Los Angeles Community College District (Kimmett) (PERB 0309E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JU LES KIMMETT,
Charging Party,
v.
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
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____________________)
Case No. LA-CE-1365
PERB Decision No. 309
May 18, 1983
Appearances: Jul es Kimmett representing himself; Mary L.
Dowell, Attorney for Los Angeles Community College District.
Before Jaeger, Morgenstern and Burt, Members.
DECISION
MORGENSTERN, Member: This matter is before the Public
Employment Relations Board (PERB or Board) on appeal from an
administrative decision of the Executive Assistant to the
Board, at his initiative. The Executive Assistant dismissed as
untimely an appeal by Jul es Kimmett (Charging Party) from an
ear lier administrative decision disallowing his appea l from an
administrative law judge's (ALJ) Refusal to Issue a Complaint
and Dismissa l of Charge With Leave to Amend. That attempted
appeal was found to be insufficient under the requirements for
an appeal pursuant to PERB regu lations. l The charge was
originally dismissed for fail ure to state a pr1ma facie case
l PERB regulations are codified at California
Administrative Code, title 8, section 31001 et seq.

and 	for 	lack 	of 	standing 	to 	bring 	a 	charge 	under 	subsection
3543.S(c} 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA) .2
The 	Board 	has 	reviewed 	the 	entire 	record 	in 	this 	matter 	and
finds 	that 	the 	action 	of 	the 	administrative 	law 	judge, 	in
refusing 	to 	issue 	a 	complaint 	for 	failure 	to 	state 	a 	prima
facie 	case, 	was 	free 	from 	error.3 	Similarly, 	the 	actions 	of
the 	Executive 	Assistant 	to 	the 	Board 	disallowing 	both 	the
appeal 	from 	the 	Refusal 	to 	Issue 	a 	Complaint 	and 	the 	subsequent
appeal 	of 	that 	administrative 	decision 	were 	free 	from 	error~
The 	Board, 	therefore, 	dismisses 	the 	appeal 	and 	the 	underlying
charge.
DISCUSSION
Refusal 	to 	Issue 	Complaint 	and 	Dismissal 	of 	Charge
PERB 	regulation 	32615(a) (5) 	requires 	a 	charging 	party 	to
provide 	a 	clear 	and 	concise 	statement 	of 	the 	facts 	and 	conduct
2The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government Code
unless 	otherwise 	specified.
Section 	3543.5 	provides 	in 	pertinent 	part:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
3Because 	the 	charge 	was 	properly 	dismissed 	on 	this
ground, 	we 	do 	not 	consider 	whether 	the 	ALJ 	erred 	in 	holding
that 	Kimmett 	lacked 	standing 	to 	bring 	the 	charge. 	See 	South
San 	Francisco Unified 	School 	District 	(1/15/80) 	PERB 	Decision
No. 	112.
. 	. . 	. 	. 	. . 	. . 	. 	. 	. . 	.
2

