Los Angeles Community College District (Mrvichin) (PERB 1060E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GEORGE V. 	MRVICHIN,
Charging 	Party,
v.
LOS ANGELES 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-3415
PERB Decision No. 	1060
October 5, 	1994
Appearance: 	George V. 	Mrvichin, 	on his own behalf.
Before Caffrey, 	Carlyle and Garcia, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the 	Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by George V. 	Mrvichin
(Mrvichin) 	of a Board agent's dismissal 	of his unfair practice
charge. 	In the 	charge, 	Mrvichin alleged that 	the Los Angeles
Community College District 	(District) 	violated 	section 	3543.5(a)
of 	the Educational 	Employment Relations Act 	(EERA or Act)1 by
discriminating and 	taking 	reprisal 	actions 	against 	him because 	of
JEERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 provides, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
(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.
)
)
)
)
)
)
)
)
)
)
_______________ )

his 	exercise 	of 	rights protected by the Act. 	The Board agent
dismissed 	the 	charge 	and 	refused 	to 	issue 	a 	complaint 	on 	the
grounds 	that Mrvichin had 	failed 	to 	state a prima 	facie 	case.
The Board has 	reviewed applicable 	statutes 	and 	case 	law, 	the
warning and dismissal 	letters, 	the 	original 	and amended 	charges,
Mrvichin's appeal,2 and the 	entire record in this 	case. 	The
Board 	remands 	the 	case 	to 	the 	Board agent 	for a determination as
to whether the Board has 	jurisdiction over Mrvichin and, 	if
necessary, 	whether 	the allegations 	establish a prima 	facie 	case.
JURISDICTION
The 	Board has 	jurisdiction only when 	the parties 	involved
have 	standing either as an employee, 	an employee organization, 	or
an 	employer.3 Although 	the District 	is 	an employer within 	the
meaning of 	EERA section 3540.1(k), 	at 	issue 	is whether Mrvichin
was 	an employee4 within 	the meaning 	of 	EERA section 	3540.1(j)
2No 	response 	to 	the appeal was 	filed by the District.
3See EERA section 3541.5, 	which provides, 	in pertinent part:..
The 	initial 	determination as 	to whether 	the
charges 	of 	unfair practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate 	the purposes 	of 	this 	chapter,
shall 	be a matter within the 	exclusive
jurisdiction of 	the board.
(a) 	Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file an
unfair practice charge. 	. 	. 	.
4EERA section 3540.1(j) 	provides:
"Public school 	employee" 	or 	"employee" 	means
any person 	employed by any public 	school
employer 	except 	persons 	elected by popular
vote, 	persons appointed by the Governor of
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this state, 	management employees, 	and
confidential 	employees.
when 	the 	alleged unfair practice 	occurred. 	The 	additional
information 	offered by Mrvichin 	on appeal 	may 	establish 	that 	he
was 	an 	employee 	and qualifies 	for access 	to 	Board 	jurisdiction.
BACKGROUND
The main 	issue 	on appeal 	involves 	the 	Board agent's
treatment 	of Mrvichin's 	"standing" 	to 	file a charge. 	As 	the
warning and dismissal 	letters 	state, 	Mrvichin was 	dismissed 	from
employment with the District 	on October 20, 	1993.5 Before and
after 	that 	date, 	he 	filed various 	grievances under 	the 	relevant
CBAs.6 In a letter dated January 19, 	1994, 	the District
summarized the 	status 	of 	three 	of 	those grievances.7 The date 	of
the letter is 	critical because, 	in his unfair practice 	charge
dated February 8, 	1994, 	Mrvichin alleges 	that he 	exercised rights
5Mrvichin 	appealed 	his 	dismissa--------l 	from employmen- 	--t 	separately
through the 	Personnel Commission, 	pursuant 	to the parties'
collective bargaining agreement 	(CBA).
Mrvichin had access 	to grievance procedures under 	two CBAs
because, 	during his 	employment with the District, 	he 	served both
as 	a 	classified employee 	(athletic 	trainer, 	represented by the
AFT College 	Staff Guild 	(Clerical/Technical 	Unit)) 	and as 	a
certified employee 	(hourly 	rate 	instructor, 	represented by 	the
AFT College Guild 	(Faculty Unit)).
