Los Angeles Unified School District (Service Employees International Union Local 99) (PERB 1181E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE EMPLOYEES 	INTERNATIONAL .
UNION, 	LOCAL 99,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3672
PERB Decision No. 	1181
December 	10, 	1996
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Appearances; 	Posner & Rosen by Howard Z. 	Rosen, 	Attorney, 	for
Service Employees 	International Union, 	Local 99; 	O'Melveny &
Myers by Steven M. 	Cooper, 	Attorney, 	for Los Angeles Unified
School District.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on appeal 	by the
Service Employees 	International Union, 	Local 99 	(SEIU) 	of a Board
agent's dismissal 	(attached) 	of 	its unfair practice charge. 	In
the 	charge, 	SEIU alleged that 	the 	Los Angeles Unified School
District 	(District) 	violated section 3543.5(a) 	and 	(b) 	of the
Educational 	Employment Relations Act 	(EERA)1 by unilaterally
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	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

implementing a 	change 	in the 	terms 	of 	employment 	relating 	to 	the
District's 	drug 	and alcohol 	testing policy.
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.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including SEIU's 	original 	and amended unfair practice 	charge, 	the
Board agent's warning and dismissal 	letters, 	SEIU's 	appeal 	and
the District's 	response 	thereto. 	The Board finds 	the warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and adopts 	them
as 	the 	decision of 	the Board 	itself 	in accordance with 	the
following 	discussion.
DISCUSSION
Pursuant 	to Federal 	law and regulations, 	the District 	on
January 1, 	1995, 	implemented a drug and alcohol 	testing policy
for employees 	in safety-sensitive positions. 	The policy provided
for 	random drug and alcohol 	testing 	and 	indicated 	that 	employees
found to have alcohol 	levels 	of 	.02 	percent 	or higher would be
subject 	to dismissal.
On October 26, 	1995, 	an employee of the District and member
of 	the bargaining unit 	represented by SEIU was 	subjected 	to a
random drug 	and alcohol 	test 	and 	registered an alcohol 	level
greater than 	.02 percent. 	As a result, 	the employee was
dismissed by the District on December 12, 	1995.
22

On May 8, 	1996, 	SEIU filed the 	instant unfair practice
charge alleging 	that 	the District's 	dismissal 	of 	the 	employee
resulted 	from its 	unilateral 	change 	in the 	terms 	of 	employment
for employees 	in safety-sensitive positions. 	An amended 	charge
was 	filed on August 	5, 	1996.
SEIU asserts 	that 	the 	policy 	implemented by 	the 	District 	on
January 1, 	1995, 	indicates 	that employees 	found to have alcohol
levels 	of 	.02 	percent 	or higher would be 	"subject 	to dismissal."
SEIU contends 	that 	not until 	the dismissal 	of 	an employee 	on
December 12, 	1995, 	did it become clear that the District had
adopted a 	zero 	tolerance 	policy 	that 	mandated 	dismissal 	of
employees 	found to have 	.02 	percent 	or higher alcohol 	levels.
SEIU asserts 	that 	a policy 	of mandatory dismissal 	for 	certain
conduct 	represents 	a 	change 	from a policy which 	states 	that 	an
employee will be 	"subject 	to dismissal" 	for that 	conduct.
In dismissing SEIU's 	charge, 	the Board agent notes 	that 	EERA
section 	3541.5(a)(I)2 prohibits 	PERB 	from considering a 	charge
based 	on 	an 	alleged unfair practice 	occurring more 	than 	six
months before 	the 	filing 	of 	the 	charge. 	The Board agent 	also
2EERA section 3541.5 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the 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.
w3

points 	out 	that 	this 	statute 	of 	limitations 	commences 	when the
charging party has 	actual 	or 	constructive 	notice 	of 	a 	clear
intent 	to 	implement 	the action which 	constitutes 	the basis 	of 	the
unfair practice 	charge. 	(West Valley-Mission Community College
District 	(1995) 	PERB Decision No. 	1113 	(West Valley-Mission).)
The Board agent 	found that 	SEIU had notice 	on January 1, 	1995,
that 	the 	new policy would subject 	employees 	to dismissal 	if 	they
were 	found to have 	alcohol 	levels 	of 	.02 	percent 	or greater.
Therefore, 	the 	statute of 	limitations began to run on January 1,
1995, 	and SEIU's May 8, 	1996, 	charge is untimely.
On appeal, 	SEIU acknowledges 	the EERA statute of
limitations. 	However, 	SEIU repeats 	its 	contention that 	the
District's 	policy 	indicating 	that 	employees 	would be 	"subject 	to
dismissal" 	for having an alcohol 	level 	in excess 	of 	.02 	percent
does 	not provide 	constructive knowledge of 	the 	intent 	to
implement 	a 	zero 	tolerance 	policy 	calling 	for mandatory dismissal
of 	all 	employees 	engaged 	in that 	conduct. 	SEIU also offers 	the
findings 	and recommendations 	of 	a hearing officer 	for the
District's 	Personnel 	Commission concerning 	the 	dismissal 	of
another 	employee 	for violation 	of 	the 	drug and alcohol 	testing
policy. 	SEIU asserts 	that 	the hearing officer found that 	"the
District 	did not 	communicate 	to 	the Union or the 	employees 	its
zero 	tolerance 	policy which 	required mandatory 	termination 	for
violation 	of 	the 	alcohol 	Program 	. . . "
The 	District 	responds 	by 	supporting 	the Board agent's
finding that 	SEIU's 	charge 	is untimely. 	If 	the 	charge 	is 	found
44

