Tehachapi Unified School District (PERB 1024E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TEHACHAPI ASSOCIATION OF TEACHERS,
CTA/NEA,
Charging 	Party,
v.
TEHACHAPI UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3263
PERB Decision No. 	1024
November 4, 	1993
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Appearance; 	Law Office 	of 	Lawrence B. 	Trygstad by Richard J.
Schwab, 	Attorney, 	for Tehachapi Association of Teachers, 	CTA/NEA.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by the Tehachapi
Association of Teachers, 	CTA/NEA 	(Association) 	of a Board agent's
dismissal 	of 	its unfair practice charge. 	In the charge, 	the
Association alleges 	that 	the 	Tehachapi 	Unified School 	District
(District) 	violated the 	Educational 	Employment 	Relations Act
(EERA) 	section 3543.5(a), 	(b) 	and 	(c):1 by changing policies
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA 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.

and practices 	set 	forth 	in 	the 	contractual 	grievance procedure;
by 	discriminating 	against 	a particular 	teacher 	for 	engaging 	in
protected activity; 	and 	thereby 	interfering with 	the
Association's 	right 	to represent 	its members. 	We 	find that 	the
unfair practice 	charge was 	untimely 	filed and 	therefore must 	be
dismissed.
(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.
DISCUSSION
The Association's 	charge, 	which was 	filed on December 21,
1992, 	alleged that 	the District 	engaged in a series 	of actions
designed to discriminate against Terri Switzer 	(Switzer), 	a
teacher at 	the District's 	junior high school. 	Switzer had
filed a number of grievances. 	The 	charge alleged that, 	as a
consequence 	of 	Switzer filing the grievances, 	the District 	took
several 	adverse actions 	against 	her, 	including 	refusing 	to honor
her 	request 	to be 	transferred 	from the 	junior high 	school 	to
another school. 	The 	charge 	further alleged that 	once 	Switzer was
eventually 	transferred 	from the 	junior high school, 	the District
issued Switzer 	a 	job performance 	evaluation based 	on 	false 	and
unsubstantiated 	information 	rather 	than 	on 	observations 	of 	her
teaching. 	The 	evaluation 	recommended her 	return 	to 	the 	junior
high school.
The Association 	then 	filed a grievance based on Switzer's
evaluation and her 	transfer back to 	the 	junior high 	school. 	The
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District 	is 	alleged to have 	stated that 	it was 	not 	interested 	in
resolving 	the grievance, 	but 	only wanted a 	transcript which it
could use 	in dismissing her.
The Association alleged that 	the 	District 	was 	unwilling 	to
resolve 	grievances 	and wanted 	them to 	go 	directly 	to 	arbitration
with the purpose 	of 	increasing 	the 	cost 	to the Association.
However, 	the 	charge 	is unclear as 	to when the alleged
unlawful 	conduct 	occurred. 	The 	only dates 	included 	in the 	charge
refer 	to a 	threat made 	to 	Switzer by the 	superintendent 	"early 	in
the 	1990-91 	school 	year," 	a 	conference which occurred during 	the
"summer of 	1991, " 	a violation of a mediation agreement by the
vice principal 	prior to March 	1992, 	and grievances which were
filed 	"thereafter." 	The 	charge 	contains 	no 	statement 	which
clearly alleges 	that 	any unlawful 	conduct 	occurred 	on 	or after
June 21, 	1992.
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.) 	EERA
section 3541.5 	states, 	in relevant part:
(a) 	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:
(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.
W
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The charge was 	filed on December 21, 	1992. 	In order for
it 	to be 	timely, 	any alleged unfair practice must have 	occurred
during 	the 	six-month 	statutory period which began on June 	21,
1992.
The Board, 	in California State 	Employees Association
(Mitchell) 	(1993) 	PERB Decision No. 	969-S, 	upheld the Board
agent's 	warning 	letter which put 	the burden on 	the 	charging party
to 	supply sufficient 	facts 	(dates) 	to show that 	the 	charge was
timely 	filed.
In the 	charge, 	the Association did not 	supply dates 	which
allow 	the 	Board 	to 	conclude 	that 	the 	charge was 	timely 	filed.
The Association was 	informed of 	this 	deficiency 	in 	the 	Board
agent's 	warning 	which 	stated 	that 	PERB 	could not 	issue
a 	complaint 	unless 	that 	deficiency was 	addressed 	in an amended
charge. 	The Association did not 	file an amended charge.
Therefore, 	because 	the Association has 	failed to meet 	its burden
of 	supplying 	sufficient 	facts 	to 	show that 	the 	alleged unlawful
conduct occurred within letter
six months 	of 	the 	filing date, 	we must
dismiss the charge as untimely.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-3263 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Caffrey and Carlyle 	joined 	in 	this 	Decision.
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