Fremont Unified School District (PERB 1442E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KATHLEEN M. TURNEY,
Charging Party,
V.
FREMONT UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-2150-E
PERB Decision No. 	1442
June 	7, 	2001
Appearance: Kathleen M. Tumey on her own behalf.
Before Amador, Baker and Whitehead, Members.
'
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Kathleen M. Tumey (Tumey) of a Board agent's partial dismissal
(attached) of her unfair practice charge.
The charge was evaluated as having alleged that the Fremont Unified School District
(District) violated Section 3543.5(a) of the Educational Employment Relations Act (EERA)1
1 EERA 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 ofrights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.

by engaging in discrimination and retaliation because of Tumey's protected activities, making
threats, and engaging in collusion with Tumey's exclusive representative.
The Board has reviewed the entire record in this case, including the unfair practice
charge, the partial warning and partial dismissal letters and Tumey's appeal.2 The Board finds
the partial dismissal letter to be free from prejudicial error and adopts it as the decision of the
Board itself.
ORDER
The partial dismissal of the unfair practice charge in Case No. SF-CE-2150-E is hereby
AFFIRMED.
Members Amador and Whitehead joined in this Decision.
2 Turney has provided the Board with copies of two of her previous PERB charges from
1986 which she offers as "evidence of previous collusion" between the District and the
Fremont Unified District Teachers Association. The 15 year old charges, which were settled,
concerned distribution of contract ratification materials, which is unrelated to the instant
charge of collusion regarding the parties' grievance procedure, except that the parties allegedly
engaging in collusion are the same. Although the Board takes official notice of these
documents, the documents do not sufficiently assist Tumey in establishing a prima facie
violation of EERA by the District.
2

STA
TE
OF
CALIFORNIA	
GRAY
DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional
Office
1515
Clay Street, Suite
2201
Oakland, CA
9461
2
(510)
622-1016
January
	22, 	2001
Kathleen
	M.
	Turney
6655
	Aitken 	Drive
Oakland,
	California
	94611
Re:	
PARTIAL 	DISMISSAL
	OF
	UNFAIR 	PRACTICE 	CHARGE/REFUSAL
	TO
	ISSUE
COMPLAINT
Kathleen
	M.
	Turney
	v.
	Fremont
	Unified
	School
	District
Teachers
Unfair
	Practice
	Charge
	No.
	SF-CE-2150
Dear
	Ms.
	Turney:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	on
	July
	24,
2000
	and 	amended
	on
	November
	21,
	2000
	and
	January
	22,
	2001,
alleges 	that
	the
	Fremont
	Unified
	School
	District
	(District)
engaged
	in 	discrimination
	and
	retaliation
	because
	of
	Charging
Party's 	protected
	activities,
	made
	threats,
	and 	engaged
	in
collusion
	with
	her 	exclusive 	representative,
	the
	Fremont
	Unified
District
	Teachers
	Association 	(Association). 	This 	conduct
	is
alleged 	to
	violate
	Government
	Code
	section
	3543.5
	of 	the
Educational
	Employment
	Relations
	Act
	(EERA).
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	dated 	January
	8, 	2001,
that 	certain 	allegations
	contained
	in
	the 	charge
	did
	not
	state
	a
prima
	facie 	case.
	You
	were
	advised
	that,
	if
	there
	were 	any
correct 	the
	factual 	inaccuracies 	or 	additional 	facts
	which 	would
deficiencies 	explained 	in 	that
	letter,
	you
	should
	amend
	the
charge.
	You
	were
	further
	advised
	that,
	unless
	you
	amended
	these
to
	state
	a
	prima
	facie
	case
	or
	withdrew
	them
	prior
	to	allegations
January
	19, 	2001,
	the 	allegations
	would be
	dismissed.
	These
allegations 	included 	the 	claims
	that
	the
	District
	(1)
	interfered
with 	the 	processing 	of 	grievances,
	(2)
	engaged
	in
	harassment
	in
April
	2000, 	(3)
	threatened 	school 	board
	action 	in
	June
	2000, 	and
(4)
	engaged
	in 	collusion
	with 	the 	Association.
On
	January 	19, 	2001,
	I
	received
	an
	amended
	charge.
	With
	respect
to 	the 	grievance 	processing 	allegation, 	the
	amended
	charge
alleges 	that 	the 	District
	gave 	deceptive 	answers
	in
	its
	responses
to
	Charging
	Party's 	grievances. 	In
	its
	responses 	to 	the
grievances, 	the 	District
	misquoted 	Charging 	Party 	and 	the
District's 	discipline 	policy.
