Pomona Unified School District (PERB 1105E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	POMONA
CHAPTER 	#14,
Charging 	Party,
v.
POMONA UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3492
PERB Decision No. 	1105
May 	18, 	1995
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Appearance: 	California School 	Employees Association by
Sol Allen, 	for California School 	Employees Association and 	its
Pomona Chapter #14.
Before Garcia, 	Johnson and Caffrey, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on an appeal 	filed by the 	California
School 	Employees Association and 	its 	Pomona 	Chapter #14
(Association) 	of a Board agent's dismissal 	(attached) 	of 	its
unfair practice 	charge 	for 	failure 	to 	state a prima 	facie 	case.
In its 	charge, 	the Association alleged that 	the 	Pomona Unified
School District violated section 3543.5(b) 	and 	(d) 	of 	the
Educational 	Employment Relations Act 	(EERA) 	by 	contributing
support 	to another employee 	organization.1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 provides, 	in pertinent part, 	that:
It 	shall 	be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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The 	Board has 	reviewed the entire 	record 	in this 	case,
including 	the warning and dismissal 	letters, 	the Association's
unfair practice 	charge, 	and its appeal. 	The Board finds 	the
warning 	and dismissal 	letters 	to be 	free 	of 	prejudicial 	error and
adopts 	them as 	the 	decision of 	the 	Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-3492 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Johnson and 	Caffrey 	joined 	in 	this 	Decision.
(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.
22

STATE OF 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
February 22, 	1995
Sol Allen, 	Labor Relations Representative
California 	School 	Employees 	Association
10211 Trademark Street, 	Unit A
Rancho Cucamonga, 	California 91730
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT, 	Unfair 	Practice
Charge No. 	LA-CE-3492, 	California School Employees
Association and its 	Pomona Chapter #14 v. 	Pomona Unified
School 	District
Dear Mr. 	Allen:
In 	the above-referenced 	charge, 	the 	California School 	Employees
Association and its 	Pomona Chapter #14 	(CSEA) 	alleges 	that 	the
Pomona Unified School 	District 	(District) 	contributed 	support 	to
another 	employee 	organization. 	This 	conduct 	is 	alleged to
violate Government Code 	sections 	3543.5(b) 	and 	(d) 	of 	the
Educational Employment Relations Act 	(EERA).
I 	indicated to you, 	in my attached letter dated January 26, 	1995,
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
February 3, 	1995, 	the charge would be dismissed. 	I later
extended the deadline to February 10, 	then February 17, 	and
finally February 21, 	1995.
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 my January 26 	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
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:
==----==------==-- 	--
\

LA-CE-3492
February 22, 	1995
Page 2
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.)
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 THOMAS J. 	ALLEN
Regional 	Attorney
Attachment

STATE OF CALIFORNIA 	PETE W I L S O N , Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
January 26, 	1995
Sol Allen, 	Labor Relations 	Representative
California 	School 	Employees 	Association
10211 Trademark Street, 	Unit A
Rancho Cucamonga, 	California 91730
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3492,
California 	School 	Employees Association and 	its 	Pomona
Chapter #14 	v. 	Pomona Unified School 	District
Dear Mr. 	Allen:
In 	the above-referenced 	charge, 	the 	California School 	Employees
Association and its 	Pomona Chapter #14 	(CSEA) 	alleges 	that 	the
Pomona Unified School 	District 	(District) 	contributed 	support 	to
another employee 	organization. 	This 	conduct 	is alleged 	to
violate Government 	Code sections 	3543.5(b) 	and 	(d) 	of 	the
Educational Employment Relations Act 	(EERA) .
My 	investigation 	of 	the 	charge 	reveals 	the 	following 	relevant
facts.
CSEA is 	the 	exclusive 	representative 	of 	a unit 	of 	the District's
classified employees. 	In its 	charge, 	filed on October 27, 	1994,
CSEA alleges 	in 	relevant 	part 	as 	follows:
On or about October 20, 	1994, 	California
School 	Employees Association 	[CSEA] 	received
information 	indicating 	that 	District
personnel, 	without 	authorization from the
affected unit members, 	released the names and
home 	addresses 	of 	these 	employees 	to 	the
Laborer's 	International 	Union 	of 	North
America 	(LIUNA), 	to aid its organizing of
classified employees 	of 	the District. 	Unit
members 	then 	received 	literature 	from LIUNA.
Among 	the 	classified 	employees 	whose
addresses 	were 	released were 	School 	Safety
Officers, 	who as Peace Officers, 	had their
safety 	compromised by 	the 	publication 	of
their home 	addresses 	to 	this 	organization.

