Los Angeles Unified School District (PERB 0448E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOSEPH G. BULLER,
Charging Party, Case No. LA-CE-1937

Vv. PERB Decision No. 448

LOS ANGELES UNIFIED SCHOOL DISTRICT, December 3, 1984

Respondent.

Newt eet Net Neel Net? Nee Nee Net See! “ne

Appearance: Joseph G. Buller on his own behalf.
Before Hesse, Chairperson; Jaeger and Morgenstern, Members. *
DECISION

This case is before the Public Employment Relations Board
on an appeal by Joseph G. Buller of the regional attorney's
partial dismissal, attached hereto, of his charge alleging that
the Los Angeles Unified School District violated sections 3543
and 3545 of the Educational Employment Relations Act
(Government Code section 3540 et seq.).

We have reviewed the regional attorney's dismissal in light
of the Charging Party's appeal and the entire record in this
matter. Since the unfair practice complaint that has already
issued in this case fully encompasses those portions of the
charge which state a prima facie violation of the Act, we
affirm the regional attorney's partial dismissal of the charge.

ORDER
The unfair practice charge in Case No. LA-CE-1937 is

DISMISSED WITHOUT LEAVE TO AMEND.
By the BOARD

*Members Tovar and Burt did not participate in this Decision.

STATE OF CALIFORNIA 	GEORGE DEUXMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
LOS ANGELES, CALIFORNIA 90010
(213) 736-3127
May 16, 1984
Joseph G. Buller
Re: 	Joseph G. Buller v. Los Angeles Unified School District,
LA-CE-1937, PARTIAL DISMISSAL of Unfair Practice Charge
Dear Mr. Buller:
The charge filed in the above-referenced case has been
investigated. The charge alleges, in part, that the District
violated the Educational Employment Relations Act (EERA or Act)
by issuing a Notice of Unsatisfactory Conduct to you and
transferring you because of your organizational activity. 	The
General Counsel has determined that this aspect of the charge
reflects a prima facie case of discrimination violative of
Government Code section 3543.5(a) , and a complaint containing
such an allegation is being issued simultaneously with the
issue of this letter.
The charge, however, also can arguably be read to allege that
the District violated the EERA through conduct other than that
alleged in the complaint. In particular, the charge arguably
can be read to allege that the District independently violated
the FERA by (1) "ahus[ing]" other employees in the bargaining
unit (paragraph 7 of the charge) and denying your
constitutional rights (paragraph 3 of the charge) ;
(2) violating the collective bargaining agreement in specified
respects beyond issuing a Notice of Unsatisfactory Service and
transferring you; and (3) failing, despite your request, to
process promptly the grievance filed on your behalf by UTLA
(paragraph 8 of the charge) . Any such allegations, however,
must be dismissed.
1. 	The charge alleges that the District has "abused" other
bargaining unit members (paragraph 7 of the charge) and
violated your constitutional rights. These allegations appear
to assert, in essence, further discriminatory conduct by the
District.
The EERA does not extend an omnibus remedy against all acts of
perceived unfairness or discrimination against public school
employees; rather, PERB's jurisdiction in this area is limited
to resolving claims of unfair practices which violate the Act.

