San Francisco Unified School District (PERB 1730E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED EDUCATORS OF SAN FRANCISCO,
Charging Party, 	Case No. SF-CE-2383-E
v . 	PERB Decision No. 1730
December 27, 2004SAN FRANCISCO UNIFIED SCHOOL
DISTRICT,
Respondent.
Appearances: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for United
Educators of San Francisco; Lozano Smith by Namita S. Brown, Attorney, for San Francisco
Unified 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 the United Educators of San Francisco (UESF) of a Board
agent's dismissal (attached) of its unfair practice charge. The unfair practice charge alleged
that the San Francisco Unified School District (District) violated the Educational Employment
Relations Act (EERA)' by unilaterally transferring a bargaining unit position from UESF to the
United Administrator's (UA) bargaining unit.
The Board has reviewed the unfair practice charge in this matter, the District's
response, the warning and dismissal letters, UESF's appeal and the District's response to
UESF's appeal. Pursuant to our review, the Board dismisses the charge consistent with the
discussion below.
EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED EDUCATORS OF SAN FRANCISCO,
Charging Party,
V.
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT,
Res ondent.
Case No. SF-CE-2383-E
PERB Decision No. 1730
December 	27, 	2004
Appearances: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for United
Educators of San Francisco; Lozano Smith by Namita S. Brown, Attorney, for San Francisco
Unified 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 the United Educators of San Francisco (UESF) of a Board
agent's dismissal (attached) of its unfair practice charge. The unfair practice charge alleged
that the San Francisco Unified School District (District) violated the Educational Employment
Relations Act (EERA) 1 by unilaterally transferring a bargaining unit position from UESF to the
United Administrator's (UA) bargaining unit.
The Board has reviewed the unfair practice charge in this matter, the District's
response, the warning and dismissal letters, UESF's appeal and the District's response to
UESF's appeal. Pursuant to our review, the Board dismisses the charge consistent with the
discussion below.
1EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

BACKGROUND
UESF and the District were parties to a collective bargaining agreement (CBA), which
was in effect until June 30, 2004. The agreement provides for binding arbitration of
grievances.
During the 2002-2003 school year, unit member Robert Fisher (Fisher) served as a
teacher on special assignment as liaison for the "African-American Scholastic Program,"
which helps high school students gain access and admission to the city college. On March 11,
2003, the District eliminated several programs to reduce a $9 million deficit, including 12
teachers in special assignment positions, one of whom was Fisher. On May 21, 2003, the
District told Fisher that his position had been eliminated and consolidated pursuant to
Article 15 of the CBA, pertaining to procedures for consolidation of positions and transfer of
employees, and that he was being placed back in the classroom. On June 17, 2003, Fisher
learned that his position was not "consolidated," but rather transferred to another employee.
On July 1, 2003, UESF Representative Sandra Mack filed a Level 1 grievance alleging
that the transfer of Fisher's position to another employee violated CBA Article 15.1.4
covering consolidation/involuntary transfer. In a December 30, 2003 letter, the District denied
the grievance at Level 2 and notified UESF that it had transferred the liaison position from the
teachers' unit to an employee in UA's unit. On February 25, 2004, UESF filed the unfair
practice charge. In its response, the District indicated that the charge was untimely because
UESF was aware of the transfer as early as July 1, 2003; and that in any event, it was
scheduled for arbitration on August 12, 2004. In its response filed March 30, 2004, the District
argues that if the charge is not found to be untimely, then it should be deferred and has waived
procedural defenses.
Neither party provided a copy or summary of this provision of the CBA.
2
BACKGROUND
UESF and the District were parties to a collective bargaining agreement (CBA), which
was in effect until June 30, 2004. The agreement provides for binding arbitration of
grievances.
During the 2002-2003 school year, unit member Robert Fisher (Fisher) served as a
teacher on special assignment as liaison for the "African-American Scholastic Program,"
which helps high school students gain access and admission to the city college. On March 11,
2003, the District eliminated several programs to reduce a $9 million deficit, including 12
teachers in special assignment positions, one of whom was Fisher. On May 21, 2003, the
District told Fisher that his position had been eliminated and consolidated pursuant to
Article 15 of the CBA, pertaining to procedures for consolidation of positions and transfer of
employees, and that he was being placed back in the classroom. On June 17, 2003, Fisher
learned that his position was not "consolidated," but rather transferred to another employee.·
On July 1, 2003, UESF Representative Sandra Mack filed a Level 1 grievance alleging
that the transfer of Fisher's position to another employee violated CBA Article 15.1.42
covering consolidation/involuntary transfer. In a December 30, 2003 letter, the District denied
the grievance at Level 2 and notified UESF that it had transferred the liaison position from the
teachers' unit to an employee in UA's unit. On February 25, 2004, UESF filed the unfair
practice charge. In its response, the District indicated that the charge was untimely because
UESF was aware of the transfer as early as July 1, 2003; and that in any event, it was
scheduled for arbitration on August 12, 2004. In its response filed March 30, 2004, the District
argues that if the charge is not found to be untimely, then it should be deferred and has waived
procedural defenses.
2Neither party provided a copy or summary of this provision of the CBA.
2