alleged 	to
	constitute
	an
	unfair
	practice.
	To
	state
	a
	prima
facie 	violation
	of
	subsection 	3543.S(c),
	the 	charging
	party
must
	allege 	specific
	instances
	of
	employer
	behavior 	which,
	if
proved,
	would
	constitute
	bad
	faith
	negotiation
	or
	a
	refusal
	to
bargain.
Kimmett's 	charge
	alleged
	that
	the
	Los
	Angeles
	Community
College
	District
	(District)
	proposed
	that
	1981-82
	salaries
remain
	the
	same
	as 	for
	fiscal
	year 	1980-81.4	
Assuming
	that
the
	essential
	facts
	alleged
	in
	the 	charge
	are
	true
	(San
	Juan
Unified
	School
	District
	(3/10/77)
	EERB
	Decision
	No. 	12)
,5
neither 	this
	charge
	nor 	Kimmett's
	responses
	to
	two
particularization
	orders 	indicates
	how
	such 	a
	proposal
	is
	a
refusal
	to
	bargain 	in
	good
	faith.
	Though 	Kimmett
	asserted
	in
response
	to
	the
	first
	particularization
	order
	that
	the
exclusive 	representative
	requested
	negotiations
	on
	the
	subject
4The
	original
	charge
	states
	in
	its
	entirety
	as 	follows:
On
	April
	22,
	1981
	at
	the 	regular
	Board
of 	Trustees
	Los 	Angeles 	Community
College
	District
	agenda
	•••
	'1981-82
Salary 	Proposal
	salary 	for
	all
employees
	in 	Unit
	2
	shall
	remain
	the
same
	for 	the
	fiscal
	year 	1981-82 	as
that 	established
	for 	the
	fiscal
	year
1980-81.'
From
	the
	text
	of 	3543.S(c)
	refuse 	or
fail
	to
	meet 	and
	negotiate 	in
	good
faith
	with 	an
	exclusive 	representative.
Sprier 	to 	January 	1,
	1978,
	PERB
	was 	known 	as 	the
Educational
	Employment
	Relations 	Board.
3

of
	salaries
	for
	1981-82,
	he
	alleged
	no
	actions
	on
	the
	part
	of
the
	District
	which
	reflect
	a
	refusal
	to 	enter 	into
	such
negotiations.
	Merely
	citing
	an
	employer's
	salary
	offer,
without
	also 	alleging
	a
	refusal
	to
	negotiate
	on
	the
	matter,
does
	not
	suffice.
In
	his
	response
	to
	the
	first
	particularization
	order,
Kimmett
	additionally
	alleged
	that
	the
	District's
	salary
proposal
	had
	not
	been
	sunshined, 	arguably
	a
	violation
	of 	the
public	
notice	
requirements
	of 	section
	3547.6	
In
	Kimmett
	Vo
6section
	3547
	provides:
(a)
	All
	initial
	proposals 	of
	exclusive
representatives
	and
	of 	public
	schoolemployers,
	which
	relate
	to 	matters
	within·
the
	scope
	of 	representation,
	shall
	be
presented
	at
	a
	public
	meeting 	of 	the
	publicschool
	employer 	and
	thereafter 	shall
	be
public 	records
•.
(b) 	Meeting 	and
	negotiating
	shall
	not 	take
place
	on 	any
	proposal
	until
	a
	reasonable
time 	has
	elapsed
	after
	the 	submission
	of
	the
proposal 	to 	enable 	the
	public 	to
	become
informed
	and
	the
	public
	has 	the 	opportunity
to 	express
	itself
	regarding 	the 	proposal
	at
a
	meeting
	of
	the
	public 	school 	employer.
(c)
	After 	the 	public
	has 	had
	the
opportunity 	to 	express
	itself,
	the 	publicschool
	employer
	shall, 	at
	a 	meeting 	which
	is
open
	to 	the
	public,
	adopt
	its 	initial
proposal.
(d)
	New
	subjects 	of
	meeting 	and
	negotiating
arising 	after
	the 	presentation 	of
	initial
proposals 	shall
	be 	made
	public 	within
	24
hours.
	If
	a 	vote
	is
	taken 	on 	such
	subject
by 	the 	public 	school 	employer, 	the 	vote
4