Joseph G. Bullei
May 16, 1984
Page 2
To state a prima facie case of discrimination violative of EERA
section 3543.5(a), the charge must clearly and concisely state
facts showing (1) the adverse action (s) taken against
employees, (2) the employees' exercise of rights, and (3) an
adequate "nexus, " or connection, between the exercise of rights
and the employer's action. Novato Unified School District
(4/30/82) PERB Decision No. 210; Carlsbad Unified School
District (4/30/79) PERB Decision No. 89; Board Rule 32615
(a) (5) .
The charge does not allege facts establishing these elements in
respect to alleged abuse of bargaining unit members apart from
yourself, nor did the investigation reveal any evidentiary
support for such an allegation. In addition, in our telephone
conversation of May 8, 1984, you informed me that you did not
wish or intend the instant proceeding to encompass allegations
that the District's conduct toward other employees constitutes
independent violations of the EERA. For these reasons, this
aspect of the charge must be dismissed. 1
2. 	The charge also can be read to allege that certain District
conduct violated the collective bargaining agreement, and
thereby independently violated the EERA. Within this category
are allegations that the District violated contractual
provisions requiring the District to act "reasonably" (charge,
paragraph 1) , to apply progressive discipline (charge,
paragraph 4) and to give advance notice and counseling
regarding transfers (charge, paragraph 5) .
PERB does not have jurisdiction, however, to resolve alleged
violations of collective bargaining agreements in all
circumstances. Rather, PERB can only adjudicate conduct
alleged to violate a collective bargaining agreement if such
conduct also constitutes an unfair practice under the EERA,
section 3543.5.
To state a prima facie of unlawful unilateral change, the
charge must allege, and the investigation must reveal, that the
employer unilaterally altered the status quo embodied in a
negotiable past practice or policy without giving the exclusive
representative notice and an opportunity to request bargaining
The apparent allegations of denial of your
constitutional rights by the District also do not state
independent violations of the Act. 	This is so because the
Board does not have jurisdiction to resolve such constitutional
claims.

Joseph G. Buller
May 16, 1984
Page 3
over the proposed change. Pajaro Valley Unified School
District (5/22/78) PERB Decision No. 51.
The provisions of the collective bargaining agreement may
prescribe the "status quo" against which alleged "changes" are
measured. 	(Grant Unified School District, PERB Decision
No. 196; Pajaro, supra; Davis Unified School District, PERB
Decision No. 116. But not every violation of a collective
bargaining agreement constitutes a proscribed policy change.
A change of policy has, by definition, a
generalized- effect or continuing impact upon
the terms and conditions of employment of
bargaining unit members. On the other hand,
when an employer unilaterally breaches an
agreement without instituting a new policy
of general application or continuing effect,
its conduct, though remediable through the
courts or arbitration, does not violate the
Act. (Grant Unified School District, PERB
Decision No. 196, at page 9.)
In the instant case, it has not been established that any of
the purported contract violations amounted to a "change."
First, as to the District's purported refusal to abide by
contractual guarantees of "reasonableness," to apply
progressive discipline, and to give advance notice and
counseling regarding transfers, the charge does not allege what
the employer's past practices were in these areas, nor does it
state when the alleged "changes" occurred. Further, the
investigation revealed that your complaints against District
violations of "reasonableness" standard date back to no later
than 1981. These factors contribute toward a conclusion that
no proscribed change occurred within the six months preceding
the filing of the charge and that the District's contract
interpretation in your case was consistent with its prior
practices. 2
Government Code section 3541.5 precludes the Board from
issuing a complaint as to charges that are filed outside of the
six month period after which an alleged unlawful practice has
occurred.

Joseph G. Buller
May 16, 1984
Page 4
Second, as to all of the alleged "changes", the charge does not
allege -- nor did the investigation reveal -- that the
District's conduct towards you reflected a policy having a
"generalized effect or continuing impact" on terms and
conditions of employment. Grant, supra. Rather, as indicated
above, the District's application of the contract toward you
appears to have been particularized to the specific facts of
your case. Indeed, the charge is predicated on the allegation
that the District's contract applications toward you were
inconsistent with the normal meaning which the District
ascribes to the contract, and that these applications
constituted individual acts of discrimination against you.
Last, in our telephone conversation of May 8, you informed me
that because such unilateral change allegations are centrally
related to bargaining concerns, it should be left to the
exclusive representative to choose whether or not litigation of
these questions is appropriate. For the foregoing reasons, a
prima facie case of unilateral change is not present, and any
allegation to that effect is dismissed.
3. Last, the charge alleges that the District engaged in
"delays" in processing your grievance during step three of the
grievance procedure (paragraph 8 of the charge) . It is not
clear whether you intend this allegation to assert that the
District's alleged delay was an adverse action which
independently violated EERA section 3543.5 (a), or whether you
have provided this information only as background evidence from
which some inference of anti-union motivation can be drawn. To
the extent, however, that you argue that the alleged "delay"
was an independent violation of section 3543.5 (a), such an
allegation must be dismissed because (a) the allegation was
unsupported by a clear and concise statement of facts (Board
Rule 32615 (a) (5), and (b) no facts supporting the allegation
were revealed during the investigation.
As noted above, to state a prima facie case of discrimination
violative of BERA section 3543.5 (a) , the charge must clearly
and concisely state facts showing (1) the adverse action (s)
taken against employees, (2) the employees' exercise of rights,
and (3) an adequate "nexus, " or connection, between the
exercise of rights and the employer's action. Novato Unified
School District (4/30/82) PERB Decision No. 210; Carlsbad
Unified School District (4/30/79) PERB Decision No. 89.