BOARD AGENT'S DISMISSAL
The Board agent found the charge to be untimely, i.e., 45 days late. Even assuming the
charge is timely filed, the Board agent stated that the charge should be deferred to arbitration.
These findings were provided in the warning letter. UESF did not file an amended charge.
DISCUSSION
District's Late-filed Response
The District filed its response to the appeal late, explaining that it did not learn of the
appeal until it received notice that the case was docketed and that it did not receive a copy of
the appeal. The District alleges that although the appeal's proof of service indicates service on
the District, the District's address on the proof of service was incorrect and presumably sent to
the wrong address. The District filed its response to the appeal six days after it received the
letter from the PERB Appeal's Office regarding the date the case was docketed.
PERB Regulation 32136' provides:
A late filing may be excused in the discretion of the Board for
good cause only. A late filing which has been excused becomes a
timely filing under these regulations.
The Board will generally excuse a late filing "where a non-prejudicial delay of short
duration resulted from circumstances beyond the control of the filing party or from excusable
misinformation and where the filing party's explanation was either credible on its face or was
corroborated by other facts or testimony." (United Teachers of Los Angeles (Kestin) (2003)
PERB Order No. Ad-325, citing numerous Board decisions on this issue.) We find that the
District's response was late due to circumstances beyond the District's control. It is true that
the proof of service attached to the appeal contained an incorrect address for the District. It is
PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
W
BOARD AGENT'S DISMISSAL
The Board agent found the charge to be untimely, i.e., 45 days late. Even assuming the
charge is timely filed, the Board agent stated that the charge should be deferred to arbitration.
These findings were provided in the warning letter. UESF did not file an amended charge.
DISCUSSION
District's Late-filed Response
The District filed its response to the appeal late, explaining that it did not learn of the
appeal until it received notice that the case was docketed and that it did not receive a copy of
the appeal. The District alleges that although the appeal's proof of service indicates service on
the District, the District's address on the proof of service was incorrect and presumably sent to
the wrong address. The District filed its response to the appeal six days after it received the
letter from the PERB Appeal's Office regarding the date the case was docketed.
PERB Regulation 321363 provides:
A late filing may be excused in the discretion of the Board for
good cause only. A late filing which has been excused becomes a
timely filing under these regulations.
The Board will generally excuse a late filing "where a non-prejudicial delay of short
duration resulted from circumstances beyond the control of the filing party or from excusable
misinformation and where the filing party's explanation was either credible on its face or was
corroborated by other facts or testimony." (United Teachers of Los Angeles (Kestin) (2003)
PERB Order No. Ad-325, citing numerous Board decisions on this issue.) We find that the
District's response was late due to circumstances beyond the District's control. It is true that
the proof of service attached to the appeal contained an incorrect address for the District. It is
3PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
3

