San Leandro Unified School District (PERB 1772E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SAN LEANDRO TEACHERS ASSOCIATION,
Charging Party, Case No. SF-CE-2447-E

Vv. PERB Decision No. 1772

SAN LEANDRO UNIFIED SCHOOL DISTRICT, June 28, 2005

Respondent.

Appearances: California Teachers Association by Priscilla S. Winslow, Attorney, for
San Leandro Teachers Association; Ruiz & Sperow by Alison C. Neufeld, Attorney, for
San Leandro Unified School District.
Before Duncan, Chairman; Whitehead and McKeag, Members.
DECISION

MCKEAG, Member: This case is before the Public Employment Relations Board
(Board) on appeal by the San Leandro Teachers Association (Association) of a Board agent’s
dismissal (attached). The unfair practice charge alleges that the San Leandro Unified School
District (District) violated the Educational Employment Relations Act (EERA)! by prohibiting
the distribution of union newsletters containing information on the union’s political
endorsements in District mailboxes.

The Board has reviewed the entire record, including the unfair practice charge, the
warning and dismissal letters, the Association’s appeal and the District’s response. The Board

finds the Board agent’s dismissal to be free of prejudicial error and adopts it as a decision of

the Board itself.

‘EERA is codified at Government Code section 3540, et seq.

ORDER
The unfair practice charge in Case No. SF-CE-2447-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
r- •--===============a:d( .. \
PUBLIC EMPLOYMEN1'RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
I
March 17, 2005
Priscilla Winslow, Assistant Chief Counsel
California Teachers Association
P.O. Box 921
Burlingame� CA 94011-0921
Re: San Leandro Teachers Association v. San Leandro Unified School District
Unfair Practice Charge No. SF-CE-2447-E
DISMISSAL LETTER
Dear Ms. Winslow:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 16, 2004. The San Leandro Teachers Association
�lleges that the San Leandro Unified School District violated the Educational Employment
Relations Act (EERA)1 by prohibiting the Association from distributing its newsletters in
teachers' mailboxes when the newsletters contain information about the union's political
endorsements.
I indicated to you in my attached letter dated February 17, 2005, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You filed an amended charge with this office on February 28,
2005.
In the amended charge, you assert that the facts in this case can be distinguished frOIJl those in
San Diego Community College District (2001) PERB Decision No. 1467, because mailboxes
are not District equipment since they are permanently attached to the wall and require no
maintenance or service by specialized technicians. However, in San Diego, the Board found
that the plain meaning of Education Code §70542 prohibited the use of mailboxes as a means
of distributing political information.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 California Education Code §7054 provides:
[n]o school district or community college district funds, services
supplies, or equipment shall be used for the purpose of urging the
support or defeat of any ballot measure or candidate, including,
but not limited to, any candidate for election to the governing
board of the district.

SF-CE-2447-E
March 17, 2005
Page2
You also assert that the purpose of the two flyers in question, in addition to updating the
members regarding negotiations, was to encourage them to participate in union activities.
There can be no dispute, however, that those activities, i.e., campaigning for school board
candidates, were political.
Finally, you also allege that copies of the local newspaper containing articles endorsing
individuals for school board are routinely distributed in teachers' mailboxes, as are
advertisements from insurance companies and local businesses and information from the PTA
and other organizations. While this may be true, it does not diminish the Education Code
prohibition as it pertains to the union. 	·
Therefore, I am dismissing the charge based on the facts and reasons stated above and
contained in my February 17, 2005, letter.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

''-
SF-CE-2447-E
March 17, 2005
Page3
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself,, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By _
Jeril
LaborR
__::::=,~!S25;~~~~~~
Attachment
cc: Martin S. Kresse

•

=ST=A=T=ll=O=F=C=AL=I=FO=RNI 	ARNOLD SCHWARZENEGGER, Governor	A========aa,.r- -==·===============1,(-.,_
PUELIC EMPLOYMEN'l' RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
February 17, 2005
Pdscilla Winslow, Assistant Chief Counsel
California Teachers Association
P.O. Box 921
Burlingame, CA 94011-0921
Re: 	San Leandro Teachers Association v. San Leandro Unified School District
Unfair Practice Charge No. SF-CE-2447-E
WARNING LETTER
Dear Ms. Winslow:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 16, 2004. The San Leandro Teachers Association
alleges that the San Leandro Unified School District violated the Educational Employment
Relations Act (EERA)1 by prohibiting the Association from distributing its newsletters in
teachers' mailboxes when the newsletters contain information about the union's political
endorsements.
The Association distributed a rn;wsletter to teachers' mailboxes on or about October 11, 2004.
Among other items, the newsletter contained an item entitled "School Board Election." The
item urged teachers to volunteer in support of two named individuals whom the Association
supported for election to the school board.
On or about October 12, 2004, the Association distributed an negotiations update to teachers'
mailboxes. A paragraph at the bottom of the letter urged teachers to volunteer in support of
"our School Board Candidates." Both newsletters were prepared at Association expense and
distributed on non-work time.
On October 15, 2004, Assistant Superintendent of Human Resources Mike Martinez sent a
letter to Association President John Sherr. The letter indicated that the District believed these
letters to be impermissible under Education Code §7054. Although the District became aware
of the letters too late to remove them, Mr. Martinez stated that his letter placed the Association
on notice that "we will not allow the SL TA access to faculty mailboxes if any future
distributions contain impermissible political endorsements."
California Education Code §7054 provides:
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-2447-E
February 16, 2005
Page2
[n]o school district or community college district funds, services 1
supplies, or equipment shall be used for the purpose of urging the
support or defeat of any ballot measure or candidate, including,
but not limited to, any candidate for election to the governing
board of the district.
In San Diego Community College District (2001) PERB Decision No. 1467, PERB held that
Education Code §7054 supersedes access rights under EERA and, therefore, a union may not
used school district mail facilities to distribute political material, regardless of who pays for the
material or when it is distributed. While the political items in the October 11 and 12 flyers were
not the only issues addressed therein, their inclusion in the flyers made it unlawful to distribute
them in the teachers' mailboxes.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written ori the top right hand
comer of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before February 28, 2005, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Jeri
Labor Relations Specialist •
JAG