Los Angeles Unified School District (Caukin) (PERB 0587E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
BRUCE LEE CAUKIN,
Charging 	Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2354
PERB 	Decision 	No. 	587
September 25, 	1986
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Appearance: 	Bruce Lee Caukin, 	on his 	own behalf.
Before Hesse, 	Chairperson; Morgenstern, 	Burt, 	Porter and Craib,
Members.
DECISION
This 	case 	is 	before 	the 	Public Employment 	Relations 	Board
(Board) 	on 	appeal 	by the 	charging 	party of 	the 	Board 	agent's
dismissal, 	attached hereto, 	of 	his 	charge 	alleging 	that 	the Los
Angeles 	Unified 	School 	District 	violated 	section 	3543.5 	of 	the
Educational Employment Relations Act 	(EERA) 	(Gov. 	Code 	sec.
3540 	et 	seq.). 	The Board agent concluded that 	the charge must
be 	deferred 	to 	arbitration 	in 	accordance with EERA 	section
3541.5(a) 	and 	applicable Board precedent.
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-2354 	is 	hereby
DISMISSED.
By 	the 	BOARD
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___________________ )

GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
HEADQUARTERS OFFICE
1031 18TH STREET
SACRAMENTO, CALIFORNIA 95814
(916) 322-3088
June 24, 	1986
Mr. 	Bruce Lee Caukin
Re: 	Caukin v. 	Los Angeles Unified School District,
Case No. 	LA-CE-2354, 	First Amended Charge
Dear Mr. 	Caukin:
You 	have 	filed 	a 	First 	Amended 	Charge 	alleging 	that 	the
Respondent 	Los Angeles Unified 	School 	District 	violated 	the
Educational Employment Relations Act 	(EERA) 	by discriminating
against you and 	by 	interfering with your 	exercise 	of 	rights
under 	the EERA when 	it 	transferred 	you 	from your 	position as
teacher 	at Virgil 	Junior High School 	to a 	position at 	Irving
Junior High School. 	The 	employer's 	conduct 	is 	alleged 	to 	be 	in
reprisal 	against 	you 	for 	complaining 	to District 	administrators
about 	the manner 	in which your 	principal 	runs 	the 	school 	and
for 	your 	filing grievances.
I 	indicated 	to you 	in my attached 	letter 	dated 	June 	5, 	1986,
that 	the 	above-referenced 	charge was 	subject 	to 	deferral 	to
arbitration. 	You were 	advised 	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. 	You were 	further 	advised 	that 	unless 	you
amended the charge or withdrew it prior to June 19, 	1986, 	it
would 	be 	dismissed.
I 	have not 	received 	either 	a 	request 	for withdrawal 	or 	an
amended 	charge 	and 	am therefore 	dismissing 	the 	charge 	based 	on
the facts 	and reasons 	contained 	in my June 	5, 	1986 	letter.
Such dismissal 	is without 	prejudice 	to 	the 	Charging Party's
right, 	after 	arbitration, 	to 	seek a 	repugnancy review by PERB
of 	the 	arbitrator's 	decision under 	the Dry Creek 	criteria.
(Dry Creek Joint Elementary School District 	(1980) 	PERB Order
No. 	Ad-81a, 	discussed 	in my June 5, 	1986 	letter.) 	See PERB
Regulation 	32661; 	Los Angeles Unified 	School District 	(1982)
PERB Decision No. 	218.·--·-------------------

Mr. 	Bruce Lee Caukin
June 	24, 	1986
Page 	2
Right 	to Appeal
Pursuant 	to Public Employment 	Relations Board 	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 	(California Administrative
Code, 	title 8. 	section 32635(a)). 	To be timely filed, 	the
original 	and 	five 	copies 	of 	such appeal 	must 	be 	actually
received 	by 	the Board 	itself 	before 	the 	close 	of 	business
(5:00 p.m.) 	on July 14. 	1986, 	or sent by telegraph, 	certified
or Express United 	States 	mail 	postmarked 	not 	later 	than
July 14, 	1986 	(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 	copies 	of 	a 	statement 	in opposition within twenty
calendar 	days 	following the date of 	service of 	the appeal
(section 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 	section 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.
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 	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 	(section 32132).

