Los Angeles Unified School District (PERB 0686E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARY ANN 	TITTLE,
Charging 	Party,
v.
LOS 	ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-2634
PERB Decision No. 	686
June 24, 	1988
Appearances; 	Mary Ann Tittle on her own behalf.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	Charging party, 	Mary Ann Tittle,
appeals 	the 	dismissal 	of her 	unfair 	practice 	charge 	against 	the
Los Angeles Unified School District 	(District), 	wherein, 	she
alleged 	violations 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA) 	sections 	3543.5(a) 	and 3543.S(c).1 Charging party
charged 	that 	the 	District 	committed 	various 	acts 	in 	1982 	and
1987 	that 	violated 	EERA.
In her letter of dismissal, 	attached hereto, 	the 	regional
attorney 	dismissed 	all 	allegations 	based 	on 	conduct 	more 	than
six months 	prior 	to the date 	the 	charge was 	filed, 	September 	15,
1987. 	This 	included all 	conduct 	surrounding the 	settlement
agreement 	entered 	into by 	charging party 	as 	part 	of her
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lLEERA	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
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resignation 	from 	the 	District 	in 	1982. 	We 	concur with 	the
regional 	attorney's 	analysis 	and 	sustain 	that part 	of 	the
dismissal 	on grounds 	of 	Untimeliness.
As 	to 	the 	allegation 	that 	the 	District 	refused 	to 	rehire
charging party 	in 	1987, 	the 	regional 	attorney 	found 	that
charging 	party 	did 	not 	state 	facts 	sufficient 	for 	a prima 	facie
case. 	We 	also 	concur with 	that 	finding. 	We note 	further 	that
charging party, 	as 	an applicant, 	has no standing to file an
unfair 	practice 	charge, 	as 	EERA's 	protection 	extends 	only 	to
employees. 	(See 	Hacienda La 	Puente 	Unified 	School 	District
(1988) 	PERB Decision No. 	685.) 	Nor does 	an 	individual have
standing 	to 	assert 	a 	refusal 	to bargain 	charge 	against 	an
employer. 	(See 	Oxnard 	School 	District 	(1988) 	PERB Decision No.
667.)
ORDER
For 	the 	foregoing 	reasons, 	the 	unfair practice 	charge 	in
Case No. 	LA-CE-2634 	is hereby DISMISSED 	in 	its 	entirety.
Member 	Shank 	joined 	in 	this 	Decision.
Member 	Craib's 	concurrence begins 	on page 	3.
22

Member 	Craib, 	concurring: 	I 	concur 	in 	the dismissal 	of 	the
charge. 	However, 	for 	the 	reasons 	set 	forth 	in my dissent 	in
Hacienda 	La 	Puente 	Unified 	School 	District 	(1988) 	PERB 	Decision
No. 	685, 	I do not agree 	that 	the charging party lacks 	standing
to 	assert 	that 	the 	District 	unlawfully 	refused 	to 	rehire her 	in
1987.
33

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 	94108
(415) 557-1350
November 	13, 	1987
Mary Ann 	Tittle
Re: 	Mary 	Ann 	Tittle 	v. 	Los 	Unified 	School 	District:
Charge No. LA-CE-2643
Dear Ms. 	TittleLA-CE-26	: 2634
You 	have 	filed 	a 	charge 	against 	the 	Los 	Angeles 	Unified 	School
District 	(District) 	in which you 	allege 	that 	the District
violated 	sections 	3543.5(a) 	and 	(c) 	of 	the Educational
Employment 	Relations Act 	(EERA or Act) 	and 	various 	provisions
of 	the 	education 	and 	labor 	codes.
I 	indicated 	to 	you 	in my 	attached 	letter 	dated
October 28, 	1987, 	that 	the charge as written did not state 	a
prima 	facie 	case. 	You were 	advised 	that 	if 	there were 	any
factual 	inaccuracies 	or 	additional 	facts 	that 	would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should 	amend 	the
charge 	accordingly.
I 	received 	a 	First Amended Charge on November 	9, 	1987,
reiterating 	the 	allegations 	that were 	raised 	in 	the 	original
charge. 	With 	respect 	to 	conduct 	on the 	part 	of 	the District
that 	occurred 	within 	the 	six-month 	statute 	of 	limitations
period, 	the 	allegations 	fail 	to 	satisfy the elements 	of 	a 	prima
facie violation of 	section 3543.5(a). 	Thus, 	for the 	reasons
set 	forth 	in the 	attached 	letter, 	this 	allegation 	is 	dismissed.
The 	First Amendment 	Charge 	adds 	that 	the District 	failed 	to
meet 	and 	negotiate 	in 	good 	faith with 	the 	exclusive
representative 	in violation of 	section 3543.5(c). 	Your
assertion 	that you 	are 	the exclusive 	representative 	is 	in
error. 	EERA section 3540.l(e) 	defines 	an exclusive
representative 	as 	an 	"employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	negotiating 	representative 	of

