Santa Ana Unified School District (PERB 1495E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SANTA ANA EDUCATORS ASSOCIATION,
Charging Party, Case No. LA-CE-4353-E

v. PERB Decision No. 1495

SANTA ANA UNIFIED SCHOOL DISTRICT, July 31, 2002

Respondent.

Appearance: Schwartz, Steinsapir, Dohrmann & Sommers by Henry M. Willis, Attorney, for
Santa Ana Educators Association.

Before Baker, Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Santa Ana Educators Association (Association) of a Board
agent’s dismissal (attached) of its unfair practice charge for failure to state a prima facie case.
The charge alleged that the Santa Ana Unified School District (District) violated the
Educational Employment Relations Act (EERA)’ by unilaterally changing policies regarding:
(1) the assignment of authority for individual education plans to counselors; and (2) the type,
schedule, and amount of training provided to counselors without bargaining with the

Association or obtaining its agreement to these changes. The Association alleged that this

'EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

conduct constituted a violation ofEERA sections 3543.l(a), 3543.2(a), 3543.3, 3543.5(b) and
(c).2
2Section 3543. l(a) provides:
(a) Employee organizations shall have the right to represent their
members in their employment relations with public school
employers, except that once an employee organization is
recognized or certified as the exclusive representative of an
appropriate unit pursuant to Section 3544.1 or 3544. 7,
respectively, only that employee organization may represent that
unit in their employment relations with the public school
employer. Employee organizations may establish reasonable
restrictions regarding who may join and may make reasonable
provisions for the dismissal of individuals from membership.
Section 3543.2(a) provides:
The scope of representation shall be limited to matters relating to
wages, hours of employment, and other terms and conditions of
employment. "Terms and conditions of employment" mean
health and welfare benefits as defined by Section 53200, leave,
transfer and reassignment policies, safety conditions of
employment, class size, procedures to be used for the evaluation
of employees, organizational security pursuant to Section 3546,
procedures for processing grievances pursuant to Sections
3548.5, 3548.6, 3548.7, and 3548.8, the layoff of probationary
certificated school district employees, pursuant to Section
44959.5 of the Education Code, and alternative compensation or
benefits for employees adversely affected by pension limitations
pursuant to Section 22316 of the Education Code, to the extent
deemed reasonable and without violating the intent and purposes
of Section 415 of the Internal Revenue Code. In addition, the
exclusive representative of certificated personnel has the right to
consult on the definition of educational objectives, the
determination of the content of courses and curriculum, and the
selection of textbooks to the extent such matters are within the
discretion of the public school employer under the law. All
matters not specifically enumerated are reserved to the public
school employer and may not be a subject of meeting and
negotiating, provided that nothing herein may be construed to
limit the right of the public school employer to consult with any
employees or employee organization on any matter outside the
scope of representation.
2

The Board has reviewed the entire record in this case, including the unfair practice
charge, amended charge, the Board agent's dismissal and the Association's appeal. The Board
finds the Board agent's dismissal to be free from prejudicial error and adopts it as the decision
of the Board itself subject to the following discussion of points raised by the Association in its
appeal.
DISCUSSION
In its appeal, the Association claims that the Board agent based her decision on the
incorrect assumption that the policies had been reduced to writing. According to the
Association, neither the old nor the newly implemented policies were written, nor did the
Association receive any formal written notice of the change in policies.
The Association further asserts that it is not necessary to spell out the details of the
policies in order to state a prima facie case under EERA. On the contrary, the Association
believes that the General Counsel's office imposes an unreasonable standard for pleading a
Section 3543.3 provides:
A public school employer or such representatives as it may
designate who may, but need not be, subject to either certification
requirements or requirements for classified employees set forth in
the Education Code, shall meet and negotiate with and only with
representatives of employee organizations selected as exclusive
representatives of appropriate units upon request with regard to
matters within the scope of representation.
Section 3543.5 provides, in pertinent part:
It shall be unlawful for a public school employer to do any of the
following:
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
3

prima facie case that is out
of
step with state and federal laws. The Association reasons that
common law pleading was abolished 150 years ago in favor
of
code pleading, and suggests that
PERB follow other states and do the same.
The Board agent correctly dismissed this charge with its conclusory allegations. Under
PERB Regulation 32615(a)(5),3 a charge must contain "a clear and concise statement
of
the
facts." The charge did not state 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;
United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal
conclusions are insufficient to state a prima facie case. (Ibid.)
In this case, the charge does not provide any comparison between the alleged
old
and
new policies, but only states that the District changed policies covering workload and training.
Further, the Association inaccurately states that the Board agent based her decision on the
assumption that the old and new policies were written. There is no indication in the warning
letter or dismissal that the Board agent made such an assumption. Rather, the Board agent
stated that, after being provided with several opportunities, the Association failed to explain
the old and new policies. The bare allegation, that the policies were changed, is a mere "legal
conclusion" and therefore does not state a prima facie violation
of
EERA.
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
3PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
4

ORDER
The unfair practice charge in Case No. LA-CE-4353-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Baker and Neima joined in this Decision.
5

