Los Angeles Community College District (PERB 2059E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CARMEN BAPRA WSKI,
Charging Party,
v.
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-4883-E
PERB Decision No. 2059
September
8,
2009
Appearances: Carmen Baprawski, on her own behalf; Atkinson, Andelson, Loya, Ruud &
Romo by Joshua
E.
Morrison, Attorney, for Los Angeles Community College District.
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
McKEAG, Member: This case is before the Public Employment Relations
Board
(PERB or Board) on exceptions by Carmen Baprawski (Baprawski) to the proposed
decision
(attached)
of
an administrative law judge (ALJ). The PERB complaint alleged that the
Los Angeles Community College District (District) retaliated against Baprawski for
using
a
union representative to obtain a reassignment and by rescinding the reassignment in
violation
of Educational Employment Relations Act (EERA) section 3543.5, subdivision (a). 1
Prior to the hearing on the merits
of
the complaint, the District filed a motion to
dismiss, asserting the unfair practice charge was untimely and that the complaint failed
to
state
any protected activity. After taking evidence solely on the motion, the ALJ found the
unfair
practice charge was not timely filed and granted the District's motion.
1EERA is codified at Government Code section 3540 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CARMEN BAPRAWSKI,
Charging Party, 	Case No. LA-CE-4883-E
V . 	PERB Decision No. 2059
September 8, 2009LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
Appearances: Carmen Baprawski, on her own behalf; Atkinson, Andelson, Loya, Ruud &
Romo by Joshua E. Morrison, Attorney, for Los Angeles Community College District.
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
McKEAG, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Carmen Baprawski (Baprawski) to the proposed decision
(attached) of an administrative law judge (ALJ). The PERB complaint alleged that the
Los Angeles Community College District (District) retaliated against Baprawski for using a
union representative to obtain a reassignment and by rescinding the reassignment in violation
of Educational Employment Relations Act (EERA) section 3543.5, subdivision (a).
Prior to the hearing on the merits of the complaint, the District filed a motion to
dismiss, asserting the unfair practice charge was untimely and that the complaint failed to state
any protected activity. After taking evidence solely on the motion, the ALJ found the unfair
practice charge was not timely filed and granted the District's motion.
EERA is codified at Government Code section 3540 et seq.

We have reviewed the entire record, including but not limited to the unfair practice
charge, the complaint, the District's answer to the complaint and subsequent motion to dismiss,
Baprawski's opposition to the motion, the hearing transcripts, the District's and Baprawski's
post-hearing briefs, Baprawski's exceptions to the ALJ's proposed decision, and the District's
response to those exceptions. Based on this review, we find the proposed decision was well
reasoned, adequately supported by the record and generally in accordance with applicable law.
However, subsequent to the issuance of the proposed decision, the Board issued
Long Beach Community College District (2009) PERB Decision No. 2002 (Long Beach II) in
which the Board clarified the scope of equitable tolling under EERA. Because equitable
tolling was considered in the proposed decision, the Board hereby adopts the proposed decision
as a decision of the Board itself, subject to the following discussion regarding equitable tolling
in light of Long Beach JI.
REQUEST FOR ORAL ARGUMENT
Baprawski requested oral argument in this matter. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties have had an
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (City of Modesto
(2008) PERB Decision No. 1994-M.) Based on our review of the record, all of the above
criteria have been satisfied. Accordingly, Baprawski's request for oral argument is hereby
denied.
DISCUSSION
A. 	Equitable Tolling Does Not Apply In This Case
Baprawski argues that the statute of limitations should be equitably tolled from June 3,
2005 through September 1, 2005, because, after PERB dismissed her first charge and deferred
2
We have reviewed the entire record, including but not limited to the unfair practice
charge, the complaint, the District's answer to the complaint and subsequent motion to dismiss,
Baprawski's opposition to the motion, the hearing transcripts, the District's and Baprawski's
post-hearing briefs, Baprawski's exceptions to the ALI's proposed decision, and the District's
response to those exceptions. Based on this review, we find the proposed decision was well-
reasoned, adequately supported by the record and generally in accordance with applicable law.
However, subsequent to the issuance of the proposed decision, the Board issued
Long Beach Community College District (2009) PERB Decision No. 2002 (Long Beach II) in
which the Board clarified the scope of equitable tolling under EERA. Because equitable
tolling was considered in the proposed decision, the Board hereby adopts the proposed decision
as a decision of the Board itself, subject to the following discussion regarding equitable tolling
in light of Long Beach II.
REQUEST FOR ORAL ARGUMENT
Baprawski requested oral argument in this matter. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties have had an
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (City of Modesto
2008) PERB Decision No. 1994-M.) Based on our review of the record, all of the above
criteria have been satisfied. Accordingly, Baprawski's request for oral argument is hereby
denied.
DISCUSSION
A. 	Equitable Tolling Does Not Apply In This Case
Baprawski argues that the statute of limitations should be equitably tolled from June 3,
2005 through September 1, 2005, because, after PERB dismissed her first charge and deferred
2

