Santa Monica-Malibu Unified School District (Bradley) (PERB 1389E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DOLAN LEE 	BRADLEY,
Charging 	Party,
v.
SANTA MONICA-MALIBU 	UNIFIED
SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-4152
PERB Decision No. 	1389
May 31, 	2000
Appearances; 	Dolan Lee Bradley, 	on his own behalf; 	Atkinson,
Andelson, 	Loya, 	Ruud & Romo by James Baca, 	Attorney, 	for Santa
Monica-Maiibu Unified 	School 	District.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
BAKER, 	Member: 	This 	case 	comes before 	the 	Public Employment
Relations 	Board 	(Board) 	on appeal 	by Dolan Lee Bradley 	(Bradley)
from the 	Board agent's 	dismissal 	(attached) 	of his unfair
practice 	charge.
The 	charge 	alleges 	that 	the 	Santa Monica-Malibu Unified
School 	District 	(District) 	violated the 	Educational 	Employment
Relations Act 	(EERA)1 by changing Bradley's 	classification from
lead 	custodian 	to 	day 	custodian and by 	reducing 	his 	salary by
five percent, 	in retaliation for his activity as 	a job steward
for Service Employees 	International Union Local 	660. 	This
conduct 	is alleged to violate EERA section 3543.5(a).2
EERA 	is 	codified at Government 	Code 	section 	3540 	et 	seq.
2Section 3543.5 provides, 	in part:

22
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the 	original 	and amended unfair practice 	charges, 	the
warning and dismissal 	letters, 	Bradley's 	appeal 	and 	the
District's 	response. 	The Board 	finds 	the 	dismissal 	and warning
letters 	to be 	free 	from prejudicial 	error and adopts 	them as 	the
decision of 	the 	Board itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-4152 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
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.

STATE OF CALIFORNIA 	GRAY DAVIS. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
February 2, 2 0 00
Dolan 	Lee 	Bradley
Re: 	DISMISSAL 	OF 	CHARGE/REFUSAL TO 	ISSUE 	COMPLAINT
Dolan 	Lee 	Bradley v. 	Santa Monica-Malibu Unified 	School
District
Unfair Practice Charge No. 	LA-CE-4152; 	First Amended Charge
Dear Mr. 	Bradley:
The 	above-referenced unfair practice 	charge, 	filed January 	14,
2000, 	alleges 	the 	Santa Monica-Malibu Unified School 	District
(District) 	violated 	federal 	labor 	law by 	revoking your 	job
classification. 	This 	conduct 	is 	alleged 	to violate Government
Code 	section 	3543.5 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA or Act).
I 	indicated to you, 	in my attached letter dated January 24, 	2000,
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
January 31, 	2000, 	the charge would be dismissed.
On January 31, 	2000, 	Charging Party filed a 	first 	amended charge
in the Los Angeles Regional 	Office. 	In my January 24, 	2000,
letter, 	I 	informed Charging Party that 	his 	allegation of
discrimination was 	time 	barred. 	The 	amended 	charge 	adds 	the
following 	facts.
On July 	17, 	1995, 	Charging Party received a 	letter 	from District
Personnel Director, 	Jane Ellison, 	stating that 	the 	5% 	lead
stipend was 	being 	terminated. 	Ms. 	Ellison 	stated the 	District's
new 	classification 	study 	determined 	Charging 	Party 	should 	not 	be
in a 	Lead Custodian position, 	as he had no 	subordinates 	to
supervise. 	Thus, 	on or about July 24, 	1995, 	the District
reclassified 	Charging 	Party back 	to 	a 	Day 	Custodian.
On August 	15, 	1995, 	Charging Party wrote a letter to Ms. 	Ellison
regarding the 	reclassification. 	In this 	letter, 	Charging Party

