Ventura County Community College District (Mickle) (PERB 1167E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

FREDERICK L. MICKLE, )

‘Charging Party, ) Case No. LA-CE-3679
Vv. )’ PERB Decision No. 1167
VENTURA COUNTY COMMUNITY COLLEGE ) September 11, 1996
DISTRICT, )
Respondent.

Appearances: England, Whitfield, Schroeder & Tredway, LLP by
Robert A. McSorley, Attorney, for Frederick L. Mickle; Epstein,
Becker & Green by Jana L. De Meire, Attorney, for Ventura County
Community College District.
Before Caffrey, Chairman; Garcia and Dyer, Members.
DECISION

DYER, Member: This case comes before the Public Employment
Relations Board (Board) on appeal from a Board agent's dismissal
(attached) of Frederick L. Mickle's (Mickle) unfair practice
charge. The charge alleged that the Ventura County Community
College District (District) violated section 3543.5(a), (b), (c),

(d) and (e) of the Educational Employment Relations Act (EERA)*

“EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. EERA section 3543.5 provides:

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. For purposes of
this subdivision, "employee" includes an

when 	it 	complied with a 	collective 	bargaining 	agreement 	provision
which gave 	promotional 	candidates 	a 	hiring preference 	over 	other
applicants 	for employment.2
The Board has 	reviewed the 	entire 	record in this 	case,
including Mickle's 	unfair practice 	charge, 	the warning and
dismissal 	letters, 	Mickle's appeal, 	and the District's response
thereto. 	The 	Board 	finds 	the Board agent's warning and dismissal
letters 	to be 	free 	from prejudicial 	error and hereby adopts 	them
as 	the decision of 	the Board itself.
applicant 	for 	employment 	or 	reemployment.
(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.
(e) 	Refuse 	to participate 	in good faith in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
2Mickle 	also 	claims 	that 	the District violated EERA section
3543.6. 	Because 	that 	section applies 	only to employee
organizations, 	we do not 	rule on that allegation. 	In addition,
Mickle 	claims 	that 	the District violated Government 	Code 	section
12921; 	Education Code sections 87100, 	88091, 	88115; 	42 United
States Code section 2000(d) 	and 	(e). 	Absent an independent
violation of 	the 	EERA, 	the Board has 	no jurisdiction over those
statutes 	in this 	case. 	For that 	reason, 	this decision does not
address 	those 	statutes.
22

ORDER
The unfair practice charge in Case No. 	LA-CE-3679 is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Caffrey and Member Garcia joined in this Decision.
33

STATE OF CALIFORNIA 	' 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd.. Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
June 25, 	1996
Robert A. McSorley
England, 	Whitfield Schroeder & Tredway
3 00 Esplanade Drive, Sixth Floor
Oxnard, 	California 	93030-1251
Re: 	Unfair Practice Charge No. 	LA-CE-3679,
Frederick L. Mickle, Jr. 	v. 	Ventura County Community
College District
DISMISSAL AND REFUSAL TO 	ISSUE A COMPLAINT
Dear Mr. McSorley:
Frederick L. 	Mickle, 	Jr. 	filed the above-referenced unfair
practice 	charge alleging 	the Ventura County Community College
District 	(District) 	violated the Educational 	Employment Relations
Act 	(EERA or Act) 	§3543.5 by refusing to hire him as a permanent
employee.
I indicated to you, 	in my attached letter dated June 12, 	1996,
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 June
21, 199 6, the charge would be dismissed.
I have not 	received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons 	contained in my June 12, 	1996 letter.
Right 	to Appeal
Pursuant to Public Employment Relations Board regulations, 	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. 	(Cal. Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 	shall apply.
The Board's address is:

LA-CE-3679
June 25, 199 6
Page 2
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
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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.
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. 	(Cal. Code of Regs., 	tit. 8, 	sec. 32132.)
Final Date
If no appeal 	is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By Tammy 	L. 	Samsel
Regional 	Attorney
Attachment

