Los Angeles Unified School District (Wightman) (PERB 0473E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
VICTOR
	WIGHTMAN,
Charging
	Party,
v.
LOS
	ANGELES 	UNIFIED
	SCHOOL
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
Case 	Nos.
	LA-CE-1736, 	LA-CE-1765
LA-CE-1767, 	LA-CE-1769
LA-CE-1771, 	LA-CE-1773
LA-CE-1774, 	LA-CE-1781
PERB
	Decision
	No.
	473
December
	31,
	1984
________________
)
A~pearances:	
Victor
	Wightman 	and
	Jules
	Kimmett
	for
Victor
	Wightman;
	O'Melveny
	&
Meyers
	by
	Joel
	M.
	Grossman
	for
Los
Angeles 	Unified
	School
	District.
Before
	Hesse,
	Chairperson;
	Tovar
	and
	Morgenstern,
	Members.
DECISION
TOVAR,
	Member:
	Victor
	Wightman
	appeals 	the 	determination
of
	a
	regional 	attorney 	of 	the 	Public
	Employment
	Relations
	Board
(PERB
	or
	Board)
	that
	no
	complaint 	should
	issue
	on
	the
above-captioned 	charges.
	While
	the 	regional 	attorney
considered
	and
	decided 	each 	of 	the 	several
	enumerated
	charges
individually,
	the
	Board
	itself
	finds
	that,
	for 	purposes 	both 	of
fairness
	and
	of 	administrative
	economy,
	these 	charges 	are
appropriately 	consolidated
	on
	appeal 	for
	disposition
	by
	a
single 	decision.
	Having
	considered 	these 	consolidated 	charges,
together
	with 	the
	entire
	record 	in 	each
	case,
	we
	conclude
	that
the 	matter 	should 	be 	remanded
	to 	the 	general 	counsel 	for

issuance 	of 	a 	complaint 	consistent 	with 	the 	discussion 	which
follows.
THE 	CHARGES
Each 	of 	Wightman's 	charges 	presents 	a 	fragment 	of
information 	which, 	when 	taken 	together, 	sets 	forth 	his 	central
complaint, 	to 	wit: 	that 	he 	was 	wrongfully 	discharged 	by 	the
Los Angeles 	Unified 	School 	District 	(District) 	from 	his
position 	as 	a 	bus 	driver. 	By 	synthesizing 	these 	charges 	and
extracting 	the 	pertinent 	factual 	allegations, 	we 	can 	identify
the 	conduct 	of 	which Wightman 	complains, 	as 	set 	forth 	below.
Wightman 	alleges 	tha~ 	in 	the 	fall 	of 	1982, 	he, 	with 	the
assistance 	of 	union 	representative 	Jules 	Kimmett, 	filed 	a
grievance 	against 	the 	District 	which 	included 	claims 	for,
inter 	alia, 	backpay, 	violation 	of 	seniority 	rights 	and 	improper
work 	assignment. 	On December 	3, 	Wightman 	and 	Kimmett 	met 	with
District 	Director 	of 	Transportation Max 	Barney. 	As 	his 	means
of 	transportation 	to 	this 	meeting, 	Wightman, 	without 	the
authorization 	of 	the 	District, 	drove 	himself 	in 	a 	District
school 	bus 	to 	the 	site 	of 	the 	meeting 	at 	Barney's 	office. 	At
Barney's 	direction, 	another 	employee 	was 	dispatched 	to 	return
the 	bus 	to 	its 	proper 	place. 	At 	the 	meeting, 	Barney 	threatened
Wightman 	with 	dismissal 	for 	raising 	the 	issues 	which 	were 	the
su b Jects	' 	o f 	h'is 	grievance. l	'
lrn 	one 	of 	the 	consolidated 	charges Wightman 	generally
states 	that 	Barney 	threatened 	him 	with 	dismissal. 	In 	another
2

On January 12, 1983, District administrator James Srott
informed Wightman that a meeting would be held for
pre-disciplinary purposes at which charges would be read
against Wightman and Wightman would have the opportunity to
respond. 	Srott at that time refused to furnish Wightman with a
written statement of the charges against him. For reasons not
stated, the parties were unable to schedule a date for the
pre-disciplinary meeting. Following this discussion, Wightman
filed with PERB unfair practice charges LA-CE-1715 through 1718
alleging that Srott had denied Wightman his right to receive a
copy of the charges against him and that other District
officials were wrongfully attempting to have him fired. On
January 31, Administrator Scott, by telephone, again attempted
to set a date for the pre-disciplinary meeting. Upon being
informed that union representative Kimmett was unavailable to
attend the meeting proposed by Srott, Srott stated that he
would send to Wightman by mail a copy of the letter
recommending his dismissal.
