Victor Valley Community College District (PERB 1127E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

VICTOR VALLEY FACULTY ASSOCIATION, )

Charging Party, ) Case No. LA-CE-3582
Vv. )’ PERB Decision No. 1127
VICTOR VALLEY COMMUNITY COLLEGE December 7, 1995
DISTRICT, )
Respondent.

Appearance: California Teachers Association by Charles R.
Gustafson, Attorney, for Victor Valley Faculty Association.

Before Caffrey, Chairman; Garcia and Johnson, Members.
DECISTON

JOHNSON, Member: This case is before the Public Employment
Relations Board (Board) on appeal by the Victor Valley Faculty
Association (Association) of a Board agent's dismissal (attached)
of its unfair practice charge as untimely filed. The Association
alleged in its unfair practice charge that the Victor Valley
Community College District violated section 3543.5(a) and (b) of

the Educational Employment Relations Act (EERA)* by terminating

“EERA 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.

Daniel A.D. 	Gossai 	for participating 	in protected activity.
The 	Board has 	reviewed 	the 	Board agent's 	warning and
dismissal 	letters, 	the Association's appeal 	and the 	entire 	record
in 	this 	case. 	The Board 	finds 	the warning and dismissal 	letters
to be 	free of prejudicial 	error and, 	therefore, 	adopts 	them as
the decision of 	the Board itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-3582 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Garcia 	joined 	in 	this 	Decision.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

S T A T E 	OF 	CALIFORNIA 	PETE 	WILSON. 	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 660
Los Angeles, CA 90010-2334
(213) 736-3127
July 14, 	1995
Charles R. Gustafson, Esq.
California Teachers Association
P. 0. Box 2153
Santa Fe Springs, 	California 	90670
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-3582, 	Victor Valley Faculty Association v.
Victor Valley Community-District	College
Dear Mr. Gustafson:
In the above-referenced charge, 	filed on June 30, 	1995, 	the
Victor Valley Faculty Association 	(Association) 	alleges 	that the
Victor Valley Community College District 	(District) 	retaliated
against employee Daniel A.D. 	Gossai 	(Gossai). 	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 July 11, 	1995,
that 	the above-referenced charge did not state a prima facie case
within PERB's jurisdiction. 	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 July
19, 	1995, 	the charge would be dismissed.
On July 14, 	1995, 	you filed an amended charge. 	Although the
amended charge alleges a number of events going back as 	far as
October 1992, 	it does not allege any facts that would alter the
primary conclusion of my July 11 letter: 	that the charge is
untimely, 	and thus outside PERB's jurisdiction, 	under EERA
section 3541.5(a)(1) 	and Los Angeles Unified School District
(Mego) 	(1991) 	PERB Decision No. 	894. 	I am therefore dismissing
the charge. 	(Because the charge is outside PERB's jurisdiction,
it 	is unnecessary to consider whether the amended charge would
otherwise state a prima facie case.)
~-

LA-CE-3582
July 14, 	1995
Page 2
Right to Appeal
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,
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.)

LA-CE-3582
July 14, 	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
By THOMAS J. 	ALLEN
Regional Attorney
Attachment
cc: 	Ronald C. Ruud, 	Esq.

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
July 11, 	1995
Charles R. Gustafson, Esq.
California Teachers Association
P. 0. Box 2153
Santa Fe Springs, 	California 	90670
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3582,
Victor Valley Faculty Association v. 	Victor Valley Community
College District
Dear Mr. Gustafson:
In the above-referenced charge, 	filed on June 30, 	1995, 	the
Victor Valley Faculty Association 	(Association) 	alleges that the
Victor Valley Community College District 	(District) 	retaliated
against employee Daniel A.D. Gossai 	(Gossai). 	This conduct is
alleged to violate Government Code sections 3543.5(a) 	and 	(b) 	of
the Educational Employment Relations Act 	(EERA).
My investigation of 	the 	charge reveals 	the 	following relevant
facts.
Gossai was an employee of the District in a unit for which the
Association is the exclusive representative. 	During 1992 and
1993, 	Gossai filed eleven grievances against the District and
conducted an investigation of the District's finances on the
Association's behalf. 	On November 10, 	1993, 	Gossai was placed on
administrative leave. 	On January 18, 	1994, 	Gossai was given
notice that 	the District Governing Board had taken action to
suspend him without pay and intended to dismiss him.
On November 24, 	1993, 	the Association filed an unfair practice
charge 	(No. 	LA-CE-3378), 	alleging that the District had
retaliated against Gossai by placing him on administrative 	leave
on November 10, 	1993. 	The Association amended the charge on
January 11, 	1994, and September 24, 	1994, but did not allege that
the District had also retaliated against Gossai by acting to
suspend and dismiss him, 	as indicated in the notice of January
18, 	1994. 	On November 3, 	1994, 	PERB issued a complaint alleging
that 	the District had retaliated against Gossai 	only by placing
him on administrative leave.

