Los Angeles Unified School District (Wyler) (PERB 0971E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LORRAINE WYLER,
Charging 	Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
) 	Case No. 	LA-CE-3204
PERB Decision No. 	971
February 8, 	1993
)
)
)
)
)
)
Appearances: 	Paul Wyler, 	Attorney, 	for Lorraine Wyler; 	Terence
McConville, 	Director, 	Litigation Research, 	for Los Angeles
Unified School 	District.
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Lorraine Wyler of
a Board agent's 	dismissal 	(attached hereto) 	of 	her 	charge 	that
the 	Los Angeles 	Unified School 	District violated 	section
3543.5(a) 	of the Educational Employment Relations Act 	(EERA)1 by
discharging her as 	a 	substitute 	teacher 	in 	retaliation 	for her
protected 	activity.
J1EERA	EERA 	is 	codified at 	Government 	Code 	section 3540 	et 	seq.
EERA section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
(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.

The 	Board has 	considered the 	entire 	record 	in this 	case. 	We
have 	reviewed the dismissal 	and, 	finding 	it 	to be 	free 	of
prejudicial 	error, 	adopt 	it as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-3204 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Caffrey and Carlyle 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
August 20, 	1992
Paul Wyler, 	Esq.
Los Angeles 	Office of Appeals
Unemployment 	Insurance Appeals
300 S. 	Spring St., 	Rm. 	1502
Los Angeles, 	California 	90013-1204
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
Unfair Practice Charge No. 	LA-CE-3204,
Lorraine Wyler v. 	Los Angeles 	Unified 	School 	District
Dear Mr. 	Wyler:
In the above referenced charge, 	which was 	filed on June 	26, 	1992,
Mrs. 	Wyler, 	a substitute teacher, 	alleges that the Los Angeles
Unified School 	District 	(District) 	retaliated against her, 	in
alleged violation of Government Code 	section 3543.5 	of 	the
Educational Employment Relations Act 	(EERA).
I 	indicated to you, 	in my attached letter dated August 	11, 	1992,
that 	the 	above-referenced 	charge did 	not 	state 	a prima 	facie
case, 	and that one allegation must be deferred 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. 	You were 	further
advised that, 	unless you amended the 	charge to 	state a prima
facie case or withdrew it prior to August 	18, 	1992, 	the charge
would 	be 	dismissed.
You telephoned me on August 	13, 	1992 	and 	indicated you 	just
returned 	from vacation and would 	like 	an 	extension 	to 	around
August 21, 	1992. 	I 	suggested that instead, 	you review my warning
letter dated August 	11, 	1992, 	and that you call me the following
day on August 	14, 	1992. 	You telephoned me on August 	14, 	1992 and
indicated, 	in part, 	that you wished to file an amended charge. 	I
suggested that 	instead, 	you 	could provide 	me verbally with your
clarifying/additional 	information, 	and that 	I 	would decide
whether a prima 	facie case had been 	stated. 	You agreed to 	follow
my 	suggestion and provided 	the 	following 	information. 	I 	will
also relate 	relevant 	information appearing 	in your charge.
You disagreed with my conclusion that Mrs. 	Wyler 	failed to 	show a
"nexus" 	between her protected activity 	and 	the 	adverse actions.
You 	contend that 	she was 	discharged 	in October 	1991 	based upon
Inadequate Service Reports 	(ISR's) 	in 1980, 	1984, 	May 1991 and
September 	1991. 	On April 	2, 	1991, 	she was assaulted/punched 	(by
a 	student) 	while working as 	a 	substitute at Thomas 	Edison Junior
High School. 	She 	advised the 	school personnel. 	On April 	4,
1991, 	you wrote a 	letter to various 	officials 	including the
District regarding, 	in part, 	teacher safety. 	On April 	19, 	1991,
. . 	. .
- 	-	- 	.

Paul Wyler, 	Esq.