7Briefly, 	that 	letter summarized the 	status 	of 	the various
grievances as 	follows: 	(1) 	Regarding the grievance 	filed
10/16/93, 	the District denied portions 	of 	it and stated that
other portions 	of 	it were still pending 	in other forums; 	it also
challenged Mrvichin's 	standing 	to 	file 	that 	grievance under 	the
relevant 	CBA; 	(2) 	Regarding the grievance 	filed November 17,
1993, 	the District 	denied 	committing a violation and challenged
Mrvichin's 	standing under the 	relevant 	CBA; 	and 	(3) 	Regarding the
grievance dated December 14, 	1993, 	the District denied committing
a violation and 	raised the 	same 	standing 	challenge 	as 	the 	other
two items.
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under EERA by filing grievances; 	that 	the District, 	as 	evidenced
by its 	January 19 	letter, 	had knowledge 	of 	the exercise 	of 	those
rights; 	and that 	the District 	imposed or threatened to 	impose
reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained, 	or 	coerced him in various
ways because of 	the exercise of 	those rights, 	in violation of
EERA section 3543.5(a).
WARNING AND 	DISMISSAL 	LETTERS
Based on 	the 	charge, 	the Board agent 	treated January 	19,
1994 	(the date 	of 	the letter) 	as 	the date of 	the alleged unfair
practice, 	and tested for standing as 	of 	that date. 	Focusing on
January 19, 	1994, 	the Board agent notified Mrvichin in a warning
letter that 	he planned to dismiss 	the 	charge, 	citing California
-------	Union of Safety Employee	-- - 	s 	(Trevisanut) 	(1993) 	PERB Decision	--------
No. 	1029-S 	(Trevisanut). 	which held that:
. 	. 	. 	in order for a person to have standing
to 	file an unfair practice 	charge, 	that
person must 	have been an employee at 	the 	time
the unfair practice 	occurred.
(Emphasis 	added.)
Applying 	the Trevisanut 	rule, 	the Board agent 	concluded 	that
since Mrvichin was dismissed from employment on October 20, 	1993,
he 	could not 	have been an employee 	on 	the 	date 	the 	letter was
written 	(January 19, 	1994). 	At one place in the warning letter,
the 	Board agent 	concluded 	that Mrvichin did not 	"have 	standing 	to
file 	a 	charge 	concerning 	the 	alleged unfair practice." 	Later 	in
the same 	letter, 	the Board agent 	stated that, 	"For these reasons
44

the charge, 	as presently written, 	does not 	state a prima facie
case. "8
In response 	to 	the warning 	letter, 	Mrvichin 	filed an amended
charge, 	attempting 	to 	cure 	the 	standing deficiency 	identified 	in
the warning letter. 	After considering the amended charge, 	the
Board agent 	was 	not 	persuaded 	that Mrvichin had 	stated a prima
facie case:
Obviously, 	you believe 	that you 	should not
have 	been 	dismissed 	from your 	employment 	on
October 20, 	1993. 	The fact remains, 	however,
that you were dismissed on 	that 	date, 	and you
lost 	standing 	to 	file 	a 	charge 	concerning 	any
unfair practice 	occurring after 	that 	date.
(Dismissal letter, 	p. 	1; 	emphasis added.)
The 	Board agent 	then dismissed 	the 	charge.
MRVICHIN'S 	APPEAL
On appeal, 	Mrvichin claims 	standing 	through an Education
Code section which, 	if applicable, 	arguably supports his position
that 	he 	continued to be an 	"employee."
In summary, 	the Education Code argument 	is as 	follows:
Although Mrvichin acknowledges 	that 	he was 	dismissed by 	the
District 	on October 20, 	1993, 	such dismissals are governed by
Education Code 	section 	87737.9 Mrvichin 	interprets 	that 	section
8The 	Board agent 	did not 	address 	the merits 	of Mrvichin's
charge, 	since he planned to dismiss 	it 	on a different ground.