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3S30 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
June 12, 	1996
Robert A. 	McSorley
England, 	Whitfield Schroeder & Tredway
300 	Esplanade Drive, 	Sixth Floor
Oxnard, 	California 	93030-1251
Re: 	Unfair Practice Charge No. 	LA-CE-3679,
Frederick L. 	Mickle, 	Jr. 	v. 	Ventura County Community
College 	District
WARNING 	LETTER
Dear Mr. 	McSorley:
Frederick L. 	Mickle, 	Jr. 	filed the above-referenced unfair
practice 	charge 	alleging 	the Ventura 	County 	Community 	College
District 	(District) 	violated 	the 	Educational 	Employment 	Relations
Act 	(EERA or Act) 	§3543.5 	by refusing 	to hire him as 	a permanent
employee.
On October 	19, 	1995, 	the District appointed Mickle 	to a 	temporary
position as 	the 	Student Activities 	Specialist 	II. 	On January 11,
1996, 	the District 	informed Mickle he would not be 	considered 	for
the permanent position as 	the Student Activities 	Specialist 	II.
The 	District 	contended 	its 	collective 	bargaining 	agreement 	(CBA)
with the 	Service Employees 	International Union, 	Local 	535, 	(SEIU)
required 	the 	District 	to 	offer 	the position 	to 	all 	permanent
personnel 	first, 	before 	considering 	outside 	applicants. 	Section
14.7 of the parties' 	CBA provides:
The 	District 	Personnel 	Office 	shall 	maintain
eligibility 	lists 	for 	certification 	for
vacant 	positions 	based upon the 	results 	of
open and promotional 	examinations. 	The
promotional 	candidates passing 	the
examination shall 	be placed at 	the 	top 	of 	the
eligibility 	list 	and 	all 	open 	candidates
shall 	follow 	in rank order.
Charging 	Party alleges 	the 	CBA is 	"inapplicable 	to 	his 	employment
application 	. 	. 	. 	." 	Charging Party 	"requests that the Board
order 	the 	employer and 	the Union to. consider and determine 	in
good 	faith his 	application 	for permanent 	employment 	as 	Student
Activities Specialist II . 	. 	. 	."

LA-CE-3679
June 12, 1996
Page 2
PERB regulation 32615 (a) (5) 	states a charge shall contain a
"clear and concise statement of 	the 	facts 	and conduct alleged to
constitute an unfair practice." 	A charging party should allege
the "who, what, when, where, and how" of an unfair practice.
(United Teachers-Los Angeles 	(Ragsdale) 	(1992) 	PERB Decision No.
944.) 	Mere legal conclusions are insufficient. 	(See State of
California 	(Department of Food and Agriculture 	(1994) 	PERB
Decision No. 	1071-S.) 	On May 29, 	1996, 	I contacted you and
indicated the charge did not appear to state a prima facie
violation of 	the EERA. 	You indicated that you did not wish to
withdraw the charge. 	The charge does not allege which particular
subsection of EERA § 	3543.5 	the District has allegedly violated,
and it remains unclear from the charge how the District violated
the EERA.1
The legal theory of the charge seems to indicate Section 14.7 of
the parties' 	contract is illegal as applied to Mickle.
Section 14.7 	is 	the result of the collective bargaining process
between the District and SEIU, 	and is applicable to promotional
opportunities 	in the unit, 	including the Student Activities
Specialist II position for which Mickle applied. 	The negotiation
of 	seniority protection in a promotional 	system has 	been
considered a mandatory subject 	of bargaining under the EERA.
(See San Mateo School District 	(1984) 	PERB Decision No. 	375.)
Thus 	it does not appear the negotiation or application of such a
provision is, 	on its face, 	illegal. 	Accordingly, 	it does not
appear the District violated EERA when processing Mickle's
application pursuant to Section 14.7.
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 which 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 be served on the 	respondent and the original
1There was no 	indication from the 	charge that 	the District
retaliated against Mickle. 	In fact, 	the charge indicated the
District 	refused to hire Mickle solely because the CBA gave 	first
preference to. promotional candidates. 	However even if the charge
were read to include a discrimination theory, 	the charge failed
to meet the appropriate standard as set forth in Novato Unified
School District 	(1982) 	PERB Decision No. 	210.

LA-CE-3679
June 12, 1996
Page 3
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before June 21. 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-7508.
Sincerely,
Tammy L. 	Samsel
Regional Attorney