LA-CE-3204
August 20, 	1992
Page 2
the 	Superintendent's 	reply 	letter 	indicated 	that 	an 	in-depth
review was 	made 	and 	showed that 	there was 	no assault 	and battery,
and that Mrs. 	Wyler had not mentioned the matter. 	On May 	1,
1991, 	you wrote to the Superintendent and indicated, 	in part,
that you hoped there had been no 	cover-up.
On April 	30, 	1991, 	Mrs. 	Wyler was 	substituting at Benjamin
Banneker Special 	Education Center 	(BBSEC) 	and was
assaulted/punched by a 	student. 	She 	reported 	the 	incident 	to 	the
school authorities. 	By letter dated May 	1, 	1991, 	you wrote a
letter regarding, 	in part, 	teacher safety to various officials,
including the District. 	You did not receive a response. 	On
May 8, 	1991, 	Mrs. 	Wyler was 	issued an ISR regarding her service
at BBSEC, 	which 	she disputes. 	(See my letter dated August 	11,
1992 	at pages 	2-3.) 	You contend that the District 	showed no
sympathy 	and 	that 	the 	ISR was 	a 	reprimand after your 	complaints
about 	safety 	(including your 	letter dated May 	7, 	1991 	referenced
below). 	You pointed out that by letter dated May 21, 	1991, 	Mrs.
Wyler was warned by the District 	that 	if 	she received a 	second
ISR that 	semester, 	it would result 	in her placement on the
standby 	list. 	She was also advised that 	it was 	the District's
practice 	to request a 	complete 	service 	fitness 	review for
substitutes 	issued three 	or more 	ISR's. 	A grievance was 	filed
over the May 	1991 	ISR and 	later 	settled/resolved 	in August 	1991,
which 	settlement 	you 	contend was 	unfair and one-sided due 	to 	the
one year 	"sunset" 	provision. 	(See page 3 of the August 	11, 	1992
letter.)
On May 6, 	1991, 	Mrs. 	Wyler was assaulted by a student while
substituting at Samuel Gompers 	Junior High School. 	She reported
the incident to the 	school authorities. 	On May 7, 	1991, 	you
wrote another letter to various 	officials, 	including the
District, 	regarding teacher safety, 	but thereafter, 	did not
receive a response.
On September 	11, 	1991, 	Mrs. 	Wyler received an ISR for her service
at 	Bethune Middle 	School. 	You 	indicated to me that 	it 	involved
"paperwork" 	problems 	and that Mrs. 	Wyler disputed the ISR. 	(See
pages 	3-4 	of the August 	11, 	1992 	letter.) 	A grievance was 	filed
over the 	September 	1991 	ISR but 	in April 	1992, 	UTLA decided not
to take this 	grievance to arbitration. 	(See page 	4 	of the
August 11, 	1992 	letter.) 	On October 18, 	1991, 	Mrs. 	Wyler was
discharged by the District. 	You 	contend 	this was 	retaliation 	for
her prior protected 	activity 	including 	the 	grievance 	settled 	in
August 	1991. 	The dismissal was based on all of the prior ISR's.
During our telephone 	conversation, 	you 	characterized 	this 	as 	the
"linchpin". 	"But for the 	(District's) 	retaliatory motive, 	Mrs.
Wyler would 	not 	have 	been dismissed."
Based upon all 	the 	information provided, 	the 	charge 	still 	fails
to 	state a prima facie case, 	in part, 	since it fails to
demonstrate a 	"nexus" 	between Ms. 	Wyler's protected activity and

Paul Wyler, 	Esq.
LA-CE-3204
August 20, 	1992
Page 3
the adverse actions. 	As 	indicated 	in the August 	11, 	1992 	letter,
the charge does 	not 	show any of 	the various ways 	to 	show nexus 	as
indicated 	in Novato 	Unified 	School 	District 	(1982) 	PERB 	Decision
No. 	264. 	Another problem with your theory of retaliation is 	that
the 	last 	ISR issued on September 	11, 	1991 	came 	from a different
person at a different 	school when compared to the May 	8, 	1991
ISR. 	There does 	not 	seem to be a 	connection other then
speculation. 	Also, 	the review process 	conducted around October
1991 	leading up to the dismissal on October 	18, 	1991, 	appears to
be a normal 	occurrence based upon the District's 	letters 	to Ms.
