Temple City Unified School District (PERB A190E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TEMPLE CITY EDUCATION ASSOCIATION,

CTA/NEA,
Case Nos. LA-CE-2789
Charging Party, LA-CE-2800
Vv. Administrative Appeal

TEMPLE CITY UNIFIED SCHOOL DISTRICT,

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) PERB Order No. Ad-190
)

Respondent. ) July 12, 1989
)

Appearances: Charles R. Gustafson, Attorney, California Teachers
Association, for the Temple City Education Association, CTA/NEA;
Wagner, Sisneros & Wagner by John J. Wagner, Attorney, for the
Temple City Unified School District.
Before Craib, Shank and Camilli, Members.

DECISTON

SHANK, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by the Temple City
Unified School District (District) of the administrative law
judge’s (ALJ) denial of the District’s motion to dismiss Temple
City Education Association, CTA/NEA’s (Association) amendment to
the complaint and to defer to binding arbitration. The District
filed a motion to stay the hearing on the remainder of the
complaint pending the decision of the Board.

The ALJ denied the motion, having found that the grievance
procedure does not "cover the matter at issue," and continued the
matter to allow the District the opportunity to appeal the ruling
directly to the Board. For the reasons set forth below, we

affirm the ALJ’s denial of the motion to dismiss and deny the

request for stay.

FACTS
The 	District 	and 	the 	Association 	entered 	into 	a 	collective
bargaining 	agreement 	(Agreement) 	in 	October, 	1986 	which 	defined
the 	terms 	and 	conditions 	of 	employment 	of 	the 	unit 	members 	for
the 	period 	September 	1, 	1986 	to 	June 	30, 	1989. 	Article 	XV1 of
1Article 	XV 	states:
1. 	The 	Distirct 	agrees 	to 	provide 	each
eligible 	unit 	member 	with 	fully 	paid 	health
and 	welfare 	benefits 	during 	the 	term 	of 	this
Agreement. 	The 	fully 	paid 	coverages 	include
the 	following:
a) 	the 	unit 	member's 	participation
in 	one 	of 	the 	medical 	plans 	offered
by 	the 	District 	and 	described 	in
Appendix 	A of 	this 	Agreement;
b) 	the 	unit 	member's 	participation
in 	one 	of 	the 	dental 	plans 	offered
by 	the 	District 	and 	described 	in
Appendix 	A of 	this 	Agreement;
c) 	the 	unit 	member's 	participation
in 	the 	vision 	plan 	offered 	by 	the
District 	and 	described 	in
Appendix 	A of 	this 	Agreement;
d) 	the 	unit 	member's 	participation
in 	a 	basic 	term 	life 	insurance 	plan
offered 	by 	the 	District 	and
described 	in Appendix 	A of 	this
Agreement.
2. 	The 	District's 	contribution 	toward 	each
unit 	members 	health 	and 	welfare 	benefits
shall 	be 	the 	equivalent 	of 	the 	total 	cost 	of
the 	options 	marked 	with 	an 	asterisk 	on
Appendix 	A. 	Unit 	members 	who 	choose 	a 	set 	of
options 	which 	exceed 	the 	total 	cost 	of 	the
options 	marked 	with 	an 	asterisk 	must 	sign 	a
payroll 	deduction 	for 	the 	difference. 	Unit
members 	who 	choose 	a 	set 	of 	options 	which
cost 	less 	than 	the 	total 	cost 	of 	the 	options
marked 	with 	an 	asterisk 	may 	apply 	the 	unused
fund 	at 	the 	teachers 	discretion 	for 	health
2

