Oakland Unified School District (Kennis) (PERB 1324E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LINDA 	KENNIS,
Charging 	Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
) 	Case No. 	SF-CE-2019
PERB Decision No. 	1324
April 	9, 	1999
)
)
)
)
)
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Appearance: 	Linda Kennis, 	on her own behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Linda Kennis
(Kennis) 	of a Board agent's dismissal 	(attached) 	of her unfair
practice 	charge 	against 	the 	Oakland Unified 	School 	District
(District). 	In her charge, 	Kennis alleges that the District
violated 	section 3543.5(a) 	of 	the Educational 	Employment
Relations Act 	(EERA)1 by retaliating against her for her
EERA 	is 	codified at Government Code 	section 3540 	et 	seq.
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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.

participation 	in protected 	activities 	and 	discriminating 	against
her because 	of her race.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including Kennis' 	unfair practice charge, 	the Board agent's
warning and dismissal letters, 	and Kennis' 	appeal. 	The Board
finds 	the 	warning and dismissal 	letters 	to be 	free 	of prejudicial
error and adopts 	them as 	the decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-2019 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1 77 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
February 8, 	1999
Linda Kermis
Re: 	DISMISSAL OP UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
Linda Kennis v. 	Oakland Unified School District
Unfair Practice Charge No. 	SF-CE-2019
Dear Ms. Kennis:
The above-referenced unfair practice charge, 	filed on December
18, 	1998, 	alleges that the Oakland Unified School District
(District) 	retaliated against Charging Party because of her union
activities and her race. 	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 January 22, 	1999,
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 January 29, 	1999, 	it would be
dismissed. 	On February 4, 	1999, 	you provided the following
additional 	information.
The charge alleges that the District, 	through Principal Emily
Gaddis, 	improperly assigned Kennis to teach a class of limited-
English-speaking students, 	which Kennis was not qualified to
teach. 	This assignment was made despite the fact that Kennis did
not have an appropriate bilingual teaching certificate. 	Kennis
alleges that Gaddis was aware that the assignment was
inappropriate when she made it and that 	the assignment was made
in retaliation for her support of a school budget audit made by
her colleague on the Fremont High School 	Faculty Council,
Frederick Kay. The charge alleges further retaliatory acts on Gaddis' part, as
well as the two vice-principals at the school. 	These acts
constituted harassment. 	They are described in th. . e undersigned's
letter of January 22, 	1999.
Kennis challenged the unlawful teacher assignment, 	and other
'

Dismissal 	Letter
SF-CE-2019
February 8, 	1999
Page 	2
related 	issues, 	prior 	to 	filing 	the 	instant 	charge by processing
a grievance 	against 	the 	District. 	She 	attempted 	several 	times 	to
convene 	an 	informal 	conference 	with Gaddis 	to 	satisfy 	the 	first
step of 	the procedure. 	Each time, 	Gaddis 	claimed she would
arrange a 	time 	for a meeting, 	but 	it 	was 	clear to Kennis 	that 	she
had 	no 	intention 	of 	meeting 	after 	several 	failed 	attempts 	to
meet. 	On or about 	September 21, 	1998, 	Kennis 	filed a written
grievance. 	Gaddis 	did not 	respond at 	Level 	1. 	The grievance was
forwarded to Al Acuna, 	Secondary Director 	for High Schools. 	He
responded at 	Level 	2 	by memorandum dated October 	16, 	1998. 	Acuna
acknowledged 	that 	Kennis 	was 	not 	credentialed 	to 	teach primary
language 	students. 	Acuna 	stated that 	he would direct 	Gaddis 	to
change 	the 	assignment. 	He 	indicated he 	would check her
credentials 	to 	determine 	what 	new assignments 	would be
appropriate 	and whether 	the 	District 	could 	accommodate 	Kennis's
particular 	demand.
Kennis 	responded by letter dated October 23, 	1998. 	She 	advised
Acuna 	that 	she 	had greater 	seniority 	and 	therefore 	greater
priority to 	a 	teaching assignment 	of 	her 	choice 	than other
uncredentialed, 	temporary and substitute 	teachers. 	After a
conversation with Acuna, 	Kennis 	followed with a 	letter 	to him
dated October 28, 	1998, 	on Oakland Education Association
(Association) 	letterhead and 	signed 	in her 	capacity as 	an
executive 	board member. 	The 	letter was 	co-signed by Richard E.
Boyd, 	Executive Director of the Association. 	Kennis 	reiterated
her demand for an appropriate reassignment. 	She 	stated, 	"My
patience 	in waiting 	for responses at 	Levels 	I 	and 	II 	have 	far
exceeded 	the 	contractual 	limits." 	She 	indicated 	that 	she 	was
prepared to elevate 	the grievance 	to Level 	3 	if 	a satisfactory
resolution was 	not 	achieved.
By letter dated November 6, 	1998, 	Acuna 	responded. 	He 	requested
additional 	time 	to permit 	completion of 	the 	analysis 	of 	her
credentials. 	By letter dated November 17, 	1998, 	Kennis
responded, 	again on Association letterhead. 	She 	indicated 	that
in addition to 	the 	teacher assignment 	issue 	there 	were 	other
issues 	which were 	not 	resolved. 	She 	also 	raised the 	claim that
the 	District's 	action 	involved 	retaliation 	for 	"union 	activity."
By memorandum issued on or about November 	19, 	1998, 	a District
Labor Relations Analyst 	responded to Acuna by 	indicating 	that 	the
grievance 	would be 	resolved by 	transferring 	Kennis 	to 	a 	ninth
grade 	social 	studies 	teaching position at 	Fremont. 	Kennis 	did
not 	pursue 	this 	grievance 	any 	further.
Kennis 	continues 	to maintain that 	not 	all 	of 	the 	issues 	raised in
her grievance 	were 	resolved 	to 	her 	satisfaction. 	Her grievance
r
I

