Compton Community College District (PERB 0649E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COMPTON 	COMMUNITY 	COLLEGE
FEDERATION 	OF 	EMPLOYEES,
Charging 	Party,
v.
COMPTON COMMUNITY COLLEGE DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2393
PERB 	Decision No. 	649
December 21, 	1987
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Appearance: 	Lawrence Rosenzweig, 	Attorney, 	for Compton
Community College 	Federation 	of 	Employees.
Before Porter, 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	The Compton Community College Federation of
Employees 	(hereafter CCCFE) 	appeals 	the partial 	dismissal 	of
the 	third 	amended 	unfair 	practice 	charge 	filed 	against 	the
Compton Community College District 	(hereafter District). 	The
general 	counsel's 	office 	of 	the 	Public 	Employment 	Relations
Board 	(hereafter 	PERB) 	concluded 	that 	CCCFE 	failed 	to 	state 	a
prima 	facie violation of 	section 3543.5(d) 	of 	the Educational
Employment Relations Act 	(EERA). 1
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein 	are 	to 	the Government 	Code. 	Government Code 	section
3543.5(d) 	provides as follows:
It 	shall 	be unlawful 	for 	a 	public 	school
employer 	to:
H
_______________ )
•

(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.
On May 27, 	1986, 	CCCFE 	filed 	an unfair practice charge
against 	the District which 	included, 	in pertinent part, 	the
following 	allegation:
On or about April 30, 	[1986] 	Mr. 	Ken
Wibecan, 	a part time [sic] 	member of the
bargaining unit, 	and others, 	circulated a
petition on campus, 	apparently to 	create
disunity in the bargaining unit, 	and 	to 	seek
to 	change 	the 	internal 	union governance 	and
management 	procedures 	. . . . 	On 	or 	about
May 	6, 	Mr. 	Wibecan mailed the 	same petition,
along with 	a 	letter 	to 	the homes 	of 	the
part time [sic] 	members 	of 	the 	bargaining
unit 	. . . . 	On 	or 	about May 	15,
Mr. 	Wibecan or others 	related 	to 	the
petitions, 	presented 	the 	latter 	or 	similar
materials 	to 	the Long 	Beach Press
Telegram 	. . . . 	And 	on May 	12 	and 	again 	on
May 23, 	1986, 	the Co-Presidents 	received
letters 	from Mr. 	David Cobbs, 	apparently
representing 	the 	same 	petition 	groups 	cited
previously 	. . . .
The 	Federation 	is 	in possession 	of 	evidence
of 	a 	supporting 	nexus 	between 	the 	[District]
and the attempts of Mr. 	Wibecan et. 	al. 	to
interfere [sic] 	with 	and dominate 	formation
and 	administration of 	the 	Federation. 	This
evidence 	includes 	information 	submitted 	to
the Chancellor 	of 	the California 	Community
Colleges on May 10, 	1986, 	urging an
investigation 	into 	the 	financial
relationship 	between 	the 	CCCD 	and
Mr. 	Wibecan—Exhibit H; 	and 	the unauthorized
appearance 	in the campus mail 	system of 	a
photo-reduced 	copy 	of 	Exhibit 	F—see 	Exhibit
I.[2]
2Exhibit H 	references 	a 	letter 	from a CCCFE officer,
written on CCCFE 	letterhead, 	to 	the personnel 	commission
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requesting 	the 	latter 	to 	investigate 	the 	position 	of
"Professional Expert", 	which Ken Wibecan, 	as 	a Public
Information Assistant, 	was designated 	as 	occupying. 	Exhibit 	I
is 	a 	copy of 	an 	article 	appearing 	in 	the 	Press-Telegram on
May 15, 	1986, 	in which the 	leadership of CCCFE 	is criticized
for 	its 	"hindering 	of 	open participation 	by the 	full
membership" 	in 	a 	strike 	authorization vote. 	Ken Wibecan 1 s 	name
appears 	in the 	article.
On June 30, 	1986, 	a 	first 	amended charge was 	filed which
made 	no 	reference 	to 	the 	charge 	involving 	Kenneth Wibecan.
This 	charge was 	defective 	in 	that 	it 	did 	not 	contain Charging
Party's 	signature. 	A corrected, 	signed version of 	the 	charge
was 	thereafter 	filed, 	which 	likewise 	contained 	no 	mention of
the 	original 	allegation 	involving 	Wibecan.
