West Valley-Mission Community College District (PERB 1113E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 715, AFL-CIO,
Charging 	Party,
v.
WEST VALLEY-MISSION COMMUNITY
COLLEGE DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1752
PERB Decision No. 	1113
August 	31, 	1995
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Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Vincent
A. 	Harrington, 	Jr., 	Attorney, 	for Service Employees 	International
Union, 	Local 715, 	AFL-CIO; 	Sharon M. 	Keyworth, 	Attorney, 	for West
Valley-Mission 	Community 	College 	District.
Before Garcia, 	Johnson and Caffrey, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on an appeal 	of 	a Board agent's 	dismissal
(attached) 	of 	an unfair practice 	charge 	filed by the 	Service
Employees International Union, 	Local 715, 	AFL-CIO 	(SEIU). 	In its
charge, 	SEIU alleged 	that 	the West Valley-Mission Community
College District 	(District) 	violated section 3543.5(a) 	and 	(b) 	of
the Educational 	Employment Relations Act 	(EERA)1 when it
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

retaliated 	against 	two 	SEIU officers 	by 	laying 	them off.
guaranteed by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the warning and dismissal 	letters, 	the unfair practice
charge, 	SEIU's 	appeal and the District's 	response thereto. 	The
Board 	finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and adopts 	them as 	the decision of 	the Board
itself.
The unfair practice charge 	in Case No. 	SF-CE-1752 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Garcia 	and Johnson 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
June 26, 1995
Vincent A. Harrington, Jr.
Van Bourg, Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 1400
Oakland, 	California 	94612
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
Service Employees International Union, 	Local 715. AFL-CIO v.
West Valley-Mission Community College District
Unfair Practice Charge No. 	SF-CE-1752
Dear Mr. Harrington:
The above-referenced unfair practice charge, 	filed on December
28, 	1994, 	alleges that the West Valley-Mission Community College
District 	(District) 	retaliated against two officers of the
Service Employees International Union, 	Local 715, 	AFL-CIO 	(SEIU)
by laying them off. 	This conduct 	is alleged to violate
Government Code sections 3543.5(a) 	and 	(b) 	of the Educational
Employment Relations Act 	(EERA).
I indicated to you, 	in my attached letter dated June 16, 	1995,
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 June
23, 	1995, 	the charge would be dismissed.
I have not received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons contained in my June 16, 	1995 letter.
Right to Appeal
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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 of Regs., 	tit. 	8,

Dismissal 	Letter
SF-CE-1752
June 26, 	1995
Page 2
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.)

Dismissal 	Letter
SF-CE-1752
June 26, 	1995
Page 3
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
EE
DONNGINOSA
Regional Attorney
Attachment
cc: 	Sharon M. 	Keyworth