therefore plausible that the District did not learn of the appeal until receiving the letter from the
Appeals Office docketing this case. In addition, the response was filed within a week after the
District learned of the appeal. We therefore find good cause to excuse the late-filed response.
Timeliness of the Charge
EERA section 3541.5(a)(1) 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.)
UESF stated that it learned of the transfer to a different bargaining unit through the
District's response on December 30, 2003. The District argues that UESF knew when it filed
the grievance on July 1, 2003. The grievance language states that Fisher's position was not
consolidated "but transferred to another party." The District construes this language to show
UESF's knowledge that the position was transferred outside the bargaining unit. For the first
time on appeal, UESF states that the July 1 grievance language did not evidence its knowledge
of the nature of the transfer, but rather indicated a transfer to some unknown individual.
According to UESF, the unlawful effect of the transfer was not known by UESF until the
A
therefore plausible that the District did not learn of the appeal until receiving the letter from the
Appeals Office docketing this case. In addition, the response was filed within a week after the
District learned of the appeal. We therefore find good cause to excuse the late-filed response.
Timeliness of the Charge
EERA section 3541.S(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 oflnsurance) (1997) PERB
Decision No. 1197-S.)
UESF stated that it learned of the transfer to a different bargaining unit through the
District's response on December 30, 2003. The District argues that UESF knew when it filed
the grievance on July 1, 2003. The grievance language states that Fisher's position was not
consolidated "but transferred to another party." The District construes this language to show
UESF's knowledge that the position was transferred outside the bargaining unit. For the first
time on appeal, UESF states that the July 1 grievance language did not evidence its knowledge
of the nature of the transfer, but rather indicated a transfer to some unknown individual.
According to UESF, the unlawful effect of the transfer was not known by UESF until the
4

District's December 30 Level 2 response when the District provided this specific information."
The Level 1 grievance is attached to the District's response to the charge. The record does not
include a copy of the December 30 response.
Under PERB Regulation 32635(b), a charging party may not present new charge
allegations or new evidence on appeal without good cause. The allegation that UESF was
unaware of the District's unlawful conduct until December 30 was known to UESF at the time
it filed its charge. The District, through its response, notified UESF that it believed the charge
to be untimely. The Board agent also informed UESF in the warning letter that it could file an
amended charge if it disagreed with the Board agent's findings and analysis. However, UESF
chose not to provide this information until filing its appeal. Therefore, we find that UESF has
not provided good cause to raise this new evidence on appeal and thus sustain the Board
agent's finding of untimeliness.
Deferral to Arbitration
Even if a charge is untimely, under certain circumstances, the statute of limitations is
tolled. For example, 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, the
Board explained that:
UESF alleges that the unlawful conduct is the transfer of Fisher's position outside of
the bargaining unit. However, the Board has held that a unilateral transfer of duties within the
same bargaining unit without notice or opportunity to bargain also violates EERA. (See Desert
Sands Unified School District (2001) PERB Decision No. 1468.)
District's December 30 Level 2 response when the District provided this specific information.4
The Level 1 grievance is attached to the District's response to the charge. The record does not
include a copy of the December 30 response.
Under PERB Regulation 32635(b), a charging party may not present new charge
allegations or new evidence on appeal without good cause. The allegation that UESF was
unaware of the District's unlawful conduct until December 30 was known to UESF at the time
it filed its charge. The District, through its response, notified UESF that it believed the charge
to be untimely. The Board agent also informed UESF in the warning letter that it could file an
amended charge if it disagreed with the Board agent's findings and analysis. However, UESF
chose not to provide this information until filing its appeal. Therefore, we find that UESF has
not provided good cause to raise this new evidence on appeal and thus sustain the Board
agent's finding of untimeliness.
Deferral to Arbitration
Even if a charge is untimely, under certain circumstances, the statute of limitations is
tolled. For example, 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-8la,5 the
Board explained that:
4UESF alleges that the unlawful conduct is the transfer of Fisher's position outside of
the bargaining unit. However, the Board has held that a unilateral transfer of duties within the
same bargaining unit without notice or opportunity to bargain also violates EERA. (See Desert
Sands Unified School District (2001) PERB Decision No. 1468.)
5

