Vista Unified School District (Williamson and Grayson) (PERB A043E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
ROBERT
	EARL
	WILLIAMSON,
JAMES
	YOUNG
	GRAYSON,
Charging
	Parties,
APPELLANTS,
v.
VISTA 	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
) 	Case 	No. 	LA-CE-201
PERB
	Order
	No. 	Ad- 43
Administrative
	Appeal
July
	19,
	1978
)
)
)
)
)
)
)
)
Appearances: 	Robert
	Earl
	Williamson
	and 	James 	Young
	Grayson,
	for
themselves; 	William
	F.
	Kay,
	Attorney
	(Whitmore 	& Kay)
	for 	Vista
Unified
	School
	District.
Before
	Gluck,
	Chairperson;
	Cossack
	Twohey 	and
	Gonzales,
	Members.
OPINION
This
	is
	an
	administrative
	appeal
	by
	Robert
	Earl
	Williamson
	and
James 	Young 	Grayson
	(hereafter
	Charging
	Parties)
	from 	a
	decision
	by
Public
	Employment
	Relations
	Board
	(hereafter
	Board)
	hearing
	officer
David
	Schlossberg 	dismissing
	Charging
	Parties' 	unfair 	practice
charge 	because
	it
	was
	untimely
	amended.
	We
	reverse 	the 	hearing
officer's
	determination
	that
	the
	amendment was
	untimely
	filed.
	We
remand
	the 	case 	to 	the 	general 	counsel 	for
	a
	determination 	on
	its
merits.
FACTS
On
	November 	18, 	1977 	Charging 	Parties 	filed
	an
	unfair 	practice
charge 	against 	Vista 	Unified 	School
	District 	(hereafter 	District).

The
	charge
	alleged
	that
	the
	District
	had
	violated 	section
	3543.S(a)
of 	the
	Educational
	Employment
	Relations
	Act
	(hereafter
	EERA)
. 1
The
	charge
	alleges 	that
	the
	District
	violated 	section
	3543.5(a)
by
	interfering
	with
	Charging
	Parties' 	right
	to
	present 	grievances.to
the
	District.
	Charging
	Parties
	rely
	on
	section
	3543,
	which 	provides
in
	pertinent 	part, 	that:
...
Any
	employee
	may
	at
	any
	time
	presentgrievances 	to
	his
	employer,
	and 	have 	such
grievances 	adjusted
•.•.
Pursuant 	to
	an
	order
	to
	particularize
	issued
	by
	the 	hearing
officer
	on December
	20, 	1977,
	Charging
	Parties
	submitted
	a
	bill
	of
particulars
	on
	January
	5,
	1978.
	The
	hearing
	officer
	dismissed 	the
charge
	on
	January
	26, 	1978.
	In 	the 	dismissal
	he 	informed 	Charging
Parties
	of
	their 	right
	to
	either
	amend
	the
	charge
	or 	appeal 	the
dismissal 	to 	the-Board
	itself.
	The
	first
	sentence 	of 	the
	notice
of 	dismissal 	with 	leave 	to
	amend
	stated:
NOTICE
	IS
	HEREBY
	GIVEN
	that
	the
	above
	charge
is
	dismissed with 	leave 	to
	amend
	within 	ten
(10)
	calendar
	days.
Charging
	Parties
	deposited
	an
	amended
	charge
	in 	the 	mail
	on
February
	7, 	1978. 	The 	amended
	charge
	was
	received 	in 	the
	Los 	Angeles
Regional 	Office
	on
	February 	8, 	1978.
	On
	February
	15, 	1978
	the
hearing
	officer
	informed
	the
	parties 	that
	he 	had
	closed 	the 	case
because
	there
	had 	been no
	appeal 	of 	the 	dismissal 	to 	the 	Board
itself
	or 	timely
	amended
	charge.
	The
	hearing
	officer 	rejected
	the
The
	Educational
	Employment
	Relations 	Act
	is 	codified
	at
	Gov.
Code
	sec.
	3540
	et 	seq. 	All 	further 	references 	are 	to 	the 	Govern-
ment 	Code
	unless 	otherwise noted.
1
-2-

