Temecula Valley Unified School District (PERB 0836E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM 	F. WILLIS,
Charging 	Party,
V.
TEMECULA VALLEY 	UNIFIED 	SCHOOL
DISTRICT
Respondent.
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) 	Case No. 	LA-CE-2837
PERB Decision No. 	836
September 7, 	1990
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Appearances: 	William F. 	Willis, 	on his own behalf; 	Atkinson,
Andelson, 	Loya, 	Ruud & Romo by Karen E. 	Gilyard, Attorney, 	for
Temecula 	Valley 	Unified 	School 	District.
Before Craib, 	Shank and Cunningham, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal 	of 	a proposed decision
(attached) 	of an administrative law judge 	(ALJ), 	dismissing a
charge 	filed by William F. 	Willis 	(Willis) 	against the Temecula
Valley Unified School District 	(District). 	In his 	charge, 	Willis
alleges that the District violated 	section 3543.5(a) 	and 	(b) 	of
the Educational 	Employment Relations Act 	(EERA)1 when Patricia
Novotney 	(Novotney), 	a district superintendent, 	threatened Mark
Schaeferle 	(Schaeferle), 	the chapter president of the California
School 	Employees 	Association with 	adverse 	employment 	consequences
if 	he 	assisted Willis 	at a 	grievance hearing. 	The ALJ 	found 	that
the 	evidence 	did 	not 	establish 	that 	the 	alleged 	conversation
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code.
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)
)
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between Schaeferle 	and Novotney ever took place2 and, 	based upon
this 	finding, 	dismissed the 	complaint 	in its 	entirety.
PERB 	Regulation 	323003 requires 	the party 	filing 	exceptions
to 	a proposed decision to 	comply with 	specific 	guidelines, 	which
mandate that the 	statement of exceptions 	include: 	(1) 	a
statement of the specific 	issues of procedure, 	fact, 	law or
rationale to which each exception is 	taken; 	(2) 	identification of
the page or part of 	the decision to which 	each exception 	is
taken; 	(3) 	designation of the portions 	of the record relied upon;
and 	(4) 	the grounds 	for each exception. 	(Regulation 32300, 	subd.
(a)(1) 	(4).) 	Additionally, 	the matters raised in the exceptions
may only come 	from the record. 	(Regulation 	32300, 	subd 	(b).)
Compliance with the 	regulations 	is 	required 	in order to
afford 	the 	respondent 	and 	the 	Board 	an 	adequate 	opportunity 	to
address 	the 	issues 	raised. 	(Ibid., 	see also San Diego Community
College District 	(1983) 	PERB Decision No. 	368.) 	A failure to
comply with Regulation 	32300 	can result 	in the 	dismissal 	of 	an
appeal. 	(See California 	State 	Employees Association 	(O'Connell)
(1989) 	PERB Decision No. 	726-H at p. 	3; 	Los Angeles Unified
School District (Mindel) (1989) 	PERB Decision No. 	785.)
The 	District urges 	the 	Board to dismiss 	this 	appeal 	for
failure to comply with PERB's 	regulations. 	In the 	case 	currently
2In 	fact, 	Schaeferle denied making the 	statements 	attributed
to 	him and Novotney denied having 	any 	conversations 	at 	all 	with
Schaeferle regarding Willis' 	grievance or Schaeferle's
representation of Willis 	at the March 	7 	grievance hearing.
3PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 	et seq.
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before us, 	Willis 	has 	submitted exceptions 	consisting 	solely of
various 	factual 	statements 	that 	can be 	construed 	as 	either
disputing or 	supplementing 	some 	of 	the ALJ's 	factual 	findings,
with no 	reference whatsoever to the record. 	Significantly, 	the
only way that Willis 	could have prevailed 	in this 	case was 	if 	he
had produced 	credible 	evidence 	that 	Novotney 	had 	threatened
Schaeferle with 	adverse 	employment 	consequences 	if 	Schaeferle
represented Willis 	in the March 	7, 	1989 	board grievance 	hearing.
