Fresno County Office of Education * * * OVERRULED by County of San Diego (2020) PERB Decision No. 2721-M (PERB 0978E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FRESNO 	COUNTY SCHOOLS 	OFFICE
EDUCATORS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
FRESNO COUNTY OFFICE OF EDUCATION,
Respondent.
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)
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) 	Case No. 	S-CE-1509
PERB Decision No. 	978
March 9, 	1993
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Appearances: 	California Teachers Association by Diane Ross,
Attorney, 	for Fresno County Schools 	Office 	Educators Association,
CTA/NEA; 	Stroup & deGoede by Daniel G. 	Stevenson, 	Attorney, 	for
Fresno County Office 	of 	Education.
Before Blair, 	Chair; 	Hesse and Carlyle, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	Fresno 	County Schools
Office Educators Association, 	CTA/NEA of 	the Board agent's
partial 	dismissal, 	attached hereto, 	of 	its 	charge alleging that
the 	Fresno County Office 	of 	Education violated section 3543.5(a),
(b) 	and 	(c) 	of 	the Educational 	Employment Relations Act 	(EERA).l
lEERA 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.
(
* * * OVERRULED by County of San Diego (2020) PERB Decision No. 2721-M * * *

(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
The 	Board has 	reviewed 	the 	Board agent's 	warning and
dismissal 	letters, 	and finding 	them to be 	free 	of prejudicial
error, 	adopts 	them as 	the decision of 	the Board itself.
The 	Board hereby AFFIRMS 	the 	Board agent's 	partial 	dismissal
in Case No. 	S-CE-1509.
Chair Blair 	joined 	in this 	Decision.
Member Hesse's 	concurrence/dissent 	begins 	on page 	3.
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Hesse, 	Member, 	concurring and dissenting: 	With the
exception of 	one allegation, 	I 	concur with the 	Public Employment
Relations Board's 	(PERB or Board) 	affirmance of 	the partial
dismissal 	of 	the unfair practice 	charge 	in Case No. 	S-CE-1509.
Following a de 	novo 	review of 	the 	original 	and amended unfair
practice 	charge, 	I 	find that a prima 	facie 	case has been stated
with 	regard 	to 	the 	charge 	that 	the 	employer allegedly
discriminated against 	Carlos 	Jiminez 	(Jiminez) 	when 	it 	evaluated
him on May 7, 	1992.
Assuming 	that 	the allegations 	in the 	charge are 	true 	(see
San Juan Unified School District 	(1977) 	EERB Decision No. 	121) , 	a
prima 	facie 	charge alleging discrimination has been plead. 	In
Novato Unified School District 	(1982) 	PERB Decision No. 	210, 	the
Board 	set 	forth 	the 	standard by which 	charges 	alleging
discriminatory 	conduct 	under 	the 	Educational 	Employment 	Relations
Act 	(Act) 	section 3543.5(a) 	are to be decided: 	(1) 	the unfair
practice 	charge must 	allege 	that 	the 	employee 	engaged 	in activity
protected by the Act; 	(2) 	the employer was aware of 	the activity;
(3) 	the employer took adverse action against 	the employee;
and 	(4) 	the 	employer's action was motivated by the protected
activity.
Here, 	all 	of 	the elements 	of 	the Novato standard have been
met 	in 	the 	charge 	that 	the 	employer allegedly discriminated
against 	Jiminez 	because 	of 	his 	protected activity when 	it
prior	1Prior 	to January 1, 	1978, 	PERB was known as 	the Educational
Employment 	Relations 	Board.
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evaluated him for the second consecutive year. 	Therefore, 	I
would 	reverse 	that 	portion of 	the dismissal 	and order that 	the
matter be 	remanded 	to 	the 	PERB General 	Counsel 	for the 	issuance
of a complaint.
4

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
— — 	— 	—
December 24, 	1992
Diane 	Ross
Staff 	Attorney
California 	Teachers 	Association
1705 	Murchison Drive
Burlingame, 	CA 	94010
Re: 	Fresno 	County Schools 	Office 	Educators Association v. 	Fresno
County 	Office 	of 	Education
Unfair 	Practice Charge No. 	S-CE-1509
PARTIAL 	DISMISSAL 	LETTER
Dear Ms. 	Ross:
On September 30, 	1992, 	you filed a charge 	in which you allege
that 	the 	Fresno County Office 	of 	Education 	(FCOE) 	violated
Government Code sections 3543.5(a), 	(b) 	and 	(c) 	(Educational
Employment 	Relations Act 	(EERA or Act). 	Specifically, 	you allege
that 	the 	FCOE 	retaliated against 	Carlos 	Jiminez 	by refusing 	to
acknowledge 	his 	status 	as 	an Association 	site 	representative 	and
retaliated 	against 	Jiminez 	by 	evaluating 	him 	in 	the 	1991-92
school 	year, 	after having 	evaluated him in the 	1990-91 	school
year.
I 	indicated 	to you, 	in my attached letter dated December 	16,
1992, 	that 	certain allegations 	contained in the 	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 these
allegations 	to 	state a prima 	facie 	case 	or withdrew them prior 	to
December 23, 	1992, 	the allegations would be dismissed. 	On
December 21, 	1992, 	you filed an amended charge.
Your 	amended 	charge 	alleges 	that 	the 	FCOE's 	"refusal 	to
acknowledge 	Carlos 	Jiminez 	as 	a 	site 	representative 	and
insistence 	upon 	determining 	the 	number 	and 	identity 	of 	site
l.
_-_----

