Peralta Community College District (PERB 1281E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DAVID NAGLE, 	JAMES 	RICKMAN AND
TIMOTHY 	LEE,
Charging Parties,
v.
PERALTA COMMUNITY COLLEGE DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1929
PERB Decision No. 	1281
August 27, 	1998
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Appearances: 	David Nagle on behalf of David Nagle, 	James Rickman
and Timothy Lee; 	Crosby, 	Heafey, 	Roach & May by Boyd E. 	Burnison,
Attorney, 	for 	Peralta Community College District.
Before Johnson, 	Amador and Jackson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal by David Nagle 	(Nagle), 	James
Rickman 	(Rickman) 	and Timothy Lee 	(Lee) 	(Charging Parties) 	to a
Board agent's 	dismissal 	of 	their unfair practice 	charge. 	Nagle
filed 	the 	unfair practice 	charge alleging 	that 	the 	Peralta
Community College 	District 	(District) 	retaliated against 	the
Charging 	Parties 	because 	of 	protected activity 	related 	to 	the
District's 	decision 	to 	contract 	out 	its 	safety and police
services. 	This 	conduct was 	alleged to violate 	section 	3543.5(a)
of 	the 	Educational 	Employment 	Relations Act 	(EERA).1 After
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:

investigation, 	the 	Board agent 	dismissed the 	charge 	for
Untimeliness.
(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.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the 	Board agent's 	warning
and dismissal 	letters, 	Nagle's appeal, 	and the District's
response. 	The Board reverses 	the Board agent's 	dismissal 	and
remands 	the unfair practice 	charge 	to 	the 	Board agent 	for 	further
proceedings 	consistent with 	this 	Decision.
BACKGROUND
As 	of January 1996, 	Charging Parties were employed in the
District's 	Safety and Police 	Services Department 	(Department).
They 	were 	exclusively 	represented by 	Service 	Employees
International Union, 	Local 	790 	(SEIU). 	On or about January 31,
1996, 	the District 	announced its 	intention to eliminate 	the
Department 	and 	to 	contract 	out 	its 	functions 	to 	the Alameda
County Sheriff's Department. 	At a February 13, 	1996, 	District
Board of Trustees 	(Trustees) 	meeting, 	Charging Parties 	spoke to
the Board, 	opposing 	the 	recommendation to 	contract 	out 	the work
of 	the Department.
Ultimately, 	the District negotiated an agreement with the
Sheriff's Department 	to perform the Department's work. 	District
N	
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employees 	could apply 	for 	those 	positions 	providing 	they met
certain conditions. 	On or about May 29, 	1996, 	the District
provided SEIU with 	formal 	notice 	of 	its 	intent 	to 	contract 	out
safety and police 	services 	to 	the 	Sheriff's Department. 	Over the
next 	few months, 	SEIU and the District 	engaged 	in bargaining 	over
the 	effects 	of 	this 	decision. 	Some Department 	employees would
obtain positions with the 	Sheriff's Department, 	and others would
be 	offered positions 	represented by another union, 	the 	Stationary
Engineers, 	Local 39 	(Local 39).
On or about August 	7, 	1996, 	Nagle and Lee addressed the
Trustees 	and asked 	that 	the 	decision 	to 	contract 	out be
reconsidered. 	On or about August 	11, 	1996, 	the Department was
eliminated and 	employees 	who 	accepted positions 	with 	the
Sheriff's 	Department 	ceased 	to be District 	employees 	on 	that 	day.
On or about August 	12, 	1996, 	Vice Chancellor Hilliard 	(Hilliard)
met 	with 	the 	safety officers 	who planned 	to 	remain with 	the
District. 	He 	described 	the positions 	available 	and 	stated 	that
if 	any employee 	did not 	accept 	a position offered, 	disciplinary
action, 	up to and including termination, 	would follow.
On or about August 	16, 	1996, 	Nagle telephoned Hilliard's
office and learned that he was 	to report 	on Monday, 	August 	19, 	as
a 	custodian.2
On or about August 27, 	1996, 	Hilliard met with the Charging
Parties 	and asked 	if 	they had 	received 	their assignment 	letters.
2That 	same day, 	Rickman was 	informed that 	he 	should report
to 	food service, 	and Lee was 	informed that he 	should report 	as 	a
custodian.
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When 	they said no, 	Hilliard asked his 	secretary to provide 	copies
of 	the letters, 	which were dated August 26. 	When the Charging
Parties 	expressed dissatisfaction3 with 	their assignments,
Hilliard 	informed 	them that 	the 	assignments 	were 	not 	negotiable,
and 	if 	Charging 	Parties 	chose 	not 	to 	report 	to 	their new
assignments 	they would be 	terminated. 	Later that 	day, 	Rickman
presented Hilliard with a 	copy 	of 	a 	Level 	I 	grievance 	covering
these events.
On or about August 28, 	199 6, 	Rickman met with Laney
Community College 	President 	Earnest 	Crutchfield 	(Crutchfield),
requesting 	assistance 	in getting 	a better assignment.
Crutchfield 	agreed 	to 	consider his 	request 	and promised 	to
respond by September 	5, 	but 	he 	ordered Rickman to 	report 	for work
as 	assigned 	in 	the meantime.
On or about August 29, 	199 6, 	Rickman received a letter dated
August 	28 	from Hilliard, 	accusing Rickman of 	not 	reporting 	to his
new assignment. 	The 	letter 	threatened 	that 	Rickman would be
subject 	to disciplinary action 	if 	he did not 	comply. 	The 	same
day, 	Nagle 	received a 	letter 	from Hilliard, 	informing him that
the 	custodian position he 	had been assigned 	on August 	16 	was
"only 	temporary" 	and he 	could not be held 	in that position more
than 90 	days without his permission.
