Los Angeles Unified School District (PERB 1929E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS OF LOS ANGELES,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4996-E
PERB Decision No. 1929
November 16, 2007
Appearance: United Teachers Los Angeles Adult and Occupational Education Committee by
Ernest Kettenring, Chair, for United Teachers of Los Angeles.
Before Shek, McKeag and Rystrom, Members.
DECISION
SHEK, Member: 	This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by United Teachers of Los Angeles (UTLA) of the dismissal of its
unfair practice charge. 	The unfair practice charge alleged that the Los Angeles Unified School
District (District) violated sections 3543(a), 3543. l(a) and (6), 3543.2(a), and 3543.S(a), (6),
and ( d) of the Educational Employment Relations Act (EERA), 1 by retaliating against two
district-wide elected representatives of adult education teachers, Ernest Kettenring (Kettenring)
and Mark Wutschke (Wutschke ), for engaging in protected activities.
The Board has reviewed the entire record in this case, including but not limited to the
unfair practice charge, the District's position statement, the first amended unfair practice
charge, the Board agent's warning letter and notice of dismissal and deferral to arbitration, and
1EERA is codified at Government Code section 3540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

UTLA's appeal
of
the dismissal. The Board hereby dismisses the unfair practice charge based
on the following discussion.
BACKGROUND
The Unfair Practice Charge
In its unfair practice charge filed on September 13, 2006, UTLA stated that Kettenring
and Wutschke had engaged in protected activities, namely, representing members, advocating
union positions, and organizing bargaining unit members. However, the charge failed to
provide details about the alleged protected activities.
UTLA alleged that "from June to September 2005," the District engaged in a series
of
reprisal acts against Kettenring and Wutschke, in relation to the District's investigation
of
a
fellow employee's complaints
of
harassment and discrimination against Kettenring and
Wutschke. 	The alleged reprisal acts included: (1) "repeated issuance
of
complaints
of
harassment and discrimination in the absence
of
any evidence
of
such"; (2) breach
of
confidentiality during its investigation into the discrimination and harassment complaints, by
soliciting the names
of
union activists under the guise
of
confidentiality, then turning over
those names to the school principal; (3) violation
of
Kettenring's and Wutschke's Weingarten 2
rights; (4) issuance by the District's Equal Opportunity Section
of
critical material against
Kettenring and Wutschke after its own investigation established the charges to be unfounded;
and (5) involuntary transfer
of
Kettenring and Wutschke from their assigned work location.
UTLA further alleged that the charge was timely filed since Kettenring and Wutschke
had filed a grievance related to the allegedly retaliatory involuntary transfer on September 19,
2005. 	UTLA contended that the statute
of
limitation was tolled during the time that the parties
2NLRB v. Weingarten, Inc. (1975) 420 U.S. 251 [88 LRRM 2689] (Weingarten).
2

had attempted to resolve the charge through the grievance machinery, a process that had been
continuing from September 19, 2005 through March 29, 2006.
UTLA filed an amended unfair practice charge on December 6, 2006, alleging that the
following facts would toll the statute
of
limitations for allegations other than the alleged
retaliatory transfer: (1) that UTLA's attorney was notified on March 22, 2006,
of
the filing
of
a
February 24, 2006 harassment and discrimination complaint against Kettenring and Wutschke
by a fellow teacher; (2) that Kettenring and Wutschke filed Grievance #2005-101612 on
August 24, 2005, amended on October 19, 2005, regarding the District's alleged breach
of
confidentiality during its investigation into the alleged discrimination complaint, and the
District's denial
of
Kettenring's and Wutschke's Weingarten rights; and (3) that Grievance
#2006-101999, filed on March 24, 2006, addressed the alleged issuance
of
critical material by
the District's Equal Opportunity Section after its own investigation established the charges to
be unfounded.
The District's Position Statement
In its position statement, the District argued that UTLA had failed to plead facts with
sufficient specificity to state a prima facie case. Additionally, the District argued, "To the
extent the Union is referencing the conference memoranda or any notices to either teacher,
such matters have been litigated and/or resolved," as such matters were already the subject
of
two prior PERB charges, Case No. LA-CE-4878-E and Case No. LA-CE-4909-E.3
3From our review, Case No. LA-CE-4878-E was pending before PERB at the time
of
this appeal; and Case No. LA-CE-4909-E was closed on June 30, 2006 subsequent to a
withdrawal of the charge. 	The underlying charges of these two cases were based upon at least
some of the same complaints and alleged protected activities as the present case, but involved
different alleged adverse actions from the present case. 	The District has not alleged how the
other cases have any preclusive effect on this case. Because we have concluded that the charge
in this case must be dismissed, it is unnecessary for us to further address this defense.
3