On October 	8, 	1986, 	a 	second 	amended charge was 	filed which
restated 	the 	charge 	regarding 	Kenneth Wibecan 	as 	follows:
Mr. 	Kenneth Wibecan worked 	in 	the District's
Public 	Information office 	as 	a 	public
information 	assistant 	from November 	1, 	1985
through February 12, 	1986. 	On February 12,
1986, 	Mr. 	Wibecan was hired by the District
as 	a 	Public Relations Consultant. 	Acting 	as
an agent of the District, 	Mr. 	Wibecan has
interfered with 	the 	internal 	operations 	of
the Charging Party. 	For example, 	attached
hereto, 	marked Exhibit "B", 	is a memorandum
dated April 30, 	1986 	from Mr. 	Wibecan to 	the
part-time 	faculty members 	of 	the District.
This 	memorandum 	attacks 	the 	union
leadership. 	Mr. 	Wibecan was not 	acting 	as
an 	individual 	faculty member 	in writing 	this
document. 	Rather, 	he was 	following 	the
directions 	of 	the District 	in 	attacking 	the
Charging 	Party.
By 	letter dated November 	13, 	1986, 	the general 	counsel's
office 	informed 	counsel 	for 	Charging 	Party of, 	among 	other
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things, 	deficiencies 	in CCCFE's 	allegation concerning Wibecan.
The 	portion 	of 	the 	letter 	addressing 	the 	subject 	of 	the
District's 	alleged 	interference with 	the 	internal 	operations 	of
CCCFE 	— 	vis-a-vis 	the 	activities 	of 	Wibecan 	— 	reads 	as
follows:
From November 	1, 	1985 	through February 	12,
1986, 	Kenneth Wibecan, 	a unit member, worked
in 	the District's 	public 	information office
as 	a public 	information assistant. 	On
February 	12, 	Wibecan was 	hired 	by the
District 	to work part-time 	as 	a 	public
relations consultant. 	On April 30, 	1986,
Wibecan distributed 	a memo 	(attached) 	to
part-time 	faculty members 	challenging 	the
union 	leadership 	and 	procedures 	at 	union
meetings. 	In this memo, 	Wibecan protested
the timing, 	lack of notice, 	the 	low number
of 	participants 	and 	general 	conduct 	of 	a
meeting 	at which 	a 	strike vote was 	held.
You 	allege 	that 	the 	District 	interfered with
the 	internal 	operations 	of CCCFE 	in
violation of EERA section 3543.5(d) 	by
directing, 	authorizing 	or 	ratifying
Wibecan's 	distribution 	of 	the April 	30 	memo
challenging 	CCCFE's 	procedures 	and
leadership. 	Section 3543.5(d) 	seeks 	to
protect 	the 	integrity of 	an 	employee
organization 	from 	the 	domination 	or 	control
of 	the employer 	so 	that 	it may make
wholehearted efforts 	on behalf 	of 	the
employees 	it 	represents. 	Santa Monica
Unified 	School 	District 	(1978) 	PERB Decision
No. 	52; 	Antelope Valley Community College
District 	(1979) 	PERB Decision No. 	97; 	Clovis
Unified 	School 	District 	(1984) 	PERB 	Decision
No. 	389. 	"Interference" 	constitutes a
lesser 	degree 	of 	intrusion 	than domination
but 	is 	equally unlawful. 	This 	term includes
intruding 	into 	the 	internal 	functioning 	of
an employee organization, 	setting up 	a 	rival
organization, 	or engaging 	in a campaign to
induce 	employees 	to 	support 	a particular
organization. 	Antelope Valley, 	supra: 	Jack
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Smith Beverage Co., 	Inc. 	(1951) 	94 NLRB 1401
[28 LRRM 1199]. 	Lending 	financial 	support
or 	encouraging membership 	in 	a 	particular
union has 	been 	found 	to 	constitute unlawful
"assistance." 	Azusa 	Unified 	School 	District
(1977) 	PERB Decision No. 	38; 	State of
California 	(Department 	of 	Corrections)
(1980) 	PERB Decision No. 	127-S; 	Sacramento
City Unified 	School 	District 	(1982) 	PERB
Decision No. 	214.
You do 	not 	allege 	facts which 	support 	a
prima 	facie violation of 	section 3543.5(d).
The 	only evidence which you 	have 	provided 	is
the April 	30 memo 	from Wibecan. 	Your 	bare
assertion 	that 	Wibecan 	distributed 	the 	memo
as 	an agent of 	the District, 	without more
fails 	to demonstrate 	"interference" 	by the
District. 	[Footnotes 	omitted.]
