Oxnard Elementary School District (PERB 1728E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EVELYN YBARRA-GROSFIELD,
Charging Party,
v.
OXNARD ELEMENTARY SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4722-E
PERB Decision No. 	1728
December 	2 1 , 	2004
Appearances: 	Evelyn Ybarra-Grosfield, on her own behalf; Burke, Williams & Sorenson, LLP
by Yuri A. Calderon, Attorney, for Oxnard Elementary School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Evelyn Ybarra-Grosfield (Ybarra-Grosfield) of a Board agent's
dismissal of her unfair practice charge. 	The charge alleged that the Oxnard Elementary School
District (District) violated the Educational Employment Relations Act (EERA)1by
misapplying its summer pay and substitute pay policies.
The Board has reviewed the entire record in this matter, including the unfair practice
charge, the amended unfair practice charge, the District's response to the charge, the Board
agent's warning and dismissal letters, and Ybarra-Grosfield's appeal.2 In light of this review,
the Board finds that the unfair practice charge should be dismissed and deferred to arbitration.
EERA is codified at Government Code section 3540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2The Board did not accept the District's late-filed response to the appeal since it did not
show good cause under PERB Regulation 32136. (PERB regs. are codified at Cal. Code Regs.,
tit. 8, sec. 31001, et seq.)

BACKGROUND
This case is the second in a series of events involving these parties. The Board recently
dismissed a charge involving facts preceding the ones at issue. 	(See Oxnard Elementary
School District (2004) PERB Decision No. 1679.)
Ybarra-Grosfield is employed by the District as a permanent teacher and is a member of
the certificated bargaining unit. During the 2002-2003 school year, Ybarra-Grosfield and the
District disputed the District's calculation of Ybarra-Grosfield's pay.
According to the District, Education Code sections 45038 and 45039 authorize the
District to divide the annual salary estimate into 10, 11, or 12 equal payments. The collective
bargaining agreement (CBA) between the Oxnard Educators Association (OEA) and the
District provides that unit members are to be compensated in 12 equal payments. However,
due to reporting requirements to the California State Teachers' Retirement System and the
County Office of Education, the District is unable to divide the total by 12 as required by the
CBA. Instead, the District must divide the salary into 11 monthly equal payments, withhold
approximately 8.33 percent of gross salary from each paycheck, and make one final installment
payment in July, which is referred to as "summer pay." The 8.33 percent deduction for 11
months amounts to one month's pay.
This total is only an estimate of actual earned salary. A teacher's earned salary is
calculated by multiplying the daily rate by the number of days the teacher actually worked.
Absences due to illness or accident are compensated through the paid leave entitlement to
avoid a deduction in salary. A teacher may work as little as 8 days in a month or as many as
23 days. The Education Code also provides teachers with additional time off with
compensation for accident or illness. 	If a teacher is absent in excess of the allotted paid leave
time and must take unpaid sick leave, the teacher's pay is adjusted by subtracting from the
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monthly estimate the number of unpaid sick leave days times the daily pay rate. This
adjustment is made in subsequent months. When a teacher's absences exceed earned pay, the
teacher will owe the District money.3
Under Education Code 44977, once paid leave is exhausted, the teacher is paid
differential pay up to five months (or 100 days) and the amount deducted cannot exceed the
sum actually paid a substitute, i.e., the teacher is entitled to the daily pay rate minus the actual
pay to a substitute teacher hired to replace the absent teacher. The District has adopted a
substitute salary schedule designed to attract high quality substitutes. 	Substitutes initially
receive $95 per day but beginning the 15th consecutive day of the same assignment, that rate is
increased to $105. Beginning with the 61 st day of the same assignment, the amount is changed
to the rate paid to permanent teachers. All substitutes for summer school/intersession are paid
$25 per hour. Retired teachers or contract teachers who wish to work extra hours as a
substitute are paid $120 per day irrespective of the duration of their service. This schedule has
been in effect since 1999 but changes may be negotiated.
Beginning in September 2002, this payment system was applied to Ybarra-Grosfield.
In the 2002-2003 school year, Ybarra-Grosfield worked a total of 26.5 days out of the 181
work days in the CBA. Her 10 paid sick days were exhausted at the beginning of September
2002. 	Ybarra-Grosfield used her sick leave and accident leave to cover some of these
absences. 	On July 22, 2003, Ybarra-Grosfield met with the District requesting that the District
refund her monies she felt were due her. 	She believed that the District owed her $3099.66,
which the District had deducted as "summer pay." She alleges that this was due to
overpayment of the substitute by $3622.91. On July 24, 2003, Ybarra-Grosfield e-mailed the
Ventura County Superintendent of Schools, Charles Weis (Weis), related the situation to him
The CBA provision on sick leave and computation of pay sets forth this procedure.