Mr Mr. Bruce Lee Caukin
June 	24, 	1986
Page 3
Final 	Date
If 	no appeal 	is 	filed within the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final when 	the 	time 	limits 	have 	expired,
Sincerely.
JEFFREY 	SLOAN
Acting General 	Counsel
By
Jorge A. (Leon
Staff Attorney
Attachment
cc:

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Headquarters Office
1031 	18th 	Street
Sacamento, 	California 95814
(916) 322-3088
June 	5. 	1986
H E . Bruce Lee Caukin
Re: 	Caukin v. 	Los Angeles Unified School District.
Case No. 	LA-CE-2354. 	First Amended Charge
Dear Mr. 	Caukin:
You 	have filed 	a First Amended 	Charge 	alleging 	that 	the
Respondent 	Los 	Angeles 	Unified 	School District 	violated 	the
Educational Employment Relations 	Act 	(EERA) 	by discriminating
against you 	and 	by 	interfering with your 	exercise 	of 	rights
under 	the EERA when 	it 	transferred 	you 	from your 	position as
teacher 	at Virgil 	Junior High School 	to 	a 	position at 	Irving
Junior High School. 	The 	employer's 	conduct 	is 	alleged 	to be 	in
reprisal 	against you 	for 	complaining 	to District 	administrators
about 	the manner 	in which your 	principal 	runs 	the 	school 	and
for your 	filing grievances.
he 	a 	teacher 	in the District, 	you are covered 	by the provisions
of 	a 	collective bargaining agreement 	between the District 	and
the United Teachers - Los Angeles 	(UTLA). 	That agreement
provides 	for 	binding arbitration 	in 	its 	grievance 	procedure.
Article V. 	Section 19.0. 	Section 22.0 of 	the same article
reads as follows:
No 	reprisals: 	There shall 	be no reprisal
against 	an employee 	for 	utilizing 	these
grievance procedures 	or 	for assisting a
grievant 	pursuant 	to 	these 	procedures.
Finally. 	Article XI 	sets forth the 	relevant provisions 	relating
to 	transfers. 	That article 	contains 	several detailed 	subparts
and 	is 	too extensive to quote herein.
A grievance has 	been filed 	in 	this 	matter 	by UTLA 	on your
behalf 	and 	an 	arbitration hearing 	has 	been 	scheduled 	for
October 1. 	1986.
Based 	on the 	facts 	stated 	above and 	section 3541.5(a) 	of 	the
EERA, 	this 	charge 	must 	be 	dismissed 	and 	deferred 	to 	arbitration
under 	the 	collective 	bargaining 	agreement.

Mr. Bruce Lee Caukin
June 	5, 	1986
Page 2
Section 3541.5(a) 	of EERA states 	in pertinent 	part:
. 	. 	. 	the board shall not do either of 	the
following: 	. . . 	(2) 	issue 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.
PERB Regulation 32620(b)(5)1 requires 	the Board Agent
processing 	the 	charge 	to 	"(d)ismiss 	the 	charge 	or 	any part
thereof 	as provided 	in Section 32630 	if 	. . . 	it 	is 	determined
that 	a 	complaint may not be 	issued 	in 	light 	of 	Government 	Code
sections 	3514.5, 	3541.5 or 	3563.2 or because a dispute arising
under 	HEERA is 	subject 	to 	final 	and 	binding arbitration." 	In
Dry Creek Joint Elementary School District 	(7/21/80) 	PERB Order
No. 	Ad-81a. 	the Public Employment Relations Board 	(PERB)
explained 	that:
[W]hile 	there 	is no 	statutory deferral
requirement 	imposed 	on 	the National 	Labor
Relations Board 	(hereafter NLRB), 	that
agency has 	voluntarily 	adopted 	such a 	policy
both with regard 	to 	post-arbitral 	and
pre-arbitral 	award 	situations. 	(Footnote
omitted.) 	EERA section 3541.5(a)
essentially codifies 	the 	policy developed 	by
the NLRB 	regarding deferral 	to 	arbitration
proceedings and awards. 	It is appropriate,
therefore, 	to 	look for guidance to 	the
private sector. 	(Footnote to Fire Fighters
Union v. 	City of Vallejo 	(1974) 	12 Cal.3d
608.)
In Collyer 	Insulated Wire 	192 NLRB 837, 77 	LRRM 1931 	(1971) 	and
subsequent 	cases, 	the NLRB 	articulated 	standards 	under 	which
deferral 	is appropriate 	in prearbitral 	situations. 	These
1PERB 	Regulations 	are 	codified 	in 	the 	California
Administrative Code, 	title 8.

