Coachella Valley Unified School District (PERB 1363E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PHILIP A. 	KOK,
Charging 	Party,
v.
COACHELLA VALLEY UNIFIED SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-4103
PERB Decision No. 	1363
December 	10, 	1999
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Appearances: 	Philip A. 	Kok, 	on his own behalf; 	Atkinson,
Andelson, 	Loya, 	Ruud & Romo by Sherry G. 	Gordon, 	Attorney, 	for
Coachella Valley Unified School 	District.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Philip A. 	Kok
(Kok) 	of a Board agent's dismissal 	(attached) 	of his unfair
practice 	charge. 	In the 	charge, 	Kok alleged that 	the Coachella
Valley Unified School 	District 	(District) 	violated 	section
3543.5(a) 	of the Educational Employment Relations Act 	(EERA)1 by
1EERA 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.

failing 	to properly evaluate 	him, 	threatening 	to discipline 	him
if he 	continued to question the 	evaluation process, 	and failing
to properly process 	a grievance 	to arbitration.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
including Kok's 	original 	and amended unfair practice 	charge, 	the
Board agent's warning and dismissal 	letters, 	Kok's appeal 	and the
District's 	response 	thereto.2 The 	Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and hereby
adopts 	them as 	the decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-4103 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
2The District's 	request 	that 	the Board order Kok to pay 	its
attorneys' 	fees and costs 	is denied.
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3198
September 28, 	1999
Philip A. 	Kok
Re: 	Philip A. 	Kok v. 	Coachella Valley Unified School 	District
Unfair 	Practice 	Charge No. 	LA-CE-4103
DISMISSAL 	LETTER
Dear Mr. 	Kok:
In this 	charge 	filed July 22, 	1999 by Philip A. 	Kok 	(Kok),
previously a 	teacher at 	Coachella Valley High School, 	it 	is
alleged 	that 	the 	Coachella 	Valley Unified 	School 	District
(District) 	failed to properly evaluate Mr. 	Kok, 	threatened to
discipline Mr. 	Kok 	if he 	continued to question the 	evaluation
process, 	and 	failed to properly process 	a 	1996 grievance 	to
arbitration 	in violation 	of 	Government 	Code 	section 	3543.5(a)
of 	the Educational 	Employment 	Relations Act 	(EERA).
I 	indicated 	to you, 	in my attached 	letter dated 	September 	10,
1999, 	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
September 17, 	1999, 	the charge would be dismissed.
You 	requested 	and were 	granted 	an 	extension of 	time 	to 	respond.
You 	filed an amended charge 	on 	September 	20, 	1999.
The 	amended 	charge 	adds 	information 	only with 	respect 	to 	the
charging party's 	pursuit 	of 	arbitration and 	thus, 	the 	date 	that
the 	grievance 	procedure 	was 	exhausted. 	This 	date 	is 	important
because 	it 	determines 	whether 	the 	allegation that 	the 	District
improperly evaluated Mr. 	Kok 	is 	timely.
Charging party states 	that 	in a July 22, 	1997 	letter, 	the
District 	stated 	that 	it 	would 	not 	facilitate 	but 	would honor
its 	obligation 	to 	arbitrate 	and 	suggested 	that 	charging party
contact 	the 	"California Arbitration Board". 	Charging 	party
then 	contacted 	the 	State 	Mediation 	and 	Conciliation 	Service

LA-CE-4103
Dismissal 	Letter
Page 2
which responded on August 	5, 	1997 	offering 	its 	services. 	On
August 	14, 	1997, 	the District 	sent 	charging party a 	settlement
offer but, 	lacking a positive response, 	the District 	informed
charging party on October 29, 	1997 	that 	it 	considered the
matter 	closed.
Charging 	party 	contacted 	the 	Action 	Dispute 	Resolution 	Services
(ADRS) 	and received 	replies 	offering 	its 	services 	to 	both 	the
charging party and the District 	on September 2, 	1998. 	At 	the
end of 	1998 	charging party contacted ADRS 	again. 	A
representative 	of ADRS 	left 	messages 	at 	the District 	but
received 	no 	response.
