PERB Decision No. 0495E•El Dorado Union High School District (PERB 0495E)
El Dorado Union High School District (PERB 0495E)
PERB Decision No. 0495ECalperbMar 14, 1985
Full text
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD a EL DORADO UNION HIGH SCHOOL DISTRICT, Charging Party, v. CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION AND ITS PONDERADO CHAPTER NO. 267, Respondent. ) ) ) ) case No. s-co-116 PERB Decision No. 495 March 14, 1985 ) ) ) ) ) ) ) ) __________________ ) Appearance: Girard and Griffin, by Thomas M. Griffin, for El Dorado Union High School District. Before Hesse, Chairperson; Jaeger, Morgenstern and Burt, Members. DECISION This case is before the Public Employment Relations Board on appeal by charging party of the Board agent's dismissal, attached hereto, of its charge alleging that the California School Employees Association and its Ponderado Chapter No. 267 violated section 3543.6(c) of the Educational Employment Relations Act (Gov. Code sec. 3540 et seq.). We have reviewed the dismissal and, finding it free from error, adopt it as the Decision of the Board itself. ORDER The unfair practice charge in Case No. SF-CO-116 is DISMISSED WITHOUT LEAVE TO AMEND. By the BOARD
11. Ti Of CAllfOIMIA
PUBLIC EMPLOYMENT RELATIONS BOARD
HEADQUAHIH OfFICl
1031 11TH S1lEET
SACIAMEN10, CAUFOIINIA 9511'
(916) 322-3011
a
November 30. 1984
Thomas M. Griffin
Girard & Griffin
511 O Street. suite 29
Sacramento. CA 95814
GEOIIGl DfUlMUIAN, Go-•
Re: El Dorado Union High School District v. California School
Employees Association and its Ponderado Chapter No. 267
Unfair Labor Practice Charge No. S-C0-116.
Dear Mr. Griffin:
The above-referenced charge alleges that the California School
Employees Association and its Ponderado Chapter No. 267
(Association) threatened to file a grievance against the El
Dorado Union High School District (District) and filed an
unfair practice charge against the District. This conduct is
alleged to violate section 3543.6{c) of the Educational
Employment Relations Act (EERA).
I indicated to you in my letter dated November 8. 1984 that the
above-referenced charge did not state a prima facie case. and
that unless you amended the charge to state a prima facie case.
or withdrew it prior to November 15. 1984. it wou_ld be
dismissed. More specifically. I informed you that if there
were any factual inaccuracies or additional facts which would
correct the deficiencies explained in that letter. you should
amend the charge accordingly.
On November 16 you requested and received a one week extension
to file an argument concerning the case. In it you correctly
state that the November 8 letter omitted the following facts.
DUring October 1983 a dispute arose between the Association and
the District concerning bus driver pay on field trips. That
dispute was resolved by payment to the grieving employee.
Subsequently. the collective bargaining agreement between the
Association and the District was modified by the addition of
the following:
6e. Nothwithstandany any other provisions
of this Agreement. if a special trip
requires an overnight stay. the District
shall be relieved of the obligation of
payment for any hours between the time a
bus driver is relieved of duties for theThomas M. Griffin November 30, 1984 Page 2 evening and the time duties resume the following morning. The District argues that by threatening a grievance and then filing an unfair practice charge over the dispute in May 1984 the Association repudiated the contract and that such a repudiation is an unfair practice. For the reasons stated in the November 8 letter (Exhibit 1) as elaborated below, this allegation does not state a prima facie violation of the EERA and is dismissed. First. the threat to file a grievance or the filing of an unfair practice charge with PERB is not a repudiation of the collective bargaining agreement. In this case the Association had no power to make the disputed payment to.the driver in question. Its recourse is to file a grievance or unfair practice charge. On the other hand. an employer does have the power to iamediately impose its will or decision to repudiate an agreement with an employee organization. For this reason among others unilateral action by employers is viewed with disfavor and is a violation of the EERA. San Mateo County Community College District (6/8/79) PERB Decision No. 94. Second, the unfair practice charge filed by the Association, Case No. S-CE-775 did not focus on the dispute over bus driver•s pay on field trips. It concerned whether the District had unilaterally contracted out bus driving work and whether such contracting out was an act of reprisal against the employees and the Association. Section 6e of the·contract has little or nothing to do with the merits of the unfair practice. Again, if the employer feels that that case was frivilous or an abuse of process. the proper remedy is to seek attorney•s fees in ·that case. Pursuant to Public Employment Relations Board regulation section 32635 (California Administrative Code, title a. part 111), you may 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 dismissal (section 32635(a)). To be timely filed, the original and five
Thomas M. Griffin November 30, 1984 Pa9e 3 (S) copies of such appeal must be actually received by the Board itself before the close of business (5:00 p.m.) on December 20, 1984, or sent by telegraph or certified United States mail postmarked not later than December 20, 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 to issue a complaint, any other party may file with 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 3263S(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 the document filed with the Board itself (see section 32140 for the required contents and a sample form). The document will be considered properly •served• when per·sonally 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 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 ■ ust 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 (section 32132).
