Eastside Union School District (PERB 0466E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
EAST SIDE 	TEACHERS ASSOCIATION,
Charging
	Party,
v.
EAST SIDE 	UNION
_SCHOOL
	DISTRICT,
Respondent.
)
)
)	
Case
	No. 	LA-CE-18
21
PERB	
Decision
	No.
	466
December
	19, 	1984
)
)
)
)
)
)
)
Appearances'!	
Charl"<=-s
,-R.
	G-ustafson, 	"Attorney,
	for
	Eastside
Teachers
	Asssociation;
	Wagner,
	Sisneros	
&
Wagner,
	by
John
	J.
	Wagner,
	Attorney, 	for
	Eastside
	Union
	School
	District.
Before
	Hesse,
	Chairperson;
	Tovar
	and
	Jaeger,
	Members.
DECISION
JAEGER,
	Member: 	The
	Eastside
	Teachers
Association
	(ETA)
appeals 	the 	dismissal
	of
	its
	unfair 	practice
	charge
	which
alleges 	that:
1. 	Three
	teachers
	informed
	the
	Eastside
	Union
	School
District
	that
	they
	would
	not
	be
	returning 	to 	the 	school
	the
following
	September
	for 	the
	1983-84
	semester.
2.
	They 	had 	worked
	as
	full-time 	teachers 	in 	the
	District
during 	the
	entire
	1982-83
	school 	year.
3.
	The
	negotiated
	agreement 	between
	ETA
	and
	the
	District
required 	the
	District
	to
	pay 	$2,898.30 	towards 	the 	employees'
insurance 	benefits 	for 	the 	period 	October 	1, 	1982
	to
September 	30, 	1983.

4.
	The
	District
	paid 	only
	$2173.73 	toward
	the
	premiums
	for
each 	of
	the
	three 	teachers
	and
	in
	May
	1983
1
informed
	them
that
	its
	payments
	would 	be
	discontinued
	as
	of
	June
	30, 	1983
	and
that
	the
	teachers
	could
	continue
	their
	coverage
	for
	July,
August
	and
	September
	by
	paying
	the
	full
	premium.
5.
	On
	or 	about
	June
	1,
	ETA
	met
	with
	the
	District
superintendent, 	asserting 	that
	the
	teachers
	were
	full-time
teachers
	for 	the
	1982-83
	year
	ana:
	according
	to
	the contract,
were
	entitled
	to
	a
	full-year's
	premium 	from
	the
	District.
	ETA
indicated
	it
	was
	prepared 	to
	file
	a
	grievance
i:>Ve't tfl'e
1Tl~'t'€t'!':
unless
	the
	District
	preferred 	to
	try
	to
	reach
	settlement
informally.
	The
	District
	indicated
	that
	it
	preferred
	to
	try
	to
settle
	the 	matter 	informally 	before
	a
	grievance
	was
	filed.
6.
	On
	June
	20,
	a
	meeting
	was
	held
	between
	the
	District
	and
ETA
	at
	which
	the
	District
	announced
	it
	would
	not
	continue 	the
premiums
	for
	July,
	August
	and
	September.
	ETA
	requested
	the
specific
	grievance
	form
	required	
by	
the
	contract
	and
	was
	told
the
	District
	had 	none
	but
	would
	accept 	the 	grievance
	on
	any
form.
7.
	On
	July
	15,
	ETA's
	further 	effort
	to 	achieve 	voluntary
settlement
	proved
	futile
	and
	a
	grievance
	was
	filed.
	The
District
	refused 	to 	accept 	the 	grievance 	because
	it
	was
	not
properly 	written.
	A
	revised 	grievance
	was
	then 	submitted.
lThe 	Board 	agent 	cited
	June	
20	
as 	the 	date 	of
	this
notification.
2

8.
	On
	July
	18,
	the
	District
	notified
	ETA
	that
	it
	was
denying
	the 	grievance
	as 	untimely
	and
	because, 	according
	to
	the
contract,
	the 	teachers
	were
	not
	employees
	of 	the
	District.
9.
	ETA
	checked
	with
	the 	insurance
	carrier
	and
	determined
that
	the
	District
	had
	paid
	full
	premiums
	for
	all
	teachers
except 	the
	three 	subjects
	of 	the 	charge.
DISCUSSION
A
	PERB
	Board
	agent
	investigated
	the 	charge,
	ultimately
dismissing
	it
	on
	the
	grounds
	that
	the
	District
	had 	a
	past
practice
	of 	discontinuing
	premiums
	for
	teachers
	who
	were
	not
returning
	for 	the 	following 	school
	year,
2
and
	that
	the
teachers
	had
	been
	notified
	of
	the
	premium
	discontinuance
	by
June
	20
	and 	had
	not
	filed
	a
	grievance
	by
	July
	15,
	the
	end
	of
the
	15-day
	filing
	period 	required
	by
	the
	contract.
Based
	on
	these 	alleged
	facts,
	the
	Board
	agent 	concluded
that
	the 	charge 	did 	not
	state
	a
	prirna
	facie 	violation
	of 	the
Educational
	Employment
	Relations
	Act
	(EERA)
• 3
Although 	the
	Board
	agent
	had 	found
	the 	foregoing
	sufficient
to 	warrant 	dismissal
	of 	the 	charge,
	she
	included 	in
	her
	notice
of 	dismissal 	other 	reasons 	to 	support 	her
	decision.
	She
	cited
Education
	Code
	section
	37200, 	which
	provides
	that
	the
	last
	day
q,he 	Board
	agent
	was
	informed 	of
	this 	alleged 	past
practice
	by
	the
	District
	during 	her 	investigation 	of 	the 	charge.
3codified 	at
	Government 	Code
	section
	3540,
	et
	seq.
3

of 	the 	school 	year 	is 	June 	30, 	and 	section 	44930, 	which
provides 	that 	the 	effective 	date 	of 	certificated 	employee
resignations 	shall 	be 	no 	later 	than 	the 	close 	of 	the 	school
year 	during 	which 	the 	resignation 	has 	been 	received 	by 	the
school 	board. 	She 	then 	decided 	that 	the 	teachers 	were 	not
employees 	during 	the 	months 	of 	July, 	August 	and 	September. 	She
also 	concluded 	that 	ETA's 	asserted 	unawareness 	of 	the
long-standing 	District 	practice 	of 	discontinuing 	premiums 	was
insufficient 	to 	establish 	an 	unlawful 	change 	of 	policy. 4
ETA 	contends 	that 	t·he 	three 	teachers 	were 	at 	all 	pertinent
times 	employees 	within 	the 	meaning 	of 	the 	contract 	as
demonstrated 	by 	the 	District's policy 	of 	continuing 	benefits
for 	retirees, 	that 	the 	contract 	provides 	that 	accrual 	of
benefit 	rights 	is 	based 	on 	the 	preceding 	year's 	service, 	and
that 	the 	contract 	provision 	defining 	"insurance 	year" 	controls
rather 	than 	the 	Education Code 	provisions 	cited 	by 	the 	Board
agent. 	Specifically, 	ETA 	argues 	that 	the 	District's 	past
practice 	was 	to 	extend 	coverage 	through 	September 	following 	the
end 	of 	the 	preceding 	school 	period 	and 	that 	the 	contract
memorialized 	that 	practice 	by 	providing 	that 	the 	District's
obligation 	was 	to 	pay
4ETA 	objects 	to 	the 	Board 	agent's 	failure 	to 	have 	the
parties 	confront 	each 	other 	with 	their 	versions 	of 	the 	facts,
and 	claims 	it 	was 	kept 	particularly 	in 	the 	dark 	concerning 	the
District's 	statements. 	It 	asserts 	that 	the 	Board 	agent 	could
not 	understand 	the 	difficult 	and 	unique 	factual 	situation
without 	such 	bilateral 	explanation.
4