On November 	24, 	1986, 	CCCFE 	filed 	a 	third 	amended
charge which 	reads 	as 	follows:
Mr. 	Kenneth Wibecan worked 	in 	the District's
Public 	Information office 	as 	a 	public
information 	assistant 	from November 	1, 	1985
through February 12, 	1986. 	On February 12,
1986, 	Mr. 	Wibecan was hired by the District
as 	a 	Public Relations Consultant. 	Acting 	as
an agent of the District, 	Mr. 	Wibecan has
interfered with 	the 	internal 	operations 	of
the Charging Party. 	For example, 	attached
hereto, 	marked Exhibit 	"B", 	is a memorandum
dated April 30, 	1986 	from Mr. 	Wibecan to 	the
part-time 	faculty members 	of 	the 	District.
This 	memorandum 	attacks 	the 	union
leadership. 	Mr. 	Wibecan was 	not 	acting 	as
an 	individual 	faculty member 	in writing 	this
document. 	Rather, 	he was 	following 	the
directions 	of 	the 	District 	in 	attacking 	the
Charging 	Party.
On or about May 6, 	1986, 	Mr. 	Wibecan sent a
letter 	to 	all 	part-time 	instructors 	in 	the
District 	expressing 	his 	negative 	opinions
about 	the union. 	These 	letters were 	sent 	to
the 	home 	addresses 	of 	the 	part-time
employees. 	Those 	addresses 	are only
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available 	from District 	records. 	A
secretary 	employed 	by 	the 	District 	assisted
Mr. 	Wibecan 	in 	addressing 	and 	stamping 	the
envelopes.
On November 24, 	1986, 	the general counsel's 	office
acknowledged 	receipt 	and 	consideration 	of 	the 	third 	amended
charge 	and 	advised 	CCCFE 	by 	letter 	that 	a 	complaint 	would 	be
issued, 	but would 	not 	include 	the 	allegations 	concerning
Wibecan's 	activities.3 The 	general 	counsel's 	office
explained 	that 	its 	determination was 	based 	on 	the 	grounds
previously stated 	in its November 	13 	letter, 	i.e., 	that 	there
were 	insufficient 	facts 	alleged 	indicating 	that 	Wibecan was
acting 	as 	an 	agent 	for 	the District. 	The general 	counsel
subsequently dismissed 	the 	charges 	involving 	Wibecan.
DISCUSSION
On 	appeal 	CCCFE 	contends 	that 	an 	agency 	relationship 	is
established 	by 	the 	allegations 	that 	Wibecan was 	an 	employee 	of
the District, 	that he was 	in possession of 	a 	list of 	names 	and
addresses 	available only from District 	records, 	and 	that 	a
secretary of 	the 	District 	assisted Wibecan 	in 	addressing 	and
stamping 	the envelopes. 	The 	last 	two 	factual 	allegations were
3 The 	allegations 	upon which 	a 	complaint 	issued were 	that
the District: 	(1) 	unilaterally refused to permit 	a CCCFE
officer 	to 	attend 	District 	Board meetings 	on District 	time;
(2) 	delayed 	in providing 	names 	and 	addresses 	of 	part-time unit
members 	to 	CCCFE 	in violation of 	the collective 	bargaining
agreement; 	(3) 	refused to provide 	information 	regarding 	the
amount 	of 	funds 	spent 	by the District 	on 	legal 	fees 	for
collective 	bargaining; 	and 	(4) 	unilaterally distributed 	and
implemented 	the 	1986-87 	instructional 	calendar.
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made 	for 	the 	first 	time 	in CCCFE's 	third 	attempt 	at 	amending
the charge.
Pursuant 	to PERB Regulation 32615(a)(5), 	the charging party
must 	set 	forth 	a 	"clear 	and concise 	statement 	of 	the 	facts 	and
conduct 	alleged 	to 	constitute 	an unfair 	practice."4 The
purposes 	of PERB Regulation 32615(a)(5) 	are twofold: 	to
facilitate 	the 	regional 	attorney's 	review 	and 	investigation 	of
the 	charge 	and 	to 	give 	the 	respondent 	adequate 	notice 	of 	the
conduct 	alleged 	to 	have 	been violative 	of 	EERA.