Los 	Angeles 	Community 	College 	District 	(6/24/81) 	PERB 	Decision
No. 	167J 	the 	Board 	ruled 	that 	charges 	concerning 	public 	notice
must 	be 	filed 	as 	public 	notice 	complaints 	pursuant 	to· the
expedited 	proceedings 	provided 	by 	PERB 	regulations 	32900-32965
(formerly 	sections 	37000-37100) 	and 	not 	as 	unfair 	practice
charges. 	Despite 	the 	fact 	that 	Kimmett 	has 	properly 	filed
public 	notice 	complaints 	on 	at 	least 	two 	previous 	occasions
(Decision 	No. 	167, 	supra, 	and 	Kimmett 	v. 	Los 	Angeles 	Community
College 	District 	(3/3/81) 	PERB 	Decision 	No. 	158), 	he 	fails 	to
mention 	either 	section 	3547 	or 	public 	notice 	requirements 	here.
Therefore, 	the 	allegation 	in 	Kimmett's 	particularization
that 	the 	District's 	salary 	proposal 	was 	not 	sunshined 	does 	not
cure 	the 	deficiency 	in 	his•charge. 	As 	the 	facts 	alleged 	do 	not
constitute 	a 	prima 	faci~ violation 	of 	subsection 	3543.S(c), 	the
ALJ 	properly 	refused 	to 	issue 	a 	complaint 	and 	dismissed 	the
charge 	with 	leave 	to 	amend.
I
thereon 	by 	each 	member 	voting 	shall 	also 	be
made 	public 	within 	24 	hours.
(e) 	The 	board 	may 	adopt 	regulations 	for 	the
purpose 	of 	implementing 	this 	section, 	which
are 	consistent 	with 	the 	intent 	of 	the
section; 	namely 	that 	the 	public 	be 	informed
of 	the 	issues 	that 	are 	being 	negotiated 	upon
and 	have 	full 	opportunity 	to 	express 	their
views 	on 	the 	issues 	to 	the 	public 	school
employer, 	and 	to 	know 	of 	the 	positions 	of
their 	elected 	representatives.
5

Appeal 	of 	Dismissal
An 	appeal 	of 	a 	Refusal 	to 	Issue 	a 	Complaint 	must 	contain
the 	facts 	and 	arguments 	upon 	which 	the 	appeal 	is 	basea.7 	The
Executive 	Assistant 	treated 	a 	document 	submitted 	by Kimmett 	on
March 	14, 	1982 	as 	an 	appeal 	of 	the 	Refusal 	to 	Issue 	a
Complaint, 	though 	it 	was 	not 	labeled 	as 	such 	and 	was 	primarily
a 	diatribe 	against PERB's 	Chief 	Administrative 	Law 	Judge.
The 	only 	part 	of 	that 	document 	relevant 	to 	an 	appeal 	was
the 	assertion 	that 	Charging 	Party's 	original 	charge 	contained
facts 	sufficient 	to 	st.ate 	a 	prima 	facie 	case. 	Merely 	asserting
that 	sufficient 	facts 	were 	alleged 	in 	the 	original 	charge
witho~t 	explaining 	why 	they 	constitute 	a 	prima 	facie 	case 	fails
to 	satisfy 	the 	requirements 	for 	an 	appeal.
7At 	all 	times 	relevant 	to 	this 	proceeding, 	regulation
32630(b) 	provided:
The 	charging 	party 	may 	either 	(1) 	file
an 	amended 	charge, 	provided 	leave 	to
amend 	is 	granted, 	within 	20 	days
following 	the 	date 	of 	service 	of 	the
refusal 	to 	issue 	a 	complaint 	or
(2) 	file 	an 	original 	and 	four 	copies 	of
an 	appeal 	of.the 	refusal 	with 	the 	Board
itself 	within 	20 	days 	following
service. 	The 	appeal 	shall 	be 	filed
with 	the 	Executive 	Assistant 	to 	the
Board 	and 	shall 	be 	in 	writing, 	signed
by 	the 	party 	or 	its 	agent, 	and 	contain
the 	facts 	and 	arguments 	upon 	which 	the
appeal 	is 	based. 	Service 	and 	proof 	of
service 	of 	the 	appeal 	pursuant 	to
section 	32140 	are 	required.
(Subsequently 	amended, 	effective
September 	20, 	1982.)
6

