Los Angeles Unified School District (PERB 1450E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

LOS ANGELES SCHOOL POLICE OFFICERS
ASSOCIATION,

Charging Party, Case No. LA-CE-4196-E

Vv. PERB Decision No. 1450

LOS ANGELES UNIFIED SCHOOL DISTRICT, June 25, 2001

Respondent.

Appearances: Lackie & Dammeier by Dieter C. Dammeier, Attorney, for Los Angeles School
Police Officers Association; Paul, Hastings, Janofsky & Walker by Niloofar Nejat-Bina,
Attorney, for Los Angeles Unified School District.
Before Amador, Baker and Whitehead, Members.
DECISION

AMADOR, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by the Los Angeles School Police Officers Association (LASPOA) to a
Board agent's dismissal (attached) of their unfair practice charge. The charge alleged that the
Los Angeles Unified School District (District) violated section 3543.5(a), (b) and (c) of the

Educational Employment Relations Act (EERA)! by unilaterally changing the terms and

conditions of employment when it issued a new Policies and Procedures Manual.

' EERA is codified at Government Code section 3540 et seq. Section 3543.5 states, in
pertinent part:

It shall be unlawful for a public school employer to do any of the
following:

After reviewing the entire record, including LASPOA's appeal and the District's
response, the Board finds the Board agent's dismissal letter to be free from prejudicial error
and adopts it as the decision of the Board itself, consistent with the following discussion.
DISCUSSION
The Board agent found that the unfair practice charge was untimely filed and identified
June 24, 1999, as the date on which the statute of limitations began to run. Although the Board
agrees that the charge is untimely filed, we conclude that the statute of limitations began to run
on August 31, 1999, rather than June 24, 1999. The District made it clear that LASPOA had
until August 31, 1999 to state its objections to the new policies and procedures manual. The
District also made it clear to LASPOA that it intended to proceed with implementing the
manual after that date. Therefore, LASPOA had actual notice of the District's clear intent to
implement the new policies on August 31, 1999. LASPOA waited almost ten months after that
date, until June 13, 2000, to file an unfair practice charge. As a result, the charge is untimely.
LASPOA's request for oral argument is hereby denied.
(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.
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.
2

ORDER
The unfair practice charge in Case No. LA-CE-4196-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
3

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1515 Clay Street, Suite 2201
Oakland, CA 94612
(510) 622-1016
April 2, 2001
Timothy Pescatello
Lackie & Dammeier LLP
10970 Arrow Route, Suite 202
Rancho Cucamonga, CA 	91730
Re : 	DISMISSAL LETTER/REFUSAL TO ISSUE COMPLAINT
Los Angeles School Police Officers Association V. Los
Angeles Unified School District
Unfair Practice Charge No. LA-CE-4196; First Amended Charge
Dear Mr. Pescatello:
The above-referenced charge, filed June 13, 2000, alleges the Los
Angeles Unified School District (District) unilaterally changed
several terms and conditions of employment and refused to bargain
over negotiable subjects. 	The Los Angeles School Police Officers
Association (LASPOA or Association) alleges this conduct violates
Government Code section 3543.5 (a) , (b) and (c) of the Educational
Employment Relations Act (EERA or Act)
I indicated to you, in my attached letter dated November 27,
2000, that the above-referenced charge did not state a prima
facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the
deficiencies explained in that letter, you should amend the
charge. You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to
December 3, 2000, the charge would be dismissed.
On December 4, 2000, Charging Party filed a first amended charge.
The amended charge contends the charge is timely filed as the
District wavered in its intent to adopt the new personnel manual.
A review of relevant facts is provided below.
On June 24, 1999, the District's Chief of Police, Wesley
Mitchell, distributed a copy of the new Policies and Procedures
Manual to Association representatives. Chief Mitchell instructed
the Association to review the new manual and present any problems
to the District as soon as possible. On that same day,
Association attorney Dieter Dammeier sent a letter to the
District stating that the new procedures manual changed the terms
and conditions of employment and requested to meet and confer
over the changes.

