El Dorado Union High School District (PERB 0495E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

EL DORADO UNION HIGH SCHOOL
DISTRICT,

Charging Party, Case No. S-CO-116
PERB Decision No. 495

March 14, 1985

Vv.

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS PONDERADO
CHAPTER NO. 267,

Respondent.

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Appearance: Girard and Griffin, by Thomas M. Griffin, for El
Dorado Union High School District.

Before Hesse, Chairperson; Jaeger, Morgenstern and Burt,
Members.

DECISION

This case is before the Public Employment Relations Board
on appeal by charging party of the Board agent's dismissal,
attached hereto, of its charge alleging that the California
School Employees Association and its Ponderado Chapter No. 267
violated section 3543.6(c) of the Educational Employment
Relations Act (Gov. Code sec. 3540 et seq.).

We have reviewed the dismissal and, finding it free from
error, adopt it as the Decision of the Board itself.

ORDER
The unfair practice charge in Case No. SF-CO-116 is

DISMISSED WITHOUT LEAVE TO AMEND.

By the BOARD

:

11. Ti Of CAllfOIMIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
HEADQUAHIH OfFICl
1031 11TH S1lEET
SACIAMEN10, CAUFOIINIA 9511'
(916) 322-3011
a
November 	30. 	1984
Thomas M. 	Griffin
Girard 	& Griffin
511 	O Street. 	suite 	29
Sacramento. 	CA 	95814
GEOIIGl DfUlMUIAN, Go-•
Re: 	El Dorado Union High 	School 	District 	v. 	California 	School
Employees 	Association 	and 	its 	Ponderado 	Chapter 	No. 	267
Unfair 	Labor 	Practice 	Charge No. 	S-C0-116.
Dear 	Mr. 	Griffin:
The 	above-referenced 	charge 	alleges 	that 	the 	California 	School
Employees 	Association 	and 	its 	Ponderado 	Chapter 	No. 	267
(Association) 	threatened 	to 	file 	a 	grievance 	against 	the 	El
Dorado Union High 	School 	District 	(District) 	and 	filed 	an
unfair 	practice 	charge 	against 	the 	District. 	This 	conduct 	is
alleged 	to 	violate 	section 	3543.6{c) 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA).
I 	indicated 	to 	you 	in my 	letter 	dated 	November 	8. 	1984 	that 	the
above-referenced 	charge 	did 	not 	state 	a 	prima 	facie 	case. 	and
that 	unless 	you 	amended 	the 	charge 	to 	state 	a 	prima 	facie 	case.
or 	withdrew 	it 	prior 	to November 	15. 	1984. 	it 	wou_ld 	be
dismissed. 	More 	specifically. 	I 	informed 	you 	that 	if 	there
were 	any 	factual 	inaccuracies 	or 	additional 	facts 	which would
correct 	the 	deficiencies 	explained 	in 	that 	letter. 	you 	should
amend 	the 	charge 	accordingly.
On November 	16 	you 	requested 	and 	received 	a 	one 	week 	extension
to 	file 	an argument 	concerning 	the 	case. 	In 	it 	you 	correctly
state 	that 	the 	November 	8 	letter 	omitted 	the 	following 	facts.
DUring October 	1983 	a 	dispute 	arose 	between 	the 	Association 	and
the 	District 	concerning 	bus 	driver 	pay 	on 	field 	trips. 	That
dispute 	was 	resolved 	by 	payment 	to 	the 	grieving 	employee.
Subsequently. 	the 	collective 	bargaining 	agreement 	between 	the
Association and 	the 	District was 	modified 	by 	the 	addition 	of
the 	following:
6e. 	Nothwithstandany any 	other 	provisions
of 	this 	Agreement. 	if 	a 	special 	trip
requires 	an 	overnight 	stay. 	the 	District
shall 	be 	relieved 	of 	the 	obligation 	of
payment 	for 	any 	hours 	between 	the 	time 	a
bus 	driver 	is 	relieved 	of 	duties 	for 	the