	The
	effect 	of 	the
	District's
various 	actions, 	Charging 	Party 	claims,
	was
	to 	deny 	Charging
Party 	her 	right 	to 	appeal 	the 	issues 	she 	had 	raised.
The 	new
	allegations 	fail 	to 	cure 	the 	deficiencies 	noted 	in 	the
January 	8, 	2001
	letter. 	Charging 	Party 	has 	noted 	previously
that, 	although 	delayed 	somewhat, 	her 	grievances 	were 	processed

Partial
	Dismissal
	Letter
SF-CE-2150
January
	22, 	2001
Page
	2
through
	all
	steps
	of 	the 	grievance
	procedure
	short 	of
arbitration.
	The
	allegations
	do
	not 	support
	Charging
	Party's
assertion 	that
	she
	was
	denied
	the
	right
	to
	appeal
	her
	issues.
There
	are
	no
	allegations 	in
	the
	amended
	charge
	specifically
referring
	to 	alleged
	harassment
	in
	April
	2000.
	There
	is
	some
evidence 	of
	what
	might 	be
	construed
	as 	harassment
	in
	the
documentation
	attached 	to
	the
	amended
	charge.
	However,
	such
references 	are
	insufficient
	to
	state
	a
	prima
	facie
	violation
	for
interference 	or
	retaliation.
	(Carlsbad
	Unified
	School
	District
(1979)
	PERB
	Decision
	No.
	89; 	Novato
	Unified
	School
	District
(1982)
	PERB
	Decision
	No.
	210.)
There
	is
	an
	allegation 	referring 	to 	threatened
	school 	board
action 	in
	June
	2000.
	Sandra
	Prairie
	allegedly 	threatened
	board
action
	concerning
	the
	failing
	grade
	Charging
	Party
	had
	given
	to
the 	cheating
	student.
	No
	other
	details
	are 	provided.
	The
allegation 	in 	the
	amended
	charge
	refers
	to
	an
	April
	20,
	2000
letter
	but
	that
	letter
	has
	not 	been 	provided. 	Therefore,
	this
allegation
	fails
	to
	state
	a
	prima
	facie 	violations 	for
	the
reasons
	set 	forth 	in
	the 	January
	8,
	2001
	letter.
With
	regard
	to
	the 	collusion 	allegation,
	the
	charge 	as
	amended
also
	fails
	to
	cure 	the
	deficiencies 	identified 	in
	the
	January
	8,
2001
	letter.
	The
	District's
	and
	Association's 	''insistence"
	on
the
	filing
	of
	a
	grievance
	on
	the 	proper
	form
	does
	not 	demonstrate
an
	attempt
	to
	engage
	in 	collusion
	with 	the 	Association.
	Charging
Party
	has
	not 	demonstrated
	that
	the 	procedural 	hurdles
	she
	may
have
	encountered 	before
	having
	her 	grievances 	heard 	caused
	her
any
	harm
	that
	justifies
	issuance 	of
	a
	complaint. 	That
	harm
	was
principally 	delay
	and
	not 	the
	inability
	to 	obtain
	a
	forum
	for
	her
claims.
1 	·
Therefore,
	I 	am
	dismissing 	the 	allegations 	that
	the
	District
	(1)
interfered
	with 	the 	processing 	of 	grievances,
	(2)
	engaged
	in
harassment
	in 	April
	2000,
	(3)
	threatened 	school 	board
	action 	in
June 	2000, 	and
	(4)
	engaged
	in 	collusion 	with 	the 	Association
based
	on
	the
	facts
	and 	reasons
	set 	forth
	above 	and
	in
	my
	January
8, 	2001
	letter.
1
Charging 	Party 	alleges 	that
	an
	earlier
	PERB
	matter 	in
	1986
includes 	evidence 	of
	a
	history 	of 	collusion but 	her
	amended
charge
	fails 	to 	provide 	any 	information 	that
	would 	permit 	an
identification 	of 	that 	case. 	The 	undersigned 	has 	found 	no
reported
	PERB
	decision 	in 	1986 	involving 	these 	parties 	that
discusses 	collusion.

