Santa Rosa Junior College (Aune) (PERB 1161E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ROBERT 0. AUNE,
Charging Party, Case No. SF-CE-1842

Vv. PERB Decision No. 1161
SANTA ROSA JUNIOR COLLEGE, June 26, 1996

Respondent.

Appearances: Robert 0. Aune, on his own behalf; School and
College Legal Services by Noel J. Shumway, Attorney, for Santa
Rosa Junior College.
Before Caffrey, Chairman; Garcia and Dyer, Members.
DECISION

DYER, Member: This case comes before the Public Employment
Relations Board (Board) on appeal from a Board agent's dismissal
(attached) of Robert 0. Aune's (Aune) unfair practice charge. As
amended, the charge alleged that the Santa Rosa Junior College

(Santa Rosa JC) violated section 3543.5 of the Educational

Employment Relations Act (EERA)* by negligently misrepresenting

‘BRERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. EERA section 3543.5 provides:

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. For purposes of
this subdivision, "employee" includes an
applicant for employment or reemployment.

Aune's 	options 	for early retirement.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including Aune's 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	Aune's appeal, 	and the Santa Rosa
JC's 	response 	thereto. 	The Board 	finds 	the Board agent's warning
and dismissal 	letters 	to be 	free 	from prejudicial 	error and
adopts 	them as 	the 	decision of 	the 	Board 	itself 	in accordance
with 	the 	following 	discussion.
DISCUSSION
Aune 	alleges 	that 	the 	Santa Rosa JC negligently misinformed
him regarding 	the 	effect 	that 	early 	retirement 	would have 	on
retirement benefits. 	The Board agent 	correctly 	found that 	the
Santa Rosa JC's 	alleged 	conduct 	did not violate 	the 	EERA. 	Absent
a violation of 	the EERA, 	the Board 	cannot 	exercise any authority
regarding 	the amount 	of Aune's 	retirement benefits. 	As 	noted by
the Board agent, 	Aune's 	claim is better 	suited to another 	forum.
We note, 	however, 	that we cannot 	reach the merits 	of Aune's
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
(d) 	Dominate 	or interfere with the 	formation
or administration 	of 	any 	employee
organization, 	or contribute 	financial 	or
other support 	to 	it, 	or in any way encourage
employees 	to 	join any 	organization 	in
preference 	to another.
(e) 	Refuse 	to participate 	in good faith in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
22

charge. 	The Board has no authority to 	issue a 	complaint 	on any-
unfair practice 	charge 	filed more 	than 	six months 	after 	the
events giving rise to the charge. 	(EERA section 3541.5(a)(1);
Los Angeles Unified School District 	(1983) 	PERB Decision
No. 	311 at p. 	6.)2 Aune's allegations 	concern events occurring
more 	than six months before he 	filed the 	charge. 	The Board
therefore 	lacks 	jurisdiction 	to 	issue 	a 	complaint 	on 	those
allegations.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-1842 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey 	and Member Garcia 	joined 	in 	this 	Decision.
2Section 3541.5 	states, 	in relevant part:
[T]he board shall 	not 	do either of 	the
following:
(1) 	Issue a complaint 	in respect 	of any
charge 	based upon an 	alleged unfair practice
occurring more 	than 	six months 	prior 	to 	the
filing of 	the 	charge.
33

STATE OF CALIFORNIA 	, 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
PERS
December 26, 	1995
Robert 0. Aune
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
Robert 0. 	Aune v. 	Santa Rosa Junior College
Unfair Practice Charge No. 	SF-CE-1842
Dear Mr. Aune:
The above-referenced unfair practice charge, 	filed on October 2,
and amended on December 14, 	1995, 	alleges that the Santa Rosa
Junior College District 	(District) 	unlawfully induced Robert 0.
Aune to accept an early retirement without 	informing of
conditions 	that adversely affected his retirement 	credit. 	This
conduct is alleged to violate Government Code section 3543.5 of
the Educational Employment Relations Act 	(EERA).
I indicated to you, 	in my attached letter dated December 6, 	1995,
that the above-referenced charge did not state a prima facie
case. 	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
December 15, 	1995, 	the charge would be dismissed.
On December 14, 	1995, 	Charging Party filed a first amended
charge. 	Aune alleges that 	the misinformation provided to him
about the effect of his early retirement on his retirement
benefits, came from District administrators who did not understand
the District's own policies on early retirement. 	Aune reasonably
relied on the misrepresentations 	from the District administrators
because they originated with the person in charge of District
personnel policies. 	Moreover, 	Aune alleges that he was justified
in relying on these misrepresentations to his detriment. 	He
would not have retired at the time he did if the information
given to him had been correct. 	Aune further alleges 	that his
attempt to address 	the issue of his retirement benefits through
the grievance procedure was 	futile because the procedure does not
culminate 	in binding arbitration and because his union
representatives 	lacked the 	conviction to carry his grievance
forward. 	Finally, 	Aune questions the undersigned's citation of