Wyler dated May 21, 	1991 	and September 30, 	1991. 	These letters
are referenced in my letter dated August 	11, 	1992 at pages 	3 	and
4.
Next, 	as 	indicated in my August 	11, 	1992 	letter at page 5, 	the
1980, 	1984, 	and May 8, 	1991 ISR's, 	the August 1991 grievance
settlement, 	and the October 	18, 	1991 dismissal are untimely and
will be dismissed. 	Also, 	as 	indicated on page 	6 of my August 	11,
1992 	letter, 	the allegations 	of reprisal 	involving the May 	8,
1991 	ISR must 	be 	deferred 	to 	arbitration and will be 	dismissed.
In addition, 	the charge 	still does 	not 	indicate or establish that
the 	settlement of the related grievance 	(the 	sunset provision) 	is
repugnant to the purposes of the EERA. 	Thus, 	a prima facie
violation has 	not been alleged.
Therefore, 	I 	am dismissing the charge based on the facts 	and
reasons 	contained above and 	in my August 	11, 	1992 	letter.
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. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 p.m.) 	or sent by telegraph,
certified or Express 	United 	States 	mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure 	section 	1013 	shall apply.
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 	(20) 	calendar
days 	following the date of 	service of the appeal. 	(Cal. 	Code of
Regs., tit. 	8, sec. 	32635(b).)

Paul Wyler, 	Esq.
LA-CE-3204
August 20, 	1992
Page 4
Service
All 	documents 	authorized 	to 	be 	filed herein must 	also be 	"served1
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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 	(3) 	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. 	(Cal. Code of Regs., tit. 	8, 	sec. 	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 W. 	SPITTLER
General 	Counsel
By Marc S . Hurwitz
Regional 	Attorney
Attachment
cc: 	Mr. 	Terry McConville, 	Director of Litigation Research,
Office of the Special Counsel to the Superintendent, 	Los
Angeles 	Unified 	School 	District
'

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
August 11, 	1992
Paul Wyler, 	Esq.
Los Angeles 	Office of Appeals
Unemployment 	Insurance Appeals
300 S. 	Spring St., 	Rm. 	1502
Los Angeles, 	California 	90013-1204
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3204,
Lorraine Wyler v. 	Los Angeles 	Unified School District
Dear Mr. 	Wyler:
In the above referenced charge, 	which was 	filed on June 26, 	1992,
Mrs. 	Wyler, 	a substitute teacher, 	alleges that the Los Angeles
Unified School District 	(District) 	retaliated against her, 	in
alleged violation of 	Government 	Code 	section 	3543.5 	of 	the
Educational Employment Relations Act 	(EERA).
My 	investigation of 	the 	charge 	(including 	the 	companion case
against United Teachers 	- 	Los Angeles, 	Unfair Practice Charge No.
LA-CO-599, 	which I dismissed on August 7, 	1992) 	reveals the
following adverse actions. 	In 1980, 	1984, 	May 8, 	1991 and
September 11, 	1991, 	Mrs. 	Wyler received Inadequate Service
Reports 	(ISR's). 	On October 	18, 	1991, 	Charging Party was
dismissed by 	the 	District 	from 	substitute 	status.
The 	charge 	fails 	to 	state 	a prima 	facie violation of 	EERA within
the 	jurisdiction of 	PERB. 	To demonstrate a violation of 	EERA
section 3543.5(a), 	the charging party must show that: 	(1) 	the
employee exercised rights under 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 	employee 	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.)