On February 1, Wightman was personally served with a copy
of the letter recommending his dismissal. On February 12, he
received another copy of that letter by mail. Wightman alleges
that the District's conduct in these matters was motivated by
his union activities.
charge, Wightman alleges that Barney made "thinly veiled
threats towards [his] status as an employee of the L.A. U. S. D."
3
On 	January 	12, 	1983, 	District 	administrator 	James 	Srott
informed Wightman 	that 	a 	meeting 	would 	be 	held 	for
pre-disciplinary 	purposes 	at 	which 	charges 	would 	be 	read
against 	Wightman 	and 	Wightman 	would 	have 	the 	opportunity 	to
respond. 	Srott 	at 	that 	time 	refused 	to 	furnish 	Wightman 	with 	a
written 	statement 	of 	the 	charges 	against 	him. 	For 	reasons 	not
stated, 	the 	parties 	were 	unable 	to 	schedule 	a 	date 	for 	the
pre-disciplinary 	meeting. 	Following 	this 	discussion, 	Wightman
filed 	with 	PERB 	unfair 	practice 	charges 	LA-CE-1715 	through 	1718
alleging 	that 	Srott 	had 	denied Wightman 	his 	right 	to 	receive 	a
copy 	of 	the 	charges 	against 	him 	and 	that 	other 	District
officials 	were 	wrongfully 	attempting 	to 	have 	him 	fired. 	On
January 	31, 	Administrator 	Srott, 	by 	telephone, 	again 	attempted
to 	set 	a 	date 	for 	the 	pre-disciplinary 	meeting. 	Upon 	being
informed 	that 	union 	representative 	Kimmett 	was 	unavailable 	to
attend 	the 	meeting 	proposed 	by 	Srott, 	Srott 	stated 	that 	he
would 	send 	to 	Wightman 	by 	mail 	a 	copy 	of 	the 	letter
recommending 	his 	dismissal.
On 	February 	1, 	Wightman 	was 	personally 	served 	with 	a 	copy
of 	the 	letter 	recommending 	his 	dismissal. 	On 	February 	12, 	he
received 	another 	copy 	of 	that 	letter 	by 	mail. 	Wightman 	alleges
that 	the 	District's 	conduct 	in 	these 	matters 	was 	motivated 	by
his 	union 	activities.
charge, 	Wightman 	alleges 	that 	Barney 	made 	"thinly 	veiled
threats 	towards 	[his] 	status 	as 	an 	employee 	of 	the 	L.A.U.S.D."
3

On March 25, Wightman and Kimmett met with Deputy Director
of Transportation Ralph Jacobs. Wightman and Kimmett informed
Jacobs that no pre-disciplinary meeting had yet been held to
review and discuss the dismissal charges pending against
Wightman. 	They requested permission of Jacobs to bring
witnesses to such a meeting, whenever it should be held. 	On
April 7, Wightman again met with Jacobs. They agreed to have
the pre-disciplinary meeting on April 22. Jacobs told Wightman
that the presentation of witnesses would not be permitted.
On April 4, the District's personnel commission issued a
recommendation to the school board that Wightman should be
dismissed from employment effective at the close of the workday
on April 19. On April 18, Wightman, together with Kimmett and
a third individual, appeared before the school board to protest
that no pre-disciplinary meeting had yet occurred. 	The
personnel commission director was also in attendance. 	This
information was presented for the apparent purpose of stirring
the board or the personnel commission director to delay the
date of Wightman's dismissal. Despite the presentation of this
information, neither the board nor the director took action and
Wightman's dismissal became effective on the close of his
workday on April 19.
On April 22, the "pre-disciplinary" meeting was held, at
which Wightman and Kimmett presented their rebuttal to the
charges against Wightman. On April 29, Wightman received a
On
	March 	25, 	Wightman
	and
	Kirnmett
	met
	with
	Deputy
	Director
of
	Transportation
	Ralph
	Jacobs.
	Wightman
	and 	Kimmett
	informed
Jacobs
	that
	no
	pre-disciplinary
	meeting
	had
	yet
	been
	held
	to
review
	and
	discuss 	the
	dismissal
	charges
	pending
	against
Wightman.
