Los Angeles Community College District (Santoianni) (PERB 1283E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DONALD SANTOIANNI,
Charging 	Party,
v.
LOS 	ANGELES 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-3910
PERB Decision No. 	1283
September 15, 	1998
Appearance; 	Donald Santoianni, 	on his 	own behalf.
Before Johnson, 	Amador and Jackson, 	Members.
DECISION
JACKSON, 	Member: 	This case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by Donald Santoianni
(Santoianni) 	of a Board agent's dismissal 	(attached) 	of his
unfair practice 	charge. 	As amended, 	Santoianni's 	charge alleges
that 	the 	Los Angeles 	Community College District violated 	the
Educational 	Employment Relations Act 	section 3543.5(a)1 by laying
1EERA is 	codified at Government 	Code 	section 	3540 	et 	seq.
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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
)
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him off 	from his position as 	a Lab Technician 	in April, 	1995 	and
failing 	to rehire him in the 	Fall 	of 	1997.2
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters 	and Santoianni's 	appeal. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	from prejudicial 	error and adopts
them as 	the decision of 	the Board itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-3910 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Amador 	joined 	in 	this 	Decision.
2We 	affirm the board agent's 	dismissal 	upon 	the 	ground 	that
Santoianni 	failed to 	establish a prima 	facie 	case 	of 	how either
his 	layoff 	in 	1995 	or the District's 	refusal 	to rehire him in the
Fall 	of 	1997 	constituted discrimination.
22

STATE OF CALIFORNIA 	! 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
PERS
May 4, 	1998
Donald 	Santoianni
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
Donald Santoianni v. 	Los Angeles Community College District
Unfair Practice Charge No. 	LA-CE-3910
Dear Mr. Santoianni:
The above-referenced unfair practice charge, 	filed March 5, 	1998,
alleges 	the Los Angeles 	Community College District 	(District)
discriminated against you by failing to rehire you 	in the Fall 	of
1997, 	after your layoff. 	This conduct is alleged to violate
Government Code section 3543.5(a) 	of the Educational Employment
Relations Act 	(EERA or Act).
I indicated to you, 	in my attached letter dated April 9, 	1998,
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
16, 	1998, 	the charge would be dismissed. 	I later extended this
deadline until April 27, 	1998.
On April 29, 	1998, 	I received a first amended charge. 	The
amended charge reiterates the original allegations and adds 	the
following 	information and assertions.
Prior to April 	1995, 	Charging Party was serving as the AFT
Assistant Executive Secretary for Grievances. 	As Assistant
Executive Secretary, 	Charging Party responsibilities included
filing grievance and representing the grievants, 	attending
monthly campus grievance meetings, 	and serving on the Staff
Guild's Negotiating Team. 	In order to complete these duties, 	the
District agreed to allow Charging Party two days of 	release time
every week. 	Thus, 	Charging Party received his regular pay as a
Lab Technician for working at Western Los Angeles Community
College 	(WLAC) 	Monday through Wednesday, 	plus a monthly stipend
from the Staff Guild for his work at 	the union office on
Thursdays and Fridays.