Although 	the 	timing 	of the 	employer's 	adverse 	action 	in close
temporal 	proximity 	to 	the 	employee's 	protected 	conduct 	is 	an
important factor, 	it does not, 	without more, 	demonstrate the
necessary connection or 	"nexus" 	between the 	adverse 	action and
the protected conduct. 	(Moreland 	Elementary School 	District
(1982) 	PERB Decision No. 	227.) 	Facts 	establishing one or more
of 	the 	following additional 	factors 	must 	also be present:
(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 seems to show
adverse actions 	by the District, 	protected activity by the
Charging Party, 	and that the District had knowledge thereof. 	But
there are no 	facts 	alleged to demonstrate 	a 	connection 	(nexus)
between her protected activity and 	the 	adverse 	actions.
I 	brought 	this 	to your attention during our 	telephone
conversation on or about July 	19, 	1992 and gave you an
opportunity 	to 	respond. 	You generally 	indicated the 	following
information. 	You believe that the 	1980 	and 	1984 	ISR's 	show the
District's 	retaliatory motive 	and 	that we 	should 	look 	at 	the
whole picture. 	You believe 	that the May 	8, 	1991 	ISR 	(Benjamin
Banneker Special Education Center 	(BBSEC) 	containing multi-
handicapped 	students) 	shows 	that the District's 	actions 	are
retaliatory. 	As 	indicated 	in the 	charge 	and during 	our telephone
conversation, 	it is 	alleged that Mrs. 	Wyler was 	assaulted by a
student 	in late April 	1991 	at BBSEC. 	Complaints were made
concerning Mrs. 	Wyler's 	safety 	in April 	and May 	1991 	(protected
activity). 	This 	ISR was 	issued after several of 	the 	safety
complaints were made. 	In addition, 	you 	indicated that the May
1991 	ISR states that Mrs. 	Wyler was 	fearful 	for her safety. 	This
ISR states 	for her dates of 	service on April 	29 	and 	30, 	1991
that,
Substitute teacher, 	Mrs. 	Lorraine Wyler, 	should not be
reassigned to Banneker Special 	Education Center. 	She
has 	difficulty relating 	to 	our 	mentally 	retarded
students. 	She was 	observed 	just 	sitting at 	the desk
throughout her 	first day's 	assignment. 	The 	second day,
the 	assistant principal went 	in to help her 	get
organized. 	She was 	sitting and 	expressed 	fear of 	some
of 	the 	students. 	She 	stated 	she 	felt 	they did not
belong in school. 	She complained that one of the boys
was 	after her and had 	grabbed her wrist. 	She 	later
22

complained of 	being 	ill. 	We 	released her 	from her
assignment about 	11:15 a.m. 	on Tuesday, 	April 	30.
We have a genuine concern about Mrs. 	Wyler's health and
welfare. 	We also have a 	concern about her ability to
handle and control 	the behaviors 	of 	some 	of 	our more
difficult 	students.
Based on the above 	information, 	I 	still 	do not 	find a connection
(nexus) 	between Mrs. 	Wyler's protected activity and the May 	1991
ISR. 	This 	is because none of the various ways to show nexus, 	as
indicated above in Novato, 	are present. 	The fact the ISR
mentions 	that Mrs. 	Wyler expressed 	fear of 	some of the 	students
does not, 	by itself, 	show an unlawful motive by the District. 	I
note that 	in a 	letter to Mrs. 	Wyler from the District dated
May 21, 	1991, 	she was warned that if 	she received a 	second ISR
that 	semester, 	it would result 	in her placement on the 	standby
list1. 	She was 	also advised that 	it was 	the 	District's practice
to 	request a 	complete 	service 	fitness 	review for 	substitutes
issued three or more 	ISR's. 	The review is made to determine 	if a
dismissal 	should be recommended. 	On May 28, 	1991, 	UTLA filed a
grievance regarding the May 	1991 	ISR. 	On July 26, 	1991, 	the
District notified UTLA and Mrs. 	Wyler that 	the grievance would be
denied. 	On August 	15, 	1991, 	the District offered to
resolve/settle 	the 	grievance 	by 	indicating 	that 	the 	ISR would be
"sunset" 	after one year as 	long as 	there were no other ISR's
issued during this period. 	UTLA urged Mrs. 	Wyler to accept the
settlement as the best possible procedure. 	Mrs. 	Wyler believed
the 	settlement was unwise2 as 	it contained a 	"trap" 	but based on
the advice of UTLA, 	she agreed to the settlement. 	She feared if
she did not 	take the 	settlement, 	that UTLA would not process 	her
grievance diligently 	should 	additional 	proceedings 	be 	required.