9That 	section reads, 	in pertinent part:
The 	notice 	of 	suspension and 	intention 	to
dismiss[] 	shall be 	in writing and be 	served
upon 	the 	employee 	. . . 	If 	the 	employee
demands a hearing within 30 days, 	the matter
shall 	proceed to arbitration or hearing, 	as
the 	case may be, 	as 	specified in Article 4.
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If 	the 	employee 	does 	not 	demand a hearing
within the 	30-day period, 	his 	or her
dismissal 	shall 	be 	effective upon 	the
expiration of 	3 0 days after service of 	the
notice. 	[Emphasis added.]
as 	preventing his 	dismissal 	from becoming 	"effective" 	until 	after
the 	hearing process 	he 	invoked pursuant 	to 	that 	section 	is
concluded. 	Mrvichin argues 	on appeal 	that 	if 	the dismissed
employee makes 	a 	timely demand 	for a hearing pursuant 	to 	this
section, 	the dismissal 	is not 	considered 	"effective" 	until 	the
outcome of 	the hearing process. 	Thus, 	until 	the result 	of 	that
process 	is 	known, 	the person should still 	be 	considered an
"employee" 	for purposes 	of 	standing to 	file a charge with PERB.
DISCUSSION
The 	Board agent 	declined 	to 	issue a 	complaint 	in 	this 	case
based on 	the 	rationale 	in 	the Trevisanut 	opinion. 	We 	find that
the Board agent's application of Trevisanut was proper; 	however,
based 	on additional 	information brought 	to 	the Board's 	attention
on appeal, 	it 	is possible 	that Mrvichin still 	had standing as an
employee 	at 	the 	time 	of 	the alleged unfair practice.
The 	Board 	ordinarily 	could 	not 	consider 	the 	Education 	Code
argument 	raised by Mrvichin 	for the 	first 	time 	on appeal, 	based
on PERB Regulation 32635,10 which reads, 	in pertinent part:
(a) 	Within 20 	days of 	the date of service of
a dismissal, 	the 	charging party may appeal
the dismissal 	to 	the Board 	itself.
10PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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(b) 	Unless good cause is shown, 	a charging
party may not 	present 	on appeal 	new 	charge
allegations 	or new 	supporting 	evidence.
(Emphasis 	added.)
Interpreting this 	regulation, 	PERB has been reluctant 	to
find 	that 	good 	cause 	existed 	to allow a party to 	raise 	new
allegations 	or new evidence 	for the 	first 	time 	on appeal.11
However, 	in cases where PERB jurisdiction is 	in question, 	the
issue 	can be 	considered at 	any stage, 	and 	in the absence 	of 	an
abuse 	of process, 	the Board is 	duty bound to make 	inquiry.12
The primary 	issue on appeal 	is whether Mrvichin qualified as
an employee with access 	to PERB jurisdiction; 	that 	is, 	does
Mrvichin have 	standing to 	file 	this 	charge. 	In his 	appeal,
Mrvichin referred to Education Code 	section 8773 7, 	which
seemingly preserved 	his 	standing 	as 	an 	employee 	and 	PERB's
jurisdiction over this 	case. 	Since we do not 	find this 	theory to
11See, e.g., 	South San 	Francisco Unified School 	District
(1990) 	PERB Decision No. 	830; 	Association of California State
Attorneys 	(Winston) 	(1992) 	PERB Decision No. 	931-S; 	California
School 	Employees Association 	(Watts) 	(1993) 	PERB Decision No.
1008; 	California State Employees Association 	(Hackett) 	(1993)
PERB Decision No. 	1012-S; 	California School Employees Association
(LaFountain) 	(1992) 	PERB Decision No. 	925 	(LaFountain). 	In these
cases 	the 	Board did not 	find good 	cause 	existed because 	no
explanation was 	offered.