	They
	requested 	permission 	of 	Jacobs
	to 	bring
witnesses 	to
	such
	a
	meeting,
	whenever
	it
	should
	be
	held.
	On
April
	7,
	Wightman
	again
	met
	with 	Jacobs.
	They
	agreed
	to
	have
the
	pre-disciplinary
	meeting
	on
April
	22.
	Jacobs
	told
	Wightman
that
	the 	presentation
	of 	witnesses
	would
	not
	be
	permitted.
On
April
	4,
	the
	District's
	personnel
	commission
	issued
	a
recommendation
	to 	the
	school
	board
	that
	Wightman
	should
	be
dismissed
	from 	employment
	effective 	at
	the
	close
	of 	the
	workday
on
April
	19.
	On
April
	18,
	Wightman,
	together
	with
	Kimmett
	and
a
	third
	individual,
	appeared
	before 	the
	school
	board
	to
	protest
that
	no
	pre-disciplinary
	meeting
	had
	yet
	occurred.
	The
personnel
	commission
	director
	was
	also 	in 	attendance. 	This
information
	was
	presented 	for 	the 	apparent
	purpose 	of
	stirring
the
	board 	or 	the 	personnel
	commission
	director
	to 	delay 	the
date 	of
	Wightman's
	dismissal.
	Despite 	the
	presentation
	of
	this
information, 	neither 	the
	board 	nor
	the
	director
	took
	action
	and
Wightman's
	dismissal
	became
	effective
	on
	the 	close 	of
	his
workday 	on
April
	19.
On
	April
	22,
	the 	"pre-disciplinary"
	meeting
	was
	held,
	at
which 	Wightman 	and 	Kimmett
	presented
	their 	rebuttal 	to 	the
charges 	against
	Wightman.
	On
April
	29, 	Wightman
	received
	a
4

letter
	from
	Jacobs
	stating
	in
	reference 	to 	the
	April
	22
	meeting
that
	"neither
	you
	nor 	your
	representative, 	Jules
	Kimmett,
presented
	evidence
	that
	the 	Notice 	of
	Unsatisfactory 	Service
was
	in
	error
	or
	that
	you 	were
	unfairly
	treated." 	Finally,
Wightman
	alleges
	that 	his
	dismissal
	was
	motivated
	by
	his
protected
	activity
	of
	filing
	previous
	unfair
	practice
	charges
against
	the
	District
	with
	this
	agency.
DISCUSSION
In
	deciding
	whether
	a
	charge
	states
	a
	prima
	facie
	case
requiring
	a
	hearing
	on
	the
	merits,
	we
	deem
	that
	"the
	essential
facts
	alleged 	in
	a
	charge
	are
	true."
	San
	Juan
	Unified
	School
District
	(3/10/77)
	PERB
	Decision
	No.
	12. 	Here,
	Wightman
alleges 	that
	District's
	conduct 	towards
	him
	violated 	sections
3543.S(a), 	(b),
	(c),
	and 	(d)
	of 	the 	Educational
	Employment
Relations
	Act
	(EERA)
. 2
2rhe
	EERA
	is
	codified
	as
	Government 	Code
	section
	3540
et
	seq. 	Sections 	3543.S(a), 	(b), 	(c),
	and 	(d)
	provide 	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 	rightsguaranteed 	to
	them	
by	
this 	chapter.
(c) 	Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
5

Initially, 	we 	find 	on 	review 	of 	the 	charges 	that, 	as 	noted
by 	the 	regional 	attorney, 	the 	factual 	allegations 	entirely 	fail
to 	support 	the 	charges 	that 	the 	District 	violated 	EERA 	sections
3543.S(b}, 	(c), 	or 	(d). 	Those 	portions 	of 	the 	charges 	which 	so
allege, 	therefore, 	are 	dismissed.
Clearly, 	Wightman's 	central 	concern 	is 	with 	his 	dismissal
from 	employment 	with 	the 	District 	on April 	19, 	1983. 	A
California 	public 	school 	employer 	which 	dismisses 	an 	employee
because 	of 	his 	or 	her 	participation 	in 	activity 	protected 	by
the 	EERA 	violates 	section 	3543.S(a} 	of 	that Act; 	and 	indeed,
Wightman 	alleges 	that 	his 	former 	employer 	is 	guilty 	of 	exactly
this 	conduct.