Dismissal 	Letter
SF-CE-1842
December 26, 	1995
Page 2
Education Code sections in the December 6, 	1995 letter to the
effect 	that such provisions prohibit mid-year retirements.
The new allegations 	fail 	to state a prima facie violation or cure
the deficiencies stated in the December 6, 	1995 letter. 	The
thrust of 	the new allegations 	is 	the contention that the District
can be held liable for the negligent misrepresentations upon
which Aune reasonably relied to his detriment. 	While these facts
may state a valid theory for a contract or tort claim, 	the Public
Employment Relations Board 	(PERB) 	has no jurisdiction over such
claims, 	as noted in the undersigned's December 6, 	1995 letter.
(Gov. Code, sec. 3541.5(b); Oxnard School District (1988) PERB
Dec. 	No. 	667 	[no jurisdiction to enforce contracts or Education
Code provisions, 	since such jurisdiction lies with the trial
courts of California].) 	The undersigned's assertions as to the
legal effect of the Education Code, 	even if incorrect, 	have no
bearing on the instant 	case.1 The undersigned's duty is 	to
determine whether the facts alleged state a prima 	facie violation
only of those statutes which PERB has the duty to enforce; 	with
respect to the instant case, 	the EERA. 	(Id.) 	For the reasons
previously stated, 	there appears 	to be no unfair practice over
which PERB has 	jurisdiction. 	Aune's allegations 	that the
grievance procedure was a futile process do not cure any of the
deficiencies of the charge, 	including the charge's lack of
timeliness and PERB's lack of jurisdiction over the subject
matter of the charge.
Therefore, 	I am dismissing the charge based on the facts and
reasons stated above and those contained in my December 6, 	1995
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
1 The undersigned intended to convey the thought 	that 	the
Education Code provisions apparently were the cause of Aune not
receiving the 	full 	retirement 	service credit 	to which he would
otherwise have been entitled had he retired in accordance with
those provisions.

Dismissal 	Letter
SF-CE-1842
December 26, 	1995
Page 3
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).)
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 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.)

Dismissal 	Letter
SF-CE-1842
December 26, 	1995
Page 4
Final Date
If no appeal 	is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
DONN GINOZA
Regional Attorney
Attachment
cc: 	Noel Shumway

STATE OF CALIFORNIA 	, 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)557-1350
December 6, 	1995
Robert 0. Aune
Re: 	WARNING LETTER
Robert 0. 	Aune v. 	Santa Rosa Junior College
Unfair Practice Charge No. 	SF-CE-1842
Dear Mr. Aune:
The above-referenced unfair practice charge, 	filed on October 2,
1995, 	alleges that the Santa Rosa Junior College District
(District) 	unlawfully induced Robert 0. 	Aune to accept an early
retirement without 	informing of 	conditions 	that adversely
affected his 	retirement credit. 	This 	conduct is alleged to
violate Government Code section 3543.5 of the Educational
Employment Relations Act 	(EERA).
Investigation of 	the charge revealed the following. 	Robert 0.
Aune had been employed by the College as a member of 	the faculty
prior to his retirement in the spring of 1994. 	He is a member of
the bargaining unit 	exclusively 	represented by the All 	Faculty
Association 	(Association). 	The District and the Association are
parties 	to a collective bargaining agreement which contains an
early retirement 	option. 	An employee choosing early retirement
receives full 	fringe benefits until 	their 65th birthday, 	which
then converts 	to the same package received by employees 	retiring
at 65.
Article 24, 	section 24.1.A.3 states:
It 	is 	the responsibility of each potential
early retiree to carefully evaluate his/her
personal 	economic situation with respect 	to
the State Teachers Retirement System and
other retirement 	income prior to applying 	for
early retirement. 	Once the signed
Application and Agreement Form(s) 	are
approved by the President and the Board of
Trustees, 	the decision to resign and retire
may not be rescinded. 	Candidates 	for early
retirement are encouraged to consult an STRS
advisor and pursue all 	other advisory sources
that will 	clarify their personal 	financial
situation upon retirement.