Thomas 	M. 	Griffin
November 	30, 	1984
Page 	2
evening 	and 	the 	time 	duties 	resume 	the
following 	morning.
The 	District 	argues 	that 	by 	threatening 	a 	grievance 	and 	then
filing 	an 	unfair 	practice 	charge 	over 	the 	dispute 	in May 	1984
the 	Association 	repudiated 	the 	contract 	and 	that 	such 	a
repudiation 	is 	an 	unfair 	practice. 	For 	the 	reasons 	stated 	in
the 	November 	8 	letter 	(Exhibit 	1) 	as 	elaborated 	below, 	this
allegation 	does 	not 	state 	a 	prima 	facie 	violation 	of 	the 	EERA
and 	is 	dismissed.
First. 	the 	threat 	to 	file 	a 	grievance 	or 	the 	filing 	of 	an
unfair 	practice 	charge 	with PERB 	is 	not 	a 	repudiation 	of 	the
collective 	bargaining 	agreement. 	In 	this 	case 	the 	Association
had 	no 	power 	to 	make 	the 	disputed 	payment 	to.the 	driver 	in
question. 	Its 	recourse 	is 	to 	file 	a 	grievance 	or 	unfair
practice 	charge. 	On 	the 	other 	hand. 	an 	employer 	does 	have 	the
power 	to 	iamediately 	impose 	its 	will 	or 	decision 	to 	repudiate
an 	agreement 	with 	an 	employee 	organization. 	For 	this 	reason
among 	others 	unilateral 	action 	by 	employers 	is 	viewed 	with
disfavor 	and 	is 	a 	violation 	of 	the 	EERA. 	San Mateo 	County
Community College 	District 	(6/8/79) 	PERB Decision No. 	94.
Second, 	the 	unfair 	practice 	charge 	filed 	by 	the 	Association,
Case No. 	S-CE-775 	did 	not 	focus 	on 	the 	dispute 	over 	bus
driver•s 	pay 	on 	field 	trips. 	It 	concerned whether 	the 	District
had 	unilaterally 	contracted 	out 	bus 	driving work 	and 	whether
such 	contracting 	out was 	an 	act 	of 	reprisal 	against 	the
employees 	and 	the 	Association. 	Section 	6e 	of 	the·contract 	has
little 	or 	nothing 	to 	do 	with 	the 	merits 	of 	the 	unfair
practice. 	Again, 	if 	the 	employer 	feels 	that that 	case 	was
frivilous 	or 	an abuse 	of 	process. 	the 	proper 	remedy 	is 	to 	seek
attorney•s 	fees 	in ·that 	case.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulation
section 	32635 	(California 	Administrative 	Code, 	title 	a.
part 	111), 	you 	may appeal 	the 	refusal 	to 	issue 	a 	complaint
(dismissal) 	to 	the 	Board 	itself.
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

Thomas M. 	Griffin
November 	30, 	1984
Pa9e 	3
(S) 	copies 	of 	such 	appeal 	must 	be 	actually 	received 	by 	the
Board 	itself 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on
December 	20, 	1984, 	or 	sent 	by 	telegraph or 	certified 	United
States 	mail 	postmarked 	not 	later 	than 	December 	20, 	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 	3263S(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 	per·sonally 	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
the 	expiration of 	the 	time 	required 	for 	filing 	the 	document.
The 	request 	■ ust 	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).

Thomas 	M. 	Griffin
November 	30, 	1984
Paqe 	4
Final 	Date
lf 	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
Robert 	Thom~~
Regional 	Attorney
/ll 	/J,/ 	-4&?'7-	a

