Peralta Community College District (PERB 1576E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TIMOTHY EDWARD LEE,
Charging Party,
V.
PERALTA COMMUNITY COLLEGE DISTRICT,
Respondent.
Case No. SF-CE-2308-E
PERB Decision No. 	15 7 6
December
	31,
	2003
Appearance: Timothy Edward Lee, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Timothy Edward Lee (Lee)
of
a Board agent's dismissal. 	The
unfair practice charge alleged that the Peralta Community College District (District) violated
the Educational Employment Relations Act (BERA) 1 by failing to implement an arbitrator's
award to reinstate Lee as a permanent employee, in part by failing to consult with Service
Employees International Union Local 790 (SEIU) and Lee pursuant to the arbitrator's decision;
by withholding vacation pay, sick leave and longevity pay from Lee; and by hiring student
employees in violation
of
the collective bargaining agreement (CBA). Lee alleged that this
conduct constituted a violation
of
various provisions
of
the CBA.
Upon review
of
the entire record, including the unfair practice charge, the amended
charge, the Board agent's warning and dismissal letters, and Lee's appeal, the Board affirms
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

the Board agent's dismissal consistent with the discussion below. The Board will also address
the issues raised by Lee on appeal.
BACKGROUND
Lee was a police service employee with the District, who participated in an arbitration
proceeding regarding his continued employment. The arbitration arose out
of
a previous unfair
practice charge regarding the denial
of
permanent employment by the District pursuant to a
1996 agreement between SEIU and the District. On November 25, 2001, the arbitrator issued a
partial award to Lee, which states, in pertinent part:
The [g]rievant's layoff was in violation
of
the 1996 Agreement
(Joint Ex. 2). The District shall consult with the Union and the
Grievant concerning the Grievant's placement as required by the
1996 Agreement. The Grievant shall receive no back pay. 	From
the date
of
this award to the time the parties terminate the
consultative process, the Grievant shall be entitled to the
difference in pay between his Police Services salary and any
income he earns in employment outside the District. He shall
also be entitled to any benefits he currently would have had he
not been laid off.
Lee alleges that the District has not met with SEIU as required by the arbitrator's
decision. The District has required him to apply for positions. Lee complains that temporary
positions were not posted and students were hired for those positions in violation
of
sections
3.2, 17.2.2, and 17.3
of
the 2000-2003 CBA.2 As noted in footnote 2 below, both sections 3.2
2CBA (2000-2003) Article 3.2 provides, in pertinent part:
The District is committed to vigorous affirmative action in all
aspects
of
its employment program, including selection,
assignment, promotion and transfer.
...
Furthermore, the District
agrees that there shall be no discrimination, interference,
restraints or coercion by the District or any of its agents against
any of its employees because of membership in the union or
exercise of rights to engage in Union activity. Alleged violations
of this Article 3 shall be processed exclusively through the
District discrimination complaint resolution procedures.
2

and 17.3 prohibit discrimination based upon protected activity. 	The students maintained their
jobs beyond the allotted 195-day period in violation of Education Code section 880033 or the
(Note: The record does not contain the referenced discrimination
complaint resolution procedures.)
Article 17.2.2 provides, in pertinent part:
When a temporary vacancy exists in the highest classifications of
SEIU Local 790, the District agrees to post an announcement of
the temporary vacancy to allow District employees an
opportunity to work out-of-class to gain knowledge and
experience for career advancement.
Article 17.3 provides:
The District and its agent or agents shall in no way discriminate
against, discourage, obstruct, harass any employee who applies
for a vacancy or who participates on any screening committee or
on any applicant's behalf as an appointed agent of SEIU Local
790.
3Education Code 88003 provides, in pertinent part:
The governing board of any community college district shall
employ persons for positions that are not academic positions ....
'Short-term employee,' as used in this section, means any person
who is employed to perform a service for the district, upon the
completion of which, the service required or similar services will
not be extended or needed on a continuing basis. Before
employing a short-term employee, the governing board, at a
regularly scheduled board meeting, shall specify the service
required to be performed by the employee pursuant to the
definition of 'classification' in subdivision ( a) of Section 88001,
and shall certify the ending date of the service. The ending date
may be shortened or extended by the governing board, but shall not
extend beyond 75 percent of a school year.
'Seventy-five percent of a college year' means 195 working days,
including holidays, sick leave, vacation and other leaves of
absences, irrespective of number of hours worked per day.
Employment of either full-time or part-time students in any college
work-study program, or in a work experience education program
shall not result in the displacement of classified personnel or
impair existing contracts for services.
3