a
	total
	contribution
	of
	$2898.30
	annually 	for 	the 	insurance
period
	of
	October
	1
	to
	September
	30
	of
	any
	year.
	(ETA's
emphasis.)
ETA
	further
	argues
	that
	teachers
	retiring
	in
	September 	have
performed
	the 	necessary 	annual
	service
	defined 	in 	the
	contract
on
	which
	the
	accrual
	of
	benefits
	is
	based,
	and
	that
	ending
	the
coverage 	year
	on
	September
	30 	was
	to
	permit 	the 	succeeding
annual
	policy
	to 	begin
	at
	a
	time
	when
	the
	identity
	of
	the
covered
	employees
	can
	be
	determined.
ETA's
	argument
	continues:
	if
	the
	District
	had
	a
	past
practice
	of
	discontinuing
	premiums
	as 	of
	June 	30,
	it
	was
	secret
and
	in
	violation
	of 	the
	contract.
	The
	statute
	of
	limitations
does 	not 	bar
	an
	action
	where
	the 	party
	has
	neither 	actual
	nor
constructive
	knowledge
	of
	the
	unfair
	practice,
	nor
	where
	the
unlawful
	practice 	is
	a
	continuing
	one. 	For
	the
	same
	reasons,
failure
	to
	protest 	past 	violations
	does 	not
	constitute
	a
waiver. 	Further,
	the 	grievance
	was
	not 	untimely.
	It
	was
	the
District's 	partial
	payment
	of
	July
	5,
	not 	the
	earlier 	threat
	to
discontinue
	full
	payment,
	that 	started
	the 	grievance
	filing
time,
	and
	the
	District
	influenced 	the 	timing 	of 	the
	filing
	by
not 	having 	the 	proper
	form
	available
	and 	by
	requesting
	that
	the
grievance
	be
	deferred
	pending
	efforts 	at
	informal
	resolution.
Finally, 	returning 	to 	the 	matter 	of 	the 	teachers' 	status,
ETA
	contends
	that
	they
	were
	certainly
	employees
	at
	the 	time 	the
grievance 	arose.
5

It
	is
	not 	necessary
	to 	evaluate
	each
	of
	ETA's
	arguments.
The
	single
	question
	before 	the
	Board
	is
	whether
	the
	charge
alleges 	facts
	which,
	if
	true, 	constitute
	evidence
	of
	a
violation
	of
	EER~
	section
	3543.S(c).
	San
	Juan
	Unified 	School
District
	(3/31/82)
	PERB
	Decision
	No.
	204.
Board
	Regulation
	3 26
20
( a) (4)
	authorizes
	Board
	agents
	to
investigate·
charges
	to
	determine
	if
	an
	unfair
	practice
	has
	been
committed.
	But
	when
	read
	in 	the
	context
	of
	the
	entire 	section,
and
	in 	conjunction
	with 	Regulation
	32640,
	it
	is
	clear 	that
	it
was
	not
	the 	Board's
	intention
	to
	empower
	agents
	to 	rule
	on
	the
ultimate 	merits
	of
	a
	charge.
5
Rather, 	the 	Regulations
	were
5
Board
	Regulations 	are
	codified
	at 	California
Administrative
	Code,
	title
	8,
	section
	31001
	et
	seq.
Regulation
	32620
	reads:
(a)
	When 	a
	charge
	is 	filed,
	it
	shall
	be
assigned 	to
	a
	Board
	agent 	for 	processing.
(b)
	The
	powers
	and
	duties
	of
	such 	Board
agent
	shall
	be
	to:
(1)
	Assist
	the 	charging
	party 	to
	state
in 	proper
	form
	the 	information 	required
by
	Section
	32615;
(2)
	Answer
	procedural 	questions 	of
each
	party 	regarding 	the 	processing 	of
the 	case;
(3)
	Facilitate
	communication 	and
	the
exchange 	of 	information
	between
	the
parties;
(4) 	Make
	inquiries
	and 	review 	the
charge
	and 	any 	accompanying
	materials
6

designed 	to 	permit
	a
	determination
	that
	the
	facts
	as
	alleged
	in
the
	charge
	state
	a
	legal
	cause 	of
	action
	and
	that
	the 	charging
party
	is
	capable 	of 	providing 	admissible
	evidence
	in 	support 	of
the
	allegations.
	Consequently,
	where
	the
	investigation
	results
in
	receipt
	of
	conflicting 	allegations
	of
	fact
	or
	contrary
theories
	of
	law,
	fair
	proceedings,
	if
	not
	due
	process,
	demand
that
	a
	complaint
	be
	issued
	and
	the 	matter
	be
	sent
	to
	formal
hearing.
to
	determine
	whether
	an
	unfair 	practice
	has
been, 	or
	is
	being,
	committed,
	and
	determine
whether
	the 	charge
	is
	subject
	to
	deferral
	to
arbitration,
	or
	to
	dismissal 	for 	lack 	of
timeliness.
(5)
	Dismiss
	the 	charge 	or
	any
	part
thereof
	as 	provided 	in 	Section
	32630
	if
it
	is
	determined
	that
	the
	charge 	or
	the
evidence
	is 	insufficient
	to
	establish
	a
prima
	facie 	case;
	or
	if
	it
	is
determined
	that
	a
	complaint
	may
	not
	be
issued 	in
	light
	of
	Government 	Code
sections
	3514.5, 	3541.5 	or 	3563.2 orbecause
	a
	dispute 	arising
	under
	HEERA
is	
subject 	to
	final
	and
	binding
arbitration.
(6)
	Issue
	a
	complaint 	pursuant 	to
Section
	32640.
(c) 	The
	respondent
	shall
	be
	apprised 	of 	the
allegations,
	and 	may
	state
	its
	position
	on
the 	charge 	during 	the 	course 	of 	the
inquiries.
Regulation
	32640
	reads:
(a) 	The 	Board
	agent
	shall 	issue
	a
	complaint
if
	the 	charge 	or 	the 	evidence
	is 	sufficientto 	establish
	a 	prima 	facie 	case
•.••
7