These 	facts 	are not 	sufficient 	to make 	this 	charge 	timely. 	The
District's 	last 	communication with 	the 	charging 	party was 	on
October 29, 	1997, 	more than 20 months before the charge was
filed. 	This 	letter 	indicated 	that 	the 	District 	considered 	the
matter closed. 	It 	is 	reasonable 	to 	consider that 	the 	grievance
procedure begun 	in May 	1996 	was 	exhausted at 	this 	point. 	Since
the 	charge 	was 	not 	filed 	during 	the 	six months 	following
October 29, 	1998, 	it is untimely.
Even 	if 	the 	grievance 	procedure 	was 	not 	exhausted until
charging party's 	contacts with ADRS, 	the 	charge 	is 	still
untimely, 	having been filed more 	than 	six months 	after the 	end
of 1998.
Therefore, 	I 	am dismissing the 	charge based on the 	facts 	and
reasons 	contained 	in 	this 	letter 	and my 	September 	10 	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).) 	Any document 	filed with 	the Board must 	contain
the 	case 	name 	and number, 	and the 	original 	and five 	(5) 	copies
of 	all 	documents 	must be provided to 	the Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close of business 	(5 p.m.) 	on the 	last 	day set 	for 	filing
or when mailed by certified or Express 	United States 	mail, 	as
shown on 	the 	postal 	receipt 	or postmark, 	or delivered 	to 	a
common carrier promising overnight 	delivery, 	as 	shown on the
carrier's 	receipt, 	not 	later than the 	last 	day set 	for 	filing.
(Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(a); 	see also Cal. 	Code
Regs., tit. 	8, 	sec. 32130.)

LA-CE-4103
Dismissal 	Letter
Page 3
A document 	is 	also 	considered 	"filed" 	when 	received 	by
facsimile 	transmission before 	the 	close 	of 	business 	on 	the 	last
day 	for 	filing 	together 	with 	a 	Facsimile 	Transmission 	Cover
Sheet which meets the requirements of Cal. 	Code Regs., 	tit. 	8,
sec. 	32135(d), 	provided the filing party also places the
original, 	together with 	the 	required number of 	copies 	and proof
of service, 	in the U.S. mail. 	(Cal. 	Code. Regs., 	tit. 	8, 	secs.
32135(b), 	(c) 	and (d); see also Cal. Code Regs., 	tit. 	8, 	secs.
32090 and 32130 . )
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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. 	A document 	filed by 	facsimile
transmission 	may 	be 	concurrently 	served via 	facsimile
transmission on all 	parties to the proceeding. 	(Cal. 	Code
Regs., tit. 	8, 	sec. 	32135(c).)
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-4103
Dismissal 	Letter
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
Attachment
cc: 	Sherry Gordon

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3198
September 10, 	1999
Philip A. 	Kok
Re: 	Philip A. 	Kok v. 	Coachella Valley Unified School 	District
Unfair 	Practice 	Charge No. 	LA-CE-4103
WARNING 	LETTER
Dear Mr. 	Kok:
In this 	charge 	filed July 22, 	1999 by Philip A. 	Kok 	(Kok),
previously a 	teacher at 	Coachella Valley High School, 	it 	is
alleged 	that 	the 	Coachella Valley Unified 	School 	District
(District) 	failed to properly evaluate Mr. 	Kok, 	threatened to
discipline Mr. 	Kok 	if 	he 	continued 	to 	question the 	evaluation
process, 	and 	failed to properly process 	a 	1996 	grievance 	to
arbitration, 	in violation of Government 	Code 	section 3543.5(a) 	of
the Educational 	Employment Relations Act 	(EERA).