In 	Novato 	Unified 	School 	District 	(4/30/82) 	PERB 	Decision
No. 	210, 	the 	Board 	articulated 	the 	test 	it 	will 	apply 	to
determine 	whether 	an 	employer 	has 	engaged 	in 	the 	kind 	of
discriminatory 	conduct 	proscribed 	by 	section 	3543.S(a). 	Under
that 	test, 	a 	charging 	party must 	show 1) 	that 	he 	or 	she 	has
engaged 	in 	conduct 	protected 	by 	the 	EERA; 	2) 	that 	the 	employer
has 	subsequently 	taken 	adverse 	personnel 	action 	against
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.
6

charging party; and, 3) facts raising the inference that there
is a causative "nexus" between the foregoing two elements. 	Of
course, conclusions that an employee has engaged in
protected activity, or that an employer was motivated by
protected activity, are insufficient to support a valid
charge. Rather, PERB Regulation 32615(a) requires that a
charge must include "[al clear and concise statement of the
facts and conduct alleged to constitute an unfair practice."
While Wightman makes the conclusivessertion that he has
engaged in protected activity, the facts and conduct alleged in
support of this claim are limited. Thus, he alleges that in
the fall of 1982, he, with the assistance of his employee
organization, filed a grievance against the District.
Certainly this is protected conduct. North Sacramento School
District (12/20/82) PERB Decision No. 264; Rio Hondo Community
College District (12/28/82) PERB Decision No. 272. He also
alleges that some time shortly after January 12, 1983, he filed
unfair practice charges with this agency. This conduct, also,
is protected by the EERA. Regents of the University of
California (9/6/84) PERB Decision No. 403-H. Wightman also
alleges that both he and Jules Kimmett, the individual who
extensively assisted Wightman in his efforts to resist his
3 	ations are codified at California
Administrative Code, title 8, section 31001 et seq.
charging 	party; 	and, 	3) 	facts 	raising 	the 	inference 	that 	there
is 	a 	causative 	"nexus" 	between 	the 	foregoing 	two 	elements. 	Of
course, 	conclusory 	allegations 	that 	an 	employee 	has 	engaged 	in
protected 	activity, 	or 	that 	an 	employer 	was 	motivated 	by
protected 	activity, 	are 	insufficient 	to 	support 	a 	valid
charge. 	Rather, 	PERB 	Regulation 	32615(a) 3 requires 	that 	a
charge 	must 	include 	"[a] 	clear 	and 	concise 	statement 	of 	the
facts 	and 	conduct 	alleged 	to 	constitute 	an 	unfair 	practice."
While 	Wightman 	makes 	the 	conclusory 	assertion 	that 	he 	has
engaged 	in 	protected 	activity, 	the 	facts 	and 	conduct 	alleged 	in
support 	of 	this 	claim 	are 	limited. 	Thus, 	he 	alleges 	that 	in
the 	fall 	of 	1982, 	he, 	with 	the 	assistance 	of 	his 	employee
organization, 	filed 	a 	grievance 	against 	the 	District.
Certainly 	this 	is 	protected 	conduct. 	North 	Sacramento 	School
District 	(12/20/82) 	PERB 	Decision No. 	264; 	Rio 	Hondo 	Community
College 	District 	(12/28/82) 	PERB 	Decision 	No. 	272. 	He 	also
alleges 	that 	some 	time 	shortly 	after 	January 	12, 	1983, 	he 	filed
unfair 	practice 	charges 	with 	this 	agency. 	This 	conduct, 	also,
is 	protected 	by 	the 	EERA. 	Regents 	of 	the 	University 	of
California 	(9/6/84) 	PERB 	Decision No. 	403-H. 	Wightman 	also
alleges 	that 	both 	he 	and 	Jules Kimmett, 	the 	individual 	who
extensively 	assisted Wightman 	in 	his 	efforts 	to 	resist 	his
3PERB's Regul	PERB's 	Regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31001 	et 	seq.
7

dismissal, are shop stewards of "Local 99, " the exclusive
representative of Wightman's bargaining unit. However, in the
course of the investigation of these charges, the regional
attorney was informed by the District that to its knowledge
neither of these two individuals were in fact stewards of that
organization or any other, and that indeed Kimmett was not an
employee of the District at all. PERB Regulation 326 20
empowers the Board agent to investigate unfair practice charges
and to dismiss such charges if the charge or the evidence is
insufficient to establish a prima facie case. In the face of
these conflicting assertions, the regional attorney wrote a
letter to Wightman requiring him to present some evidence which
would support the claim of union stewardship. 	Wightman
responded by expressly declining to do so, stating that he
would produce evidence "if and when a hearing takes place."