W	
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and asked for payment pursuant to Education Code 45035.4 Weis assured her that payment
would be made. On August 13, 2003, Ybarra-Grosfield wrote to the District business services
office to request payment. On August 15, 2003, the District's general counsel wrote to Ybarra-
Grosfield asking her to stop harassing District employees about issues related to her pending
grievances. The letter explained why she would not be receiving summer pay that year. The
letter also stated that mediation of her grievance was scheduled for September 8, 2003, where
she will have the opportunity to discuss her pay issues. The general counsel suggested that
Ybarra-Grosfield contact the District's Human Resources Officer if she had questions. 	On
September 3, 2003, Ybarra-Grosfield e-mailed Dr. Mark Jackson, the Assistant Superintendent
for Human Resources and Support Services to decline authorization of such deductions from
her paycheck for the following school year and to seek reimbursement for monies already
deducted.
Back on April 28, 2003, Ybarra-Grosfield filed a grievance regarding summer pay and
payment of substitutes. The grievance was denied at Steps 1 through 3 on the basis that she
overdrew her sick leave in May and June 2003 and deducted the difference from her paycheck.
Ybarra-Grosfield then requested Step 4 mediation. 	The charge alleges that the mediation
occurred on January 30, 2004 without Ybarra-Grosfield's presence or her consent. 	The
mediator e-mailed Ybarra-Grosfield explaining that the mediation service only deals with
Education Code section 45035 provides:
If any school district fails to pay the salary of any person employed
by it in a position requiring certification qualifications who has on
file a contract of employment held valid by the legal adviser of the
county superintendent of schools having jurisdiction over the
district, such county superintendent of schools may transfer
sufficient money from the funds of the district to the county school
service fund and pay such salary from such fund.
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disputes between employee organizations and employers, and that OEA did not rebut the
District's position. 	She believed that an arbitrator would rule in favor of the District.
Ybarra-Grosfield also alleges that the substitute teacher who worked during her
absences was overpaid. Although the substitute could be paid up to $120 per day, she was
actually paid more than $200 per day.
The amended charge appears to allege the District's failure to reasonably accommodate
her allergies. 	She does not identify a CBA provision covering this issue. When she inquired
about the discrepancy in her pay, the District wrote her to stay away from the payroll
department because these communications constituted "harassment." She states that there is
no CBA provision or school board policy that establishes how substitutes are paid. Finally,
Ybarra-Grosfield argues that the statute of limitations should be three years similar to civil
proceedings, instead of six months.
BOARD AGENT'S DISMISSAL
The Board agent determined the charge to be untimely filed. 	The charge was filed on
February 2, 2004. Therefore, only events occurring on or after August 2, 2003 would be
considered timely. In April 2003, Ybarra-Grosfield filed a grievance regarding the pay issues.
In July 2003, she met with District officials regarding this issue. 	Since Ybarra-Grosfield knew
of the District's conduct before August 2003, i.e., more than six months before filing the
charge, the Board agent found the charge untimely and dismissed the charge.
The Board agent further explained that under certain circumstances, the limitations
period may be tolled. For example, EERA section 3541.5(a)(2) allows tolling of the
limitations period during the time it takes to exhaust the grievance machinery. However, the
issue presented in the unfair practice charge must be the same as the issue presented in the
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grievance procedure. The charge fails to show that the grievance covers the same allegations
as the charge.
Even assuming the charge were timely filed, the Board agent found the charge failed to
state a prima facie case. Although the charge did not allege discrimination, the Board agent
analyzed it under that theory. 	The charge does not demonstrate protected conduct that
occurred before the adverse action or that the District's actions are unlawfully motivated by
Ybarra-Grosfield's protected conduct. 	The amended charge failed to correct any of the
deficiencies stated in the warning letter and only argued that a 3-year statute was appropriate
since it would match the limitations period in civil proceedings.
YBARRA-GROSFIELD'S APPEAL
On appeal, Ybarra-Grosfield states that she is representing other unnamed employees
with the same complaint. The conduct is continuous and so the statute of limitations has not
run. 	She asserts that the Board should enforce the CBA and that sometimes grievances take
longer than six months, as in this particular case. She asserts that PERB should have a longer
limitations period to correspond with CBA grievance processes.
She also raises issues about OEA failing to fairly represent her. OEA and the District
mediated without her consent or presence. 	The District withheld her summer pay based upon
inaccurate calculations in order to pay a substitute $210 per day, an unlawful amount.
Ybarra-Grosfield also raises new issues about signing away her rights to work in an
allergen-free classroom on April 12, 2004, the day before the appeal was filed. Attached to the
appeal is the alleged written waiver. 	She raises issues about the District's failure to pay certain
insurance premiums that she authorized with pay stubs attached in support of this allegation.
Her concluding plea however is for the Board to reconsider her allegations regarding summer
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pay and overpayment of substitutes from her salary on behalf of herself and all other District
teachers similarly affected.
DISCUSSION
EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. 	(Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) The statute of limitations is an affirmative defense
which has been raised by the respondent in this case. (Long Beach Community College
District (2003) PERB Decision No. 1564.) Therefore, charging party now bears the burden of
demonstrating that the charge is timely filed. 	(Cf. Tehachapi Unified School District (1993)
PERB Decision No. 1024; State of California (Department of Insurance) (1997) PERB
Decision No. 1197-S.)
In this case, in April 2003, Ybarra-Grosfield filed a grievance regarding summer pay
and overpayment of substitutes. 	Thus, Ybarra-Grosfield was aware of these issues in excess of
six months before filing the unfair practice charge and so normally, her charge would be
deemed to be untimely.
