Los Angeles Unified School District (Wightman) (PERB 0412E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
VICTOR WIGHTMAN,
Charging 	Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-1770
PERB Decision No. 	412
October 4, 	1984
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Appearances; 	Victor Wightman and Jules 	Kimmett 	for 	Charging
Party; 	O'Melveny & Myers by Gordon E. 	Krischer 	and
Joel M. Grossman, 	for Respondent.
Before Hesse, 	Chairperson; 	Tovar and Morgenstern, Members.
DECISION
HESSE, 	Chairperson: 	This case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on Charging Party's
appeal of 	the 	regional 	attorney's dismissal of an unfair
practice 	charge 	against 	Los Angeles Unified 	School 	District
(LAUSD).
In his charge, 	Wightman alleges 	that 	four LAUSD employees
conspired 	to have him 	terminated 	from employment 	with 	the
LAUSD. 	He 	further 	alleges 	that 	the 	four employees 	succeeded 	in
having him removed on April 	19, 	1983 through 	"callous,
unethical, 	immoral, 	unjust, 	unprincipled, 	and most
significantly 	ILLEGAL means." 	(Emphasis 	in 	the 	original.)
Charging 	Party alleges 	that 	the 	above-related 	conspiracy was
violative of Educational Employment Relations Act 	(EERA),

subsections 3543.5(a), 	(b), 	(c), and (d)l and "Federal
Criminal Code 	sections 	241 	and 	242."
The 	regional 	attorney 	dismissed 	the 	charge 	of 	EERA
violations 	for 	failure to 	state a prima 	facie case. 	He 	noted,
furthermore, 	that 	PERB does 	not have 	jurisdiction 	to 	find a
violation of 	the 	Federal 	Criminal 	Code. 	We 	affirm his
dismissal 	for 	the 	reasons 	set 	forth below.
Charging 	Party has 	alleged only one 	thing: 	that 	four
employees 	conspired 	to have him terminated, 	succeeding 	in 	that
goal on April 	19, 	1983. 	No other facts are alleged. 	Standing
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Section 	3543.5 	reads 	in pertinent part 	as 	follows:
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.
(c) 	Refuse 	or 	fail 	to meet 	and negotiate 	in
good 	faith 	with an 	exclusive 	representative.
(d) 	Dominate or 	interfere 	with 	the
formation 	or 	administration of 	any employee
organization, 	or 	contribute 	financial or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join 	any organization 	in
preference 	to another.
All 	statutory references herein 	are 	to 	the 	Government 	Code
unless 	noted 	otherwise.
22

alone, 	this allegation does not 	contain 	"[a] clear and concise
statement 	of 	the 	facts 	and 	conduct 	alleged 	to constitute 	an
unfair 	practice." 	PERB 	Regulation 	32615.2
EERA subsection 3543.5(a) 	protects employees 	from, 	among
other 	things, 	discrimination or 	reprisal because 	of 	their
exercise of 	rights protected by the Act. 	In order 	to support 	a
charge 	asserting 	such 	a 	violation, 	Charging 	Party must 	allege
that he 	was 	engaged 	in a protected 	activity, 	that 	the 	employer
was 	aware 	of 	that 	activity, 	and 	that 	the 	employer 	threatened 	to
impose, 	or 	imposed, 	reprisals or discrimination against 	the
employee because 	of 	the 	employee's 	exercise 	of protected
rights. 	See Novato Unified 	School District 	(4/30/82) 	PERB
Decision No. 	210. 	Here, 	the allegation made 	falls 	short on all
three 	counts: 	we are 	not 	told what 	guaranteed 	rights 	were
exercised by the 	Charging 	Party; 	we 	are 	not 	told 	that 	the
employer 	knew of 	any protected 	activity by Wightman; 	finally,
we 	are 	not 	told 	that 	the 	employer 	acted 	in 	response 	to 	the
exercise 	of 	any protected 	right.
In his 	appeal 	to 	the Board, 	entitled 	"The Big 4
Conspiracy," 	Charging 	Party references his 	appeal 	to 	the 	Board
of 	another 	unfair practice 	charge 	dismissal.3 He 	then 	makes
the 	only 	statement 	relevant 	to 	this 	case:
2PERB 	Regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31001 et 	seq.
3Unfair 	Practice 	Case No. 	LA-CE-1765.
w
	3

