Long Beach Community College District (PERB 1475E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARY THORPE & LONG BEACH COUNCIL
OF CLASSIFIED EMPLOYEES, AFT
LOCAL 6108,

Charging Parties, Case No. LA-CE-4334-E

v. PERB Decision No. 1475

LONG BEACH COMMUNITY COLLEGE February 15, 2002

DISTRICT,

Respondent.

Appearances: Lawrence Rosenzweig, Attorney, for Mary Thorpe & Long Beach Council of
Classified Employees, AFT Local 6108; Parker & Covert LLP by Spencer E. Covert, Attorney,
for Long Beach Community College District.
Before Baker, Whitehead and Neima, Members.
| DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Mary Thorpe & Long Beach Council of Classified Employees, AFT
Local 6108 (Thorpe and AFT) of a Board agent's dismissal (attached) of their unfair practice
charge. The charge alleged that the Long Beach Community College District (District)

violated section 3543.5(a), (b) and (c) of the Educational Employment Relations Act (BERA)!

by refusing to arbitrate Thorpe's grievance.

'EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all other references are to the Government Code. Section 3543.5 states, in pertinent part:

It shall be unlawful for a public school employer to do any of the
following:

whether PERB has exclusive jurisdiction or whether the court has jurisdiction to decide the
Petition to Compel Arbitration. The appeal before the Board states:
The purpose of this Appeal is to show that the dismissal of these
charges is based upon a misapplication of the statute of
limitations. However, in addition, Charging Parties also urge
PERB to remand the matter to the Regional Attorney for a
determination of whether PERB has jurisdiction at all. In
particular, Charging Parties contend that, pursuant to Government
Code Section 3541.5(b). PERB does not have jurisdiction to
enforce the collective bargaining agreement between the District
and the CSEA.
Thorpe and AFT's appeal essentially seeks an advisory opinion from PERB. As the
timeliness of the charge is not established, the Board's inquiry into whether the charge states
a prima facie case ends. (EERA section 3541.5(a)(1).) The Board declines to determine
whether the untimely allegations constitute a violation of EERA. (Jefferson School District
(1980) PERB Order No. Ad-82; Wilmar Union Elementary School District (2000) PERB
Decision No. 1371.)
ORDER
The unfair practice charge in Case No. LA-CE-4334-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
3

The Board has reviewed the entire record in this case including the unfair practice
charge, the dismissal letter, Thorpe and AFT's appeal and the District's response to the appeal.
The Board agent correctly dismissed the charge as untimely. The Board finds the Board
agent's dismissal letter to be free from prejudicial error and adopts it as the decision of the
Board consistent with the following.
DISCUSSION
Thorpe and AFT argue that the charge alleges a continuing violation and is therefore
timely. Thorpe and AFT claim the District's position constitutes a continuous refusal to
arbitrate until a new agreement is reached with AFT, therefore the refusal to arbitrate is
ongoing and the six-month statute of limitations does not bar the charge. The District correctly
notes that Thorpe's grievance is the only dispute at issue in this matter, therefore the District's
decision to arbitrate only with the California School Employees Association (CSEA) pertains
only to Thorpe's grievance. Thorpe and AFT's continuing violation theory is rejected; the
charge is untimely.
Thorpe and AFT's appeal noted that because the dismissal was based upon the statute of
limitations, PERB has not resolved the issue presented to the Los Angeles Superior Court in
Thorpe's Petition to Compel Arbitration case (Petition) against both CSEA and the District;
(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.
2