representatives 	constitutes 	unlawful 	interference 	with 	the
Association. 	This 	refusal 	to acknowledge Carlos Jiminez as a
site 	representative has 	continued 	to 	date 	and 	constitutes 	a
continuing 	violation."
In San Dieguito Union High School 	District 	(1982) 	PERB Decision
No. 	194, 	PERB determined that a 	"continuing violation would only
be 	found where 	active 	conduct 	or 	grievances 	occurred within 	the
limitations 	period 	that 	independently 	constituted 	an 	unfair
practice. 	However, 	a 	continuing violation would not 	be 	found
where 	the 	employer's 	conduct 	during 	the 	limitations 	period
constituted 	an unfair practice 	only by 	its 	relation 	to 	the
original 	offense." 	El 	Dorado Union High School 	District 	(1984)
PERB Decision No. 	382, 	at p. 	4 	(citations omitted).
As 	I 	stated in my December 16, 	1992 	letter, 	on or about
January 22, 	1992, 	the FCOE by letter informed the Association
that 	it 	would only recognize Mr. 	Thomason as 	the 	site
representative. 	On March 	7th and 23rd 	Carlos 	Jiminez was
informed 	that 	he 	would not 	be 	recognized as 	the 	site
representative. 	This 	correspondence and Mr. 	Jiminez being
specifically 	informed 	that 	he 	would not 	be 	recognized 	as 	the 	site
representative 	indicates 	that 	the Association and Jiminez 	had
knowledge 	that 	the 	FCOE may have 	engaged 	in an unfair 	labor
practice as 	early as January 22, 	1992. 	Although your amended
charge alleges 	this 	is a continuing violation, 	you have 	failed to
demonstrate 	that 	the 	FCOE has 	changed its 	original position of
refusing 	to 	recognize Jiminez as 	a 	site 	representative. 	In
addition, 	the 	FCOE has maintained 	its position of 	recognizing 	one
site 	representative. 	(See UCLA Labor Relations 	Division 	(1989)
PERB Decision No. 	735-H, 	where the university's 	failure to change
its 	position 	did not 	constitute 	a 	continuing violation.)
Your 	charge 	was 	filed with the 	Public 	Employment 	Relations 	Board
on September 30, 	1992, 	which means 	that any alleged unfair
practice 	by 	the 	FCOE 	should 	have 	occurred during 	the 	six-month
statutory period which began on March 30, 	1992. 	Therefore, 	this
allegation 	is 	untimely and 	is 	dismissed.
Your 	amended 	charge 	also 	states 	that 	the 	FCOE's 	"evaluation 	of
Carlos 	Jiminez 	in the 	1991-92 	school 	year after having evaluating
him 	in 	the 	1990-91 	constitutes 	an 	independent 	instance 	of
discrimination 	and 	retaliation 	against 	Carlos 	Jiminez 	for 	his
union 	activity." 	Although your amended 	charge 	contains 	numerous
conclusionary 	statements 	regarding 	FCOE's 	"discriminatory
attitude" 	and 	"disparate 	treatment" 	it 	fails 	to demonstrate 	that
the 	FCOE 	evaluated Jiminez 	because 	of 	his 	union activity.
Therefore, 	based on the 	facts 	and reasons 	contained in this
letter and my 	letter of 	December 	16, 	1992 	your allegations 	that
the 	FCOE 	retaliated against 	Carlos 	Jiminez 	by 	refusing 	to
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acknowledge 	his 	status 	as 	an Association 	site 	representative 	and
by evaluating him in the 	1991-92 	school 	year, 	after having
evaluated him 	in 	the 	1990-91 	school 	year 	shall 	be 	dismissed.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulations, 	you
may 	obtain a 	review of 	this 	dismissal 	of 	certain allegations
contained 	in 	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 	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.)
33

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
Michael E. Gash
Regional Attorney
Attachment
cc: 	Daniel G. 	Stevenson
Stroup & de Goede
1750 North Fine Avenue
Fresno, 	CA 	93727
.A
	4