Charging 	Party 	also 	failed 	to 	properly 	serve 	his 	March 	14
"appeal," 	since 	the 	document 	was 	not 	served 	by 	a 	non-party 	and
no 	copy 	was 	sent 	to 	the 	opposing 	party.a
8Regulation 	32140 	provides, 	in 	pertinent 	part:
(a) 	All 	documents 	referred 	to 	in 	these
regulations 	requiring 	"service" 	or 	required
to 	be 	accompanied 	by 	"proof 	of 	service,"
except 	subpoenas, 	shall 	be 	considered
"served" 	by 	the 	Board 	or 	a 	party 	when
personally 	delivered 	or 	deposited 	in 	the
first-class 	mail 	properly 	addressed. 	All
documents 	required 	to 	be 	served 	shall
include 	a 	"proof 	of 	service" 	affidavit 	or
declaration 	signed 	under 	penalty 	of 	perjury
which 	meets 	the 	requirements 	of 	section
1013(a) 	of 	the 	Code 	of 	Civil 	Procedure 	or
which 	contains 	the 	following 	information:
I 	declare 	that 	I 	am 	employed
or 	reside 	in 	the 	County
of-,-----,.-----'
California. 	I 	am 	over 	the
age 	of 	18 	yearsand 	not 	a
party 	to 	the 	within 	entitled
causa: 	my 	address
is 	.
On 	---------- 	I
(personally) 	served
the---------=-- 	onthe 	______ 	(by 	placing
a 	true 	copy 	thereof 	enclosed
in 	a 	sealed 	envelope 	with
postage 	thereon 	fully
prepaid, 	in 	the 	U.S. 	Mail
at
addressed) 	as 	follows: 	•••
. . 	. 	. 	. 	. 	. 	. 	. 	. . 	. 	. 	. 	. 	. 	.
(c) 	Whenever 	"service" 	is 	required 	by
these 	regulations, 	service 	shall 	be 	on
all 	parties 	to 	the 	proceeding 	and 	shall
be 	concurrent 	with 	the 	filing 	in
question. 	(Emphasis 	added.)
7

ruling
We,
	therefore,
	affirm
	the 	Executive
	Assistant's 	that
the
	document
	submitted
	by
	Charging
	Party
	on March
	14,
	1980 	was
insufficient
	to
	constitute
	an
	appeal.
Appeal
	of 	Administrative 	Decision 
1982,
	By
	letter
	dated
	and
	served 	on
March
	19, 	the 	Executive
Assistant
	informed Charging
	Party 	of
	his
	decision
	to
	disallow
the 	"appeal"
	and
	of 	his
	right
	to
	appeal
	that
	decision 	to
	the
Board
	no
	later
	than 	the
	close
	of 	business
	on March
	29,
	1982.
Because
	the
	Executive
	Assistant's
	ruling
	was 	an
	administrative
decision,9	
a
	the
	10-day
	period
	specified
	for
	filing
9
in
all
	provided,
	At
	relevant
	times,
	regulation
	32350
pertinent 	part:
(a) 	An
	administrative 	decision
	is
	any
determination
	made 	by
	the 	Executive
Director,
	a
	Regional
	Director, 	the
General 	Counsel, 	the Chief
Administrative
	Law
	Judge, 	or 	the
Executive
	Assistant 	to
	the
	Board
	other
than
	a
	refusal 	to
	issue
	a
	complaint 	in
an
	unfair 	practice
	case 	pursuant 	to
section
	32630,
	or
	a
	decision 	issued
pursuant 	to 	section
	32654(e) 	or
	a
decision
	which
	results
	from
	the 	conduct
of
	a
	formal
	hearing.
	Any
administrative 	decision 	issued	
by	
an
agent 	of 	the
	above
	listed 	staff
officers 	shall
	be
	considered 	as 	issued
by 	the 	Executive
	Director,
	Regional
Director,
	General 	Counsel, 	Chief
Administrative
	Law
	Judge, 	or 	Executive
Assistant 	to 	the 	Board. 	{Subsequentlyamended,
	effective
	September 	20, 	1982.)
Though
	regulation
	32350(a)
	defines 	administrative
as 	excluding 	a
	refusal 	to 	issue
	a 	complaint
	decisions
pursuant 	to 	regulation
	32630,
	regulation
	32630 	covers 	only
8