Dismissal 	Letter
LA-CE-3910
Page 2
On November 9, 	1994, 	Charging Party met with Dr. Wong, 	WLAC's
President, 	to discuss problems with the new Dean of Admissions.
During this meeting, 	Charging Party reminded Dr. 	Wong of a
previous agreement between the parties during which Dr. 	Wong
agreed not 	to discipline another WLAC employee over
unsubstantiated charges. 	Apparently Charging Party argued during
the November 9, 	1994, meeting, 	that the new Dean of Admissions
was using the allegations against 	the employees. 	During this
meeting, 	Dr. Wong told Charging Party, 	"Do not preach to me."
Charging Party contends 	this 	comment demonstrates 	the District's
unlawful motivation.
In April 1995, 	the Math-Science Department at WLAC determined
that there was a lack of work in the physics lab, 	and thus a
position should be 	eliminated. 	The District 	informed Charging
Party that he was being laid off, 	and negotiated with Charging
Party and AFT over the effects of 	this layoff. 	The parties
agreed that 	Charging Party would be assigned two days a week to
the physics lab at Los Angeles Trade Technical College, 	and would
work three days a week in the union office. 	Charging Party
disagrees that there was a lack of work, 	and believes the
position should not have been eliminated.
In the Fall 1997, 	the District hired a part-time, 	temporary
laboratory technician at WLAC, 	that was announced a 25% physics
and 25% biology position. 	Charging Party states he is not
interested in this position, 	but instead presents these facts to
demonstrate there is enough work at WLAC, 	and that his layoff was
for discriminatory reasons.
Based on the 	facts provided in the original and amended charges,
the charge fails to demonstrate a prima facie case, 	and must be
dismissed.
Charging Party contends that his April 	1995 	layoff was 	for
discriminatory reasons. 	Government 	Code section 3541.5(a)((1)
prohibits 	the Board from issuing a complaint with respect 	of any
charge based upon an alleged unfair practice occurring more 	than
six months prior to the filing of the charge. 	In the instant
charge, 	Charging Party's layoff occurred more than two years
prior to the 	filing of this charge. 	Although Charging Party
asserts 	"all 	the pieces did not 	fit together until" 	Fall of 1997,
the belated discovery of the legal 	significance of the District
underlying conduct does not excuse an untimely filing. 	(UCLA
Labor Relations Division 	(1989) 	PERB Decision No. 	735-H.) 	As
such, 	the charge must be dismissed as untimely.
Charging Party contends 	in the original 	charge that he should
have been offered the part-time, 	temporary position at WLAC. 	In
my letter dated April 9, 	1998, 	I stated that the charge failed to

demonstrate Charging Party was 	not 	offered this position for
discriminatory reasons. 	Although Charging Party has demonstrated
protected activity, 	the charge fails to demonstrate the District
had an obligation to offer you this position, 	and that they chose
not to offer it to you for discriminatory reasons. 	Thus, 	this
allegation fails 	to demonstrate a prima facie case 	for the
reasons stated herein and in my April 9, 	1998, 	letter.
Dismissal 	Letter
LA-CE-3910
Page 3
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:
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.)
Dismissal 	Letter
LA-CE-3910
Page 4
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 Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Herbert Spillman

STATE OF CALIFORNIA 	, 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
PERS
April 9, 	1998
Donald Santoianni
Re: 	WARNING LETTER
Donald Santoianni v. 	Los Angeles Community College District
Unfair Practice Charge No. 	LA-CE-3910
Dear Mr. Santoianni:
The above-referenced unfair practice charge, 	filed March 5, 	1998,
alleges 	the Los Angeles 	Community College District 	(District)
discriminated against you by failing to rehire you after your
layoff. 	This conduct is alleged to violate Government Code
section 3543.5(a) 	of the Educational Employment Relations Act
(EERA or Act).
Investigation of 	the charge revealed the following. 	You were
employed by the District as a Physical 	Sciences Laboratory
Technician at West Los Angeles Community College 	(WLAC). 	As a
Laboratory Technician, 	you were exclusively represented by the
American Federation of Teachers College Staff Guild 	(AFT).
In or about April 	1995, 	you were laid off from the District due
to lack of work. 	At the time of your lay off, 	the District
indicated that 	the 	Physics program at WLAC would be 	closed,
possibly for several years. 	Additionally, 	at the time of the lay
off, 	you were serving as Assistant Executive Secretary of AFT
Local 1521. 	You do not assert, 	however, 	that your lay off was
for discriminatory reasons.
Pursuant to contractual obligations, 	the District, 	rather than
severing your employment, 	transferred you to a Laboratory
Technician position at Los Angeles Trade Technical 	College and,
eventually, 	Los Angeles Southwest Community College. 	WLAC did
not offer a Physics program in the Fall of 1995. 	WLAC offered
only one Physics class in Spring 1996, 	but did not hire a
laboratory technician.
In or about the Fall 1997, 	Dr. 	John Ogren, 	a Physics professor at
WLAC, 	informed Charging Party that 	the District intended to hire
a part-time, 	temporary laboratory technician, 	that would be 25%

