Clovis Unified School District (PERB 0597E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CLOVIS
CHAPTER 	#250,
Charging 	Party,
v.
CLOVIS 	UNIFIED 	SCHOOL DISTRICT,
Respondent.
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) 	Case 	No. 	S-CE-943
PERB 	Decision 	No. 	597
December 	19, 	1986
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Appearances: 	Maureen C. 	Whelan, 	Attorney 	for California 	School
Employees 	Association 	and 	its 	Clovis 	Chapter 	#250; 	Finkle 	&
Stroup by Stephen 	Thomas 	Davenport, 	Jr., 	Attorney 	for 	Clovis
Unified 	School 	District.
Before Hesse, 	Chairperson; Morgenstern and Craib, 	Members.
DECISION
HESSE, 	Chairperson: 	The 	California 	School 	Employees
Association 	and 	its 	Clovis 	Chapter 	#250 	(CSEA) 	appeals 	the
attached 	partial 	dismissal 	of 	its 	charge 	that 	the 	Clovis
Unified 	School 	District 	(District) 	violated 	sections 	3543.5(a),
(b) 	and 	(c) 	and 3543.1(a)1 of the Educational Employment
Relations Act 	(EERA or Act). 	The 	charge 	alleged 	that 	the
1Section 	3543.5 provides, 	in pertinent part:
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
__)

District 	failed 	to 	comply with 	a 	settlement 	agreement 	reached
in 	an 	earlier unfair practice 	case. 	The 	regional 	attorney-
dismissed 	the 	instant 	charge 	on 	the 	grounds 	that 	EERA 	section
3541.5(b)2 prohibits 	the 	Public 	Employment 	Relations 	Board
(PERB 	or 	Board) 	from 	enforcing 	contractual 	agreements between
parties. 	(See 	Baldwin 	Park 	Unified 	School 	District 	(1979) 	PERB
Decision 	No. 	92.) 	This 	proscription has been 	read 	to 	include
settlement 	agreements. 	(Regents 	of 	the 	University of
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
Section 3543.1(a) 	provides:
(a) 	Employee 	organizations 	shall 	have 	the
right 	to 	represent 	their members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except 	that once an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to 	Section 	3544.1
or 3544.7, 	respectively, 	only that employee
organization may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school 	employer. 	Employee 	organizations 	may
establish 	reasonable 	restrictions 	regarding
who 	may 	join 	and 	may make 	reasonable
provisions 	for 	the 	dismissal 	of 	individuals
from 	membership.
2section 	3541.5(b) 	provides:
The board 	shall 	not have 	authority 	to
enforce 	agreements between 	the parties, 	and
shall 	not 	issue 	a 	complaint 	on 	any charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
2
"'
'

California 	(1983) 	PERB Decision No. 	362-H.) 	In 	the Regents
case, 	the 	Board 	affirmed 	the dismissal 	of a 	charge 	alleging
that 	a 	violation of a 	settlement agreement was 	an independent
violation 	of 	the 	Higher 	Education 	Employer-Employee 	Relations
Act 	(HEERA). 	Since 	the 	statutory language 	in HEERA mirrors
that 	in 	EERA, 	the 	regional 	attorney was 	correct 	in his
dismissal 	of 	the 	charge 	that a 	violation of 	a 	settlement
agreement 	is 	a 	concurrent 	violation 	of 	EERA.
The 	Board has 	held 	that 	the breach 	of 	an 	agreement
constitutes 	an 	independent 	violation 	of 	the 	Act 	only where 	the
breach 	amounts 	to a 	change 	in policy having a 	generalized
effect 	or 	continuing 	impact 	upon 	the 	terms 	and 	conditions 	of
employment 	of bargaining 	unit 	members. 	(Grant 	Joint 	Union 	High
School 	District 	(1982) 	PERB Decision No. 	196.) 	Here, 	CSEA
merely alleges 	that 	the 	settlement 	agreement has 	not been
complied with. 	There 	is 	no allegation 	that 	this 	dispute, 	which
involves 	only the proper amounts 	to be paid, under 	the
agreement, 	reflects 	a 	change 	in policy.
Further, 	we 	note 	that precedent of 	the 	National 	Labor
Relations 	Board 	(NLRB) 	in 	this 	situation 	is 	not 	instructive.
First, 	specific 	regulatory authority gives 	the 	NLRB 	the 	ability
to 	revive2 a 	charge or to enforce 	settlement agreements.3
2We 	note 	that 	CSEA did 	not 	request 	that 	the 	original
unfair 	practice 	charge be 	revived 	on 	the 	theory 	that 	a 	condition
subsequent 	(the 	settlement 	terms) 	had 	not been 	complied with.
3See 	NLRB 	Regulation 	section 	101.9(e)(2).
33

