Milpitas Unified School District (PERB 1234E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION & 	ITS MILPITAS 	CHAPTER
281,
Charging 	Party,
v.
MILPITAS UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1947
PERB Decision No. 	1234
November 	20 	1997
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Appearance: 	California School 	Employees Association by Denise K.
Jensen, 	Labor Relations Representative, 	for California School
Employees Association & its Milpitas 	Chapter 281.
Before Johnson, 	Dyer and Jackson, 	Members.
DECISION AND 	ORDER
JACKSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	California School
Employees Association & its Milpitas Chapter 281 	(Association) 	to
a Board agent's 	dismissal 	(attached) 	of 	its unfair practice
charge. 	The Association alleges 	that 	the Milpitas Unified School
District 	(District) 	violated section 3543.5 (a), 	(b) 	arid 	(c) 	of
the Educational 	Employment Relations Act 	(EERA)1 when the
1EERA is 	codified at Government 	Code 	section 	3540 	et 	seq.
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
_____ )

District 	changed 	its 	work year 	calendar 	to 	close 	school
facilities 	during 	its winter break.
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(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 	finds 	that 	the District 	clearly 	communicated 	in
its memorandum dated October 4, 	1996, 	its 	firm decision to close
school 	facilities 	during 	the 	1996 	winter break and 	restated 	that
intent 	to 	the Association on several 	occasions.2 In its 	charge,
the Association 	failed to meet 	its burden of 	showing 	timeliness.
(Tehachapi Unified School 	District 	(1993) 	PERB Decision
No. 	1024.)
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the Board agent's warning and dismissal 	letters, 	the
original 	and amended unfair practice 	charge, 	and the
Association's 	appeal. 	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-1947 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
2A1though 	the 	Board agent 	used 	the 	term 	"counterproposal,"
the Association has 	failed 	to 	show that 	the District 	ever
communicated any 	change 	in 	its 	firm decision to 	close 	school
facilities 	during 	the winter break.
22

STATE CP CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
August 1, 	1997
Denise Jensen
California School 	Employees Association
P.O. 	Box 640
San Jose, 	CA 	95106
Re: 	DISMISSAL LETTER/REFUSAL TO ISSUE COMPLAINT
California School Employees Association & its Milpitas
Chapter 281 v. 	Milpitas Unified School District
Unfair Practice Charge No. 	SF-CE-1947
Dear Ms. Jensen:
The above-referenced unfair practice charge, 	filed May 30, 	1997,
alleges 	the Milpitas Unified School District 	(District)
unilaterally changed the work-year calendar. 	The California
School 	Employees Association and its Milpitas Chapter 281 	(CSEA)
allege this conduct violates Government Code sections 3543.5(a),
(b) 	and 	(c) 	of the Educational Employment Relations Act 	(EERA or
Act) .
I indicated to you, 	in my attached letter dated July 17, 	1997,
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 July
25, 	1997, 	the charge would be dismissed.
On July 28, 	1997, 	you filed an amended charge. 	The amended
charge reiterates the original charge and adds the following.
CSEA alleges that on October 7, 	1996, 	District and CSEA
representatives met 	for their regular monthly meeting. 	During
this meeting, 	District representative Pat Dell 	informed CSEA of
the District's 	"interest" 	in a District-wide shutdown of offices
and schools. 	CSEA further alleges that on October 8, 	1997, 	CSEA
Received a memorandum dated October 4, 	1996, 	from Human Resources
Director, 	Sandra Edwards. 	The memorandum states in pertinent
part:
The District plans 	to annually close all
offices and sites during the two week Winter
Break periods beginning this December, 	1996.
I	....______( 	----1·· ")
.Jf---
•