to be 	timely, 	the District 	argues 	that 	it 	should be dismissed
because 	the 	implementation of 	the 	drug and alcohol 	testing policy
is 	consistent with 	the District's 	rights 	under 	the parties'
collective bargaining agreement. 	Furthermore, 	the District
argues 	that 	SEIU waived 	its 	right 	to negotiate 	over 	the 	drug and
alcohol 	testing policy when 	it 	failed 	to 	request 	negotiations
during 	the 	time 	the District was 	developing 	the policy in 	1994.
The 	limitations 	period described 	in 	EERA
section 3541.5(a)(1) 	is mandatory and bars 	PERB's 	jurisdiction
over 	charges 	alleging 	conduct 	occurring more 	than 	six months
prior 	to 	the 	filing 	of 	the 	charge. 	(Calexico Unified School
District 	(1989) 	PERB Decision No. 	754.) 	The issue here is
whether SEIU had notice 	of 	the District's 	clear 	intent 	to
implement 	the 	action on which 	the 	charge 	is based more 	than 	six
months prior to the 	filing of 	its unfair practice 	charge. 	(West
Valley-Mission.)
An 	employer's 	policy 	indicating 	that 	employees 	will 	be
"subject 	to dismissal" 	for having an alcohol 	level 	in excess 	of
.02 	percent 	evinces 	the 	clear intent 	that 	any and all 	employees
involved in that 	conduct may be dismissed. 	Therefore, 	the
District's 	decision 	in December 	1995 	to dismiss 	an employee 	found
to have an alcohol 	level 	above 	.02 	percent 	is perfectly
consistent 	with 	the 	drug 	and alcohol 	testing policy 	adopted
January 1, 	1995. 	Simply put, 	the policy clearly provides 	for the
dismissal 	of 	employees 	found to be 	in violation of 	the policy.
SEIU had actual 	or 	constructive 	knowledge 	of 	this 	intent 	at 	the
55

time 	of 	the 	implementation of 	the policy on January 1, 	1995.
Therefore, 	SEIU's May 8, 	1996, 	unfair practice charge is
untimely.
The 	decision of 	a 	Personnel 	Commission hearing 	officer
pertaining 	to 	the 	dismissal 	of 	another SEIU member who was 	found
to have an alcohol 	level 	above 	.02 	percent 	does 	not 	lead 	the
Board to a different 	conclusion. 	The hearing officer, 	in
determining whether 	the 	District 	was 	required 	to 	consider
mitigating factors 	in deciding to dismiss 	the employee, 	concluded
that 	the District 	had not 	communicated 	to 	employees 	its 	intent 	to
adopt 	a 	zero 	tolerance approach 	for violations 	of 	the 	drug and
alcohol 	testing policy. 	It 	is unclear what 	standard the hearing
officer used 	in reaching 	this 	conclusion, 	or how that 	standard
may relate 	to 	the West Valley-Mission 	"actual 	or 	constructive
knowledge" 	standard for EERA's 	statute of 	limitations. 	It 	is
also unclear 	to what 	extent 	the 	circumstances 	described by 	the
hearing 	officer are present 	in 	the 	dismissal 	of 	the 	employee
cited in SEIU's 	charge. 	It 	is 	clear that 	the hearing officer
made 	no 	finding 	that 	the District 	violated 	the 	drug 	and 	alcohol
testing policy 	in dismissing 	the 	employee, 	and 	recommended 	that
the 	dismissal 	be 	sustained. 	The hearing officer's 	decision does
not affect 	the Board's conclusion that 	the January 1, 	1995, 	drug
and alcohol 	testing policy provided 	SEIU with actual 	or
constructive knowledge 	of 	the District's 	clear intent 	to take 	the
66

action which 	forms 	the basis 	of 	the 	instant 	unfair practice
charge.3
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-3672 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Member Johnson 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence begins 	on page 	8.
3Since SEIU's 	charge 	is untimely, 	the Board finds 	it
unnecessary 	to 	consider 	the 	other arguments 	offered by 	the
District.
77