Here,
	the
	Board
	agent
	made 	no
	determination
	that
	ETA
	would
be
	unable
	to
	produce
	testimonial
	or
	documentary
	evidence
	in
support 	of
	its
	charge.
	Nor
	did
	she
	conclude
	that,
	even
	if
true,
	the
	facts
	did 	not
	describe
	an
	unfair
	practice.
	Rather,
she 	accepted 	Respondent's
	ex
	parte
	statements
	as
	to
	its
	claimed
past 	practice
	as
	conclusive,
	looked
	to
	the 	Education
	Code
	to
find
	in
	the.
parties'
	agreement
	a
	meaning
	quite
	different
	from
that
	asserted	
by	
ETA,
	and
	found
	fatal
	ETA's
	failure
	to
	grieve
within
	15
	days
	of 	the
	District's
	action.
violated
	EERA
	by
	unilaterally
	changing
	the
	contractual
obligation
	to 	continue
	premium
	payments
	through 	September.
Therefore, 	the
	six-month
	limitation
	on
	filing
	unfair
	practice
charges
	found
	in
	section
	3541.5
	is
	applicable
	in
	this
	case.
	As
for
	the 	other
	grounds
	for 	the
	dismissal,
	it
	is
	clear 	that
	the
Board
	agent
	ultimately
	decided 	the 	merits 	of 	the
	dispute 	as
	she
perceived
	them
	to
	be.
6
6The
	Board
	agent
	was
	uncertain
	whether
	the 	charge
	alleges
bad
	faith
	by
	the
	District
	in
	its
	responses 	to
	ETA's
	effort
	to
file
	a
	grievance, 	but
	found
	that
	the
	"late 	filing"
	made
	it
unnecessary 	to 	decide.
	We
	note
	that
	if
	the 	charge 	includes
this
	matter,
	it
	may
	be
	interpreted
	asan
	allegation 	that 	the
District
	violated 	the 	grievance 	procedure 	thereby 	denying
	the
employees 	and
	ETA
	their 	respective 	statutory 	rights.
	Questions
are 	then 	raised
	as 	to 	the
	applicability
	of 	the 	doctrine 	of
equitable 	tolling,
	the 	right
	of
	an 	employer
	to 	refuse 	to
receive
	a
	grievance
	which
	it
	considers 	to
	be
	"writtenimproperly,"
	and
	the 	possibility
	of
	a
	waiver 	of 	time
	limits	
by
the
	District's 	failure 	to
	have 	proper 	forms
	available
	and
	its
request 	that
	a
	formal
	filing
	be
	deferred 	in 	the 	interest 	of
informal 	discussion.
8

There 	remains
	the 	question
	of
	whether
	the 	charge
	is
sufficient
	to
	warrant
	the 	issuance 	of
	a
	complaint.
	We
	find
	it
to
	be
	so.
	The
	negotiated
	agreement
	requires
	the
	District
	to
pay
	up
	to
	S2898.30
	annually 	for 	the 	insurance
	period
	of
October
	1
	to
	September
	30
	of
	any
	year 	for
	each
	eligible
employee.
7
Eligible
	employees
	are 	defined
	as
	full-time
employees
	and
	those
	who
	serve
	less
	than
	full
	time, 	but
	half
time 	or
	more.
Article
	III
	of 	the
	contract 	defines
	the
	service
	year
	as
	180
aays
	1:or
	any 	school.
	year 	within 	the
	term 	of
	the 	contract.
	'The
charge
	alleges
	that
	the
	subject 	teachers
	each 	completed
180
	days
	of
	full-time 	service
	during 	the 	period 	of
September
	1982
	to
	June
	1983. 	These
	dates
	fall
	within 	the
7To
	interpret
	the
	words 	"up
	to
	$2898.30" 	as
	endowing
	the
District
	with 	the
	discretion
	to
	pay
	less
	than
	that
	amount
	for
full-time
	employees
	who
	have
	met
	the
	service
	requirements
	is
	to
give
	no
	thought
	to 	the 	context 	in
	which
	those
	words
	appear
	and
to 	place
	the
	judicial
	robe 	between
	oneself
	and 	commonplace
knowledge.
	The
	contract
	provides 	for 	pro-rated
	premium
benefits
	for
	part-timers,
	and
	requires
	those
	employees
	to
contribute
	percentages 	of 	the 	employer's
	contribution
	based
	on
the 	proportion 	of
	part-time 	service
	performed.
	Thus
	the
District's
	contribution
	would
	vary
	accordingly 	but 	never 	exceed
the
	$2898.30
	maximum.
	Further, 	in
	view
	of
	virtually 	universal
practice,
	one 	need
	not
	depend 	upon
	expert 	testimony 	to
recognize
	that
	employers'
	premium
	obligations 	are 	invariably
maximized
	at
	a
	stated 	figure 	for
	a
	given 	period 	of 	time. 	This
protects
	the
	employer 	from 	any
	obligation 	to
	assume
	unexpected
premium
	increases
	which 	might 	occur 	during
	that 	period.
	It
also
	accommodates
	the 	wishes 	of 	employees
	who
	opt 	for
	an
insurance
	program 	bearing
	premiums
	higher 	than 	those 	of 	the
program 	which 	served 	as 	the 	basis 	of 	the 	employer's 	willingness
to 	accept 	financial 	liability.
9

boundaries 	of
	the
	contract
	term.
	The
	contract 	further 	provides
that
	full-time
	employees
	who
	meet
	the
	service
	year 	requirements
"shall
	have
	the
	District's
	financial 	contribution
	paid
	in
	full."
Nowhere
	in 	the
	agreement
	is
	there
	an
	express
	provision
which
	limits
	the
	District's
	obligation
	toward
	an 	employee
	who
has
	met
	the
	service
	year 	requirements 	but
	who
	will
	not
	return
to 	the
	school
	for 	the 	following
	year.
	Nowhere
	in
	the
	agreement
is
	there
	a
	definition
	of
	"employee"
	which,
	on
	its
	face,
	limits
the
	District's
	premium
	obligation
	as
	to 	the
	employees
	here.
Whether
	the
	contract
	can
	be
	so
	interpreted,
	or
	whether
	other
evidence
	exists
	which
	would
	establish
	the
	District's
	right
	to
curtail
	its
	premium
	contributions,
	are 	matters
	of
	affirmative
defense
	which
	the
	District 	is 	clearly 	entitled
	to
	present
	and
which
	ETA
	is
	equally
	clearly 	entitled
	to 	attempt 	to
	refute.
But
	the 	place 	for
	either
	to
	be
	done
	is
	the 	hearing
	room.
We
	find
	that
	the 	charge
	alleges 	facts
	which,
	if
	true,
constitute
	prima
	facie
	evidence
	that
	the
	District
	unlawfully
altered
	a
	negotiated 	policy
	concerning 	insurance
	benefits 	for
	a
certain
	category 	of
	full-time 	teachers
	and,
	by
	that 	action,
violated
	its
	duty 	to 	negotiate 	in
	good
	faith
	as
	required
	by
section
	3543.S(c) 	of 	the
	EEPA. 8
8
see 	Grant
	Joint
	Union 	High 	School
	District
	(2/26/82)
PERB
	Decision
	No. 	196.
10

ORDER
Based
	on
	the 	record,
	the
	Public
	Employment
	Relations
	Board
ORDERS
	that
	the
	dismissal
	of
	the
	unfair
	practice
	charge
	filed
by	
the 	Eastside
	Teachers
	Association 	against
	the
	Eastside
	Union
School
	District 	is
	REVERSED
	and
	further
	ORDERS
	that
	the 	matter
be 	remanded
	to 	the
	General
	Counsel
	for 	issuance 	of
	a
	complaint
and
	appropriate
	further
	proceedings.
Member
	Tovar
	joined 	in
	this
	Decision.
Chairperson 	Hesse's
	dissent
	begins
	on
	page
	12.
11

