Los Angeles Unified School District (Service Employees International Union Local 99) (PERB 1266E)

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-3898
PERB Decision No. 	1266
June 	5, 	1998
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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; 	Johnson and Jackson, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This case 	is before the Public
Employment Relations Board 	(Board) 	on an appeal by the Service
Employees International Union, 	Local 	99 	(SEIU) 	of a Board agent's
dismissal 	(attached) 	of 	SEIU's unfair practice charge. 	SEIU
alleges 	that the Los Angeles 	Unified 	School 	District 	(District)
violated 	section 	3543.5(c) 	of the Educational 	Employment
Relations Act 	(EERA)1 when the District changed terms of
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.5 provides, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(c) 	Refuse or 	fail to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
__)

employment relating to the 	District's 	substance 	abuse policy
without 	providing 	SEIU with notice 	or 	the 	opportunity to 	bargain.
The 	Board has 	reviewed the 	entire record 	in this 	case
including SEIU's original unfair practice charge, 	the Board
agent's warning and dismissal 	letters, 	SEIU's 	appeal and the
District's response. 	The Board 	finds 	the warning and dismissal
letters 	to be 	free 	of prejudicial 	error 	and adopts 	them as 	the
decision 	of 	the 	Board 	itself.
The unfair practice charge 	in case No. 	LA-CE-3898 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Johnson 	and Jackson 	joined 	in this 	Decision.
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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
DEAL
April 6, 	1998
Howard Z. Rosen, 	Esq.
Posner & Rosen LLP
3600 Wilshire Boulevard, 	Suite 1800
Los Angeles, 	CA 	90010
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
Service Employees International Union. 	Local 99 v. 	Los
Angeles Unified School District
Unfair Practice Charge No. 	LA-CE-3898
Dear Mr. Rosen:
The above-referenced unfair practice charge, 	filed January 30,
1998, 	alleges the Los Angeles Unified School District 	(District)
unilaterally implemented a 	"Zero Tolerance" 	alcohol and drug
policy. 	The Service Employees International Union, 	Local 99
(SEIU) 	alleges this conduct violates Government Code section
3543.5(c) 	of the Educational Employment Relations Act 	(EERA or
Act) .
I indicated to you, 	in my attached letter dated March 11, 	1998,
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 March
18, 	1998, 	the charge would be dismissed.
On March 20, 	1998, 	two days after the above-stated deadline, 	you
sent me a facsimile requesting an extension until March 31, 	1998.
By telephone, 	I granted you an extension until March 25, 	1998. 	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 March 11, 	1998, 	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

Dismissal 	Letter
LA-CE-3898
Page 2
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
LA-CE-3898
Page 3
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 Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Stephen M. 	Cooper

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
PERS
March 11, 199 8
Howard Z. Rosen, Esq.
Posner & Rosen LLP
3600 Wilshire Boulevard, 	Suite 1800
Los Angeles, 	CA 	90010
Re: 	WARNING LETTER
Service Employees International Union. 	Local 99 v. 	Los
Angeles Unified School District
Unfair Practice Charge No. 	LA-CE-3898
Dear Mr. Rosen:
The above-referenced unfair practice charge, 	filed January 30,
1998, 	alleges the Los Angeles Unified School District 	(District)
unilaterally implemented a 	"Zero Tolerance" 	alcohol and drug
policy. 	The Service Employees International Union, 	Local 99
(SEIU) 	alleges this conduct violates Government Code section
3543.5 (c) 	of the Educational Employment Relations Act 	(EERA or
Act) .
Investigation of the charge revealed the following. 	SEIU is the
exclusive 	representative 	of 	the District's 	classified bargaining
unit. 	At issue in this charge is the District's Alcohol and Drug
policy, 	first adopted in January 1995.
In January 1995, 	the District unilaterally adopted a policy which
provided for the 	termination of employees who reported to work or
remained on duty while having a blood/alcohol 	content of 	0.02 	or
greater. 	Employees were required to sign forms 	stating they
understood this policy.
In May 1996, 	SEIU filed an unfair practice 	charge 	(LA-CE-3672)
with PERB alleging the District's unilateral 	implementation of
the alcohol policy violated the EERA. 	On July 24, 	1996, 	Regional
Director Tammy L. 	Samsel 	issued a Warning Letter to SEIU. 	In the
letter, 	Ms. 	Samsel stated PERB lacked jurisdiction over the
charge as SEIU was aware of the alcohol and drug policy as early
as November 1994. 	In its amended charge, 	filed August 6, 	1996,
SEIU asserted that 	it did not know the policy's 	language stating
employees are 	"subject to dismissal" 	subjected an employee to
mandatory dismissal. 	On August 9, 	1996, Ms. 	Samsel dismissed
unfair practice charge LA-CE-3 672 as untimely.