PERB's 	regulations 	delineate 	the 	responsibilities 	of 	the
regional 	attorney as well. 	He or 	she must 	ascertain whether
the 	factual 	allegations 	in 	support 	of 	an unfair 	practice 	charge
are 	sufficient 	to 	establish 	a prima 	facie case. 	(PERB
Regulations 32620(b)(5), 	32630.) 	In connection therewith, 	the
regional 	attorney 	performs 	an 	investigatory 	function 	involving
the 	solicitation of 	facts 	from the 	parties 	for 	the 	limited
purpose 	of 	determining whether 	a 	prima 	facie 	case 	has 	been
alleged. 	State of California. 	Department of Developmental
Services 	(1987) 	PERB Decision No. 	551a-S. 	Regulation 32630
specifically commands 	the 	regional 	attorney to 	refuse 	to 	issue
a 	complaint 	if 	he or 	she 	"concludes 	that 	the charge 	or 	the
evidence 	is 	insufficient 	to 	establish 	a 	prima 	facie
case . 	. 	. 	." 	(Emphasis added.)
4PERB 	Regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	part III, 	section 31001, 	et seq,
77

Assuming, 	for purposes of 	this discussion only, 	that
Wibecan's 	circulation on April 	30 	of 	the 	petition was
sufficiently 	intrusive 	into 	the 	internal 	operations 	of 	CCCFE 	so
as 	to constitute 	interference, 	the only issue 	remaining 	is
whether Wibecan 	acted 	as 	an 	agent 	of 	the District 	in making 	the
distribution. 	We 	agree with 	the 	regional 	attorney 	that 	there
are 	insufficient 	facts 	alleged, 	even when considered 	in 	their
totality, 	to 	establish 	an 	agency 	relationship 	between Wibecan
and 	the 	District.
Wibecan 	is 	not 	alleged 	to 	have been 	a 	supervisory or
managerial 	employee 5 and our 	precedent 	establishes 	that, 	in
such a case, 	some 	factual demonstration of 	a 	relationship
beyond 	employment 	alone 	is 	necessary to 	impute 	or 	infer 	an
agency 	relationship. 	Moreland 	Elementary 	School 	District
(1982) 	PERB Decision No. 	227. 	For 	an agency relationship to
exist, 	CCCFE must 	allege 	facts which 	show that Wibecan was
acting with some direction, 	instigation, 	approval or
ratification of 	the 	action by the District. 	(NLRB v. 	American
Thread Co. 	(5th Cir. 	1953) 	32 LRRM 2094.)
Charging 	Party's 	original 	charge 	did 	not 	allege 	the
existence 	of 	an 	agency 	relationship 	between Wibecan 	and 	the
District. 	In 	fact, 	the 	first 	amended charge entirely omitted
50n	5on 	the 	contrary, 	we note that 	the charges 	and exhibits
indicate that Wibecan 	is 	a part-time 	journalism instructor, 	a
part-time 	Public 	Information Assistant/Consultant, 	and 	a 	member
of CCCFE.
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reference 	to 	the Wibecan matter. 	The 	allegation 	involving
Wibecan was 	reactivated 	in 	the 	second 	amended 	charge wherein 	it
is 	stated, 	"Acting 	as an agent of the District, 	Mr. 	Wibecan has
interfered with 	the 	internal 	operations 	of 	Charging 	Party." 	No
facts were offered, 	however, 	to support this 	allegation of
agency 	relationship, 	other 	than 	the 	conclusionary 	statement
that Wibecan 	"was 	following 	the directions 	of 	the District 	in
attacking 	the 	Charging 	Party." 	Indeed, 	the only 	additional
facts 	arguably 	relevant 	to 	this 	issue 	appeared 	for 	the 	first
time 	in 	the 	third 	amended 	charge, 	wherein Charging 	Party
states: 	(1) 	Wibecan sent 	a 	letter dated May 6, 	1984 	to 	all
part-time 	instructors 	expressing 	his 	negative 	opinions 	about
CCCFE; 	(2) 	the 	addresses used to mail 	the 	letters were
available only from the District 	records; 	and 	(3) 	a 	secretary
employed 	by 	the 	District 	assisted Wibecan 	in 	addressing 	and
stamping 	the 	envelopes.