Partial
	Dismissal
	Letter
SF-CE-2150
January
	22,
	2001
Page
	3
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
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

Partial
	Dismissal
	Letter
SF-CE-2150
January
	22, 	2001
Page
	4
when
	document
	will
	be
	considered
	properly
	"served"
	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.
request
	must
	indicate
	good
	cause
	for
	and,
	if
	known,
	the
The
position
	of 	each
	other 	party
	regarding 	the 	extension,
	and
	shall
of
	service
	of 	the 	request
	upon
	each
be 	accompanied 	by
	proof
party.
	(Cal.
	Code
	Regs.,
	tit.
	8, 	sec.
	32132.)
Final
	Date
the
	limits,
	appeal
	within 	the
	is
	filed
	time
	If
	no
	specified
dismissal
	will
	become
	final
	when
	the
	time
	limits
	have
	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy
	General 	Counsel
By
Regional
	Attorney
Attachment
cc: 	Melissa
	M.
	Tucker

ST A
TE
OF
CALIFORNIA
1'-':l~~i..1!!....~-(~,,.,o
fu.i·~~
~;~,t:-;~-~~~o~~-•
PUBLIC EMPLOYMENT RELATIONS BOARD
San
Francisco
Regional
Office
1515
Clay
Street, Suite
2201
Oakland, CA
9461
2
1510)
622-1016
January
	8, 	2001
Kathleen
	M.
	Turney
6655
	Aitken 	Drive
Oakland,
	California
	94611
Re:	
PARTIAL
	WARNING
	LETTER
Kathleen
	M.
	Turney v.
	Fremont
	Unified
	School
	District
Teachers
Unfair
	Practice
	Charge
	No.
	SF-CE-2150
Dear
	Ms.
	Turney:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	on
	July
	24,
2000
	and 	amended
	on
	November
	21, 	2000,
	alleges
	that
	the
	Fremont
Unified
	School
	District
	(District)
	engaged
	in 	discrimination
	and
retaliation
	because 	of
	Charging
	Party's
	protected
	activities,
made
	threats,
	and 	engaged
	in 	collusion
	with 	her 	exclusive
representative,
	the
	Fremont
	Unified
	District
	Teachers
	Association
(Association).
	This 	conduct
	is
	alleged 	to
	violate
	Government
Code
	section
	3543.5 	of 	the 	Educational
	Employment
	Relations
	Act
(EERA).
Investigation 	of 	the
	charge
	revealed 	the 	following. 	Kathleen
	M.
Turney
	is
	a
	certificated
	employee, 	employed 	by
	the
	District.
	She
is
	a 	member
	of
	a
	bargaining
	unit 	exclusively 	represented
	by
	the
Association 	(Association).
Turney's
	dispute 	with 	the
	District
	began
	in
	February
	2000 	when
she 	took
	disciplinary 	action 	against
	a
	student 	in 	her 	class 	for
cheating.
	Because
	the 	offense
	was
	not 	the
	student's
	first,
Turney 	suspended
	the 	student
	and
	recommended
	his 	transfer 	to
	a
continuation 	school.
	Sandra
	Prairie,
	Mission
	San
	Jose
	High
School
	Assistant 	Principal,
	determined
	that
	the 	cheating 	inquestion 	warranted
	a
	different
	suspension 	than 	the
	one
	given
	and
that
	the
	transfer
	would
	not
	be
	appropriate.
	Turney
	believed 	that
management's
	refusal 	to 	support 	her 	disciplinary 	action 	violatedher 	rights
	as
	a
	classroom 	teacher.
In April
	2000,
	Principal 	Stuart
	Kew
	issued 	teaching 	assignments
f0r
	che 	2000-2001 	school 	year. 	Turney
	was
	assigned 	classes
	she
asked 	not 	be
	assigned 	to 	her.
	They
	included 	three 	ninth 	grade
lish 	classes.
	Turney 	believed 	that 	this
	assignment
	was 	made
in 	retaliation 	for 	her 	earlier
	complaints 	against 	the 	vice
principal.
Beginning 	in 	February 	2000, 	Turney 	filed 	grievances 	over 	both
matters. 	The
	District 	initially 	treated 	these 	grievances 	as
complaints 	under 	the 	District's 	complaint 	procedure, 	which
GRAY DAVIS,
Governor

Partial
	Warning
	Letter
SF-CE	
2150
January
	8,
	2001
!=lage	
2
differs
	from
	the
	collective
	bargaining 	agreement's 	grievance
procedure.
	Turney
	objected 	to
	this
	action
	on
	the
	District's
	part
because
	it
	caused
	a
	delay
	in
	the 	processing 	of 	the
	grievances.
