Los Angeles Unified School District (Hawkins) (PERB 1115E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KAREN R. 	HAWKINS,
Charging 	Party,
v.
LOS 	ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-3564
PERB Decision No. 	1115
September 14, 	1995
Appearance: 	Karen R. 	Hawkins, 	on her own behalf.
Before Carlyle, 	Garcia and Johnson, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is on appeal by Karen R. 	Hawkins
(Hawkins) 	from a 	Public 	Employment 	Relations Board 	(PERB 	or
Board) 	agent's 	dismissal 	of her unfair practice 	charge which
alleged 	that 	the District 	had violated EERA section 	3543.5(a)1 by
taking a 	series 	of 	retaliatory actions 	against 	her 	in response 	to
her 	engaging 	in protected 	activity.
1BERA 	is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	EERA section 3543.5 provides, 	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.
)
)
)
)
)
)
)
)
)
)
_______________ )

The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	and Hawkins' 	appeal. 	Based upon
this 	review, 	the Board finds 	that 	it 	lacks 	jurisdiction and
affirms 	the 	Board agent's 	deferral 	to 	the 	grievance 	agreement
between 	the parties 	in accordance with 	the 	following discussion.
BACKGROUND
Hawkins 	received a Notice 	of 	Unsatisfactory Service-
Dismissal 	(NUS) 	on October 31, 	1994. 	She then filed several
grievances 	against 	her employer, 	the 	Los Angeles 	Unified School
District 	(District), 	through her unit's 	exclusive 	representative,
the California School Employees Association 	(CSEA), 	alleging
violations 	of 	the 	collective bargaining agreement 	(CBA) 	in effect
between June 	1994 	and April 	1995.2 After several 	meetings
between CSEA and the District, 	the NUS was withdrawn on March 2,
1995. 	However, 	Hawkins' 	transfer to a different position was not
rescinded, 	nor were all 	the documents 	relating 	to the NUS 	removed
from Hawkins' 	personnel 	file.
On April 	26, 	1995, 	Hawkins 	filed an unfair practice 	charge
against 	the District.
2The parties presently have 	a 	1992-94 	CBA in effect 	which 	is
modified by the parties' 	1994-95 memorandum of understanding
(MOU) .
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WARNING AND 	DISMISSAL 	LETTERS
After 	investigating 	the 	charge, 	the Board agent 	dismissed 	it
for 	lack 	of 	jurisdiction under Lake 	Elsinore 	School 	District
(1987) 	PERB Decision No. 	646 	(Lake Elsinore).3
Hawkins 	filed an amended 	charge 	dated June 	11, 	1995 	stating
that 	although 	she 	had requested CSEA to 	file a 	grievance 	alleging
a violation of 	the 	CBA's no-reprisal 	clause, 	CSEA did not do 	so.
She 	stated that:
My 	attempts 	and 	efforts 	were 	ignored 	and my
request 	to 	file 	this 	grievance and others
were not honored, 	nor was 	I given an
explanation why 	they were 	not 	filed.
As a result, 	the time perimeter 	[sic] 	in
which to file a grievance 	. 	. 	. 	had past.
That 	is 	the 	reason 	I 	filed an Unfair Practice
Charge with PERB.
In the dismissal 	letter dated June 21, 	1995, 	the Board agent
noted that, 	according to the 	original 	charge, 	CSEA had 	filed a
grievance alleging reprisal 	for exercise of Hawkins' 	rights under
the CBA. 	If 	the basis 	for Hawkins' 	charge 	is 	that CSEA had not
represented her 	fairly, 	Hawkins 	should 	file 	a 	charge 	against 	CSEA
rather than the District. 	He 	then dismissed her charge and
deferred 	it 	to arbitration.
3The 	Board agent 	stated 	the 	Lake 	Elsinore 	criteria as:
First, 	the grievance machinery of 	the agreement 	covers 	the
dispute 	raised by 	the unfair practice 	charge and 	culminates 	in
binding arbitration. 	Second, 	the 	conduct 	complained of 	in the
charge 	(retaliation 	for 	filing grievances) 	is 	arguably prohibited
by 	the MOU.
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HAWKINS' APPEAL
Hawkins 	filed a 	one-page 	appeal 	challenging 	the 	Board
agent's 	conclusion. 	She 	repeated her 	claim that 	CSEA failed 	to
file 	a grievance 	on her behalf 	regarding 	the District's 	alleged
violation of 	the no-reprisal 	clause4 in the parties' 	CBA and
stated:
Upon 	conclusion of 	PERB 	review and
investigation, 	I believe PERB will discover
prima 	facie and 	concur 	that 	the 	adverse 	acts
against me are unethical, 	unprofessional,
dishonest 	and 	in 	retaliation 	of 	my protected
activities.
DISCUSSION
Hawkins' 	appeal 	raises 	the question of 	PERB jurisdiction
over her reprisal 	allegation. 	However, 	she 	raised that 	issue
before 	the 	Board agent 	and he 	correctly applied 	Lake 	Elsinore 	to
conclude 	that 	PERB 	lacked 	jurisdiction over 	that 	allegation.
There 	is 	nothing 	in her appeal 	to alter that 	conclusion;
accordingly, 	the Board agrees 	with the Board agent 	that 	the
entire charge, 	including the reprisal 	allegation, 	must be
deferred.
ORDER
The 	Board hereby AFFIRMS 	the 	Board agent's 	refusal 	to 	issue
a 	complaint 	and 	deferral 	to 	the 	contractual 	grievance 	agreement
in Case No. 	LA-CE-3564.
Members 	Carlyle 	and Johnson 	joined 	in 	this 	Decision.
4In her appeal, 	Hawkins refers to Article V, 	section 19.0;
however, 	the 	copy of 	the MOU reviewed by PERB 	contains 	a no-
reprisal 	clause 	in section 18.0 	of Article V. 	In this 	decision,
the no-reprisal 	clause will 	be 	referred to as Article V, 	section
18.0.
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