it to arbitration, she continued to pursue her grievance and did not receive final notice that her
exclusive representative would not take her grievance
to
arbitration until September
1,
2005.
EERA section 3541.5, subdivision (a)(2) provides that the statute
of
limitation will be
tolled when the parties attempt to resolve their differences through a collectively bargained
grievance process that ends in binding arbitration. This mechanism, sometimes referred
to
as
statutory tolling, tolls the statute
of
limitations during the time it took the charging party
to
exhaust the grievance machinery.
In addition to statutory tolling, the Board in Long Beach
IL
reaffirmed its decision in
Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach
I)
that
equitable tolling is allowed under EERA. Long Beach II holds that the statute
of
limitations
under EERA "is tolled during the period
of
time the parties are utilizing a non-binding
dispute
resolution procedure if:
	(I)
the procedure is contained in a written agreement negotiated
by
the
parties; (2) the procedure is being used to resolve the same dispute that is the subject
of
the
unfair practice charge; (3) the charging party reasonably and in good faith pursues the
procedure; and (4) tolling does not frustrate the purpose
of
the statutory limitation period
by
causing surprise or prejudice to the respondent." (Long Beach II, emphasis added.)
In the instant case, the parties' grievance process ended in binding arbitration.
	Thus,
equitable tolling as delineated in Long Beach II cannot apply to Baprawski's grievance
because, pursuant to the applicable agreement, the grievance procedure ended in binding
arbitration. Accordingly, if any tolling applies to the June 3, 2005 through September 1, 2005
period, it is the statutory tolling provided for in EERA section 3541.5, subdivision (a)(2).
B. 	The Charging Party Bears The Burden Of Proving A Charge Is Timely Filed
Contending that the District waived the issue of timeliness by withdrawing its answer
to
the complaint, Baprawski argues that the charge was timely filed and that she did not bear the
3
it to arbitration, she continued to pursue her grievance and did not receive final notice that her
exclusive representative would not take her grievance to arbitration until September 1, 2005.
EERA section 3541.5, subdivision (a)(2) provides that the statute of limitation will be
tolled when the parties attempt to resolve their differences through a collectively bargained
grievance process that ends in binding arbitration. This mechanism, sometimes referred to as
statutory tolling, tolls the statute of limitations during the time it took the charging party to
exhaust the grievance machinery.
In addition to statutory tolling, the Board in Long Beach II, reaffirmed its decision in
Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach I) that
equitable tolling is allowed under EERA. Long Beach II holds that the statute of limitations
under EERA "is tolled during the period of time the parties are utilizing a non-binding dispute
resolution procedure if: (1) the procedure is contained in a written agreement negotiated by the
parties; (2) the procedure is being used to resolve the same dispute that is the subject of the
unfair practice charge; (3) the charging party reasonably and in good faith pursues the
procedure; and (4) tolling does not frustrate the purpose of the statutory limitation period by
causing surprise or prejudice to the respondent." (Long Beach II, emphasis added.)
In the instant case, the parties' grievance process ended in binding arbitration. Thus,
equitable tolling as delineated in Long Beach II cannot apply to Baprawski's grievance
because, pursuant to the applicable agreement, the grievance procedure ended in binding
arbitration. Accordingly, if any tolling applies to the June 3, 2005 through September 1, 2005
period, it is the statutory tolling provided for in EERA section 3541.5, subdivision (a)(2).
B. The Charging Party Bears The Burden Of Proving A Charge Is Timely Filed
Contending that the District waived the issue of timeliness by withdrawing its answer to
the complaint, Baprawski argues that the charge was timely filed and that she did not bear the
3

evidentiary burden on the issue of timeliness. In Long Beach II, however, the Board held that
timeliness of the charge is an element of the charging party's prima facie case and, thus, the
burden of proof to show that the charge was timely filed is on the charging party.
(Long Beach II, at pp. 12-13.) Long Beach II overruled Walnut Valley Unified School District
(1983) PERB Decision No. 289 and its progeny as well as Long Beach Ito the extent that these
cases hold that the respondent bears both the burden of pleading the statute of limitations as an
affirmative defense in its answer and the burden of proving at hearing that the charge was
untimely. 	Given the Board's holding that timeliness is an element of the charging party's
prima facie case, we find Baprawski' s claim to be without merit.
C. 	Tolling Issue Not Before The Board
In American Federation of Teachers (Kok) (1999) PERB Decision No. 1352, a case
issued after the elimination of equitable tolling in 1989, the Board held that prior PERB
charges no longer tolled the statute of limitations. Based on the return of equitable tolling in
Long Beach I, the ALJ concluded that the six-months limitations period was tolled from
April 6, 2005 until May 31, 2005, while Baprawski's first charge was being processed.
None of the parties excepted to this finding by the ALI. Consequently, the issue is not
squarely before the Board and need not be addressed herein. Therefore, we do not decide in
this decision whether the doctrine of equitable tolling applies during the pendency of
proceedings before PERB involving the same factual allegations.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-4883-E is
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.
4
evidentiary burden on the issue of timeliness. In Long Beach II, however, the Board held that
timeliness of the charge is an element of the charging party's prima facie case and, thus, the
burden of proof to show that the charge was timely filed is on the charging party.
(Long Beach II, at pp. 12-13.) Long Beach II overruled Walnut Valley Unified School District
(1983) PERB Decision No. 289 and its progeny as well as Long Beach I to the extent that these
cases hold that the respondent bears both the burden of pleading the statute of limitations as an
affirmative defense in its answer and the burden of proving at hearing that the charge was
untimely. Given the Board's holding that timeliness is an element of the charging party's
prima facie case, we find Baprawski's claim to be without merit.
. Tolling Issue Not Before The Board
In American Federation of Teachers (Kok) (1999) PERB Decision No. 1352, a case
issued after the elimination of equitable tolling in 1989, the Board held that prior PERB
charges no longer tolled the statute of limitations. Based on the return of equitable tolling in
Long Beach I, the ALJ concluded that the six-months limitations period was tolled from
April 6, 2005 until May 31, 2005, while Baprawski's first charge was being processed.
None of the parties excepted to this finding by the ALJ. Consequently, the issue is not
squarely before the Board and need not be addressed herein. Therefore, we do not decide in
this decision whether the doctrine of equitable tolling applies during the pendency of
proceedings before PERB involving the same factual allegations.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-4883-E is
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CARMEN BAPRA WSKI,
Charging Party,
V.
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4883-E
PROPOSED DECISION
August 23, 2006
Appearances: 	Carmen Baprawski, in pro per; Atkinson, Andelson, Loya, Ruud & Romo
by
Joshua E. Morrison, Attorney, for Los Angeles Community College District.
Before Ann
L.
Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
On September 14, 2004, Carmen Baprawski (Baprawski) filed a grievance,
through her
union, against the Los Angeles Community College District (District) alleging that the
District
wrongfully rescinded her reassignment, in part because
of
her protected activity. On April 6,
2005, she filed an unfair practice charge alleging the same conduct as unlawful retaliation. 	On
May 31, 2005, the charge was dismissed and deferred to arbitration. However, Baprawski' s
grievance did not proceed to arbitration, and on September 9, 2005, she filed the instant
charge, again alleging the same retaliation and also alleging harassment by the District
in
2005.
On January
5,
2006, the General Counsel of the Public Employment Relations Board (PERB or
Board) issued a complaint alleging that by rescinding Baprawski's reassignment, the
District
violated the Educational Employment Relations Act (EERA) section 3543.5(a). 1 The
District
EERA is codified at Government Code section 3540 et seq. 	Section 3543.5(a)
makes
it unlawful for a public school employer to "(I)mpose 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." In turn section 3543(a) provides in part that "(P)ublic school employees shall
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CARMEN BAPRAWSKI, UNFAIR PRACTICE
Charging Party, 	CASE NO. LA-CE-4883-E
V . 	PROPOSED DECISION
August 23, 2006
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
Appearances: Carmen Baprawski, in pro per; Atkinson, Andelson, Loya, Ruud & Romo by
Joshua E. Morrison, Attorney, for Los Angeles Community College District.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
On September 14, 2004, Carmen Baprawski (Baprawski) filed a grievance, through her
union, against the Los Angeles Community College District (District) alleging that the District
wrongfully rescinded her reassignment, in part because of her protected activity. On April 6,
2005, she filed an unfair practice charge alleging the same conduct as unlawful retaliation. On
May 31, 2005, the charge was dismissed and deferred to arbitration. However, Baprawski's
grievance did not proceed to arbitration, and on September 9, 2005, she filed the instant
charge, again alleging the same retaliation and also alleging harassment by the District in 2005.
On January 5, 2006, the General Counsel of the Public Employment Relations Board (PERB or
Board) issued a complaint alleging that by rescinding Baprawski's reassignment, the District
violated the Educational Employment Relations Act (EERA) section 3543.5(a). The District
EERA is codified at Government Code section 3540 et seq. Section 3543.5(a) makes
it unlawful for a public school employer to "(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." In turn section 3543(a) provides in part that "(Public school employees shall