We find that the procedure employed by the regional
attorney was an appropriate exercise of his authority to
investigate the charges. As the Charging Party, Wightman
ultimately has the burden of proving the truth of his charges
and thus necessarily cannot prevail at a hearing without
producing evidence which will support his charges. 	The
regional attorney's requirement that Wightman demonstrate that
some evidence exists to support his allegations is therefore
not unreasonable. In reviewing the sufficiency of Wightman's
8
dismissal,
	are
	shop
	stewards 	of
	"Local 	99,"
	the
	exclusive
representative
	of
	Wightman's
	bargaining
	unit.
	However,
	in 	the
course 	of 	the
	investigation
	of 	these 	charges, 	the
	regional
attorney
	was
	informed
	by
	the
	District
	that
	to
	its
	knowledge
neither
	of 	these
	two
	individuals
	were
	in
	fact
	stewards 	of
	that
organization
	or
	any
	other,
	and
	that
	indeed
	Kimmett
	was
	not
	an
employee
	of 	the
	District 	at
	all.
	PERB
	Regulation
	32620
empowers
	the
	Board
	agent
	to
	investigate 	unfair
	practice
	charges
and
	to
	dismiss
	such
	charges
	if
	the
	charge 	or
	the
	evidence
	is
insufficient
	to
	establish
	a
	prima
	facie
	case.
	In
	the
	face
	of
these
	conflicting 	assertions,
	the
	regional 	attorney
	wrote
	a
letter
	to
	Wightman
	requiring
	him
	to 	present
	some
	evidence
	which
would
	support 	the 	claim 	of
	union
	stewardship.
	Wightman
responded
	by
	expressly 	declining 	to
	do
	so,
	stating 	that
	he
would
	produce 	evidence
	"if
	and
	when
	a
	hearing 	takes 	place."
We
	find
	that
	the 	procedure
	employed
	by
	the 	regional
attorney
	was
	an
	appropriate 	exercise
	of
	his 	authority
	to
investigate
	the 	charges.
	As
	the
	Charging
	Party,
	Wightman
ultimately
	has
	the
	burden
	of 	proving 	the
	truth
	of
	his
	charges
and
	thus 	necessarily
	cannot
	prevail 	at
	a
	hearing 	without
producing 	evidence
	which
	will
	support
	his 	charges.
	The
regional 	attorney's
	requirement
	that
	Wightman
	demonstrate
	that
some
	evidence
	exists
	to 	support 	his 	allegations 	is 	therefore
not 	unreasonable. 	In 	reviewing 	the 	sufficiency 	of
	Wightman's
8

charges, 	therefore, 	we 	do 	not 	rely 	on 	his 	allegation 	of 	status
as 	union 	stewards 	for 	Jules Kimmett 	and 	himself.
To 	establish 	a 	prima 	facie 	case 	of 	EERA-violative
discrimination 	regarding 	his 	dismissal, 	Wightman 	must 	have
alleged 	facts 	raising 	the 	inference 	that 	the 	above-noted
protected 	acts 	of 	pursuing 	a 	grievance 	and 	filing 	charges 	with
PERB 	acted 	as 	a 	motivating 	factor 	in 	the 	District's decision 	to
dismiss 	him •. Upon 	our 	review 	of 	those 	factual 	allegations, 	we
find 	that 	no 	such 	inference 	is 	raised.
In 	reaching 	this 	finding, 	we 	note 	initially 	that 	the
protected 	act 	of 	filing 	unfair 	practice 	charges 	is 	alleged 	to
have 	occurred 	sometime 	shortly 	after 	January 	12, 	1983. 	The
charges 	themselves, 	however, 	by Wightman's 	own 	description,
complain 	of 	the 	District's 	failure 	to 	turn 	over 	the 	list 	of
misconduct 	charges 	against 	him 	and 	of 	the 	District's 	efforts 	to
have 	him 	fired. 	Logically, 	Wightman's 	subsequent 	act 	of 	filing
unfair 	practice 	charges 	against 	the 	District 	cannot 	have 	been 	a
causative 	factor 	in 	the 	District's 	issuance 	of 	misconduct
charges 	and 	efforts 	to 	discharge 	him 	which 	are 	complained 	of 	in
the 	unfair 	practice 	charges 	themselves. 	While 	the 	possibility
logically 	remains 	that 	the 	District's 	governing 	board 	would 	not
have 	pursued 	its 	dismissal 	efforts 	to 	the 	end 	but 	for 	that
protected 	conduct, 	neither 	factual 	allegation 	nor 	argument 	is
presented 	by 	Charging 	Party 	to 	raise 	this 	claim.