the 	Agreement 	describes 	the 	District's 	contribution 	and
obligations 	and 	the 	unit 	members' 	rights 	regarding 	various 	health
and 	welfare 	benefits. 	During 	the 	1986-87 	school 	year 	the 	cost 	of
the 	benefit 	plan was 	$2,700 	per 	unit 	member. 	During 	the 	1987-88
school 	year, 	the 	cost 	of 	that 	same 	plan was 	$3,000.
and 	welfare 	purposes, 	as 	listed 	in
Appendix 	A.
On 	or 	about 	June 	27, 	1988, 	the 	parties 	began 	meeting 	and
negotiating 	and 	exchanged 	proposals 	for 	health 	and 	welfare
benefits 	for 	the 	1988-89 	school 	year. 	On 	or 	about 	August 	29,
1988, 	the 	parties 	mutually 	agreed 	that 	they 	were 	at 	impasse 	and
petitioned 	PERB 	to 	appoint 	a 	mediator.
On 	October 	6 	and 	November 	7, 	1988, 	the 	Association 	filed
unfair 	practice 	charges 	alleging 	that 	the 	District: 	(1) 	refused
to 	bargain 	in 	good 	faith; 	(2) 	refused 	to 	participate 	in 	good
faith 	in 	the 	impasse 	procedure; 	(3) 	imposed 	illegal 	reprisals
against 	employees; 	and 	(4) 	illegally 	denied 	the 	Association
rights 	in 	violation 	of 	section 	3543. 5(a), 	(b), 	(c), 	and 	(e) 	of
the 	Educational 	Employment 	Relations 	Act 	(EERA). 2
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the 	Government 	Code. 	Section 	3543.5 	provides, 	in 	pertinent
part:
It 	shall 	be 	unlawful 	for 	a 	public 	school 	employer 	to:
(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.
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(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.
(e) 	Refuse 	to 	participate 	in 	good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in Article 	9
(commencing with 	Section 	3548).
Specifically, 	the 	charges 	allege 	that 	on 	or 	about
September 	1, 	1988, 	the 	District 	posted 	a 	sign-up 	sheet 	setting
forth 	the 	fringe 	benefit 	options 	for 	unit 	members 	for 	the 	1988-89
school 	year 	and 	indicated 	that 	the 	District's 	contribution would
be 	limited 	to 	the 	same 	$3,000 	total 	payment 	contribution 	as 	the
previous 	year. 	The 	charges 	further 	allege 	that 	on 	or 	about
September 	10, 	1988, 	approximately 	50 	unit 	members 	filed
grievances 	with 	the 	District 	alleging 	the 	impropriety 	of 	the
District's 	limit 	on 	fringe 	benefit 	contributions. 	The
Association 	moved 	the 	single 	grievance 	of 	its 	president, 	Janice
Murasko, 	to 	arbitration. 	The 	arbitrator 	held 	that 	the 	arbitrable
issues 	were 	limited 	to 	the 	Murasko 	grievance.
The 	Association, 	by 	letter 	dated 	January 	12, 	1989, 	requested
that 	the 	section 	3543.S(c) 	allegation 	be 	deleted. 	That 	portion
of 	the 	charge 	was 	withdrawn without 	prejudice 	by 	the 	regional
attorney 	and 	a 	complaint 	was 	issued 	on 	January 	17, 	1989. 	The
charges 	were 	consolidated 	on 	January 	20, 	1989.
The 	complaint 	alleged 	that 	certain 	conduct 	that 	occurred
during 	the 	impasse 	procedures 	violated 	section 	3543.S(e), 	and,
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derivatively, 	(a) 	and 	(b). 	Specifically, 	the 	complaint 	alleges
that: 	(1) 	the 	District 	stated 	that 	it 	would 	not 	negotiate 	with
the 	Association 	nor 	make 	any 	financial 	commitments 	regarding
issues 	in 	negotiations 	until 	grievances 	filed 	by 	bargaining 	unit
members 	concerning 	reductions 	in 	fringe 	benefit 	contributions