the
	filed an answer to the complaint on January 23, 2006, denying any wrongdoing and raising
statute
of
limitations as an affirmative defense.
On
February 21, 2006, an informal settlement conference was held but the matter
was
not resolved. On May 23, 2006, the District filed a motion to dismiss the charge and
complaint
on two grounds: 	(1) the charge was untimely filed; and (2) it failed to state any protected
activity.
	On
May 25, 2006, Baprawski filed a response to the motion, contending that
the
charge was timely filed and that she did engage in protected activity.
On May 30, 2006, a hearing was held before the undersigned, who took evidence
only
on the matter
of
timeliness. The undersigned announced at the hearing that she would
issue
a
proposed decision on the motion to dismiss, and
if
denied, the formal hearing would
resume
on
the substantive matters raised by the complaint. After the filing
of
post-hearing briefs,
the
matter was submitted for decision on July 28, 2006.
FINDil'JGS OF FACT
The facts are for the most part uncontested. Baprawski is a professor
of
counseling
employed
by
the District, and a member
of
the bargaining unit represented by the Los
Angeles
College Faculty Guild, Local 1521, CFT/AFT, AFL-CIO (Guild). 	The District and the
Guild
are parties to a collective bargaining agreement (Agreement) effective from July
1,
2002
through June 30, 2005. Article 28
of
the Agreement provides for a grievance procedure
consisting
of
Steps One and Two, followed by binding arbitration. The grievant must
make
a
written request for arbitration, with the approval
of
the Guild, within ten days
of
the Step
Two
denial. According to the Guild's constitution, the local grievance representative must
get
approval from the Guild's Grievance Committee prior to making the written request for
of
	have the right to form, join, and participate in the activities of employee organizations
	their
own choosing for the purpose of representation on ali matters of employer-employee
relations."
2
filed an answer to the complaint on January 23, 2006, denying any wrongdoing and raising the
statute of limitations as an affirmative defense.
On February 21, 2006, an informal settlement conference was held but the matter was
not resolved. On May 23, 2006, the District filed a motion to dismiss the charge and complaint
on two grounds: (1) the charge was untimely filed; and (2) it failed to state any protected
activity. On May 25, 2006, Baprawski filed a response to the motion, contending that the
charge was timely filed and that she did engage in protected activity.
On May 30, 2006, a hearing was held before the undersigned, who took evidence only
on the matter of timeliness. The undersigned announced at the hearing that she would issue a
proposed decision on the motion to dismiss, and if denied, the formal hearing would resume on
the substantive matters raised by the complaint. After the filing of post-hearing briefs, the
matter was submitted for decision on July 28, 2006.
FINDINGS OF FACT
The facts are for the most part uncontested. Baprawski is a professor of counseling
employed by the District, and a member of the bargaining unit represented by the Los Angeles
College Faculty Guild, Local 1521, CFT/AFT, AFL-CIO (Guild). The District and the Guild
are parties to a collective bargaining agreement (Agreement) effective from July 1, 2002
through June 30, 2005. Article 28 of the Agreement provides for a grievance procedure
consisting of Steps One and Two, followed by binding arbitration. The grievant must make a
written request for arbitration, with the approval of the Guild, within ten days of the Step Two
denial. According to the Guild's constitution, the local grievance representative must get
approval from the Guild's Grievance Committee prior to making the written request for
have the right to form, join, and participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of employer-employee
relations."
2

arbitration. Article 28
of
the Agreement also provides a procedure for mediation between
the
District and the Guild in lieu
of
arbitration.
In the summer
of
2004,2 at Baprawski's request, Henry Ealy (Ealy), the local Guild
grievance representative, negotiated with the District to obtain for her a reassignment from a
C-basis position (10 months employment per year) as a counselor to a D-basis position (12
months employment per year) as Career Center Director/Counselor. On August
18
the
District
notified Baprawski that she was awarded the position. However, on August
31
the District
notified her that the reassignment was rescinded. The rescission was based on a grievance
s	filed by the counseling department chair, Hector Aguilar (Aguilar), objecting to Baprawski'
reassignment because it was not handled according to proper procedure and because he
was
not
invited to be involved in the decision. For the next two weeks after receiving the notice
of
rescission, Baprawski reviewed the Agreement, spoke with the Guild, and gathered
information and documentation in preparation for a grievance. On September
14
Baprawski
signed a "Power
of
Representation" designating the Guild as her exclusive grievance
representative and agreeing, inter alia, to "take no action independent
of
my AFT
representative without first conferring with the AFT and rescinding this authorization."
	On
that same date the Guild filed a grievance alleging that the District had wrongfully
rescinded
C:
	her reassignment in violation of various provisions
of
the Agreement including Article 6.
The Board shall not discriminate against faculty members
or applicants for faculty positions because
of
their
membership in the AFT or because
of
their exercise
of
other rights to meeting and negotiating as provided by
law.
The District denied the grievance at Step One, and Ealy appealed to Step Two.
	The
District contends that the Guild did not pursue the issue of retaliation beyond Step One,
as it is
All dates hereafter refer to the year 2004 unless otherwise specified.
3
arbitration. Article 28 of the Agreement also provides a procedure for mediation between the
District and the Guild in lieu of arbitration.
In the summer of 2004," at Baprawski's request, Henry Ealy (Ealy), the local Guild
grievance representative, negotiated with the District to obtain for her a reassignment from a
C-basis position (10 months employment per year) as a counselor to a D-basis position (12
months employment per year) as Career Center Director/Counselor. On August 18 the District
notified Baprawski that she was awarded the position. However, on August 31 the District
notified her that the reassignment was rescinded. The rescission was based on a grievance
filed by the counseling department chair, Hector Aguilar (Aguilar), objecting to Baprawski's
reassignment because it was not handled according to proper procedure and because he was not
invited to be involved in the decision. For the next two weeks after receiving the notice of
rescission, Baprawski reviewed the Agreement, spoke with the Guild, and gathered
information and documentation in preparation for a grievance. On September 14 Baprawski
signed a "Power of Representation" designating the Guild as her exclusive grievance
representative and agreeing, inter alia, to "take no action independent of my AFT
representative without first conferring with the AFT and rescinding this authorization." On
that same date the Guild filed a grievance alleging that the District had wrongfully rescinded
her reassignment in violation of various provisions of the Agreement including Article 6.C:
The Board shall not discriminate against faculty members
or applicants for faculty positions because of their
membership in the AFT or because of their exercise of
other rights to meeting and negotiating as provided by
law.
The District denied the grievance at Step One, and Ealy appealed to Step Two. The
District contends that the Guild did not pursue the issue of retaliation beyond Step One, as it is
2 All dates hereafter refer to the year 2004 unless otherwise specified.
3