GARCIA, 	Member, 	concurring: 	I agree that this 	case should
be 	dismissed because 	the 	Service 	Employees 	International 	Union,
Local 	99 	has 	failed 	to demonstrate 	that 	its 	charge was 	timely
filed. 	However, 	I would simply adopt 	the Public Employment
Relations 	Board 	(PERB or Board) 	agent's 	dismissal 	in affirming
because 	the 	discussion of 	a hearing 	in another 	forum appears
irrelevant 	if 	the Board does 	not 	have 	jurisdiction. 	The Board
agent's 	dismissal 	letter accurately 	identifies 	the 	issue 	and
analyzes 	it 	succinctly by stating:
A charging party must 	file 	a 	charge 	when 	it
has 	actual 	or constructive notice 	of 	a 	clear
intent 	to 	implement 	the action which
constitutes 	the basis 	for 	the unfair
practice, 	provided that 	nothing 	subsequent 	to
that 	date 	evinces 	a wavering of 	that 	intent.
(West 	Valley-Mission 	Community 	College
District 	(1995) 	PERB Decision No. 	1113.) 	The
statute 	of 	limitations begins 	to 	run when the
charging party becomes 	aware 	of 	the 	conduct
constituting the unfair practice, 	not when
the 	charging party discovers 	the 	legal
significance of that, conduct. 	(See
California State 	Employees' 	Association
(1985) 	PERB Decision No. 	546-S.)
It 	appears 	that 	SEIU was 	aware 	that under 	the
new policy 	employees 	would be 	subject 	to
dismissal 	from its 	initial 	implementation.
When 	the 	District 	implemented 	the 	policy 	on
January 1, 	1995, 	it stated an employee in
violation 	"is 	removed 	from 	safety-sensitive
duty 	[and] 	subject 	to dismissal." 	On May 10,
1995, 	Freeman signed a statement which
provided 	that 	having an 	.02 	blood alcohol
level 	"may result 	in 	[his] 	termination from
the District." 	Accordingly, 	the statute of
limitations began to run on January 1, 	1995,
not on December 12, 	1995, 	when Freeman was
fired under the policy. 	Therefore 	this
charge 	is untimely filed, 	and fails 	to
present 	a prima 	facie violation of 	the 	EERA
within the 	jurisdiction of 	PERB.
88

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
August 9, 199 6
Howard Z. 	Rosen
Posner & Rosen
3600 Wilshire Blvd., 	Suite 1800 	.
Los Angeles, 	CA 90010
Re: 	Unfair Practice Charge No. 	LA-CE-3672,
Service Employees International Union, 	Local 99 v. 	Los
Angeles Unified School District
DISMISSAL LETTER
Dear Mr. Rosen:
In the above-referenced charge 	the Service Employees
International Union, 	Local 99 	(SEIU) 	alleges the Los Angeles
Unified School District 	(District) 	violated the Educational
Employment Relations Act 	(EERA or Act) 	sections 3543.5(a) 	and 	(c)
by unilaterally implementing a 	substance abuse policy.
You allege the District fired bargaining unit member, 	Lionel L.
Freeman because he registered an alcohol 	level greater than 	.02
on a random alcohol screen, 	on December 12, 	1995. 	You contend
the policy under which the District 	fired Freeman was 	implemented
without bargaining with SEIU.
On July 24, 	1996, 	I issued a warning letter explaining the
original 	charge 	failed to present a prima facie violation within
the jurisdiction of the PERB. 	On August 5, 	1996, 	you filed your
first amended charge which indicated,
It is the Union's position that Mr. 	Freeman's
December 12, 	1995 discharge commences the
running of the six month statute of
limitations, 	not the implementation of the
policy.
Although the District 	implemented the drug and alcohol 	testing
policy on January 1, 	1995, 	you allege prior to Freeman's
discharge on December 12, 	1995, 	SEIU had no way of knowing how
the policy would apply in the event an employee tested in excess
of 	.02. 	In your first amended charge you also allege SEIU would
not have known that the policy's 	language stating employees are
"subject to dismissal" 	if their blood alcohol level is above 	.02
subjected an employee 	to mandatory dismissal.