9

What 	remains, 	then, 	is 	a 	charge 	that 	Wightman's 	exercise 	of
his 	right 	to 	file 	the 	grievance 	in 	the 	fall 	of 	1982 	led 	to 	his
dismissal. 	Factual 	allegations 	in 	the 	charges 	indicate 	that
the 	grievance 	raised 	claims 	of 	substantial 	importance. 	It
sought 	approximately 	$3,000 	in 	backpay, 	it 	raised 	objections 	to
Wightman's 	position 	on 	the 	seniority 	list 	and 	to 	the 	seniority
calculations 	of 	the 	District 	as 	a 	whole, 	and 	it 	contested 	his
involuntary 	transfer 	to 	a 	new 	work 	assignment. 	Furthermore,
administrator 	Max 	Barney 	allegedly 	displayed 	sufficient
antagonism 	toward 	the 	subjects 	included 	in 	the 	grievance 	to
threaten Wightman 	with 	dismissal 	for 	raising 	those 	matters 	at
their 	meeting 	of 	December 	3, 	1982. 	While 	the 	facts 	alleged
indicate, 	then, 	that 	at 	least 	one 	District 	administrator 	was
antagonized 	by Wightman's 	protected 	pursuit 	of 	his 	grievance,
we 	find 	that 	the 	record 	of 	factual 	allegations 	as 	a 	whole 	fails
to 	support 	an 	inference 	that 	Wightrnan's 	pursuit 	of 	his
grievance 	was 	a 	motivating 	factor 	in 	the 	District's 	decision 	to
dismiss 	him.
In 	connection 	with 	his 	allegation 	that 	Barney 	threatened
him, 	Wightman 	frankly 	includes 	the 	allegation 	that 	Barney
angrily 	directed 	his 	subordinates 	to 	return 	to 	its 	proper 	place
the 	bus 	Wightman 	had 	driven 	to 	Barney's 	office. 	The 	regional
attorney's 	investigation 	revealed 	that, 	without 	authorization,
Wightman 	appropriated 	a 	District 	bus 	for 	the 	purpose 	of
transporting 	himself 	to 	a 	meeting 	with 	Barney 	being 	held 	at 	his
10

own
	request.
	In 	response
	to 	the 	regional
	attorney's
	inquiry,
Wightman
	did 	not
	deny
	these
	facts,
	claiming
	instead
	on
	appeal
that
	he
	has
	a
	right
	to 	attend
	grievance
	meetings
	via
	District
transportation.
PERB
	has
	not
	and
	does
	not
	now
	recognize 	the
	transportation
right
	here
	asserted.
	We
	infer
	to 	the
	contrary,
	from
	the
allegations
	surrounding
	this
	incident, 	that
	Barney
	would
understandably
	be
	antagonized
	by
	the 	conduct
	to
	which
	Wightman
admits
	and 	would
	therefore
	show
	hostility
	toward
	him
	at
	the
meeting.
	While
	the
	threats
	themselves
	may
	be
	violative
	of
	the
EERA
	in
	connection 	with
	Wightman's
	right
	to
	pursue
	his
grievance
	(see
	discussion,
	infra),
	we
	are
	unable
	to
	conclude
that
	Barney's
	utterance
	of
	"thinly
	veiled 	threats"
	at
	the
December 	3
	meeting
	is
	a
	sufficient
	basis,
	without
	more,
	to
support 	the 	inference 	of 	unlawful 	motive
	regarding
	his
dismissal.
Wightman
	asserts,
	however,
	that
	the 	record 	does
	reflect
other
	conduct
	by
	the
	District
	which
	supports
	his
	charge.
	Thus,
he
	urges
	that
	the
	District's
	failure
	to
	hold
	his
pre-disciplinary
	hearing
4
before 	the
	effective 	date 	of
	his
4wightman
	at
	times
	refers
	to
	this
	hearing 	as
	a
	"Skelly
proceeding." 	This 	apparently
	is
	in 	reference 	to 	the
	legal
requirement
	first
	articulated
	by
	the 	California
	Supreme
	Court
in 	Skelly	
v.	