This decision was made so the District can
conserve on heating and electricity costs
when all students and the vast majority of
certificated and classified employees are not
in attendance.
Dismissal 	Letter
SF-CE-1947
August 1, 	1997
Page 2
CSEA asserts 	this memorandum does not demonstrate a decision by
the District to close all 	sites, 	but instead is merely a proposal
by the District to take such action.
On November 4, 	1996, 	the parties met again for their regular
monthly meeting. 	During this meeting, 	CSEA presented the
District with a memorandum which stated:
On the subject of district wide shut down at
winter break/4 day work week at building 100
and 200 during summer, 	we will not be able to
agree with the position the district has
decided to take.
CSEA further alleges 	that at no time during this meeting did the
District 	indicate its desire to implement the Winter Break
closure without negotiating with CSEA.
On November 18, 	1996, 	the parties met for a regular contract
negotiating session. 	During this session, 	District
representative Dick Loftus 	informed CSEA that it was 	the
District's position that the District had the right to shut down
the offices during Winter Break without CSEA's agreement. 	CSEA
further alleges that Mr. 	Loftus agreed, 	however, 	to negotiate the
issue with CSEA.
During another contract negotiating session on November 27, 	1996,
the District presented a counterproposal to CSEA. 	The
counterproposal 	reiterated the District's original position,
stating in relevant part:
December 26, 27, 	30, 	1996 and January 2, 	3,
1997 will be 	"shutdown" days for those areas
where services are not 	required.
On December 3, 	1996, 	the District informed all classified and
certificated personnel of its decision to close all sites during
the Winter Break. 	The District's memorandum to all employees
mirrored the language of the District's October 4, 	1996,
memorandum to CSEA. 	CSEA asserts 	the District never gave any
indication of 	its 	intent to implement this decision without
negotiating with CSEA.
!
'

Dismissal 	Letter
SF-CE-1947
August 1, 	1997
Page 3
Based on the facts presented, 	the charge fails to state a prima
facie case within PERB's jurisdiction and therefore must be
dismissed.
Government Code section 3541.5(a)(1) 	prohibits 	the Board from
issuing 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. 	It is the Charging Party's burden to
demonstrate the charge is 	timely filed. 	(Tehachapi Unified
School District 	(1993) 	PERB Decision No. 	1024 )
The limitations period begins 	to run once the charging party
knows, 	or should have known, 	of the conduct underlying the
charge. 	(Gavilian Joint Community College District 	(1996) 	PERB
Decision No. 	1177.) 	In the case of a unilateral change, 	the
statute of limitations begins 	to run on the date that the
charging party has actual 	or constructive notice of 	the
respondent's 	clear intent 	to implement a unilateral 	change in
policy, 	provided that nothing subsequent 	to that date evinces a
wavering of that 	intent. 	(Cloverdale Unified School District
(1991) 	PERB Decision No. 	911.) 	The charging party may not rest
on its rights until actual 	implementation occurs. 	(Mt. 	Diablo
Unified School District 	(1994) 	PERB Decision No. 	1034.)
CSEA asserts the District's actions did not demonstrate the
District 	intended to implement 	the closure without negotiating
with CSEA on the matter. 	CSEA's contention is, 	however,
unpersuasive. 	The District's October 4, 	1996, 	letter indicates
the District's 	intent to close all 	sites during the Winter Break.
Although CSEA made 	counterproposals 	requesting employees 	receive
holiday pay or other benefits, 	CSEA does not present any facts
demonstrating the District wavered from its decision to close the
sites or from its decision to require employees to take vacation
time or other personal time during those days. 	Moreover, 	CSEA
admits 	that District representative Dick Loftus 	informed CSEA of
the District's position with regard to the closure. 	Mr. 	Loftus
informed CSEA on November 18, 	1996, 	that the District believed it
had the right 	to close the 	sites without negotiating with CSEA.
Thus, 	CSEA had actual and constructive notice on this day, 	of the
District's intent to implement the change. 	CSEA fails to present
any facts demonstrating the District 	changed its position on this
issue at any time after Mr. 	Loftus' 	statement. 	As such, 	this
charge must be dismissed as untimely.
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:
Dismissal 	Letter
SF-CE-1947
August 1, 	1997
Page 4
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-1947
August 1, 	1997
Page 5
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 _
Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Richard M. 	Noack