C
LA-CE-3492
January 26, 	1995
Page 2
On October 21, 	1994, 	the District Director of Classified
Personnel 	issued 	the 	following memo 	to 	CSEA bargaining 	unit
employees:
It 	has 	been brought 	to my attention that 	a
number 	of 	CSEA bargaining unit 	members
received a mailing 	to 	their 	home 	addresses
from a group 	called, 	on the 	return envelope,
"P.U.S.D. 	Classified Employees 	for Better
Representation."
Apparently a 	number 	of 	employees mistakenly
thought 	that 	the mailing 	came 	from the 	Pomona
Unified School 	District. 	Please be assured
that 	this 	is not 	the case. 	Further, 	the
District 	did not 	authorize 	the 	release 	of
employees' 	home addresses 	from our records 	to
this group. 	If 	it 	is determined that any
District 	employee 	released employees' 	home
addresses 	from our 	records 	without
authorization, 	serious 	disciplinary action
will 	result.
In its 	response to the 	charge, 	the District states 	that 	it also
launched an 	investigation 	into 	all 	possible 	sources 	of
disclosure, 	in 	consultation with an 	independent 	computer
specialist.
In our telephone 	conversation of January 25, 	1995, 	you told me
that 	you 	could not 	name 	the 	individual 	who 	released 	the 	addresses
and that 	it 	could have been any of 	5 	payroll 	employees. 	You
argued 	that 	the District 	should have 	had safeguards 	against 	the
release of 	the addresses.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state a
prima 	facie violation of 	the 	EERA, 	for 	the 	reasons 	that 	follow.
In order 	to 	constitute a violation of 	EERA, 	alleged conduct must
be attributable 	to an agent 	of 	the 	respondent 	(in this 	case, 	the
District) 	acting within the 	scope of his 	or her authority.
(Inglewood Unified School District 	(1990) 	PERB Decision No. 	792.)
The present 	charge 	does 	not 	identify who 	released 	the 	addresses,
nor does 	it 	allege 	any 	facts 	which show that 	it 	was 	an agent 	of
the District 	acting within 	the 	scope 	of 	his 	or her authority.
The 	charge 	does 	not 	allege 	facts which 	show that 	the District
itself 	was 	involved 	in the 	release of 	the addresses, 	or knew
about 	the 	release at 	or before 	the 	time 	it was done, 	or condoned
or ratified the 	release after it was 	done. 	On the 	contrary, 	the
District's memo of October 21, 	1994, 	indicates 	that the District
did not 	condone 	or 	ratify 	the 	release 	of 	the 	addresses.
(

LA-CE-3492
January 26, 	1995
Page 3
You have 	argued 	that 	the 	District was 	negligent 	about
safeguarding 	the 	addresses 	from release. 	The 	charge alleges 	no
facts, 	however, 	from which 	it 	is apparent how the District was
negligent, 	or even what 	it 	could have done 	to safeguard the
addresses more effectively. 	In any case, 	there appears 	to be no
legal 	basis 	for 	finding a violation of 	EERA if 	a 	respondent 	was
merely 	negligent 	about 	safeguarding 	information.1
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 	February 3, 	1995, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
1In our telephone conversation of January 25, 	1995, 	you
argued 	that 	the 	release 	of 	the 	addresses 	violated Government 	Code
section 	6254.3, 	but 	that Government 	Code 	section 	is neither part
of 	EERA nor 	incorporated by 	reference.
(