12See 	Lake Elsinore School District 	(1987) 	PERB Decision
No. 	646, 	citing cases which establish that 	this Board has 	only
such jurisdiction as 	has been 	conferred upon it by statute; 	that
the Board acts 	in excess 	of 	its 	jurisdiction if 	it violates 	the
statutes 	conferring 	and/or 	limiting 	its 	jurisdiction and powers;
that 	where 	the 	Board 	is 	without 	jurisdiction with 	respect 	to 	a
matter before 	it, 	it must dismiss 	the matter on its 	own motion,
regardless 	of 	whether 	the 	jurisdictional 	issue 	has 	been 	raised by
the parties; 	and that where the Board is without 	jurisdiction, 	it
cannot acquire jurisdiction by the parties' 	consent, 	agreement,
stipulation or acquiescence, 	nor by waiver or estoppel.
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be 	specious 	or without merit, 	the District 	should be given an
opportunity 	to 	respond to 	the 	theory and 	the Board agent 	should
determine 	the 	issue.
As a 	secondary matter, 	it 	is useful 	to distinguish between
the 	Board's 	obligation 	to 	investigate whether a 	charging party
has 	established a prima 	facie 	case pursuant 	to 	PERB 	Regulation
3264013 and the 	Board's duty under EERA to determine 	PERB
jurisdiction.14 The 	issue 	of 	"standing" 	(jurisdiction over 	the
parties) 	is 	separate and distinguishable 	from the 	issue of
whether the 	elements 	of a prima 	facie 	case exist. 	Neither the
EERA jurisdictional 	statute 	nor 	PERB 	regulations 	requires 	a
charging party 	to 	establish 	"prima 	facie 	standing;" 	EERA requires
13PERB Regulation 32640 provides, 	in pertinent part:
(a) 	The Board agent 	shall 	issue a complaint
if 	the 	charge or the evidence 	is 	sufficient
to establish a prima facie 	case. 	The
complaint 	shall 	contain a 	statement 	of 	the
specific 	facts 	upon which Board 	jurisdiction
is based, 	including the 	identity of 	the
respondent, 	and shall 	state with
particularity the 	conduct 	which 	is alleged 	to
constitute an unfair practice. 	The 	complaint
shall 	include, 	when known, 	when and where the
conduct 	alleged 	to 	constitute 	an unfair
practice occurred or 	is 	occurring, 	and the
name(s) 	of the person(s) 	who allegedly
committed the acts 	in question. 	The Board
may disregard any 	error or defect 	in 	the
complaint 	that 	does 	not 	substantially affect
the rights of the parties. 	[Emphasis added.]
Thus, 	the 	regulation addresses 	conduct and persons who allegedly
committed 	the 	acts 	underlying 	the unfair practice 	charge.
14See 	former Chair Hesse's 	concurrence 	in Trevisanut. 	citing
San Leandro Unified School District 	(1984) 	PERB Decision No. 	450
and Hacienda 	La 	Puente Unified School 	District 	(1988) 	PERB
Decision No. 	685, 	tying standing to jurisdictional 	statutes.
8

us 	to dismiss 	a 	charge 	for 	lack of 	Board 	jurisdiction 	if 	a party-
has 	no 	standing 	to 	file 	a 	charge 	or 	fails 	to make a prima 	facie
-
case 	for the 	charge 	filed. 	"Standing" 	for the purpose of
establishing 	PERB 	jurisdiction 	should be 	inquired 	into 	by 	the
Board agent. 	If 	found, 	the Board agent would then inquire 	into
the existence 	of a prima 	facie 	case.
ORDER
The 	Board hereby REMANDS 	the unfair practice 	charge 	in 	Case
No. 	LA-CE-3415 	to the General 	Counsel 	for further 	investigation.
The 	Board directs 	the General 	Counsel 	to determine whether
Mrvichin has 	standing; 	that 	is, 	whether he was an employee on the
date of 	the alleged unfair practice and, 	if 	so, 	whether he has
established a prima 	facie 	case.
Member Carlyle 	joined 	in 	this 	Decision.
Member Caffrey's 	dissent begins 	on page 	10.
