Peralta Community College District (PERB 1462E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TIM LEE, et al.,
Charging Parties, Case No. SF-CE-2140-E

Vv. PERB Decision No. 1462

PERALTA COMMUNITY COLLEGE DISTRICT, September 20, 2001

Respondent.

Appearances: Timothy Lee, on his own behalf; Crosby, Heafey, Roach & May by Marissa M.
Tirona, for Peralta Community College District.

Before Amador, Baker and Whitehead, Members.
DECISION
AMADOR, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Timothy Lee (Lee) from a Board agent's dismissal (attached) of
the unfair practice charge.
The charge alleged that the Peralta Community College District discriminated against
Lee in various ways in violation of section 3543.5(a) of the Educational Employment Relations

Act (EERA)'.

' EERA is codified at Government Code section 3540 et seq. Section 3543.5 provides,
in pertinent part, that:

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

The Board has reviewed the entire record in this case and finds the dismissal letter to be
free from prejudicial error and adopts it as the decision
of
the Board itself, subject to the
following brief discussion.
DISCUSSION
The Board agent correctly found that the statute
of
limitations period was not tolled for
the allegations regarding the May 25, 1999 and July 12, 1999 evaluations. She also correctly
found that these allegations are untimely filed and outside the jurisdiction
of
PERB. 	Because
PERB lacks jurisdiction over these untimely allegations, the Board makes no ruling with
respect to the deferability
of
those allegations.
ORDER
The unfair practice charge in Case No. SF-CE-2140 is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Members Baker and Whitehead joined in this Decision.
otherwise to interfere with, restrain or coerce employees because
of their exercise of rights guaranteed by this chapter.
2

STA TE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1 51 5 Clay Street, Suite 2201
Oakland, CA 94612
(510) 622-1016
February 	16, 	2001
Hunter 	Pyle
Siegel 	& Yee
499 	14th 	St., 	Suite 	220
Oakland, 	CA 	94612
RE: 	Tim 	Lee, 	et 	al 	v. 	Peralta 	Community 	Colleqe 	District
Unfair 	Practice 	Charge 	No. 	SF-CE-2140
Dismissal 	and 	Refusal 	to 	Issue 	a 	Complaint
Dear 	Mr. 	Pyle:
In 	the 	above-referenced 	charge 	Tim Lee 	(Lee) 	alleges 	the 	Peralta
Community 	College 	District 	(District) 	discriminated 	against 	him
in 	violation 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA or
Act) 	§ 	3543.5(a). 	On 	December 	1, 	2000, 	I 	issued 	a 	warning 	letter
indicating 	Lee 	should 	withdraw 	or 	amend 	this 	charge 	by
December 	8, 	2000 	because 	the 	charge 	was 	untimely 	filed 	and
therefore 	outside 	the 	jurisdiction of 	PERB. 	At 	Lee's 	request 	the
deadline 	by 	which 	to 	amend 	was 	extended. 	On 	December 	15, 	2000
Lee 	filed 	a 	first 	amended 	charge.
The 	amended 	charge 	includes 	the 	two 	allegations 	from 	the 	original
charge, 	and 	two 	new 	allegations. 	The 	original 	charge 	alleged 	the
District 	retaliated 	against 	Lee 	by 	issuing 	him 	a 	negative
evaluations 	dated 	May 	25, 	1999, 	and 	July 	12, 	1999. 	The 	first
amended 	charge 	adds 	the 	following 	new 	allegations: 	that 	the
District 	retaliated 	against 	Lee 	by 	terminating 	his 	employment,
and 	refusing 	to 	hire 	him 	into 	a 	new position. 	This 	letter
addresses 	all 	of 	these 	allegations. 	The 	facts 	underlying 	the 	new
allegations 	are 	summarized 	below.
A June 	30, 	2000 	letter 	by 	Clinton 	Hilliard, 	Vice 	Chancellor 	of
Administrative 	Services, 	notified 	Lee 	his 	assignment 	had 	been
terminated 	effective 	July 	31, 	2000. 	On August 	25, 	2000, 	Carol
Crawford 	of 	the 	Personnel 	Office 	informed 	Lee 	he 	was 	not 	selected
for 	an 	Electronics 	Technician 	position 	with 	the 	District. 	Lee
alleges 	the 	District 	took 	these 	actions 	in 	retaliation 	for 	his
participation 	in 	protected 	activities.
The 	District 	and 	SEIU had 	a 	collective 	bargaining 	agreement 	with
effective 	dates 	of 	July 	1~ 	1996 	through 	June 	30, 	2000. 	The
agreement 	includes 	a 	grievance 	procedure 	which 	ends 	in 	binding
arbitration, 	and 	a 	non-discrimination 	clause 	prohibiting 	the
District 	from 	retaliating 	against 	employees 	for 	their
participation 	in 	protected 	activities.

