Compton Unified School District (PERB 2015E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TONY HICKS, et al.,
Charging Parties,
V.
COMPTON UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4900-E
PERB Decision No. 2015
April 1, 2009
Appearance: 	Tony Hicks, on behalf of himself and all other Charging Parties.
Before Rystrom, Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Tony Hicks and twelve other charging parties (Charging
Parties) of a Board agent's dismissal of their unfair practice charge. 	The charge alleged that
the Compton Unified School District (District) violated the Educational Employment Relations
Act (EERA) 1 by failing to meet with Charging Parties to discuss terms and conditions of
employment and retaliating against Charging Parties when it revised their seniority status. 	The
Board agent dismissed the charge finding that it was untimely filed.
The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charge, the District's response, the Board agent's warning and
dismissal letters, and Charging Parties' appeal. 	The Board affirms the dismissal of the charge
for the reasons discussed below.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise specified, all
statutory references herein are to the Government Code.

BACKGROUND
On or after July 1, 1997, Charging Parties were hired by the District as Parent
Involvement Specialists (PIS). The PIS employees performed the same duties as employees in
another District job classification, Community Relations Assistant (CRA). The CRA
classification was included in the bargaining unit represented by the California School
Employees Association (CSEA). The District deemed the PIS classification exempt from the
bargaining unit.
Beginning in 2001, Charging Parties complained to the District about the difference in
terms and conditions of employment between the PIS and CRA classes. The District met with
Charging Parties once or twice but then declined further meetings.
Charging Parties continued to voice their complaints to the District in 2003 and
expressed an interest in joining CSEA. Shortly thereafter, the District initiated a classification
study involving the PIS and CRA classes. The study reported no substantial difference
between the duties of the two classes and recommended the two classifications be consolidated
in a new class titled Community Relations Specialist (CRS).
In September 2003, the District adopted the study recommendations and consolidated
the PIS and CRA classes into a new CRS class. The CRS class was included in the bargaining
unit represented by CSEA.
As a result of the reorganization, the District required all PIS employees to take a
performance test and reapply for positions in the CRS class. Until the hiring process was
completed, the PIS employees were deemed provisional employees. After the PIS employees
were hired into the CRS class, the District assigned them seniority dates based on their status
in 2003 as provisional employees. The former CRA employees were not required to test for
the position and their seniority was calculated from the date they were originally hired into the

CRA classification. An employee's seniority is used to determine certain terms and conditions
of employment such as salary, benefits and paid time off.
Charging Parties filed grievances in September and December 2003. The District
rejected Charging Parties' grievances indicating they could not use the grievance procedure
because they were not yet included in the bargaining unit. District officials also told Charging
Parties the District did not want to get involved in a fight with CSEA.
In early 2004, Charging Parties requested a meeting with the Compton Board of
Education, but the request was denied. Charging Parties then filed a complaint pursuant to the
District's complaint procedure. Two weeks later, the District's Compliance Office advised
Charging Parties to seek relief through a government agency or retain an attorney.
Board Agent's Dismissal
The Board agent noted that since 2001, the District declined to discuss terms and
conditions of employment with the Charging Parties. Further, the decision to change seniority
dates was made in September 2003. As the charge was filed on October 21, 2005, the Board
agent concluded the charge was filed well outside the six month statute of limitations.
The Board agent also determined that equitably tolling the statute of limitations under
Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach
CCD I) was not applicable in this case. The Board agent noted that Charging Parties were not
covered by the contractual grievance procedure. Moreover, Charging Parties' grievances were
denied in 2003, concluding the grievance process. 	Thus, even if the grievances had been
processed under a contractual grievance procedure, and tolling was applied, the charge was
filed more than six months beyond the expiration of the tolling period. The Board agent also
concluded the charge did not allege facts to establish a continuing violation.
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Finally, assuming the charge was timely filed, the Board agent held that the charge did
not demonstrate that the District's actions were unlawfully motivated by the Charging Parties'
participation in protected activity.
Charging Parties' Appeal
On appeal, Charging Parties continue to assert their charge is timely under both
equitable tolling and continuing violation theories. In addition, Charging Parties maintain they
have established a prima facie case of retaliation. 	In support of their appeal, Charging Parties
attach additional documents, some of which were not previously submitted to the Board agent
with their charge.
DISCUSSION
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.) A charging party bears the burden of
demonstrating the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB
Decision No. l 024; State of California (Department of Insurance) ( 1997) PERB Decision
No. 1197-S.)