No 	such 	regulations 	govern 	PERB. 	Second, 	the NLRB, 	unlike
PERB, 	is 	a 	party to unfair 	labor practice 	complaints 	and 	thus
must be a party to a 	settlement, 	since, 	unlike our adjudicative
role, 	the NLRB plays 	a prosecutorial 	role 	in unfair practice
proceedings.
Thus, 	CSEA must 	look 	to the courts 	for a 	remedy to 	its
allegation 	that 	the 	District 	did 	not 	comply with 	the 	settlement
agreement.
ORDER
The Board hereby AFFIRMS 	the 	dismissal 	in Case 	No. 	S-CE-943,
Members 	Morgenstern 	and 	Craib 	joined 	in 	this 	Decision.
4

STATE OF 	CALIFORNIA 	GEORGE DEUKMEJIAN.
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET, SUITE 102
SACRAMENTO. CALIFORNIA 	95814
(916) 322-3198
December 	18. 	1985
Brian 	Gorman
Field 	Representative
California 	School 	Employees 	Association
1490 West 	Shaw. 	Suite A
Fresno. 	CA 	93711
Re: 	California 	School 	Employees 	Association 	and 	its 	Clovis
Chapter 	No. 	250 	v. 	Clovis 	Unified 	School 	District
Unfair 	Practice 	Charge 	No. 	S-CE-943
Dear Mr. 	Gorman:
The 	above-referenced 	charge 	alleges 	that 	the 	Clovis 	Unified
School 	District 	(District) 	has 	repudiated 	a 	settlement
agreement 	reached 	with 	the 	California 	School 	Employees
Association 	and 	its 	Clovis 	Chapter 	No. 	250 	(Association) 	and
refused 	to 	provide 	necessary 	and 	relevant 	information 	to 	the
Association. 	This 	conduct 	is 	alleged 	to 	violate 	sections
3543.5(a). 	(b) 	and 	(c) 	of 	the Educational Employment Relations
Act 	(EERA).
I 	indicated 	to 	you 	in 	my 	letter 	dated 	December 	6, 	1985 	that
certain 	allegations 	contained 	in 	the 	above-referenced 	charge
did 	not 	state 	a 	prima 	facie 	case, 	and 	that 	unless 	you 	amended
these 	allegations 	to 	state 	a 	prima 	facie 	case, 	or 	withdrew them
prior 	to 	December 	13, 	1985, 	they would 	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.
I 	have 	not 	received 	either 	a 	request 	for 	withdrawal 	or 	an
amended 	charge 	and 	am 	therefore 	dismissing 	those 	allegations
which 	fail 	to 	state 	a 	prima 	facie 	case 	based 	on 	the 	facts 	and
reasons 	contained 	in 	my December 	6 	letter 	which 	is 	attached 	as
Exhibit 	1.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulation
section 	32635 	(California 	Administrative 	Code, 	title 	8,
part 	III), 	you 	may 	appeal 	the 	refusal 	to 	issue 	a 	complaint
(dismissal) 	to 	the 	Board 	itself.

Brian 	Gorman
December 	18, 	1985
Page 	2
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
January 	7. 	1986. 	or 	sent 	by 	telegraph 	or 	certified 	United
States 	mail 	postmarked 	not 	later 	than 	January 	7, 	1986
(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 	each 	copy 	of 	a 	document 	served 	upon 	a
party 	or 	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
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).

Brian Gorman
December 	18. 	1985
Page 3
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 Robert 	Thompson
Regional 	Attorney
/

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
103111 18T	I H STREET. SUITE 10I 2,
SACRAMENTO. CALIFORNIA 	9581:14I
(916) 323-319	' I 8
December 	6, 	1985
Brian 	Gorman
Field 	Representative
California 	School 	Employees 	Association
1490 West 	Shaw. 	Suite A
Fresno. 	CA 	93711
Re: 	California 	School Employees 	Association and 	its 	Clovis
Chapter No. 	250 v. 	Clovis 	Unified 	School 	District
Unfair 	Practice 	Charge No. 	S-CE-943
Dear Mr. 	Gorman:
The 	above-referenced 	charge 	alleges 	that 	the 	Clovis 	Unified
School 	District 	(District) 	has 	repudiated 	a 	settlement
agreement 	reached with 	the 	California 	School 	Employees
Association and 	its 	Clovis 	Chapter 	No. 	250 	(Association) 	and
refused 	to 	provide 	necessary 	and 	relevant 	information 	to 	the
Association. 	This 	conduct 	is 	alleged 	to violate 	sections
3543.5(a). 	(b) 	and 	(c) 	of 	the Educational Employment Relations
Act 	(EERA).
My 	investigation 	revealed 	the 	following 	facts. 	Charging 	Party
has 	indicated 	that 	the 	District 	has 	provided 	the 	requested
information 	and 	therefore 	is 	willing 	to withdraw that 	sectio- -.n
of 	the 	charge. 	On April 	18. 	1985. 	the Association and 	the
District 	reached 	agreement 	over 	matters 	raised 	by 	unfair
practice 	charge No. 	S-CE-848. 	The 	agreement was 	reduced 	to
writing 	and 	contained 	a 	provision whereby 	that 	charge 	was
withdrawn with prejudice 	on April 	25. 	1985. 	Since 	that 	time
the 	Association 	has 	met with 	the 	District 	concerning
implementation 	of 	the 	settlement 	agreement, 	primarily 	the
payment 	of 	money 	to 	individuals 	affected 	by 	a 	prior 	reduction
in hours.
1This 	section 	of 	the 	agreement 	reads:
The 	District 	agrees 	to 	compensate 	bus
drivers 	for 	any 	loss 	of wages 	suffered 	as 	a
result 	of 	reductions 	in 	hour6 	from the
1983-84 	school 	year 	to 	the 	1984-85 	school
year, 	for 	the months 	of 	September 	1984
through January 24. 	1985.
EXHIBIT 1
~.
~