Two exceptions 	go to this 	issue, 	both of which are discussed
below.
(1) 	Willis 	states 	that: 	"Schaeferle told me 	on March 	8,
1990 	[sic] 	his 	reason for not representing me 	at the meeting
March 	7, 	1990 	[sic]."
This 	statement, 	in and of 	itself, 	is 	insufficient to apprise
the 	District 	and 	the 	Board 	of 	exactly what Willis 	contends 	was
said by 	Schaeferle and, 	more 	significantly, 	what 	evidence 	in the
record 	supports 	his 	contentions 	as 	to what was 	actually 	said 	by
Schaeferle.4
(2) 	He further claims, 	in his exceptions, 	that: 	"All
statements 	by 	Schaeferle 	and Novotney 	are 	false."
Willis does 	not, 	however, 	point to any evidence 	in the
record 	that would 	rebut 	the 	testimony 	of 	Schaeferle 	and 	Novotney
4We 	note that 	even 	if Willis 	could point to 	such 	evidence,
the 	conversation between Willis 	and 	Schaeferle 	is 	hearsay 	and
insufficient, 	in and of 	itself, 	to prove the contents 	of 	the
conversation between 	Schaeferle 	and Novotney.
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as 	recounted by the ALJ. 	Accordingly, 	Willis 	offers 	nothing to
support this 	exception.
Willis' 	failure to 	comply with PERB's 	regulations 	renders
his appeal 	fatally defective. 	We, 	therefore, 	affirm the ALJ's
dismissal 	of 	the 	complaint.
ORDER
The 	charge and complaint 	in Case No. 	LA-CE-2837 	are hereby
DISMISSED.
Members 	Craib 	and 	Cunningham 	joined 	in this 	Decision.
4
4

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM F. 	WILLIS,
Charging Party,
v.
TEMECULA VALLEY UNIFIED 	SCHOOL
DISTRICT,
Respondent.
)
)
) 	Unfair Practice
Case No. 	LA-CE-2837
PROPOSED 	DECISION
(6/2 9/90)
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)
)
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Appearances: 	William F. 	Willis, 	on his own behalf; 	Atkinson,
Andelson, 	Loya, 	Ruud & Romo by Karen E. 	Gilyard, 	Attorney, 	for
Temecula 	Valley 	Unified 	School 	District.
Before W. 	Jean Thomas, Administrative Law Judge.
I. 	PROCEDURAL HISTORY
On March 2, 	1989, 	William F. 	Willis 	(hereafter Willis or
Charging 	Party) 	filed an unfair practice 	charge with 	the 	Public
Employment Relations 	Board 	(hereafter PERB or Board) 	against 	the
Temecula 	Valley 	Unified 	School 	District 	(hereafter 	District 	or
Respondent). 	The charge alleged violations of the Educational
Employment Relations Act 	(hereafter EERA or Act).1
The charge was amended on May 31, 	1989, 	to delete certain
factual 	allegations 	contained 	in the original charge. 	In his
first 	amended charge, 	the Charging Party alleged that 	the
president of 	the 	local 	classified union, 	California School
Employees Association, 	Chapter 	538 	(hereafter CSEA or
Association) 	told the Charging Party that he did not provide
1The EERA is 	codified at Government Code 	section 	3 540 	et
seq. 	All 	section references, 	unless otherwise noted, 	are to the
Government Code.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
•
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representation 	for him at 	a 	grievance 	hearing before 	the 	District
governing 	board because 	the president 	had 	been 	threatened 	by 	the
District 	superintendent and 	"feared 	for his 	job" 	if he 	gave
Willis 	any assistance.
