Lake Elsinore Union School District (PERB 0441E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JAMES E. CALDWELL,
Charging Party, Case No. LA-CE-1923

Ve PERB Decision No. 441

LAKE ELSINORE UNION SCHOOL DISTRICT, November 29, 1984

Respondent.

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Appearance: James E. Caldwell on his own behalf.

Before Jaeger, Morgenstern and Burt, Members.
DECISION

BURT, Member: This case is before the Public Employment
Relations Board (Board) on an appeal by James E. Caldwell of
the Board agent's dismissal, attached hereto, of his charge
alleging that the Lake Elsinore Union School District violated
section 3543.5(a) of the Educational Employment Relations Act
(Government Code section 3540 et seq.).

We have reviewed the dismissal and, finding it free from
prejudicial error, adopt it as the Decision of the Board itself.

ORDER
The unfair practice charge in Case No. LA-CE-1923 is

DISMISSED WITHOUT LEAVE TO AMEND.

Members Jaeger and Morgenstern joined in this Decision.

STATE OF CALIFORNIA 	GEORGE DEUKMEHAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
LOS ANGELES, CALIFORNIA 90010
(213) 736-3127
April 18, 1984
James Caldwell
James Whitlock
Parham & Associates
2691 Richter Avenue, Suite 132
Irvine, CA 92714
RE : 	LA-CE-1923, Caldwell v. Lake Elsinore Union
School District, DISMISSAL OF UNFAIR PRACTICE CHARGE
The above charge was filed on February 10, 1984, alleging that
the district discriminatorily refused Caldwell's mileage
reimbursement claim, and thereafter discriminatorily denied his
grievance, pertaining to this refusal because of his union
activity as chairman of the teacher's association and because
he filed grievances and unfair practice charges against the
district within the last six months.
My investigation has revealed the following facts. On about
September 8, 1983, James Caldwell filed a demand for mileage
reimbursement for travel expenses incurred for attendance at a
district in-service meeting. The claim was subsequently denied
by the district on September 12, 1983.
On about September 20, 1983, Caldwell and grievance
representative Halle Reising presented an oral grievance to the
district pursuant to section 15.5 of the current collective
bargaining agreement, and alleging a violation of article 23.2
(mileage) . Said agreement contains a grievance procedure
ending in binding arbitration (Sect. 15.10 et. seq.). The
pertinent articles in the contract read:
"12.2. There shall be no discrimination against any
employee becuase of his/her membership in the
Association or because of his/her acting as an
officer, or in any official capacity on behalf of the
Association. .
23.2. Mileage - The District shall provide
transportation for required travel or reimburse the
bargaining unit member at the rate of 23 per mile
for the 1982-83 school year or the Internal Revenue
Service allowance, whichever is greater".

LA-CE-1923
April 18, 1984
Page 2
The grievance was denied at the first two levels because the
lower level supervisors asserted that they could not resolve
the problem at the "building level". When the grievance
reached level III, it was denied on the stated grounds that the
contract language did not apply to incidental travel, such as
going from one school to another for a district meeting, but
only applied to unit members who, as a course of their job, are
assigned school-to-school, home-teaching, or out-of-district
travel. 1
The grievance thereafter reached level IV of the procedure,
wherein the parties requested mediation. In support of his
position at this level, Caldwell wrote, inter alia, the
following:
"I don't recall saying that I was the only one filing
a mileage claim. The District alone would know
this. I do recall saying that if anyone else had
applied there would have been no denial. 	This
comment caused a stunned silence for an extended
period of time. 	I do wonder about the possibility of
discrimination".
The parties reached a mediated settlement at this level on
November 16, 1983. 	That document states:
"The Lake Elsinore School District hereby agrees to pay the
mileage claim of James Caldwell for business travel on
September 7, 1983 (9.2 miles 234 per miles [sic]). This
Agreement resolves the EVEA [Elsinore Valley Education
Association] grievance filed 9/21/83".
The agreement was executed by James Whitlock, District
Representative, and Dee Thomas, EVEA President. A check for
the mileage was issued to Jim Caldwell on November 30, 1983.
Based upon the foregoing facts, supplied almost entirely by
Charging Party, the charge fails to establish a prima facie
violation of the EERA. The parties negotiated for, and
obtained a grievance procedure in their contract to settle
1
Caldwell's mileage claim was for traveling 9.2 miles of
in-district travel.