By the 	foregoing 	allegations, 	Charging 	Party 	attempted 	to
amend 	a 	deficient 	charge. 	We 	agree with the 	regional
attorney's 	conclusion 	that 	the 	new 	factual 	allegations 	stated
in 	the 	third 	amended charge 	are 	of 	little 	assistance 	in curing
the deficiencies 	in 	the 	previously 	filed 	charges. 	We 	initially
note 	that 	the 	regional 	attorney was 	not 	even 	provided 	a 	copy of
the May 	6 	letter. 	We do 	not 	consider CCCFE's 	bare 	factual
allegation, 	that 	"the 	addresses used to mail 	the 	letters were
available only from the District 	records," 	as 	sufficient 	to
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establish 	a 	prima 	facie 	showing 	of 	an 	agency 	relationship
between Wibecan 	and 	the District. 	The 	insufficiency 	is
underscored by the 	fact 	that, 	by CCCFE's 	own 	admission, 	the
list 	of 	names 	and 	addresses, 	at 	least 	those of 	part-time unit
employees, 	was 	also 	in the possession of CCCFE on April 	18,
1986, 	before Wibecan's 	circulation of 	the petition on April 	30,
and well 	before 	the 	letter of May 6, 	1986.
The 	other 	allegation upon which CCCFE 	relies 	to 	establish
an 	agency 	relationship 	is 	that Wibecan was 	assisted 	by 	a
secretary of 	the District. 	CCCFE's 	allegation fails 	to 	set
forth 	facts which 	indicate 	the 	nature of 	the 	secretary's 	or
Wibecan's 	employment 	status 	that 	existed 	at 	the 	time 	the 	stamps
were 	purported 	to 	have 	been 	affixed 	to 	the 	envelopes. 	The
secretary may well 	have been 	a volunteer, 	and 	there 	are no
facts 	indicating control, 	direction, 	ratification or 	approval
by the District 	if 	a different 	status were 	occupied.
We conclude, 	therefore, 	that those 	facts which were
furnished 	the 	regional 	attorney 	fall 	short 	of 	demonstrating 	a
prima 	facie case of 	an 	agency 	relationship. 6
6 In 	response 	to 	our dissenting 	colleague, 	we disagree
with 	his 	contention 	that 	CCCFE's 	conclusionary 	allegation 	of
agency 	states 	a 	prima 	facie 	showing 	of 	an 	agency 	relationship
between Wibecan 	and 	the District. 	We 	initially note 	that
Charging 	Party 	never 	specifically 	alleged 	that 	the 	District
provided Wibecan with part-time unit 	members' 	names 	and
addresses. 	Nor 	do we 	agree 	that 	the 	regional 	attorney 	actually
credited 	the 	District's 	assertions 	that Wibecan does 	not
perform public 	relations work 	and 	that 	it was 	unaware 	of 	and
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6rn

did not 	authorize Wibecan's April 	30, 	1986 memo. 	The 	regional
attorney merely noted 	these 	contentions 	of 	the 	District,
without comment 	as 	to their validity, 	in footnotes 	to her
dismissal 	letter. 	One may 	surmise 	by her 	inclusion of 	the
District's 	response 	that 	she was 	alerting 	Charging 	Party of 	the
defects 	of 	the 	charge 	and 	enabling 	it 	one 	last 	opportunity 	to
amend 	and cure 	such deficiencies. 	Clearly, 	the District's
views were 	not 	integral 	to 	her 	legal 	conclusion 	that 	CCCFE's
factual 	allegations, 	even when considered 	in their 	totality,
did not 	state 	a 	prima 	facie case of 	agency. 	In this 	regard 	the
regional 	attorney was 	correct 	in concluding 	that 	Charging
Party's 	allegations 	of 	agency 	fail 	to 	meet 	the minimum
threshold 	requirement 	of 	alleging 	facts 	or 	evidence 	sufficient
to 	support 	a 	prima 	facie 	showing 	of 	any 	agency 	relationship.
Finally, 	as 	to our dissenting colleague's 	contention that 	a
demurrer 	standard 	is 	an 	appropriate 	one 	for 	testing 	allegations
stated 	in 	the 	charge, 	we would 	initially question 	the
application 	of 	such 	a 	standard 	in 	light 	of 	the 	critical
procedural 	differences 	between the 	filing 	of 	a 	civil 	lawsuit
and PERB's 	issuance of 	a complaint. 	For example, 	while 	a
plaintiff 	on his 	or 	her 	own 	initiative may 	file 	a 	complaint
with the court, 	here, 	only the general 	counsel decides whether
a 	complaint 	shall 	issue, 	and his 	authority to do 	so 	is 	limited
to 	those 	instances where the 	charge 	and 	the evidence 	state 	a
prima facie case. 	(PERB Regulations 32620(5), 	32630, 	emphasis
added; 	see Los Rio Community College District 	(1987) 	PERB
Decision No. 	638.) 	We would 	also note, 	even 	assuming 	arguendo
that 	a demurrer 	standard 	is 	proper, 	a 	court 	is 	not bound under
such 	a 	standard 	to 	accept 	plaintiff's 	conclusionary,
ineffectual 	or 	improperly pleaded 	allegations. 	Moncur 	v. 	City
of Los Angeles 	(1977) 	68 Cal.App.3d 118, 	121; 	3 Witkin, 	Cal.