amended 	charge 	as 	untimely, 	stating 	that 	the 	notice 	of 	dismissal 	had
allowed:
Ten 	(10) 	calendar 	days 	in which 	to 	either
amend 	the 	unfair 	practice 	charge 	or 	file
an 	appeal 	with 	the 	Board 	itself. 	Because
February 	5, 	1978 	was 	a 	Sunday, 	the 	dead-
line 	for 	filing 	the 	amendment 	or 	appeal
was 	February 	6, 	1978.
Charging 	Parties 	have 	appealed 	this 	rejection. 	The 	appeal 	notes
that 	the 	notice 	of 	dismissal 	gave 	the 	Charging 	Parties 	"ten 	calendar
days" 	to 	amend. 	They 	received 	the 	notice 	on 	January 	28, 	1978. 	Ten
days 	later, 	February 	7, 	they 	deposited 	their 	amended 	charge 	in 	the
mail.
DISCUSSION
The 	notice 	of 	dismissal 	with 	leave 	to 	amend 	did not 	tell
Charging 	Parties 	when 	the 	ten 	calendar 	days 	within 	which 	they 	could
amend 	their 	charge 	began 	to 	run. 	The 	hearing 	officer 	counted 	the
ten 	days 	from 	the 	date 	of 	service 	of 	the 	notice 	of 	dismissal.
Charging 	Parties 	interpreted 	the 	notice 	of 	dismissal 	as 	providing
that 	the 	ten 	calendar 	days 	in which 	to 	amend 	began 	to 	run 	the 	day
after 	they 	received 	the 	notice 	of 	dismissal. 	In view of 	the 	lack
of 	clear 	and 	unequivocal 	notice 	to 	Charging 	Parties 	of when 	the
time 	within 	which 	they 	could 	amend 	their 	charge 	began 	to 	run, 	we
reverse 	the 	hearing 	officer's 	rejection 	of 	the 	amended 	charge 	and
remand 	the 	case 	to 	the 	general 	counsel 	for 	a 	determination 	-of- wfi.ether
or not 	the 	amended 	charge 	states 	a 	prima 	facie 	case.
--·--·---------
ORDER
The 	Public 	Employment 	Relations 	Board 	orders 	that:
(1) 	The 	hearing 	officer's 	rejection 	of 	the 	amended 	unfair
practice 	charge 	filed 	by Robert 	Earl 	Williamson 	and 	James 	Young 	Grayson
-3-

against 	Vista
	Unified
	School
	District 	is
	reversed.
(2) 	The 	amended
	unfair 	practice
	charge
	is
	remanded
	to
	the
general
	counsel
	for
	a
	determination
	o-f
	whether
·or
not-the
	amended
charge
	states
	a
	prima
	facie
	case.
!Bf
-j~~ilou
	Cossack
	Twohey, 	Meffiber	
Gluck,Chairperson
/Raymonl
J.
	Gonzafes, 	~ember
-4-

PUBLIC
	EMPLOYMENT
'RELATIONS
	BOARD
OF THE
	STATE
	OF
	CALIFORNIA
ROBERT EARL
	WILLIAMSON,
JAMES
	YOUNG
	GRAYSON,
Petitioners,
vs.
VISTA UNIFIED
	SCHOOL
	DISTRICT,
Respondent,
)
)
)
)
)
)
)
)
)
)
)
Case
	No.
	LA-CE-201-77/78
NOTICE
	OF
	DISMISSAL
WITH LEAVE
	TO
	AMEND
NOTICE
	IS
	HEREBY
	GIVEN
	that
	the
	above
	charge
	is
	dismissed 	with 	leave
to
	amend
	within 	ten
	(10)
	calendar
	days.
	The
	dismissal
	is
	based
	on
the
	advice
	of 	the
	General Counsel,
	on
	the 	following 	grounds.
The
	allegations
	of 	the 	unfair
	practice
	charge 	as
	set
	out
	in
charging
	parties'
	initial
	charge
	and
	their
	response 	to 	the 	hearing
officer's
	Order
	to
	Particularize
	are
	insufficient
	to
	establish
	a
prima
	facie 	violation
	of 	Section
	3543.S{a)
	of 	the 	Educational
Employment
	Relations
	Act
	(EERA)
.1
l	
Gov't
	Code
	Sec. 	3540,
	et
	seq.