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)557-1350
June 16, 	1995
Vincent A. Harrington, Jr.
Van Bourg, Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 1400
Oakland, 	California 	94612
Re: 	WARNING LETTER
Service Employees International Union, 	Local 715. 	AFL-CIO v.
West Valley-Mission Community College District
Unfair Practice Charge No. 	SF-CE-1752
Dear Mr. Harrington:
The above-referenced unfair practice charge, 	filed on December
28, 	1994, 	alleges that the West Valley-Mission Community College
District 	(District) 	retaliated against two officers of the
Service Employees International Union, 	Local 715, 	AFL-CIO 	(SEIU)
by laying them off. 	This 	conduct 	is alleged to violate
Government Code sections 3543.5(a) 	and 	(b) 	of the Educational
Employment Relations Act 	(EERA).
Investigation of the charge revealed the following. 	SEIU is 	the
exclusive representative of a bargaining unit 	composed of
classified employees 	in the District. 	Alex Wright and Bill
Langford were laid off 	from employment by the District 	effective
July 1, 	1994. 	Prior to that time, 	Wright was active on behalf of
SEIU and acted in the capacity of Chief Steward within the
bargaining unit. 	Langford was also active in SEIU, 	serving as a
steward and as a member of the Safety Committee under the .
collective bargaining agreement. 	Both were employed in the
classification of Maintenance/Carpenter.
The District was contemplating reductions 	in force as early as
February 1994. 	SEIU and the District were involved in
negotiations beginning 	in February to ameliorate or avoid these
reductions in force. 	During the negotiations, 	SEIU was provided
with a list of the proposed layoffs and reductions 	in hours,
which included the positions 	of Wright and Langford. 	When the
list 	of positions proposed to be reduced was presented to the
District governing board on March 17, 	1994 	for their approval,
SEIU was again provided with notice of 	the proposed elimination
of the two Maintenance/Carpenter positions. 	The governing board
voted to adopt 	the list of proposed reductions as a basis 	for
formal notice to SEIU and other involved unions 	so as 	to expedite
resolution of any potential issues. 	On April 6, 	Wright and
Langford each submitted letters 	of voluntary resignation in order
to receive the District's retirement incentive package. 	Later,
on May 19, 	1994, 	the governing board passed a formal layoff
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Warning 	Letter
SF-CE-1752
June 16, 	1995
Page 2
resolution, 	which again included the two Maintenance/Carpenter
positions. 	The resolution stated that 	the layoffs were to be
effective July 1, 	1994. 	Negotiations over the effects of the
layoff and ways to ameliorate the reductions in force continued
through June 1994.
SEIU asserts 	that positions were 	"deleted from, 	or changes were
made to, 	the layoff list up through June." 	It further asserts
that it was 	"not until the close of business on June 30, 	1994,
that 	the 	final decisions 	on layoffs and reductions 	in force were
actually made."
Although others 	in the Maintenance Department had their hours
reduced, 	Wright and Langford were the only two employees laid
off.
Based on the facts stated above, 	the charge as presently written
fails to state a prima facie violation for the reasons that
follow.
Government Code section 3541.5(a) 	states that PERB 	"shall not
. 	. 	. 	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."
PERB has held that 	the six month period commences 	to run when the
charging party knew or should have known of 	the conduct giving
rise to the alleged unfair practice. 	(Regents of 	the University
of California 	(1983) 	PERB Dec. No. 	359-H.) 	In determining
whether to issue a complaint, 	the undersigned is required to
accept the charging party's allegations as being true. 	(San Juan
Unified School District 	(1977) 	PERB Dec. No. 12).
The charge was filed on December 28, 	1994. 	Therefore, 	the charge
would be 	timely if SEIU knew or should have known of 	the layoffs
of 	the two Maintenance/Carpenter positions on or after June 28,
1994, 	but not before. 	SEIU acknowledges that it was aware of the
District's announced intention to layoff 	the two employees as
early as March 1994. 	However, 	SEIU claims that because the
parties were negotiating over the reductions 	in force and because
during the time up to and including June 30, 	1994, 	the District
was removing positions from the layoff list, 	the limitations
period did not begin to run until 	the close of business on June
30, 	1994. 	This contention must be rejected.
PERB has held that a charging party must 	file a charge when 	it
has actual or constructive notice of a clear intent 	to implement
the action which constitutes the basis 	for the unfair practice,
provided that nothing subsequent 	to that date evinces a wavering

Warning Letter
SF-CE-1752
June 16, 	1995
Page 3
of 	that 	intent. 	The charging party may not rest on its rights
until actual 	implementation occurs. 	(Regents of the University
of California 	(1990) 	PERB Dec. No. 	826-H.)
SEIU's 	contention would appear to rely on the claim that because
the District was 	removing names 	from the layoff list 	through the
month of June, 	the District evinced a wavering of the intent to
proceed with the layoffs of Wright and Langford. 	This argument
fails because there is no evidence that the District ever
indicated the possibility that 	it was 	reconsidering the layoffs
of 	the positions held by Wright and Langford. 	The fact that the
District 	removed some positions 	from the list does not 	indicate a
wavering of intent as to every position on the list. 	SEIU's
argument 	can only prevail 	if the District evinced a wavering of
the intent 	to proceed with the governing board's layoff
resolution in its entirety. 	But there is no such evidence.
Therefore, 	SEIU knew or should have known of the layoffs of
Wright and Langford prior to June 28, 	1994 and the charge is not
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 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 June 23, 	1995. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional Attorney