California School Employees Association and its Chapter 245 (Waymire) (PERB 1493E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MICHAEL WAYMIRE,
Charging Party, Case No. SF-CO-603-E

v. PERB Decision No. 1493

CALIFORNIA SCHOOL EMPLOYEES July 31, 2002

ASSOCIATION & ITS CHAPTER 245,

Respondent.

Appearances: Michael Waymire on his own behalf; California School Employees Association
by Sonja Johnson, Staff Attorney, for California School Employees Association & its Chapter
245.
Before Baker, Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Michael Waymire (Waymire) of a Board agent’s dismissal
(attached) of his unfair practice charge. The charge alleged that the California School
Employees Association and its Chapter 245 (CSEA) violated the Educational Employment
Relations Act (EERA)' by, among other things, conspiring with the Federal Bureau of

Investigation to harass him. Waymire alleged that this conduct constituted a violation of

EERA section 3543.6(a) and (b).”

'EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

*EERA section 3543.6 provides, in pertinent part:

It shall be unlawful for an employee organization to:

After reviewing the entire record in this matter, including Waymire's unfair practice
charge, the warning and dismissal letters, Waymire's appeal, and CSEA's opposition to
Waymire's appeal, the Board dismisses the unfair practice charge in accordance with the
following discussion.
DISCUSSION
The Board agent dismissed the case on the basis that Waymire was not a "public school
employee" under EERA section 3540.l(i).3 She supported her conclusion citing the factors set
forth in Goleta Union School District (1984) PERB Decision No. 391. She reasoned that as of
January 22, 1998, Waymire no longer worked for the Monterey Peninsula Community College
District (District) and therefore, the Board did not have jurisdiction over violations identified
in the charge that were alleged to have occurred after that date. All violations alleged in the
charge took place in 2001. In addition, Waymire had not provided any evidence that, at the
time of the alleged violations, he was performing services for or receiving compensation from
the District. Since Waymire lacks standing to invoke the protection ofEERA, the Board lacks
jurisdiction over this charge.
(a) Cause or attempt to cause a public school employer to violate
Section 3543.5.
(b) 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.
3EERA section 3 540.1 (j) provides:
(i) "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 this state,
management employees, and confidential employees.
2

Although dismissing the charge on this jurisdictional basis, the Board agent nonetheless
addressed the alleged violations. She found that, assuming he was an employee under EERA,
Waymire had still failed to state a prima facie case of either discrimination or interference.
The Board agrees with the Board agent's conclusion that Waymire is not a "public
school employee" under EERA. In the Board's decision in Goleta Union School District
(1984) PERB Decision No. 391, pp. 15-17, the Board provides guidance in determining who is
a "public school employee" under Section 3540. l(j). The Board looks at the statutory
language and at indicia of employment. (Id.) Under the statute, the charging party must be
"employed" by the public school employer. Such factors denoting "employment" include: (1)
the individual provides services to the District; (2) the individual receives compensation from
the District; (3) the individual is under the supervision of the site principal; (4) the individual is
performing services at the District's school site; and (5) the individual uses the District's
supplies and facilities. (Id.) In this case, Waymire had not provided services to the District or
on the District's premises, received compensation from the District, or been under the
supervision of District management since January 22, 1998. Therefore, Waymire is not a
"public school employee" under EERA.
Only an employee, employee organization, or employer has standing to file an unfair
practice charge under EERA.4 Since Waymire clearly lacks such standing, the Board, as a
4EERA section 3541.5 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. Procedures for
investigating, hearing, and deciding these cases shall be devised
and promulgated by the board and shall include all of the
following:
3

result, does not have jurisdiction to adjudicate his charge. (See, e.g., the discussion regarding
Board jurisdiction in North Orange County Regional Occupational Program (1990) PERB
Decision No. 857.)
Accordingly, there is no need to evaluate the alleged EERA violations in Waymire's
charge, and the Board, thereby, does not adopt that portion of the dismissal in its decision.
ORDER
The unfair practice charge in Case No. SF-CO-603-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Neima joined in this Decision.
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following.
(Emphasis added.)
4

STATE OF CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 I 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-7242
Fax: (916) 327-6377
(
April 10, 2002
Michael Waymire
2095 Highland Street
Seaside, CA 93955-3309
Re: 	Michael Waymire v. California School Employees Association & its Chapter 245
Unfair Practice Charge No. SF-CO-603-E
DISMISSAL LETTER
Dear Waymire:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 1, 2002. You allege that the Monterey Peninsula
Community College District (District) discriminated against you and violated the Educational
Employment Relations Act (EERA)1
I indicated to you in my attached letter dated March 28, 2002, 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 were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to April 8, 2002, the charge would be dismissed.
On April 8, 2002, I received a letter from you indicating that you will not file an amended
charge. Therefore, I am dismissing the charge based on the facts and reasons contained in my
letter dated March 28, 2002.
Right to Appeal
Pursuant to PERB Regulations,2 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 or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
1 BERA 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 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-603-E
April 10, 2002
Page 2
(
delivery, as shown on the carrier's receipt, not later than 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
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.