Mary Ann 	Tittle
November 	13, 	1987
Page 	2
certificated 	or 	classified employees 	in 	an 	appropriate 	unit 	of
a 	public 	school 	employer." 	Since you do 	not 	qualify 	as 	an
exclusive 	representative under 	the Act, 	you have 	failed 	to
allege 	a 	central 	element 	of 	a 	prima 	facie violation of 	section
3543.5(c).
For 	these 	reasons 	and 	the 	reasons 	set 	forth 	in my 	letter 	dated
October 	28, 	1987, 	the First Amended Charge in Case No.
LA-CE-2634 	is dismissed.
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.) 	or 	sent 	by telegraph, 	certified or Express United
States 	mail 	postmarked 	no 	later 	than 	the 	last 	date 	set 	for
filing 	(section 32135). 	Code of 	Civil 	Procedure 	section 	1013
shall 	apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18the 	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

Mary Ann 	Tittle
November 13, 	1987
Page 3
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).
Final 	Date
If no 	appeal 	is 	filed within the 	specified 	time 	limits, 	the
dismissal will 	become 	final when 	the 	time 	limits 	have expired.
Sincerely,
John 	Spittler
Acting 	General 	Counsel
By Carol A. 	Vendrillo
Staff 	Attorney
Attachment
1464d

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 	94108
(415) 	557-1350
October 28, 	1987
Mary Ann Tittle
Re: Mary Ann Tittle v. 	Los Angeles Unified School District:
Charge No. LA-CE-2634
Dear Ms. Tittle:
I 	am in 	receipt 	of 	the 	above-referenced charge 	in which you
allege that 	the Los Angeles Unified School District 	(District)
violated sections 	3543.5(a) 	and 	(c) 	of the Educational
Employment Relations Act 	(EERA) 	and various provisions of the
education and 	labor codes.
My investigation has 	revealed the 	following 	facts: 	After
twelve years of employment as a teacher, 	the District advised
you in July 1981 of 	its 	intent to pursue a dismissal 	action.
On November 3, 	1982, 	a settlement agreement was 	reached under
which you were permitted to 	resign. 	This 	resignation was
signed by you on November 4, 	1982. 	You were 	represented by an
attorney during 	the dismissal 	action 	and the 	settlement
resolution.
On February 24, 	1987, you submitted to the District an
application for employment. 	Robert J. 	Witter, 	Director of
Employed Services, 	indicated the District's unwillingness 	to
re-employ you in his 	letter dated March 2, 	1987. 	Again on
April 	17, 	1987, 	you notified the District of your displeasure
with 	the 	settlement 	agreement 	and your 	resignation 	and 	took
issue with the District's 	reasons 	for 	seeking your dismissal.
In an attachment 	to that 	letter, 	you declared your 	resignation
"null and void". 	On May 18, 	1987, 	you submitted a written
request to Rita Walters, 	President of the District Board of
Education, 	entitled 	"Application for Transfer" 	expressing your
intent 	to 	rescind your 	resignation and 	to 	seek 	"Injury/Illness
Leave 	(Mandatory) WITH FULL PAY, 	BENEFITS & SERVICE CREDIT."
Howard Friedman, 	the District's assistant 	legal 	advisor,
responded to your 	request on May 28, 	1987 	and declined to
entertain your 	claims 	regarding the District's 	dismissal 	action
or the settlement and resignation of 	1982. 	On July 30, 	1987,
Walters wrote to you and, 	citing the settlement 	and