Warning 	Letter
LA-CE-3898
Page 2
On or about August 	16, 	1996, 	SEIU filed an appeal 	in the
dismissal 	of 	LA-CE-3672. 	In 	its brief 	to PERB, 	SEIU stated in
pertinent 	part:
On August 	5, 	199 6, 	the Union filed a first
amended 	charge 	contending 	that 	the 	Union 	did
not know prior to December 12, 	1995, 	that the
District 	maintained 	a 	zero 	tolerance policy
with 	respect 	to 	a 	violation 	of 	the 	Program.
(Appeal at p.2; 	emphasis added)
Further 	in its 	brief 	to 	the Board, 	SEIU noted:
In the 	instant 	case, 	it was not until
Freeman's 	discharge 	that 	the District
demonstrated 	its 	clear 	intent 	with respect 	to
the 	consequences 	of 	having alcohol 	level 	in
excess 	of 	.02. 	The District's 	intent was
manifested by 	showing 	that 	a violation 	of 	the
policy 	subjected 	an 	employee 	to 	mandatory
dismissal. 	The District 	never 	communicated
to 	the 	Union prior 	to 	Freeman's 	discharge
that 	an 	employee 	would be 	automatically
terminated 	for violating 	the 	random alcohol
testing policy. 	(Appeal at p.4; 	emphasis
added)
On December 10, 	1996, 	PERB issued Decision No. 	1181, 	which found
SEIU had 	actual 	and/or 	constructive 	knowledge 	that 	employees 	may
be 	terminated as 	early as 	January 	1995, 	and 	thus 	the 	charge was
untimely 	filed.
In the 	instant 	charge, 	SEIU contends 	that 	in September 1997, 	the
District 	adopted a 	"revised" 	Drug 	and Alcohol 	Testing 	Policy,
which mandates 	the 	dismissal 	of 	an employee 	testing 	.02 	or
greater. 	SEIU contends 	the unilateral 	adoption of 	the 	"Zero
Tolerance" 	policy violates 	the 	EERA.
Based on 	the 	above 	stated 	facts, 	the 	charge 	as presently written
fails 	to 	state a prima 	facie violation of 	the EERA, 	for the
reasons 	stated below.
Government 	Code 	section 3541(a) 	provides 	that 	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." 	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

Warning 	Letter
LA-CE-3898
Page 3
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.
(California State Employees' 	Association 	(1985) 	PERB Decision No.
546-S.)
In its 	representations to Regional Director Samsel and the Board,
SEIU contended as early as August 1996, 	that the District had
adopted a 	"Zero Tolerance" 	policy with regard to alcohol 	and drug
testing. 	Indeed, 	the Board noted this assertion by stating it
Decision 1181:
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. 	(p.3)
Thus, 	by SEIU's own admissions, 	it had knowledge of the
District's 	"zero tolerance" 	policy with regard to alcohol and
drug testing more than six months prior to the filing of this
charge. 	As such, 	the charge fails to state a prima facie
violation 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 March 18 	1998. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. 	Rosi
Regional Attorney