not mentioned in the Guild's Step Two appeal. However, Baprawski contends that the
appeal
contained only "additional material" to what was stated in the grievance. I find that the
appeal
discusses matters not discussed in the original grievance. I therefore find that the issue
of
retaliation was not abandoned by the Guild and continued to be pursued in the appeal.
	On
November 1 the District denied the grievance at Step Two. Ealy did not file a request for
arbitration within the ten days required by the Agreement, nor did he seek approval from
the
Guild's Grievance Committee, a constitutional prerequisite to filing a request for arbitration,
nor did
he
engage in the mediation process provided by the Agreement as an alternative
to
arbitration. At the hearing Baprawski testified that she had read the Agreement's
grievance
procedure and was familiar with the timelines for Steps One and Two, but that she did
not
pay
attention to the section on arbitration and merely "glossed over" that timeline, thus she
was
not
aware
of
when the deadline for requesting arbitration would expire. She contended that
there
are two timelines, the formal one set out in the Agreement and an informal one "behind
the
scenes." She conceded that the Guild did not pmiicipate in the alternative mediation
process,
but contended that they were engaged in informal discussions, which she preferred
because
she
wanted her grievance resolved "in-house." However, she did not specify who participated,
what was discussed, or on what terms they concluded.
On November 22 Ealy told Baprawski that the Guild would not take her grievance
to
arbitration because it was moot, i.e., there was no available remedy. He was referring
to
an
October 7 letter from Betsy Regaldo (Regaldo ), Dean, Student Services/Retention, to
interested
applicants stating that the Career Center Director/Counselor position was being changed
from
a
12-month to a IO-month position.3 Baprawski "vigorously disputed" the Guild's decision not
"BaBaprawski contends that she never received a copy of this letter and that it is
fraudulent.
4
not mentioned in the Guild's Step Two appeal. However, Baprawski contends that the appeal
contained only "additional material" to what was stated in the grievance. I find that the appeal
discusses matters not discussed in the original grievance. I therefore find that the issue of
retaliation was not abandoned by the Guild and continued to be pursued in the appeal. On
November 1 the District denied the grievance at Step Two. Ealy did not file a request for
arbitration within the ten days required by the Agreement, nor did he seek approval from the
Guild's Grievance Committee, a constitutional prerequisite to filing a request for arbitration,
nor did he engage in the mediation process provided by the Agreement as an alternative to
arbitration. At the hearing Baprawski testified that she had read the Agreement's grievance
procedure and was familiar with the timelines for Steps One and Two, but that she did not pay
attention to the section on arbitration and merely "glossed over" that timeline, thus she was not
aware of when the deadline for requesting arbitration would expire. She contended that there
are two timelines, the formal one set out in the Agreement and an informal one "behind the
scenes." She conceded that the Guild did not participate in the alternative mediation process,
but contended that they were engaged in informal discussions, which she preferred because she
wanted her grievance resolved "in-house." However, she did not specify who participated,
what was discussed, or on what terms they concluded.
On November 22 Ealy told Baprawski that the Guild would not take her grievance to
arbitration because it was moot, i.e., there was no available remedy. He was referring to an
October 7 letter from Betsy Regaldo (Regaldo), Dean, Student Services/Retention, to interested
applicants stating that the Career Center Director/Counselor position was being changed from a
12-month to a 10-month position.' Baprawski "vigorously disputed" the Guild's decision not
prawski contends that she never received a copy of this letter and that it is
fraudulent.
4

their
	to arbitrate and kept trying to persuade Ealy and other Guild representatives to change
minds, to no avail. However, admittedly outside the grievance process, Ealy did continue
to
engage in informal discussions with the District regarding Regaldo's October 7 letter.
	Bye
mail
of
March 11, 2005,4 Carl Friedlander (Friedlander), Guild president, gave Baprawski
written confirmation that he was following advice
of
counsel not to take her grievance to
arbitration because the assignment
of
an individual employee was a matter within the
District's
believes
	discretion and "(T)he Guild has no legal obligation to arbitrate a case which the Guild
it cannot win." Friedlander also stated that he would "not be engaging in further
discussion
with you on this issue."
On
April 6 Baprawski filed an unfair practice charge in Case No. LA-CE-4845-E.
	The
charge alleges, inter alia, that the District rescinded her reassignment in retaliation for
her
requesting the Guild to negotiate the reassignment on her behalf. During investigation
of
that
charge, the District sent the PERB regional office written assurances that it was willing
to
arbitrate the grievance and would not raise timeliness issues. Baprawski testified that
she told
the investigating Board agent the Guild did not want to arbitrate and that she showed the
Board
agent Friedlander's March
11
e-mail. However, Baprawski also testified that the Board
agent
investigating the instant charge told her to get "something in writing that the union will
not
arbitrate," and the case file shows that she provided a copy
of
the March
11
e-mail for
the
first
time on September 27. It appears therefore that the Board agent investigating the first
charge
was not aware that the Guild had made a firm decision and that resort to arbitration
would
be
futile. Thus, on May
31
the first charge was dismissed and deferred to arbitration.
Baprawski did not appeal the dismissal, but instead once again tried to get the
Guild
to
change its mind. She testified that she believed PERB had authority over the Guild and
could
4 	All dates hereafter refer to the year 2005 unless otherwise specified.
5
to arbitrate and kept trying to persuade Ealy and other Guild representatives to change their
minds, to no avail. However, admittedly outside the grievance process, Ealy did continue to
engage in informal discussions with the District regarding Regaldo's October 7 letter. By e-
mail of March 11, 2005," Carl Friedlander (Friedlander), Guild president, gave Baprawski
written confirmation that he was following advice of counsel not to take her grievance to
arbitration because the assignment of an individual employee was a matter within the District's
discretion and "(T)he Guild has no legal obligation to arbitrate a case which the Guild believes
it cannot win." Friedlander also stated that he would "not be engaging in further discussion
with you on this issue."
On April 6 Baprawski filed an unfair practice charge in Case No. LA-CE-4845-E. The
charge alleges, inter alia, that the District rescinded her reassignment in retaliation for her
requesting the Guild to negotiate the reassignment on her behalf. During investigation of that
charge, the District sent the PERB regional office written assurances that it was willing to
arbitrate the grievance and would not raise timeliness issues. Baprawski testified that she told
the investigating Board agent the Guild did not want to arbitrate and that she showed the Board
agent Friedlander's March 11 e-mail. However, Baprawski also testified that the Board agent
investigating the instant charge told her to get "something in writing that the union will not
arbitrate," and the case file shows that she provided a copy of the March 11 e-mail for the first
time on September 27. It appears therefore that the Board agent investigating the first charge
was not aware that the Guild had made a firm decision and that resort to arbitration would be
futile. Thus, on May 31 the first charge was dismissed and deferred to arbitration.
Baprawski did not appeal the dismissal, but instead once again tried to get the Guild to
change its mind. She testified that she believed PERB had authority over the Guild and could
All dates hereafter refer to the year 2005 unless otherwise specified.
5

