Morgan Hill Unified School District (Caviglia) (PERB 1120E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD ~
GARY 	CAVIGLIA,
Charging 	Party,
v.
MORGAN HILL 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	SF-CE-1805
PERB Decision No. 	1120
October 13, 	1995
Appearances: 	Gary Caviglia, 	on his own behalf; 	Littler,
Mendelson, 	Fastiff, 	Tichy & Mathiason by Richard J. 	Loftus, 	Jr.
and Sarah C. 	Wilson, 	Attorneys, 	for Morgan Hill Unified School
District.
Before Garcia, 	Johnson and Caffrey, 	Members.
DECISION
GARCIA, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by Gary Caviglia
(Caviglia) 	of a Board agent's dismissal 	(attached) 	of his unfair
practice 	charge. 	In his 	charge 	Caviglia alleged that 	the Morgan
Hill 	Unified School 	District 	(District) 	failed to meet 	and
negotiate with his 	exclusive 	representative, 	the Service
Employees International Union, 	Local 	715, 	AFL-CIO 	(SEIU) 	in
violation of 	the 	Educational 	Employment 	Relations Act 	(EERA)
section 3543.5 (c).1
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	reads, 	in pertinent part
It 	shall 	be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
)
)
)
)
)
)
)
)
)
)
_______________ )

The Board has 	reviewed 	the unfair practice 	charge, 	the
warning and dismissal letters, 	Caviglia's appeal, 	and the
District's 	opposition to 	the appeal. 	The 	Board affirms 	the 	Board
agent's 	dismissal 	consistent 	with 	the 	following discussion.
CAVIGLIA'S 	APPEAL
Caviglia 	filed an appeal 	that 	repeats 	the 	allegations 	he
made 	in his unfair practice charge, 	i.e., 	that he was harmed by
the manner 	in which 	the District 	and SEIU handled 	the 	settlement
negotiations 	over his 	termination, 	and their conduct 	amounted to
a violation 	of 	EERA.
DISTRICT'S 	OPPOSITION TO APPEAL
The 	District 	filed an opposition 	to 	the appeal 	stating 	that
Caviglia's 	appeal 	does not 	comply with PERB Regulation 	32635.2
Also, 	the District 	agrees 	with the Board agent's 	conclusion 	that
Caviglia 	lacks 	standing 	to 	allege 	a violation by 	the District 	of
its 	duty to bargain 	in good 	faith.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with an exclusive 	representative.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	Regulation 32635
reads, 	in pertinent part:
The appeal 	shall:
(1) 	State the specific 	issues 	of procedure,
fact, 	law or rationale to which the appeal 	is
taken;
(2) 	Identify the page or part 	of 	the
dismissal 	to which each appeal 	is 	taken;
(3) 	State 	the grounds 	for each issue 	stated.
2

DISCUSSION
Caviglia's 	appeal 	restates 	his 	earlier 	claims 	and 	fails 	to
identify grounds 	for reversal. 	The Board has 	repeatedly held
that merely 	restating 	claims 	does 	not 	satisfy 	the 	requirements 	of
Regulation 32635.3 Furthermore, 	the Board affirms 	that
individual 	employees 	lack standing 	to 	file 	a 	charge 	with 	PERB 	to
allege a violation of 	EERA section 3543.5(c).
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-1805 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Caffrey 	joined 	in 	this 	Decision.
3See, 	e.g., 	University Council 	- American Federation of
Teachers 	(Chan) 	(1994) 	PERB Decision No. 	1062-H; 	Teamsters Local
13 7 	(Illum/DeMuro) 	(1995) 	PERB Order No. Ad-265; 	and California
School 	Employees Association and 	its 	San Juan Chapter #127 	(Hare)
(1995) 	PERB Decision No. 	1089.
33