State
	Personnel
	Board 	(1975) 	15
	Cal.3d 	194.
	The
Court 	there 	held
	that
	due
	process 	considerations 	require
	that
some 	form
	of 	procedural 	safeguard
	be 	used 	before
	a
	publicemployee 	may 	be
	deprived 	of 	his
	or 	her
	employment 	as
	a
disciplinary 	action. 
11

termination, 	contrary 	to 	required 	procedure, 	is 	a 	factor
showing 	that 	the 	District 	harbored 	unlawful 	animus 	against 	him
and 	that 	his 	discharge 	was 	motivated 	by 	this 	animus. 	We 	find
no 	such 	significance 	in 	the 	late 	date 	of 	the 	Skelly 	hearing.
Wightman's 	charges 	acknowledge 	that 	on 	January 	12, 	District
administrator 	Srott 	informed 	Wightman 	of 	the 	District's 	desire
to 	schedule 	a 	hearing. 	Again 	on 	January 	31, 	Srott 	attempted 	to
schedule 	a 	meeting. 	It 	was 	Wightman 	who 	turned 	down 	the 	offer,
stating 	that 	his 	representative, 	Jules 	Kimmett, 	was
unavailable. 	Not 	until April 	7 	did 	Wightman 	accept 	a 	District
offer 	to 	set 	a 	time 	for 	the 	hearing. 	The 	fact 	that, 	at 	this
late 	date, 	the 	agreed-upon 	date 	of April 	22 	turned 	out 	to 	be
three 	days 	after 	the 	date 	of 	discharge 	independently 	set 	by 	the
personnel 	commission 	fails 	to 	carry 	with 	it 	the 	critical
significance 	that Wightman 	ascribes 	to 	it.
While 	we 	find 	that 	the 	charges 	fail 	to 	allege 	facts 	showing
that 	Wightman 	was 	discharged 	in 	violation 	of 	the 	EERA, 	we 	note
that 	a 	different 	EERA 	violation 	does 	appear 	from 	allegations.
Wightman 	alleges 	that 	he 	filed 	a 	grievance 	in 	the 	fall 	of 	1982
and 	that 	Director 	of 	Transportation 	Barney 	threatened 	Wightman
with 	discharge 	for 	attempting 	to 	raise 	and 	pursue 	that
grievance 	at 	a 	meeting 	on December 	3. 	As 	noted, 	supra, 	the
pursuit 	of 	a 	grievance 	generally 	constitutes 	conduct 	protected
by 	the 	EE.RA. 	Section 	3543.S(a), 	supra 	at 	footnote 	2, 	plainly
states 	that 	it 	is 	an 	unlawful 	practice 	to 	"threaten 	to 	impose
12

reprisals
	on
	employees
	•..
	because
	of
	their
	exercise 	of
rights
	guaranteed
	by
	[the
	EERA]." 	The
	regional 	attorney
received
	affidavits
	from
	the 	four
	District
	administrators
	who
were
	present
	at
	the
	meeting,
	each
	of
	whom
	denied
	Wightman's
version
	of 	the 	events 	in 	controversy,
	maintaining
	that
	no
threats
	of
	any
	kind
	were
	uttered.
	He
	resolved
	this
	factual
dispute
	in 	favor 	of 	the
	District,
	finding 	the
	District's
evidence
	more
	persuasive
	than
	Wightman's
	allegation.
	In 	taking
it
	upon
	himself 	to 	decide
	these 	contested
	facts,
	the
	regional
attorney
	exceeded
	his 	authority.
	San
	Francisco
	Classroom
Teachers Association
	(Bromell)
	(11/13/84)
	PERB
	Decision
No.
	430.
	On
	this
	basis
	we
	find
	that
	Wightman
	has
	the
	right
	to
a
	hearing
	at
	which 	he
	will
	have
	the
	opportunity 	to 	prove
	that
the
	District
	interfered
	with 	the
	exercise 	of
	his 	right 	to
pursue
	his
	grievance 	as
	alleged.
ORDER
Upon
	the 	foregoing 	Decision
	and
	the
	entire
	record
	in
	this
case,
	these 	consolidated 	charges 	are
	REMANDED
	to 	the
	general
counsel 	for
	disposition 	consistent
	with
	this
	Decision.
Chairperson Hesse's 	concurrence
	and
	dissent
	begin
	on 	page 	14.