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blud.. Suite 1435
Los Angeles. CA 90010-2334
Telephone: (213) 736-3543
13) 736-4901
November 8, 2001
Lawrence Rosenzweig, Attorney
2730 Wilshire Blvd., Suite 425
Santa Monica, CA 90403
Re: 	Mary Thorpe & Long Beach Council of Classified Employees, AFT Local 6108 v.
Long Beach Community College District
Unfair Practice Charge No. LA-CE-4334-E
DISMISSAL LETTER
Dear Mr. Rosenzweig:
This charge was filed October 10, 2001 by Mary Thorpe and Long Beach Council of Classified
Employees, AFT Local 6108 (Thorpe and AFT) against the Long Beach Community College
District (District). It is alleged that the District refused to arbitrate Ms. Thorpe's out-of-class
grievance thereby repudiating a collective bargaining agreement and committing unilateral
changes in working conditions. It is alleged the District has also denied AFT its rights. It is
alleged that this conduct is in violation of Government Code section 34543.5(a) (b) and (c) of
the Educational Employment Relations Act (EERA)."
On November 7, 2001, I discussed concerns I had about this charge with you. You waived a
Warning Letter for Charging Parties and I indicated I would send you a Dismissal Letter
instead.
My investigation has revealed the following facts. CSEA was the exclusive representative of
classified employees of the District until March 27, 2000 when it was decertified and AFT was
declared the new exclusive representative." The District and CSEA were parties to a collective
bargaining agreement effective July 1, 1994 through June 30, 1997. The parties extended it to
June 30, 1998.
Ms. Thorpe, a classified unit member represented then by CSEA filed a working out of class
grievance on or about December 11, 1998 alleging a violation since April 2, 1998 of Articles
XIII (Pay and Allowance) and XXIII (No Discrimination) of the Agreement. On
September 14, 1999, CSEA advised the District that it was going to take the grievance to Level
In Oxnard School District (Gorcey and Tripp) (1988) PERB Decision No. 667, it was held
that individual employees did not have standing to allege that the employer refused to
negotiate in good faith, in violation of EERA section 3543.5(c). Therefore, allegations of
unilateral change as to Charging Party Thorpe are hereby dismissed.
A tally of the ballots in the representation election occurred on March 10, 2000, and the
Certification of Representative was issued on March 27, 2000.

LA-CE-4334-E
November 8, 2001
Page 2
IV-Arbitration. After CSEA lost the decertification election in March 2000, it advised Ms.
Thorpe by letter dated March 17, 2000, that it could no longer represent her and proceed on the
grievance to arbitration. Ms. Thorpe was advised to learn who her new representative was.
After AFT decertified CSEA, the matter did not proceed to arbitration and the District has
indicated that it will only arbitrate with CSEA, not the new exclusive representative, the AFT.
CSEA has been advised of the District's position.
On February 23, 2001, Ms. Thorpe filed a Petition to Compel Arbitration seeking a court order
requiring the District to arbitrate with CSEA or another organization. CSEA filed a demurrer
arguing that the petition is within PERB's jurisdiction. The ruling on the demurrer was stayed.
on September 26, 2001. The Court placed the case in abeyance for ninety (90) days. It
directed Ms. Thorpe to file an Unfair Practice Charge at PERB. Charging Parties have filed
this charge and a second charge against CSEA, LA-CO-1054.' The court case is scheduled for
January 2, 2002 for determining the status of the PERB matter.
Based on the above facts, the charge does not state a prima facie violation within PERB's
jurisdiction.
Charging Parties allege that the District abrogated the contract and made unilateral changes in
working conditions involving the grievance procedure. EERA section 3541.5(a)(1) prohibits
PERB from issuing a complaint with respect to "any charge based upon an alleged unfair
practice occurring more than six months prior to the filing of the charge." The limitations
period begins to run once the charging party knows, or should have known, of the conduct
underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No.
1177.) In a unilateral change case, the six month period begins running on the date the
Charging Party has actual or constructive notice of the District's clear intent to implement a
unilateral change in policy, provided that nothing subsequent to that date evidences a
waivering of that intent. (The Regents of the University of California (1990) PERB Decision
No. 826-H.) The charging party bears the burden of demonstrating that the charge is timely
filed. (Tehachapi Unified School District (1993) PERB Decision No. 1024; State of California
Department of Insurance) (1997) PERB Decision No. 1197-S.)
In March 2000, CSEA was decertified by the AFT. CSEA advised Ms. Thorpe on March 17,
2000 that it would no longer represent her on her grievance. After AFT decertified CSEA. the
District refused to arbitrate the case, except with CSEA. Based on this, on February 23, 2001,
Ms. Thorpe filed a Petition to Compel Arbitration in Court. The Charging Parties were aware
of the District's alleged changes in policy regarding arbitration during the year 2000. Even
assuming that they did not have full knowledge until February 23, 2001, when the Petition was
filed, they had until August 23, 2001 to file a charge. As this charge was filed October 10,
2001, it is untimely and is hereby dismissed.
I issued a Dismissal Letter on November 1, 2001 in Case No. LA-CO-1054-E.

LA-CE-4334-E
November 8, 2001
Page 3
Right to Appeal
Pursuant to PERB Regulations," you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 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.
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).)
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-4334-E
November 8, 2001
Page 4
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.)
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
Marc S. Hurwitz
Regional Attorney
cc: Spencer E. Covert, Esq. Parker & Covert, LLP.
MSH