When
	the
	grievances
	were
	elevated 	to 	the 	intermediate
	level,
	the
District
	administrator
	delayed
	his
	investigation 	allegedly
causing
	the 	grievances 	to 	further
	languish. 	Additional
scheduling
	and
	other
	procedural 	delays
	followed.
	Turney
	believes
that
	if
	these 	grievances,
	particularly
	the
	one
	involving 	the
class
	assignment,
	had 	been
	addressed
	in
	a
	timely
	manner
	she 	might
have
	obtained
	a
	more
	suitable
	teaching
	assignment
	for
	the
	2000-
2001
	school
	year.
The
	charge
	alleges 	that
	on
	April
	11, 	13, 	17, 	2000,
	Kew
	and
Prairie
	harassed 	her
	in 	front
	of
	students, 	faculty
	and
	staff
	and
on
	June
	21,
	2000
	"threatened
	school 	board
	action."
	No
	specifics
are 	given.
Turney
	complained 	about 	the 	matters 	involving
	Prairie
	and
	Kew
	to
the
	Association.
	She
	also 	raised 	issues
	concerning
	additional
acts
	of 	harassment
	by
	Kew
	and
	Prairie.
	Turney
	met
	with
	an
Association
	representative 	in
	May
	shortly
	after 	filing
	her
grievances.
	The
	Association
	recommended
	that
	she
	pursue
	the
	two
issues 	separately.
	The
	Association 	advised
	Turney
	that
	the
complaint 	about
	the 	class
	assignment
	issue
	could 	not
	be
	addressed
in
	the 	grievance 	procedure 	because 	the
	contract 	afforded 	the
administrators
	wide
	discretion 	in
	making
	such 	assignments. 	Also,
while
	Turney
	claimed
	that
	the
	assignment
	violated 	seniority
rules,
	the 	Association 	advised 	her
	that 	seniority
	need
	only
	be
considered
	in 	involuntary 	transfers
	between
	school
	sites
	and
	that
Kew's
	action 	did 	not 	involve 	such
	a
	decision. 	In
	this
	regard,
	it
is
	noted
	that 	Article
	21,
	section 	21.3.5
	states 	that 	seniority
applies 	to
	a
	"right" 	or 	"benefit"
	under
	the
	agreement.
	But
	the
contract
	does
	not
	clearly 	establish 	that
	a
	particular
	teaching
assignment
	is
	such
	an
	entitlement.
	The
	Association
	told
	Turney
to 	pursue 	the 	matter
	through 	the 	complaint 	procedure.
After
	Turney
	pursued 	the 	grievance
	on
	her
	own,
	she
	submitted 	to
the 	Association
	a
	request 	to 	pursue 	the 	class
	assignment
grievance 	to
	arbitration.
	This 	matter
	was
	held 	in
	abeyance 	by
the 	Association 	for
	some
	unspecified 	period 	of 	time.
Wich
	regard 	to 	the 	issue 	involving 	the 	lack 	of 	support 	for 	her
disciplinary 	action, 	the 	Association 	agreed 	that 	the 	matter 	could
oe 	addressed 	through 	the 	collective 	bargaining 	agreement.
	The
Association 	represented 	Turney
	at 	the 	Level
	II 	grievance 	meeting.
The
	District 	denied 	the 	grievance. 	Turney 	then 	requested 	that
che 	Association 	arbitrate 	the 	grievance.
	The
	Association
grievance 	chair
	was 	unable 	to
	make 	a
	decision 	within
	a
	time 	frame
satisfactory 	to 	Turney, 	and 	so 	she 	filed 	the 	instant 	unfair

Partial
	Warning
	Letter
SF-CE
	2150
January
	8,
	2001
Page
	3
f
practice
	charge.
	The
	Association
	denied
	the 	request
	in
	September
2000.
	The
	grievance 	involving
	Prairie
	was
	partially
	resolved
when
	the
	District
	agreed 	to 	assign
	a
	different
	evaluator
	to
	her.
However,
	the
	new
	evaluator
	was
	unfair
	to 	her
	and
	rejected 	her
proposed
	teaching 	goals 	three
	different
	times. 	In
	her
	31
	years
of
	teaching, 	Turney's 	teaching 	goals
	have
	never
	been
	questioned,
let
	alone
	rejected.
	Her
	teaching
	competency 	has
	never
	been
questioned.
Following
	the
	Association's 	rejection
	of 	the
	arbitration
	request
regarding 	the
	Prairie
	matter,
	Prairie
	came
	to
	Turney's 	classroom
on
	September 	29, 	2000.