biology and 25% physics. 	In November 1997, 	the District hired
Stan Levin into the new position. 	Charging Party claims 	the
District had an obligation to hire Charging Party, 	rather than
Stan Levin, 	into this position.
Warning Letter
LA-CE-3910
Page 2
Based on the above stated facts, 	the charge as presently written,
fails to state a prima facie violation of the EERA, 	for the
reasons 	stated below.
Charging Party asserts the District has a contractual 	obligation
to hire him into the part-time, 	temporary position at WLAC.
Although PERB lacks 	the authority to enforce contractual
provisions 	(Gov. 	Code sec. 	3541.5(b), 	the failure to follow
contractual provisions may constitute a unilateral 	change 	in the
terms and conditions of employment, 	thus demonstrating an unfair
practice. 	However, 	Charging Party lacks standing to assert
unilateral change violations, 	and as such, 	the charge fails to
state a prima facie case. 	(Oxnard School District 	(1988) 	PERB
Decision No. 	667.) 	Moreover, 	even assuming Charging Party had
standing to assert a unilateral 	change, 	the parties 	contract
notes in Article 13(F)(5) 	that reemployment and recall rights are
limited to 	"regular" positions. 	Thus, 	it seems Charging Party
does not have recall 	rights 	into the temporary WLAC position.
Assuming Charging 	Party also wishes 	to 	contend the District
discriminated against him because of his protected activities,
the charge still 	fails to state a prima facie case. 	To
demonstrate a violation of EERA section 3543.5(a), 	the charging
party must show that: 	(1) 	the employee exercised rights under
EERA; 	(2) 	the employer had knowledge of the exercise of those
rights; 	and 	(3) 	the employer 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; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; Department of Developmental
Services (19 82) PERB Decision No. 228-S; California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
With regard to nexus, 	PERB often looks towards the timing of the
District's actions. 	In the instant charge, 	the District's action
in failing to place Charging Party into the temporary position is
remote 	in time 	to Charging Party's protected activity of 	serving
as Executive Secretary in Local 	1521. 	Charging Party's protected
activity occurred three years prior to the District's alleged
adverse action, 	and thus the timing of the action does not
demonstrate the requisite nexus.
Moreover, 	even assuming Charging Party engaged in protected
activities more recently than three years ago, 	the charge still

fails 	to demonstrate the requisite nexus. 	Although the timing of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, 	it does not,
without more, 	demonstrate the necessary connection or "nexus"
between the adverse action and the protected conduct. 	(Moreland
Elementary School District 	(1982) 	PERB Decision No. 	227.) 	Facts
establishing one 	or more
of 	the following additional 	factors must also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's departure 	from established procedures 	and 	standards
when dealing with the employee; 	(3) 	the employer's inconsistent
or contradictory justifications for its actions; 	(4) 	the
employer's 	cursory investigation of 	the employee's misconduct;
(5) 	the employer's 	failure to offer the employee justification at
the time it took action or the offering of exaggerated, 	vague, 	or
ambiguous reasons; 	or 	(6) 	any other facts which might demonstrate
the employer's unlawful motive. 	(Novato Unified School District.
supra; 	North Sacramento School District 	(1982) 	PERB Decision
No. 	264.) 	As presently written, 	this charge fails to demonstrate
any of these factors and therefore does not state a prima facie
violation of EERA section 3543.5(a).
Warning Letter
LA-CE-3910
Page 3
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 April 16. 	1998. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. Rosi
Regional Attorney 	. . 	. . .