Procedure 	(2d ed.) 	Pleading, 	p. 	2413. 	Finally, 	as to the
agency cases 	cited 	in 	the 	dissent, 	we 	have 	examined 	them 	and
find 	them 	inapplicable 	to 	the 	facts 	at 	hand.
ORDER
We 	hereby AFFIRM the 	decision 	of 	the 	regional 	attorney 	and
ORDER 	that 	portion 	of 	the 	unfair 	practice 	charge 	relating 	to
the 	actions 	of 	Kenneth Wibecan in case No. 	LA-CE-2393 	be
DISMISSED.
Member 	Porter 	joined 	in 	this 	Decision.
Member 	Craib's 	dissent 	begins 	on page 	12.
11	11

Member 	Craib, 	dissenting: 	I 	disagree with 	the position 	the
majority has 	taken 	for 	the 	reasons 	that 	follow.
In 	this 	case, 	the question before 	the Board 	is 	whether 	the
charging 	party has 	alleged 	sufficient 	facts 	to 	support 	the
claim 	that 	Wibecan's 	conduct 	interfered 	with 	the 	Federation's
internal 	operations. 	That allegation, 	in turn, 	rests on the
theory 	that Wibecan acted 	as 	an agent 	for 	the 	District. 	In 	my
view, 	rather 	than 	limiting her 	analysis 	to 	the 	assessment 	of
the Federation's 	prima 	facie 	case, 	the 	Board 	agent 	resolved 	the
ultimate 	factual 	issue 	and 	concluded 	that Wibecan was 	not 	the
District's 	agent. 	The majority 	similarly 	reviews 	the 	factual
allegations 	and 	finds 	them deficient 	and 	unable 	to 	support 	the
finding 	that 	an agency exists. 	While 	I 	might 	well 	reach 	the
same 	result 	if, 	after a hearing, 	the 	totality of 	evidence
presented 	in 	support 	of 	the 	Federation's 	claim was 	outweighed
by 	the 	District's 	evidence, 	the 	instant 	case 	does 	not 	present
that 	question. 	Rather, 	I 	find that 	the pleadings 	are
sufficient 	to 	constitute 	a 	prima 	facie 	showing of 	agency and 	I
would 	delay 	the 	final 	weighing 	of 	evidence 	until 	the 	Federation
has 	had 	an 	opportunity to make 	its 	presentation at hearing
before 	a 	Board 	administrative 	law 	judge.
In 	the 	instant 	case, 	the 	Federation alleges 	that Wibecan
was 	an agent 	of 	the 	District 	and was 	not 	acting as 	an
individual 	faculty member. 	The 	Federation's 	charge 	also
specifies 	the particular 	theory on which 	it bases 	its 	assertion
of 	agency. 	It 	states 	that Wibecan was 	"following 	the
12

directions 	of 	the 	District 	in attacking 	the 	Charging 	Party."
In 	support 	of 	the 	assertion 	that 	the 	District 	directed
Wibecan's 	conduct, 	the 	Federation alleges 	that Wibecan was
provided 	with part-time 	employees' 	home 	addresses 	and 	that 	the
addresses 	were 	only 	available 	from District 	records. 1 It 	is
noteworthy 	that 	a 	complaint 	issued based 	on 	the 	allegation 	that
the 	District 	delayed 	in providing 	the 	names 	and 	addresses 	of
part-time employees 	to the 	Federation. 	In addition, 	the 	charge
also 	includes 	the 	allegation 	that 	a 	secretary 	assisted Wibecan
in 	addressing 	and 	stamping 	the 	envelopes 	mailed 	to 	unit
employees. 	Preferential 	access 	to employees' 	addresses plus
use of 	support 	staff are 	two facts 	that, 	if 	true, 	lend support
to 	the 	Federation's 	theory 	that 	the 	District 	directed Wibecan's
conduct. 	Thus, 	I 	find sufficient 	factual 	allegations 	to
satisfy 	the 	requirement 	that 	the 	charging party 	established 	a
prima 	facie 	case 	of 	interference by 	the 	conduct 	of 	the
District's 	agent. 	It 	is 	not necessary, 	at 	the pleading stage,
for 	the 	Federation 	to 	delineate 	with 	great 	specificity 	the
manner 	or 	circumstances 	in which 	the 	District 	allegedly
directed 	Wibecan's 	actions.