Dismissal Letter
LA-CE-4196
Page 2
On August 6, 1999, Chief Mitchell sent a response to Mr.
Dammeier's letter, stating that any possible changes in terms and
conditions should be brought to the attention of Richard Page.
Additionally, the letter stated in relevant part:
Although Assistant Chief Page will gladly
meet with you, the Department intends to
proceed with this project as soon as
possible. Therefore, please respond with any
concerns no later than August 31, 1999.
Absent any specific concerns as of this date,
it is the intent of the Department to proceed
with this project.
On August 11, 1999, Mr. Dammeier responded to Chief Mitchell's
letter, stating the August 31, 1999, deadline was "unreasonable"
and did not provide the Association with enough time.
Additionally, Mr. Dammeier stated the District's willingness to
discuss the matters did not constitute a "meet and confer" under
the statute. Finally, Mr. Dammeier stated the Association had
convened a committee to review the manual and that he would
contact the District when the committee had concluded its review.
On August 18, 1999, Chief Mitchell responded to Mr. Dammeier's
August 11, 1999, letter. 	Chief Mitchell's response stated the
District's belief that no changes had been made to the terms and
conditions of employment . 	Chief Mitchell concluded by stating:
It is felt that three weeks is ample time for
this review to be completed. I appreciate
your commitment to expedite the review;
however, as previously stated, absent any
specific concerns as of August 31, 1999, the
Department intends to proceed with this
project . 	If at any time during this review,
you identify items you believe are subject to
meet and confer, please contact Assistant
Chief Richard Page at (213) 625-6069.
On December 8, 1999, Mr. Dammeier sent a letter to Chief Mitchell
regarding another unfair practice charge (LA-CE-4140) . In this
letter, Mr. Dammeier states that it appears supervisors are
already implementing the new personnel manual without
distribution to bargaining unit members. Additionally, Mr.
Dammeier alleges the District is unilaterally implementing new
policies and procedures from the manual.
On March 17, 2000, Mr. Dammeier responded to Chief Mitchell's
August 18, 1999, letter. In this response, Mr. Dammeier stated
the Association had completed its review of the new manual and

Dismissal Letter
LA-CE-4196
Page 3
had found numerous changes in the terms and conditions of
employment . 	Mr. Dammeier also requested to meet and confer over
these changes.
On March 21, 2000, Chief Mitchell responded to the Association's
request stating as follows:
As noted in my letter to you on August 18,
1999 regarding this subject, we do not
believe the new manual constitutes changes in
existing policy or practices and is therefore
not subject to meet and confer requirements.
The Los Angeles School Police Association was
provided with a copy of the new manual prior
to its issuance and encouraged to review the
new manual and bring to the department's
attention any specific concerns they may
have. A three-week time period was afforded
for this review and the LASPA was advised
that absent any concerns being brought to our
attention, the department intended to go
forward with this project.
Approximately seven months later, the
department had not received a response from
you or the LASPA. It was not until the
department began issuing this new manual to
personnel that we now receive your letter
with regards to concerns.
On April 14, 2000, Association attorney Tim Pescatello responded
to Chief Mitchell's letter, stating the Association wished to
meet and confer over more than 10 changes in terms and conditions
of employment . 	On April 20, 2000, Chief Mitchell responded to
Mr. Pescatello, stating the District would not agree to meet and
confer with regards to the new manual, and would only hold one
meeting to discuss the manual with Association representatives.
On June 13, 2000, the Association filed the above-referenced
unfair practice charge.
Based on the above stated facts, the charge as presently written,
fails to state a prima facie violation of the EERA, for the
reasons provided below.
Government Code section 3541.5(a) (1) prohibits the Board from
issuing a charge based upon an alleged unfair practice occurring
more than six months prior to the filing of the charge. In a
unilateral change case, the statute of limitations begins to run

Dismissal Letter
LA-CE-4196
Page 4
when the union has "actual or constructive knowledge" of the
employer's "clear intent" to implement a new policy or procedure.
(Los Angeles Unified School District (1996) PERB Decision No.
1181.) 	The amended charge contends that since the District did
not immediately distribute the personnel manual after the August
31, 2000 deadline, the Association had every reason to believe
the District had backed down from its decision to implement the
new manual. However, facts presented by the Association refute
this claim.
The Association became aware on June 24, 1999, of the District's
intent to implement the new policies and procedures manual. 	The
Association was also aware that if they did not state clear
objections before August 31, 1999, the new manual would be
implemented. Finally, in December 1999, the Association's
attorney acknowledged that at least one of the changes in the
personnel manual was already being implemented. As such, the
Association's claim that the District wavered in its intent is
not supported by the facts. 	Thus, the allegations of unilateral
change are time barred.
The Association also contends the District refused to bargain
over the changes in terms and conditions of employment. However,
facts provided demonstrate the union waived its right to bargain
the changes. Although unilateral changes are generally
considered per se violations, an employer may act unilaterally if
it offers written notice and reasonable opportunity to meet and
the employee organization does not protest or request bargaining.
(Stockton Police Officers' Association v. City of Stockton (1988)
206 Cal . App. 3d 62.) Herein, the District provided the
Association with more than two months to review the manual and
present specific areas of concern. Additionally, the Association
was aware of the District's August 31, 1999 deadline. However,
rather than responding by the deadline or providing the District
with a new deadline, the Association waited nearly seven months
to provide the District with specific areas of concern. As such,
the District's conduct in implementing the new manual after
providing notice and an opportunity to bargain, does not state a
prima facie violation of the EERA.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 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. 	(Cal. Code Regs . , tit . 8,
sec. 32635 (a) .) Any document filed with the Board must contain
the case name and number, and the original and five (5) copies of
all documents must be provided to the Board.