However, in certain circumstances, the statute of limitations may be tolled. For
example, the limitation period is tolled during the time it takes the charging party to exhaust
the contractual grievance machinery through settlement or binding arbitration. 	(Sacramento
City Unified School District (2001) PERB Decision No. 1461 (Sacramento).) EERA section
3541.5(a)(2) provides, in pertinent part:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following:
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(2) Issue a complaint against conduct also prohibited by the
provisions of the agreement between the parties until the
grievance machinery of the agreement, if it exists and covers the
matter at issue, has been exhausted, either by settlement or
binding arbitration.. . .The board shall, in determining whether
the charge was timely filed, consider the six-month limitation set
forth in this subdivision to have been tolled during the time it
took the charging party to exhaust the grievance machinery.
The statute of limitations begins to run once the party knew or should have known of
the conduct underlying the charge. (Sacramento.) The statute is tolled once the grievance is
filed, but only regarding the conduct contained in the grievance. 	(Id) The limitations period
begins to run again once the grievance process has been exhausted. (Id.)
Citing State of California (Department of Food and Agriculture) (2002) PERB Decision
No. 1473-S (Food and Agriculture), in its response to the charge, the District asks that the
charge be deferred to arbitration. We agree. 	Section 3541.5(a) (2) of the EERA states, in
pertinent part, that PERB shall not:
Issue a complaint against conduct also prohibited by the
provisions of the [collective bargaining] agreement between the
parties until the grievance machinery of the agreement, if it exists
and covers the matter at issue, has been exhausted, either by
settlement or binding arbitration.
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a (Dry Creek). 5
the Board explained that:
While there is no statutory deferral requirement imposed on the
National Labor Relations Board (hereafter NLRB), that agency
has voluntarily adopted such a policy both with regard to post-
arbitral and pre-arbitral award situations. EERA section
3541.5(a) essentially codifies the policy developed by the NLRB
regarding deferral to arbitration proceedings and awards. 	It is
appropriate, therefore, to look for guidance to the private
sector. [3] [Fn. omitted; fn. 3 to Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608.]
See also Food and Agriculture.
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In Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] and subsequent
cases, the National Labor Relations Board articulated standards under which deferral to the
contractual grievance procedure is appropriate in prearbitral situations. These requirements
are: (1) the dispute must arise within a stable collective bargaining relationship where there is
no enmity by the respondent toward the charging party; (2) the respondent must be ready and
willing to proceed to arbitration and must waive contract-based procedural defenses; and
(3) the contract and its meaning must lie at the center of the dispute.
These standards are met with respect to this case. First, no evidence has been produced
to indicate that the parties are not operating within a stable collective bargaining relationship.
Second, the District's response dated February 20, 2004, indicated its willingness to proceed to
arbitration. 	The District did not raise any procedural defects.6 Finally, contrary to the finding
in the dismissal, we conclude that the issues raised in the grievance are the same as the
allegations in the unfair practice charge. Both the grievance and the charge allege that the
District wrongly did not pay Ybarra-Grosfield her summer pay and overpaid her substitute
teacher at her expense. The District itself asserts this fact in its February 20, 2004 response to
Ybarra-Grosfield's charge. 	The District further states in its response that the grievance was
submitted to Level 5 arbitration, that the parties had recently selected an arbitrator, but that the
date for arbitration had not yet been scheduled. 	Ybarra-Grosfield never disputes these facts.
Accordingly, this charge must be deferred to arbitration and will be dismissed.
Following the arbitration of this matter, Ybarra-Grosfield may seek a repugnancy review by
If there are procedural defects involved in the grievance and if the District refuses to
waive its procedural defenses, then Ybarra-Grosfield may resubmit her charge for further
processing.
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PERB of the arbitrator's decision under the Dry Creek criteria. (See PERB Reg. 32661;
Los Angeles Unified School District (1982) PERB Decision No. 218; Dry Creek, supra.)7
Ybarra-Grosfield also raised new issues in her appeal about OEA's failure to fairly
represent her, about signing a form dated April 12, 2004 and about the District's failure to pay
certain insurance premiums on her behalf. 	However, the Board will not entertain new charge
allegations or new evidence absent a showing of good cause. 	(PERB Reg. 32635.) Here,
Ybarra-Grosfield has not provided support for a showing of good cause.
The Board notes that the District filed two separate late responses 	bot0
h dated May 20,
2004 to two different PERB offices without including any evidence that the responses were
served on Ybarra-Grosfield. 	As a result, these responses were not considered in rendering our
decision.
Therefore, the Board orders that the charge be dismissed and deferred to arbitration.
ORDER
The unfair practice charge in Case No. LA-CE-4722-E is hereby DISMISSED and
DEFERRED TO ARBITRATION.
Chairman Duncan and Member Neima joined in this Decision.
Pursuant to EERA section 3541.5(a), the six-month limitation on the filing of a charge
is tolled during the time required to exhaust the grievance machinery where that procedure
ends in binding arbitration.
10
0
The case was docketed on May 10, 2004.