Mary 	Ann 	Tittle
October 	28, 	1987
Page 	2
resignation, 	refused to 	re-consider 	the 	accuracy of 	your
evaluations 	during 	employment 	and 	declined 	to 	disturb 	the
District's 	refusal 	to 	re-hire you.
On 	or 	about 	September 	15, 	1987, 	you 	submitted 	the 	instant
unfair 	practice 	charge. 	Among 	the 	46 	allegations 	raised 	in 	the
charge, 	you 	claim that 	the District 	has 	taken 	the 	following
action: 	delayed 	processing 	your 	application 	for 	retirement
benefits, 	rejected your 	application 	for 	mandatory 	leave, 	barred
you 	from 	returning 	to 	employment, 	misrepresented 	your
employment 	history, 	changed your 	work 	assignments, 	failed 	to
provide written 	standards 	or 	guidelines, 	assigned 	students 	to
your 	overcrowded 	classrooms, 	threatened 	dismissal, 	failed 	to
provide 	assistance, 	humiliated 	and 	intimidated 	you, 	placed
pupils 	with 	behavioral 	problems 	in 	your 	classroom, 	and 	other
related 	complaints.
As 	outlined 	above, 	the 	factual 	allegations 	set 	forth 	in your
charge 	do 	not 	evidence 	a 	prima 	facie 	violation 	of 	the 	EERA.
Section 	3541.5(a) 	precludes 	the 	Public 	Employment 	Relations
Board 	(PERB) 	from 	issuing 	a 	charge 	based 	on 	an 	alleged 	unfair
practice 	occurring 	more 	than 	six months 	prior 	to 	the 	filing 	of
the 	charge. 	Inasmuch 	as 	the 	events 	about which you 	complain
occurred 	in 	November 	1982, 	nearly 	five 	years 	prior 	to 	the
filing 	of 	this 	charge, 	your 	charge 	is 	untimely.
As 	to 	events 	that 	may 	have 	occurred 	within 	the 	statute 	of
limitations 	period, 	such 	as 	your 	request 	for 	transfer 	dated
May 	18, 	1987, 	the charge 	fails 	to 	set 	forth 	a cause of 	action
cognizable 	under 	the 	EERA.
To 	demonstrate 	a 	violation of 	EERA 	section 	3543.5(a) 	the
charging 	party must 	show 	that: 	(1) 	the 	employee 	exercised
rights 	under 	the 	EERA, 	(2) 	the 	employer 	had 	knowledge 	of 	the
exercise 	of 	those 	rights, 	and 	(3) 	the employer 	imposed 	or
threatened 	to 	impose 	reprisals, 	discriminated 	or 	threatened 	to
discriminate, 	or 	otherwise 	interfered with, 	restrained 	or
coerced 	the 	employees 	because 	of 	the 	exercise 	of 	those 	rights.
Novato 	Unified 	School 	District 	(1982) 	PERB Decision No. 	210;
Carlsbad 	Unified 	School 	District 	(1979) 	PERB Decision 	No. 	89;
Department 	of 	Developmental 	Services 	(1982) 	PERB Decision
No. 	228-S; 	California 	State University 	(Sacramento) 	(1982) 	PERB
Decision No. 	211-H.
Timing 	of 	the 	employer's 	adverse 	action 	in close 	temporal
proximity 	to 	the 	employee's 	protected 	conduct 	is 	one 	factor,
although 	insufficient 	without more, 	to 	demonstrate 	a 	violation
of 	the 	EERA. 	Moreland 	Elementary 	School 	District 	(1982) 	PERB
Decision No. 	227. 	The 	action described 	above 	that 	falls 	within
the 	statutory 	period 	is 	not 	in 	close 	temporal 	proximity 	to 	any

Mary Ann Tittle
October 28, 	1987
Page 3
alleged 	protected conduct. 	Nexus may also 	be established by
one or more of 	the following factors: 	(1) 	the employer's
disparate treatment of 	the employee, 	(2) 	the employer's
departure 	from established 	procedures 	and 	standards when
dealing with the employee, 	(3) 	the employer's inconsistent or
contradictory justifications for its actions, 	(4) 	the
employer's cursory investigation of 	the employee's misconduct,
(5) 	the employer's failure to offer the employee justification
at 	the time it took action or the offering of exaggerated,
vague, 	or ambiguous reasons, 	or (6) 	any other facts which might
demonstrate the employer's unlawful motive. 	Novato Unified
School District, 	supra; 	North Sacramento School District 	(1982)
PERB Decision No. 	264. 	As presently written, 	this charge fails
to demonstrate any of these factors 	and 	therefore does 	not
state a prima facie violation of section 3543.5(a).
Finally, 	the alleged violations of 	the education 	and 	labor
codes do not, 	under the circumstances of this case, 	establish
that 	the District has 	interfered with or denied you 	rights
guaranteed by the EERA. Los Unified 	School 	District
(1986) PERB Decision No. 588.
For these reasons, charge number LA-CE-2634, 	as presently
written, 	does not state a prima facie case. 	If you feel that
there are any factual 	inaccuracies 	in this 	letter or 	any
additional 	facts which would correct 	the deficiencies 	explained
above, 	please amend the charge accordingly. 	The amended charge
should 	be prepared on a 	standard PERB unfair practice charge
form clearly 	labeled First 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 November 	9, 	1987,
I 	shall dismiss your charge. 	If you have any questions on how
to proceed, please call me at (415) 	557-1350.
Sincerely yours,
Carol A. Vendrillo
Staff Attorney
1288d