West Contra Costa Unified School District (PERB 1427E)

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STATE OF CALIFORNIA

DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARY HUGHES-TUTASS,
Charging Party, Case No. SF-CE-2142-E

v. PERB Decision No. 1427

WEST CONTRA COSTA UNIFIED SCHOOL April 19, 2001

DISTRICT,

Respondent.

Appearance: Mary Hughes-Tutass, on her own behalf.
Before Amador, Baker and Whitehead, Members.
DECISION

AMADOR, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Mary Hughes-Tutass (Hughes-Tutass) to a Board agent's dismissal
(attached) of her unfair practice charge. Hughes-Tutass alleged that the West Contra Costa
Unified School District violated numerous sections of the Educational Employment Relations
Act (EERA)' with regard to the manner in which it handled grievances filed by Hughes-Tutass.
Af viewing the entire record, the Board hereby adopts the dismissal letter as the

decision of the Board itself.

' EERA is codified at Government Code section 3540 et seq.

ORDER
The unfair practice charge in Case No. SF-CE-2142-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
2

STATE OF CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
l
031
18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
October 31, 2000
Mr. F. Anthony Edwards
Seibel, Finta & Edwards
1850 Mt. Diablo Blvd., Suite 650
Walnut Creek, California 94596
Re: 	Mary Hughes-Tutass
v.
West Contra Costa Unified School District
Unfair Practice Charge No. SF-CE-2142-E
DISMISSAL LETTER
Dear Mr. Edwards:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 14, 2000. The Charging Party, Mary Hughes-Tutass, alleges
that the West Contra Costa Unified School District violated the Educational Employment
Relations Act1• However, as explained in the attached September 13, 2000 Warning Letter due
to the lack
of
specificity in the original charge and the subsequently received information it is
unclear how the District violated EERA.
I indicated to you in my attached letter dated September 13, 2000, 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 22, 2000, the charge would be
dismissed. Because Ms. Hughes-Tutass expressed an interest in amending her charge, I
extended the due date to receive an amended charge to September 27, 2000.
On September 27, 2000, I received a second amended charge from Ms. Hughes-Tutass. 	The
charge ho\vever, contains nearly the identical information as was contained in the first
amended charge received by the San Francisco Regional office on August 25, 2000. Thus, as
explained in the Warning Letter, the information received August 25
th
fails to state a prima
facie violation of EERA. Therefore the second amended charge also fails to state a prima facie
violation
of
EERA.
1 EERA is codified at Government Code section 3540 et seq. 	The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-2142-E
October 31, 2000
Page 2
It should be noted that the second amended charge contained attachments that were not served
on Respondent. Those attachments were similar to attachments to the first amended charge,
which were also not served on Respondent. The many letters and memoranda which constitute
the attachments to both
of
the amended charges do not assist Ms. Hughes-Tutass to establish a
prima facie violation
of
EERA.
On October 12, 2000, I received from Ms. Hughes-Tutass a third amended charge also
containing nearly the identical information received on August 25 th • Again because the
information received on August 25, 2000 failed to state a prima facie violation
of
EERA, the
information received on October 12, 2000 also fails to state a prima facie violation
of
EERA.
Therefore, I am dismissing the charge based on the facts and reasons contained in my
September 13, 2000 letter.
Right to Appeal
Pursuant to PERB Regulations2, 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. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
ail 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.
(Regulations 32135(a) and 32130.)
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
Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Copies of the Regulations may be purchased from PERB's Publications
Coordinator, 1031 18th Street, Sacramento, CA 95814-4174, and the text is available at
www.perb.ca.gov.

SF-CE-2142-E
October 31, 2000
Page 3
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. 	(Regulation 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 Regulation 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. (Regulation 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. 	(Regulation 32132.)
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/ 	///0
Marie A. Nakamura
Board Agent
Attachment
cc: Marlene L. Sacks
MAN