Hesse, 	Chairperson, 	dissenting: 	The 	majority 	decision,
at 	footnote 	7, 	attempts 	to 	explain 	the 	contract 	language 	nup
to 	$2898.30 	annually!! 	as 	nothing 	more 	than 	a 	pro-rata 	option
for 	the 	employer 	when 	an 	employee 	works 	less 	than 	the 	full
school 	year. 	While 	interesting, 	this 	interpretation 	is 	nothing
more 	than 	just 	that 	--: 	an 	"interpretation' 1
by 	the 	majority
of what 	it 	believes 	the 	contract may 	have 	meant.
In 	truth, 	the 	plain meaning 	of 	the 	collective 	bargaining
agreement 	obligates 	the 	employer 	to 	pay 	premiums 	only 	for
.employees. 	As 	charging parties 	had xesigl.d,e£L, 	rJ:u:,y ,:we.re 	n-0
longer 	employees 	after 	June 	30, 	1983. 	Thus, 	the 	District
was 	under 	no 	obligation 	to 	pay 	premiums 	for 	these 	three 	teachers
after 	that 	date. 	Had 	the 	parties 	wanted 	to 	obligate 	the
employer 	to 	pay 	benefits 	beyond 	the 	date 	of 	employment, 	they
could 	have 	negotiated 	such 	language. 	As 	they 	did not, 	and
as 	I 	find 	no 	ambiguity 	in 	the 	contract 	that 	needs 	to 	be 	resolved
by 	a 	hearing, 	I 	respectfully 	dissent 	from my 	colleagues'
decision 	to 	issue 	a 	complaint 	on 	this 	charge 	of 	a 	unilateral
change 	in 	the 	terms 	and 	conditions 	of 	employment.
12

STATE 	OF 	CALIFORNIA
DECISION 	OF THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HEALDSBURG 	AREA 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
HEALDSBURG 	UNION 	HIGH 	SCHOOL 	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
______________________ )
Case 	No. 	SF-CE-869
PERB 	Decision 	No. 	467
December 	20, 	1984
Appearances: 	George 	A. 	Cassell 	for 	Healdsburg 	Area 	Teachers
Association, 	CTA/NEA; 	Robert 	J. 	Henry, 	Attorney 	for 	Healdsburg
Union 	High 	School 	District.
Before 	Jaeger, 	Morgenstern 	and 	Burt, 	Members.
DECISION
MORGENSTERN, 	Member: 	The 	Healdsburg 	Area 	Teachers
Association, 	CTA/NEA 	(Association 	or 	CTA), 	appeals 	the 	attached
dismissal 	issued 	by 	a 	regional 	attorney 	of 	the 	Public
Employment 	Relations 	Board 	(Board). 	In 	its 	unfair 	~ractice
charge, 	the 	Association 	alleged 	that 	the 	Healdsburg 	Union 	High
School 	District 	(District) 	violated 	section 	3543. 5 (a), 	(b), 	(c)
and 	(e) 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA) 1
by 	transferring 	the 	duties 	of 	the 	Chapter 	I 	coordinator 	from 	a
certificated 	to 	a 	classified 	employee.
lEERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code.

DISCUSSION
In
	reaching
	his
	conclusion
	that
	the
	charge
	was
	untimely,
2
the
	regional 	attorney
	found
	the
	allegations
	to 	reveal
	that,
	as
of
	June
	8, 	1983,
	the
	Association
	had 	been
	informed
	of
	the
District's
	intent
	to
	transfer
	the
	work
	to
	the
	classified
	unit
and
	had 	taken
	steps
	to
	implement
	that
	decision.
	In
	contrast,
	it
is
	the
	Association's 	position
	that
	the
	date
	of 	implementation
	of
transfer,
	September
	1,
	1983,
	is
	the
	date
	the
	District
	committed
the
	alleged 	unfair
	practice
	and,
	therefore,
	the 	charge
	is
timely.
We
	are
	in
	agreement 	with
	the
	regional
	attorney's
	conclusion
based
	on
	the 	following 	assessment 	of 	the
	facts.
	As
	early
	as
February
	23, 	1983,
	nearly
	one
	year 	before 	the 	charge
	was
	filed,
the
	District
	announced
	its
	intention
	to
	transfer
	the 	Chapter
	I
coordinator
	assignment
	and
	offered
	CTA
	the 	opportunity 	only
	to
negotiate
	the
	effects
	of
	that 	decision.
	The
	board's 	resolution
of
	March
	8th
	went
	forward 	with
	that
	course 	of 	action
	and
directed 	that
	the
	incumbent
	be
	released
	from
	the
	position
	as 	of
June
	30,
	1983. 	Subsequent 	conduct
	by
	the
	District
	did 	nothing
to
	dispel
	the 	notion
	that
	the 	decision 	to
	transfer
	was
	going
forward.
	During
	the 	June 	10,
	1983
	negotiating 	session, 	the
District's
	position
	remained
	that
	only 	the 	ramifications 	of 	the
decision
	were
	negotiable.
2EERA
	section
	3541.5 	precludes 	the 	issuance 	of
	a
complaint 	based
	on 	an
	alleged 	unfair 	practice 	occurring
	more
than
	six
	months
	prior 	to 	the
	filing 	of 	the 	charge.
2

In
	sum,
	the
	District
	indicated
	its
	intent
	to
	unilaterally
transfer
	the 	Chapter
	I
	coordinator
	duties
	by
	issuance
	of
	its
resolution
	of
	March
	8,
	1983,
	and
	clearly
	advised
	CTA
	of
	its
intention
	not 	to
	pursue
	the 	matter
	via
	a
	unit
	determination
proceeding
	at
	the 	bargaining
	session
	of
	June	
10,	
1983.
	The
events
	which
	followed
	do
	not 	suggest
	that
	the
	District
	was
reconsidering
	its
	decision.
	Therefore, 	the
	unilateral
	change
occurred
	on
	June
	30, 	1983,
	when
	the
	incumbent
	was
	relieved
	of
the
	Chapter
	I
	coordinator's 	duties.
	Since 	the
	unfair
	practice
charge
	was
	filed
	on
	January
	30, 	1984,
	the
	Board
	can
	only
	look
to
	those 	events
	which
	occurred
	after
	July
	30,
	1983.
	Within
that
	period,
	no
	unfair
	practice
	appears 	in 	the
	allegations.
In
	affirming
	the
	dismissal
	of 	the 	charge,
	we
	necessarily
reject
	the
	unit
	modification 	theory 	put
	forward
	by
	our
dissenting 	colleague.
	The
	artfully
	drafted
	opinion
	might
	well
have
	attracted 	additional 	supporters
	had
	it
	been 	based
	on
	the
facts
	as 	they
	exist
	in 	the
	instant
	case.
ORDER
Based
	on
	the 	foregoing, 	the 	unfair 	practice
	charge
	in
	Case
No. 	SF-CE-869
	is
	DISMISSED WITHOUT 	LEAVE
	TO
	AMEND.
Member
	Burt 	joined 	in
	this
	Decision.
	Member
	Jaeger's 	dissentbegins
	on
	page 	4.
3