SF-CE-2140-E
Dismissal
	Letter
Page
	2
The
	charge
	does
	not
	state
	a
	prima
	facie
	violation
	within
	the
jurisdiction
	of
	PERB
	for
	the
	reasons
	that
	follow.
1.
	Statute
	of
	Limitations
The
	warning
	letter
	summarized
	the
	original 	charge's 	facts
	and
concluded
	the
	charge
	was
	untimely
	filed.
	The
	first
	amended
charge
	alleges
	there
	were
	several 	inaccuracies
	in
	the
	warning
letter,
	but 	only
	one
	allegation
	addresses 	the
	warning
	letter's
conclusion
	that
	the
	charge
	is
	untimely
	filed.
	This
	allegation
	is
addressed
	below.
The
	warning
	letter
	indicated
	the
	statute
	of
	limitations
	period
was
	not
	tolled
	while
	Lee
	pursued
	his
	grievance 	because
	the
grievance
	failed
	to 	allege
	the
	CBA's
	non-discrimination 	clause
had 	been
	violated. 	Article
	3.2 	of 	the
	CBA
	states,
	in 	pertinent
part:
Furthermore,
	the
	District
	agrees
	that
	there
shall
	be
	no
	discrimination, 	interference,
restraints
	or
	coercion
	by
	the
	District
	or
	any
of
	its
	agents
	against
	any
	of
	its
	employees
because 	of
	merr~ership
	in
	the
	union
	orexercise
	of
	rights
	to
	engage
	in
	Union
activity.
The
	first
	amended
	charge
	alleges
	the 	grievance 	did
	refer 	to
	the
CBA's
	non-discrimination 	clause, 	Article
	17.3.
	Article
	17.3
	is
	a
part
	of 	the
	CBA's
	Promotions 	and
	Employment
	Development
	article
and
	provides:
The
	District
	and
	its
	agent
	or
	agent
	shall 	in
no 	way
	discriminate 	against, 	discourage,
obstruct, 	harass
	any 	employee
	who
	applies 	for
a
	vacancy
	or
	who
	participates
	on 	any
screening
	committee
	or
	on 	any
	applicant'sbehalf 	as 	an 	appointed 	agent 	of
	UPE
	Local790.
EERA 	§
	3541.S(a)
(1)
	provides 	the 	Public
	Employment
	Relations
Board
	shall 	not, 	"issue
	a
	complaint
	in 	respect 	of
	any 	charge
based 	upon 	an
	alleged 	unfair 	practice 	occurring
	more
	than
	six
months
	prior 	to 	the
	filing
	of 	the 	charge.''
	It 	is
	your 	burden, 	as
the 	charging 	party 	to 	demonstrate 	the 	charge 	has 	been 	timely
filed.
	(See 	Tehachapi 	Unified 	School
	District
	(1993) 	PERB
Decision
	No.
	1024.)
Under 	EERA 	§	
3541.S(a) (2),
	PERB 	must 	consider 	the 	limitationperiod 	to 	have 	been 	tolled 	during 	the 	time
	it
	took 	the 	charging
party 	to 	exhaust 	any 	contractual 	grievance 	machinery, 	either
	by