force it to arbitrate. In June she spoke with Darryl Eckersley (Eckersley), chief grievance
officer, who told her the Guild does not deal with grievances during the summer; Baprawski
characterized his response
as
"shin[ing] me off." However, Baprawski admitted that at no
time
did the Guild give her any indication that it might change its mind. On August 29, Eckersley
told her again that the Guild would not arbitrate her grievance. 	She asked for written
confirmation, but Eckersley said he would not provide it. By e-mail
of
September
1,
the
Guild
president succinctly stated that Baprawski could refer to the Guild's e-mail
of
March 11.
Baprawski then filed the instant charge on September 9, making the same allegations as
the
first charge, and also alleging that on April 8 and 13, 2005, Aguilar unlawfully harassed
her
in
two e-mails critical
of
her work schedule. Complaint issued on January
5,
2006, alleging
that
the District rescinded Baprawski' s reassignment in retaliation for her requesting the Guild to
negotiate on her behalf. The PERB complaint did not allege any harassment, the issue
of
harassment was not raised at the hearing, and the April 8 and 13, 2005, e-mails were not
presented as evidence. I therefore make no finding on this issue.
ISSUE
Should the District's motion to dismiss be granted on the basis
of
(a) untimeliness?
(b) failure to state any protected activity?
DISCUSSION
Timeliness
EERA section 3541.S(a)(l) provides that the Board shall not:
Issue a complaint in respect of any charge based upon an
alleged unfair practice occurring more than six months
prior to the filing of the charge.
6
force it to arbitrate. In June she spoke with Darryl Eckersley (Eckersley), chief grievance
officer, who told her the Guild does not deal with grievances during the summer; Baprawski
characterized his response as "shin[ing] me off." However, Baprawski admitted that at no time
did the Guild give her any indication that it might change its mind. On August 29, Eckersley
told her again that the Guild would not arbitrate her grievance. She asked for written
confirmation, but Eckersley said he would not provide it. By e-mail of September 1, the Guild
president succinctly stated that Baprawski could refer to the Guild's e-mail of March 11.
Baprawski then filed the instant charge on September 9, making the same allegations as the
first charge, and also alleging that on April 8 and 13, 2005, Aguilar unlawfully harassed her in
two e-mails critical of her work schedule. Complaint issued on January 5, 2006, alleging that
the District rescinded Baprawski's reassignment in retaliation for her requesting the Guild to
negotiate on her behalf. The PERB complaint did not allege any harassment, the issue of
harassment was not raised at the hearing, and the April 8 and 13, 2005, e-mails were not
presented as evidence. I therefore make no finding on this issue.
ISSUE
Should the District's motion to dismiss be granted on the basis of
(a) untimeliness?
(b) failure to state any protected activity?
DISCUSSION
Timeliness
EERA section 3541.5(a)(1) provides that the Board shall not:
Issue a complaint in respect of any charge based upon an
alleged unfair practice occurring more than six months
prior to the filing of the charge.
6

There is no question that the instant charge was filed far in excess
of
six months after the
equity.	alleged violation. However, the limitations period may be tolled either by statute or by
In either case, the charging party bears the burden
of
demonstrating that the charge was
timely
filed. 	(Tehachapi Unified School District (1993) PERB Decision No. l 024; State
of
California
(Department ofinsurance) (1997) PERB Decision No. 1197-S).
(a) Statutory tolling
EERA section 3541.5(a)(2) provides in part that the Board shall not:
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. However, when the
charging party demonstrates that resort to contract
grievance procedure would be futile, exhaustion shall not
be necessary
....
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.
For tolling purposes, PERB has held that the pursuit
of
a grievance includes any time
during
which the grievant is engaged in efforts preparatory to its filing, e.g., investigation, discovery,
planning and preparation
of
documents. 	(State
of
California (Secretary
of
State) (1990)
PERB
Decision No. 812-S (Secretarv
of
State); Los Angeles Unified School District et
al
(1983)
PERE Decision No. 311 (LAUSD.) The grievance machinery will be considered exhausted
when the union and/or the grievant fail to take it to the next step
of
the contractual
grievance
process. 	(Santa Monica-Malibu Unified School District (Bradley) (2000) PERB Decision No.
1389; State of California (Department of Corrections) (2003) PERB Decision No. 1559-S.)
The limitations period is cumulative and will be tolled only while the grievance is being
actively pursued, but not when the grievant knows the union is not pursuing it. (Id. [citing
7
There is no question that the instant charge was filed far in excess of six months after the
alleged violation. However, the limitations period may be tolled either by statute or by equity.
In either case, the charging party bears the burden of demonstrating that the charge was timely
filed. (Tehachapi Unified School District (1993) PERB Decision No. 1024; State of California
(Department of Insurance) (1997) PERB Decision No. 1 197-S).
(a) Statutory tolling
EERA section 3541.5(a)(2) provides in part that the Board shall not:
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. However, when the
charging party demonstrates that resort to contract
grievance procedure would be futile, exhaustion shall not
be necessary. ... 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.
For tolling purposes, PERB has held that the pursuit of a grievance includes any time during
which the grievant is engaged in efforts preparatory to its filing, e.g., investigation, discovery,
planning and preparation of documents. (State of California (Secretary of State) (1990) PERB
Decision No. 812-S (Secretary of State); Los Angeles Unified School District et al (1983)
PERB Decision No. 311 (LAUSD.) The grievance machinery will be considered exhausted
when the union and/or the grievant fail to take it to the next step of the contractual grievance
process. (Santa Monica-Malibu Unified School District (Bradley) (2000) PERB Decision No.
1389; State of California (Department of Corrections) (2003) PERB Decision No. 1559-S.)
The limitations period is cumulative and will be tolled only while the grievance is being
actively pursued, but not when the grievant knows the union is not pursuing it. (Id. [citing
7