The 	charge, 	as 	particularized, 	alleges 	that 	respondent 	has
violated 	the 	collective 	bargaining 	agreement 	between 	the 	respondent
and 	the 	exclusive 	representative 	with 	respect 	to 	certain 	provisions
relating 	to 	class 	size 	and 	placement 	on 	the 	salary 	schedule. 	It 	is
also 	alleged 	that 	respondent 	interfered with 	the 	right 	of 	charging
parties 	to 	file 	a 	grievance 	in 	that 	the 	supporting 	papers
accompanying 	their 	grievances 	were 	not 	delivered 	by 	the
superintendent 	(or 	other 	unknown 	persons) 	to 	the Board 	of 	Trustees.
-----
Section 	3541.S(b) 	of 	the 	EERA 	states:
The 	board 	shall 	not 	have 	authority 	to 	enforce
agreements 	between 	the parties, 	and 	shall not
issue 	a 	complaint 	on 	any 	charge 	based 	on 	alleged
violation of 	such 	a 	agreement 	that would 	not 	also
constitute 	an 	unfair 	practice 	under 	this 	chapter.
Thus, 	there must 	be 	independent 	grounds 	for 	finding 	that 	an
unfair 	practice 	has 	occurred 	other 	than 	that 	there 	was 	a 	violation
of 	a 	contract. 	The 	only 	right 	or 	obligation 	established 	by 	the 	EERA
with 	respect 	to 	class 	size 	or 	salary 	is 	that 	these 	are 	mandatory
subjects 	of 	meeting 	and 	negotiating 	between 	the 	exclusive
representative 	and 	respondent. 	No 	specific 	right 	is 	held 	by
charging 	parties 	with 	respect 	to 	these 	two 	topics.
Nor 	does 	the 	EERA 	establish 	an 	independent 	right 	for 	the
charging 	parties 	to 	file 	a 	grievance 	with 	respondent. 	Section 	3543
states, 	in 	part, 	as 	follows:
Any 	employee 	may 	at 	any 	time 	present 	grievances
to 	his 	employer, 	and 	have 	such 	grievances
adjusted, 	without 	the 	intervention 	of 	the
exclusive 	representative, 	as 	long 	as 	the
adjustment 	is 	reached 	prior 	to 	arbitration •..
2

However,
	this
	language
	does
	not
	create,
	as 	charging
	parties
contend,
	a
	right
	to
	file
	grievances 	or
	even
	a
	right
	to
	ut~lize
	the
grievance
	procedure	
set	
out 	in
	a
	written
	agreement~
	What
	is
guaranteed
	is
	that
	if
	the
	individual
	employee
	desires
	to
	utilize
	the
existing
	grievance 	procedure,
	he
	is
	not 	required 	to 	obtain
	the
concurrence 	of 	the 	exclusive
	representative 	(prior 	to 	the
arbitration
	stage}.
	However,
	the
	charge
	does
	not
	allege
	that
respondent
	failed
	to
	process 	the 	grievance
	because
	of
	an
	objection
by 	the 	exclusive
	representative.
	Rather,
	it
	alleges
	merely
	a
	denial
of
	the
	right
	to
	utilize
	existing
	grievance 	procedures. 	This
	is
	a
matter 	of
	contractual
	enforcement
	and
	not
	an
	action
	which
constitutes
	an
	unfair
	practice
	charge
	under
	the
	EERA.
The 	aboye
	action
	is
	taken
	pursuant
	to
	PERB
	Regulation
	35007(a).
If
	charging
	parties
	choose
	not
	to"amend
	the 	charge, 	they
	may
	obtain
review
	of 	the 	dismissal	
by	
filing
	an
	appeal
	to
	the
	Board
	itself
within
	ten
	{10)
	calendar
	days
	after
	service 	of
	this
	Notice
	of
Dismissal with
	Leave
	to
	Amend. 	Such
	appeal
	must 	be
	in
	writing,
signed	
by	
charging
	parties
	or
	their
	agent,
	and
	contain 	the
	facts
	and
arguments
	upon 	which
	the 	appeal
	is
	based.
	PERB
	Regulation
35007(b}.
	A copy
	of
	any
	appeal
	filed
	with 	the
	Board
	itself
	must
3

concurrently
	be
	served	
by	
the 	charging
	parties
	on
	respondent
	so
	that
respondent
	will
	have
	an
	opportunity 	to 	exercise
	its
	right~
	under
PERB
	Regulation
	35007{c).
	See Olson
	vs.
	Manteca
	Unified 	School
District,
	EERB
	Decision
	No.
	21,
	August
	5,
	1977.
DATED:
	January
	26,
	1978
4