11•Tt Of CAllfOltMIA
PUBLIC 	EMPLOYMENT RELATIC.,, •.., 	BOARD
·,m,
.. CIAJ1i"'1O lfGIOMAl OfflCI
111" 1mn. IUm
.. CIAlli""O, CAU,.CltMIA
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lovember 8, 1984
Thomas M. 	Griffin
Girard, Griffin
511 Q Street, Suite 29
Sacramento, CA 	95114
ae: 	Jl Dorado Union High School District v. 	California School
J'!mployess Association and 	its Ponderado Chapter Wo. 	267
Unfair Practice Charge lo. 	S-C0-116
Dear llr, Criffin:
The above-referenced charge alleges that the California School
Employees Association and it'• Ponderado Chapter 10. 267
(.&saociation) threatened to file a 	grievance against the
Sl Dorado Union High School District (Diatrict) and filed an
unfair practice charge against tbe District. 	Thi• conduct is
alleged to violate section 35•3.6(c) of the Educational
Jtmployment Relations Act (IDA).
1ly investigation revealed tbe following undisputed facts.
During lla7 198• a dispu~ arose betveen tbe As ■ ociation and the
Diatrict conceming tbe proper level of pay for bus drivers who
drive an overnight fl.eld trip. 	On ..,. 11 lls. !bright, a •hop
•tevard for the Association in tbe transportation depart.men~.
told llr. Hunter, tbe transportation department supervi ■ or, ·"that
unless tbe District paid tbe bus driver according to tbe
Association'• interpretation oft.be collective bargaining
agreement that the Association would file a grievance against
tbe District. 	Shortly tbereafter tbe trip was reassigned to a
private carrier and a grievance vas never filed. 	On June 1,
bovever, 	the Association filed Unfair Practice Charge
wo. 	S-cl-775 alleging 1n part that tbe District bad transferred
bargaining unit vort out of the unit by contracting with the
private carrier. 	& formal bearing was held on this ca•e on
October 9, 1984. 	lo decision bas been issued.
Based on the facts described above this charge does not stat.e a
prim.a facie violation of EDA for the reasons which follov.
2n determining whether a part7 bas violated •action 35•3.6(c)
of tbe SERA. the Public Smployment Relations Board (PED or
Board) utilizes either the •per••• or the •totality of
conduct• test, depending on t.be specific conduct. involved and
tbe effect of sucb conduct on the negotiating process.
EXHIBIT 	I

Thoma••· 	Criffln
•ovember I, 198•
Page 2
C.
Stockton Unified School District (11/3/80) PED Decision
•o. 143, Fremont Unified School District 	(6/19/80) PERB
Decision Wo. 136. 	The conduct alleged 	ln this case to violate
this 	■ ection l• the Association's threatening to file a
grievance under the collective bargaining agreement and the
filing of an unfair practice against the District. 	Charging
Party bas not provided any case law Which indicates this
conduct to be evidence of a 	failure 	to bargain ln good faith or
a "per ■ e" violation of the EERA. 	An independent review of
ca••• also failed to uncover such legal authority. 	In
addition, 	such a theory appears to run contrary to the present
case lav of PED. 	In Jorth Sacramento School District
(12/20/82) PERB Decision Wo. 	264, 	the Board found the filing of
a grievance ls protected activity. 	If the District feels 	that
the Association'• filing of Case •o. 	S-Cl-775 1• frivolous 	it
•hould request the hearing officer in that case to order the
Association to pay the Di ■ trict•• attorney•• fees as part of
that litigation. 	~ing City Joint Union High School District
(3/3/82) PED Decision Wo. 	197. 	review pending.
l'or these reasons, 	charge number S-C0-116, as presently
written, 	does not atat.e a prlma facie case. 	If you feel that
t.here are any factual 	inaccuracies in this letter or any
additional facts wtdch· would correct the deficiencies explained
above, please amend the charge accordingly. 	Tbe amended charge
•hould be prepared on a ■ t.andard PED unfair practice charge
form clearly labeled l'irst Amended Charge, contain ill thi
facts and allegations you vi.sh to aalte, 	and be aigned under
penalty of perjury by the charging party. 	The amended charge
aaat be •erved on the respondent and the original proof of
•ervice aast be filed with PDB. 	If I 	do 11ot receive an
-nded charge or withdrawal from you before ■ ovember 15, 1984,
I 	•ball diaias Jour charge. 	If JOU have any questions on how
to proceed, please call ae at (916) 322-3198.
Sincerely yours,
aobert Thompson
•egional Attorney
a