The Board agent correctly determined the charge was untimely filed. 	Charging Parties
knew or should have known in 2001 the District would no longer meet with them to discuss
terms and conditions of employment after the District declined further meetings. Furthermore,
the District implemented the change in seniority status in 2003. Charging Parties were well
aware of this change as they filed grievances in 2003 and a complaint in 2004 challenging the
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decision to modify the seniority status
of
the former PIS employees. The charge was filed on
October 21, 2005, well beyond the six month statutory limitations period for these allegations.
Charging Parties argue the statute
of
limitations should be tolled because
of
the
District's bad faith denial
of
their grievances and Charging Parties' continued efforts to dispute
the change in their seniority status.
The statute
of
limitations may be tolled under one
of
two theories and is tolled only for
the time it takes a charging party to exhaust the contractual grievance procedure. First, under
EERA section 3541.5(a)(2), the statute
of
limitations is tolled while the parties are
participating in a contractual grievance procedure that ends in binding arbitration. Second, the
Board recently affirmed the doctrine
of
equitable tolling in Long Beach Community College
District (2009) PERB Decision No. 2002 (Long Beach CCD
11),
2 involving bilaterally
established grievance procedures that do not end in binding arbitration. The Board held in
Long Beach CCD
11,
"the statute
of
limitations 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."
The evidence strongly suggests the Charging Parties were not covered by a negotiated
grievance procedure as they were not in the new bargaining unit positions when they filed the
grievances. However, assuming Charging Parties were in the bargaining unit, the Board does
2 In Long Beach CCD II, the Board overruled the determination in Long Beach CCD I
that the statute limitations is an affirmative defense.
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not find that tolling extends the statute
of
limitations in this case under either statutory or
equitable tolling theories.
A charging party bears the burden
of
demonstrating a charge is timely filed.
(Los Angeles Unified School District (2007) PERB Decision No. 1929; Long Beach CCD II.)
The charge does not allege facts demonstrating that Charging Parties were covered by a
negotiated grievance procedure that either ended in binding arbitration or constituted a non
binding dispute resolution procedure. Absent this information, the charge fails to demonstrate
sufficient facts to establish that the statute
of
limitations is subject to statutory or equitable
tolling. 	In addition, the complaint filed in 2004 clearly does not allege it was processed under
a negotiated written agreement. Finally, as the Board agent found, even
if
the statute
of
limitations was tolled while the Charging Parties pursued their grievances and complaint, they
were denied by the District in 2003 and 2004, respectively. 	The charge was filed more than six
months after the grievances and complaint were denied.
Charging Parties assert, in the alternative, the charge should be found timely under a
continuing violation theory. 	To establish a continuing violation a charging party must show
there is some new violation, sufficiently independent
of
the original act, occurring within the
statutory limitations period. (North Orange County Community College District (1999) PERB
Decision No. 1342.) A continuing violation is not found where an employer's conduct during
the statutory period is simply maintaining the original position or action it took outside the
limitations period. 	(Ibid.)
Charging Parties allege that PIS employees were actually part
of
the bargaining unit
represented by CSEA, but the District falsely informed them they were exempt. Charging
Parties further allege they discovered within the statutory period that from 1997-2000 CSEA
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operated a "closed shop," which Charging Parties believed meant all bargaining unit members
must either join the union or become an agency fee payer.
These allegations do not establish a continuing violation. 	Charging Parties knew or
should have known when they were hired in 1997 that the District deemed them exempt
employees. Certainly, Charging Parties knew in 2001 that the District considered them exempt
because Charging Parties met with the District to discuss differences in the PIS and CRA
classification benefits. The fact that the District continued to maintain the position that the PIS
employees were exempt until they were reclassified, does not make the charge timely under the
continuing violation theory. 	Accordingly, the Board agent properly dismissed the charge as
untimely filed. 3
Finally, Charging Parties attached new documents to their appeal that were not
previously presented to the Board agent for consideration but were available to the Charging
Parties when they filed their unfair practice charge. PERB Regulation 32635(b
)4
precludes a
charging party from raising new allegations or new supporting evidence on appeal without
good cause. Charging Parties have not demonstrated good cause to present new supporting
evidence on appeal, and nothing in the documents filed with the appeal indicates good cause.
(Los Banos Unified School District (2006) PERB Decision No. 1828.) Therefore, the Board
did not consider the new evidence submitted on appeal.
3 As the Board finds the charge untimely, it is unnecessary to address whether the
charge states a prima facie case of retaliation.
4 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
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ORDER
The unfair practice charge in Case No. LA-CE-4900-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Rystrom and Member McKeag joined in this Decision.
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