SF-CE-2140-E
Dismissal 	Letter
Page 	3
settlement 	or 	binding 	arbitration. 	For 	purposes 	of 	calculating
statutory 	tolling, 	the 	six-month 	limitation 	period 	begins
immediately 	after 	the 	occurrence 	of 	the 	alleged 	unfair 	practice
and 	is 	tolled 	only 	during 	the 	time 	used 	to 	exhaust 	the 	grievance
machinery. 	(State 	of 	California 	(Secretary 	of 	State) 	(1990) 	PERB
Decision No. 	812-8.) 	However, 	PERB 	will 	not 	toll 	the 	statute 	of
limitations 	in 	a 	discrimination 	case 	when 	the 	District 	is 	unaware
of 	the 	specific 	discrimination 	allegation. 	(North 	Orange 	County
Community 	College 	District 	(1998) 	PERB 	Decision No. 	1268.)
As 	stated 	in 	the 	warning 	letter, 	the 	statute 	of 	limitations
period 	for 	this 	charge 	extended 	back 	to 	December 	5, 	1999. 	Thus,
absent 	tolling, 	the 	original 	charge's 	allegations 	regarding
conduct 	which 	Lee 	became 	aware 	of 	on 	June 	29, 	1999, 	and 	July 	12,
1999 	were 	untimely 	filed. 	The 	warning 	letter 	noted 	that 	Lee
failed 	to 	allege 	the 	District 	violated 	the 	collective 	bargaining
agreement's 	non-discrimination 	clause 	in 	his 	grievance 	and
concluded 	the 	statute 	of 	limitations 	period was 	not 	tolled.
The 	grievance 	form 	included 	in 	the 	original 	charge 	cites 	only
articles 	5.1 	Employee 	Evaluation 	Procedures, 	17.3 	No
Discrimination, 	and 	17.4 	Employee 	Training. 	Article 	17.3
indicates 	the 	District 	should 	not 	discriminate 	against
individuals 	applying 	for 	vacancies, 	screening 	committee 	members,
and 	employees 	who 	act 	as 	an 	appointed 	agent 	of 	UPE 	Local 	790. 	It
does 	not 	appear 	that 	the 	Charging 	Party 	put 	the 	District 	on
notice 	that 	he 	believed 	the 	District 	had 	retaliated 	against 	him
for 	his 	participation 	in 	the 	PERB 	process 	as 	the 	grievance 	does
not 	allege 	a 	violation 	of 	Article 	3.2. 	Instead, 	the 	grievance's
reference 	to 	Article 	17.3 	appears 	to 	assert 	the 	employer
discriminated 	against 	Lee 	because 	he 	applied 	for 	a 	vacancy.
Thus, 	the 	statute 	of 	limitations 	period was 	not 	tolled 	and 	the
allegations 	regarding 	the 	May 	25, 	1999 	and 	July 	12, 	1999
evaluations 	are 	untimely 	filed 	and 	outside 	the 	jurisdiction 	of
PERB.
Even 	if 	citing 	to 	Article 	17.3 	placed 	the 	District 	on 	notice, 	and
the 	statute 	of 	limitations 	was 	tolled, 	these 	allegations 	do 	not
state 	a 	prima 	facie 	violation 	of 	the 	EERA 	within 	the 	jurisdiction
of 	PERB 	for 	the 	reasons 	that 	follow.
2. 	Deferral 	to 	Arbitration
As 	stated 	previously, 	Lee 	alleges 	the 	District 	retaliated 	against
him by 	the 	following 	actions: 	issuing 	the 	May 	25, 	1999, 	and 	July
12, 	1999 	evaluations, 	terminating 	his 	employment 	on 	June 	30,
2000, 	and 	refusing 	to 	hire 	him 	into 	a 	new 	position 	on August 	25,
2000. 	The 	allegations 	regarding 	evaluations 	and 	Lee's
termination 	are 	addressed 	below. 	The 	final 	allegation 	is
addressed 	in 	the 	third 	section 	of 	this 	letter.

SF-CE-2140-E
Dismissal 	Letter
Page 	4
Section 	3541.S(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.
The 	District 	and 	the 	United 	Public 	Employees 	Local 	790 	are
parties 	to 	a 	collective 	bargaining 	agreement 	which 	expired 	on
June 	30, 	2000. 	Second, 	the 	conduct 	complained 	of 	in 	this 	charge
that 	the 	District 	discriminated 	against 	Lee 	by 	issuing 	negative
evaluations 	and 	terminating 	his 	employment 	is 	arguably prohibited
by Article 	3.2 	of 	the 	CBA.
Accordingly, 	these 	allegations 	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 	(1982)
PERB 	Decision 	No. 	218; 	Dry 	Creek 	Joint 	Elementary 	School 	District
(1980) 	PERB 	Order 	No. 	Ad-81a.)
J. 	Refusal 	co 	Hire
The 	final 	allegation, 	that 	the 	District 	discriminated 	against 	Lee
by 	failing 	to 	hire 	him 	into 	a 	new 	position 	fails 	to 	state 	a 	prima
facie 	violation 	for 	the 	reasons 	that 	follow.
To 	demonstrate 	a 	violation 	of 	EERA 	section 	3543.5(a), 	the
charging 	party 	must 	show 	that: 	(1) 	the 	employee 	exercised 	rights