1While 	the 	Federation 	apparently 	received 	a 	list 	of 	the
addresses 	from 	the 	District before Wibecan 	sent his
controversial memo, 	implicit 	in the Federation's 	allegation 	is
that 	Wibecan 	did 	not 	receive 	the 	list 	from 	the 	Federation 	and,
thus, 	the District was 	the only possible 	source.
13

In 	its 	appeal, 	the 	Federation raises 	arguments 	that bear
repeating 	and 	that 	focus 	on 	the 	central 	issue 	raised by 	this
case. 	The 	Federation takes 	issue with 	the Board 	agent's
apparent 	acceptance 	of 	two critical 	assertions 	made by 	the
District 	and her 	apparent 	willingness 	to 	credit 	the 	assertions
that 	Wibecan 	does 	not 	perform public 	relations 	work 	and 	that
the 	District 	was 	unaware 	of 	and did 	not 	authorize Wibecan's
April 	30, 	1986 	memo. 	These 	factual 	issues 	could have 	some
bearing 	on 	the 	question of 	agency 	and 	should 	not be 	resolved 	in
Respondent's 	favor, 	particularly when 	age-old 	Board 	precedent
clearly 	instructs 	to the 	contrary; 	i.e., 	that 	factual
allegations 	in an unfair 	practice 	charge 	are 	to be 	considered
true 	for 	purposes 	of 	assessing 	the prima 	facie 	case. 	San Juan
Unified 	School 	District 	(1977) 	EERB Decision No. 	12.2
Related to 	this 	contention, 	the 	Federation argues 	that, 	at
this 	juncture, 	it has provided as much 	information as 	it 	can
reasonably be 	expected to assemble. 	I 	agree. 	Should 	the
Federation hope 	to 	establish 	agency by demonstrating, 	for
example, 	that 	the 	secretary was 	authorized by 	the 	District 	to
assist Wibecan, 	it 	seems 	unlikely that 	that 	information would
be 	forthcoming 	from 	that 	District 	official, 	from Wibecan, 	or
from the 	secretary. 	However, 	through cross-examination, 	the
Federation may be 	able 	to 	ask 	questions 	that 	will 	demonstrate
2Prior 	to January 1, 	1978, 	PERB was 	known as 	the
Educational 	Employment 	Relations 	Board.
14

that 	the 	District 	directed 	its 	employee 	to provide 	information,
to work 	overtime, 	to use District 	facilities, 	etc. 	Indeed,
since 	the 	question 	of 	agency here 	depends 	on whether 	Wibecan
acted 	on behalf 	of 	or with 	the 	encouragement 	or 	aid 	of
management, 	the 	charging party's 	access 	to all 	relevant 	facts
is 	necessarily 	limited and 	it 	should be 	given 	the 	chance 	to
cross-examine 	District 	witnesses 	under 	subpoena. 	Had 	the
majority 	so directed, 	the 	Board would have 	continued 	to
recognize 	that 	the 	question of 	agency 	is 	one 	for 	the 	trier 	of
fact 	to 	determine 	after 	examining all 	relevant 	evidence,
including 	testimony 	produced 	during 	the 	evidentiary hearing.
See 	Antelope 	Valley 	Community 	College 	School 	District 	(1979)
PERB 	Decision No. 	97; 	Santa Clara Unified 	School 	District
(1979) 	PERB Decision No. 	104; 	San Diego Unified School District
(1980) 	PERB Decision No. 	137; 	Moreland Elementary School
District 	(1982) 	PERB Decision No. 	227.
The 	central 	issue 	raised by 	this 	case 	is 	not 	new. 	Rather,
it 	is 	one 	that has 	plagued 	this 	Board 	in 	the past 	and 	concerns
the 	application of 	the Board's 	regulation 	that 	a 	charge be
dismissed 	if 	it 	or 	the 	evidence 	is 	insufficient 	to establish 	a
prima 	facie 	case. 	See PERB Regulation 32620(b)(5). 	While 	it
is 	perhaps 	difficult 	to resist 	assessing 	the merits 	of 	the 	case
or 	judging 	the 	credibility of 	the 	facts 	as pled, 	it 	is my view,
and 	the 	Board has 	so held 	in 	the past, 	that 	the 	Board agent
errs 	when he/she weighs 	the 	evidence presented, 	rather 	than
examining 	the 	factual 	allegations 	as 	if 	true 	and measuring 	them
15

up 	against 	the 	necessary 	elements 	of 	an 	alleged 	violation 	of
the Act. 	See Modesto City Schools 	and 	High 	School 	District
(1985) 	PERB Decision No. 	552; 	Riverside Unified School 	District
(1986) 	PERB Decision No. 	571; 	Cupertino Union Elementary School
District 	(1986) 	PERB Decision No. 	572. 	The Board agent 	in this
case 	so 	erred 	and 	so has 	the majority.