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) 557-1350
July 13, 	1995
Gary 	Caviglia
Re: 	DISMISSAL 	OF UNFAIR PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Gary Caviglia v. 	Morgan Hill 	Unified School 	District
Unfair Practice Charge No. 	SF-CE-1805
-
Dear Mr. 	Caviglia:
The 	above-referenced unfair practice 	charge, 	filed 	on May 	3,
1995, 	alleges 	that 	the Morgan Hill Unified School 	District
(District) 	failed 	to meet 	and negotiate 	in good 	faith with 	the
Service Employees International Union, 	Local 715, 	AFL-CIO 	(SEIU),
the 	exclusive 	representative 	of Gary Caviglia's 	bargaining unit.
This 	conduct 	is 	alleged 	to violate Government 	Code 	section
3543.5(c) 	of the Educational Employment Relations Act 	(EERA).
I 	indicated to you, 	in my attached letter dated June 27, 	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 July
11, 	1995, 	the charge would be dismissed.
On July 10, 	1995, 	Caviglia 	submitted a letter containing
corrections 	to the 	statement 	of 	facts 	set 	forth in the June 27,
1995 	letter.
Caviglia indicates 	that 	the December 19, 	1994 	letter from the
District was 	not 	a notice 	that 	it 	intended to proceed with
terminating his 	employment. 	Rather it was a notice that 	the
District 	intended 	to 	recoup 	its 	alleged 	overpayment 	resulting
from his 	leaving work early. 	Nevertheless, 	Caviglia was 	aware of
the District's 	intent 	to 	terminate because 	of 	the 	"Skelly"
hearing 	that 	was 	held. 	Other allegations 	included 	in Caviglia's
July 10, 	1995 do not appear to be material 	to charge.
The 	additional 	allegations 	are 	insufficient 	to 	overcome 	the
deficiencies noted in the undersigned's June 27, 	1995 	letter.
Therefore, 	I am dismissing 	the 	charge based on 	the 	facts 	and
reasons 	stated above and those 	contained 	in my June 	27, 	1995
letter.

( ' •
Dismissal 	Letter
SF-CE-1805
July 13, 	1995
Page 2
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
SF-CE-1805
July 13, 	1995
Page 3
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
DONN GINOZ	VULA	A
Regional 	Attorney
Attachment
cc: 	Sarah C. 	Wilson
n

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) 557-1350
June 27, 	1995
Gary 	Caviglia
Re: 	WARNING LETTER
Gary Caviglia v. 	Morgan Hill 	Unified School 	District
Unfair Practice Charge No. 	SF-CE-1805
Dear Mr. 	Caviglia:
The above-referenced unfair practice 	charge, 	filed on May 	3,
1995, 	alleges 	that 	the Morgan Hill Unified School District
(District) 	failed to meet 	and negotiate 	in good 	faith with 	the
Service Employees International Union, 	Local 715, 	AFL-CIO 	(SEIU),
the 	exclusive 	representative 	of Gary Caviglia's 	bargaining unit.
This 	conduct 	is 	alleged 	to violate Government 	Code 	section
3543.5(c) 	of the Educational Employment Relations Act 	(EERA).
Investigation 	of 	the 	charge 	revealed 	the 	following. 	Caviglia was
employed as 	a 	custodian by 	the District 	prior 	to 	his 	resignation
in January 1995. 	In a memorandum to Caviglia dated December 	6,
1994, 	the District accused Caviglia of 	leaving one hour and
twenty minutes 	early every night 	for 	four months. 	The District
also demanded return of 	the alleged overpayment, 	calculated at
$11.37 per hour 	for 77 hours. 	Caviglia was 	represented in a
"Skelly" 	hearing by SEIU steward Jesus 	Estrada 	on December 	12,
1994. 	By letter dated December 19, 	1994, 	the District 	informed
Caviglia 	that 	it 	would proceed with 	its 	intended 	termination,
effective January 13, 	1995. 	SEIU voted not 	to support 	Caviglia
in an appeal 	of 	the 	termination.
According 	to SEIU, 	Caviglia 	indicated that 	he would not 	contest
the 	termination but 	wished 	to 	negotiate 	a 	substitute 	result.
SEIU negotiated 	an agreement 	whereby 	the 	resignation date 	was
extended to January 20, 	1995, 	Caviglia would receive unemployment
benefits, 	vacation pay and wages 	from January 	1 	through January
20, 	1995. 	SEIU provided to the undersigned a copy of 	a
handwritten memorandum purporting 	to be 	from Caviglia 	to 	Lee
Cunningham, 	Director of 	Personnel, 	file stamped on January 13,
1995, 	stating that his 	resignation date would be January 20,
1995. 	In a subsequent memorandum, 	Caviglia wrote 	to Cunningham
the 	following: 	"I was 	in error on my resignation date. 	It 	should
read 	. 	. 	'Effective 31 January 1995.'" 	This memorandum was 	left
on Cunningham's desk on January 31, 	1995.
In response 	to 	this 	change, 	the District 	took the position that
it 	was 	excused 	from performance 	of 	the 	initial 	settlement
-- 	----

