San Francisco Unified School District (PERB 1250E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED EDUCATORS 	OF SAN FRANCISCO,
Charging 	Party,
v.
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1935
PERB Decision No. 	1250
February 	9, 	1998
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Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg, 	Attorney, 	for United Educators of San Francisco; 	Breon,
O'Donnell, 	Miller, 	Brown & Dannis by Claudia Madrigal, 	Attorney,
for San 	Francisco Unified School 	District.
Before Caffrey, 	Chairman; 	Johnson and Amador, 	Members.
DECISION
Amador, 	Member: 	This 	case 	comes before the Public
Employment 	Relations 	Board 	(Board) 	on appeal 	from a Board agent's
dismissal 	(attached) 	of 	the United Educators of 	San Francisco's
(UESF) 	unfair practice charge. 	As amended, 	the charge alleges
that 	the 	San Francisco Unified School 	District 	(District)
violated section 3543.5(a) 	of 	the 	Educational 	Employment
Relations Act 	(EERA)1 when it 	interfered with employee 	rights
JEERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 provides, 	in relevant 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. 	For purposes 	of

guaranteed by 	the 	EERA.
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including UESF's 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	UESF's appeal, 	and the District's
response 	thereto. 	The Board finds 	the warning and dismissal
letters 	to be 	free 	from prejudicial 	error and adopts 	them as 	the
decision of 	the Board itself.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-1935 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
22

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) 439-6940
November 25, 	1997
Stewart Weinberg
Van Bourg, Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 1400
Oakland, 	California 	94612
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
United Educators of San Francisco v. 	San Francisco Unified
School District
Unfair Practice Charge No. 	SF-CE-1935
Dear Mr. Weinberg:
The above-referenced unfair practice charge 	filed on March 31,
1997, 	alleges that the San Francisco Unified School District
(District) 	engaged in intimidation and retaliation against
employees participating in the activities of United Educators of
San Francisco 	(UESF). 	This conduct is alleged to violate
Government Code section 3543.5(a) 	of the Educational Employment
Relations Act 	(EERA).
I indicated to you, 	in my attached letter dated November 12,
1997, 	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. 	You were further advised that, 	unless you amended the
charge or withdrew it prior to November 20, 	1997, 	it would be
dismissed.
I have not 	received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons contained in my November 12, 	1997 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 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
•

Dismissal 	Letter
SF-CE-1935
November 25, 	1997
Page 2
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:
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.)
Final Date
If no appeal 	is filed within the specified time limits, 	the
( 	r - 	('

Dismissal Letter
SF-CE-1935
November 25, 	1997
Page 3
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
DONN Ginoza
Regional Attorney
Attachment
cc: 	Claudia Madrigal

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) 439-6940
November 12, 	1997
Stewart 	Weinberg
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 1400
Oakland, 	California 	94612
Re: 	WARNING LETTER
United Educators 	of 	San 	Francisco v. 	San 	Francisco Unified
School 	District
Unfair Practice Charge No. 	SF-CE-1935
Dear Mr. 	Weinberg:
The 	above-referenced unfair practice 	charge 	filed 	on March 	31,
1997, 	alleges 	that 	the San Francisco Unified School 	District
(District) 	engaged 	in 	intimidation and 	retaliation against
employees participating 	in the activities 	of United Educators 	of
San Francisco 	(UESF). 	This 	conduct 	is alleged to violate
Government 	Code 	section 3543.5(a) 	of 	the Educational 	Employment
Relations 	Act 	(EERA).
Investigation 	of 	the 	charge 	revealed the 	following. 	UESF 	is 	the
exclusive 	representative 	of 	a unit 	of 	certificated employees 	in
the District. 	In August 	of 	1996, 	Mission High School 	was placed
in the Comprehensive School 	Improvement 	Program 	(CSIP). 	The
program places 	schools with low student 	test 	scores 	on probation.
The probationary period 	culminates 	in an assessment 	of 	the 	entire
school 	by 	the 	CSIP 	team. 	The 	team includes 	a number of 	District
school administrators. 	Following the assessment, 	the school 	is
either graduated from the program, 	remains 	on probation, 	or is
reconstituted. 	If 	the school 	is 	reconstituted, 	employees 	at 	the
site 	are 	transferred 	to different 	school 	sites.
Since 	the 	start 	of 	the 	1996-97 academic year, 	a number of
teachers 	at Mission High School 	have been actively 	organizing
faculty members 	to 	oppose 	any 	involuntary 	transfer of 	teachers
from Mission High School. . . .	. 	This 	organization has been done with
the knowledge, 	approval, 	and assistance of UESF. 	According to
UESF, 	the reaction of the District, 	through its agents, 	has been
to 	"attempt 	to 	intimidate, 	threaten and coerce 	employees 	. . . 	in
an 	effort 	to 	cause 	them to 	cease 	to participate 	in 	the 	activities
of 	[UESF] 	and other concerted activities."
The 	charge 	recounts 	a number of 	separate 	incidents 	suggesting a
pattern of 	conduct 	intended to 	isolate 	individuals 	participating
r
--	==----==----