Dismissal 	Letter
SF-CE-2019
February 8, 	1999
Page 3
refers 	to 	the violation of 	her 	"civil 	rights," 	which Kennis
claims, 	includes 	her right 	to be 	free 	from retaliation 	for union
activities.
Kennis 	alleges 	that 	as 	an executive board member 	she 	has 	come 	to
recognize 	that 	the Association 	fails 	to pursue 	some meritorious
grievances 	simply because 	their number 	exceed 	the 	organization's
resources.
The 	allegation 	that 	the 	District 	retaliated 	against 	Kennis 	by
giving her an 	improper class 	assignment 	must 	be 	dismissed because
the 	grievance 	machinery of 	the 	collective 	bargaining 	agreement
covers 	the 	dispute 	raised by the unfair practice 	charge 	and
culminates 	in binding arbitration. 	Therefore, 	PERB 	is without
jurisdiction to address 	the 	issue. 	Although Kennis 	filed a
grievance 	challenging 	the 	improper class 	assignment, 	her case
could 	only become 	within 	PERB's 	jurisdiction 	if 	processing 	the
grievance 	had proven to be 	futile, 	or 	if 	she 	had proceeded 	to
arbitration and was 	seeking 	review of 	the 	arbitrator's 	award.
But 	she has 	not 	demonstrated either of 	these 	grounds. 	(See 	State
of 	California 	(Department 	of 	Corrections) 	(1986) 	PERB Decision
No. 	561-S 	[charge dismissed where 	employee 	failed to pursue 	case
to arbitration]; 	Eureka City School District 	(1988) 	PERB Decision
No. 	702 	[union abandoning 	its 	own grievance 	just prior to a
scheduled arbitration does 	not 	permit 	issuance 	of 	complaint 	where
matter 	is 	deferrable].)
The 	allegations 	that 	the 	District 	retaliated 	against 	Kennis
through a pattern of 	harassment, 	apart 	from the 	improper 	class
assignment, 	must be dismissed, 	again because 	the grievance
machinery covers 	the 	dispute. 	Kennis 	has 	not 	demonstrated that
any grievance was 	filed challenging this 	conduct1, 	or that, 	if 	it
had been 	filed, 	processing it 	would have been futile. 	The 	fact
that 	Kennis 	may have 	believed 	that 	the Association would not
pursue 	this 	case 	to arbitration, 	or that 	she herself was unaware
of 	the 	requirement 	to pursue 	a grievance based on the non-
discrimination 	language 	in the 	contract, 	are 	insufficient 	to
demonstrate 	futility.
Based on the 	facts 	and reasons 	stated above, 	as well 	as 	those
contained in, my January 22, 	1999 letter, 	I am therefore
dismissing 	the 	charge.
1Even assuming 	that 	it 	did 	include 	these 	issues, 	this 	does
not 	overcome 	the 	jurisdictional 	defect 	because 	Kennis 	has 	not
demonstrated 	futility 	nor 	does 	she 	seek 	review of 	an 	arbitrator's
decision.
I

Dismissal 	Letter
SF-CE-2019
February 8, 	1999
Page 4
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
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 (2 0) 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.)
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Dismissal 	Letter
SF-CE-2019
February 8, 	1999
Page 5
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: 	Jane Bond Moore