SF-CO-603-E
April 10, 2002
Page 3
Sincerely,
ROBERT THOMPSON
General Counsel
(
By illital~Rehema Rhodes
Board Agent
Attachment
cc: 	Daniel A. Osher
Sonja Johnson
RR
(

.

STATE OF CALIFORNIA 	_G_RA_Y_D_A_V_I_S_,_G_ov_e_r_no_r
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 958 [4-4174
Telephone: (916) 327-7242
Fax: (9!6) 327-6377
( 	_____________.......( 	___
March 28, 2002
Michael Waymire
2095 Highland Street
Seaside, CA 93955-3309
Re: 	Michael Waymire v. California School Employees Association & its Chapter 245
Unfair Practice Charge No. SF-CO-603-E
WARNING LETTER
Dear Mr. Waymire:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 1, 2002. You allege that the California School
Employees Association & its Chapter 245 (CSEA) discriminated against you and violated the
Educational Employment Relations Act (EERA) 1 by using and influencing others to interfere
with the exercise of your protected employee rights under EERA.
FACTS
Your employment as a Utility Specialist for the Monterey Peninsula Community College
District (District) ended on January 22, 1998.
The facts that gave rise to this charge are as follows:
On March 9, 2001, two of the unfair practice charges you filed against the District and (CSEA)
(SF-CE-2177-E and SF-CO-580-E) were investigated and dismissed by the Board agent. 	You
timely filed an appeal.
On March 18, 2001, while typing a proof of service form to Gwen Miller of CSEA, your
typewriter printed out "KILL" three times before it corrected itself on the fourth attempt. 	You
suspected the CSEA and the Federal Bureau oflnvestigation (FBI) conspired to have an FBI
agent enter your home and program your typewriter to type "KILL."
On March 19, 2001, you were admitted to the Community Hospital of the Monterey Peninsula
(CHOMP). 	On March 23, 2001, Vicki Hulsey, the District's Warehouse Supervisor, came to
your hospital room, opened the door, and stared at you for few minutes.
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-CO-603-E
March 28, 2002
Page 2
(
On March 25, 2001, you attended a group meeting in the ward
of
CHOMP. During the
meeting, you were introduced to a very talkative teenage female. 	On March 26, 2001, Ms.
Hulsey furnished your home phone number to the teenage female. 	The teenage female made a
harassing call to your residence the same day.
On June 14, 2001, while flying to Denver, Colorado to visit your children and grandchildren,
CSEA and the FBI arranged for an FBI agent to also be on the plane with you. The FBI passed
several messages to you by putting the notes in large print in the middle
of
each page
of
his
magazine and holding the magazine up for you to read it. The messages were as follows:
1.
DON'T FIGHT THE FEDS!
2.	
NATION'S
#1
BEST SELLER NOT AVAILABLE
3.	
TRAVEL-TRAPPED IN AMERICA
4. TRAVEL ASSISTANCE FOR THE DISABLED
When the plane landed in Denver, CSEA and the FBI arranged for the flight attendant to
announce over the intercom, "Everyone be careful out there, as we all know, SHIT
HAPPENS."
In June
of
2001, CSEA and the FBI arranged for FBI agent Larry Mefford to rapidly accelerate
pass you in a black and blue sports utility vehicle as you were coming out
of
the Del Monte
Shopping Center in Monterey, CA. There was also another occasion where you believed
CSEA and the FBI arranged to have the FBI agent teaching self-defense at the Monterey
Peninsula College Police Academy (MPCP A) strike up a conversation with you at the Orchard
Supply Hardware store in Sand City, CA.
On June 25, 2001, the PERB Board upheld the dismissals
of
the unfair practice charges you
filed (SF-CE-2177-E and SF-CO-580-E) and issued Decision Nos. 1448 and 1449.
In November, 2001, you requested a copy
of
your medical records from CHOMP. On January
7,
2002, you received your medical records and discovered omitted and false information in
your medical records. You suspected that Dr. Michael Lebowitz, your treating physician, and
CSEA conspired to omit and add false information to your medical records.
On March 13, 2002, we discussed your present charge against CSEA. On March 18, 2002, per
our conversation on March 13, 2002, you provided additional information to support your
unfair practice charge.
On March 18, 2002, Robert Thompson, General Counsel, responded to your March 13, 2002,
letter requesting clarification as to whether PERB would prosecute your current charges. 	Mr.
Thompson informed you that as an administrative agency, PERB does not prosecute charges,
but rather, investigates charges that are filed in order to determine whether a violation
of
the
EERA has occurred and if there is a violation and the charge was timely filed, issues a
complaint.
On March 19, 2002, you received another harassing phone call by a female who said, ''DIE!"
and hung up the phone.