My 	investigation has 	revealed 	the 	following 	information. 	Mr. 	Kok
was 	hired as 	a 	probationary 	teacher 	for 	the 	District 	in August
1994. 	In February 1996, 	he was notified that 	the District 	had
decided to non-reelect 	him for 	the 	following 	school 	year. 	His
formal 	performance 	evaluation 	for 	the 	1995-96 	school 	year was
completed on May 9, 	1996. 	On or about May 16, 	1996, 	he 	filed a
Level 	I 	grievance 	regarding the evaluation, 	which was 	denied at
Level 	I 	on May 22, 	1996. 	The grievance 	claimed that 	the
Principal, 	A. 	Franco, 	did not 	follow the contract provisions 	for
evaluation of 	a 	teacher, 	resulting 	in an unsatisfactory
evaluation.1 The 	exclusive 	representative 	at 	that 	time 	was 	the
Coachella Valley Federation of 	Teachers 	(Federation, 	CVFT 	or
AFT). 	On May 29, 	1996, 	the grievance was elevated to Level 	II,
and it was denied on June 	5, 	1996.
The 	District 	and 	Federation agreement 	(which had 	expired 	in 	1995,
prior to your May 1996 grievance) 	provides, 	in part, 	at Article
24, 	section 24.4 that,
If 	the grievant 	is not 	satisfied with the disposition
at Level Two, 	he/she may within five 	(5) 	days 	following
the written decision by the 	Superintendent, 	submit 	the
grievance 	to the 	Superintendent, 	in writing, 	for the
10n or about 	September 8, 	1997, 	the District 	removed the
disputed 	negative 	evaluation 	from your 	personnel 	file.

arbitration of 	the dispute. 	[Level 	III]. 	Federation
representation 	may be 	requested 	by 	the 	grievant.
Within five 	(5) 	days, 	the 	Federation and/or the
grievant 	and 	the 	District 	shall 	request 	the 	State
Conciliation 	Service 	to 	supply a panel 	of 	five 	(5)
names 	of 	persons 	experienced 	in 	hearing grievances 	in
public 	schools. 	Each party shall 	alternately 	strike 	a
name until 	only one 	name 	remains. 	The 	remaining panel
member 	shall 	be 	the 	arbitrator. 	The 	order of 	striking
shall 	be 	determined by lot.
The 	fees 	and expenses 	of 	the 	arbitrator 	shall 	be 	borne
equally by 	the 	district, 	the 	Federation and/or 	the
grievant. 	All 	other expenses 	shall 	be borne by the
party 	incurring 	them.
According to the District, 	on or about June 	12, 	1996, 	it 	received
an unsigned Level 	III 	request 	to move 	the 	matter 	to 	arbitration,
which request 	it 	shared with the 	Federation. 	Mr. 	Kok alleges
that 	the Level 	III 	grievance, 	with a request 	for arbitration, 	was
signed and filed on June 	12, 	1996. 	Attached to your 	charge 	is
the June 	12, 	1996 	Certified Personnel 	Grievance 	Form-Level 	3.
The 	form 	indicates 	that 	if 	you 	are 	not 	satisfied with 	the 	Level
II 	disposition, 	the grievant 	may file within five days 	after the
Superintendent's 	written decision 	for 	review at 	Level 	III. 	The
form has 	the 	statement 	"I 	hereby request 	arbitration of 	the
dispute 	from the 	State 	Conciliation 	Service." 	The 	form also
provides, 	in part, 	that 	"Within five days, 	the grievant 	and the
District 	shall 	request 	the 	State 	Conciliation 	Service 	to 	supply a
panel 	of 	five 	names 	of persons 	experienced 	in hearing grievances
in public 	schools." 	Thereafter, 	not 	hearing back 	from the
Federation, 	the 	District 	assumed the 	union did not 	wish 	to 	take
the grievance 	to 	arbitration.