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. [Fn. 2 omitted.]
In Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] (Collyer) 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.
In this case, a grievance covering CBA Article 15.1.4 is proceeding to arbitration. In its
response dated March 30, the District requests that the Board defer the charge and has waived
procedural defenses. However, for the first time on appeal, UESF states that the grievance and
the charge cover different issues and so deferral is not appropriate. For the reasons stated in
the previous discussion of PERB Regulation 32635(b), we find that there is no good cause to
accept UESF's new argument.
The Board notes that neither party has summarized or attached a copy of the pertinent
CBA provision so that it is impossible to determine whether the case should be deferred or
whether UESF's contention is valid. PERB Regulation 32615(a)(5) requires that a charge
contain "[a] clear and concise statement of the facts and conduct alleged to constitute an unfair
See also State of California (Department of Food and Agriculture) (2002) PERB
Decision No. 1473-S.
"Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.
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.S(a) essentially codifies the policy developed by the
NLRB regarding deferral to arbitration proceedings and awards.
It is apwopriate, therefore, to look for guidance to the private
sector. 61 [Fn. 2 omitted.]
In Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] (Collyer) 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.
In this case, a grievance covering CBA Article 15 .1.4 is proceeding to arbitration. In its
response dated March 30, the District requests that the Board defer the charge and has waived
procedural defenses. However, for the first time on appeal, UESF states that the grievance and
the charge cover different issues and so deferral is not appropriate. For the reasons stated in
the previous discussion of PERB Regulation 32635(b), we find that there is no good cause to
accept UESF's new argument.
· 	The Board notes that neither party has summarized or attached a copy of the pertinent
CBA provision so that it is impossible to determine whether the case should be deferred or
whether UESF's contention is valid. PERB Regulation 32615(a)(5) requires that a charge
contain "[a] clear and concise statement of the facts and conduct alleged to constitute an unfair
5See also State of California (Department of Food and Agriculture) (2002) PERB
Decision No. 1473-S.
6Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.
6

practice." Similarly, a respondent who asserts deferral as an affirmative defense defers
processing of the charge and must allege facts that evidence the three prongs required by
Collyer. In this case, therefore, there is insufficient information in the record to determine
whether the first Collyer prong is met. Therefore, we find that deferral is not warranted in this
matter.
Accordingly, the Board dismisses the charge solely on the basis of untimely filing.
ORDER
The unfair practice charge in Case No. SF-CE-2383-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Neima joined in this Decision.
7
practice." Similarly, a respondent who asserts deferral as an affirmative defense defers
processing of the charge and must allege facts that evidence the three prongs required by
Collyer. In this case, therefore, there is insufficient information in the record to determine
whether the first Collyer prong is met. Therefore, we find that deferral is not warranted in this
matter.
Accordingly, the Board dismisses the charge solely on the basis of untimely filing.
ORDER
The unfair practice charge in Case No. SF-CE-2383-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member Neima joined in this Decision.
7

STATE OF CALIFORNIA 	N
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: ($10) 622-1022
Fax: (510) 622-1027
May 5, 2004
Stewart Weinberg, Attorney
Weinberg, Roger & Rosenfeld
180 Grand Avenue, Suite 1400
Oakland, CA 94612
Re: 	United Educators of San Francisco v. San Francisco Unified School District
Unfair Practice Charge No. SF-CE-2383-E
DISMISSAL LETTER
Dear Mr. Weinberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 25, 2004. United Educators of San Francisco alleges that
the San Francisco Unified School District violated the Educational Employment Relations Act
(EERA)' by transferring a bargaining unit position from the UESF unit to the Administrator's
bargaining unit.
I indicated to you in my attached letter dated April 26, 2004, 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 May 3, 2004, the charge would be dismissed
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my [* **] letter.
Right to Appeal
Pursuant to PERB 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. (Regulation 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.
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
=S=TA=T=E~O=F-C=A=L_IF=O=RN=IA==~=cr--~-=====~~==~====(-·;~oLDSCHWARZENEGGER,Governor	OLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
May 5, 2004
Stewart Weinberg, Attorney
Weinberg, Roger & Rosenfeld
180 Grand Avenue, Suite 1400
Oakland, CA 94612
Re: 	United Educators of San Francisco v. San Francisco Unified School District
Unfair Practice Charge No. SF-CE-2383-E
DISMISSAL LETTER
Dear Mr. Weinberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 25, 2004. United Educators of San
the San Francisco Unified School District violated the Educational Employment Relations Act
(EERA)1 by transferring a bargaining unit position from the UESF unit to the Administrator's
bargaining unit.
Francisco alleges that
I indicated to you in my attached letter dated April 26, 2004, 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 May 3, 2004, the charge would be dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my[***] letter.
Right to Appeal
Pursuant to PERB Regulations,2 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. (Regulation 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.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-2383-E
May 5, 2004
Page 2
SF-CE-2383-E
May 5, 2004
Page2
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 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 Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 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. (Regulation 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 Regulation 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. (Regulation 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 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. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 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 Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 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. (Regulation 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 Regulation 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. (Regulation 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 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. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.