The General 	Counsel 	of 	PERB 	issued a 	complaint on June 	21,
1989, 	which alleged employer interference with Willis' 	right of
representation and, 	concurrently, 	the representational rights 	of
his 	exclusive 	representative 	in violation of 	sections 	3543.5(a)
and (b).2
Respondent 	filed an answer to the 	complaint 	on July 	12,
1989, 	denying all 	allegations 	of unfair practice and asserting,
as 	an affirmative defense, 	that the 	complaint 	failed to 	state a
prima 	facie unfair practice 	charge.
On July 	17, 	1989, 	an informal 	conference was held to explore
voluntary 	settlement possibilities. 	However, 	the dispute was 	not
resolved.
2Section 3543.5 	states, 	in pertinent part:
UNLAWFUL PRACTICES: 	EMPLOYER
It 	shall be unlawful 	for a public 	school
employer to:
(a) 	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.
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by this 	chapter.
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A 	formal 	hearing was 	conducted 	by 	the 	undersigned 	on
September 	13, 	1989. 	Post-hearing briefs were filed on November
17, 	1989, 	and the case was 	thereafter submitted for proposed
decision.3
II. 	FINDINGS OF FACT
William F. 	Willis 	is an employee and the District 	is 	a
public 	school 	employer within the meaning of 	the EERA. 	Willis 	is
a 	member 	of 	the 	classified bargaining unit 	exclusively
represented by CSEA. 	He has 	been employed by the 	District 	for
several 	years 	and currently works 	as 	a 	custodian.
Mark Schaeferle has 	been employed by the District as 	its
purchasing agent 	for approximately three years. 	Schaeferle 	is 	a
classified employee 	and has 	been the president 	of 	the Association
for at 	least two years.
CSEA and the District 	are parties 	to 	a 	collective bargaining
agreement 	(CBA) 	that contains, 	among other provisions, 	a five-
level 	grievance procedure.4
Patricia Novotney has 	been employed by 	the 	District 	as 	its
superintendent 	since July 	1, 	1985. 	She has known Willis 	since
she began her 	employment with the 	District. 	Novotney has 	known
Schaeferle 	for approximately three years. 	CSEA has 	been the
3Due 	to 	an apparent misunderstanding by the 	Charging 	Party
about 	the procedure 	for 	serving briefs 	on opposing parties,
Charging 	Party's 	brief was 	not 	served on the Respondent until
March 27, 	1990, 	pursuant to an order issued by this
administrative 	law 	judge.
4Official 	notice 	is 	taken of 	the CBA between CSEA and the
District 	contained 	in the 	PERB Los Angeles 	Regional Office 	files
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exclusive 	representative 	of 	the 	classified bargaining unit 	since
Novotney 	commenced 	her employment with 	the 	District. 	Since her
tenure began, 	Novotney has 	never known the president of CSEA to
represent 	an employee 	in a 	grievance hearing before 	the 	District
board.
In December 	1988, 	Willis 	filed a grievance, 	dated December
6, 	1988, 	alleging that another custodial employee, 	Janet Evans,
had received 	favored treatment 	that violated Article 	7 	(Hours) 	of
the 	collective 	bargaining 	agreement.
Novotney 	first 	saw this 	grievance 	in January 	1989. 	She
referred 	it 	to 	District Assistant 	Superintendent 	of 	Educational
Support Services 	Jay Hoffman for processing. 	Novotney, 	however,
did not personally 	speak with Willis, 	Schaeferle or any other
classified 	employee 	about 	the 	grievance.
The 	grievance 	eventually proceeded to 	Level 	III 	of 	the
grievance procedure, 	a hearing before the District governing
board. 	The board 	set the matter for hearing on March 	7, 	1989.
Prior to March 	7, 	Willis 	and Schaeferle had two meetings
about Willis' 	grievance. 	The first meeting was held about one
month before 	the hearing date. 	The 	second meeting 	occurred 	on
February 	13, 	1989. 	George Holihan, 	the CSEA representative for
Chapter 	538, 	was 	also present at the February 	13 meeting.
During the February 	13 	meeting, 	Schaeferle declined to
represent Willis 	at the March 	7 	board grievance hearing.