-I
STATE
OF CALIFORNIA 	GRAY
DAVIS,
Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
-...o"~EIH
Re~,..I
OF
C>-1..
San Francisco Regional Office
1515 Clay Street, Suite 220 I
Oakland, CA 94612
Telephone:
(5
IO)
622-1022
Fax:
(5l0)
622-1027
February 13, 2002
Henry M. Willis , Attorney
Schwartz, Steinsapir, Dohrmann & Sommers
6300 Wilshire Boulevard, Suite 2000
Los Angeles, CA 90048-5202
Re: 	Santa Ana Educators Association v. Santa Ana Unified School District
Unfair Practice Charge No. LA-CE-4353-E; Second Amended Charge
DISMISSAL LETTER
Dear Mr. Willis:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 7, 2001. The Santa Ana Educators Association alleges
that the Santa Ana Unified School District violated the Educational Employment Relations Act
(EERA) 1 by unilaterally changing training policies and the assignment
of
IEPs.
I indicated to you in my attached letter dated January 2, 2002, 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 January 9, 2002, the charge would be dismissed.
The original charge stated in its entirety:
The Board
of
Education
of
the Santa Ana Unified School District
("the District") has changed ( 1) its policies regarding the
assignment
of
authority for creation
of
individual educational
plans to counselors and (2) its policies regarding the type,
schedule and amount
of
training provided to counselors without
bargaining with the Santa Ana Educators Association ("the
Association") or obtaining its agreement to these changes.
On January 9, 2002, Charging Party filed a first amended charge in the Los Angeles Regional
Office. Due to a clerical error, the charge was mislabeled as a new unfair practice, and I was
informed that no amended charge had been filed. 	As such, on January 11, 2002, I dismissed
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.

LA-CE-4353-E
February 13, 2002
Page 2
this charge. On January 14, 2002, I received the first amended charge from the Los Angeles
Regional Office. 	As such, on January 28, 2002, the dismissal was retracted.
The first amended charge adds only the following line to the original charge:
The Association learned
of
these changes in late June, 2001.
On February 4, 2002, Charging Party filed a second amended charge. The second amended
charge adds only one additional sentence to the charge, as underlined below. Thus, the entire
factual portion
of
the charge reads as follows:
The Board
of
Education
of
the Santa Ana Unified School District
("the District") has changed (
1)
its policies regarding the
assignment
of
authority for creation
of
individual educational
plans to counselors and (2) its policies regarding the type,
schedule and amount
of
training provided to counselors without
bargaining with the Santa Ana Educators Association ("the
Association") or obtaining its agreement to these changes.
The District made these changes in its policies regarding the
assignment
of
authority for creation
of
individual educational
plans to counselors and its policies regarding the type, schedule
and amount
of
training provided to counselors on or about June
10, 2001, without notice to the Association. The particular
employees affected by these changes are Leticia Vargas, a
counselor at Saddleback High School, and Debbie Huffman, a
counselor at Valley High School. The Association learned
of
these changes in late June 2001.
Based on the facts provided in the original and amended charges, the charge still fails to state a
prima facie violation
of
the EERA, for the reasons provided below.
PERB Regulation 3 2615 (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.)
More specifically, with regard to allegations of unilateral change, the charging party must
demonstrate: 	(1) the employer implemented a change in policy concerning a matter within the
scope of representation, and (2) the change was implemented before the employer notified the
exclusive representative and gave it an opportunity to request negotiations. (Walnut Valley
Unified School District ( 1981) PERB Decision No. 160; Grant Joint Union High School
District (1982) PERB Decision No. 196.)

LA-CE-4353-E
February 13, 2002
Page 3
Herein, it is impossible
to
detennine
if
the employer unilaterally changed any
of
the policies
alleged, as the Charging Party has failed, although given several opportunities, to provide
PERB with either the old policies or the newly implemented policies. Thus, this charge must
be dismissed as Charging Party has failed to meet its burden.
Right to Appeal
Pursuant to PERB Regulations,2 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
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.
(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
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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

LA-CE-4353-E
February 13, 2002
Page 4
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
General Counsel
/ 	/~
~~,/~'	By ______________ _
Kristin L. Rosi
Regional Attorney
Attachment
cc: Keith Breon
KLR

STATE OF CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regionai Office
1515 Clay Street, Suite 220 I
Oakland, CA 94612
Telephone: (510) 622-1022
Fax:
(5
I 0) 622-1027
January 2, 2002
Henry M. Willis, Attorney
Schwartz, Steinsapir, Dohrmann & Sommers
6300 Wilshire Blvd., Suite 2000
Los Angeles, CA 90048-5202
Re: 	Santa Ana Educators Association v. Santa Ana Unified School District
Unfair Practice Charge No. LA-CE-4353-E
WARNING LETTER
Dear Mr. Willis:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 7, 2001. The Santa Ana Educators Association alleges
that the Santa Ana Unified School District violated the Educational Employment Relations Act
(EERA) 1 by unilateraily changing training policies and the assignment
of
IEPs.
The charge states in its entirety:
The Board
of
Education
of
the Santa Ana Unified School District
("the District") has changed (1) its policies regarding the
assignment
of
authority for creation
of
individual educational
plans to counselors and (2) its policies regarding the type,
schedule and amount
of
training provided to counselors without
bargaining with the Santa Ana Educators Association ("the
Association") or obtaining its agreement to these changes.
On December 19, 2001, I telephoned Charging Party's representative Henry "Willis, to discuss
the deficiencies in this charge. I informed Mr. Willis that an amended charge needed
to be
filed and that such charge needed to include the applicable dates and facts surrounding the
above allegations. Mr. Willis indicated he would file an amended charge by December 24,
2001. 	To date, I have not received an amended charge.
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.

LA-CE-4353-E
January 2, 2002
Page 2
Based on the above stated facts, the charge as presently written, fails
to
state a prima facie
violation
of
the EERA, for the reasons provided below.
PERB Regulation 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.) As the charge includes none
of
the relevant facts, the charge fails to state a prima facie case.
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 that 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 	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 January 9, 2002, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR
2