SF-CE-2140-E
Dismissal 	Letter
Page 	5
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
---..A.'---'...:...ct,".cl .. :__'._,, 	,o..::JOL.1 	cE.Ko 	Deci.sion 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. 	264.)
On August 	L~, 	2000, 	Crawford 	informed 	Lee 	that 	he 	was 	not
selected 	to 	advance 	to 	the 	next 	phase 	of 	the 	selection 	process
ror 	Lne 	posicions 	or 	Electronics 	Technician.- 	Taking 	the 	facts
of 	his 	first 	amended 	charge 	as 	true, 	Lee 	was 	pursuing 	his
grievance 	to 	binding 	arbitration 	in 	July 	2000. 2 	Thus,
Crawford's 	action was 	close 	in 	time 	to 	Lee's 	protected
activities. 	However, 	the 	charge 	fails 	to 	demonstrate 	other
factors 	indicative 	of 	nexus. 	On August 	7, 	2000, 	Crawford
acknowledged 	receipt 	of 	Lee's 	application, 	and 	indicated 	that
meeting 	the 	minimum qualifications 	for 	a 	position 	does 	not 	assure
an 	applicant 	of 	an 	interview. 	On August 	25, 	2000, 	Crawford
indicated 	Lee 	was 	not 	selected 	to 	advance 	in 	the 	application
process. 	The 	charge 	does 	not 	demonstrate 	that 	Crawford 	departed
from 	established procedures. 	Nor 	does 	it 	appear 	that 	Crawford
1 This 	conduct 	occurred 	following 	the 	expiration 	of 	the
parties' 	CBA 	and 	therefore 	is 	not 	subject 	to 	deferral.
2 The 	Charging 	Party 	provided 	conflicting 	facts 	regarding
when 	the 	pursuit 	of 	his 	grievance 	ceased.

SF-CE-2140-E
Dismissal
	Letter
Page
	6
provided
	Lee
	with
	an 	ambiguous
	or
	shifting
	justification
	for
	her
action.
	Thus,
	this
	allegation
	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
	containthe 	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 	beforethe 	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)
	calendardays 	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"

SF-CE-2140-E
Dismissal
	Letter
Page
	7
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
	personallydelivered 	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
	beforethe
	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
	THUM.b'~UN
Deputy
	General 	Counsel
By
Regional 	Attorney
Attachment

'

STA TE OF CALIFORNIA 	GRAY DAVIS, Governo,
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1515 Clay Street, Suite 2201
Oakland, CA 94612
(510) 622-1016
December 	1, 	2000
Hunter 	Pyle
Siegel 	& 	Yee
499 	14th 	St., 	Suite 	220
Oakland, 	CA 	94612
RE: 	Tim Lee, 	et 	al 1 v. 	Peralta 	Community 	College 	District
Unfair 	Practice 	Charge 	No. 	SF-CE-2140
Warning 	Letter
Dear 	Mr. 	Pyle:
In 	the 	above-referenced 	charge 	Tim Lee 	(Lee) 	alleges 	the 	Peralta
Community 	College 	District 	(District) 	discriminated 	against 	him
..,_I, 	v ..i...olat..Lon 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA or
Act) 	§ 	3543.S(a) 	by 	issuing 	him 	a 	negative 	evaluation 	and 	a
written 	reprimand. 	My 	investigation 	revealed 	the 	following
information.
Lee 	was 	initially employed 	by 	the 	District 	as 	a 	Police 	Officer.
However, 	when 	the 	District's 	Police 	Department 	folded 	into 	a
local 	police 	department, 	Lee 	refused 	employment 	with 	the 	police
department 	and 	opted 	to 	remain 	employed 	at 	the 	District. 	Lee's
decision 	required 	the 	District 	to 	find 	suitable 	employment 	for
Lee. 	After 	much 	discussion 	and 	an 	unfair 	practice 	charge, 	Lee
was 	transferred 	to 	the 	Data 	Processing 	Center 	in 	June 	1998. 	This
transfer 	required 	Lee 	to 	undergo 	training, 	as 	he 	was 	not
initially 	qualified 	for 	an 	entry 	level 	position 	in 	the 	center.
On 	May 	12, 	1999 	and May 	13, 	1999, 	Lee 	appeared 	as 	a 	witness 	in 	a
PERB 	hearing. 2 	Clinton Hilliard, 	Vice 	Chancellor 	of
Administrative 	Services, 	saw 	Lee 	testify.
On 	May 	25, 	1999, 	Lee's 	first 	level 	supervisor, 	Jeremiah Alip,
sent 	a 	memorandum 	to 	Director 	of 	Technology, 	John 	Wagstaff,
regarding 	Lee's 	job 	performance. 	Alip 	evaluated 	Lee 	as
"Unsatisfactory" 	in 	the 	areas 	of 	Job 	Knowledge, 	Quality 	of 	Work,
Charging 	Party 	names 	himself 	and 	unnamed 	"et 	als" 	as
parties 	to 	this 	charge. 	However, 	no 	provision 	in 	PERB 	rules
allow 	the 	filing 	of 	a 	class 	action 	unfair 	practice 	charge. 	All
parties 	must 	be 	specifically 	named 	to 	be 	included 	in 	the 	charge.
The 	narrative 	of 	this 	charge 	pertains 	only 	to 	Lee 	and 	will 	be
investigated 	as 	such.
2 The 	hearing 	regarded 	unfair 	practice 	charge 	SF-CE-1929.