April 18, 1984
LA-CE-1923
Page 3
disputes of mileage reimbursement and allegations of
discrimination due to protected activity. The District has
followed the procedure and settled the grievance.
Section 3541.5(a) of the Government Code prohibits the PERB
from issuing a Complaint against conduct also prohibited by
the provisions of the 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". However, the Board, pursuant to that
section, has discretionary jurisdiction to review a settlement
or arbitration award solely for the purpose of determining
whether it is repugnant to the purposes of the EERA.
The Charging Party has not filed this charge on the basis that
the settlement is repugnant to the Act. If he so intended, he
has not met the filing requirements of Board Regulation 32661
(8 Cal. Admin. Code), which requires that he allege with
specificity the facts underlying the party's claim that the
settlement is repugnant. Instead, Charging Party has stated
that the grievance resolved only his mileage claim, but not his
claim that the denial of his grievance was discriminatory,
causing him to expend time and resources in appealing it.
This position ignores the fact that the grievance procedure
itself is the avenue designed by the parties to deal with the
method of processing such complaints. The discriminatory
conduct of which Charging Party complains is prescribed by the
contract's "no discrimination" clause noted above. See Baldwin
Park Unified School District (4/4/79) PERB Decision No. 92.
The fact that he argued a "possible discrimination" during the
grievance procedure indicates that he was aware of a
discrimination claim prior to reaching a settlement of the
dispute. Yet, he proceeded to settle the claim. Charging
Party either failed to raise the discrimination argument
properly during his grievance, or he did raise it, and settled
the dispute nonetheless on November 16, 1983. In either case,
he is estopped from raising an issue that was finally resolved
through the parties' negotiated procedure, or that should have
been raised during the same. 	For the above reasons, the charge
is hereby dismissed.
Pursuant to Public Employment Relations Board regulation 32635
(California Administrative Code, title 8, part III) , you may

LA-CE-1923
April 18, 1984
Page 4
appeal the refusal to issue a complaint (dismissal) to the
Board itself.
Right to Appeal
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 Notice (section 32635 (a) .
To be timely filed, the original and five (5) copies of such
appeal must be actually received by the Board itself before the
close of business (5:00 p.m. ) on May 8, 1984, or sent by
telegraph or certified United States mail postmarked not later
than May 8, 1984 (section 32135). The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
If you file a timely appeal of the refusal, any other party may
file with the executive assistant to the Board an original and
five (5) copies of a statement in opposition within twenty (20)
calendar days following the date of service of the appeal
(section 32635 (b) ) .
Service
All documents authorized to be filed herein except for
amendments to the charge must also be "served" upon all parties
to the proceeding, and a "proof of service" must accompany the
document filed with the Regional Office or the Board itself
(see section 32140 for the required contents and a sample
form). The documents will be considered properly "served" when
personally delivered or deposited in the first-class mail
postage paid and properly addressed.
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
executive assistant to the Board at the previously noted
address. A request for an extension in which to file a
document with the Regional Office should be addressed to the
Regional Attorney. A request for an extension must be filed at
least three (3) calendar days before the expiration of the time

LA-CE-1923
April 18, 1984
Page 5
required for filing the subject document. The request must
indicate good cause for the position of each other party
regarding the extension and shall be accompanied by proof of
service of the request upon each party (section 32132).
Final Date
If no appeal is filed within the specified time limits, the
dismissal will become final when the time limits have expired.
Very truly yours,
Dennis Sullivan
General Counsel
Manuel M. Melgoza
Regional Attorney
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