Pasadena Unified School District (Petrone) (PERB 0016E)

STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
CHARLES PETRONE,
Charging Party
,
a n d
PASADENA FEDERATION OF TEACHERS,
AFT, LOCAL 1050, AFL-CIO,
Charging Party
and
PASADENA UNIFIED SCHOOL DISTRICT,
Respondent
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)
Case Nos. LA-CE-45
LA-CE-46
EERB Decision No. 16
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)
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Appearances: Charles Petrone representing himself; Saul Glickman for the
Pasadena Federation of Teachers, AFT, Local 1050, AFL-CIO.
Before: Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
The charging parties appeal from the dismissal of two unfair practice
charges by the General Counsel.
On November 30, 1976, identical unfair practice charges were filed by
an individual employee, Charles Petrone, and by the Pasadena Federation of
Teachers, AFT, Local 1050, AFL-CIO, against the Pasadena Unified School
District (District). The General Counsel dismissed each charge on the same
grounds. The parties filed identical appeals. Since the two charges are
based on the same facts and procedural history, the Board consolidates them
for the purpose of this appeal. For the purpose of ruling on this appeal
of the dismissals, we assume that the essential facts alleged in the charge
are true.
San Juan Federation of Teachers, EERB Decision No. 12, March 10,
1977, at page 4.
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The charges against the District allege the violation of Government Code
Section 3543.5(a) and (b)2 in that the District refuses to remove certain
letters from the personnel files of some teachers employed by the District.
The charges state that on June 4, 1974, Petrone and certain other District
teachers took unpaid personal necessity leave for the purpose of attending a
morning meeting of the District's governing board. The school board was meet-
ing to consider the adoption of a policy concerning the effect a concerted
work stoppage by certificated District employees would have on contractual
relations between the District and such employees. Subsequent to the meeting,
the school board caused the Superintendent to send two letters, dated
November 18, 1974, to each of the teachers who had attended the meeting. Each
letter indicated it was being sent at the direction of the school board. The
District placed copies of the letters in the teachers' personnel files.
The first letter stated that the teacher was absent from work on June 4,
1974 "when a concerted work-stoppage was being conducted by various employees
of the School District;" that the work stoppage was "both unprofessional con-
duct and a violation of District policies and State Law," that a copy of the
letter would be placed in the teacher's personnel file unless the teacher sub-
mitted a valid explanation for the absence other than participation in the
work stoppage; and finally, that "any repeat of this type of action will
constitute persistent violations...and may subject you to dismissal..."
The second letter notified the teacher that "the unprofessional nature of
•[his] conduct in the performance of [his] teaching assignments and duties has
been of concern to the District" because the teacher participated in an illegal
work stoppage and "without authorization or excuse, withheld [his] services
from the pupils and citizens of the...District in violation of [his] con-
tractual obligations to provide such services." The letter warned that "any
2Gov. Code Sec. 3543.5(a) and (b) provides:
It shall be unlawful for a public school employer to:
(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.
(b) Deny to employee organizations rights guaranteed to
them by this chapter.
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repetition" of the "unprofessional conduct can only be viewed with the
utmost concern by the District."
The letters still remain in the personnel files of the teachers who
were absent on June 4, 1975. The charging parties allege that;
The charges contained in these letters are not true...
they were made as a reprisal for the concerted opposition
by the teachers to the Board policy, and as an attempt to
frighten District employees into remaining silent on such
issues, in the future. The presence of these letters in
the personnel files of the teachers imposes a continuing
threat of dismissal and represents a continuing injury
to the teachers...these letters should be removed from
the files.
The General Counsel dismissed the charges with leave to amend. The dismissal
was on the ground that "the facts alleged fail to constitute an unfair practice
charge...because the actions occurred prior to the effective date of the appro-
priate sections of the Educational Employment Relations Act."
On appeal, however, the charging parties elaborate on the theory that the
District is engaging in a continuing violation of Section 3543.5(a) and (b)
by failing to remove the letters from the personnel files:
The charging parties concede/ that some of the actions
giving rise to the present dispute occurred before the
Educational Employment Relations Act...was_a reality.
However, they do not base_/their charges^/ on those
actions. The gravamen of the complaint is that present
conditions brought about by some of those actions constitute
a present and continuing interference with the teachers
rights under the EERA.
The presence of the letters in the personnel files at
this time, reasonably leads the teachers to fear dismissal
should they exercise rights guaranteed to them by
Section 3543.
The Board agrees that the charges were correctly dismissed on the basis that
all alleged unlawful conduct of the respondent occurred prior to April 1, 1976,
3
the effective date of Section 3543.5, and therefore that conduct cannot form
the basis of an unfair practice charge. See U.S. Postal- Service, 200 NLRB 413,
3While Sec. 3549.3 originally provided an effective date of July 1, 1976,
Senate Bill No. 1471, Chapter 421 of the Statutes of 1976, amended Sec. 3549.3
to retroactively change the effective date to April 1, 1976.
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81 LRRM 1533 (1972), wherein the National Labor Relations Board (NLRB) dismissed
a complaint because the alleged unlawful conduct occurred prior to the date the
NLRB assumed jurisdiction over Postal Service employees under the Postal
Reorganization Act.
The Board does not find a current continuing violation of Section 3543.5
based upon the District's failure to remove the letters from the personnel
files after April 1, 1976. 	All alleged unlawful conduct of the respondent
occurred in 1974. 	A claim based thereon cannot continue without end. 	See
NLRB v, Pennwoven, 194 F.2d 521,29 LRRM 2307 (3d Cir. 1952), involving the
unlawful discharge of employees. 	In that case, a violation was held to occur
only at the time of the discharge and not to continue thereafter during the
employee's term of unemployment or at the time of the employee's request for
reinstatement.
Having found no violation of Section 3543.5, 	the Board hereby sustains
the General Counsel's dismissal of the charges.
ORDER
The General Counsels dismissal of the unfair practice charges filed by Charles
Petrone and the Pasadena Federation of Teachers, AFT, Local 1050, AFL-CIO,
against the Pasadena Unified School District is sustained.
By:/Raymond j / G o n z a l e s , 	Member 	Reginald Alleyne, 	Chairman
^ y 	»
Jer^ou H. Cossack, Member
Dated: 	May 12, 1977
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