Member
	Jaeger,
	dissenting:
	I
	would
	find
	that
	not 	only
	was
the 	charge 	in
	this
	case 	timely
	filed,
	but
	that
	it
	states
	a
prima
	facie
	violation
	of 	the
	Act
	and
	should 	proceed
	to
	a
hearing
	on
	the
	merits.
The
	majority 	finds
	that
	the
	unilateral
	change
	in
	this
	case
occurred
	on
	June 	30, 	1983,
	when
	the
	incumbent
	was 	removed
	from
the
	Title
	I
	Coordinator
	position.
	I
	find
	that
	the
	employer's
unlawful
	act
	may
	be
	dated
	from
	September
	1,
	1983,
	the
	first
	day
that
	the
	Distiict
	removed
	the
	classification
	of
	Title
	I
Coordinator
	from
	the
	certificated
	unit
	and
	effectively
	denied
the Association 	the
	right
	to
	represent 	the
	employee
	occupying
that 	position.
Since
	my
	view
	with
	respect 	to 	the
	timeliness
	of 	the 	charge
is
	dependent
	upon
	my
	reading 	of 	the
	facts
	alleged 	in 	the
charge,
	it
	is
	necessary 	to
	set
	forth
	a
	brief 	factual
	summary.
Factual
	Summary
On
	February
	23,
	1983,
	Assistant
	Superintendent
	Lawrence A.
Machi
	sent
	a
	letter
	to 	the Association 	negotiator,
	Mark
Giampaoli,
	stating 	that
	the
	District
	wanted
	to 	negotiate 	the
"transfer
	of
	service
	out 	of 	the 	bargaining
	unit
	of 	Chapter
	I
supervision
	••	
"
On 	March
	4, 	1983,
	the
	District
	and
	the Association
discussed 	the 	issue, 	but
	failed 	to 	reach 	agreement.
On 	March
	8, 	1983, 	the
	District's
	governing 	board 	passed
	a
4

formal
	resolution 	releasing
	Gordon
	Langford
	from
	his
	current
administrative 	position
	of
	Title
	I
	Coordinator.
1
On March 	22
	and,
	subsequently,
	on
April
	1,
	1983,
	the
parties
	negotiated
	about
	the
	issue
	but
	failed
	to
	reach
agreement.
During
	the
	April
	1
	negotiating 	session,
	the
	District
proposed 	that.
the
	"Chapter
	I
	Coordinator
	duties
	be
	assumed 	by
	a
management
	classified
	employee."
In 	these 	bargaining
	sessions,
	the
Association
	took
	the 	firm
posi
tLon
	that
	the
	Title
	I
	Coordinator
	classification
	be Longed
in 	the
	certificated
	unit.
On
	June 	8, 	1983,
	Association 	negotiator
	Mark
	Allen
	wrote
	a
letter
	to
	Assistant
	Superintendent
	Machi.
	That
	letter 	states,
in
	pertinent 	part:
It
	is
	my
	understanding
	that
	the
	issue
	of
Title
	I
	Coordinator
	has
	not
	been
	resolved.
As 	I
	recall,
	the
	District
	approached
	the
teachers' 	negotiating
	team
	with
	a
	proposal
for
	a
	unit 	modification
	removing
	the
	Title
	I
Coordinator
	from
	our
	representation. 	After
several 	negotiation 	sessions, 	neither 	sidecould
	come
	to
	an
	agreement 	as
	to
	where
	the
responsibilities
	of 	the 	Coordinator's
	job
lie,
	either
	in 	the 	administrative
	or
certificated
	domain. 	An
	agreement
	was
reached
	that
	the
	District
	would
	pursue
	this
matter 	through 	the
	legal 	channels
	by
petitioning
	PERB
	for
	a
	unit 	modification.In
	such 	an
	action
	both
	parties
	would 	be
	able
to 	present 	their
	cases 	before
	an
	impartial
body.
It
	has
	now 	come
	to
	my
	attention 	that 	at
	a
recent 	meeting 	Barbara McConnell, 	a
1
In 	the 	exhibits 	attached 	to 	the 	charge 	and 	in 	the 	charge
itself
	the Association
	and 	the 	District
	use 	"Title
	I
Coordinator" 	and 	"Chapter 	I 	Coordinator" 	interchangeably.
5

classified 	employee, 	was 	appointed 	to
replace 	Gordon 	Langford, 	a 	certificated
employee 	as 	the 	Title 	I 	Coordinator.
Because 	the 	District 	circumvented 	the
procedures 	required 	to 	make 	a 	unit
modification 	and 	took 	unilateral 	action 	on 	a
matter 	which 	had 	reached 	impasse 	at 	the
bargaining 	table, 	this 	act 	has 	to 	be 	viewed
as 	illegal .•..
On 	June 	10, 	1983, 	the 	parties 	again met 	to 	negotiate. 	The
District 	informed 	the Association 	that, 	contrary 	to 	its 	earlier
agreement, 	it 	was 	not 	required 	to 	petition 	PERB 	for 	a 	unit
modification 	because 	"the 	Board 	of 	Education 	had 	declared 	the
Title 	I 	Coordinator 	position 	a 	management 	position."
At 	a 	negotiating 	session 	which 	occurred 	on August 	12, 	the
District 	refused 	to 	reconsider 	its 	decision 	and 	informed 	the
Association 	that 	the 	matter 	was 	left 	in 	its 	hands" ... 	to
take 	whatever 	action 	is 	appropriate."
On 	September 	1, 	1983, 	Barbara McConnell, 	an 	employee 	not 	in
the 	certificated 	unit, 	filled 	the 	position 	of 	Title 	I
Coordinator.
On 	January 	30, 	the 	instant 	unfair 	practice 	charge 	was 	filed.
Discussion
There 	is 	a 	very 	significant 	issue 	presented 	by 	this 	charge·
which 	the 	majority 	decision.sees 	fit 	to 	ignore.
This 	Board 	has 	long 	held 	that, 	prior 	to 	making 	a
determination 	that 	it 	will 	transfer 	work 	out 	of 	the 	bargaining
unit, 	an 	employer 	must 	offer 	the 	exclusive 	representative
notice 	and 	an 	opportunity 	to 	negotiate. 	Rialto 	Unified 	School
6