Member
	Morgenstern's 	concurrence
	and
	dissent
	is
	on 	page 	15.
13

Hesse,
	Chairperson, 	concurring
	and
	dissenting:
	While
	I
agree
	with
	that 	part
	of 	the
	majority
	opinion
	that
	dismisses 	the
bulk
	of
	Mr.
	Wightman's
	charges,
	I
	feel
	strongly
	that
	all
	of
	the
allegations
	should
	be
	dismissed.
The
	majority 	believes
	that
	the
	only 	conduct
	that
	could
state
	a
	prima
	facie 	violation
	of
	EERA
	is
	the
	allegation
	that
Wightman
	filed
	a
	grievance 	in 	the
	fall
	of
	1982
	and
	was
thereafter
	threatened
	with
	discharge 	for 	attempting 	to
	raise
and
	pursue
	that
	grievance
	at
	a
	December
	3,
	1983
	meeting
	with
the
	District.
	I
	reject
	the 	notion
	that 	this
	conduct
	merits
	the
issuance 	of
	a
	charge 	for
	two
	reasons.
First,
	there
	is
	no
	credible
	evidence
	that
	the
	allegations
have 	any
	merit.
	Wightman 	was
	permitted 	to
	file
	the 	grievance
and, 	indeed,
	it
	was
	pursued
	at 	least
	to 	the
	level
	at
	which 	he
was
	accorded
	a
	face-to-face
	meeting 	with
	his 	supervisor.
Second,
	and
	more
	significantly,
	Wightman
	filed
	charges
against
	the
	District 	after
	the
	December
	meetings
	in
	which 	he
alleged
	the
	same
	essential 	facts
	on
	which
	the 	majority
	would
issue
	a
	charge
	(Charge
	Nos. 	LA-CE-1715,
	1716, 	1717, 	1718,
	filed
January
	14, 	1983).
	Those
	charges
	were
	dismissed
	by
	the
regional 	attorney
	on 	March
	16, 	1983,
1	
and~~
	appealed
to 	the
	Board
	itself.
	Thus,
	the 	majority, 	in
	their
	eagerness 	to
lcharging 	party
	was 	warned 	by
	letter
	dated
	March
	4, 	1983,
that 	unless 	the 	defects 	in 	the 	charges
	were
	cured, 	they 	would
be
	dismissed. 	Charging
	party
	made 	no
	contact 	with 	the 	regional
attorney 	concerning 	the 	warning
	letter,
	nor 	did
	he
	cure 	the
defects.
14

"synthesize"
	the 	events 	in 	question
	covering 	the
	dismissals
	on
appeal,
	have
	(1)
	written
	a 	new
	charge
	for
	Wightman
	covering
events
	he 	had
	already
	filed
	on,
	and
	(2)
	resurrected
	the
	already
dismissed
	charges
	and
	granted
	an
	appeal
	sua
	sponte.
To
	the
	extent
	that
	the
	majority
	opinion
	has
	that
	effect,
	I
dissent
	from
	the 	issuance 	of
	a
	complaint.
	In
	all
	other
aspects,
	I
	concur 	with
	the
	majority.
Morgenstern,
	Member,
	concurring
	and
	dissenting:
	I
	concur
in
	the 	majority's
	decision
	that
	a
	prima
	facie 	violation
	of
section
	3543.S(a)
	is
	stated
	by
	Wightman's
	allegations 	that
	on
December
	3,
	1982,
	District
	Director
	of 	Transportation
	Max
	Barney
threatened
	him
	with
	dismissal 	for 	attempting 	to
	pursue
	a
grievance.
However,
	contrary
	to 	the 	majority,
	I
	find
	that 	this 	threat
of
	dismissal
	for 	protected
	activity 	constitutes 	direct
	evidence
of
	animus 	and
	is 	sufficient
	to
	raise
	an
	inference
	that
	the
dismissal
	proceedings
	initiated
	only
	one 	month
	later
	were
similarly
	motivated.
	Simply
	stated,
	it
	is
	reasonable 	to
	infer
that
	the 	alleged
	unlawful
	threat
	was
	carried 	out.
For
	this
	reason,
	I
	would
	direct
	the 	general 	counsel 	to
issue
	a
	complaint
	and
	proceed 	to 	hearing
	on
	the 	alleged
discriminatory 	discharge 	as 	well 	as 	the 	unlawful
	threat.
15