Technical Agreement (OTA).
The two communications submitted in support of the amended charge are dissimilar to
the documents in question here, both in their nature and their tone. One is a sarcastic piece
criticizing a 14.8 percent management wage increase, the second is a mock loan application
pertaining to the District's overpayment error which was the subject of the AFT memo of
May 26, 2000. Although these two documents criticize and lampoon the District for some of
its decisions, they do not approach accusing District representatives of engaging in felonious
conduct.3
Marysville does not apply here because there were no prior incidents from which AFT
could claim a waiver of the unenforced right upon which a unilateral change would be based.
There was no unilateral change. The District was instead enforcing the provisionsof the OTA,
albeit for the first time.
3An argument could be made that the District's delivery of these other documents,
which were insulting to the District but not defamatory, showed the reasonableness of the
District's actions, and that the District was in fact acting pursuant to the provisions of the OTA.
3

ORDER
The unfair practice charge in Case No. LA-CE-4207-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Baker joined in this Decision.
4

STATE OF
CALIFORNIA	
GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 ! 8th Street
Sacramento, CA 95814-4!74
Telephone: (916) 327-8386
Fax: (916) 327-6377
March 29, 2001
Michael Baranic
Gattey, Cooney & Baranic
2445 Fifth Avenue, Suite 350
San Diego, California 92101-1665
Re: 	American Federation
of
Teachers Guild, California Federation
of
Teachers, Local
1931 v.
San Diego Community College District
Unfair Practice Charge No. LA-CE-4207-E
DISMISSAL LETTER
Dear Mr. Baranic:
The above-referenced unfair practice charge was filed with the Public Employment
Relations Board (PERB or Board) on July 18, 2000. The American Federation
Of
Teachers
Guild, California Federation
Of
Teachers, Local 1931 (Union) alleges that the San Diego
Community College District (District) violated the Educational Employment Relations Act
(EERA) 1
by
prohibiting the use
of
its employee mail system and other equipment for the
distribution
of
particular communications to bargaining unit members.
I indicated to you in my attached letter dated March 2, 2001, 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 March 9, 2001, the charge would
be dismissed. You requested and received an extension
of
time.
I received your amended charge on March 16, 2001. In your amended charge, you again
contend that the District interfered with the statutory access rights
of
the Union when it
prohibited the use
of
the internal mail system for certain letters. However, as discussed in
my letter
of
March 2, the Board has determined that proposals which define or expand a
union's right to access are negotiable. Jefferson School District (1980) PERB Decision No.
1 EERA is codified at Government Code section 3540 et seq. 	The text of the EERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4207-E
March 29, 2001
Page 2
133. The expired collective bargaining agreement
in
this case contains a provision
regulating the use
of
intrasite mail. Accordingly, the appropriate test for determining
whether a violation
of
EERA occurred
is
that
of
a unilateral change.
You contend that the District did commit a unilateral change by imposing its own remedy
of
refusal to deliver. According to the Union, the District should have delivered the letters and
filed a grievance over their defamatory nature. You also contend that the District waived its
right to prohibit delivery by not asking for a meeting with the Union to discuss the refused
delivery. 2
However, the issue here is not whether the District might have chosen other methods to
resolve the matter. 	A determination must be made whether the Union has established a
prima facie case
of
a unilateral change. As discussed in my letter
of
March 2 nd , the
collective bargaining agreement contained a provision prohibited the use
of
the intrasite
mail service for defamatory materials. Article 3.2 states that neither party "shall use District
intrasite mail service or bulletin boards to transmit notices or post materials that defame.
11
The subject materials were defamatory; the Union was not permitted to use the intrasite
mail service to transmit them. The Union has not demonstrated a unilateral change. Grant
Joint Union High School District (1982) PERB Decision No. 196.
You have submitted two previously circulated Union communications which were critical
of
District actions. These materials were delivered through the intrasite mail system. You
contend that the District cannot now refuse to deliver such materials. However, the Board
has held that an employer does not commit a unlawful unilateral change when its actions are
consistent with previously unenforced provision
of
the collective bargaining agreement.
Marysville Unified School District (1983) PERB Decision No. 314.
For the reasons discussed here and in my letter
of
March 2, 2001, this charge must be
dismissed.
Right to Appeal
Pursuant to PERB Regulations3, 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. 	(Regulation 32635(a).) Any document filed with the Board must contain the
case name and number, and the original and five (5) copies of ail documents must be
provided to the Board.
2 The collective bargaining agreement, at Article 3.2, provides that the parties agree
to meet and consult within five days to consider a claim that the section has been violated.
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-4207-E
March 29, 2001
Page 3
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. 	(Regulations 32135(a) and 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
Regulation 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. (Regulations 32135(b), (c) and (d); see also Regulations 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. (Regulation 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 Regulation 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. (Regulation 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. (Regulation 32132.)