Thomas M. Griffin November 30, 1984 Paqe 4 Final Date lf no appeal is filed within the specified time limits, the dismissal will become final when the time limits have expired. Very truly yours, DENNIS M. SULLIVAN General counsel By Robert Thom~~ Regional Attorney /ll /J,/ -4&?'7- a
11•Tt Of CAllfOltMIA PUBLIC EMPLOYMENT RELATIC.,, •.., BOARD ·,m, .. CIAJ1i"'1O lfGIOMAl OfflCI 111" 1mn. IUm .. CIAlli""O, CAU,.CltMIA '°' ""> m.,," fSl\4 a lovember 8, 1984 Thomas M. Griffin Girard, Griffin 511 Q Street, Suite 29 Sacramento, CA 95114 ae: Jl Dorado Union High School District v. California School J'!mployess Association and its Ponderado Chapter Wo. 267 Unfair Practice Charge lo. S-C0-116 Dear llr, Criffin: The above-referenced charge alleges that the California School Employees Association and it'• Ponderado Chapter 10. 267 (.&saociation) threatened to file a grievance against the Sl Dorado Union High School District (Diatrict) and filed an unfair practice charge against tbe District. Thi• conduct is alleged to violate section 35•3.6(c) of the Educational Jtmployment Relations Act (IDA). 1ly investigation revealed tbe following undisputed facts. During lla7 198• a dispu~ arose betveen tbe As ■ ociation and the Diatrict conceming tbe proper level of pay for bus drivers who drive an overnight fl.eld trip. On ..,. 11 lls. !bright, a •hop •tevard for the Association in tbe transportation depart.men~. told llr. Hunter, tbe transportation department supervi ■ or, ·"that unless tbe District paid tbe bus driver according to tbe Association'• interpretation oft.be collective bargaining agreement that the Association would file a grievance against tbe District. Shortly tbereafter tbe trip was reassigned to a private carrier and a grievance vas never filed. On June 1, bovever, the Association filed Unfair Practice Charge wo. S-cl-775 alleging 1n part that tbe District bad transferred bargaining unit vort out of the unit by contracting with the private carrier. & formal bearing was held on this ca•e on October 9, 1984. lo decision bas been issued. Based on the facts described above this charge does not stat.e a prim.a facie violation of EDA for the reasons which follov. 2n determining whether a part7 bas violated •action 35•3.6(c) of tbe SERA. the Public Smployment Relations Board (PED or Board) utilizes either the •per••• or the •totality of conduct• test, depending on t.be specific conduct. involved and tbe effect of sucb conduct on the negotiating process. EXHIBIT I
Thoma••· Criffln •ovember I, 198• Page 2 C. Stockton Unified School District (11/3/80) PED Decision •o. 143, Fremont Unified School District (6/19/80) PERB Decision Wo. 136. The conduct alleged ln this case to violate this ■ ection l• the Association's threatening to file a grievance under the collective bargaining agreement and the filing of an unfair practice against the District. Charging Party bas not provided any case law Which indicates this conduct to be evidence of a failure to bargain ln good faith or a "per ■ e" violation of the EERA. An independent review of ca••• also failed to uncover such legal authority. In addition, such a theory appears to run contrary to the present case lav of PED. In Jorth Sacramento School District (12/20/82) PERB Decision Wo. 264, the Board found the filing of a grievance ls protected activity. If the District feels that the Association'• filing of Case •o. S-Cl-775 1• frivolous it •hould request the hearing officer in that case to order the Association to pay the Di ■ trict•• attorney•• fees as part of that litigation. ~ing City Joint Union High School District (3/3/82) PED Decision Wo. 197. review pending. l'or these reasons, charge number S-C0-116, as presently written, does not atat.e a prlma facie case. If you feel that t.here are any factual inaccuracies in this letter or any additional facts wtdch· would correct the deficiencies explained above, please amend the charge accordingly. Tbe amended charge •hould be prepared on a ■ t.andard PED unfair practice charge form clearly labeled l'irst Amended Charge, contain ill thi facts and allegations you vi.sh to aalte, and be aigned under penalty of perjury by the charging party. The amended charge aaat be •erved on the respondent and the original proof of •ervice aast be filed with PDB. If I do 11ot receive an -nded charge or withdrawal from you before ■ ovember 15, 1984, I •ball diaias Jour charge. If JOU have any questions on how to proceed, please call ae at (916) 322-3198. Sincerely yours, aobert Thompson •egional Attorney a
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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EL DORADO UNION HIGH SCHOOL
DISTRICT,
Charging Party, Case No. S-CO-116
PERB Decision No. 495
March 14, 1985
Vv.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS PONDERADO
CHAPTER NO. 267,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)
Appearance: Girard and Griffin, by Thomas M. Griffin, for El
Dorado Union High School District.