	She
	said
You
	lost
	the 	grievance.
	PERB
	is 	settled.
That's
	all
	over.
	You
	lost!
	Now
	you
	will
change
	the
	"F"
	you
	assigned 	[the
	cheating
student]
	last
	year.
	I
	want
	to
	see
	all
	the
assignments, 	the 	dates, 	the 	grades
	--
	all
	of
it
	for
	all
	your
	classes.
	Your
	computer
	grade
sheets 	are
	not
	enough.
	You
	can't
	bring
	up
any
	of 	those 	old 	issues.
	You
	lost!
	Uh-huh!"
In
	che
	fall
	of
	2000,
	Kew
	engaged
	in 	further 	acts
	of
	retaliation
by
	assigning
	Turney
	to
	an
	unsafe
	and
	unhealthy 	classroom 	and
issuing
	her
	a
	letter
	of
	reprimand
	that
	was
	without
	justification.
Turney
	was
	unable
	to 	attend
	a
	Back-to-School
	night 	function
	and
meet
	with
	parents
	due
	to
	illness.
	Turney 	had
	already
	voluntarily
do~ated 	over 	seven 	hours
	beyond
	the
	regular
	day
	to
	meet
	with
parents.
Turney
	further 	alleges 	that
	the 	Association
	promised
	to
	file
	an
unfair 	practice
	charge
	on
	her 	behalf 	with 	the 	Public
	Employment
Relations
	Board
	(PERB)
	to
	address 	the
	District's
	alleged
retaliation,
	but
	later
	reneged
	on
	the 	agreement.
Finally,
	Turney
	alleges 	that 	in 	the 	spring 	of
	2000
	the
	District
and
	the 	Association 	delayed
	distribution
	of 	the
	newly
	ratified
collective 	bargaining
	agreement 	and
	that 	this
	caused
	her
grievance 	processing 	to 	suffer.
	Turney 	claims
	that 	this
	conduct
demonstrates
	collusion
	between
	the 	Association
	and
	the
	District.
Based 	on
	the 	facts 	stated
	above, 	the 	allegations 	that 	the
District
	(1)
	interfered
	with 	the 	processing 	of 	grievances,
	(2)
engaged
	in 	harassment 	in 	April
	2000, 	(3)
	threatened 	school 	board
action 	in 	June 	2000, 	and
	(4)
	engaged 	in 	collusion 	with 	the
Associacion, 	as 	presently 	written 	fail 	to 	state
	a
	prima 	facie
vi_olacion 	of 	the
	EERA
	for 	che 	reasons 	that 	follow.

Partial
	Warning
	Letter
SF-CE-2150
January	
8,
	2001
Page
	4
!n
	Regents
	of
	the 	University
	of
	California
	(1983)
	PERE
	Decision
No.
	308-H,
	the 	Public
	Employment
	Relations
	Board
	(PERB)
	held
	that
in
	order 	to
	state
	a
	prima
	facie
	violation
	of
	interference
	with
the 	grievance 	procedure 	the
	charging
	party
	must
	allege
	how
	and
	in
what 	manner
	the
	employer
	effectively
	denied 	the
	employee
	her
right
	to 	process
	a
	grievance.
	Simply
	rejecting
	a
	grievance
	on
procedural
	grounds 	has 	been
	held
	not
	to
	constitute
	a
	violation
	in
a
	number
	of
	different
	contexts.
	(See
	Regents
	of 	the
	University
of
	California
	(1988)
	PERE
	Decision
	No.
	699-H,
	Regents
	of
	the
University
	of
	California
	(1988)
	PERE
	Decision
	No.
	700-H
	and
Regents
	of 	the 	University
	of
	California
	(1988)
	PERE
	Decision
	No.
707-H.)
	One
	of 	the
	underlying
	assumptions
	of 	grievance
processing
	is 	that
	the
	contractually
	provided 	procedures
typically
	allow
	the 	grievant 	to 	elevate
	the 	grievance
	to 	the
	next
level
	if
	the
	employer
	fails
	or 	refuses 	to
	respond.
	The
District's
	grievance
	procedure
	in
	this
	case
	is
	no
	different.
In
	this
	case,
	the
	charge
	fails
	to 	explain
	how
	the 	delays,
failures
	to
	respond,
	and
	treatment 	of 	the 	grievances 	as
complaints 	denied
	Turney
	her
	right
	to
	effectively
	process
	her
grievances.