were 	resolved 	through 	the 	grievance 	procedure; 	and 	(2) 	the
District 	sent 	to 	all 	unit 	members 	who 	had 	not 	filed 	a 	grievance 	a
letter which 	stated 	that 	the 	unit 	members 	did 	not 	have 	to 	file
one 	since 	they 	would 	receive 	the 	same 	benefits 	as 	those 	who 	did.
The 	Association 	filed 	a 	motion 	to 	amend 	its 	charge 	on
March 	17, 	1989, 	alleging 	that 	the 	District 1 s 	distribution 	of 	the
fringe 	benefit 	sign-up 	sheet 	on 	September 	1, 	1988 	constituted 	a
unilateral 	change, 	as 	well 	as 	an 	attempt 	to 	bypass 	the
Association. 	On 	April 	25, 	1989, 	the 	ALJ 	granted 	that 	portion 	of
Association's 	motion 	with 	regard 	to 	the 	alleged 	unilateral 	change
and 	denied 	that 	portion 	alleging 	bypass 	for 	failure 	to 	state 	a
prima 	facie 	case. 	The 	District 	did 	not 	file 	a 	reply 	to 	the
motion.
On April 	26, 	1989, 	a 	hearing 	was 	held 	and 	the 	ALJ 	served 	the
parties 	with 	a 	copy 	of 	the 	amended 	complaint. 	The 	ALJ 	granted
the 	District 1 s 	request 	for 	a 	continuance 	to 	allow 	it 	to 	prepare 	a
defense 	and 	respond 	to 	the 	amendment. 	On May 	2, 	1989, 	the
District 	filed 	a 	motion 	to 	dismiss 	the 	amendment 	to 	the 	complaint
and 	alleged 	that 	the 	amendment 	is 	inappropriate 	because 	the
dispute 	in 	question 	is 	subject 	to 	final 	and 	binding 	arbitration.
The 	ALJ 	denied 	the 	District's 	motion 	at 	a 	hearing 	held 	on 	May 	18,
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1989. 	The 	ALJ 	found 	that 	the 	Murasko 	grievance 	did 	not 	11 cover
the 	matter 	at 	issue" 	and 	continued 	the 	matter 	to 	allow 	the
Association 	the 	opportunity 	to 	appeal 	the 	ALJ's 	ruling 	directly
to 	the 	Board.
On 	June 	6, 	1989, 	the 	Association 	appealed 	the 	ALJ's 	denial
of 	its 	motion 	to 	dismiss 	the 	amendment 	and 	moved 	to 	stay 	the
trial 	on 	the 	complaint 	in 	its 	entirety, 	pending 	a 	decision 	of 	the
Board 	on 	this 	appeal. 	The 	District 	also 	stated 	that 	the
amendment was 	filed 	more 	than 	six 	months 	after 	the 	alleged
conduct 	took 	place 	and 	is 	therefore 	barred 	by 	the 	provisions 	of
section 	3541.5(a) . 3
DISCUSSION
Deferral
Although 	the 	District 	correctly 	asserts 	that 	PERB 	has 	no
jurisdiction 	to 	hear 	a 	matter which 	is 	arguably 	prohibited 	by 	the
3Section 	3541.5 	states 	in 	relevant 	part:
The 	initial 	determination 	as 	to 	whether 	the
charges 	of 	unfair 	practices 	are 	justified,
and, 	if 	so, 	what 	remedy 	is 	necessary 	to
effectuate 	the 	purposes 	of 	this 	chapter,
shall 	be 	a 	matter 	within 	the 	exclusive
jurisdiction of 	the 	board. 	Procedures 	for
investigating, 	hearing, 	and 	deciding 	these
cases 	shall 	be 	devised 	and 	promulgated 	by 	the
board 	and 	shall 	include 	all 	of 	the 	following:
(a) 	Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the 	board
shall 	not 	do 	either 	of 	the 	following: 	( 1)
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;
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parties' 	agreement 	when 	the 	Agreement 	contains 	binding
arbitration 	machinery 	(Lake 	Elsinore 	School 	District 	(1988) 	PERB
Decision 	No. 	646), 	we 	agree 	with 	the ALJ 	that 	the 	grievance
machinery, 	in 	this 	instance, 	does 	not 	cover 	the 	matter 	at 	issue.
According 	to 	the 	District, 	the 	subject 	of 	the 	amended 	complaint