Warning
	Letter
SF-CE-2140
Page
	2
Job
	Effort,
	Initiative,
	Cooperation,
	and
	Planning
	and
	Organizing.
On
	June
	29,
	1999,
	Lee
	received 	the
	memorandum.
	At
	this
	time,
Wagstaff
	stated
	the
	memorandum
	was
	an
	informal
	document.
On
	July
	12, 	1999,
	Lee
	filed
	a
	grievance 	regarding 	the
May
	25, 	1999,
	memorandum.
	Lee
	alleged
	the
	District
	violated
several 	contractual
	provisions
	by
	issuing 	the
	memorandum,
	which
Lee
	feels
	is
	an
	evaluation.
	Article
	3.2
	of 	the
	District's
collective
	bargaining
	agreement
	prohibits 	discrimination
	based
	on
protected
	activity.
	Lee's 	grievance 	did
	not
	allege
	a
	violation
of
	Article 	3.2.
On
	July
	12, 	1999,
	Lee
	and
	his
	union
	representative
	met
	withWagstaff. 	Wagstaff
	again
	stated
	the
	memorandum
	was
	not
	an
evaluation. 	Additionally,
	Wagstaff
	presented
	Lee
	with
	a
memorandum
	entitled
	"Observations 	of
	your
	work
	performance."This
	memorandum
	laid
	out
	six
	issues
	Lee
	must
	address 	within 	the
next
	30
	days.
On
	July
	20, 	1999,
	Lee
	filed 	unfair 	practice
	charge
	SF-CE-2071
against 	the
	District
	regarding 	the
	memoranda
	he
	received.
	On
August 	13, 	1999,
	Lee
	withdrew
	that
	charge.
On
	July
	27, 	1999,
	Lee
	elevated 	his
	grievance
	to
	Level
	II.
	On
August 	11, 	1999, 	Wagstaff
	requested 	to
	meet
	with
	Lee
	regarding
his 	grievance.
	However, 	Lee
	refused 	to
	meet
	with
	Wagstaff
without
	his
	union
	representative.
	Lee
	stated 	that
	a
	meeting
	was
already 	scheduled
	for
	September 	10, 	1999.
On
	August 	11, 	1999,
	Lee
	elevated 	his
	grievance
	to
	Level
	III.
	On
September 	8, 	1999,
	Lee
	elevated 	the 	grievance
	to
	Level
	IV.
	On
September 	10, 	1999,
	Lee 	met
	with
	Wagstaff 	and
	his
	union
representatives 	regarding 	the 	grievance.
	Lee
	appears
	to
	beunhappy
	with 	SEIU's
	representation
	during
	this
	meeting, 	as 	theunion
	did 	not
	raise
	the 	issues
	Lee 	was
	most
	concerned 	about.
On
	October 	14, 	1999, 	Lee 	and
	his
	union
	representatives
	met
	for
	a
Level
	IV
	meeting. 	During
	this
	meeting, 	the
	District
	presented
Lee
	with 	the 	opportunity 	to
	fill
	another 	entry-level 	position.
However, 	Lee
	rejected 	this 	offer.
	On
	October 	19, 	1999, 	Vice
Chancellor
	Hilliard
	sent
	letters
	to 	both
	Lee 	and
	his
	union
representative, 	Larry 	Hendel. 	In
	this 	letter,
	Vice 	Chancellor
Hilliard 	states 	that
	due
	to 	Lee's 	refusal 	to
	acknowledge 	any 	work
performance
	deficiencies, 	continued
	efforts 	to 	find
	Lee
	another
position 	are 	fruitless.
On
	October 	26, 	1999, 	Vice 	Chancellor 	Hilliard 	sent
	Lee
	another
letter
	denying 	Lee's 	grievance.
	On
	October 	27, 	1999, 	Lee
requested
	SEIU pursue 	the 	matter 	to 	binding 	arbitration.
	On