District 	(4/30/82) 	PERB 	Decision 	No. 	209; 	Solano 	County
Community 	College 	District 	(6/30/82) 	PERB 	Decision 	No. 	219;
Alum 	Rock 	Union 	Elementary 	School 	District 	(6/27/83) 	PERB
Decision No. 	322; 	Goleta 	Union 	School 	District 	(8/1/84) 	PERB
Decision No. 	391.
However, 	the 	decision 	to 	transfer 	work 	or 	duties 	out 	of 	a
bargaining 	unit 	is 	to 	be 	distinguished 	from 	an 	attempt 	to
remove 	an 	entire 	classification 	or 	position 	from 	a 	bargaining
unit 	because 	management 	no 	longer 	feels 	the 	position 	is
appropri:1:rtely -placed 	tn the 	unit. 	Sut::h ~n 	at::tion 	constittft'~S
an 	attempt 	to 	alter 	the 	configuration 	of 	a 	bargaining 	unit.
The 	National 	Labor 	Relations 	Board 	(NLRB) 	and 	the 	federal
courts, 	in 	interpreting 	the 	National 	Labor 	Relations Act 	(29
U.S.C. 	151 	et 	seq.), 	have 	long 	held 	that 	the 	configuration 	of 	a
unit 	is 	a 	permissive 	subject 	of 	bargaining. 	That 	is, 	while 	the
parties 	may 	negotiate 	over 	a 	unit 	description, 	it 	is 	unlawful
for 	one 	party 	to 	insist 	to 	the 	point 	of 	impasse 	that 	the 	unit
configuration 	be 	modified. 	Morris, 	The 	Developing 	Labor 	Law,
2d 	ed., 	Chapter 	18; 	Shell Oil 	Co. 	(1972) 	194 	NLRB 	988;
Electrical 	Workers 	(Steinmetz 	Electrical 	Contractors Assn.,
Inc.) 	(1978) 	234 	NLRB 	633; 	Salt 	Valley 	Water 	Users' 	Assn.
(1973) 	204 	NLRB 	83 	[83 	LRRM 	1536) 	enf'd 	498 	F.2d 	394 	[86 	LRRM
2873]; 	Canterbury 	Gardens 	(1978) 	238 	NLRB 	864 	[99 	LRRM 	1279];
Preterm, 	Inc. 	(1979) 	240 	NLRB 	654; 	A-1 	Fire 	Protection, 	Inc.
( 19 8 0) 	25 0 	NLRB 	21 7.
7

I
	agree 	with
	the
	NLRB
	and
	the
	federal 	courts
	that
	the
configuration
	of
	a
	unit
	is
	not
	a
	mandatory
	subject
	of
bargaining.
	Even
	where
	the
	parties
	negotiate
	about
	the
	issue
through 	completion 	of
	the
	impasse
	procedure,
	it
	would
potentially
	undermine
	the 	Board's
	unit
	modification 	procedure
2
2PERB
	Regulation
	32781
	provides, 	in 	relevant
	part:
(b)
	A
	recognized 	or
	certified
	employee
organization,
	an
	employer, 	or 	both
	jointly
may
	file
	with 	the
	regional
	office
	a
	petition
for
	change
	in
	unit
	determination:
(1)
	To
	delete
	classifications
	or
positions
	no
	longer 	in
	existence
	or
which
	by
	virtue
	of 	changes
	in
circumstances 	are
	no
	longer
	appropriateto 	the
	established 	unit;
(2)
	To
	update
	classification
	titles
where
	the
	duties
	are
	not
	changed
sufficiently
	to
	cause
	deletion
	from
	the
established 	unit;
(3)
	To 	make
	technical
	changes
	to
clarify
	the
	unit 	description;
(4) 	To
	clarify
	the
	unit
	where
	the
creation
	of
	a 	new
	classification
	or
position
	has
	created
	a
	dispute
	as
	to
whether
	the
	new
	classification
	or
position 	is
	or
	is
	not 	included 	in 	the
existing 	unit.
(5) 	To
	delete 	classification(s)
	or
position(s)
	not
	subject 	to
	(1)
	above
which
	are 	not 	appropriate 	to 	the 	unit
because
	said 	classification(s)
	or
position(s) 	are
	management,
	supervisory
or
	confidential; 	provided
	that:
(A) 	The
	petition 	is 	filed 	jointly
by
	the 	employer 	and
	the 	recognized
8

if
	management 	were
	to
	unilaterally
	implement
	a
	change
	in
	a
	unit
description
	which
	conflicts
	with
	established
	Board
	precedent
delineating
	the
	statutory
	terms
	"managerial,"
	"supervisory,"
	or
"confidential"
	employee. 	See
	EEFA
	sections
	3540.
l(d),
	(g),
(rn);	
Lompoc
	Unified
	School
	District
	(3/17/77)
	EERB
	Decision
	No.
13; 	Campbell
	Union 	High
	School
	District
	(8/17/78)
	PERB
	Decision
No.
	66;
	Franklin-McKinley
	School
	District
	(10/26/79)
	PERB
or
	certified
	employee
	organization,
or
(B)
	There
	is
	not 	in
	effect
	a
	lawful
written
	agreement
	or
	memorandum
	of
understanding, 	or
(C)
	The
	petition 	is 	filed
	during
the
	"window
	period" 	of
	a
	lawful
written
	agreement 	or
	memorandum
	ofunderstanding 	as 	defined 	in 	these
regulations
	in 	Section
	33020
	for
EERA
	. 	• 	• 	•
(c)
	All 	affected
	recognized 	or
	certified
employee
	organizations
	may
	jointly
	file
	with
the 	regional
	office
	a
	petition
	to
	transfer
classifications
	or
	positions
	from 	one
represented 	established 	unit
	to 	another.
(d)
	A
	petition
	to
	add
	classifications
	or
positions 	to
	an
	established 	unit, 	transfer
classifications
	from 	one
	established 	unit 	to
another, 	consolidate
	two
	or
	more
	established
units
	or 	divide
	an
	existing 	unit 	into
	two
	or
more
	appropriate 	units 	shall
	be
	dismissed
	if
filed 	less
	than
	12 months
	following
certification
	of 	the
	results
	of
	a
representation 	election 	covering
	anyemployees 	proposed 	to
	be 	added 	or
	affected
by
	the
	petition
	to 	transfer, 	consolidate 	or
divide.
9

Decision 	No. 	108; 	Oakland 	Unified 	School 	District 	(11/25/81)
PERB 	Decision No. 	182.
In 	this 	case, 	the 	charge 	alleges 	that 	the 	position 	of 	Title
I 	Coordinator 	was 	previously 	held 	by 	members 	of 	the
certificated 	unit 	and 	that 	management 	undertook 	to 	remove 	the
classification 	from 	the 	bargaining 	unit. 	Indeed, 	there 	is 	even
an 	allegation that 	the 	District 	considered 	the 	position 	to 	be
"managerial." 	Thus, 	I 	would 	view 	the 	charge 	as 	properly
alleging 	that 	the 	District 	was 	attempting 	to 	modify 	the 	unit
d,escription. 3 While 	the Associati,on ,could, 	if 	it 	so 	desir-ed,
negotiate 	concerning 	the 	proposed 	change, 	it 	was 	not 	obligated
to 	do 	so 	and 	management 	could 	not 	insist 	that 	the 	parties
bargain 	to 	the 	point 	of 	impasse 	concerning 	the 	issue.
Having 	so 	found, 	I 	have 	no 	difficulty 	determining 	that 	the
charge 	was 	timely 	filed. 	Since 	the Association 	was 	not
required 	to 	negotiate 	with 	the 	District 	and 	the 	District 	could
3Article 	2.1 	of 	the 	parties 	1981-83 	collective 	bargaining
agreement 	provides 	that
[t]he 	Board 	recognizes 	the Association 	as
the 	exclusive 	representative 	of 	all
certificated 	employees 	of 	the
Board--excluding 	management, 	confidential,
and 	supervisory 	employees, 	adult 	education,
and 	substitute 	teachers 	as 	defined 	in 	the
Act, 	for 	the 	purpose 	of 	meeting 	and
negotiating.
Although 	the 	agreement 	was 	not 	attached 	to 	the 	charge, 	the
Board 	may 	nevertheless 	take 	administrative 	notice 	of 	its
existence.
·
10

not
	effectuate
	the
	change
	unilaterally
	without
	first
	seeking
	to
modify
	the
	unit
	through
	the
	unit
	modification 	procedure,
	I
would
	date 	the
	alleged
	violation
	as
	occurring
	when
	the
District,
	by
	filling
	the
	position
	on
	September
	l
	with
	a
noncertificated
	employee,
	denied 	the
	Association
	the
	right 	to
represent
	the
	employee
	occupying
	the
	Title
	I
	Coordinator
classification.
11