Warning 	Letter
SF-CE-1805
June 27, 	1995
Page 	2
agreement based on Caviglia's breach of 	its 	terms 	and
consequently withheld $843.92 	(the amount 	it 	contended was 	owed
by 	Caviglia) 	from Caviglia's 	final paycheck. 	SEIU representative
Kazi 	Fried spoke 	to 	Cunningham on February 3, 	1995 	regarding 	the
matter. 	According to SEIU, 	the District proposed to restore 	the
deducted amount 	if 	Caviglia would agree 	to a 	repayment 	plan.
SEIU 	refused 	to 	accept 	this 	offer and 	insisted 	on 	the 	original
terms 	of 	the agreement.
By letter dated March 25, 	1995, 	Caviglia complained to SEIU
President Marlene 	Smith that 	the District 	had yet 	to 	repay 	the
$843.92 	and had 	incorrectly 	calculated his 	pay 	for 	the month 	of
January 1995. 	The 	figure was 	short between $126.70 	and 	$190.52.
According 	to 	Caviglia, 	Fried 	told him that 	Cunningham had
admitted that 	deduction of 	the 	$843.92 	was 	illegal 	and 	that 	the
money 	would be 	restored.
Caviglia 	alleges 	that 	the District 	failed 	to 	return 	telephone
calls made by SEIU, 	and as a result, 	a face-to-face meeting of
the 	principals 	involved and a 	reasonable 	settlement 	failed 	to
materialize.
Based on the 	facts 	stated above, 	the 	charge as presently written
fails 	to 	state 	a prima 	facie violation of 	the EERA for 	the
reasons 	that 	follow.
Caviglia 	lacks 	standing 	to allege 	that 	the District 	has 	failed 	to
meet 	and negotiate 	in good 	faith with SEIU. 	In Oxnard School
District 	(1988) 	PERB Dec. No. 	667, 	the Public Employment
Relations Board 	(PERB) 	noted that section 3543.5(c) 	makes 	it
unlawful 	for a public 	school 	employer to 	"refuse 	or 	fail 	to meet
and negotiate 	in 	good 	faith with an exclusive 	representative."
PERB 	further noted 	that 	section 	3543.2 	requires 	the 	employer 	to
meet 	and 	negotiate 	"with and only with 	representatives 	of
employee 	organizations 	selected as 	exclusive 	representative 	of
appropriate units." 	(Id. 	at pp. 	8-9; 	emphasis 	in original.)
Based on this 	scheme of 	reciprocal duties, 	PERB held that 	the
employer's 	duty 	to negotiate 	is 	owed only to the 	exclusive
representative 	employee 	organization, 	and consequently, 	declined
to grant 	individual 	employees 	the 	right 	to 	compel 	enforcement 	of
this 	duty 	through an unfair practice 	charge 	directed 	against 	the
employer. 	(Id., 	at p. 	9.) 	In short, 	Oxnard School District held
that 	employees 	are permitted only to 	enforce 	their 	individual
rights and not 	those of an organizational nature. 	(Id.. 	at p.
12.) 	The 	charge appears 	only to allege a violation of 	an
organizational 	right 	under 	the 	EERA and must 	therefore 	be
dismissed.
(

Warning Letter	Warning 	Letter
SF-CE-1805	SF-CE-1805
June	June 27, 1995	27, 	1995
Page 3	Page 	3
For these reasons the charge, as presently written, does not	For 	these 	reasons 	the 	charge, 	as 	presently written, 	does 	not
state a prima facie case. If there are any factual inaccuracies	state 	a 	prima 	facie 	case. 	If 	there are 	any 	factual 	inaccuracies
in this letter or additional facts which would correct the	in 	this 	letter or additional 	facts 	which would 	correct 	the
deficiencies	deficiencies explained above, please amend the charge.	explained above, 	please 	amend 	the 	charge. 	The	The
amended charge should be prepared on a standard PERB unfair	amended 	charge 	should be 	prepared 	on a 	standard 	PERB 	unfair
practice	practice charge form, clearly labeled First Amended Charge,	charge 	form, 	clearly 	labeled First 	.Amended Charge,
contain all the facts and allegations you wish to make, and	contain g,lJ.. 	the 	facts 	and 	allegations 	you 	wish 	to 	make, 	and
be signed under penalty of perjury by the charging party.	be 	signed under penalty of 	perjury by 	the 	charging party. 	The	The
amended charge must be served on the respondent and the original	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	proof 	of 	service must be 	filed 	with PERB. 	If 	I 	do 	not 	receive 	an
amended charge or withdrawal from you before July 11, 1995, I	amended 	charge 	or withdrawal 	from you before July 11, 	1995, 	I
shall dismiss your charge. If you have any questions, please	shall 	dismiss 	your 	charge. 	If 	you 	have 	any 	questions, 	please
call	call me at (415) 557-1350.	me 	at 	(415) 	557-1350.
Sincerely,	Sincerely,
DONN 	GINOZA
Regional 	Attorney
(