Service Employees International Union, Local 535 (Mickle) (PERB 1168E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

FREDERICK L. MICKLE, )

Charging Party, ) Case No. LA-CO-703
)
Vv. ) PERB Decision No. 1168
)
SERVICE EMPLOYEES INTERNATIONAL ) September 11, 1996
UNION, LOCAL 535, )
)
Respondent. )
)
Appearance: England, Whitfield, Schroeder & Tredway, LLP by

Robert A. McSorley, Attorney, for Frederick L. Mickle.
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 Service Employees
International Union, Local 535 (SEIU) violated section 3543.6(a),
(b), (c) and (d) of the Educational Employment Relations Act

(EERA)* when it negotiated a collective bargaining agreement

“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:

It shall be unlawful for an employee
organization to:

(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

provision which 	gave 	promotional 	candidates 	a 	hiring preference
over 	other applicants 	for 	employment 	with 	the Ventura 	County
Community 	College 	District.2
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including Mickle's 	unfair practice 	charge, 	the warning and
dismissal 	letters, 	and Mickle's 	appeal 	therefrom. 	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.
ORDER
-
The unfair practice 	charge 	in Case No. 	LA-CO-703 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey 	and Member Garcia 	joined 	in this 	Decision.
employees because 	of 	their exercise of 	rights
guaranteed by 	this 	chapter.
(c) 	Refuse 	or fail 	to meet 	and negotiate 	in
good 	faith with a public 	school 	employer of
any of 	the 	employees 	of which it 	is 	the
exclusive 	representative.
(d) 	Refuse 	to participate 	in good faith in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
2Mickle 	also 	claims 	that 	SEIU violated EERA section 	3543.5.
Because 	that 	section applies 	only to public 	school 	employers, 	we
do not 	rule on that allegation. 	In addition, 	Mickle 	claims 	that
SEIU 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

STATE OF CALIFORNIA 	( 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angelas 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
300 Esplanade Drive, 	Sixth Floor
Oxnard, 	California 	93030-1251
Re: 	Unfair Practice Charge No. 	LA-CO-703,
--Frederick L. Mickle. Jr. v. Servic--e Employees
International Union. 	Local 535
DISMISSAL AND REFUSAL TO 	ISSUE A COMPLAINT
Dear Mr. McSorley:
Frederick L. Mickle, 	Jr. 	filed the above-referenced unfair
practice 	charge alleging 	the Service Employees 	International
Union, 	Local 535 	(SEIU) 	violated the Educational Employment
Relations Act 	(EERA or Act) 	§3543.6.
I indicated to you, 	in my attached Warning Letter1, 	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, 	1996, 	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 the attached Warning 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
1The first page of 	the attached Warning Letter is
incorrectly dated June 4, 	1996. 	However the second and third
pages indicate the correct date, 	June 12, 	1996.
-

LA-CO-703
June 25, 	1996
Page 2
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:
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.)
I

LA-CO-703
June 25, 1996
Page 3
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 CF 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 4, 	1996
Robert A. 	McSorley
England, 	Whitfield Schroeder 	& Tredway
300 Esplanade Drive, 	Sixth Floor
Oxnard, 	California 	93030-1251
Re: 	Unfair Practice Charge No. 	LA-CO-703, 	Frederick L. 	Mickle,
Jr. 	v. 	Service Employees 	International Union. 	Local 535
WARNING 	LETTER
Dear Mr. 	McSorley:
Frederick L. 	Mickle, 	Jr. 	filed the above-referenced unfair
practice 	charge 	alleging 	the 	Service 	Employees 	International
Union, 	Local 	535 	(SEIU) 	violated the Educational 	Employment
Relations Act 	(EERA or Act) 	§3543.6.
On October 19, 	1995, 	the Ventura Community College District
(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, 	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 	provisions 	of 	the 	CBA are
"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-CO-703
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 stated you did not wish to withdraw
the charge. 	The charge does not allege which particular
subsection of EERA § 3543.6 that SEIU has allegedly violated, 	and
it remains unclear from the charge how the exclusive
representative violated the EERA.
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 for or application of
such a provision is, 	on its face, 	illegal. 	Accordingly, 	it does
not appear SEIU violated EERA when negotiating such a provision
into the parties' 	collective bargaining agreement.
Although not 	specifically asserted, 	the Charging Party may be
alleging 	the 	exclusive representative denied Charging 	Party the
right 	to fair representation guaranteed by EERA section 3544.9
and thereby violated section 3543.6(b). 	In order to state a
prima facie violation of this section of EERA, 	Charging Party
must show that 	the Association's 	conduct was arbitrary,
discriminatory or in bad faith. 	In order to state a prima facie
case of arbitrary conduct violating the duty of 	fair
representation, 	a Charging Party:
" . . . 	must at a minimum include an assertion
of 	sufficient facts 	from which it becomes
apparent how or in what manner the exclusive
representative's action or inaction was
without a rational basis or devoid of honest
judgment. 	(Emphasis added.)" 	[Reed District
Teachers Association. 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 332, p. 9, citing Rocklin
Teachers 	Professional Association 	(Romero)
(1980) 	PERB Decision No. 124.]

Warning 	Letter
LA-CO-703
June 12, 	1996
Page 3
Here the charge failed to present any facts 	indicating SEIU acted
without a rational basis.
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
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