Schaeferle had 	never represented 	a 	bargaining unit 	member 	at 	a
grievance hearing before 	the 	District board. 	Schaeferle 	felt
4

that Holihan 	should represent Willis. 	Schaeferle 	then asked
Holihan to 	represent Willis 	and Holihan agreed to do 	so. 	When
the 	February 	13 	meeting 	ended, 	Schaeferle understood that 	Holihan
would represent Willis 	at the March 	7 	board hearing.
At the March 	7, 	1989 District board grievance hearing, 	the
board granted Willis' 	grievance, 	but denied the remedy that he
sought. 	Willis 	had no union representation 	since neither
Schaeferle nor Holihan attended the March 	7 	hearing.
During the early afternoon of March 	7, 	1989, 	Willis
telephoned 	Schaeferle's 	office 	and 	left 	a 	message 	for 	Schaeferle
to call him. 	It 	is unclear whether Willis' 	message explained the
reason for his 	call. 	When Schaeferle did receive the message, 	it
was 	late 	in the day, 	so he returned Willis' 	call early the
morning of March 8, 	1989. 	Schaeferle, 	however, 	did not reach
Willis.
Later 	in the day of March 	8, 	Willis 	arrived at Schaeferle's
office, 	very upset that 	Schaeferle did not attend the March 	7
grievance hearing to 	represent him. 	Willis 	angrily 	accused
Schaeferle of 	not representing him 	(Willis) 	or CSEA and abruptly
left 	Schaeferle's 	office.
On or about March 29', 	1989, 	Willis again spoke with
Schaeferle 	about 	Schaeferle's 	nonrepresentation of 	him at 	the
March 	7 	board hearing. 	Schaeferle allegedly told Willis 	that he
did 	not 	come 	to 	the 	grievance hearing because he 	"feared 	for his
job" 	if he gave any assistance to Willis. 	Schaeferle also
allegedly 	told Willis 	that 	Superintendent 	Novotney 	had 	intimated/
5

threatened Schaeferle with denial 	of 	a promotion 	if 	he
represented Willis 	at 	the 	grievance 	hearing.5
Both 	Schaeferle 	and 	Novotney 	testified 	about 	these 	alleged
statements. 	Schaeferle denies 	ever making the 	statements
attributed to him. 	Novotney denies 	ever having 	any discussion
with Schaeferle about Willis' 	grievance or Schaeferle's
representation of Willis 	at the March 	7 	grievance hearing. 	She
further denies 	having 	any 	knowledge 	of 	Schaeferle's 	alleged
representation of Willis 	concerning the 	December 	1988 	grievance.
She 	also 	denies 	having any 	conversations with Schaeferle 	at 	any
time during the 	1988-89 	school year about promotional vacancies.
Schaeferle was 	not 	seeking 	a promotion between February 	13 	and
March 7, 	1989.
Since 	no 	evidence was 	presented 	to 	rebut the 	testimony of
either Schaeferle or Novotney, 	it 	is 	found that the alleged
statements 	attributed 	to 	Schaeferle 	and Novotney were 	not 	made.
Willis 	also 	sent a 	letter to the CSEA 	state office 	on March
29, 	1989, 	complaining about the lack of representation by
Schaeferle and Holihan at the March 7, 	1989, 	board hearing. 	The
letter asked 	for assistance 	from CSEA with Willis' 	appeal 	of 	his
grievance to 	the next 	level 	of 	the grievance procedure. 	Willis
5Willis 	did not 	testify 	about 	this 	conversation with
Schaeferle 	or present 	any 	other affirmative 	evidence 	to prove 	the
alleged 	interfering 	conduct.
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sent a copy of his 	March 	29 	letter to 	Schaeferle, 	but 	Schaeferle
did not respond to 	it.6
III. ISSUES
Whether 	the 	District 	interfered with 	the 	Charging 	Party's
right 	of 	representation and the 	representational 	rights 	of 	his
exclusive 	representative 	by 	threatening 	adverse 	employment
effects, 	including the denial of a promotion to the chapter
president, 	if he assisted the Charging Party at a grievance
hearing on March 	7, 	1989, 	thereby violating 	sections 	3543.5(a)
and 	(b)?