SF-CO-603-E
March 28, 2002
Page 3
On March 21, 2002, you forwarded to me additional evidence to support your contention that
Dr. Michael Lebowitz falsified your medical records at CHOMP. 	In your letter to me, you
acknowledged the fact that the issue of whether or not Mr. Lebowitz falsified your medical
records is not within PERB's jurisdiction to investigate but rather, is a matter that belongs to
the medical review board.
DISCUSSION
Definition of Employee Under the EERA
Under EERA subsection 3540. l(j), a public school employee is defined as:
" ... any person employed by any public school employer
except persons elected by popular vote, persons appointed
by the Governor of this state, management employees, and
confidential employees."
Factors to be considered in determining whether an individual is an employee under the BERA
are: (1) receipt of compensation from the District, (2) the individual provides a service to the
District, (3) individual's services are performed at the District's school site, and (4) the
individual is under the supervision of the site principal. (Goleta Union School District, (1988)
PERB Decision No. 391. p. 14-17.)
Due to the fact that your position with the District was terminated on January 22, 1998, it
appears PERB lacks jurisdiction over your charges of discrimination and interference which
occurred after that date. Moreover, you have not provided any facts to support a finding that
you were either being compensated by or providing services to the District at the time the
events described in the charge occurred. Thus, because you do not have standing to invoke the
protection of BERA and you were not an employee at the time of the events, PERB does not
have jurisdiction over this charge.
Discrimination Charge
Further, even assuming you were an employee of the District at the time the events occurred,
you fail to present a prima facie case. In order to demonstrate a violation of EERA section
3543.6(b), the charging party must show that: 	(1) the employee exercised rights under BERA;
(2) the employee organization had knowledge of the exercise of those rights; and (3) the
employee organization imposed or threatened to impose reprisals, discriminated or threatened
to discriminate, or otherwise interfered with, restrained or coerced the employees 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.)
Evidence of adverse action is required to support a claim of discrimination. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) In determining whether such
evidence is established, the Board uses an objective test and will not rely on the subjective
reactions of the employee. (Ibid.) In a later decision, the Board explained that:

SF-CO-603-E
March 28, 2002
Page 4
The test which must be satisfied is not whether the employee
found the [employee organization's] action to be adverse, but
whether a reasonable person under the same circumstances would
consider the action have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
In this case, you state CSEA discriminated against you by conspiring with the FBI in order to
violate your protected rights under the EERA. However, you have not articulated any facts that
would impute CSEA in a conspiracy to impact your employment. There are no facts to support
your contention that CSEA arranged to have the FBI break into your home to re-program your
typewriter, send messages to you on the airplane to Colorado, and drive by you at a mall.
Therefore, you have failed to show CSEA discriminated against you based on the exercise
of
your protected rights under the EERA.
Interference Charge
Section 3543.6(b)
of
the EERA states that it shall be unlawful for an employee
organization to:
(b) 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.
To demonstrate a prima facie cases
of
interference, the charging party must show that the
Respondent's conduct tends to or does result in some harm to employee rights guaranteed by
the EERA. (Carlsbad Unified School District (1979) PERB Decision No. 89 at p. 10.)
Whether the employee organization's speech is protected or constitutes a proscribed threat or
promise
if
determined by applying an objective rather than a subjective standard. (California
State University (1989) PERB Decision No. 777-H, P.D., p. 8.) Thus, "the charging party
must show that the employee organization's communications would tend to coerce or interfere
with a reasonable employee in the exercise
of
protected rights." The fact, "That [sic]
employees may interpret statements, which are otherwise protected, as coercive does
not
necessarily render those statements unlawful." (Regents of the University
of
California (1983)
PERB Decision No. 366-H, fn. 9, pp. 15-16; BMC Manufacturing Corporation (1995) 113
NLRB 823 [36 LRRM 1397].)
In this case, you state that Ms. Hulsey visited your hospital room and stared at you for a few
minutes on March 23, 2002. An employee organization's speech will only cause cognizable
harm to employee rights if the speech contains threats or reprisal or promise of benefit. 	Here,
Ms. Hulsey did not say anything to you, nor did she make any threatening gesture or use any
force while standing in the doorway of your hospital room. 	Moreover, Ms. Rusley is not a
representative of CSEA and you have not articulated any facts to show CSEA was involved in
arranging for Ms. Husley's presence at CHOMP. Therefore, you have not shown any conduct
by CSEA tended to result in any harm to your protected employee rights.

SF-CO-603-E
March 28, 2002
Page 5
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 on 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 April 8, 2002 I shall dismiss your charge.
	If
you have any questions, please call me at the above telephone number.
Sincerely,
M<:_
Rehema Rhodes
Board Agent
RR