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)439-6940
PEAD
July 17, 	1997
Denise Jensen
California School 	Employees Association
P.O. 	Box 640
San Jose, 	CA 	95106
Re: 	WARNING LETTER
California School Employee-_-_-s Association & its Milpitas
Chapter 281 v. 	Milpitas Unified School District
Unfair Practice Charge No. 	SF-CE-1947
__
Dear Ms. Jensen:
The above-referenced unfair practice charge, 	filed May 30, 	1997,
alleges 	the Milpitas Unified School District 	(District)
unilaterally changed the work-year calendar. 	The California
School Employees Association and its Milpitas Chapter 281 	(CSEA)
allege this conduct violates Government Code sections 3543.5(a),
(b) and 	(c) 	of the Educational Employment Relations Act 	(EERA or
Act) .
Investigation of the charge revealed the following. 	CSEA is the
exclusive representative of 	the District's 	certificated
bargaining unit. 	The District and CSEA are parties to a
collective bargaining agreement 	(Agreement) 	which expired by its
own terms on June 30, 	1996. 	The parties are currently
negotiating for a successor agreement.
On October 4, 	1996, 	Sandra Edwards, 	District Executive Director
of Human Resources 	informed CSEA President Bill MacLean of the
District's 	intention to shut-down offices and schools during the
Winter holiday. 	Specifically, 	Ms. 	Edwards letter stated in
pertinent part:
The District plans to annually close all
offices and sites during the two week Winter
Break periods beginning this December, 	1996.
Should you have any concerns 	or questions
about . 	. 	. the above, please give me a call.
On November 4, 	1996, Mr. MacLean responded to Ms. 	Edwards letter
as follows:
•

Warning Letter
SF-CE-1947
July 17, 	1997
Page 2
On the subject 	of district wide shut down at
winter break/4 	day work week at building 	100
and 200 during summer, 	we will not be able to
agree with the position the district has
decided to take.
On November 18, 	1996, 	during a negotiation session for the
successor agreement, 	District 	representative Dick Loftus
reiterated the District's 	intention to shut-down operations
during the Winter Break. 	Mr. 	Loftis further stated that the
District was willing to negotiate the impact of this decision
with CSEA. 	On November 27, 	1996, 	the parties met for another
negotiating session. 	During this session, 	CSEA alleges the
parties exchanged proposals 	regarding the Winter Break closure.
CSEA does not, 	however, provide copies of these proposals.
On December 3, 	1996, 	Superintendent Mary Frances Callan,
distributed a memorandum to all bargaining unit members. 	The
memorandum stated in pertinent part:
The District plans to close all offices and
sites during the two week Winter Break from
Monday, 	December 23, 	1996 through January 3,
1997.
Based on the above stated facts, 	the charge as presently written,
fails to state a prima facie case of unilateral change, 	for the
reasons 	stated below.
Government Code section 3541.5(a)(1) 	prohibits the Board from
issuing 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. 	It is the Charging Party's burden to
demonstrate the charge is timely filed. 	(Tehachapi Unified
School District 	(1993) 	PERB Decision No. 	1024 )
The 	limitations period begins 	to run once the charging party
knows, 	or should have known, 	of the conduct underlying the
charge. 	(Gavilian Joint Community College District 	(1996) 	PERB
Decision No. 	1177.) 	In the case of a unilateral change, 	the
statute of limitations begins 	to run on the date that the
charging party has actual 	or constructive notice of 	the
respondent's 	clear intent 	to implement a unilateral 	change 	in
policy, 	provided that nothing subsequent to that date evinces a
wavering of 	that 	intent. 	(Cloverdale Unified School District
(1991) 	PERB Decision No. 	911.) 	The charging party may not rest
on its rights until actual implementation occurs. 	(Mt. 	Diablo
Unified School District 	(1994) 	PERB Decision No. 	1034.)
( 	r

Warning Letter
SF-CE-1947
July 17, 1997
Page 3
In the instant charge, 	CSEA was aware on or about October 3,
1996, 	of the District's intent to unilaterally change the work
year calendar. 	This charge was filed on May 30, 	1997, 	more than
six months after the date the alleged unfair practice occurred.
As CSEA fails 	to provide any facts demonstrating the District
subsequently wavered in its decision to implement 	this policy,
the 	charge must be dismissed as untimely.
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 July 25. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. 	Rosi
Regional Attorney