;,)i_;,::.:_Jt
':::'·i'.
•:.O'tt'-,~E~rr ;·,:,:LA'(,Ci'JS
80),;.;D
.S(,tj	
C f:_-.r
~:2(Q	
f'(:-s1ion~:1
	o-;fic~
1
:.-:7
	r·
1
::,t
.:,rrc--::t,
	1/~rh
	Fioor
S1
.::1	
~:1
cnci·5c--:
1 	Cc:iforr1ia	
94108
(~-;
5)	
5.57-
i
350
:"l,:.:r
~
:1	
5,	
1_
S8
'.1
P,.=i:7.0!1.
:C
..
	R·.:l'Pe~o
Califor~tR Teachers
Assn.
1705
~-turc.1-i
:son
Drive
P.
	0.
E-::-z
S21
2ur
En:7.:,:e,
CL
94010
Sc1:.-:ols L':c:pl
CourBel,aO Fis·.:.::l Dri ,,e,
	RO'.J:n
J.11-E
S2.;;.t2 fo-:G:'l., Cl\ 95401
.?.e: 	REFUSAL
'fO ISSUE OJ.MPIAINT
P.liD
DISHISSl\L
OF
r.J1.'-i?A!R
PR:1.C'TICE
t:?i.A...CZGE
;-I
,,-1l
1
Sscur9
Area
Teachers P..sscciatto:1, C'f,\/i·T&\
v.
	E~aldsb•..rc::;
Un.i.c:1
~:i.r.:;:·,
Schc0l
District,
	Charge
No.
	SF-CE-869
Dear
Parties:
Pur'.:.,uar:t:
to
Publi.c
Employment
Relations
Bo:1rcl 	(F2.?B)
	?.2:g•1latic:-1
s,:-/::;:5~0~7	
3~620
(5),	
a canplair1-:: Viill !18t
b€
	i_~~~]ucd
	.Ln
th~
~;./)\?:~--r~:2.C~~r2:~:.:cd	
--::s.~
a,7.d
	the
r-.-:'rdirv:J
charg2	
is
her,2ty
d5-s11.i::s2-:S.
b;~,cau:;2	
it	
faU::;
	:.:.c
c1lJ.e:;2	
i:2cts
s~Jf:Ei.ci,~:1-:.
.
tc)
state
a prima [aci.e ·viola.ti.on
cJE
	th·-~
E:ducati.:)('l2J_
E..!7tpJ_(;~_2r~t
R:::::12,t.!.ons
..,.	
'	
.....,.,....,.__
,-1.CT	
(c."'-'Ki\)
•..
, 	. 	. , 	. . 	' . 	- 	. .L 	The re2scr.1.n'J
wh
,.c:n
Lti7.
1J:::r
l1es	
bns
oec1.s1cn	
follo,13.
On
C,:nuruy
	30, 1984, 	the
Healc.bbur:9 Area Te::::::-,2rs Asso~i.2.ti.cn, CE-./t:E.J\
(P:sscx::i.~ticn)	
filec	
;i_n
unfair
ora.::tic<::
charqe
,::9a.i.r'.St
the
F.::al csb..:ra
LJ;1i,:-m
Hi.r;'l Schc:JJ.
District
	(District)
	alJ.eg:i.ng 'iiol::.t.ton of. I2RI\ S~•~t:ion
	JSL~3
.5,
smdivislons
	(1),
	(b), 	(c)	
and
	(e). 	Specifi.cally,
	chargir:9
p:::cty 2.ll,:s,::xJ
	t>?ac
the
District
t::-ansferred the-
duties of 	the Ti.tle
I 	coordi.i1at0::-, 	a b-ccUJ~thin:;
uni:-:
pcsition
1
	out of
	the
unit
prior
	to
bargai.ning st.:ch
cl:a.7.cJ:::
	to
	i;:r:9c:1Ss'.:
or~-gre-2ment.
To
state
a pdrn3.
f:acie
violation,
	ch;:irging
party
litust alle<_J2
a.n:'i
:.1Jdii;.:~::--::1.-;
e.3t-;i.;Jlist:	
th;.;..t	
tte
a.J.leg20	
u.n~2.ir
pr~.t-:tic,::
eith2r
o:curc;::J
oz-	
r._7,?L:J
,:Ji~h:.'.J
...
,·:-~~-:-~:
1
::
~,.1i-c.hi.:1
th~
	6-71"":Jntb
~e~·5.cd
	i.1m2dLa.::t2~J\'
~,rcsedi_;(r
	th~ fill~(:
o~	
:-~1-'?
i:i·::;_--,·--,~
~--:..~:~
PERE.
	EERA
section
3541.5; 	San
Dieguito
Union High School
District
	(2/25/82)
PERB
Decision
No. 	194.
On i:2br11ary 23, 1984,
	;:.\-ie
regional
	atto:-r:2~' -:'L.scu:;.3ed
·.,i.
th
c::.-:tr;i q 	p)r~.:y' s
2.tt::xn'3y
the deficiency of the
	abov.::-reEeren-::2-'.'i cba::-se.
	It
,,.;as
	_;:-.)i;.1::2<":
	n,.:::
to	
t.h:~
E'::fz.:'.l
..
2::e
	t8
G:)~12rn~"'.2:1t
Cc>:1~	
s2c:-".i0r:3	
3:-:
'~C	
rt	
~-~~c:~
are ccc1itis-j	
at
Ca}~ifor~Y~a ?.cl:nini.str,:d:i_v-2 ,:oJ,~,	
'1
1
i_t!~1~ ~)-