subsequent
	administrative
	appeal
	was
	proper.10	
Kimmett's
appeal
	was
	not
	received
	until
	Wednesday, 	March
	31, 	1982,
	and
was,
	therefore,
	untimely
	filed.1
1	
There
	is
	no
	record
	of
Kimmett's 	having
	requested
	an
	extension
	of
	time
	to
	file
	the
appeal.
	While
	a
	late 	filing
	may
	be
	excused
	in
	the
	discretion
of
	the
	Board 	under
	extraordinary
	circumstances,12	
no
	such
circumstances 	are
	shown
	here.
the
	first
	appeal
	to
	the
	Board. 	Subsequent
	appeals 	are 	properly
categorized
	as
	administrative 	decisions.
lOAt
	all
	relevant 	times, 	regulation
	32360
	provided, 	in
pertinent 	part:
(b) 	The
	appeal
	shall
	be
	filed
	with 	the
Executive
	Assistant 	to
	the
	Board
	at
	the
headquarters
	otfice
	within
	10
	days
following 	the
	date 	of 	service
	of 	the
decision
	or
	letter
	of 	determination.
(Subsequently
	amended,
	effective
September 	20,
	1982.)
llAt
	all
	relevant 	times, 	regulation
	32135
	provided:
All
	documents
	shall
	be
	considered
"filed"
	by 	a
	party
	when
	actually
received
	by
	the 	proper
	recipient
	before
the 	close 	of 	business
	on
	the
	last
	date
set
	for
	filing.
	(Subsequently
	amended,
effective
	September 	20,
	1982.)
1 2At
	all
	relevant 	times, 	regulation
	32133
	provided:
A
late 	filing
	may 	be 	excused 	in 	the
discretion 	of 	the
	Board
	only
	unde.r
extraordinary 	circumstances.(Subsequently 	amended 	and 	renumbered 	as
regulation
	32136,
	effective
	September
20, 	1982.)
9

In
	summary,
	the
	ALJ
	correctly
	found
	that
	the
	allegations
	of
Kimmett's 	charge
	failed
	to
	state
	a
	prima
	facie 	case.
Therefore,
	the 	Refusal 	to 	Issue
	a
	Complaint
	and
	Dismissal
	With
Leave
	to
	Amend
	was
	proper.
	Kimmett's
	March
	14,
	1982
	document,
which
	was
	generously
	treated
	as
	an
	attempted 	appeal
	of 	the
Refusal 	to 	Issue
	a
	Complaint,
	clearly 	failed
	to
	meet
	the
content
	and
	service
	requirements
	of
	an
	appeal
	and 	was
	properly
disallowed.
	In
	view
	of
	the
	relevant
	procedural
	rules,
.
Kimmett's
	March 	27, 	1982
	appeal
	was,
	indeed, 	untimely
	filed.
Kimmett 	was
	given
	ample
	opportunity 	to
	perfect 	his
	charge,
	and
the
	administration 	of 	his
	case
	has
	been
	carried
	out 	free 	of
error.
ORDER
After
	a
	review
	of 	the
	entire
	record 	in
	this
	case, 	the
Public
	Employment
	Relations
	Board
	ORDERS
	that
	the
	Charging
Party's
	appeal
	from
	the
	decisions 	of 	the 	Executive
	Assistant
	to
the
	Board
	is
	hereby
	DENIED
	and
	the
	unfair 	practice
	charge
	in
Case 	No. 	LA-CE-1365
	is
	hereby
	DISMISSED
	without 	leave 	to
	amend.
Members
	Jaeger
	and
	Burt 	joined
	in 	this
	Decision.
10