Dismissal 	Letter
LA-CE-4152
Page 	2
states 	his 	belief 	that 	the 	reclassification violates 	the 	Merit
Rules.
On January 10, 	1996, 	Charging Party filed a Level 	I 	grievance
over 	the 	reclassification. 	The grievance 	alleges 	the District
did 	not 	follow 	the 	classification 	study 	in 	removing 	him 	from his
Lead Custodian position. 	The grievance does not, 	however, 	cite
any 	specific 	collective 	bargaining provisions 	or Merit 	Rules.
On January 18, 	1996, 	the grievance was 	denied at 	Level 	I 	without
comment. 	On January 24, 	1996, 	the grievance was denied at 	Level
II. 	The 	Level 	II 	response 	is 	not 	attached to 	the 	original 	or
amended charge. 	Pursuant 	to Article 	13.7.2.3 	of 	the Agreement
between 	SEIU and 	the 	District, 	Charging 	Party had 	fifteen 	(15)
days 	after receipt 	of 	the 	Level 	II 	response 	to 	request 	Level 	III
binding 	arbitration. 	Apparently, 	Charging 	Party did not 	request
binding 	arbitration.
On March 23, 	1999, 	Charging Party sent 	a 	letter to 	SEIU Business
Agent 	Ron 	Ferrara, 	requesting 	assistance 	from SEIU 	in 	this
matter. 	Specifically, 	it 	appears 	Charging 	Party sought 	a
Personnel 	Commission 	hearing 	on 	alleged violation 	of 	the 	Merit
Rules.
In or about May, 	1999, 	Charging Party met 	with SEIU
representative, 	Jack Roberts. 	During this meeting, 	Charging
Party was 	informed 	that 	SEIU had worked 	out 	a 	settlement 	with 	the
District 	regarding 	the 	reclassification 	issue. 	The 	settlement
called 	for 	the 	District 	and 	SEIU to 	each pay one-half 	of 	the
seven 	(7) 	month 	salary 	for Lead Custodian. 	Charging 	Party
refused to 	sign 	this 	settlement 	agreement, 	believing 	it 	did not
conform 	to Merit 	Rule 	3.3.3.1
1 M e r i t 	Rule 	3.3.3 	is 	a 	recitation 	of 	Education 	Code
section 45285, 	which states 	in relevant part:
A. 	The 	reclassification of 	positions 	to 	a
higher 	salary 	level 	shall 	have 	the 	following
effect 	on 	incumbents:
1. 	when all 	of 	the positions 	in a
class 	or when one 	or more 	positions
in a 	class 	are 	reclassified to a
higher classification, 	an 	incumbent
who 	has 	a 	continuous 	employment
record of 	three 	or more 	years 	in
the 	position 	shall 	be 	reclassified
with the position, 	without
examination 	and 	shall 	serve 	a

Dismissal 	Letter
LA-CE-4152
Page 3
On May 25, 	1999, 	Mr. 	Roberts 	filed an appeal 	letter with the
President 	of 	the 	Personnel 	Commission, 	initiating 	a 	Personnel
Commission hearing. 	The 	appeal 	letter 	alleged 	the 	District
violated Merit 	Rule 	3.3.3.
On September 24, 	1999, 	a Personnel 	Commission hearing was held
regarding Charging 	Party's 	reclassification. 	On November 	15,
1999, 	the 	Personnel 	Commission denied Charging 	Party's 	claim, 	and
informed him of 	his 	right 	to 	file 	in Superior Court.
Based 	on 	the 	facts 	presented 	in 	the 	original 	and amended 	charges,
the 	charge 	fails 	to 	state 	a prima 	facie violation of 	the 	EERA,
for 	the 	reasons 	provided below.
As noted in my January 24, 	2000, 	letter, 	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.
The 	statute 	of 	limitation begins 	to 	run 	on 	the 	date 	Charging
Party 	knew or 	should 	have 	known 	of 	the 	conduct 	underlying 	the
charge. 	In this 	instance, 	Charging 	Party knew of 	the 	termination
of 	his 	Lead Custodian position on July 24, 	1995, 	and as 	such the
charge 	is 	untimely.
Charging 	Party 	asserts 	the 	charge 	should be 	considered 	timely
filed 	as 	he 	was 	pursuing his 	Personnel 	Commission hearing.
However, 	PERB does 	not 	recognize 	the 	doctrine 	of 	"equitable
tolling," 	under which 	a 	charging party will 	not 	be 	precluded 	from
proceeding on 	an untimely 	charge 	if 	he 	or 	she 	has 	pursued 	an
alternative 	legal 	remedy 	in good faith. 	(San Diego Unified
School District 	(1991) 	PERB Decision No. 	885.) 	As 	such, 	the
statute 	of 	limitations 	was 	not 	tolled while 	Charging 	Party
pursued 	the 	Personnel 	Commission hearing.
It 	is 	arguable 	that 	Charging 	Party 	is 	entitled to 	the 	tolling
under Government 	Code 	section 3541.5(a)(2).2 Pursuant 	to 	that
section, 	PERB 	must 	consider 	the 	limitations 	period 	tolled during
the 	time 	it 	took 	charging party to 	exhaust 	any 	contractual
grievance machinery. 	However, 	Charging 	Party's 	contractual
probationary period. ..
1 1
2 However, 	it 	appears 	Charging 	Party 	failed to 	raise 	the
issue 	of 	discrimination 	either 	in the 	contractual 	grievance 	or
the 	Personnel 	Commission hearing. 	As 	the 	issue presented 	in 	the
PERB 	unfair practice 	charge 	is 	different 	than 	the 	issue 	presented
in the 	contractual 	grievance, 	tolling would not 	be 	appropriate.
(North Orange 	County 	Community College 	District 	(Kiszely) 	(1998)
PERB Decision No. 	1268.)