In my view, 	a 	challenge 	to 	the 	sufficiency of 	the pleadings
of 	an 	unfair 	practice 	charge 	should be 	considered 	a 	challenge
in 	the 	nature 	of 	a 	demurrer 	and 	should 	raise 	only an 	issue 	of
law 	regarding 	the 	sufficiency of 	the 	allegations 	set 	out 	in 	the
pleadings. 	See 	California Code of 	Civil Procedure, 	section
589; 	James v. 	Superior Court 	(1968) 	261 Cal.App.2d 415. 	A
demurrer 	tests 	the pleadings alone, 	not 	the evidence, 	and lies
only where 	defects 	appear 	on 	the 	face 	of 	the pleadings. 	See
Witkin, 	California Procedure 	(3rd), 	Pleading, 	section 894 et
seq. 	For 	the purpose 	of 	testing the 	sufficiency of 	the 	cause
of 	action, 	the demurrer 	admits 	the 	truth of all material 	facts;
no matter how 	unlikely or 	improbable, 	plaintiff's 	allegations
must be 	accepted as 	true 	for 	the purpose 	of 	ruling on 	a
demurrer. 	Erevan 	v. 	Title 	Insurance 	and Trust Co. 	(1983) 	147
Cal.App.3d 	225. 	Furthermore, 	plaintiff's possible 	inability or
difficulty 	in proving 	the 	allegations 	of 	the 	complaint 	is 	of 	no
concern. 	Gutenberg 	v. Aetna 	Insurance Co. 	(1973) 	9 Cal.3d
566. 	Since 	the 	existence 	of agency 	is 	a 	factual 	question
(Anthony v. 	Angler 	(1976) 	61 Cal.App.3d 872; 	Witkin, 	Summary of
California Law 	(8th), 	Agency, 	section 80), 	the only question
1
16

before 	the Board 	is whether, 	as a matter 	of 	law, 	the
Federation's 	claim 	that Wibecan acted 	under 	the 	District's
direction 	is 	sufficient. 	I believe 	it 	is 	and would 	reverse 	the
Board 	agent's 	dismissal.
California 	case 	law 	sustains 	this 	conclusion. 	In Meyer 	v.
Graphic Arts 	International 	Union 	(1979) 	88 	Cal.App.3d 	176, 	the
Court 	expressly held 	that 	the 	plaintiff's 	allegation 	that
individuals 	"were 	agents 	and 	employees 	of 	their 	codefendants,
and, 	in doing 	the 	things herein mentioned, 	were 	acting within
the 	scope 	of 	such agency and employment" 	was 	"sufficient 	to
withstand a general 	demurrer." 	Id. 	at p. 	178. 	"Under 	the
facts here alleged, 	namely, 	that 	the employees acted as 	the
agent 	of 	the 	employer 	within 	the 	scope 	of 	their 	agency, 	an
employer 	may be held 	liable 	in a civil 	action." 	Id. 	at pp.
178-79. 	In accord, 	see 	Iverson v. 	Atlas Pacific Engineering
(1983) 	143 	Cal.App. 	3d 219; 	Halliman v. Los Angeles Unified
School 	District 	(1984) 	163 	Cal.App.3d 46; 	Lagies 	v. 	Copley
(1980) 	110 	Cal.App.3d 970 	and cases 	cited 	therein; 	Kerivan v.
Title 	Insurance and Trust Co., 	supra,; 	Roberts v. 	Pup 	'N' 	Taco
Driveup 	(1984) 	160 	Cal.App.3d 283.
Thus, 	it appears 	that 	the Board 	is 	applying something other
than a demurrer 	standard. 	If 	this 	is 	so, 	the Board must
articulate 	just what 	that 	standard 	is 	in order 	to provide
guidance 	to 	the parties 	practicing before 	the Board. 	The
parties 	have 	should 	not be 	subject 	to having 	the 	sufficiency of
their 	charges 	evaluated based 	upon 	an 	inconsistent 	and
amorphous 	standard.
17