STATE OF CALIFORNIA	
GRAY
DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
September 13, 2000
F.
Anthony Edwards
Seibel, Finta & Edwards, L.L.P.
18_50
Mt. Diablo Blvd., Suite 650
Walnut Creek, California 94596
Re: 	Mary Hughes-Tutass
v.
West Contra Costa Unified School District
Unfair Practice Charge No. SF-CE-2142-E
WARNING LETTER
Dear Mr. Edwards,
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 14, 2000. The Charging Party, Mary Hughes-Tutass, alleges
that the West Contra Costa Unified School District (District) violated the Educational
Employment Relations Act (EERA)1• However, due to a lack
of
specificity in the charge it is
unclear how the District violated BERA.
The charge states that the District conspired with the United Teachers
of
Richmond (UTR) in
order to ignore Ms. Hughes-Tutass' "contractual and/or legal rights to fair representation and
due process.
11
Also, the charge states without specificity that in the past Ms. Hughes-Tutass
"grieved the lack
of
legal compliance and safety violations.
11
Further Ms. Hughes-Tutass
asserts that the District through the Principal at Murphy School (no name provided), Suzie Van
de Veer, Area Director, and Linda Lester (no title provided) failed to assist her. Ms. Hughes-
Tutass asserts that Ms. Lester caused Ms. Hughes-Tutass to not be rehired at Hayward State
University. The charge concludes with the following statement, "I believe that I have missed
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Due to the lack
of
specificity
of
the charge, on August 23, 2000, I sent to you a letter
requesting an amended charge. The letter chronicled my telephone conversations with you and
Ms. Hughes-Tutass in July of 2000 explaining the need to amend this charge. In the letter I
stated that the original charge did not "include the requisite precise and detailed statement ofthe conduct that she asserts constitutes an unfair practice." I explained that in order to proceed
1 BERA is codified at Government Code section 3540 et seq. The text of the BERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-2142-E
September 13, 2000
Page 2
with my investigation I needed to receive the originai amended charge, and the original
proof
of
service showing that a copy
of
the amended charge was served on the Respondent
by
September
1,
2000. In response to the letter you left me a voice mail on August 25, 2000
explaining that you were in New York and unable to meet the September 1st deadline.
Therefore on August 28 th I spoke with your Assistant, Nedda Bass, and extended the deadline
until September 11, 2000.
On August 25, 2000, an amended charge was received in PERB's Sari Francisco Regional
office. However, the amended charge was not the original and was not served on Respondent.
It however, did assert that the District failed and refused to meet and negotiate with Ms.
Hughes-Tutass or the UTR to address grievances and complaints filed by Ms. Hughes-Tutass.
The new information provided states that Ms. Hughes-Tutass filed a grievance in May 1999
with the District, but there is no indication what action by the District lead to the grievance. In
late June
of
1999 Ms. Hughes-Tutass met with the District's representative, Linda Lester, and
the District denied the grievance. Ms. Hughes-Tutass attempted as an individual to take the
grievance to arbitration but the District's attorney, Marlene Sacks, informed Ms. Hughes-
Tutass that the District would not proceed to arbitration without the intervention
of
the UTR.
At this time the District was aware that both the President and Vice-president
of
the UTR were
defendants in a lawsuit wherein Ms. Hughes-Tutass was a plaintiff. On or about May 25,
2000, the UTR informed Ms. Hughes-Tutass that they would not take her grievance to
arbitration. Thus Ms. Hughes-Tutass asserts that her statute
of
limitations against the District
did not begin to run until the UTR denied her grievance. In addition Ms. Hughes-Tutass sent
many letters and memoranda, however, none
of
them specify the nature
of
the grievance filed
in May
of
1999.
On September 11, 2000 I received a fax from your office. The fax however lacks the factual
specificity required for me to proceed with my investigation. It combines Ms. Hughes-Tutass'
charge with that
of
Deborah Kerreos, a Charging Party, in two related charges and refers to
both parties as "Claimants" without making any factual distinctions among the charges or the
parties. In addition the fax refers to "Respondents" without differentiating between the District
and the UTR. Although the fax does assert that "Respondents" violate Government Code
section 3543.3, 3543.5 and 3543.6, it lacks the factual specificity required to determine how
the actions
of
the "Respondents" violated these sections
of
the Government Code.
On September 12, 2000, I spoke with you and explained that I would be sending you a letter
explaining the deficiencies in this charge.

SF-CE-2142-E
September 13, 2000
Page 3
Discussion
Because Ms. Hughes-Tutass has failed to provide adequate factual information, the charge fails
to state a prima facie violation within PERB's jurisdiction. Ms. Hughes-Tutass' charge against
the District did not state the section
of
the Government Code alleged to be violated nor did it
contain a clear and concise statement
of
the facts and conduct alleged to constitute an unfair
practice as required by the Regulations
of
the Public Employment Relations Board section
32615. Failure to provide a clear and concise statement
of
the facts as required by 32615(a)
(5), limits my ability to find a prima facie violation within the jurisdiction
of
PERB. PERB
Re-gulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a "clear and
concise statement
of
the facts and conduct alleged to constitute an unfair practice." Thus, the
charging party's burden includes alleging the "who, what, when, where and how"
of
an unfair
practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision
No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.)
Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak
Unified School District (1991) PERB Decision No. 873.)
In the additional information received in our San Francisco office on August 25, 2000, Ms.
Hughes-Tutass states that the District failed and refused to meet and negotiate in good faith
with her or her exclusive representative.
If
by this statement Ms. Hughes-Tutass asserts that
the District violated EERA section 3543.5(c), the school districts duty to meet and negotiate in
good faith with an exclusive representative, Ms. Hughes-Tutass is without standing to pursue
such a charge. 	Only the exclusive representative has standing to pursue such an unfair practice
charge. 	(Oxnard School District (Gorcey/Tripp) (1988) PERB Decision No. 667.) Therefore
as an individual Ms. Hughes-Tutass is foreclosed from bringing such a charge.
Also, Ms. Hughes-Tutass asserts that the statute
of
limitation has not expired on her claim.
EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of
the charge." The limitations period begins to run once the charging party knows, or should
have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The charging party bears the burden
of
demonstrating that
the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No.
1024.) Without a precise determination
of
the nature
of
the alleged violation, it is impossible
to determine when Ms. Hughes-Tutass knew or should have known
of
the conduct underlying
the charge. Thus the Ms. Hughes-Tutass has failed to meet her burden
of
demonstrating that
the charge is timely filed.
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 comer of the charge form. 	The amended charge must be served on the

SF-CE-2142-E
September 13, 2000
Page 4
respondent's representative and the original proof
of
service must be filed with PERB.
If
I do
not receive an amended charge or withdrawal from you before September 22, 2000, I shall
dismiss your charge.
	If
you have any questions, please call me at the above telephone number.
Sincerely,
Marie A. Nakamura
Board Agent
MAN