	It 	is
	noted
	that
	the 	matters 	involving
	Prairie's
harassmenc 	and 	Kew's
	class
	assignments
	were
	eventually 	processed
through
	all
	steps
	of 	the 	grievance 	procedure 	except
	arbitration.
While
	there
	is
	the 	contention
	that
	if
	the 	grievance
	on
	class
assignments
	had
	been 	processed
	more
	expeditiously,
	Turney might
have 	been
	granted
	a
	different
	teaching
	assignment
	for 	the
	2000-
year,
	this
	harm
	is
	insufficient 	to 	carry 	her
	allegation
	over
	2001
the 	threshold.
	If
	the
	case
	had 	gone
	to
	arbitration
	it
	is
unlikely 	that
	she
	would 	have
	received
	a
	decision
	prior 	to 	the
beginning 	of 	the 	school 	year.
	Moreover,
	arbitrators
	are
typica~ly granted 	the
	power
	to
	"make
	whole"
	the 	aggrieved
party.~
The
	allegations
	with 	respect 	to
	harassment 	by
	Prairie
	and
	Kew
	in
:ront
	of
	students, 	faculty
	and
	administrators 	in 	April
	2000 	and
the
	threat 	to
	initiate
	board
	action
	fail
	to 	contain
	any
supporting 	information.
	The
	charging
	party 	is
	required 	to
provide
	a
	"clear
	and 	concise 	statement 	of 	the 	facts
	conduct
alleged 	to 	constitute
	an
	unfair 	practice"
	(Cal.
	Code
	of
	Regs,
tit.
	8,
	sec.
	32615 (a)
(5))
	in 	order 	to 	permit
	PERE
	to 	determine
'Nhet 	r 	a
	prima
	facie 	case 	has 	been
	stated
	(Cal.
	Code
	of 	Regs.,
tit.
	8,
	sec.
	32620, 	32640).
:Although 	the 	arbitrator
	would 	not 	have 	been 	able 	to 	place
rurney 	in 	her 	desired 	classes 	for 	the 	2000-2001 	year, 	the
arbitrator 	could 	have 	done 	so 	at 	the 	earliest 	practicable
	moment
and 	provided 	some
	other 	relief 	-- 	monetary 	perhaps 	-- 	to 	achieve
a
	reasonable 	make 	whole 	remedy.

Partial
	Warning
	Letter
SF-CE
	2150
January
	8,
	2001
Page	
5
Finally,
	Charging
	Party's
	claims 	of
	collusion
	appear
	to
	be
without
	merit.
	More
	is
	required
	to 	demonstrate
	collusion 	than
the
	mere
	coincidence 	of 	actions
	which
	leave 	the 	charging
	party
unsatisfied
	or
	unfulfilled.
	For 	example,
	if
	District
	caused
	or
attempted
	to
	cause
	the
	District
	to
	violate
	Turney's
	rights
	under
che
	EERA,
	the 	charge
	must
	demonstrate
	how
	and
	why
	the
	District's
conduct
	led 	to
	this 	result.
	(See
	Tustin 	Unified
	School
	District
(1987)
	PERB
	Decision
	No.
	626;
	see
	also
	American
	Federation
	of
State
	County 	and
	Municipal
	Employees
	(Waters)
	(1988)
	PERB
Decision
	No.
	697-H
	[failure
	to
	distribute
	contract
	to
	all
bargaining
	unit
	employees
	not
	a
	violation].)
	The
	charge
	fails
	to
do
	so.
For
	these
	reasons
	the
	allegations 	that
	the
	District
	(1)
interfered
	with 	the 	processing 	of 	grievances,
	(2)
	engaged
	in
harassment
	in
	April
	2000,
	(3)
	threatened
	school 	board
	action 	in
June
	2000, 	and
	(4)
	engaged
	in 	collusion
	with 	the 	Association,
	as
presently 	written,
	do
	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
	o.n
	the 	respondent's 	representative
	and
	the
	original
	proof
of
	service
	must 	be
	filed
	with
	PERE.
	If
	I
	do
	not
	receive
	an
amended
	charge
	or
	withdrawal
	from 	you
	before	
January 	19, 	2001,	
I
shall
	dismiss 	the 	above-described
	allegation
	from
	your
	charge.
If
	you 	have 	any
	questions, 	please
	call
	me
	at
	(510)
	622-1024.
DONN
	GINOZA
Regional 	Attorney