r.arron
E.	
Ranero
:Robert Henry
~•1::1rch
5,	
1984
P2ge 2
that
	chargir,g
party
has
failed to
sta.te
a pd.ma :Ea.cie
violation
of the
abov2-ci.
ted
EZRA
sections
because
the
ur1.£air practic<2
charqe
was
	filed
(January 30;
1984) , rr.ore
than
si
:<:
months
subsequent
	to the date
on \•1hich
ci1argi
ng
party
first
	learned
of the
violation.
	The
	unfair
practice
charge,
	on
5.ts
	fac,?,
	reveals
	that
	as
of
Jurie
8,
	1983
the Asscciation
had been informed
that	
tbe
Di.strict
	intended,	
ar..d
had
taken
steps to	
L-n?J.ernent
	its
decis,.t.011,	
to
tr~nsfer
	the ·auties of
Title
I
Coordinator
	frc-m Gordon
L::11;gfo:::-d
1 	a member
	of
the	
ce:ci:.i.ficata:1 un i..t,	
to
82.rbara M.:Conne
n,
	a
1T,::rnber
c::£
	Lie
r,;;la::;sif i.ed
i.mit.2	
Further,
	as
of
	that:
date, 	that
	the
District
h2d made
c:i.e1:1r
	its
intention
to
undertake
	t..."'lis
	traz1sfe:c
	uni.laterally,
	prior
	to
reaching
	ir.,;;x~sse
or.
agreement
with the
Asscciation,	
r1.i1d	
that
	it
1,;ould
not
	resort
	to
PE?.B'
s
	u:-ii.t
rno:Hfication_procedures as	
a
meal""'.S
of:	
rerwving	
the
position
fr.cm
tbe
u.1it.
(See 1
.nter
	alia,
	parag;:-af''..1s 9 ar·,1
lG, 	as well as
EYu1tibits 	"A' 1
2.na
	"C"
.)
The J>.sscciation,
	according
	to
th2
allegatiors 	in
Parc:gr2ph
19,
	threatene::1 on
JLme
10,
	1983
to
file
aI1
unfair prnctice
charg2
with
PSRB
	if
	the
Distdct
unilatc.,:-alJ.y impl2.rn2n::2d tb.2 ch2ng2. 	Yei:,	
the
A:;scciati.,:in
\vcti
ted
more
	than
seven
months
	before
filing
	SL'Ch
charge.
	AccorrJ 1.DgJ.y, th':': aJ.J.2<3ations
of
	the
charge are
d
is:nissed
a;::::l
	r.o ccmp1ai.
nt
wi 11
	iss
·.le.
PursU3r.t
to Public
Employment
Relati
1x1s
P...oc.rd
	reg
1
1la.tiori
sectior.
	32635
(California
Administrative
Ccx:le,
	title
8,
	part
	III),
	you may
appeal
	the
n:~fusal.
	to	
Lssu-= a
oomplaint 	(dismissal)
	to
th:: B-':lard	
itself.
2on
June
3,
	1983, M2.rk All,s;n,
	president
of the Association,
1.,Tote
toLarry
Mac.~i,
	representati-1e of the
District
	(see
Exhibit
G,
	attached
	tocharge), 	stating:
It
has
	new
co:11e
to
my
attention that
	at
a
	recentmeeting
Bm-oara Mc'.:on;;ell, 	a
classifi8'1 crrtJloy~,
was
	c:pr:oL-it:-:=d
	to
	repl
3.ce Gorc1en La.ngf:ircl, 	a
certificated
employee, 	as
Title
I 	Coordinator.
B;:;cause	
the
district
ci_rcu.rn?ente,'.l
	the
p:-:o::edure~~
required 	to
ma'.(e
2	
unit
ir:d.l
i.EJ.
cc1tic:1
am
	tcoi<
unilateral action in
a
matter
w'nic:1 had
	[sic]
reach(3<°3	
.irn9as:;e	
at th2 bargaining 	tabl~, 	tb
is
	c1ct
has
	to
be vi,2-wea as 	HJ
c-g:::tl.

P....::;b2rt
Henry
1'-1arch	
S,	
1984
Pag2	
3
Right
	to
.u.~al
Ycu may
obtain
a
	revie.'r
of
	this
dismissal of the
charge
by
f
	ling
a.n
ap?eal to
th-=
Board
	.i.tself
,dthin
twenty
	(20)
	calencb.r days afte::r
	serv
ce
of t'li.s
17:::i!:ice
(section
32535
(a))
.
	To
62
	timely
filed,
	th2
original
3.nd
	f
iv2
	(5)
	oopi
es
	of
such
as;eal
must
b-=
actu;:11ly
recei?ed
by
	the
Board
	itsel_f
	b2f:ore
	th2
clos<::
o:
business
	(5:00-
p.m.)
	on M3.rch
	26, 1984,
	er se:.t
	b?
t2lesr2r,h	
o:: c;;:;;rtiFtcd
Unit'ecl
St2.tes
mail
posl-.rnarked
not
later
	than
I-L=.1rct	
26,
	19c"l:1
	(se-:::~.icn
	32l35).
The Board 1 s
	address
	is: 
Public
Employment R2lati.o.--,s
30::1:cd
1031
18th
St.::-22t
Sacramento,
CA
	95314
If
	you
	file
a
	timely
appeal
of
	the refusal. to issu2
a corr19lc1int, ar1y
oi:her
party
may
	file
with
	the
Boar.3 an o:rigi.na.l and Eiv2 	(5) 	m;;:ii.F::s
oE
:::i.
st:1.<:s"7\c:-;t
in
O?';,cs i
tion
within	
b•ienty	
(20)
	ca1cncb.r
c:li:::ys
fc
i_l0:1.i.ng
	th~
elate
of
::;;::i:vi ce
of
	the
appeal
	(section
32635 (b)) .
All
aocurnents
2.11thoriz,"?::1	
to
br::
filed
	herein
must :lJ.so b0 "s2:-ved"
	t...'i?On
2.n.
pa.rties 	to
th-? prccei=:dinq, 	ar<l a
	"prcof of service
11
m..rst:
	acccrn.pany
	the
CXL'!ffient
filed
with the
Board
	itself
	(see s2ctioi1. 32140	
fnt	
'i:he reO"Jired
contents
	ard
	a sample form) . 	The document
will
	bG
co,~U:.::e4. _pro;_:erly
"served"
	\,ten
personally delivered or
d2fX)sit2d
	in	
tl"'.2	
f.icst-class mail
postage
paid	
an:!
properly
addressed.
Extension of
Time
A
request for
	an
extension of
	tirr'.e
	in
which
	to
	file
	a
dcc1_n,,ent
with tl:e
3e;;=.::j
itself
must be
in
writing
aril
filed
witl1
	the
Bo:J.rd
,:it the
p,:-eviously	
nots,:J
addre:ss. 	A
re·:_[t..;.est
	for an ext'2nsion m':ist
	LI':::
fil.s:1
	::'ct:	
123.:::;t
	l-.hr:.::e	
(3) 	c:\J2r,~:::::-
davs b::for2 the exoi.rntion
of
	t-:he	
ti:"e
	tec:ui'..",,'d 	fo".'	
fi
7
·i
r7
	th:: 	"
---.--..+
	'r'1e
request
must
indicate
good cause
for
	and,
	if
known,
	the posit:
	- :<
party regarding the extension,
	and
shall
be accompanied by proo1-
.._,~
	_ 	:
c:.
tl1e req..:est upon each
party 	(section
	32132).

Ramn
E.	
Rana:ro
Pober.:t
Heary
!1arch	
5,
	1984
Page	
4
Fi
nal
Date
If
no appeal_
is
f-iled
within the specified
	time
limits,
	the
dismissa}
	will
beccr;\e
	fi.nal
when t he
time
limits
have C}.;?ir.s<l.
DBfNIS M.
SULLIV?'-,r:-1
General
Ccunsel
By
PETER HABE
R?"'r.L):)
Regional Attorney
cc
: 	General Counsel