Board Agent's Dismissal and Deferral to Arbitration
The Board agent stated in the warning letter dated November 21, 2006, that the
retaliatory involuntary transfer allegation was timely filed because on September 19, 2005,
UTLA filed a grievance alleging that the District involuntarily transferred Kettenring in
retaliation for his union activities. The grievance progressed through the parties' mutually
agreed upon dispute resolution process, until March 29, 2006. The District stated in its
October 10, 2006, response that the grievance was still pending at that time. The Board agent
concluded that based on the facts and Section 3541.5, this allegation should be deferred to
arbitration under the applicable collective bargaining agreement (CBA) and dismissed in
accordance with PERB Regulation4 32620(b )( 5).
The Board agent issued a notice
of
dismissal and deferral to arbitration on
December 27, 2006, stating that all
of
the allegations stated in the original unfair practice
charge and the amended charge, except for those covered by the grievance UTLA filed on
September 19, 2005, and the harassment and discrimination complaint filed against Kettenring
and Wutschke by a fellow teacher on February 24, 2006, were untimely. 	The Board agent
stated that UTLA failed to provide "a date certain for the occurrence
of'
the alleged retaliatory
investigation and the discrimination complaints. Therefore, the Board agent found that it was
not possible for PERB to calculate whether the charge was timely filed as to these allegations,
and that the allegations in the amended charge did not state a prima facie case
of
violations
occurring within the statute of limitations.
With regard to the allegation that UTLA's attorney was notified on March 22, 2006,
of
the filing of a harassment and discrimination complaint by a fellow employee against
Kettenring and Wutschke on February 24, 2006, the Board agent found the District's
4PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
4

investigations
of
the complaints was not sufficient to state a prima facie case, because the
charge did not allege that the fellow employee was a supervisor or agent
of
the District at the
time she filed the complaint.
UTLA's Appeal
Amongst UTLA's contentions on appeal to the Board is the argument that the statute
of
limitations was tolled for the allegations5 contained in the unfair practice charge, due to two
grievances filed by Kettenring and Wutschke, on August 24, 2005 (amended on October 19,
2005), and on March 24, 2006, respectively. UTLA asserts that the parties' CBA requires
grievances to be filed within
15
days
of
the occurrence
of
a violation. It is "implicit" by the
CBA, UTLA argues, that the grievance has to be filed within
15
days
of
the alleged violations.
UTLA further contends that the District's acceptance
of
the grievances without challenging
their timeliness showed that the grievances were timely filed, and subsequently tolled the
statute
of
limitations for the filing
of
the unfair practice charge. UTLA therefore challenges
the Board agent's finding that "it
is
not possible for PERB to calculate whether the charge was
timely filed," without evidence pertaining to the dates
of
the occurrences
of
the alleged
retaliatory events.
DISCUSSION
The issue to be determined here is whether the CBA provision on the time limit for the
filing
of
grievances can be applied implicitly to satisfy the charging party's burden
of
alleging,
in a "clear and concise statement
of
facts," when the acts
of
reprisal took place. 	In Sacramento
5Included in these allegations were the District's issuance
of
complaints of harassment
and discrimination against Kettenring and Wutschke; abuse of the process for investigating
such complaints; violation of Kettenring's and Wutschke's Weingarten rights; and issuance of
critical material despite the Equal Opportunity Section investigation finding the complaints to
be unfounded; all in retaliation for the protected activity of Kettenring and Wutschke.
5

City Unified School District (2001) PERB Decision No. 1461 (Sacramento City Unified
School District), the Board adopted a warning letter that cited the following rule:
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair
practice charge include a 'clear and concise statement
of
the facts
and conduct alleged to constitute an unfair practice.' 	Thus, the
charging party's burden includes alleging the 'who, what, when,
where and how'
of
an unfair practice. 	(State
of
California
(Department
of
Food and Agriculture) (1994) PERB Decision
No. 1071-S, citing United Teachers-Los Angeles (Ragsdale)
(1992) PERB Decision No. 944.) Mere legal conclusions are not
sufficient to state a prima facie case. (Ibid.; Charter Oak Unified
School District (1991) PERB Decision No. 873.) [Sacramento
City Unified School District, warning letter, at p.
8.]
Additionally, the charging party has the burden
of
alleging facts showing that the unfair
practice charge was timely filed. 	(Tehachapi Unified School District (1993) PERB Decision
No. 1024; City
of
Santa Barbara (2004) PERB Decision No. 1628-M (City
of
Santa Barbara).)
The Board held that by failing to allege the date
of
a meeting at which an alleged violation
occurred, the charging party had failed to demonstrate that the charge was timely. (City
of
Santa Barbara, warning letter, at p. 4.)
In this case, UTLA has failed to satisfy its burden
of
stating sufficient facts to establish
that the alleged unfair practice occurred no more than six months prior to the filing
of
the charge.
(Sec. 3541.S(a)(l).) UTLA did not provide the dates
of
the occurrences of the alleged retaliatory
events, which were the subjects
of
the grievances filed on August 24, 2005 (amended on October
19, 2005) and March 24, 2006, respectively. Additionally, UTLA has failed to state sufficient
facts to show that the six-month limitations "have been tolled during the time it took the
charging party to exhaust the grievance machinery." (Sec. 3541.5 (a)(2).) UTLA did not state
unambiguously when the grievance procedure had ceased,
if
at all, for the two above-stated
grievances. 	On this basis, we concur with the Board agent's finding that absent a concise
statement of the dates of the occurrences of the alleged violations, and the date of the exhaustion
6

of
the grievance procedure, the timeliness
of
the allegations based upon the two aforementioned
grievances cannot be determined.
ORDER
Consistent with this decision, the allegation
of
retaliatory involuntary transfer in
Case No. LA-CE-4996-E
is
hereby dismissed and deferred to arbitration under the applicable
collective bargaining agreement. The remainder
of
the unfair practice charge is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members McKeag and Rystrom joined in this Decision.
7