C
SF-CE-2383-E
May 5, 2004
Page 3
SF-CE-2383-E
May 5, 2004
Page3
(
Sincerely,
ROBERT THOMPSON
General Counsel
By _
Kristin L. Rosi
Regional Attorney
Attachment
cc: Namita Brown
Sincerely,
ROBERT THOMPSON
General Counsel
By 	1£-L 	2Kri~tin L. Rosi ,
Regional Attorney
Attachment
cc: Namita Brown

STATE OF CALIFORNIA 	JOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
April 26, 2004
Stewart Weinberg, Attorney
Weinberg, Roger & Rosenfeld
180 Grand Avenue, Suite 1400
Oakland, CA 94612
Re: 	United Educators of San Francisco v. San Francisco Unified School District
Unfair Practice Charge No. SF-CE-2383-E
WARNING LETTER
Dear Mr. Weinberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 25, 2004. United Educators of San Francisco alleges that
the San Francisco Unified School District violated the Educational Employment Relations Act
(EERA)' by transferring a bargaining unit position from the UESF unit to the Administrator's
bargaining unit.
Investigation of the charge revealed the following. UESF is the exclusive bargaining
representative for the District's certificated employees. Included within the UESF bargaining
unit is the classification of "teachers on special assignment." The District and UESF are
parties to a collective bargaining agreement that expires on June 30, 2004. Article 19.8.3.1 of
the Agreement provides for the binding arbitration of grievances. Article 15 of the Agreement
provides the procedures for consolidation of positions and the transfer of employees.
During the 2002-2003 school year, bargaining unit member Robert Fisher served as a teacher
on special assignment. Mr. Fischer's assignment was as the liaison for the "African-American
Scholastic Program" which helps high school students gain access and admission to the City
College.
On March 11, 2003, the District eliminated many programs and many positions in order to
reduce a $9 million dollar deficit. Included in the elimination were 12 "teachers on special
assignment" positions, including Mr. Fisher's position.
On May 21, 2003, the District informed Mr. Fisher that his position had been eliminated and
he would be consolidated, as required by Article 15, and placed back in the classroom. On
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
April 26, 2004
Stewart Weinberg, Attorney
Weinberg, Roger & Rosenfeld
180 Grand Avenue, Suite 1400
Oakland, CA 94612
Re: 	United Educators of San Francisco v. San Francisco Unified School District
Unfair Practice Charge No. SF-CE-2383-E
WARNING LETTER
Dear Mr. Weinberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 25, 2004. United Educators of San Francisco alleges that
the San Francisco Unified School District violated the Educational Employment Relations Act
(EERA)1 by transferring a bargaining unit position from the UESF unit to the Administrator's
bargaining unit.
Investigation of the charge revealed the following. UESF is the exclusive bargaining
representative for the District's certificated employees. Included within the UESF bargaining
unit is the classification of "teachers on special assignment." The District and UESF are
parties to a collective bargaining agreement that expires on June 30, 2004. Article 19.8.3.1 of
the Agreement provides for the binding arbitration of grievances. Article 15 of the Agreement
provides the procedures for consolidation of positions and the transfer of employees.
During the 2002-2003 school year, bargaining unit member Robert Fisher served as a teacher
on special assignment. Mr. Fischer's assignment was as the liaison for the "African-American
Scholastic Program" which helps high school students gain access and admission to the City
College.
On March 11, 2003, the District eliminated many programs and many positions in order to
reduce a $9 million dollar deficit. Included in the elimination were 12 "teachers on special
assignment" positions, including Mr. Fisher's position.
On May 21, 2003, the District informed Mr. Fisher that his position had been eliminated and
he would be consolidated, as required by Article 15, and placed back in the classroom. On
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet.at www.perb.ca.gov.