No.	California School Employees Association (Spiegelman) (1984) PERB Decision 	400 for
the
latter proposition.])
from
	Here, I find that Baprawski was actively engaged in preparing for her grievance
the time the District rescinded her reassignment on August 31, 2004, to the filing
of
her
grievance on September 14, 2004, by reviewing the Agreement, speaking with the Guild,
and
gathering information and documentation. I therefore conclude that the limitations period is
period. I also find that the grievance was being actively pursued from its	tolled during that
filing until the District's Step Two denial on November
1,
and therefore conclude that the
limitations period is tolled during that period.
did
	However, the Guild, acting as Baprawski
's
exclusive grievance representative,
	not
pursue the grievance beyond the District's Step Two denial. Baprawski claims that she
did
not
become aware
of
the Guild's decision until November 22, 2004. She should have become
aware at the latest by November 11, the ten-day deadline to request arbitration under the
Agreement. 	Given that she studied the Agreement in preparation for filing the grievance
and
was admittedly well aware
of
the time limits for Steps One and Two, it is improbable
that she
did not know
of
the I 0-day time limit to request arbitration. At any rate, it is clear that
the
Guild did not pursue the grievance beyond November 11, thus the contractual grievance
procedure was exhausted on that date.
further	In her first PERB charge Baprawski could easily have demonstrated that
	resort
to the grievance procedure was futile because of the Guild's decision. However, she
chose
not
could also have	to and the charge was dismissed and deferred to arbitration. Baprawski
demonstrated futility by filing an appeal to the dismissal, but she chose not to appeal.
Baprawski testified that the Guild and the District have both formal and informal
timelines and that they continued to engage in "informal discussions" about her grievance
8
California School Employees Association (Spiegelman) (1984) PERB Decision No. 400 for the
latter proposition.])
Here, I find that Baprawski was actively engaged in preparing for her grievance from
the time the District rescinded her reassignment on August 31, 2004, to the filing of her
grievance on September 14, 2004, by reviewing the Agreement, speaking with the Guild, and
gathering information and documentation. I therefore conclude that the limitations period is
tolled during that period. I also find that the grievance was being actively pursued from its
filing until the District's Step Two denial on November 1, and therefore conclude that the
limitations period is tolled during that period.
However, the Guild, acting as Baprawski's exclusive grievance representative, did not
pursue the grievance beyond the District's Step Two denial. Baprawski claims that she did not
become aware of the Guild's decision until November 22, 2004. She should have become
aware at the latest by November 11, the ten-day deadline to request arbitration under the
Agreement. Given that she studied the Agreement in preparation for filing the grievance and
was admittedly well aware of the time limits for Steps One and Two, it is improbable that she
did not know of the 10-day time limit to request arbitration. At any rate, it is clear that the
Guild did not pursue the grievance beyond November 1 1, thus the contractual grievance
procedure was exhausted on that date.
In her first PERB charge Baprawski could easily have demonstrated that further resort
to the grievance procedure was futile because of the Guild's decision. However, she chose not
to and the charge was dismissed and deferred to arbitration. Baprawski could also have
demonstrated futility by filing an appeal to the dismissal, but she chose not to appeal.
Baprawski testified that the Guild and the District have both formal and informal
timelines and that they continued to engage in "informal discussions" about her grievance
8

between November 1 and 22; but she did not specify who participated or what was discussed.
Ealy admitted that he engaged in informal discussions with the District regarding Regal do' s
October 7 letter, but stated that this was outside the grievance process. The grievance
procedure in the Agreement makes no provision for informal discussions. Thus, while
informal discussions may in fact resolve problems between parties, they cannot be considered
part
of
the grievance process and cannot continue tolling the statute after the union fails to
take
the grievance
to
the next step
of
the contractual grievance process. 	(Secretary
of
State;
LAUSD.)
I therefore conclude that the limitations clock started ticking for the first time on
November 11, 2004. Baprawski's first PERB charge was filed on April
6,
2005. Accordingly,
I find that between these two dates, she used 4 months, 26 days
of
her available six months.
(b) 	Equitable tolling
In Long Beach Community College District (2003) PERB Decision No. 1564
(Long
Beach), the Board overruled California State University, San Diego (1989) PERB Decision
No. 718-H (San Diego), 5 and held that the six-month statute oflimitations is not a limitation on
the Board's jurisdiction but must be raised as an affirmative defense. 	The Board also
restored
the principle of equitable tolling, which had been eliminated in the aftermath
of
San
Diego by
The Regents of the University
of
California (1990) PERB Decision No. 826-H. In Long
Beach, the Board stated:
When a grievance has been filed utilizing a bilaterally
agreed upon dispute resolution procedure in an effort to
resolve the same dispute which is the subject of the charge,
the statute oflimitations is tolled during the period of time
the grievance is being pursued if: 	(
1)
the charging party
reasonably and in good faith pursues the grievance;
and (2) tolling did not frustrate the purpose of the statutory
5 That case was decided under the six-month limitations period in the Higher Education
Employer-Employee Relations Act, but had been applied to EERA.
9
between November 1 and 22; but she did not specify who participated or what was discussed.
Ealy admitted that he engaged in informal discussions with the District regarding Regaldo's
October 7 letter, but stated that this was outside the grievance process. The grievance
procedure in the Agreement makes no provision for informal discussions. Thus, while
informal discussions may in fact resolve problems between parties, they cannot be considered
part of the grievance process and cannot continue tolling the statute after the union fails to take
the grievance to the next step of the contractual grievance process. (Secretary of State;
LAUSD.)
I therefore conclude that the limitations clock started ticking for the first time on
November 11, 2004. Baprawski's first PERB charge was filed on April 6, 2005. Accordingly,
I find that between these two dates, she used 4 months, 26 days of her available six months.
(b) Equitable tolling
In Long Beach Community College District (2003) PERB Decision No. 1564 (Long
Beach), the Board overruled California State University, San Diego (1989) PERB Decision
No. 718-H (San Diego)," and held that the six-month statute of limitations is not a limitation on
the Board's jurisdiction but must be raised as an affirmative defense. The Board also restored
the principle of equitable tolling, which had been eliminated in the aftermath of San Diego by
The Regents of the University of California (1990) PERB Decision No. 826-H. In Long
Beach, the Board stated:
When a grievance has been filed utilizing a bilaterally
agreed upon dispute resolution procedure in an effort to
resolve the same dispute which is the subject of the charge,
the statute of limitations is tolled during the period of time
the grievance is being pursued if: (1) the charging party
reasonably and in good faith pursues the grievance;
and (2) tolling did not frustrate the purpose of the statutory
" That case was decided under the six-month limitations period in the Higher Education
Employer-Employee Relations Act, but had been applied to EERA.
9