LA-CE-3672
Dismissal 	Letter
August 9, 	1996
Page 2
The above-stated facts fail 	to state a prima facie violation of
the EERA within the jurisdiction of PERB for the reasons that
follow. 	EERA § 3541.5 (a) 	provides the Board 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.
In the instant 	charge you allege the District unilaterally
implemented a drug-testing policy in violation of EERA. 	However
you filed this charge on May 8, 	1996, 	over a year after the
District implemented its policy, 	on January 1, 	1995.
A charging party must file a charge when it has actual 	or
constructive notice of a clear intent to implement the action
which constitutes the basis 	for the unfair practice, 	provided
that nothing subsequent to that date evinces a wavering of that
intent. 	(West Valley-Mission Community College District 	(1995)
PERB Decision No. 	1113.) 	The statute of limitations begins to
run when the charging party becomes aware of the conduct
constituting the unfair practice, 	not when the charging party
discovers the legal significance of that conduct. 	(See
California State Employees' 	Association 	(1985) 	PERB Decision No.
546-S.)
It appears that SEIU was aware that under the new policy
employees would be subject 	to dismissal 	from its 	initial
implementation. 	When the District 	implemented the policy on
January 1, 	1995, 	it stated an employee in violation 	"is removed
from safety-sensitive duty 	[and] 	subject to dismissal." 	On May
10, 	1995, 	Freeman signed a statement which provided that having
an 	.02 blood alcohol level 	"may result in 	[his] 	termination from
the District." 	Accordingly, 	the statute of limitations began to
run on January 1, 	1995, not on December 12, 	1995, when Freeman
was 	fired under the policy. 	Therefore this charge is untimely
filed, 	and fails to present a prima facie violation of the EERA
within the jurisdiction of PERB.
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 Regs., 	tit. 	8,

sec. 	32635(a).) 	Any document 	filed with the Board must contain
the case name and number. 	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 Regs.,
tit. 	8, 	sec. 	32135.) 	Code of Civil Procedure section 1013 shall
apply. 	The Board's address is:
LA-CE-3672
Dismissal 	Letter
August 9, 199 6
Page 3
Attention: Appeals Assistant
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
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 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 Regs., tit. 8, sec. 32132.)

LA-CE-3672
Dismissal 	Letter
August 9, 	1996
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
By Tammy L. 	Samsel
Regional Attorney
Attachment

OF CALIFORNIA	STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
July 24, 	1996
Howard Z. 	Rosen
Posner & Rosen
3600 Wilshire Blvd., 	Suite 1800
Los Angeles, 	CA 90010 •
Re: 	Unfair Practice Charge No. 	LA-CE-3672,
Service Employees International Union. 	Local 	99 v.
Los Angeles Unified School District
WARNING 	LETTER
Dear Mr. Rosen:
In the above-referenced charge 	the Service Employees
International Union, 	Local 99 	(SEIU) 	alleges the Los Angeles
Unified School District 	(District) 	violated the Educational
Employment Relations Act 	(EERA or Act) 	sections 3543.5(a) 	and 	(c)
by unilaterally 	implementing a 	substance abuse policy.
You allege the District 	fired bargaining unit member, 	Lionel L.
Freeman because he 	registered an alcohol 	level 	greater than 	.02
on a random alcohol screen, 	on December 12, 	1995. 	You contend
the policy under which the District 	fired Freeman was 	implemented
without bargaining with SEIU.
On January 1, 	1995, 	the District implemented its drug-testing
policy. 	Prior to implementation, 	the District distributed to
SEIU a draft of 	the proposed drug-testing policy. 	That draft,
dated November 10, 	1994, 	indicated:
The Federal 	Highway Administration of 	the
U.S. 	Department of Transportation has
published rules 	requiring alcohol 	and drug
testing for persons 	required to have a
commercial driver's license. 	Local 99
members who are required to have a commercial
driver's 	license 	for their position will be
subject 	to alcohol 	and drug testing beginning
January 1, 	1995.
On May 10, 	1995, 	Freeman signed a statement acknowledging that he
received the District's 	Drug and Alcohol 	Testing Program Policy
and Reference Guide for Employees. 	Freeman also acknowledged
that having an alcohol 	concentration of 	.02 	or greater could
result in his 	termination.
J

LA-CE-3672
July 25, 	1996
Page 2
The above-stated facts 	fail 	to state a prima facie violation of
the EERA for the reasons that follow. 	EERA § 3541.5(a) 	provides
the Board 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.
In the instant 	charge you allege the District unilaterally
implemented a drug-testing policy in violation of EERA. 	However
you filed this 	charge on May 8, 	1996, 	over a year after the
District implemented its policy, 	on January 1, 	1995. 	You failed
to present any facts 	of belated discovery. 	Accordingly this
charge is untimely filed, 	and fails to present a prima facie
violation of 	the EERA within the jurisdiction of PERB.
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 August 5, 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-7508.
Sincerely,
Tammy IK 	Samsel
Regional Attorney