There 	is 	not 	a 	shred of original 	analysis 	to
negate 	this 	charge; 	that 	four 	transportation
bureaucrats 	conspired 	to 	fire 	Victor Wightman
for his practice 	of protected 	rights 	under
the 	EERA. 	(Emphasis 	in 	the 	original.)
Despite 	this 	statement 	that 	Charging 	Party was 	engaged 	in
the practice 	of protected 	rights, 	we 	are given no 	facts 	to
support 	this 	allegation. 	This bare 	assertion 	in an appeal 	is
too 	little, 	too late and 	is 	not grounds 	to overturn the
dismissal. 	The 	allegation of 	a 	violation 	of 	section 	3543.5(a)
is dismissed.
The 	further 	allegations of violations of section 	3543.5(b),
(c), 	and 	(d) 	are also dismissed because Charging Party did not
allege any facts which, 	if proven, 	would constitute a violation
of 	EERA. 	The bare 	charge 	of 	a 	conspiracy, 	unsupported by any
factor 	other 	than 	that Wightman was 	fired, 	is not 	enough 	to
establish a prima 	facie 	case 	of 	a violation of 	section
3543.5(b), 	(c), or 	(d). 	The regional attorney's dismissal as
to 	these 	elements 	of 	the 	charge 	is 	also sustained.
ORDER
The 	appeal by 	Charging 	Party of 	the 	regional 	attorney's
dismissal of 	this charge 	is DENIED. 	Accordingly, 	charge number
LA-CE-1770 	is hereby dismissed without 	leave 	to amend.
Members 	Tovar 	and Morgenstern joined 	in 	this 	Decision.
44

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, California 95814
(916) 322-3088
J u n e 	2 9 , 	1983
Joel M. 	Grossman, Atty.
O'Melveny 	& 	Myers
1800 Century Park 	East, 	Suite 600
Los Angeles, 	CA 	90067
.
Jules 	Kimmett
1106 	D West Olive Avenue
Burbank, 	CA 	91506
RE: 	REFUSAL TO 	ISSUE 	COMPLAINT AND DISMISSAL OF 	UNFAIR
PRACTICE CHARGE; 	Victor 	Wightman v. 	Los Angeles USD,
Charge No. 	LA-CE-1770
Dear Parties:
Pursuant 	to Public 	Employment Relations 	Board 	(PERB) 	regulation
section 32730, 	a complaint will not be 	issued 	in 	the
above-referenced 	case 	and 	the pending 	charge 	is 	hereby
dismissed because 	it 	fails 	to 	allege 	facts 	sufficient 	to 	state
a 	prima 	facie 	violation of 	the 	Educational 	Employment Relations
Act 	(EERA). 1 The 	reasoning which 	underlies 	this 	decision
follows.
On April 	25, 	1983, 	Mr. 	Wightman filed an unfair 	practice charge
against 	the Los Angeles Unified 	School 	District 	(District)
which alleged violations of sections 3543.5(a), 	(b), 	(c), and
(d). 	In addition, 	he alleged violations of "Federal Criminal
Code - 	Sections 	241 	and 242."
More specifically, 	Mr. 	Wightman alleged 	that Max Barney,
Ralph Jacobs, 	Bill 	Hamm and 	William Srott 	have 	conspired 	to
have him terminated from employment.1
References to the EERA are to Government Code s
3540 	et 	seq. 	PERB 	regulations 	are codified at 	California
Administrative Code, 	Title 8.
e
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I ,.