It 	is 	alleged that the District 	"was 	then waiting and 	lurking 	for
another 	incident to occur 	so that 	it 	could proceed with 	its
retaliatory motive." 	I 	find this 	allegation to be unsupported
and 	conclusory based 	upon 	the 	information provided.
You 	indicated during 	our 	telephone 	conversation that 	the
September 	11, 	1991 	ISR was retaliatory as 	it lacked merit, 	and
the 	District 	issued 	the 	ISR without 	any basis 	or grounds 	to
support 	it. 	For dates of 	service 	(at Bethune Middle 	School 	for
seventh grade - Core 	students) 	of August 	21 	through September 	11,
1991, 	the ISR indicates that Mrs. 	Wyler,
1 Being on the 	standby 	list puts 	a 	substitute 	in the 	lowest
calling priority 	and name 	requests 	cannot 	be 	honored. 	Being 	on
this 	list 	lasts 	for 	six working months.
2It 	is 	alleged that 	the 	settlement was 	concluded 	"on a 	very
unfair and one-sided basis, 	namely, 	that the 	Inadequate Service
Report of May 8, 	1991 would be 	'sunset' 	for a year provided no
other 	Inadequate 	Service 	Report would be 	issued 	during 	that
year."
33

1. 	Failed to 	attend period by period 	faculty meeting
announced 	in daily bulletin.
2. 	Failed to 	submit daily counts 	to counseling office.
3. 	Failed to keep grades 	for students. 	Upon release
9/11/91, 	Ms. 	Wyler had insufficient grades 	for
students. 	All 	student grades 	had been written 	in a
dot code on the attendance roster. 	Ms. 	Wyler was
unable to provide adequate grades.
Based on the 	information provided, 	I 	find that Mrs. 	Wyler has 	not
demonstrated that 	this 	ISR was 	issued 	in retaliation 	for her
prior protected activity 	(no nexus). 	I 	note that UTLA filed a
grievance on or about September 28, 	1991. 	In April 	1992, 	UTLA's
Grievance Review Committee 	(GRC) 	advised Mrs. 	Wyler that 	it had
decided not to take this 	grievance to arbitration. 	I 	also note
that by letter dated September 30, 	1991 to Mrs. 	Wyler, 	the
District referred to 	ISR's 	in 	1984, 	May 	1991 	and September 	1991
(3 	total). 	This 	letter indicated in part that as an additional
ISR was 	issued 	in September 	1991, 	a 	complete 	service 	fitness
review had been requested to determine whether 	she 	ought 	to 	be
dismissed as 	a 	substitute teacher.
It is alleged that due to the ISR's, 	on October 	18, 	1991, 	the
District 	issued 	a 	letter dismissing Mrs. 	Wyler 	from 	substitute
status. 	It 	is 	further alleged that the District's 	action in
issuing the 	ISR's, 	supposedly participating in an 	"unfair"
settlement of the May 	1991 	ISR, 	and in dismissing Mrs. 	Wyler,
"all were 	tied up 	and 	connected with a 	retaliatory motive 	on 	the
part of the district." 	It 	is 	alleged that the District wishes
not to publicize assaults 	on teachers 	and 	is 	apprehensive 	about
this 	subject. 	It 	is 	alleged that 	"a public 	airing of 	the working
conditions of all teachers, 	including substitute teachers, 	would
be beneficial 	to 	the public 	and not a 	cover-up 	thereof. 	The
district 	acted unfairly 	in discharging or dismissing 	the 	charging
party." 	I 	do not 	find 	sufficient 	facts 	alleged to 	support 	the
conclusion that 	there was 	a 	cover-up. 	During our telephone
conversation, 	you 	indicated that a nexus was 	shown by the 	fact
that 	the dismissal was 	retaliatory and that 	the prior 	ISR's 	were
used. 	I 	disagree and find that you have not demonstrated a 	nexus
between the dismissal 	and 	the prior protected activity. 	I 	reach
this 	same 	conclusion even when the 	"whole picture" 	is 	taken 	into
consideration. 	The Charging Party has 	not 	clearly and 	concisely
demonstrated any of the 	factors 	establishing nexus. 	Thus, 	a
prima 	facie violation of 	EERA 	section 	3543.5(a) 	has 	not been
stated.