IV. 	CONCLUSIONS OF LAW
Section 	3543.5(a) 	makes 	it unlawful 	for an employer to
"interfere with, 	restrain, 	or coerce employees because of their
exercise 	of rights 	guaranteed" 	by the Act. 	PERB has 	held that
the Act protects 	the right of 	employees 	to be represented by
their 	employee organization in grievance proceedings, 	pursuant to
section 3543's guarantee of the right to 	". 	. 	. 	participate in
the activities 	of 	employee 	organizations 	of 	their own choosing
for the purpose of representation on all matters 	of 	employer-
6In unfair practice charge No. 	LA-CO-487, 	William F. 	Willis
v. 	CSEA. 	Chapter tt538. filed June 22, 	1989, Willis alleged, 	in
part, 	that the Association, 	through Schaeferle, 	arbitrarily and
in bad faith 	failed to represent him at the March 	7, 	1989
grievance hearing. 	This 	conduct was 	alleged to be 	in violation
of 	the Association's 	statutory duty 	of 	fair 	representation under
EERA.
This 	dispute was 	resolved 	through 	an 	informal 	settlement
reached by the parties, 	and the case was 	closed on April 	24,
1990.
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employee 	relations." 	Rio 	Hondo Community College 	District 	(1982)
PERB Decision No. 	272.
Section 3543.5(b) 	makes 	it unlawful 	for an employer to deny
to 	employee organizations 	rights 	guaranteed to 	them by the Act.
These rights, 	as 	embodied in section 3543.1(a), 	have been held to
include 	the right 	to represent 	a unit member 	in a 	grievance
matter with the 	employer. 	Rio 	Hondo Community College 	District.
supra.
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A prima 	facie 	case of 	"interference" 	is 	established when a
charging party demonstrates 	that 	the 	employer has 	engaged 	in
conduct which tends 	to or does 	result 	in 	some harm to 	employee
rights. 	Where the harm to employee rights 	is 	slight and the
employer offers 	justification based on operational 	necessity, 	the
competing 	interests 	are balanced. 	If the harm is 	inherently
destructive of 	employee rights, 	the employer's 	conduct will be
excused only 	on proof 	it was 	occasioned by 	circumstances 	beyond
the 	employer's 	control and no 	alternative 	course of 	action was
available. 	Proof 	of unlawful 	intent 	is 	not required 	in
establishing the 	necessary 	elements 	of 	interference. 	Anderson
Union High School District 	(1986) 	PERB Decision No. 	584, 	citing
Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89.
See also Novato Unified School District 	(1982) 	PERB Decision No.
210.
In this 	case 	the 	conduct 	constituting 	interference with 	the
Charging Party's 	rights and also those of 	the Association, 	was 	an
alleged 	conversation between 	Superintendent 	Novotney 	and
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Association President 	Schaeferle 	sometime between February 	13 	and
March 7, 	1989. 	During this 	conversation, 	Novotney supposedly
told 	Schaeferle 	that 	he would be denied 	a promotion 	if 	he
assisted Willis 	at the March 	7, 	1989 	District board grievance
hearing. 	Because of this alleged threat, 	it 	is 	charged that
Schaeferle did 	not 	attend 	the March 	7 	hearing because he 	"feared
for his 	job" 	and the 	loss 	of 	a promotional opportunity.
A. 	The Alleged Section 3543.5 fa) 	Violation
As 	a 	threshold matter here, 	the Charging Party's 	initial
burden 	is 	to 	establish that 	the 	alleged 	conversation between
Novotney 	and 	Schaeferle 	actually 	occurred during 	the 	time 	in
question. 	A review of 	the record 	shows 	that the Charging Party's
proffered 	evidence 	failed to prove this 	fact.