184-day limit under District board policy number 3.34. He also alleges that the District has
withheld sick leave, longevity and vacation pay due him. The only time Lee alleges that he
had had communication from the District was a termination letter dated November 21, 2002
and attached to the charge, the termination to be effective November 30, 2002. Attachments
to
the amended charge demonstrate that Lee was invited to at least one interview. The
termination letter alludes to a meeting between the District, SEIU and Lee, which occurred on
December 20, 2001. Another attachment involves correspondence dated January 13, 2003
from SEIU to the District requesting a meeting to discuss reemployment
of
Lee. The instant
charge was filed with the Board on December 12, 2002 and the amended charge on January 22,
2003.
The Board agent concluded that the charge should be dismissed. 	She found that Lee's
allegation that the District failed to provide sick leave and vacation pay did not include a "clear
and concise statement
of
the fact and conduct alleged to constitute an unfair practice," as
required by PERB Regulation 32615(a)(5)4. The Board agent also found that, since individuals
lack standing to allege unilateral change violations and to allege violations
of
EERA provisions
that protect the rights
of
employee organizations, Lee lacked standing to allege that the District
failed to consult with SEIU or violated the CBA by hiring student employees. The Board
agent further found that the Board lacked jurisdiction to enforce arbitration decisions and so
cannot enforce the alleged violations
of
the November 2001 award in requiring Lee to apply
for jobs and then by terminating him.
4PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
4

LEE'S APPEAL
Lee's appeal provides more information than his charge. The appeal is summarized
below.
In 1996, the District dissolved its police services, transferred the functions to Alameda
County, and negotiated an agreement with SEIU to address the impact on covered employees.
The agreement with SEIU, dated August 13, 1996, provides for, inter alia, negotiations
of
severance pay, additional retirement credit, either District jobs for those not qualified to work
for Alameda County or severance pay pursuant to the future agreement to be negotiated
between SEIU and the District, and continued negotiations for affected employees after the
transfer occurs.
Lee had been a police officer for the District from July 1990 to August 1996. The
circumstances
of
Lee's employment between 1996 and July 2000 are unclear. 	Apparently, Lee
was laid
off
in July 2000 and his layoff was the subject
of
the previous unfair practice charge.
Lee claims that the District used negative evaluations and written reprimands5 to support his
termination. Although also unclear from the record, the Board probably deferred the charge to
arbitration. On November 15, 2001, the arbitrator ruled, in part, in Lee's favor, requiring,
among other things, the District to consult with SEIU and Lee regarding his placement in a
permanent position and to pay Lee benefits. Lee says that the District required him to apply
for jobs instead
of
placing him. According to Lee, available openings were not posted in
violation
of
the CBA but instead the District hired student employees. 	SEIU and Lee met with
Larry Hardy (Hardy), the District human relations director, on December 20, 2001 and
5One of these reprimands is attached to his appeal from March 1998. Specifics on other
reprimands or evaluations were not provided.
5

January 15, 2002 to discuss possible placement. Hardy informed Lee that he would receive no
special treatment. Hardy did not show up for another meeting scheduled for January 11, 2002.
During the January
15
meeting, there was discussion
of
monies due Lee from the District but
Lee states that he never received this money.
By letter dated November 21, 2002, the District unilaterally declared the consultative
process under the arbitration award to be completed and terminated Lee's employment without
an offer
of
severance pay. The letter states that Lee was advised to apply for certain positions
with the District but Lee declined to do so. The letter further states that Lee applied for two
other positions, was interviewed for them, and was not offered either position. In fact,
according to Lee, Lee was advised that he was not qualified for some
of
these positions and so
did not apply, and was still participating in the interview process for other positions. Letters
from staff responsible for interviews are attached to his appeal as support.
Lee also reiterates that the District denied him sick leave, vacation and longevity pay in
violation
of
the CBA. However, in his appeal, for the first time, he provided specific amounts
that he believes the District owes him for each type
of
pay and attached pertinent portions
of
the CBA to support his position.
From these facts, Lee argues that the District violated the 1996 agreement by its failure
to consult with SEIU and with him regarding his job placement. Lee states that the District
violated the agreement by placing him in a position outside his union's unit into Local
39's
unit without his consent.6 Local 39 grieved his placement and won the arbitration. The
District failed to place him in a comparable position and instead used negative evaluations and
written reprimands to lay him off due to a purported lack of work. Lee filed an unfair practice
6Lee here implies, but does not explain, the existence of a different employee
organization representing the police services employees before 1996.
6

charge (Case No. SF-CE-2140) over the improper layoff which the Board determined should
be arbitrated. The case was arbitrated in mid-2001 and as stated in the charge, the arbitrator
ordered that he be returned to permanent status with full pay and benefits. The District failed
to post temporary and permanent vacancies in violation
of
the CBA, but instead hired students
and allowed them to work beyond the time periods allowed under District board policy and
under Education Code section 88003.
On appeal, Lee further argues that the District discriminated against him by his
termination and the placement
of
negative letters in his personnel file. 	For the first time on
appeal, Lee also claims that he was the only employee from police services required to apply
for, rather than be placed in, an open position; however, despite the District's stance, he
contends that he did apply for Alternative Media Specialist, Computer Operator I and
Staff
Assistant/Information Technology, positions for which he was qualified. He also states that he
asked about a Network Coordinator position and was told that he was not qualified.
DISCUSSION
Lee claims that the District denied him payments due for sick leave, vacation and
longevity pay. The charge as amended fails to provide specifics sufficient to state a prima
facie case. (PERB Reg. 32615(a)(5); State
of
California (Department
of
Food and Agriculture)
(1994) PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992)
PERB Decision No. 944 and Charter Oak Unified School District (1991) PERB Decision
No. 873.) Lee only provided such specifics in his appeal. As explained below, the Board finds
no good cause to accept these new facts on appeal.
We also find that Lee, as an individual, lacks standing to allege violations
of EERA
provisions that protect employee organizations, including a refusal to consult with the
employee organization or a unilateral change in terms and conditions of employment. 	(Oxnard
7