involves 	conduct 	arguably 	prohibited 	by 	the 	Agreement. 	The
District 	further 	asserts 	that 	the 	Agreement 	has 	grievance
machinery 	ending 	in 	binding 	arbitration which 	is 	now 	being
exercised 	by 	the 	parties.
Article 	III 	of 	the 	Agreement 	outlines 	the 	grievance
procedures. 	Section 	1 relates 	to 	individual 	unit 	members 	and
states:
A grievance 	is 	an 	allegation 	by 	a 	unit 	member
that 	there 	has 	been 	a 	violation,
misinterpretation, 	misapplication, 	or 	non-
application 	of 	a 	provision 	of 	this 	Agreement.
Article 	III, 	Section 	2 	relates 	to 	the 	Association 	and
states:
The 	Association 	may 	file 	a 	grievance 	on 	its
own 	behalf 	with 	respect 	to 	an 	alleged
violation, 	misinterpretation, 	misapplication,
or 	non-application 	of 	a 	provision 	of 	this
Agreement which 	provides 	for 	Association
rights.
(Emphasis 	added.)
The 	instant 	matter 	relates 	to 	conduct 	concerning 	health 	and
welfare 	benefits. 	Article 	III, 	Section 	2 	of 	the 	Agreement
specifically 	limits 	the 	Association 	to 	filing 	a 	grievance 	on 	its
own 	behalf 	only 	in 	those 	instances 	where 	the 	Agreement 	provides
for 	Association 	rights. 	Article 	XV 	of 	the 	Agreement 	describes
health 	and 	welfare 	benefits 	of 	each 	unit 	member 	but 	does 	not
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mention 	any 	rights 	on 	the 	part 	of 	the 	Association. 	Therefore, 	in
this 	particular 	case, 	the 	Association 	has 	no 	right 	under 	the
Agreement 	to 	file 	a 	grievance 	on 	its 	own 	behalf.
Furthermore, 	the 	conduct 	complained 	of 	in 	the 	proposed
amendment 	relates 	to 	the 	issue 	of 	whether 	the 	Association 	was
denied 	its 	right 	to 	represent 	its 	members 	by 	the 	alleged
unilateral 	change, 	which 	is 	different 	from 	the 	issue 	raised 	by
allegations 	in 	the 	Murasko 	grievance. 	The 	remedies 	afforded 	by
the 	arbitrator 	will 	be 	limited 	to 	Murasko 	only 	and 	will 	not
completely 	dispose 	of 	the 	issues 	raised 	by 	the 	proposed
amendment. 	Therefore, 	the 	amendment 	does 	not 	"cover 	the 	matter
at•issue" 	under 	section 	3541.S(a), 	and 	we 	affirm 	the 	ALJ's 	ruling
on 	the 	deferral 	issue.
Statute 	of 	Limitations
The 	District 	appeals 	to 	the 	Board 	to 	overrule 	the 	ALJ's
denial 	of 	its 	motion 	based, 	inter 	alia, 	on 	the 	fact 	that 	the
amendment 	was 	filed 	more 	than 	six 	months 	after 	the 	alleged
conduct 	took 	place 	and 	is, 	therefore, 	time-barred 	by 	section
3541.5.
The 	proposed 	amended 	charge 	was 	filed 	more 	than 	six 	months
after 	the 	Association 	had 	knowledge 	of 	the 	District 1 s 	conduct
with 	regard 	to 	the 	alleged 	unilateral 	change. 	However, 	an
exception 	to 	the 	limitations 	period 	set 	forth 	in 	section
3541.S(a) 	may 	be 	made 	where 	an 	amended 	charge 	is 	found 	to 	"relate
back" 	to 	the 	original 	charge. 	(Gonzales 	Union 	High 	School
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District 	(1984) 	PERB 	Decision 	No. 	410; 	Burbank 	Unified 	School
District 	(1986) 	PERB 	Decision 	No. 	589.)
In 	Gonzales, 	the 	Board 	allowed 	an 	amendment 	because 	it
simply 	added 	another 	legal 	theory 	based 	on 	the 	same 	set 	of 	facts
contained 	in 	the 	original 	charge. 	The 	original 	charge 	alleged 	a
unilateral 	change 	and 	the 	amendment 	alleged 	that 	the 	same 	conduct
