Los Angeles Unified School District (Wightman) (PERB 0426E)

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-1775
PERB 	Decision 	No. 	426
October 26, 	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 	Los Angeles Unified 	School 	District.
Before Hesse, 	Chairperson; 	Tovar and Morgenstern, 	Members.
DECISION
HESSE, 	Chairperson: 	This case 	is before the Public
Employment 	Relations 	Board 	(PERB) 	on Charging Party's 	appeal 	of
the 	regional 	attorney's 	dismissal 	of 	charges 	alleging 	that 	the
Los Angeles 	Unified 	School 	District 	(LAUSD)1 violate
Educational 	Employment Relations 	Act 	(EERA) 	and 	certain
federal 	statutes.
d 	the
Specifically, 	Charging Party alleges 	violation	? 	s 	of 	EERA
subsections 3543.5(a), 	(b), 	(c) 	and (d),2 as well as "Federal
JlEERA	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the Government 	Code
unless 	noted 	otherwise.
2Section 	3543.5 	reads 	in pertinent 	part 	as 	follows:
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Criminal 	(conspiracy) 	Code - Sections 	241 	and 	242." 	The
allegations 	are 	based 	on 	Charging 	Party's 	statement 	of 	conduct
entitled 	"Incompetence 	of 	Harry 	Handler 	- 	Superintendent." 	The
conduct 	alleged 	in the charge 	is 	that 	Handler, 	Superintendent
of 	LAUSD, 	was aware of 	"administrative mishandling 	of 	the case
to 	terminate 	[Wightman]." 	This 	knowledge was gained through 	a
letter 	sent 	by the 	Charging Party to Handler 	on April 	20, 	1983
(attached to 	the charge), 	which 	detailed 	that grievant 	had not
received 	a 	Skelly 3 hearing 	as 	of 	that 	day, 	the 	day 	after 	his
termination.
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.
3In 	Skelly v. 	State Personnel Board 	(1975) 	15 Cal.3d 	194,
the 	Supreme 	Court 	held 	that 	prior 	to 	taking punitive 	action
against 	a permanent 	civil 	service 	employee, 	the State 	is
2
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The 	charge 	also 	alleged 	that 	Handler 	was 	aware 	of
"harassments 	and 	vindictive 	attitude 	toward 	Victor 	Wightman 	-
including 	the 	firing 	of 	a 	co-worker 	associated 	to Victor 	by 	his
attendance 	at 	Victor's 	April 	1982 	reinstatement 	hearing."
Finally, 	the 	charge alleges 	that 	Handler 	"has 	done nothing"
despite Wightman's dismissal 	on April 	19, 	1983.
In 	his 	dismissal 	letter, 	the 	regional 	attorney 	noted 	that
PERB 	had 	no 	authority 	to 	find 	a 	violation 	of 	the 	Federal
Criminal 	Code 	or 	to 	remedy the 	denial 	of 	a 	"Skelly" 	hearing
unless 	the 	latter 	was 	also 	an 	independent 	violation 	of 	EERA.
In 	support 	of 	this 	finding, 	the 	regional 	attorney 	specifically
referred 	to 	the prima 	facie 	test 	for 	each 	subsection 	of 	section
3543.5, 	and 	found 	that 	Charging 	Party 	had 	not 	presented 	any
facts which, 	if 	true, 	would show a violation of 	any subsection
of 	section 	3543.5.
In his 	appeal, 	Wightman argues 	that 	the 	superintendent 	is
ultimately 	"responsible 	for 	the workings 	of 	his 	subordinates."
Since, 	according to Charging Party's appeal, 	Handler was aware
that Wightman was 	engaged 	in protected 	activities, 	and 	since
the 	superintendent 	did 	nothing 	to 	halt 	the 	denial 	of 	Charging
Party's 	EERA 	rights, 	Handler 	is 	guilty of 	"conspiring" 	with
other 	officials 	who 	denied Wightman 	a 	Skelly 	hearing.
required to provide, 	as minimum preremoval 	safeguards, 	a notice
of 	the proposed action, 	the 	reasons 	therefor, 	a copy of 	the
charges 	and materials on which 	the 	action 	is 	based, 	and 	the
right 	to 	respond, 	either 	orally or 	in writing, 	to the authority
initially 	imposing 	discipline.
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We 	reject 	the appeal 	because 	the 	charge, 	as written,
contains no facts that, 	if true, 	would constitute a violation
of 	EERA. 	The 	superintendent 	is 	charged with 	"incompetence" 	and
inaction. 	These allegations, 	unsupported by any factual
allegations, 	are not potential 	violations of EERA.
The 	fact 	that Wightman was 	terminated prior 	to 	a 	Skelly
hearing being 	held 	is not 	a violation of 	EERA, 	unless 	that
action was 	prompted 	by 	Charging 	Party's 	protected 	activity.
Mere 	knowledge 	by Handler 	of 	protected 	activity 	by Wightman 	is
not 	enough 	to 	impute 	an 	improper 	motive 	to 	the 	employer's
actions. 	Novato Unified School District 	(4/30/82) 	PERB
Decision No. 	210.
Where 	it 	is 	alleged 	that 	the 	employer 	has 	taken 	reprisals
against 	an 	employee 	for 	participation 	in 	protected 	activity,
the 	charging party must 	show: 	(1) 	that 	he had 	engaged 	in
protected 	activity; 	(2) 	the employer 	had actual 	or 	imputed
knowledge 	of 	the protected activity; 	and 	(3) 	the existence 	of
other 	factors, 	such as suspicious 	timing, 	disparate treatment
or 	departure 	from established procedures, 	which 	support 	an
inference of unlawful motive. 	Novato, 	supra, pp. 	6-7.
Here, 	treating Wightman's allegations 	in his 	charge and
appeal 	as 	true,4 Wightman alleges 	only 	that 	he was 	engaged 	in
4San Juan Unified School District, 	(3/10/77) 	EERB
Decision No. 	12. 	Prior to January 1, 	1978, 	PERB was 	known as
the 	Educational 	Employment Relations Board, 	or 	EERB.
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protected 	activities 	and 	that 	Handler 	had 	knowledge 	thereof.
Absent 	an 	allegation 	of 	facts 	showing 	that 	Handler's 	inaction
in 	response 	to 	Wightman's 	letter 	constituted 	disparate
treatment 	as 	compared 	to 	Handler's 	treatment 	of 	other 	employee
letters 	of 	complaint, 	or 	a 	departure 	from his 	established
procedures 	in dealing with 	such complaints, 	no 	inference of
unlawful motive 	is 	raised. 	Consequently, 	we find 	no prima
facie 	showing of 	a 	3543.5(a) 	violation.
We 	concur 	with 	the 	regional 	attorney 	that 	the 	facts 	alleged
in 	the 	charge 	also 	fail 	to 	state a prima 	facie 	violation of
EERA subsections 3543.5(b), 	(c) or 	(d). 	Consequently, 	the
entire charge 	is 	dismissed.
ORDER
The 	appeal 	by 	Charging 	Party 	of 	the 	regional 	attorney's
dismissal 	is DENIED. 	Accordingly, 	charge No. 	LA-CE-1775 	is
DISMISSED without 	leave 	to 	amend.
Members 	Tovar 	and 	Morgenstern 	joined 	in 	this 	Decision.
un	
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