limitation period by causing surprise or prejudice to the
respondent.
However, reasoning that "the parties to a negotiated grievance procedure ... should be
encouraged to utilize such a procedure whenever possible," the Board declared that its
return
to
the doctrine
of
equitable tolling was "with a limitation":
The six-month limitation period should be extended equitably
only when a party utilizes a bilaterally agreed upon dispute
resolution procedure. 	[Emphasis added.]
Thus, the informal discussions which Baprawski relies on cannot serve to toll the statute
of
limitations under an equitable tolling theory any more than they can provide statutory tolling.
After April
6,
however, the statute was again tolled during the pendency
of
the
first
PERB charge. In this regard, in American Federation
of
Teachers, et al (Kok) (1999)
PERB
Decision No. 1352, the Board upheld the dismissal
of
an untimely-filed charge. The
dismissal
letter stated that prior PERB charges no longer toll the statute
of
limitations since the
Board
eliminated equitable tolling in San Diego. Thus, with the return
of
equitable tolling in
Long
Beach, it would appear that the clock would be stopped during PERB 's processing
of
a
prior
charge alleging the same violations as the current charge. The District does not dispute
this
principle.
However, the clock started ticking again on May 31, 2005, when the first PERB
charge
was dismissed. Baprawski did not file the instant charge until September 9, 2005. She
argues
that she should not be charged for this period, as she believed PERB' s deferral mandated
the
Guild to arbitrate. However, she is wrong. Although arbitration is the preferred method
of
resolving disputes, and the Board may dismiss a charge in deference to arbitration, the
Board
not only has no power to require a union to take a grievance to arbitration, but should
not
dismiss a charge when the union has refused to arbitrate. (Eureka City School District ( 198 8)
10
limitation period by causing surprise or prejudice to the
respondent.
However, reasoning that "the parties to a negotiated grievance procedure ... should be
encouraged to utilize such a procedure whenever possible," the Board declared that its return to
the doctrine of equitable tolling was "with a limitation":
The six-month limitation period should be extended equitably
only when a party utilizes a bilaterally agreed upon dispute
resolution procedure. [Emphasis added.]
Thus, the informal discussions which Baprawski relies on cannot serve to toll the statute of
limitations under an equitable tolling theory any more than they can provide statutory tolling.
After April 6, however, the statute was again tolled during the pendency of the first
PERB charge. In this regard, in American Federation of Teachers, et al (Kok) (1999) PERB
Decision No. 1352, the Board upheld the dismissal of an untimely-filed charge. The dismissal
letter stated that prior PERB charges no longer toll the statute of limitations since the Board
eliminated equitable tolling in San Diego. Thus, with the return of equitable tolling in Long
Beach, it would appear that the clock would be stopped during PERB's processing of a prior
charge alleging the same violations as the current charge. The District does not dispute this
principle.
However, the clock started ticking again on May 31, 2005, when the first PERB charge
was dismissed. Baprawski did not file the instant charge until September 9, 2005. She argues
that she should not be charged for this period, as she believed PERB's deferral mandated the
Guild to arbitrate. However, she is wrong. Although arbitration is the preferred method of
resolving disputes, and the Board may dismiss a charge in deference to arbitration, the Board
not only has no power to require a union to take a grievance to arbitration, but should not
dismiss a charge when the union has refused to arbitrate. (Eureka City School District (1988)
10

PERB Decision No. 702; Lake Elsinore School District (1987) PERB Decision No. 646.)6
	The
extensive preparation and legal research Baprawki did on her grievance and the filing
of both
her charges, including the citation
of
several PERB cases, casts doubt on her assertion that
she
was ignorant
of
the law. But even crediting her claim, a party's ignorance
of
the law will
not
excuse an otherwise untimely filing. 	(Trustees
of
the California State University (Schmid)
(1999) PERB Decision No. 1367-H; Val Verde Teachers Association,CTA/NEA (Twyman)
(1998) PERB Decision No. 1257 (Val Verde).)
Baprawski also argues that this period should be tolled because the Guild would
not
give her an answer during the summer, thus she did not learn
of
its final decision until
her
conversation with Eckersley on August 29, 2005. However, Baprawski admitted that
Eckersley merely "shine[
d]
her up" by saying that the Guild does not deal with grievances
during the summer. The Guild's final decision had been made in November 2004, and it
never
gave any indication that it would change its mind, notwithstanding Baprawski's continuing
arguments and hopes. Thus, despite Baprawski' s efforts, there was no possibility that
the
grievance would be pursued. (Val Verde [grievant' s letter
of
dissatisfaction to union
"will not
change the result"
of
untimeliness.])
I therefore find that the period between the dismissal
of
the first charge on May 3 I
and
the filing
of
the instant charge on September 9, 2005, was not tolled and that Baprawski
used
another 3 months, 9 days
of
her six months. This brings the total elapsed time to over
eight
months, which
is
in excess of the six-month limitations period.
In her post-hearing brief, Baprawski argues that the six-month limitations period
was
revived in April 2005 when Aguilar sent her two e-mails constituting unlawful harassment.
However, harassment was not alleged in the complaint, the issue was not litigated at the
AsAs discussed above, Baprawski did not make it clear to the Board agent investigating
the first charge that the Guild decided against arbitration.
11
PERB Decision No. 702; Lake Elsinore School District (1987) PERB Decision No. 646.) The
extensive preparation and legal research Baprawki did on her grievance and the filing of both
her charges, including the citation of several PERB cases, casts doubt on her assertion that she
was ignorant of the law. But even crediting her claim, a party's ignorance of the law will not
excuse an otherwise untimely filing. (Trustees of the California State University (Schmid)
(1999) PERB Decision No. 1367-H; Val Verde Teachers Association.CTA/NEA (Twyman)
(1998) PERB Decision No. 1257 (Val Verde).)
Baprawski also argues that this period should be tolled because the Guild would not
give her an answer during the summer, thus she did not learn of its final decision until her
conversation with Eckersley on August 29, 2005. However, Baprawski admitted that
Eckersley merely "shine[d] her up" by saying that the Guild does not deal with grievances
during the summer. The Guild's final decision had been made in November 2004, and it never
gave any indication that it would change its mind, notwithstanding Baprawski's continuing
arguments and hopes. Thus, despite Baprawski's efforts, there was no possibility that the
grievance would be pursued. (Val Verde [grievant's letter of dissatisfaction to union "will not
change the result" of untimeliness.])
I therefore find that the period between the dismissal of the first charge on May 31 and
the filing of the instant charge on September 9, 2005, was not tolled and that Baprawski used
another 3 months. 9 days of her six months. This brings the total elapsed time to over eight
months, which is in excess of the six-month limitations period.
In her post-hearing brief, Baprawski argues that the six-month limitations period was
revived in April 2005 when Aguilar sent her two e-mails constituting unlawful harassment.
However, harassment was not alleged in the complaint, the issue was not litigated at the
discussed above, Baprawski did not make it clear to the Board agent investigating
the first charge that the Guild decided against arbitration.
11