Before Hesse, Chairperson; Jaeger, Morgenstern and Burt,
Members.
DECISION
This case is before the Public Employment Relations Board
on appeal by charging party of the Board agent's dismissal,
attached hereto, of its charge alleging that the California
School Employees Association and its Ponderado Chapter No. 267
violated section 3543.6(c) of the Educational Employment
Relations Act (Gov. Code sec. 3540 et seq.).
We have reviewed the dismissal and, finding it free from
error, adopt it as the Decision of the Board itself.
ORDER
The unfair practice charge in Case No. SF-CO-116 is
DISMISSED WITHOUT LEAVE TO AMEND.
By the BOARD
:
11. Ti Of CAllfOIMIA
PUBLIC EMPLOYMENT RELATIONS BOARD
HEADQUAHIH OfFICl
1031 11TH S1lEET
SACIAMEN10, CAUFOIINIA 9511'
(916) 322-3011
a
November 30. 1984
Thomas M. Griffin
Girard & Griffin
511 O Street. suite 29
Sacramento. CA 95814
GEOIIGl DfUlMUIAN, Go-•
Re: El Dorado Union High School District v. California School
Employees Association and its Ponderado Chapter No. 267
Unfair Labor Practice Charge No. S-C0-116.
Dear Mr. Griffin:
The above-referenced charge alleges that the California School
Employees Association and its Ponderado Chapter No. 267
(Association) threatened to file a grievance against the El
Dorado Union High School District (District) and filed an
unfair practice charge against the District. This conduct is
alleged to violate section 3543.6{c) of the Educational
Employment Relations Act (EERA).
I indicated to you in my letter dated November 8. 1984 that the
above-referenced charge did not state a prima facie case. and
that unless you amended the charge to state a prima facie case.
or withdrew it prior to November 15. 1984. it wou_ld be
dismissed. More specifically. I informed you that if there
were any factual inaccuracies or additional facts which would
correct the deficiencies explained in that letter. you should
amend the charge accordingly.
On November 16 you requested and received a one week extension
to file an argument concerning the case. In it you correctly
state that the November 8 letter omitted the following facts.
DUring October 1983 a dispute arose between the Association and
the District concerning bus driver pay on field trips. That
dispute was resolved by payment to the grieving employee.
Subsequently. the collective bargaining agreement between the
Association and the District was modified by the addition of
the following:
6e. Nothwithstandany any other provisions
of this Agreement. if a special trip
requires an overnight stay. the District
shall be relieved of the obligation of
payment for any hours between the time a
bus driver is relieved of duties for the
Thomas M. Griffin
November 30, 1984
Page 2
evening and the time duties resume the
following morning.
The District argues that by threatening a grievance and then
filing an unfair practice charge over the dispute in May 1984
the Association repudiated the contract and that such a
repudiation is an unfair practice. For the reasons stated in
the November 8 letter (Exhibit 1) as elaborated below, this
allegation does not state a prima facie violation of the EERA
and is dismissed.
First. the threat to file a grievance or the filing of an
unfair practice charge with PERB is not a repudiation of the
collective bargaining agreement. In this case the Association
had no power to make the disputed payment to.the driver in
question. Its recourse is to file a grievance or unfair
practice charge. On the other hand. an employer does have the
power to iamediately impose its will or decision to repudiate
an agreement with an employee organization. For this reason
among others unilateral action by employers is viewed with
disfavor and is a violation of the EERA. San Mateo County
Community College District (6/8/79) PERB Decision No. 94.
Second, the unfair practice charge filed by the Association,
Case No. S-CE-775 did not focus on the dispute over bus
driver•s pay on field trips. It concerned whether the District
had unilaterally contracted out bus driving work and whether
such contracting out was an act of reprisal against the
employees and the Association. Section 6e of the·contract has
little or nothing to do with the merits of the unfair
practice. Again, if the employer feels that that case was
frivilous or an abuse of process. the proper remedy is to seek
attorney•s fees in ·that case.
Pursuant to Public Employment Relations Board regulation
section 32635 (California Administrative Code, title a.
part 111), you may 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 dismissal
(section 32635(a)). To be timely filed, the original and five
Thomas M. Griffin
November 30, 1984
Pa9e 3
(S) copies of such appeal must be actually received by the
Board itself before the close of business (5:00 p.m.) on
December 20, 1984, or sent by telegraph or certified United
States mail postmarked not later than December 20, 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 to issue a
complaint, any other party may file with 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 3263S(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 the document filed with the Board
itself (see section 32140 for the required contents and a
sample form). The document will be considered properly
•served• when per·sonally 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
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 ■ ust 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 (section 32132).