Next, 	EERA does 	not allow a 	complaint 	to 	issue regarding a 	charge
based 	upon an alleged unfair practice 	occurring 	more 	than 	six
months prior to 	the 	filing of 	the 	charge. 	EERA 	section
3541.5(a)(1). 	It is the charging Party's burden, 	as part of the
prima 	facie case, 	to prove the 	charge was 	timely 	filed.
4

Furthermore, 	there 	is 	no 	longer any equitable tolling of 	the 	six
month 	limitations 	period. 	The 	Regents 	of 	the University of
California 	(1990) 	PERB Decision No. 	826-H. 	This charge was 	filed
on June 	26, 	1992. 	We may only consider alleged unlawful 	conduct
of the District occurring after on or about December 	26, 	1991.
Therefore, 	all 	allegations 	of unlawful 	conduct by the 	District
occurring before this date, 	are untimely and will 	be dismissed.
This includes the ISR's in 1980, 	1984, 	and May 8, 	19913, 	as well
as 	the August 	1991 	settlement 	(assuming the 	settlement 	is 	an
adverse action, 	without deciding the issue), 	and the dismissal on
October 18, 	19914.
Next, 	section 3541.5(a) 	of the EERA states, 	in pertinent part,
that PERB 	shall not:
Issue a 	complaint 	against 	conduct also
prohibited by 	the provisions 	of 	the
[collective 	bargaining 	agreement 	in 	effect]
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.
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
PERB held 	that 	this 	section established a 	jurisdictional 	rule
requiring that a charge be dismissed and deferred if: 	(1) 	the
grievance machinery of the 	agreement 	covers 	the 	matter at 	issue
3The May 	8, 	1991 	ISR and grievance 	filed thereafter 	caused
tolling of 	the 	statute of 	limitations 	only until 	the 	grievance
machinery was 	exhausted with the 	settlement 	of 	the 	grievance 	in
August 	1991. 	See EERA section 3541.5(a)(2). 	You requested
additional 	tolling 	since 	the 	settlement 	required 	that 	there 	be 	no
more 	ISR's 	during a one year period. 	I 	find that 	tolling and the
grievance procedure were 	exhausted when the 	settlement was
reached in August 	1991. 	Thus, 	the May 	1991 	ISR is untimely.
4I 	note 	that you 	indicated 	that 	based upon 	advice 	from 	UTLA,
Mrs. 	Wyler appealed the dismissal by your 	letter to the 	District
dated October 25, 	1991. 	The District responded negatively on
October 31, 	1991. 	The Charging Party then sent a 	letter to a
member of the Board of Education, 	Mark Slavkin, 	requesting
reconsideration. 	On December 2, 	1991, 	Mr. 	Slavkin referred the
matter to a Deputy Superintendent 	for response. 	At 	this 	time,
you have 	not received any 	further response. 	Based on the
information provided, 	tolling will 	only occur during 	the 	time 	the
Charging 	Party took to exhaust 	the 	grievance machinery. 	EERA
section 	3541.5(a)(2). 	You did not 	file a grievance under Article
V of 	the Agreement 	between 	UTLA and 	the 	District 	effective
June 26, 	1989 through June 30, 	1991. 	Therefore, 	there is no
tolling and the October 	1991 	dismissal 	is 	untimely, 	and will 	be
dismissed.