Warning
	Letter
SF-CE-2140
Page
	3
January
	3, 	2000,
	SEIU
	informed
	Lee
	that
	it
	would
	not 	pursue
binding
	arbitration
	for 	his
	grievance.
The
	above-stated
	information
	fails
	to
	state
	a
	prima
	facie
violation
	for 	the
	reasons
	that
	follow.
EERA	
§	
3541.5(a)
(1)
	provides
	the
	Public
	Employment
	Relations
Board
	shall
	not, 	"issue
	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.
11
	It 	is
	your 	burden, 	as
the 	charging
	party
	to
	demonstrate
	the
	charge 	has 	been
	timely
filed.
	(See
	Tehachapi
	Unified
	School
	District
	(1993)
	PERE
Decision
	No.
	1024.)
Lee
	alleges 	the
	District
	discriminated 	against
	him
	by
	issuing
	him
negative
	evaluations
	dated
	May
	25, 	1999, 	and
	July
	12, 	1999.
	Lee
first
	became
	aware
	of 	the
	May
	25,
	1999
	memorandum
	on
June
	29, 	1999.
	Lee
	filed
	the
	instant 	unfair 	practice
	charge
	on
June
	5, 	2000.
	The
	statute
	of
	limitations
	period
	extends 	back
	to
December 	5,
	1999. 	Thus,
	Lee's
	allegations
	regarding 	the
District's
	conduct
	that
	he 	became 	aware
	of
	on
	June
	29, 	1999, 	and
July
	12,
	1999
	are
	untimely
	filed
	and 	must
	be
	dismissed.
Under
	EERA 	§
	3541.5(a) (2),
	PERE
	must
	consider 	the
	limitation
period 	to
	have 	been
	tolled
	during 	the
	time
	it
	took
	the 	charging
party 	to
	exhaust
	any
	contractual
	grievance
	machinery,
	either
	by
settlement 	or
	binding
	arbitration.
	For
	purposes 	of
	calculating
statutory 	tolling,
	the
	six-month
	limitation 	period 	beginsimmediately
	after
	the 	occurrence 	of 	the 	alleged 	unfair 	practice
and
	is 	tolled
	only 	during 	the
	time 	used
	to
	exhaust 	the 	grievance
machinery.
	(State 	of
	California 	(Secretary 	of 	State)
	(1990)
	PERE
Decision
	No.
	812-S.)
	However,
	PERE
	will
	not
	toll
	the
	statute
	of
limitations 	in
	a
	discrimination
	case
	when
	the
	District 	is
	unaware
of 	the 	discrimination 	allegation.
	(North Orange 	County
	Community
College
	District
	(1998)
	PERE
	Decision
	No.
	1268.)
In 	the
	instant
	charge,
	Lee
	filed
	a
	grievance 	regarding 	the
May
	25, 	1999 	memorandum. 	However, 	Lee
	failed 	to 	allege 	the
District 	violated
	the
	collective
	bargaining 	agreement's
	non-
discrimination 	clause 	in 	his 	grievance.
	Thus,
	the
	statute
	of
limitations
	cannot
	be
	tolled
	with 	regard 	to 	the
	May
	25, 	1999,
memorandum,
	and
	this 	allegation
	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
	PERE
	unfair
practice 	charge 	form,
	clearly 	labeled 	First
	Amended 	Charge,
contain 	all 	the 	facts 	and 	allegations 	you 	wish 	to 	make, 	and

l'larning
	Letter
SF-CE-2140
Page
	4
be
	signed 	under
	penalty
	of
	perjury
	by
	the 	charging
	party.
	Theamended
	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
	December
	8, 	2000,
	I
shall
	dismiss
	your 	charge.
	If
	you
	have 	any
	questions, 	please
call
	me
	at
	(510)
	622-1023.
Sincerely,
Urlj/~
Tammy
	Samsel
Regional
	Attorney