Dismissal 	Letter
LA-CE-4152
Page 	4
grievance 	was 	terminated 	in January 	1996, 	when Charging 	Party and
SEIU did not 	pursue 	binding arbitration 	in 	this matter. 	As 	such,
the charge, 	even with tolling, 	is untimely.
At 	the 	end of 	the 	amended charge, 	Charging 	Party asserts 	his
removal 	from 	the 	Lead Custodian position was 	discriminatory, 	as
Charging 	Party was 	a Job 	Steward. 	However, 	Charging 	Party 	fails
to provide 	any facts 	regarding 	this 	allegation. 	Moreover, 	this
allegation 	is 	also untimely 	filed.
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 Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with 	the Board must 	contain
the 	case name 	and number, 	and the original 	and 	five 	(5) 	copies 	of
all 	documents 	must 	be provided to 	the 	Board.
A 	document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close 	of 	business 	(5 	p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express 	United 	States 	mail, 	as 	shown
on 	the postal 	receipt 	or postmark, 	or delivered 	to 	a 	common
carrier promising overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later than the 	last 	day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
A 	document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of 	business 	on 	the 	last 	day 	for
filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided 	the 	filing party also places 	the 	original, 	together with
the 	required number of 	copies 	and proof of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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

Dismissal 	Letter
LA-CE-4152
Page 	5
days 	following the date 	of 	service of 	the 	appeal. 	(Cal. 	Code
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 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. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135 (c) .)
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 Regs., 	tit. 	8, 	sec. 	32132.)
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: 	Jim Vaca

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
January 24, 	2 000
Dolan 	Lee 	Bradley
Re: 	WARNING 	LETTER
Dolan 	Lee 	Bradley v. 	Santa 	Monica-Maiibu Unified 	School
District
Unfair Practice 	Charge No. 	LA-CE-4152
Dear Mr. 	Bradley:
The 	above-referenced unfair practice 	charge, 	filed January 	14,
2000, 	alleges 	the 	Santa Monica-Malibu Unified 	School 	District
(District) 	violated 	federal 	labor 	law by 	revoking your 	job
classification. 	This 	conduct 	is 	alleged to violate 	Government
Code 	section 	3543.5 	of 	the 	Educational 	Employment 	Relations Act
(EERA 	or 	Act).1
Investigation 	of 	the 	charge 	revealed 	the 	following. 	Charging
Party 	is 	employed by the District 	as 	a Day Custodian at 	Santa
Monica High School. 	As 	a classified employee, 	Charging Party is
exclusively 	represented 	by 	the 	Service 	Employees 	International
Union, 	Local 	660 	(SEIU). 	Facts provided also state Charging
Party was 	a 	job 	steward 	for 	SEIU at 	all 	times 	relevant 	herein.
In July 	1994, 	Principal 	Sylvia Rousseau 	informed Charging 	Party
that 	she 	was 	going 	to 	initiate 	a personnel 	action to have
Charging 	Party's 	position as 	a Day Custodian reclassified 	to 	a
Lead Custodian position. 	On September 22, 	1994, 	Charging Party
was 	reclassified as 	a 	Lead Custodian. 	This 	reclassification had
the 	result 	of 	increasing 	Charging 	Party's 	salary by 	5%.
On July 	17, 	1995, 	Charging 	Party received a 	letter 	from District
Personnel 	Director, 	Jane Ellison, 	stating that 	the 	5% 	lead
stipend was 	being 	terminated. 	Ms. 	Ellison 	stated the District's
new 	classification 	study 	determined 	Charging 	Party 	should 	not 	be
in a Lead Custodian position, 	as 	he had no 	subordinates 	to
1 PERB 	lacks 	jurisdiction over 	claims 	that 	the 	District
violated 	federal 	labor law. 	However, 	this 	charge will 	be
analyzed 	as 	if 	Charging 	Party alleged violations 	of 	the 	EERA.

Warning 	Letter
LA-CE-4152
Page 	2
supervise. 	Thus, 	on or about July 24, 	1995, 	the District
reclassified 	Charging 	Party back 	to 	a 	Day 	Custodian.
Based on 	the 	above 	stated 	facts, 	the 	charge 	as presently written,
fails 	to 	state 	a prima 	facie violation of 	the EERA, 	for the
reasons 	provided 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. 	In the 	instant 	charge, 	Charging Party
knew of 	the 	adverse 	action 	in July of 	1995, 	more 	than 	four years
prior to 	the 	filing of 	the unfair practice 	charge. 	As 	such, 	the
charge 	is 	untimely and must 	be 	dismissed.
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 	have 	the 	case 	number written on 	the 	top 	right
hand corner of 	the 	charge 	form. 	The 	amended charge must 	be
served 	on 	the 	respondent's 	representative 	and 	the 	original 	proof
of 	service must 	be 	filed with PERB. 	If 	I 	do not 	receive an
amended charge or withdrawal 	from you before January 31, 	1999, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Kristin L. 	Rosi
Regional 	Attorney