hearing, and the e-mails were not presented as evidence. 	I shall therefore not consider this
matter in determining timeliness.
Accordingly, I conclude that the instant charge was untimely filed and that the
District's motion to dismiss should be granted on this basis.
Protected Activity
EERA section 3543(a) provides that
(P)ublic school employees shall have the right to form, join,
and participate in the activities
of
employee organizations
of
their own choosing for the purpose
of
representation on
all matters
of
employer-employee relations
....
The District argues that Baprawski is not legally entitled to union representation
outside
of
a disciplinary matter or "highly unusual circumstances," citing Redwoods Community
College District
v.
Public Employment Relations Board (1984) 159 Cal.App.3d 617 [205
Cal.Rptr. 523]. However, that case was decided under the principles set forth in National
Labor Relations Board
v.
Weingarten (1975) 420 U.S.
251
(Weingarten), which established an
employer's obligation to allow an employee union representation at a disciplinary meeting.
That is not analogous to the situation here, and Weingarten does not apply.
The District also cites State
of
California (Department
of
Forestry and Fire
Protection)
(2004) PERB Decision No. 1690-S for the proposition that there is no protected right to
request a job transfer, just as there is no protected right to request a vacation day, promo
ti
on,
or
overtime work. However, the complaint does not allege that Baprawski was punished for
seeking the transfer. Rather, it alleges that she was retaliated against for seeking Guild
representation in obtaining the transfer. That is quite a different situation. 	It is axiomatic
that
a transfer of position is a matter of employer-employee relations, and seeking a union's
help
in
this matter constitutes protected activity. (State of California (Department of Corrections}
(2001) PERB Decision No. 1435-S [employee who said he would contact union for legal
12
hearing, and the e-mails were not presented as evidence. I shall therefore not consider this
matter in determining timeliness.
Accordingly, I conclude that the instant charge was untimely filed and that the
District's motion to dismiss should be granted on this basis.
Protected Activity
EERA section 3543(a) provides that
(P)ublic school employees shall have the right to form, join,
and participate in the activities of employee organizations
of their own choosing for the purpose of representation on
all matters of employer-employee relations. ...
The District argues that Baprawski is not legally entitled to union representation outside
of a disciplinary matter or "highly unusual circumstances," citing Redwoods Community
College District v. Public Employment Relations Board (1984) 159 Cal.App.3d 617 [205
Cal.Rptr. 523]. However, that case was decided under the principles set forth in National
Labor Relations Board v. Weingarten (1975) 420 U.S. 251 (Weingarten), which established an
employer's obligation to allow an employee union representation at a disciplinary meeting.
That is not analogous to the situation here, and Weingarten does not apply.
The District also cites State of California (Department of Forestry and Fire Protection)
(2004) PERB Decision No. 1690-S for the proposition that there is no protected right to
request a job transfer, just as there is no protected right to request a vacation day, promotion, or
overtime work. However, the complaint does not allege that Baprawski was punished for
seeking the transfer. Rather, it alleges that she was retaliated against for seeking Guild
representation in obtaining the transfer. That is quite a different situation. It is axiomatic that
a transfer of position is a matter of employer-employee relations, and seeking a union's help in
this matter constitutes protected activity. (State of California (Department of Corrections)
(2001) PERB Decision No. 1435-S [employee who said he would contact union for legal
12

advice regarding promotion was engaged in protected activity]; Los Angeles Unified
School
District (Woods) (1991) PERB Decision No. 874 [employee meeting with union representative
on job-related issues was protected].)
Accordingly, I conclude that the District's motion to dismiss on this basis is without
legal merit.
PROPOSED ORDER
Based on the foregoing, it having been concluded that the charge was filed more
than
six months after the alleged violation, not including periods during which the limitations
period was tolled, the District's motion to dismiss on the ground
of
untimeliness is hereby
GRANTED. Therefore, the charge and complaint in Carmen Baprawski
v.
Los Angeles
Community College District, Case No. LA-CE-4883-E is hereby DISMISSED.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with
the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. 	The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify
by
page citation or exhibit number the portions of the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; Gov. Code sec. l 1020(a).) A
document is also considered "filed" when received by facsimile transmission before the
close
13
advice regarding promotion was engaged in protected activity]; Los Angeles Unified School
District (Woods) (1991) PERB Decision No. 874 [employee meeting with union representative
on job-related issues was protected].)
Accordingly, I conclude that the District's motion to dismiss on this basis is without
legal merit.
PROPOSED ORDER
Based on the foregoing, it having been concluded that the charge was filed more than
six months after the alleged violation, not including periods during which the limitations
period was tolled, the District's motion to dismiss on the ground of untimeliness is hereby
GRANTED. Therefore, the charge and complaint in Carmen Baprawski v. Los Angeles
Community College District, Case No. LA-CE-4883-E is hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; Gov. Code sec. 11020(a).) A
document is also considered "filed" when received by facsimile transmission before the close
13

of
business together with a Facsimile Transmission Cover Sheet which meets the requirements
of
California Code
of
Regulations, title 8, section 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, sec. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8,
U.S.
secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently
with
its
filing upon each party to this proceeding.
	Proof
of
service shall accompany each copy
served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
14
Ann L. w inman	e
Administrative Law Judge
of business together with a Facsimile Transmission Cover Sheet which meets the requirements
of California Code of Regulations, title 8, section 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8,
secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Ann L. Weinman
Administrative Law Judge
14