Thomas M. Griffin
November 30, 1984
Paqe 4
Final Date
lf no appeal is filed within the specified time limits, the
dismissal will become final when the time limits have expired.
Very truly yours,
DENNIS M. SULLIVAN
General counsel
By
Robert Thom~~
Regional Attorney
/ll /J,/ -4&?'7- a
11•Tt Of CAllfOltMIA
PUBLIC EMPLOYMENT RELATIC.,, •.., BOARD
·,m,
.. CIAJ1i"'1O lfGIOMAl OfflCI
111" 1mn. IUm
.. CIAlli""O, CAU,.CltMIA
'°'
""> m.,," fSl\4
a
lovember 8, 1984
Thomas M. Griffin
Girard, Griffin
511 Q Street, Suite 29
Sacramento, CA 95114
ae: Jl Dorado Union High School District v. California School
J'!mployess Association and its Ponderado Chapter Wo. 267
Unfair Practice Charge lo. S-C0-116
Dear llr, Criffin:
The above-referenced charge alleges that the California School
Employees Association and it'• Ponderado Chapter 10. 267
(.&saociation) threatened to file a grievance against the
Sl Dorado Union High School District (Diatrict) and filed an
unfair practice charge against tbe District. Thi• conduct is
alleged to violate section 35•3.6(c) of the Educational
Jtmployment Relations Act (IDA).
1ly investigation revealed tbe following undisputed facts.
During lla7 198• a dispu~ arose betveen tbe As ■ ociation and the
Diatrict conceming tbe proper level of pay for bus drivers who
drive an overnight fl.eld trip. On ..,. 11 lls. !bright, a •hop
•tevard for the Association in tbe transportation depart.men~.
told llr. Hunter, tbe transportation department supervi ■ or, ·"that
unless tbe District paid tbe bus driver according to tbe
Association'• interpretation oft.be collective bargaining
agreement that the Association would file a grievance against
tbe District. Shortly tbereafter tbe trip was reassigned to a
private carrier and a grievance vas never filed. On June 1,
bovever, the Association filed Unfair Practice Charge
wo. S-cl-775 alleging 1n part that tbe District bad transferred
bargaining unit vort out of the unit by contracting with the
private carrier. & formal bearing was held on this ca•e on
October 9, 1984. lo decision bas been issued.
Based on the facts described above this charge does not stat.e a
prim.a facie violation of EDA for the reasons which follov.
2n determining whether a part7 bas violated •action 35•3.6(c)
of tbe SERA. the Public Smployment Relations Board (PED or
Board) utilizes either the •per••• or the •totality of
conduct• test, depending on t.be specific conduct. involved and
tbe effect of sucb conduct on the negotiating process.
EXHIBIT I
Thoma••· Criffln
•ovember I, 198•
Page 2
C.
Stockton Unified School District (11/3/80) PED Decision
•o. 143, Fremont Unified School District (6/19/80) PERB
Decision Wo. 136. The conduct alleged ln this case to violate
this ■ ection l• the Association's threatening to file a
grievance under the collective bargaining agreement and the
filing of an unfair practice against the District. Charging
Party bas not provided any case law Which indicates this
conduct to be evidence of a failure to bargain ln good faith or
a "per ■ e" violation of the EERA. An independent review of
ca••• also failed to uncover such legal authority. In
addition, such a theory appears to run contrary to the present
case lav of PED. In Jorth Sacramento School District
(12/20/82) PERB Decision Wo. 264, the Board found the filing of
a grievance ls protected activity. If the District feels that
the Association'• filing of Case •o. S-Cl-775 1• frivolous it
•hould request the hearing officer in that case to order the
Association to pay the Di ■ trict•• attorney•• fees as part of
that litigation. ~ing City Joint Union High School District
(3/3/82) PED Decision Wo. 197. review pending.
l'or these reasons, charge number S-C0-116, as presently
written, does not atat.e a prlma facie case. If you feel that
t.here are any factual inaccuracies in this letter or any
additional facts wtdch· would correct the deficiencies explained
above, please amend the charge accordingly. Tbe amended charge
•hould be prepared on a ■ t.andard PED unfair practice charge
form clearly labeled l'irst Amended Charge, contain ill thi
facts and allegations you vi.sh to aalte, and be aigned under
penalty of perjury by the charging party. The amended charge
aaat be •erved on the respondent and the original proof of
•ervice aast be filed with PDB. If I do 11ot receive an
-nded charge or withdrawal from you before ■ ovember 15, 1984,
I •ball diaias Jour charge. If JOU have any questions on how
to proceed, please call ae at (916) 322-3198.
Sincerely yours,
aobert Thompson
•egional Attorney
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