55

and culminates in binding arbitration; 	and, 	(2) 	the conduct
complained 	of 	in the unfair practice 	charge 	is 	prohibited by 	the
provisions 	of the agreement between the parties. 	PERB 	Regulation
32620(b)(5) 	(Cal. Code of Regs., tit. 	8, 	sec. 	32620(b)(5)) also
requires 	the 	investigating Board agent to dismiss 	a 	charge where
the 	allegations 	are properly deferred 	to 	binding 	arbitration.
These 	standards 	are 	met with respect 	to 	the 	allegations 	of
reprisal involving the May 8, 	1991 	ISR. 	First, 	the grievance
machinery of 	the Agreement 	covers 	the 	dispute 	raised 	by 	the
unfair practice 	charge 	and 	culminates 	in binding 	arbitration.
Article V, 	section 	19.0 	of the Agreement provides, 	in part, 	that
"The 	arbitration panel's 	decision 	shall 	be 	final 	and 	binding 	upon
the grievant(s), 	the District and UTLA." 	Second, 	the conduct
complained of 	in this 	charge 	that the 	District unlawfully
retaliated against Mrs. 	Wyler 	is 	arguably prohibited by Article
X, 	section 	7.0 	of 	the Agreement.
Article X, 	section 	7.0 	of 	the Agreement 	appears 	to permit 	an 	ISR
to be grieved by the 	substitute teacher. 	It provides 	that,
The 	site administrator may, 	for cause, 	issue a day-to-
day 	substitute 	employee a notice of 	inadequate 	service.
Such a notice shall, 	absent compelling circumstances,
be 	issued within ten working days 	after the date(s) 	of
service, 	with a copy to the employee 	(either in person
or by certified mail 	to the 	employee's 	address 	of
record). 	Prior to issuance of such a notice, 	the site
administrator 	shall make a reasonable 	effort 	to 	contact
and 	confer with 	the 	substitute 	regarding the
allegations. 	In addition to the grievance procedure,
the 	employee 	may attach a written response 	to 	the
report within ten working days 	from date 	received. 	The
written response becomes 	a permanent part 	of 	the
record.
I 	note 	that 	a grievance was 	filed and ultimately 	settled. 	EERA
section 	3541.5(a)(2) 	allows 	PERB to have discretionary
jurisdiction to 	review a 	settlement 	to determine 	if 	the
settlement/arbitration award 	is 	repugnant 	to the purposes 	of 	the
EERA. 	The 	charge does 	not 	indicate or 	establish 	that 	the
settlement 	(the sunset provision) 	is repugnant, 	and therefore, 	a
prima 	facie 	violation has 	not been alleged.
Accordingly, 	this 	specific 	allegation must be deferred to
arbitration and will be dismissed. 	(See PERB Reg. 	32661 	[Cal.
Code of Regs., 	tit. 	8, 	sec. 	32661]; 	Los Angeles Unified School
District 	(1982) 	PERB Decision No. 	218; 	Dry Creek Joint Elementary
School District 	(1980) 	PERB Order No. 	Ad-81a.)
If there 	are any 	factual 	inaccuracies 	in this 	letter or any
additional 	facts which would 	require 	a different 	conclusion 	than
the 	one 	explained above, 	please amend the charge. 	The amended
66

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 	Respondent5 and the 	original proof 	of
service 	filed with PERB. 	If 	I 	do not receive an amended 	charge
or withdrawal 	from you before August 	18, 	1992, 	I 	shall dismiss
your charge without 	leave 	to amend. 	If you have 	any questions,
please call me at 	(213) 	736-3127.
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney
55Mr. 	Terry McConville, 	Director of Litigation Research,
Office of the Special Counsel to the Superintendent, 	Los Angeles
Unified 	School 	District.
77