On June 28, 	1996, 	the Coachella Valley Teachers Association,
CTA/NEA 	(CVTA, 	CTA or Association) 	became 	the 	new exclusive
representative 	for 	the unit,2 and Mr. 	Kok continued to 	contact
the 	District 	on 	the processing of 	his 	grievance. 	The 	District
advised 	the Association of 	his 	continued 	interest 	in 	the
grievance. 	He 	continued to write 	to 	the District 	requesting 	that
the matter proceed to arbitration. 	In January 1997, 	he wrote 	to
both unions 	and 	the 	District 	"asking 	for 	a written 	response 	to
the 	level 	III 	grievance, 	and in regards 	to arbitration." 	You
wrote to Supt. 	Colleen Gaines on January 30, 	1997. 	By letter
from the District 	dated February 7, 	1997, 	you were 	advised as
follows,
20n November 12, 	1996, 	CTA and the District 	agreed to 	a new
contract 	effective July 1, 	1996 	through June 30, 	1999.
22

In regards 	to 	the 	status 	of your Level 	III 	grievance,
this 	information was 	submitted 	to 	the American
Federation of 	Teachers 	as 	per 	formal 	grievance
procedures 	under 	the 	contract. 	The 	Superintendent's
Response 	to your Level 	III 	grievance 	was 	the 	same 	as
Level 	I 	and II 	- 	'Proper procedures 	followed.
Grievance 	not 	valid.'3
The 	contract 	specifies 	that 	if 	a grievant 	is 	not
satisfied with 	the 	disposition of 	Level 	Two, 	he/she 	may
submit 	the grievance 	to 	the 	Superintendent, 	in writing,
for 	arbitration of 	the 	dispute. 	The 	fees 	and expenses
of 	the 	arbitrator 	shall 	be 	borne 	equally by the
District, 	the Federation, 	and/or grievant.
The 	above 	information was 	shared with AFT 	and 	the
assumption was 	that 	they did not 	care 	to 	take 	this
matter to arbitration. 	If you feel 	otherwise, 	please
contact 	this 	office 	so 	that 	we make 	arrangements 	to
take 	this matter to arbitration.
Charging party 	contacted all 	the parties 	in writing 	in 	February
1997. 	He also wrote 	to some of 	the above parties 	in March, 	April
and May 	1997 	"requesting a written response 	to 	the 	level-three
grievance 	and/or 	a 	request 	for 	arbitration." 	The 	District
responded on May 22, 	1997 	and stated,
As 	I 	stated 	in my letter of 	February 7th, 	if you wish
to go to 	arbitration, 	the 	following 	is 	the process you
need to 	follow: 	you must 	contact 	the 	California
Arbitration Board 	[State Conciliation Service], 	request
a list 	of 	arbitrators, 	pay the 	fee 	and provide 	the
District with a 	list. 	Upon receipt 	of 	the 	list, 	the
District 	and you will 	mutually 	agree 	upon 	arbitration
and 	set 	up 	a 	meeting with 	the 	arbitrator.
The District 	is 	under no obligation to 	take 	any 	further
steps 	in regards 	to this matter. 	I 	have 	contacted AFT
and 	CTA and neither union 	is 	interested 	in being
involved.
Article 	24, 	section 24.2 	of 	the 	Federation agreement 	provides
that 	there 	are 	consequences 	if 	the parties 	fail 	to meet 	the
timelines 	specified 	in the 	formal 	grievance procedures. 	Also,
Article 24, 	section 24.4 provides 	that 	if 	the grievance 	at 	Level
I 	and II 	is denied, 	the District 	"shall 	state, 	in writing, 	the
3Charging 	party 	indicates 	that 	the 	Federation 	contract
requires 	that 	the 	Superintendent 	state 	in writing 	the 	rationale
for the denial 	at 	Level 	II, 	and that no rationale was given, 	nor
were 	proper procedures 	followed.
W
	3

rationale 	for 	the 	denial." 	Charging party contends 	that 	no
rationale was 	given.