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
PER
December 16, 	1992
Diane Ross
1705 Murchison Drive
Burlingame, 	CA 	94010
Re: 	Fresno County Schools Office Educators Association. CTA/NEA
v. 	Fresno County Office of Education
Unfair Practice Charge No. 	S-CE-1509
WARNING 	LETTER
Dear Ms. Ross:
On September 30, 	1992, 	you filed a charge in which you allege
that the Fresno County Office of Education 	(FCOE) 	violated
Government Code sections 3543.5(a), 	(b) 	and (c) 	(Educational
Employment Relations Act 	(EERA or Act). 	Specifically, 	you allege
that 	the FCOE retaliated against 	Carlos Jiminez by refusing to
acknowledge his status as an Association site representative and
retaliated against Jiminez by evaluating him in the 	1991-92
school year, 	after having evaluated him in the 1990-91 school
year. 	My investigation revealed the following facts.
On or about January 22, 	1992 Timothy J. Nolt, 	Chapter President
of 	the Fresno County Schools Office Educators Association
(Association) 	received a letter from Andrew Rodarte,
Administrator informing him that 	"Mr. 	Cecil Thomason is the site
CTA representative for the Migrant Education Department," 	and to
his knowledge 	"there is only one site CTA representative per
department."
On or about March 6, 	1992, 	Carlos Jiminez was informed by Cecil
Thomason that 	the FCOE refused to recognize Jiminez as a site
representative. 	On or about March 23, 	1992, 	Carlos Jiminez was
informed by Andy Rodarte that he would not be 	recognized as a
site representative.
/
-=--==----_---

. (
On or about May 7, 	1992, 	Jiminez received an evaluation for the 1991-
92 school year, 	after having been evaluated in the 1990-91 school
year. 	Jiminez is the only Association employee to have been
evaluated consecutively in 1990-91. 	The collective bargaining
agreement between the parties states: 	"Those employees of more
than two years 	shall be evaluated every other year unless 	either
party shall make a request 	for more 	frequent evaluation."
In order to state a prima facie 	case a Charging Party must allege
and ultimately establish that 	the 	conduct 	complained of 	either
occurred or was discovered within the six-month period
immediately preceding the filing of 	the charge. 	San Dieguito
Union High School District 	(1982) 	PERB Decision No. 	194.
Government Code section 3541.5(a) 	states in relevant part:
Any employee, 	employee organization, 	or
employer shall have the right 	to file an
unfair practice charge, 	except that the board
shall not do either of the following: 	(l)
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, 	. 	. 	.
Your charge was 	filed with the Public Employment Relations Board
on September 30, 	1992, 	which means that any alleged unfair
practice by the 	FCOE should have occurred during 	the six-month
statutory period which began on March 30, 	1992.
The 	six month limitation period runs 	from the date the 	charging
party knew or reasonably should have known of 	the alleged unfair
practice, 	if the knowledge was obtained after the conduct
occurred. 	Fairfield Suisun Unified School District 	(1985) 	PERB
Decision No. 547.
On or about January 22, 	1992, 	the FCOE by letter informed the
Association that it would only recognize Mr. 	Thomason as 	the site
representative. 	On March 7th and 23rd Carlos Jiminez was
informed that he would not be recognized as 	the site
representative. 	This correspondence and Mr. 	Jiminez being
specifically informed that he would not be recognized as 	the site
representative 	indicates 	that 	the Association and Jiminez had
knowledge 	that 	the FCOE may have engaged in an unfair labor
practice as early as January 22, 	1992. 	Since the conduct you
complained of and your receipt of knowledge of 	that conduct
occurred outside the six-month limitation period, 	your charge 	is
untimely and must be dismissed.
Your charge also alleges 	that 	the 	FCOE 	retaliated against Jiminez
in violation of EERA section 3543.5(a) 	by evaluating him in the
1991-92 	school year, 	after having evaluated him in the 1990-91
school year. 	To demonstrate a violation of EERA section
2
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3543.5(a), 	the charging party must show that: 	(1) 	the employee
exercised rights under EERA; 	(2) 	the 	employer had knowledge of
the exercise of 	those rights; 	and 	(3) 	the employer imposed or
threatened 	to 	impose 	reprisals, 	discriminated or 	threatened 	to
discriminate, 	or otherwise 	interfered with, 	restrained or coerced
the 	employees because of 	the exercise 	of 	those 	rights. 	(Novato
Unified School District 	(1982) 	PERB Decision No. 	210; 	Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89; 	Departmen	- 	t
of Developmental Services 	(1982) 	PERB Decision No. 	228-S;
California State University 	(Sacramento) 	(1982) 	PERB Decision
No. 	211-H.) 	Your charge 	fails 	to demonstrate 	that 	the 	FCOE
evaluated Jiminez 	during 	the 	1991-92 	school 	year because 	of 	his
exercise 	of 	protected activity and 	therefore 	does 	not 	state 	a
prima 	facie violation of 	EERA section 3543.5(a).. 	Accordingly,
that 	allegation 	is 	dismissed.
For 	these 	reasons 	the 	allegations 	that 	the 	FCOE 	retaliated
against 	Carlos 	Jiminez 	by 	refusing 	to 	acknowledge his 	status 	as
an Association 	site 	representative 	and by 	evaluating 	him in 	the
1991-92 	school 	year, 	after having evaluated him in the 	1990-91
school 	year, 	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 December 23, 	1992, 	I shall dismiss the above-
described allegation from your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
fa.Michael 	E. 	Gash
Regional 	Attorney
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