Joseph G. Buller
May 16, 1984
Page 5
The charge does not clearly and concisely state a prima facie
case under these principles. Rather, it merely alleges that
you requested "all of the then present administrators that
[your] grievance be processed as rapidly as possible" and that
"the various deadlines . . 	. have been exceeded and the time
has been 'tolled' , 	. all without [your] permission." 	The
charge fails to indicate the identity of any district
representative who is responsible for such "tolling"; it can
equally be read (as does the charge which you filed against
UTLA') that the exclusive representative was responsible for
this tolling; and there is no further statement of underlying
facts.
Further, the investigation revealed no evidentiary support for
the proposition that this purported District conduct was an
adverse action which independently violated section 3543.5(a) .
Rather, letters which were sent to you in connection with this
transaction show that (1) the District and Union agreed to toll
the time periods applicable to Step 3 (the step immediately
preceding arbitration) (see letter of November 28 to UTLA from
Ms. Falotico) , and (2) on December 6, the Union sent you a
letter informing you that your grievance representative had
recommended that your case not be taken to arbitration, and
that the Union was giving you an opportunity to appeal that
determination in January. Absent a tolling of the time limit
at Step 3, the Union's deadline for filing for arbitration
would have lapsed on or about November 28.
It is clear from this chain of events that tolling of the time
limit in actuality (1, gave you an opportunity to submit your
appeal to the Union's grievance committee, and (2) preserved
the ability of the Union to proceed to arbitration. Indeed,
had the time limit not been extended, a later request for
arbitration apparently would have been time barred.
A related charge in Buller v. UTLA, Case No. LA-CO-287
alleged, inter alia, that such a delay caused by ULTA
contributed toward a violation of the duty of fair
representation. On May 11, 1984, that charge was dismissed for
failure to state a prima facie case.

Joseph G. Buller
May 16, 1984
Page 6
Thus, while you allegedly neither asked for nor consented to
tolling at Step 3, you have failed to demonstrate how such
tolling was a District action which was adverse to you. To the
extent that you allege that the District's alleged involvement
in the tolling of Step 3 independently violated section
3543.5 (a) , such an allegation must be dismissed.
Right to Appeal
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 (section
32635 (a) ). To be timely filed, the original and five (5)
copies of such appeal must be actually received by the Board
itself before the close of business (5:00 p.m.) on
June 5, 1984, or sent by telegraph or certified United States
mail postmarked not later than June 5 , 1984 (section 32135) .
The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
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 (5) copies of a statement in opposition within twenty
(20) calendar days following the date of service of the appeal
(section 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 the document filed with the Board
itself (see section 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.
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

Joseph G. Buller
May 16, 1984
Page 7
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 (section 32132) .
Final Date
If no appeal is filed within the specified time limits, the
dismissal will become final when the time limits have expired.
Very truly yours,
DENNIS M. SULLIVAN
General Counsel
By
Jeffrey Sloan
Assistant General Counsel
cc: 'Richard Fisher, O'Melveny & Myers
Shirley Woo, Los Angeles USD
JS/MM: djm