Dismissal Letter
LA-CE-4196
Page 5
A document is considered "filed" when actually received before
the close of business (5 p. m. ) on the last day set for filing or
when mailed by certified or Express United States mail, as shown
on the postal receipt or postmark, or delivered to a common
carrier promising overnight delivery, as shown on the carrier's
receipt, not later than the last day set for filing. 	(Cal . Code
Regs., tit. 8, sec. 32135 (a) ; see also Cal. Code Regs. , tit. 8,
sec. 32130.)
A document is also considered "filed" when received by facsimile
transmission before the close of business on the last day for
filing together with a Facsimile Transmission Cover Sheet which
meets the requirements of Cal. Code Regs. , tit. 8, sec. 32135 (d),
provided the filing party also places the original, together with
the required number of copies and proof of service, in the U.S.
mail . 	(Cal. Code. Regs. , tit. 8, secs. 32135 (b) , (c) and (d) ;
see also Cal. Code Regs. , tit. 8, secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 	95814-4174
FAX: (916) 327-7960
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
copies of a statement in opposition within twenty (20) calendar
days following the date of service of the appeal. 	(Cal. Code
Regs., tit. 8, sec. 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 Cal. Code Regs . , tit. 8,
sec. 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. A document filed by facsimile transmission
may be concurrently served via facsimile transmission on all
parties to the proceeding. (Cal. Code Regs. , tit. 8, sec.
32135 (c) . )
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

Dismissal Letter
LA-CE-4196
Page 6
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. 	(Cal. Code Regs. , tit. 8, sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General Counsel
By Kristin L. Rosi
Regional Attorney
Attachment
cc: Niloofar Nejat-Bina

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1515 Clay Street, Suite 2201
Oakland, CA 94612
(510) 622-1016
November 27, 2000
Timothy Pescatello
Lackie & Dammeier LLP
10970 Arrow Route, Suite 202
Rancho Cucamonga, CA 	91730
Re : 	WARNING LETTER
Los Angeles School Police Officers Association V. Los
Angeles Unified School District
Unfair Practice Charge No. LA-CE-4196
Dear Mr. Pescatello:
The above-referenced charge, filed June 13, 2000, alleges the Los
Angeles Unified School District (District) unilaterally changed
several terms and conditions and refused to bargain. The Los
Angeles School Police Officers Association (LASPOA or
Association) alleges this conduct violates Government Code
section 3543.5(a) , (b) and (c) of the Educational Employment
Relations Act (EERA or Act) .
Investigation of the charge revealed the following. The District
and the Association are parties to a collective bargaining
agreement (Agreement) which expired on June 30, 2000. 	In
addition to the Agreement, bargaining unit members followed the
provisions of the Policies and Procedures Manual.
On June 24, 1999, the District's Chief of Police, Wesley
Mitchell, distributed a copy of the new Policies and Procedures
Manual to Association representatives. Chief Mitchell instructed
the Association to review the new manual and present any problems
to the District as soon as possible. On that same day,
Association attorney Dieter Dammeier sent a letter to the
District stating that the new procedures manual changed the terms
and conditions of employment and requested to meet and confer
over the changes.
On August 6, 1999, Chief Mitchell sent a response to Mr.
Dammeier's letter, stating that any possible changes in terms and
conditions should be brought to the attention of Richard Page.
Additionally, the letter stated in relevant part:
Although Assistant Chief Page will gladly
meet with you, the Department intends to