Brian 	Gorman
December 	6. 	1985
Page 	2
the 	District 	have 	been unable 	to 	reach 	agreement 	as 	to 	the
correct 	dollar 	amount.
Based 	on 	the 	facts 	described 	above, 	the 	allegation 	that 	the
District 	repudiated 	the 	settlement 	agreement 	contained 	in 	this
charge 	fails 	to 	state 	a 	prima 	facie 	violation 	of 	the 	EERA 	for
the 	reasons 	which 	follow.
Section 	3541.5(b) 	of 	the 	EERA 	states:
The 	board 	shall 	not 	have 	authority 	to
enforce 	agreements 	between 	the 	parties, 	and
shall 	not 	issue 	a 	complaint 	on 	any 	charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
The 	Public 	Employment 	Relations 	Board 	(PERB) 	has 	held 	that 	this
requirement 	prohibits 	issuance 	of 	a 	complaint 	unless 	the 	facts
in 	the 	charge 	state 	an 	independent 	violation 	of 	the 	EERA 	in
addition 	to 	a 	possible 	violation 	of 	the 	agreement. 	Baldwin
Park Unified 	School 	District 	(1979) 	PERB Decision No. 	92.
Although 	the 	District's 	failure 	to 	reach 	agreement 	with 	the
Association 	over 	the 	correct 	amount 	of 	money 	to 	be 	proferred 	to
employees 	may 	constitute 	a 	violation 	of 	the 	settlement
agreement, 	there 	is 	no 	evidence 	which 	indicates 	that 	these
fact6 	give 	rise 	to 	an 	independent 	unfair 	practice. 	In 	order 	to
6tate 	an 	independent 	unfair 	practice, 	the 	Charging 	Party 	would
have 	to 	show 	that 	the 	District 	made 	a 	change 	in 	policy 	by
refusing 	to 	comply 	with 	the 	terms 	of 	the 	settlement 	agreement.
Without 	such 	evidence 	EERA 	section 	3541.5(b) 	proscribes
issuance 	of 	a 	complaint 	in 	this 	case.
For 	these 	reasons, 	the 	allegation 	that 	the 	District 	repudiated
a 	settlement 	agreement 	with 	the 	Association 	contained 	in 	charge
number 	S-CE-943. 	as 	presently written, 	does 	not 	state 	a 	prima
facie 	case. 	If 	you 	feel 	that 	there 	are 	any 	factual
inaccuracies 	in 	this 	letter 	or 	any 	additional 	facts 	which 	would
correct 	the 	deficiencies 	explained 	above, 	please 	amend 	the
charge 	accordingly. 	The 	amended 	charge 	should 	be 	prepared 	on 	a
standard 	PERB 	unfair 	practice 	charge 	form 	clearly 	labeled 	First
Amended 	Charge, 	contain 	all 	the 	facts 	and 	allegations 	you 	wish
to 	make, 	and 	be 	signed 	under 	penalty 	of 	perjury 	by 	the 	charging
party. 	The 	amended 	charge 	must 	be 	served 	on 	the 	respondent 	and
the 	original 	proof 	of 	service 	must 	be 	filed with 	PERB. 	If 	I 	do

Brian 	Gorman
December 	6, 	1985
Page 	3
not 	receive 	an 	amended 	charge 	or 	withdrawal 	from 	you 	before
December 	13. 	1985. 	I 	shall 	dismiss 	the 	above-described
allegation 	from your 	charge. 	If 	you 	have 	any 	questions 	on 	how
to 	proceed, 	please 	call 	me 	at 	(916) 	322-3198.
Sincerely 	yours.
Robert 	Thompson
Regional 	Attorney
cc: 	Maureen Whelan
3378d
I