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
January 22, 	1999
Linda 	Kennis
Re: 	WARNING LETTER
Linda 	Kennis 	v. 	Oakland Unified 	School 	District
Unfair 	Practice 	Charge No. 	SF-CE-2019
Dear Ms. 	Kennis:
The 	above-referenced unfair practice 	charge, 	filed on December
18, 	1998, 	alleges that the Oakland Unified School District
(District) 	retaliated 	against 	Charging 	Party because 	of 	her union
activities 	and her race. 	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. 	Linda 	Kennis
is 	employed as 	a 	teacher by the 	District. 	She 	is 	assigned to
Fremont 	High School. 	The principal 	of 	Fremont 	High School 	is
Emily Gaddis. 	The 	assistant principal 	is 	Carlos Gonzalez.
The 	certificated unit 	is 	exclusively represented by 	the 	Oakland
Education Association 	(Association). 	The District 	and the
Association 	are parties 	to 	a 	collective 	bargaining 	agreement,
effective 	from July 1, 	1996 	through June 30, 	1999. 	The agreement
provides 	that 	the 	District 	shall 	not 	discriminate 	against 	any
teacher on 	the 	basis 	of 	"membership or participation 	in 	the
activities of 	the Association." 	(Art. 	IV, 	"Non-discrimination,"
sec. 	1.) 	The 	contract 	also prohibits 	reprisals 	for processing
grievances. 	(Art. 	XIV, 	"Grievance Policy," 	sec. 	11(B).) 	The
grievance procedure provides 	for binding arbitration. 	(Art. 	XIV,
"Grievance Policy," 	sec. 	11(D).)
The 	Faculty Council 	is 	a 	local 	representative body composed of
teachers. 	The 	council 	addresses 	employer-employee 	relations
issues 	and gives 	input 	to 	the principal. 	The 	councils 	at 	each of
the 	schools 	are 	recognized 	and 	sponsored by 	the Association.
(Art. 	VII, 	"Employee Rights," 	sec. 	6.) 	Kennis was a member of
the 	1997-98 	Faculty Council. 	Kennis has 	also 	filed grievances.
She 	identifies 	herself 	as 	a 	"union" 	representative 	and 	former
member of 	the Association governing board. 	She 	has 	supported
another member of 	the 	Faculty Council, 	Frederick Kay, 	who
demanded that 	Gaddis 	produce 	an audit 	of 	school 	funds.
Kennis 	alleges 	that 	Gaddis 	and Gonzalez 	embarked on a 	campaign of
harassment 	and 	retaliation because 	of 	Kennis's 	protected

Warning 	Letter
SF-CE-2019
January 22, 	1999
Page 	2
activities. 	This 	included an 	inappropriate 	teaching 	assignment,
a public 	reprimand, 	unannounced 	criticism 	in 	front 	of 	Kennis's
students, 	surveillance, 	and restrictions on use of 	the restroom.
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
[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 	agreement/MOU 	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, 	through Gaddis and Gonzalez, 	retaliated
against 	Kennis 	because 	of 	her 	activities 	on 	the 	Faculty Council
and 	her 	filing of 	grievances 	is 	arguably prohibited by Article
IV, 	section 1 	and Article XIV, 	section 11(B) 	of the MOU.
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
(198 0) 	PERB Order No. 	Ad-81a.)
To 	the 	extent 	the 	charge 	alleges 	that 	the 	retaliation occurred
due 	to Kennis 	race, 	the 	charge 	fails to 	state a prima 	facie
violation of 	the 	EERA because 	PERB has 	no 	jurisdiction to 	address
such claims.
I

Warning 	Letter
SF-CE-2019
January 22, 	1999
Page 3
Finally, 	the 	charge 	fails 	to 	indicate 	the 	dates 	on which Kennis
suffered 	the 	alleged 	retaliation. 	In a 	letter dated January 	5,
1999, 	the 	undersigned 	requested that 	Kennis 	provide 	this
information, 	but 	the dates were not provided. 	Therefore, 	PERB
may 	lack 	jurisdiction 	for 	the 	additional 	reason 	that 	the 	charge
was 	not 	filed 	in a 	timely 	fashion. 	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.)
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
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 	filed with PERB. 	If 	I 	do not 	receive 	an amended charge
or withdrawal 	from you before January 29, 	1999, 	I 	shall 	dismiss
your charge 	without 	leave 	to amend. 	If you have 	any questions,
please call me at 	(415) 	439-6940.
Sincerely,
DONN 	GINOZA
Regional 	Attorney