Warning Letter
LA-CE-4196
Page 2
proceed with this project as soon as
possible. Therefore, please respond with any
concerns no later than August 31, 1999.
Absent any specific concerns as of this date,
it is the intent of the Department to proceed
with this project.
On August 11, 1999, Mr. Dammeier responded to Chief Mitchell's
letter, stating the August 31, 1999, deadline was "unreasonable"
and did not provide the Association with enough time.
Additionally, Mr. Dammeier stated the District's willingness to
discuss the matters did not constitute a "meet and confer" under
the statute. Finally, Mr. Dammeier stated the Association had
convened a committee to review the manual and that he would
contact the District when the committee had concluded its review.
On August 18, 1999, Chief Mitchell responded to Mr. Dammeier's
August 11, 1999, letter. 	Chief Mitchell's response stated the
District's belief that no changes had been made to the terms and
conditions of employment. 	Chief Mitchell concluded by stating:
It is felt that three weeks is ample time for
this review to be completed. 	I appreciate
your commitment to expedite the review;
however, as previously stated, absent any
specific concerns as of August 31, 1999, the
Department intends to proceed with this
project. If at any time during this review,
you identify items you believe are subject to
meet and confer, please contact Assistant
Chief Richard Page at (213) 625-6069.
On March 17, 2000, Mr. Dammeier responded to Chief Mitchell's
August 18, 1999, letter. 	In this response, Mr. Dammeier stated
the Association had completed its review of the new manual and
had found numerous changes in the terms and conditions of
employment. Mr. Dammeier also requested to meet and confer over
these changes .
On March 21, 2000, Chief Mitchell responded to the Association's
request stating as follows:
As noted in my letter to you on August 18,
1999 regarding this subject, we do not
believe the new manual constitutes changes in
existing policy or practices and is therefore
not subject to meet and confer requirements.
The Los Angeles School Police Association was
provided with a copy of the new manual prior

Warning Letter
LA-CE-4196
Page 3
to its issuance and encouraged to review the
new manual and bring to the department's
attention any specific concerns they may
have . 	A three-week time period was afforded
for this review and the LASPA was advised
that absent any concerns being brought to our
attention, the department intended to go
forward with this project.
Approximately seven months later, t
department had not received a response from
you or the LASPA. 	It was not until the
department began issuing this new manual to
personnel that we now receive your letter
with regards to concerns.
On April 14, 2000, Association attorney Tim Pescatello responded
to Chief Mitchell's letter, stating the Association wished to
meet and confer over more than 10 changes in terms and conditions
of employment . 	On April 20, 2000, Chief Mitchell responded to
Mr. Pescatello, stating the District would not agree to meet and
confer with regards to the new manual, and would only hold one
meeting to discuss the manual with Association representatives.
On June 13, 2000, the Association filed the above-referenced
unfair practice charge.
Based on the above stated facts, the charge as presently written,
fails to state a prima facie violation of the EERA, for the
reasons provided below.
Government Code section 3541.5 (a) (1) prohibits the Board from
issuing a charge based upon an alleged unfair practice occurring
more than six months prior to the filing of the charge. 	In a
unilateral change case, the statute of limitations begins to run
when the union has "actual or constructive knowledge" of the
employer's "clear intent" to implement a new policy or procedure.
(Los Angeles Unified School District (1996) PERB Decision No.
1181. ) Herein, the Association became aware on June 24, 1999,
the District's intent to implement the new policies and
procedures manual . 	Moreover, the Association was aware that if
they did not state clear objections before August 31, 1999, the
new manual would be implemented. Thus, the Association was aware
nearly a year before it filed its charge, that the alleged
unilateral changes would be taking place. 	As such, the
allegation of unilateral change is time barred.
The Association also contends the District refused to bargain
over the changes in terms and conditions of employment. However,
facts provided demonstrate the union waived its right to bargain

Warning Letter
LA-CE-4196
Page 4
the changes. 	Although unilateral changes are generally
considered per se violations, an employer may act unilaterally if
it offers written notice and reasonable opportunity to meet and
employee organization does not protest or request bargaining.
(Stockton Police Officers' Association v. City of Stockton (1988)
206 Cal . App. 3d 62.) Herein, the District provided the
Association with more than two months to review the manual and
present specific areas of concern. Additionally, the Association
was aware of the District's August 31, 1999 deadline. However,
rather than responding by the deadline or providing the District
with a new deadline, the Association waited nearly seven months
to provide the District with specific areas of concern. As such,
the District's conduct in implementing the new manual after
providing notice and an opportunity to bargain, does not state a
prima facie violation of the EERA.
For these reasons the charge, as presently written, does not
state a prima facie case. 	If there are any factual inaccuracies
in this letter or additional facts which would correct the
deficiencies explained above, please amend the charge. 	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 have the case number written on the top right
hand corner of the charge form. The amended charge must be
served on the respondent's representative and the original proof
of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before December 3, 2000, I
shall dismiss your charge. 	If you have any questions, please
call me at (510) 622-1016.
Sincerely,
Kristin L. Rosi
Regional Attorney