LA-CE-4207-E
March 29, 2001
Page 4
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_-'-=-
Bemard McMonigle
Regional Attorney
Attachment
cc: Brian P. Walter
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·

STATE OF CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
0
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:
Sacramento Regional Office
I OJ I 18th Street
Sacramento, CA 95814-4174
l"c:lepl10ne
Fax: (916) J27-Ci377
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March 2, 2001
Michael Baranic
Law Offices of James Gattey
2445 Fifth Avenue, Suite 350
San Diego, California 92101
Re: 	American Federation of Teachers Guild, California Federation of Teachers, Local 1931
v. San Diego Community College District
Unfair Practice Charge No. LA-CE-4207-E
WARNING LETTER
Dear Mr.Baranic:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 18, 2000. The American Federation Of Teachers Guild,
California Federation Of Teachers, Local 1931 alleges that the San Diego Community College
District violated the Educational Employment Relations Act (EERA)1 by prohibiting the
distribution of certain materials through its internal mail system. On March 1, we discussed
this charge.
Your charge states the following. 	Charging Party represents three bargaining units at the
District. Two of these units, an office-technical unit and a food services unit, continue to
operate under the terms of collective bargaining agreements negotiated by a former exclusive
representative. Article 3.2 ofthe Office-Technical agreement states,
Neither the District nor CSEA [AFT's predecessor] shall use
District intrasite mail service or bulletin boards to transmit
materials or post notices that defame the members of the Board of
Trustees, its agents, bargaining unit members, or representatives
or agents of CSEA. The parties agree to meet and consult within
five ( 5) working days to consider any claim that this Section gas
been violated.
On May 26, 2000 AFT local president Jim Mahler prepared a memorandum to John Schlegel, a
District assistant chancellor titled "Apparent Embezzlement Coverup". The memorandum
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4207-E
March
2,
200 l
Page 2
criticized Schlegel for characterizing a "misappropriation
of
district travel funds" by Brian
Olsen, president
of
the District's Board
of
Trustees, as an "overpayment error". 	Mahler
suggested that it was more appropriate that the District seek prosecution
of
Olsen for felony
embezzlement.
On May 26, Charging Party delivered copies
of
the memorandum to the District for
distribution to bargaining unit members through its intrasite mail system. 	Only members
of
the
Office-Technical unit, employed at the District offices, did not receive a copy.
On June
l,
2000 Mahler sent another memorandum
to
Schlegel, titled "Oppressive
Interrogation Tactics/Gross violations
of
Food Service Workers' Due Process Rights". 	In it
Mahler accused Schlegel
of
directing managers to "deliberately mislead nearly a dozen food
service workers", allowing "interrogators to 'blackmail"' food service workers, and other acts
which together violate state and federal statutes and "treatment that is usually found in
countries where human rights abuses regularly occur".
The memorandum was distributed through the intrasite mail to all employees represented
by
Charging Party except those in the Office-Technical unit at the District offices.
Charging Party contends that it was wrongfully denied use
of
the District's mail system to
distribute the above memorandums to Office-Technical unit employees. Charging Party notes
that it has a statutory right to use
of
the mail system, subject only to reasonable regulation by
an employer, under Government Code 3543.l(b). PERB has determined that regulation is
reasonable only where speech is likely to cause "substantial disruption
of
or
material
interference with school activities". 	Richmond Unified School District ( 1979) PERB Decision
No. 99.
The Board has also determined that proposals which define or expand a union's right
of
access
are negotiable. 	In this case the parties are governed by a provision from the previous exclusive
representative's contract with the District. That provision sets forth a joint determination
of
reasonable regulation
of
the intrasite mail system. Accordingly, the appropriate test for
determination
of
a violation
of
EERA is whether the employer has committed a unilateral
change by refusing to deliver the subject memorandums.
Unilateral changes are considered "per se" violations
if
certain criteria are met. Those criteria
are: 	( 1) the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it 'an opportunity to request negotiations. 	(Walnut Valley Unified
School District (1981) PERB Decision No. 160; Grant Joint Union High School District (1982)
PERB Decision No. 196.)
In this case, you have not demonstrated that the District has implemented a change in policy.
The agreement provides that no materials may be sent through the system which are
defamatory of members or representatives of either party. The memorandums which the
District refused deli very attacked the good name or reputation of District representatives.

LA-CE-4207-E
March
2,
200 l
Page 3
Accordingly, the District was under no obligation to circulate them and this charge 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 beprepared 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
comer
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 March 9, 2001, I shall dismiss
your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Bernard McMonigle
Regional Attorney
BMC