By 	letter 	to 	Sylvia 	Gullingsrud of 	CTA dated June 	3, 	1997,
charging party's brother, 	Andrew J. 	Kok, 	Esq. 	pointed out 	that
charging party had not 	received 	a 	written 	response 	to 	the 	Level 	3
grievance 	and 	requested 	a 	written 	response 	and 	arbitration 	of
this matter. 	By letter to 	the 	charging party dated June 	9, 	1997,
CTA 	indicated 	that 	AFT was 	the 	"bargaining 	agent" 	when 	the
grievance was 	filed and appealed to Level 	II 	in May 	1996. 	CTA
was 	unsure 	if 	charging party or AFT 	requested arbitration by a
June 	12, 	1996 	deadline. 	The 	letter also 	stated that 	CTA was
certified as 	the 	new exclusive 	representative 	on June 	28, 	1996;
binding arbitration was not 	available, 	because when the grievance
was 	filed, 	the AFT 	contract 	had already expired; 	CTA had
bargained a new contract, 	making 	changes 	in the 	evaluation and
grievance 	articles; 	and CTA believed that 	if 	the 	duty of 	fair
representation 	applied, 	AFT had 	the 	responsibility 	to 	advise
charging 	party 	they were 	not 	taking 	the 	grievance 	to 	arbitration
at 	Level 	III. 	Under the CTA contract, 	only the Association may
take 	a grievance 	to 	arbitration on behalf 	of 	a unit 	member.
Finally, 	because 	charging party was 	no 	longer employed at 	the
District, 	and based on the above, 	CTA indicated it would not 	take
the 	case 	to 	arbitration.
Charging party wrote 	to Kent 	Braithwaite, 	previously with AFT, 	on
October 9, 	1997. 	By letter dated October 15, 	1997, 	he 	indicated,
in part, 	that 	in 1996, 	he was no 	longer active as 	a union leader
and was 	not 	charging party's 	representative. 	He 	also 	indicated,
in part,
The best 	I 	can remember, 	your grievance was 	represented
by the then 	(and current) 	CVFT President, 	Mr. 	DeLaCruz.
Mr. 	DeLaCruz 	has 	assured me 	that 	you were 	represented
to 	the 	fullest 	extent 	of your 	contract 	rights 	and 	the
law as 	well 	as 	to the best 	of 	his most 	excellent
abilities. 	Mr DeLaCruz 	has 	also 	assured me he 	informed
you 	in 	detail 	of 	how 	the 	union handled your grievance,
including 	the 	decision 	to pursue 	or 	not 	to pursue 	Level
3, 	whatever that 	decision may have been.4 I 	was 	not
in the decision-making loop. 	I 	am not 	now in the
decision making 	loop. 	I 	will 	not 	make 	any statement
concerning 	any 	CVFT 	decision....
4Charging party 	indicated 	that 	he 	was 	"only 	told 	to 	file 	the
level 	3 	grievance 	and 	'be 	patient." 	He 	also 	indicated 	"The
decision 	[whether to pursue Level 	3 ] , 	based on my knowledge 	and
the 	fact 	that 	I 	was being abused, 	was 	to 	seek arbitration. 	The
union reps 	(sic) 	were 	informed of this decision, 	and said, 	'be
patient'."
44

Braithwaite 	also 	suggested you 	communicate 	in 	the 	future 	with
DeLaCruz.5
Based on the 	above 	information, 	the 	charge 	fails 	to 	state 	a prima
facie violation of 	the 	EERA for 	the 	following 	reasons.
The 	charge 	asserts 	that 	the District 	failed to properly evaluate
Mr. 	Kok, 	threatened to discipline Mr. 	Kok if he continued to
question 	the 	evaluation process, 	and 	failed to properly process 	a
1996 	grievance 	to 	arbitration, 	in violation of Government 	Code
section 3543.5(a).
A 	review of 	the 	allegations 	indicates 	that 	the 	charge 	is 	untimely
under 	EERA 	section 	3541.5 	which 	requires 	in pertinent 	part:
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.