SF-CE-2383-E
April 26, 2004
Page 2
SF-CE-2383-E
April26,2004
Page 2
June 17, 2003, Mr. Fisher learned that his position was not "consolidated" but instead
transferred to another employee in the United Administrators bargaining unit.
On July 1, 2003, UESF representative Sandra Mack filed a level one grievance alleging as
follows:
On or about May 21, 2003, Mr. Fisher received from the District
a Notice of Consolidation that stated his position would be
consolidated due to a reduction in the available budget. On or
about June 17, 2003, Mr. Fisher became aware that his position
was not being consolidated but transferred to another party.
The contract was violated, including, but not limited to the
following: Article 15.1.4 and any other articles which may
pertain to this case. . . .
United Educators of San Francisco wants Robert Fisher to be
made whole by having his notice of consolidation rescinded and
his being confirmed in the position he held in the 2002-2003
school year.
On February 25, 2004, UESF filed this unfair practice charge alleging Mr. Fisher's position
was transferred to another bargaining unit.
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.
EERA section 3541.5(a)(1) 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.)
Herein, it is clear that UESF and Mr. Fisher were aware that his position was allegedly
ransferred to another employee on July 1, 2003, when they filed the level one grievance.
Since the charge was filed on February 25, 2004, the charge is untimely by 45 days, and
therefore must be dismissed.
Moreover, even assuming the charge is timely filed, the charge still fails to state a prima facie
case, as the charge is subject to deferral.
June 17, 2003, Mr. Fisher learned that his position was not "consolidated" but instead
transferred to another employee in the United Administrators bargaining unit.
On July 1, 2003, UESF representative Sandra Mack filed a level one grievance alleging as
follows:
On or about May 21, 2003, Mr. Fisher received from the District
a Notice of Consolidation that stated his position would be
consolidated due to a reduction in the available budget. On or
about June 17, 2003, Mr. Fisher became aware that his position
was not being consolidated but transferred to another party.
The contract was violated, including, but not limited to the
following: Article 15 .1.4 and any other articles which may
pertain to this case ....
United Educators of San Francisco wants Robert Fisher to be
made whole by having his notice of consolidation rescinded and
his being confirmed in the position he held in the 2002-2003
school year.
On February 25, 2004, UESF filed this unfair practice charge alleging Mr. Fisher's position
was transferred to another bargaining unit.
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.
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 oflimitations 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.)
Herein, it is clear that UESF and Mr. Fisher were aware that his position was allegedly
transferred to another employee on July 1, 2003, when they filed the level one grievance.
Since the charge was filed on February 25, 2004, the charge is untimely by 45 days, and
therefore must be dismissed.
Moreover, even assuming the charge is timely filed, the charge still fails to state a prima facie
case, as the charge is subject to deferral.

SF-CE-2383-E
April 26, 2004
Page 3
SF-CE-2383-E
April 26, 2004
Page 3
Section 3541.5(a) 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," 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. [Fn. 2 omitted; fn. 3 to Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608.]
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, by the attached letter from its representative, Namita Brown, dated March 30, 2004,
the Respondent has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, the issue raised by this charge that the District violated the
contract by consolidating Mr. Fisher directly involves an interpretation of Article 15 of the
collective bargaining agreement.
Accordingly, this charge must be deferred to arbitration and will be dismissed. Following the
arbitration of this matter, the Charging Party may seek a repugnanty review by PERB of the
arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los Angeles Unified
2 See also State of California (Department of Food and Agriculture) (2002) PERB
Decision No. 1473-S.
Section 3541.S(a) 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,2 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.2 EERA
section 3541.S(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. 	[Fn. 2 omitted; fn. 3 to Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608.]
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, by the attached letter from its representative, Namita Brown, dated March 30, 2004,
the Respondent has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, the issue raised by this charge that the District violated the
contract by consolidating Mr. Fisher directly involves an interpretation of Article 15 of the
collective bargaining agreement.
Accordingly, this charge must be deferred to arbitration and will be dismissed. Following the
arbitration of this matter, the Charging Party may seek a repugnancy review by PERB of the
arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los Angeles Unified
2 See also State of California (Department of Food and Agriculture) (2002) PERB
Decision No. 1473-S.

SF-CE-2383-E
April 26, 2004
Page 4
SF-CE-2383-E
April 26, 2004
Page4
School District (1982) PERB Decision No. 218; Dry Creek Joint Elementary School District,
supra.)
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 that 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 May 3, 2004, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR
Pursuant to Government Code 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.
School District (1982) PERB Decision No. 218; Dry Creek Joint Elementary School District,
supra.)3 	_
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 that 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
comer 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 May 3, 2004, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR
3 Pursuant to Government Code section 3541.S(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.