Warning Letter
SF-CE-1842
December 6, 	1995
Page 2
The District also maintains a policy allowing for a reduced
workload whereby the District 	contributes 	to State Teachers
Retirement System 	(STRS) 	an amount based upon a salary that would
have been paid had the employee been employed full 	time. 	The
District recites 	in its agreements with employees 	to comply with
the provisions of Education Code section 22724 and 87483.
In September 1993, 	Aune approached the District personnel office
to discuss a mid-year retirement 	in connection with his reduced
workload agreement. 	Aune wanted to retire at the end of January
because he did not turn 60 until February 11, 	1994. 	Aune wanted
to receive full STRS benefits based on retirement at age 60.
Aune was 	told that he could work on a special project 	through
January and retire on February 1, 	1994. 	Relying on this
information, 	Aune attempted to retire as of February 1, 	1994.
However, 	four months later, 	he was told that his mid-year
retirement was 	not authorized by the reduced workload agreement
and that he had violated his 	contract with the District. 	As a
result, 	Aune lost retirement credit and other benefits under the
reduced workload agreement. 	Mid-year retirements are apparently
prohibited by Education Code 	section 22724 	and 87483 	and/or
District policies.
Aune 	filed a grievance 	challenging the forfeiture of his
retirement benefits on September 16, 	1994. 	The District rejected
the grievance on March 22, 	1995. 	Aune's exclusive representative
declined to take the matter to arbitration, 	explaining its
reasons in a letter to Aune dated April 28, 	1995.
Based on the facts stated above, 	the charge as presently written
fails to state a prima facie violation of the EERA for the
reasons that follow.
Government Code section 3541.5(a) 	states that the Public
Employment Relations Board (PERB) 	"shall not . 	. 	. 	issue a
complaint 	in respect of any charge based upon an alleged unfair
practice occurring more than six months prior to the filing of
the charge."
PERB has held that the six month period commences 	to run when the
charging party knew or should have known of 	the 	conduct giving
rise to the alleged unfair practice. 	(Regents of the University
of California 	(1983) 	PERB Dec. No. 	359-H.)
The charge was filed on October 2, 	1995. 	Therefore, 	the charge
would not be timely, if Aune knew or should have known of the
alleged violation before April 2, 	1995. 	In determining whether
to issue a complaint, 	the undersigned is required to accept the

Warning Letter
SF-CE-1842
December 6, 	1995
Page 3
charging party's allegations as being true. 	(San Juan Unified
School District 	(1977) 	PERB Dec. No. 	12.)
The charge alleges that in the last week in May 1994, 	Aune was
informed by the District 	that 	since he retired in mid-year he had
violated his 	contract and would not be eligible 	for full
retirement benefits. 	The charge further alleges that Aune filed
a grievance over the dispute on September 16, 	1994, 	which the
District rejected on March 22, 	1995. 	The Association notified
Aune by letter dated April 28, 	1995 	that it would not arbitrate
the matter. 	The EERA does permit the statute of limitations
period to be 	tolled during the 	time 	in which a grievance on the
matter is being pursued under the grievance machinery of 	the
applicable collective bargaining agreement. 	(Gov. 	Code, 	sec.
3541.5(a).)
The charge appears to be untimely. 	At least three months passed
between the time Aune discovered that 	the District was 	claiming
that he had violated his early retirement 	contract. 	The charge
was filed on October 2, 	1995, 	or more than four months, 	after
Aune was 	informed that his grievance would no longer be
processed. 	Therefore, 	more than seven months passed during which
Aune's grievance was not being tolled and thus more than the six
months permitted by EERA's statute of limitations.
Even assuming the charge were timely filed, 	the allegations of
the fail to state a prima facie violation of the EERA. 	Aune
alleges that 	the District breached its 	implied covenant of good
faith and fair dealing and that 	it 	is barred by promissory
estoppel 	from asserting that Aune 	forfeited his 	full 	retirement
benefits because Aune relied in good faith on the erroneous
information he 	received that 	led him to believe 	that 	a mid-year
retirement was permissible. 	However, 	this type of claim is in
essence an attempt 	to enforce a contractual agreement with the
District. 	The jurisdiction provisions of the EERA prohibit
actions brought before PERB to enforce such agreements, 	which do
not involve unfair practices as defined by the EERA. 	(Gov. 	Code,
sec. 3541.5(b).)
Aune does allege that the District 	refused to mediate or
arbitrate the matter. 	However, 	this does not demonstrate a
violation of 	the EERA. 	The exclusive representative has 	the
exclusive right 	to determine whether to elevate a grievance to
arbitration. 	(Castro Valley Unified School District 	(1980) 	PERB
Dec. 	149.) 	If the exclusive representative does not arbitrate
the matter, 	the employer cannot be compelled to arbitrate the
grievance.

Warning 	Letter
SF-CE-1842
December 6, 	1995
Page 4
Mediation is not a process 	statutorily guaranteed to 	individual
employees. 	Mediation under the EERA's impasse procedures is a
right only available to the exclusive representative as
bargaining agent 	for employees 	in an appropriate bargaining unit.
Violations 	of 	the duty to bargain may not be raised by individual
employees. 	(Oxnard School District 	(1988) 	PERB Dec. 	No. 	667.)
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this letter or additional 	facts which would correct the
deficiencies explained above, 	please amend the charge. 	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 December 15. 	1995. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional Attorney