LA-CE-3582
July 11, 	1995
Page 2
On January 28, 	1994, 	Gossai requested a hearing on the District's
action to dismiss him. 	The matter was certified to the Office of
Administrative Hearings 	(OAH) 	pursuant to Education Code section
87678. 	After a hearing, 	an OAH Administrative Law Judge ordered
Gossai's dismissal, on March 10, 1995.
On April 12, 	1995, 	the Association filed with PERB a third
amended unfair practice 	charge and motion to amend the 	complaint,
to add an allegation that 	the District 	retaliated against Gossai
"by causing a dismissal 	decision to be issued by an
Administrative Law Judge, 	dated March 10, 	1995." 	On June 14,
1995, 	PERB Administrative Law Judge W. 	Jean Thomas 	issued an
order denying the proposed amendment to the complaint, 	on the
grounds that it was untimely.
On June 30, 	1995, 	the Association filed the present charge. 	The
charge alleges 	in relevant part that 	"[o]n or about March 10,
1995, 	the District took adverse action against Daniel A.D. 	Gossai
by causing him to be 	terminated as an employee of the District,
as 	reflected in a dismissal 	decision issued by an administrative
law judge, 	dated March 10, 	1995." 	The charge further alleges
that 	the District 	took such action because of Gossai's grievances
and Association activities, 	but it does not allege facts to
support this conclusion.
Based on the facts stated above, 	the charge does not state a
prima facie case within PERB's jurisdiction, 	for the reasons that
follow.
EERA section 3541.5 	(a)(1) 	states that PERB "shall not 	. 	. 	.
[i]ssue 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." 	The only exception to this
jurisdictional limit is that PERB 	"shall, 	in determining whether
the charge was timely filed, 	consider the six-month limitation
set 	forth in this subdivision to have been tolled during the time
it 	took the charging party to exhaust 	the grievance machinery."
In Los Angeles Unified School District 	(Mego) 	(1991) 	PERB
Decision No. 	894, 	PERB held that in a case of allegedly
retaliatory discipline the 	six-month limitation began to run when
the employee received notice of the recommended discipline. 	PERB
also held that 	the limitation was not 	tolled while the employee
appealed the recommended discipline to a personnel 	commission.
In the present case, 	Gossai received notice of the District's
action to dismiss him on or about January 18, 	1994. 	If the
District's action was retaliatory, 	an unfair practice charge
should have been filed within six months, 	by July 18, 	1994.
Gossai's appeal of the action by means other than the grievance

LA-CE-3582
July 11, 	1995
Page 3
machinery does not 	toll 	the six-month limitation. 	The
Association's charge, 	filed on June 30, 	1995, 	is thus untimely
and outside PERB's 	jurisdiction.
Even if the charge were timely, 	it would not, 	as presently
written, 	state a prima facie case of retaliation in violation of
EERA section 3543.5(a). 	To demonstrate a violation of EERA
section 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 employee 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; Department of Developmental Services 	(1982) 	PERB
Decision No. 	228-S; 	California State University 	(Sacramento)
(1982) 	PERB Decision No. 	211-H.)
Although the timing of the employer's adverse action in close
temporal proximity to the employee's protected conduct 	is an
important factor, 	it does not, without more, demonstrate the
necessary connection or 	"nexus" 	between the adverse action and
the protected conduct. 	(Moreland Elementary School District
(1982) 	PERB Decision No. 	227.) 	Facts establishing one or more
of 	the following additional 	factors must also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's 	departure 	from established procedures 	and standards
when dealing with the employee; 	(3) 	the employer's inconsistent
or contradictory justifications for its actions; 	(4) 	the
employer's cursory investigation of the employee's misconduct;
(5) 	the employer's failure to offer the employee justification at
the time it took action or the offering of exaggerated, 	vague, 	or
ambiguous reasons; 	or 	(6) 	any other facts which might demonstrate
the employer's unlawful motive. 	(Novato Unified School District.
supra; 	North Sacramento School District 	(1982) 	PERB Decision
No. 	264.) 	As presently written, 	this charge fails to demonstrate
any of these factors and therefore does not 	state a prima facie
violation of EERA section 3543.5(a).
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

LA-CE-3582
July 11, 	1995
Page 4
amended charge or withdrawal from you before July 19, 	1995, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Thomas J. Allen
Regional Attorney
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