June 29, 	1983
Page 	2
This 	agency 	does 	not 	have 	jurisdiction 	to 	find 	a violation 	of
the Federal Criminal Code. 	Instead, 	it 	is 	limited 	to
enforcement 	of 	certain provisions 	of 	the EERA. 	Specifically,
section 	3543 	grants public 	school 	employees 	the 	right 	to:
form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the purpose 	of
representation 	on 	all matters 	of
employer-employee 	relations.
For 	the 	reasons 	set forth below, 	charge number LA-CE-1770, 	as
presently written, 	does 	not 	state 	a prima 	facie case.
First, 	Mr. 	Wightman has 	alleged 	that 	the Respondent's 	conduct
has violated 	EERA sections 	3543.5(a). 	Violation of 	that
section requires allegations 	that: 	(1) 	an employee has
exercised 	rights 	under 	the EERA; 	(2) 	the 	employer 	has 	imposed
or 	threatened 	to 	impose 	reprisals, 	discriminated 	or 	threatened
to discriminate, 	or otherwise 	interfered with, 	restrained, 	or
coerced 	employees 	because of 	their 	exercise of 	rights
guaranteed 	by 	the 	EERA. 	Carlsbad 	Unified 	School 	District
(1/30/79) 	PERB Decision No. 	89; 	Novato Unified School District
(4/30/82) 	PERB Decision No. 	210.
Mr. 	Wightman has 	not presented any facts 	in 	this charge, 	nor
were 	any 	discovered 	during 	the 	investigation, 	which 	indicate
that 	the District 	was 	acting 	because of Mr. Wightman's exercise
of 	rights 	guaranteed 	by 	the EERA. 	Thus, 	the 	charge does 	not
state 	a prima facie violation of EERA 	section 	3543.5 (a).
Second, 	to 	state 	a prima 	facie 	violation 	of EERA 	section
3543.5(b) 	requires 	a showing 	that 	the 	employer 	has 	denied 	to an
employee 	organization 	its 	rights 	guaranteed 	to 	it under 	the
EERA. 	There 	are 	no 	facts 	which 	demonstrate 	that 	the District
has 	denied 	an 	employee 	organization 	any 	rights 	guaranteed 	by
the EERA. 	Thus, 	no prima 	facie violation of EERA section
3543.5(b) 	is presented 	by 	this charge.
Third, 	in 	determining 	whether 	a 	party has 	violated 	section
3543.5 (c) 	of EERA, 	the Public Employment Relations Board 	(PERB)
utilizes 	either 	the 	"per 	se" 	or 	the 	"totality of 	the 	conduct"
test, 	depending 	on 	the 	specific conduct 	involved 	and 	the 	effect
of 	such 	conduct 	on 	the 	negotiating 	process. 	Stockton USD
(11/3/80) 	PERB Decision No. 	143. 	There 	are 	no 	facts 	alleged or
discovered 	during 	the 	investigation 	which 	indicate 	that 	the

June 29, 	1983
Page 3
District 	has 	violated 	its 	duty 	to 	bargain 	in good 	faith 	under
either 	the 	"totality of 	conduct" 	or 	the 	"per 	se" 	test. 	Thus,
there 	is 	no prima facie violation of EERA section 3543.5(c).
Fourth, 	violation of 	section 	3543.5(d) 	requires 	a showing 	that
the 	employer 	has 	dominated 	or 	interfered 	with 	the 	formation 	or
administration of 	an employee organization, 	contributed
financial or 	other 	support 	to 	it, 	or 	encouraged 	employees 	to
join one 	organization 	in preference 	to 	another. 	There 	are 	no
allegations 	in 	the 	charge 	nor 	were 	facts 	discovered 	during 	the
investigation 	which 	demonstrate 	that 	the District 	has 	engaged
in such 	conduct. 	Thus, 	there 	is 	no prima facie violation of
EERA section 3543.5 (d).
Pursuant 	to 	Public Employment Relations 	Board 	regulation
section 	32635 	(California Administrative Code, 	title 	8,
part 	III), 	you may appeal the 	refusal to 	issue a complaint
(dismissal) 	to 	the Board 	itself.
Right 	to Appeal
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 	(section
32635 (a)). 	To be 	timely 	filed, 	the original 	and 	five 	(5)
copies 	of 	such 	appeal must 	be 	actually 	received 	by 	the 	Board
itself 	before 	the close of 	business 	(5:00 p.m.) 	on July 	20,
1983, 	or 	sent 	by 	telegraph 	or 	certified United States mail
postmarked 	not later 	than July 	20, 	1983 	(section 	32135) . 	The
Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 95814
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 	(5) 	copies 	of 	a 	statement 	in opposition within 	twenty
(20) 	calendar 	days 	following 	the 	date of 	service of 	the 	appeal
(section 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 	the 	document 	filed 	with 	the 	Board
itself 	(see 	section 	32140 	for 	the 	required 	contents 	and 	a

June 29, 	1983
Page 4
sample 	form). 	The 	document 	will 	be 	considered 	properly
"served" 	when personally delivered 	or 	deposited 	in 	the
first-class 	mail 	postage 	paid 	and 	properly 	addressed.
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 	(section 32132).
Final 	Date
If no appeal 	is 	filed 	within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final when 	the 	time 	limits 	have expired.
Very 	truly yours,
DENNIS M. 	SULLIVAN
General Counsel	,
•
By
Robert Kingsley
Attorney
•
cc: 	Victor 	Wightman