3Lee, 	for example, 	told Hilliard that he had a bachelor's
degree 	in business administration, 	and he was 	sure other
positions 	existed within 	SEIU's 	unit 	which he 	could perform
besides 	the 	custodian duties.
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On or about September 6, 	1996, 	the Charging Parties 	learned
that 	other 	safety employees 	were 	assigned 	to 	(allegedly)
preferable positions.
In a dismissal 	letter dated May 	19, 	1998, 	a PERB Board agent
dismissed the 	charge 	for Untimeliness. 	He 	found that 	Charging
Parties 	knew or 	should have known 	on August 	16 	that 	an alleged
unfair practice 	had 	occurred.
Nagle 	filed an appeal, 	arguing 	that 	the dismissal 	was
improper because 	it 	was 	based on 	"unsubstantiated 	remarks." 	He
argues 	that 	the 	statute 	of 	limitations 	did not begin to 	run on
August 	16, 	and notes 	that Hilliard's August 28 	letter stated that
the Local 	39 	assignments were 	temporary. 	Although Nagle
acknowledges 	that August 	16 	was 	the date 	on which Hilliard
directed 	Charging 	Parties 	to 	report 	for 	the 	allegedly undesirable
positions, 	he asserts 	that 	it was not until 	September 6 	that
Charging 	Parties 	learned 	that 	Hilliard 	had 	assigned 	other
employees 	to better positions.
The 	District 	responds 	by 	supporting 	the 	dismissal.
DISCUSSION
The 	six-month statute 	of 	limitations 	commences 	to 	run when
the 	charging parties 	knew or 	should have 	known 	of 	the 	conduct
giving rise 	to 	the 	alleged unfair practice. 	(Regents 	of 	the
University of California 	(1983) 	PERB Decision No. 	359-H.) 	The
charging party must 	file 	a 	charge when 	it 	has actual 	or
constructive notice 	of a 	clear 	intent 	to 	implement 	the action
which constitutes 	the basis 	for the unfair practice, 	provided
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that 	nothing subsequent 	to 	that 	date 	evinces 	a wavering of 	that
intent. 	The 	charging party may not 	wait 	until 	actual
implementation occurs. 	(Regents 	of 	the University of 	California
(1990) 	PERB Decision No. 	826-H.)
The unfair practice 	charge was 	filed on February 21, 	1997;
thus, 	the 	charge 	is 	not 	timely if 	charging parties knew or should
have known of 	the alleged unfair practice before August 	21, 	1996.
The 	issue 	on appeal 	is 	the date 	on which, 	according to 	the
charge, 	the alleged unfair practice 	(retaliation) 	occurred. 	The
Board agent 	found that 	as 	of August 	16 	there was 	sufficient
evidence 	of 	alleged 	retaliatory motive 	to put 	Charging 	Parties 	on
notice 	and 	start 	the 	clock 	running.
We disagree because, 	according to the charge, 	on August 	16
the 	Charging 	Parties 	knew 	only 	that 	they had been 	assigned 	to
positions 	they 	considered undesirable.4 Charging parties 	assert
that 	it was 	not until 	September 	6 	that 	they learned that 	other
employees 	allegedly received preferable assignments. 	It 	is 	this
alleged disparate 	treatment5 which 	forms 	the basis 	of 	the 	charge,
4We 	also note 	that 	Nagle 	received a 	letter 	from Hilliard
stating on August 	29 	stating 	that 	his 	assignment was 	only
"temporary." 	Hence, 	at 	that moment, 	Nagle could have reasonably
believed 	that 	his 	assignment 	had not 	been 	finalized.
5The 	Board has 	long held 	that 	circumstantial 	evidence 	of
unlawful 	intent may be 	found in evidence of: 	(1) 	timing of 	the
adverse 	action 	(North Sacramento School 	District 	(1982) 	PERB
Decision No. 264); 	(2) 	inadequate, 	inconsistent, shifting
justification 	for 	the 	adverse 	action 	(Novato Unified School
District 	(1982) 	PERB Decision No. 	210); 	(3) 	disparate treatment
of 	the 	employee 	(State 	of 	California 	(Department 	of
Transportation) 	(1984) 	PERB Decision No. 459-S); 	(4) 	departure
from standard procedures 	(Santa 	Clara 	Unified 	School 	District
(1979) 	PERB Decision No. 	104); 	(5) 	cursory investigation 	(State
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and 	the 	relevant 	date 	is 	the 	date 	on which 	charging parties
learned of 	that 	treatment, 	September 6. 	That date 	falls within
the 	statutory period.
of 	California 	(Department 	of 	Parks and Recreation) 	(1983) 	PERB
Decision No. 	328-S); 	and 	(6) 	pattern of antagonism toward the
union 	(Cupertino Union Elementary School District 	(19 86) 	PERB
Decision No. 572).
Accordingly, 	we 	find 	that 	the unfair practice 	charge 	is
timely 	filed and we 	remand 	it 	to 	the 	Board agent 	for 	further
proceedings 	to determine whether Charging 	Parties 	have 	stated a
prima 	facie 	case 	of 	a violation.
ORDER
The 	Board hereby REMANDS 	Case No. 	SF-CE-1929 	to 	the Board
agent 	for 	further proceedings 	in accordance 	with 	the 	foregoing
discussion.
Members Amador and Jackson 	joined 	in 	this 	Decision.
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