The 	only 	evidence presented 	to prove 	this 	allegation was 	the
testimony 	of 	Schaeferle 	and Novotney. 	The unrebutted testimony
of 	both witnesses 	shows 	that 	they never had a discussion at 	any
time between February 	13 	and March 7, 	1989, 	about the Willis
grievance or Schaeferle's 	representation of him. 	Further, 	no
evidence was 	presented to 	establish 	that 	Novotney 	even knew that
Willis 	had 	sought 	Schaeferle's 	assistance with 	the 	grievance 	or
that 	Schaeferle was 	supposed to 	represent him at the March 	7
hearing. 	The 	evidence does 	show that Holihan agreed to 	represent
Willis, 	but failed to appear at the hearing on March 7, 	1989, 	as
promised. 	No 	explanation was 	offered 	for Holihan's
nonappearance.
9g

Schaeferle also denied telling Willis 	on March 29, 	1989,
that Novotney had threatened him with the 	loss 	of 	a promotion, 	or
intimated possible adverse employment consequences, 	if he
represented Willis 	at the March 	7 	grievance hearing. 	Since the
Charging 	Party did 	not testify 	about 	this 	conversation,
Schaeferle's testimony is uncontroverted. 	Further, 	it is noted
that 	no 	evidence was 	presented 	to 	establish 	that 	Schaeferle 	had
applied 	for, 	or was 	being considered 	for, 	a promotion at the time
of 	his 	alleged 	conversation with Novotney.
Based on this 	lack of proof, 	it 	is 	concluded that the
District did not 	engage 	in the 	complained-of 	conduct, 	and thereby
interfere with Willis' 	right of union representation at the March
7, 	1989, 	District board grievance hearing. 	Any harm that may
have been caused to 	the Charging Party because 	of 	this 	lack of
representation is not attributable, 	in this case, 	to the
District.
Having determined that 	a prima 	facie 	case 	of 	interference
was 	not established, 	the 	section 3543.5(a) 	allegation must be
dismissed.
B. 	The Alleged Section 	3543.5(b) 	Violation
Charging 	Party 	also 	failed 	to present 	evidence 	that 	the
Association's 	representational 	rights 	were 	adversely 	affected 	by
any 	conduct 	engaged in by the District. 	As 	discussed earlier,
the 	record 	failed 	to 	establish that 	the 	District 	threatened,
coerced, 	or otherwise 	interfered with Schaeferle, 	or any other
10

Association representative, 	to dissuade him or them from
representing 	the Charging Party at 	the March 	7 	grievance hearing,
Since the 	section 3543.5(b) 	allegation is 	also 	factually
unsupported, 	it must be dismissed.
V. 	SUMMARY
Based on a thorough examination of 	the 	entire record, 	it 	is
determined 	that 	there 	is 	insufficient 	evidence 	upon which to
conclude 	that 	the 	Respondent 	engaged 	in conduct 	that 	amounted to
a violation of 	either 	section 3543.5(a) 	or 	(b) 	of the Act.
Therefore, 	the charge and 	its 	accompanying complaint must be
dismissed.
VI. 	PROPOSED ORDER
Upon the 	foregoing findings 	of 	fact, 	conclusions 	of 	law and
the 	entire record of this 	case, 	it 	is hereby ORDERED that the
entire 	complaint 	and the 	underlying unfair practice 	charge 	are
DISMISSED.
Pursuant to California Administrative Code, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final unless 	a party 	files 	a 	statement of 	exceptions with the
Board 	itself 	at the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	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. 	See California Administrative
Code, 	title 	8, 	section 32300. 	A document is considered 	"filed"
when actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.)
11

on the 	last day set 	for filing 	". 	. 	. o r when sent by telegraph
or certified or Express 	United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	See California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	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 California Administrative Code, 	title 8, 	sections
32300, 	32305 and 32140.
Dated: 	June 29, 	1990
W. JEAN THOMAS
Administrative Law Judge
12.