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CAFFREY, 	Member, 	dissenting: 	George V. 	Mrvichin 	(Mrvichin)
has 	not 	alleged 	facts 	sufficient 	to 	conclude 	that 	he has 	standing
as 	an employee under section 3541.5(a) 	of 	the 	Educational
Employment Relations Act 	(EERA) 	to file 	the 	instant unfair
practice 	charge. 	Therefore, 	I would affirm the regional
attorney's dismissal 	of 	that 	charge.
In determining 	the 	sufficiency of 	an unfair practice 	charge,
the 	Public 	Employment 	Relations 	Board 	(PERB) 	considers 	factual
allegations 	to be 	true. 	(San Juan Unified School District 	(1977)
EERB No. 	12.)1 On appeal, 	Mrvichin alleges 	that he was dismissed
as 	a 	classified 	employee by 	the 	Los Angeles 	Community College
District 	(District) 	on October 20, 	1993. 	He also alleges 	that he
demanded 	a 	hearing 	in 	accordance 	with 	Education 	Code
section 8773 7, 	and the hearing was 	scheduled on or about
June 28, 	1994. 	Mrvichin argues 	that he retained standing as an
employee under EERA section 	3541.5(a) 	to 	file 	the 	instant unfair
practice charge on February 8, 	1994, 	because:
Under the expressed, 	and implied terms 	of
California Education Code 	87737, 	the
dismissal 	of 	Charging 	Party as 	a 	Classified
Employee 	shall 	not be 	effective until 	after
this 	hearing process 	has been
completed. . . .
Education Code 	section 	87737 	appears within Title 	3,
Division 7, 	Part 51, 	Chapter 3, 	Article 6 of the Education Code.
Article 	6 	is 	entitled 	"Instructor Dismissal 	Procedures."
Education Code 	87737 	describes 	a hearing process 	available 	to
1Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment 	Relations 	Board.
10

certain 	community 	college 	instructors 	upon dismissal. 	Mrvichin's
argument 	that 	the 	terms 	of 	Education Code 	87737 	apply 	to him as 	a
dismissed 	classified employee 	is 	incorrect. 	Therefore,
Mrvichin's 	assertion 	that 	he 	retained 	standing 	to 	file 	the
instant 	charge pursuant 	to 	Education Code 	87737 	is without
merit.2
Additionally, 	the majority errs 	in holding 	that 	"The Board
ordinarily 	could not 	consider 	the 	Education 	Code 	argument 	raised
by Mrvichin for the 	first 	time 	on appeal, 	based on PERB
Regulation 	32635." 	That 	regulation prohibits 	a 	charging party
from presenting 	new 	charge 	allegations 	or new 	supporting 	evidence
for the 	first 	time 	on appeal 	of a dismissal. 	Mrvichin's
reference 	to 	Education Code 	87737 	represents 	a new legal 	argument
on the question of his 	standing 	to 	file 	the 	instant 	charge. 	It
does 	not 	constitute a new allegation or new evidence. 	Parties
are 	free 	to present 	to the 	Board new legal 	arguments 	not
previously 	offered 	to 	Board agents.
The majority's 	finding 	that 	"the District 	should be 	given an
opportunity to respond to the 	[Education Code 	87737] 	theory" 	is
also misguided. 	Mrvichin raised this 	"theory" 	in his appeal 	of a
dismissal 	of his charge. 	Under PERB Regulation 32 635, 	the
District was 	served with Mrvichin's 	appeal 	and given 20 	days 	to
file a response. 	It 	did not 	do so. 	For the majority to
2I 	find 	it unnecessary to 	reach the 	question of 	whether
Education Code 87737, 	if applicable, 	affects the standing of a
dismissed 	employee 	to 	file 	an unfair practice 	charge under 	EERA
section 3541.5(a).
11

expressly 	find 	that 	the 	District 	should be 	given another
opportunity 	"to 	respond to 	the 	theory" 	raises 	questions 	of 	due
process 	and possible 	prejudice 	to Mrvichin.
Mrvichin has 	not met 	his burden of 	establishing 	that 	he has
standing 	as 	an employee 	to 	file 	the unfair practice 	charge 	in
Case No. 	LA-CE-3415 and, 	therefore, 	it should be dismissed.
12