Warning Letter
SF-CE-1935
November 12, 1997
Page 2
in UESF activities 	relative to the potential reconstitution of
Mission High School Faculty. 	For example, 	the teachers'
schedules were arranged so as to prevent union activists 	from
having the same preparation period out of 	concern that 	they may
use that time to consult with one another relative to their joint
goals. 	The principal of Mission High School 	is alleged to have
"unnecessarily and improperly reprimanded" 	a teacher in front of
her class. 	The principal also appeared in the classroom of
another union activist 	to conduct 	a classroom observation even
though that 	teacher was not due to be formally evaluated at 	that
time. 	Another teacher was reprimanded for allegedly
unprofessional behavior 	"because of her alleged conduct at a
meeting which she attended as a union building committee member."
The principal 	notified a UESF representative 	that he would no
longer be allowed to conduct his grievance meetings with teachers
during the teacher's work day. 	Further, 	the principal has begun
a practice of 	consistently refusing to reply to any grievance
filed by UESF. 	The charge contains a number of other similar
events involving other UESF activists.
The District and UESF are parties 	to a collective bargaining
agreement 	containing a grievance procedures which culminates 	in
binding arbitration. 	(Art. XIX, 	sec. 	19.8.3.1.) 	The agreement
defines a grievance as 	"a claimed violation, misinterpretation,
or inequitable application of the terms and conditions of 	this
agreement.) 	(Art. XIX, 	sec. 	19.2.) 	The grievance procedure does
not 	contain any limitation on UESF's 	right 	to file a grievance on
behalf of bargaining unit members. 	Further, 	article V, 	section
5.6 provides:
Non-discrimination -- Neither the District
nor the Union shall discriminate against any
officer or teacher of the District in
violation of the law, 	on the basis of race,
color, creed, age, sex, national origin,
political affiliation, domicile, marital
status, 	sexual orientation, handicapping
condition, physical appearance, or membership
or participation in the activities of a
recognized teacher association.
,
Based on the facts stated above, 	the charge must be dismissed and
deferred to arbitration for the reasons that follow.
Section 3541.5(a) 	of the Educational Employment Relations Act
states, 	in pertinent part, 	that PERB shall not:
Issue a complaint against 	conduct also
prohibited by the provisions of the

Warning 	Letter
SF-CE-1935
November 12, 	1997
Page 3
[collective bargaining] 	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.
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
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 this case. 	First, 	the
grievance machinery of the parties' 	agreement covers the dispute
raised by the unfair practice charge and culminates 	in binding
arbitration. 	Second, 	the conduct complained of in this charge
that 	the District 	engaged in activities designed to intimidate
employees 	so as 	to cause them to cease 	their concerted activities
within UESF is arguably prohibited by article V, 	section 5.6 	of
the agreement. 	The charge alleges that a pattern of events that
involve retaliatory acts against the union activists. 	Although
the charge possibly suggests an alternative theory involving
interference, 	the language of article V, 	section 5.6 suggests no
limitation that prohibit UESF from arguing such a theory. 	(See
Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89
[discussing 	similarity between discrimination and 	interference].)
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 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.)
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
(

Warning Letter
SF-CE-1935
November 12, 	1997
Page 4
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 20. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
DONN GINOZA
Regional Attorney