also 	constituted 	retaliation. 	In 	contrast, 	in 	Monrovia 	Unified
School 	District 	(1984) 	PERB 	Decision 	No. 	460 	and 	Burbank 	Unified
School 	District, 	supra, 	PERB 	Decision 	No. 	589, 	the 	Board 	found
that 	the 	proposed 	amendments 	did 	not 	"relate 	back'' 	because 	they
were 	not 	sufficiently 	related 	to 	or 	raised 	by 	the 	initial 	charge.
In 	the 	instant 	case, 	the 	initial 	charge 	states:
On 	or 	about 	September 	1, 	1988, 	the 	District
began 	soliciting 	unit 	member 	sign-ups 	for
their 	fringe 	benefit 	options 	for 	the 	1988-89
school 	year. 	The 	sign-up 	sheet 	offered 	by
the 	District 	at 	the 	time 	indicated 	that 	the
District's 	contribution would 	be 	limited 	to
$300.00 	tenthly 	or 	the 	same 	$3,000.00 	total
payment 	contributed 	by 	the 	District 	during
the 	previous 	school 	year. 	A $3,000.00 	limit
is 	$1,407.10 	less 	than 	the 	amount 	required 	to
pay 	for 	the 	benefit 	plans 	previously 	covered
by 	the 	District's 	contribution 	and 	identified
by 	an 	asterisk ....
The 	proposed 	amendment 	states:
On 	or 	about 	September 	1, 	1988, 	the 	District
unilaterally 	changed 	its 	contribution 	from
that 	required 	by 	the 	collective 	bargaining
agreement 	(See Attachment 	A) 	by 	limiting 	its
contribution 	to 	$3,000.00 	for 	the 	year. 	This
unilateral 	action 	was 	reflected 	in 	a 	sign-up
sheet 	distributed 	at 	that 	time 	to 	unit
members 	indicating 	the 	District 1 s
contribution would 	be 	limited 	to 	$300.00
tenthly, 	which 	is 	the 	same 	$3,000.00
contributed 	during 	the 	previous 	year. 	This
distribution 	of 	the 	sign-up 	sheet 	containing
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the 	unilateral 	change 	constituted 	direct
negotiations 	with 	unit 	members 	and 	an
unlawful 	bypassing 	of 	the 	Association. 	The
$3,000.00 	limit 	is 	$1,407.10 	less 	than 	the
amount 	required 	to 	pay 	for 	the 	benefit 	plans
previously 	covered 	by 	the 	District's
contribution 	and 	identified 	by 	an
asterisk.
Although 	the 	District 	alleges 	that 	the 	amendment 	raises 	a
new 	issue, 	we 	find 	that 	the 	initial 	charge 	and 	the 	proposed
amendment 	both 	describe 	conduct 	by 	the 	District 	regarding 	limits
on 	the 	District's 	contribution 	toward 	unit 	members' 	health 	and
welfare 	benefits. 	The 	initial 	charge 	fails 	to 	indicate 	clearly
the 	legal 	theory 	attached 	to 	the 	alleged 	conduct. 	The 	amended
charge 	cites 	the 	same 	conduct, 	but 	labels 	it 	as 	a 	unilateral
change. 	This 	case 	is 	similar 	to 	Gonzales, 	and 	requires 	the 	same
result.
CONCLUSION
For 	the 	reasons 	stated 	above, 	we 	find 	that 	the 	grievance
procedure 	does 	not 	cover 	the 	matter 	at 	issue 	and 	that 	the
amendment 	is 	substantially 	related 	to 	the 	initial 	charge.
Accordingly, 	we 	affirm 	the 	ALJ's 	denial 	of 	the 	District's 	motion
to 	dismiss 	the 	amendment. 	Therefore, 	we 	find 	it 	unnecessary 	to
grant 	District's 	request 	for 	stay.
ORDER
The 	Board 	DENIES 	the 	Request 	for 	Stay, 	AFFIRMS 	the 	denial 	of
the 	motion 	to 	dismiss 	the 	amendment,· and 	instructs 	the 	ALJ 	to
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proceed 	with 	the 	hearing 	on 	the 	complaint 	in 	Case 	Nos. 	LA-CE-2789
and 	LA-CE-2800.
Members 	Craib 	and 	Camilli 	joined 	in 	this 	Decision.
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