Mr. Bruce Lee Caukin
June 	5. 	1986
Page 	3
requirements are: 	(1) 	the dispute must arise within a 	stable
collective 	bargaining 	relationship where 	there 	is 	no 	enmity by
the 	respondent 	toward 	the 	charging 	party; 	(2) 	the 	respondent
must 	be 	ready and willing 	to 	proceed 	to 	arbitration 	and 	must
waive contract-based procedural defenses; 	and 	(3) 	the contract
and 	its meaning must lie 	at 	the center 	of 	the dispute.
These standards are met with respect to this 	case. 	First, 	no
evidence has 	been produced 	to 	indicate 	that 	the 	parties 	are not
operating within a 	stable 	collective 	bargaining relationship.
Second, 	by a 	letter from its 	representative. 	Mr. 	Richard
Fisher, 	dated June 3. 	1986 	(Exhibit 1 ) . 	the respondent has
indicated 	its willingness 	to 	proceed 	to 	arbitration and 	to
waive all 	procedural defenses.
Finally, 	the 	issue 	raised 	by 	this 	charge 	that 	the Respondent's
transfer 	of you was 	in retaliation for your 	complaints 	and
grievances 	directly 	involves 	an 	interpretation of 	Article V.
Section 22 	and Article XI 	regarding 	transfers 	of 	the 	collective
bargaining agreement. 	Accordingly, 	this 	charge must 	be
deferred 	to 	arbitration and will 	be 	dismissed. 	Such dismissal
is without prejudice 	to 	the charging party's 	right, 	after
arbitration, 	to 	seek a 	repugnancy 	review by PERB 	of 	the
arbitrator's 	decision under 	the Dry Creek criteria. 	See EERA
section 3541.5; 	Board Rule 32661; 	Los Angeles Unified 	School
District 	(6/30/82) 	PERB Decision No. 	218; 	Dry Creek Joint
Elementary Schoo. . l District, 	supra.
1£ you feel 	that 	there are facts which would 	require a
different 	conclusion than the 	one 	explained 	above, 	please amend
the 	charge accordingly. 	This 	amended 	charge 	should 	be prepared
on a 	standard PERB 	unfair 	practice 	charge 	form clearly 	labeled
Second Amended 	Charge, 	contain all 	the 	facts 	and 	allegations
you wish to make, 	and 	be 	signed under 	penalty of 	perjury by the
charging 	party. 	The 	amended 	charge 	must 	be 	served 	on the
respondent 	and 	the 	original 	proof 	of 	service must 	be 	filed with
PERB. 	If 	I 	do 	not 	receive an amended 	charge 	or withdrawal from
you before June 19. 	1986. 	I 	shall dismiss your charge without
leave to 	amend. 	If you have 	any questions 	on how to proceed,
please call me at 	(916) 	323-8015.
Sincerely yours.
Jorge 	Leon
Staff 	Attorney
4999d

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OUR FILE NUMBER
520,000-145
Jorge A. Leon, Esq.
Staff Attorney
Public Employment Relations Board
1031 18th Street, 	Suite 200
Sacramento, 	CA 	95814
Re 	Bruce Lee Caukin v. 	L.A. 	Unified School Distract
(PERB Case No. LA-CE-2354)
Dear Mr. Leon:
Confirming our conversation of today, 	the District
has agreed to arbitrate the above-captioned dispute, 	which
relates 	to 	th.. e Notice of Unsatisfactory Act 	and 	transfer of
Mr. 	Caukin. 	The District has waived all contractual procedural
defenses to arbitration, 	including any Untimeliness defenses.
The matter has 	already been scheduled 	for arbitration. 	The
case 	should 	therefore be deferred 	to 	arbitration.
Very truly yours.
Richard N. 	Fisher
RNF:mg
cc: 	Ms. 	Shirley Woo
-n·-"'""·--