Since 	these 	allegations 	occurred in 	1996 	and the 	charge 	was 	filed
in 	1999, 	the 	six month period has 	elapsed. 	Charging party argues
that 	the 	allegations 	should be 	tolled 	under 	EERA 	section
3541.5(a)(1) 	which reads 	in pertinent part:
The board shall, 	in determining whether the
charge was 	timely filed, 	consider the 	six-
month 	limitation 	set 	forth 	in 	this
subdivision 	to 	have 	been 	tolled 	during 	the
time 	it 	took the 	charging party to exhaust
the 	grievance 	machinery.
Tolling would only 	cover 	the 	allegation 	that 	was 	the 	subject 	of
the 	grievance 	filed by Mr. 	Kok. 	North Orange 	County Community
College District 	(1998) 	PERB Decision No. 	1268. 	That 	is, 	the
allegation that 	the 	District 	failed to properly evaluate Mr. 	Kok.
Tolling would 	cover 	the 	period 	from the 	filing 	of 	the 	grievance
on May 	16, 	1996 	through exhaustion of 	the 	grievance 	machinery.
The grievance was 	not presented to 	an arbitrator. 	Rather, 	the
last 	activity on 	the 	grievance 	was 	the 	District's 	letter 	dated
on May 22, 	1997 which stated,
As 	I 	stated in my letter of 	February 7th, 	if you wish
to go 	to 	arbitration, 	the 	following 	is 	the process you
need to 	follow: 	you must 	contact 	the 	California
Arbitration Board 	[State Conciliation Service], 	request
a 	list 	of 	arbitrators, 	pay the 	fee 	and provide 	the
5Charging 	party 	indicates 	that 	he 	continues 	attempting 	to
communicate with all 	relevant 	parties, 	including DeLaCruz.
55

District 	with a 	list. 	Upon receipt 	of 	the 	list, 	the
District 	and you will 	mutually 	agree 	upon 	arbitration
and 	set 	up 	a meeting with 	the 	arbitrator.
The 	District 	is 	under no obligation 	to 	take 	any 	further
steps 	in regards 	to 	this matter. 	I 	have 	contacted AFT
and 	CTA and 	neither union 	is 	interested 	in being
involved.
Since Mr. 	Kok did not pursue 	the 	steps 	necessary to 	arbitrate 	his
dispute, 	it 	appears 	that 	the grievance procedure was 	exhausted at
that 	point. 	Thus 	tolling ended shortly after May 22, 	1997 	and
this 	allegation 	is 	untimely.
Under North Orange 	County Community College District 	(19 98) 	PERB
Decision No. 	1268, 	the allegations that 	the District 	threatened
to discipline Mr. 	Kok 	if 	he 	continued 	to 	question the 	evaluation
process 	and 	failed 	to properly process 	a 	1996 	grievance 	to
arbitration 	are 	not 	covered by 	tolling 	and 	are 	also 	untimely.
In addition, 	with regard to 	the 	allegation that 	the District
failed to properly process 	the 	1996 	grievance 	to arbitration, 	the
Board has 	already 	reviewed 	this 	allegation 	and dismissed 	it 	in
Coachella Valley Unified School 	District 	(1998) 	PERB Decision No.
13 03. 	This 	decision was 	also 	reconsidered in Coachella Valley
Unified School District 	(1998) 	PERB Decision No. 	1303a. 	There
are 	no 	new 	facts 	presented here 	that 	would warrant 	reversing
these 	determinations.
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 	have 	the 	case 	number written on 	the 	top 	right
hand corner of 	the 	charge 	form. 	The 	amended charge must 	be.
served on 	the 	respondent's 	representative6 and 	the 	original
6The District's 	representative 	is 	Sherry G. 	Gordon, 	Esq. 	of
Atkinson, Andelson, 	Loya, 	Ruud & Romo, 	Riverside, 	CA
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proof 	of 	service must be 	filed with PERB. 	If 	I 	do not 	receive 	an
amended charge 	or withdrawal 	from you before 	September 	17, 	1999,
I 	shall 	dismiss your charge. 	If you have 	any questions, 	please
call me at 	(916) 	327-8381.
Sincerely,
Robert 	Thompson
Deputy 	General 	Counsel