School District (Gorcey and Tripp) (1988) PERB Decision No. 667; State
of
California
(Department
of
Corrections) (1993) PERB Decision No. 972-S (Corrections).) "The right
of
an employee organization to represent its members is not a right that an individual member can
appropriately vindicate." (Corrections, dismissal letter, p. 6.) Therefore, we dismiss
Lee's
allegations regarding the District's failure to consult with SEIU or the hiring
of
students
in
violation
of
the CBA.
Lee asks the Board to enforce the November 2001 arbitration award. 	The Board lacks
jurisdiction to enforce arbitration awards. 	(EERA sec. 3541.S(b); State
of
California
(Department
of
Youth Authority) (2003) PERB Decision No. 1526-S.) Should Lee otherwise
seek to enforce the arbitration award, appropriate forums exist for Lee to enforce rights granted
under the award.
We further find that Lee failed to state a prima facie case for discrimination. To
demonstrate a violation
of
EERA section 3543.S(a), Lee must show that: (1) he exercised
rights under EERA; (2) the District had knowledge
of
the exercise
of
those rights; and (3) the
District imposed or threatened to impose reprisals, discriminated or threatened to discriminate,
or otherwise interfered with, restrained or coerced Lee because
of
the exercise
of
those rights.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato); Carlsbad Unified
School District (1979) PERB Decision No. 89.)
Lee has alleged protected conduct: participation in an unfair practice charge,
and
grievance and arbitration proceeding involving his layoff, which occurred in 2000-2001. 	The
District obviously is aware
of
Lee's participation in these activities. Lee has also alleged
adverse action by the District: the District's failure to place him in an open position
and
its
termination of his employment in November 2002. However, the written reprimand from 1998
is untimely alleged as an adverse action. 	(EERA sec. 3541.S(a)(l).)
8

But Lee has failed to show a nexus between the protected conduct and the adverse action.
Although the timing
of
the District's adverse action in close temporal proximity to the employee's
protected conduct is an important factor (North Sacramento School District (1982) PERB Decision
No. 264), it does not, without more, demonstrate the necessary connection or "nexus" between the
adverse action and the protected conduct. (Moreland Elementary School District (1982) PERB
Decision No. 227.) Facts establishing one or more
of
the following additional factors must also be
present: (1) the District's disparate treatment
of
the employee (State
of
California (Department of
Transportation) (1984) PERB Decision No. 459-S); (2) the District's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School District
(1979) PERB Decision No. 104); (3) the District's inconsistent or contradictory justifications for its
actions (State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision No. 328-
S; (4) the District's cursory investigation
of
the employee's misconduct; (5) the District's failure
to
offer the employee justification at the time it took action or the offering
of
exaggerated, vague, or
ambiguous reasons; (6) District animosity towards union activists (Cupertino Union Elementary
School District) (1986) PERB Decision No. 572); or (7) any other facts which might demonstrate
the employer's unlawful motive. (Novato; North Sacramento School District, supra, PERB
Decision No. 264.) Other than the one written reprimand, dated March 1998, Lee failed to provide
specifics about negative evaluations or written reprimands, such as dates, subject matter, or writer.
This reprimand occurred before the protected activity and so cannot be evidence
of
animus toward
Lee. In his charge, Lee has alleged no other facts sufficient to demonstrate nexus.
For the first time on appeal, Lee alleges that he was treated differently from other
police service employees. PERB Regulation 32635(b
)7
precludes a charging party from raising
7PERB Regulation 32635 provides, in pertinent part:
9

new allegations on appeal unless good cause is shown. Lee did not provide facts showing
good cause to raise this new allegation or provide an explanation for alleging these new facts.
(Oakland Education Association (Freeman) (1994) PERB Decision No. 1057; Regents of the
University of California (1994) PERB Decision No. 1058-H.) The facts were known to Lee at
the time he filed his charge. This allegation further lacks specifics regarding the identities of
other similarly-situated individuals who were placed in District positions, the timing of the
placements, or the specific jobs that these individuals were placed in.
(b) Unless good cause is shown, a charging party may not
present on appeal new charge allegations or new supporting
evidence.
For the same reasons, we cannot accept the new evidence raised regarding specific sick
leave, vacation, and longevity pay amounts allegedly due Lee and the pertinent CBA
requirements that he provided for the first time on appeal. Similarly, as asserted by Lee, these
pay allegations may be covered by the arbitration award, enforcement of which is not subject
to PERB's jurisdiction.
The Board therefore concludes that Lee has not stated a prirna facie violation of EERP~
and his charge must be dismissed.
ORDER
The unfair practice charge and complaint in Case No. SF-CE-2308-E is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Baker and Neima joined in this Decision.
10