PERB Order No. A064E•Los Angeles Community College District (Kimmett) (PERB A064E)
Los Angeles Community College District (Kimmett) (PERB A064E)
PERB Order No. A064ECalperb30 apr 1979
Testo completo
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD JULES KIMMETT, Charging Party, APPELLANT, V. LOS ANGELES COJ:1MUNITY COLLEGE DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) ) ____________________ ) Case No. LA-PN-5 PERE Order No. Ad-64 Administrativ.e Appeal April 30, 1979 . Appearance: Jules Kirnmett, representing himself. Before Gluck, Chairperson; Gonzales and Moore, Members. DECISION AND ORDER The dismiss?l of the complaint herein by the Los Angeles Regional Director is hereby sustained by the Board itself. A copy of the dismissal is attached. The Board finds the regional director correctly determined that the complaint raised issues outside the jurisdiction of the Public Employment Relations Board and failed to state a cause of action under section 3547 of the Educational Employment Relations Act. The decision is therefore affirmed in its entirety. PER CURIAM
PUBL1C EXPLO~.Em' REμ.TIONS BOARD OF THE STATE OF CALIFORNIA JULES KIMMET'l', Complainant, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) ) _________________ ) Case No. LA-PN-5 ORDER OF DISMISSAL WITH PREJUDICE NOTICE OF RIGHT TO APPEAL PROCEDURAL HISTORY On September 20, 1978 a letter was received from Mr. Jules Kimmett which purported to complain of alleged violations of California Government Code section 3547 et.~- 1 by the Los Angeles Community College District. On October 6, 1978, the Los Angeles Regional Director, Public Employment Relations Board (hereafter PERE), verbally informed the Conplainant that his complaint did not state a claim under EERA section 3547 and did not comply with the requirements of California Administrative Code, title 8, section 37020. 2 On October 23, 1978, Mr, Kimmett filed another document incorporating his first letter and setting forth certain facts required by PERE Regulation section 37020. lEereafter referred to as "EERA", Educational Employment Relations Act or "the Act." 2 aereafter all references to California Administrative Code are referred to as "PERB Regulation section ___ "
Mr. Kir.lmet-:: complains t:iat the Los Angeles Ccmmunity College District violated EZR.-\ Article 8, section 3547 (e) by adopting its 1978-1979 budget at a meeting on August 30, 1978, at 1:30 P.M. when only 13 persons were present. E.E.,qA section 3547 ~t. ~eq. provides in relevant part: 3547. (a) All initial proposals of exclusive representati~1es and of public sc..~col employers, which relate to ~atters within the scope of representation, shall be presented at a public meeting of the public school employer and thereafter shall be public records •••• (e) The Board may adopt regulations for the purpose of implementing this section, which are consistent wit:i the intent of tbe section; na.~ely, that the public be infor:ned of t..~e issues that are being negociated upon and have a full opportunity to express their views on tne issues to the public school employer, and to know of the positions of their elected representativ~s. PERS regulations provide a procedure for filing, processing and review of complaints which allege violation cf EERA, section 3547. In relevant part the regulations state: 37010, Filinq of Comolaint. A complaint alleging that an employer or an exclusive representative has failed to comply with Government Code section 3547 may be filed in the appropriate regional office by any individual who is a resident oft.he school district involved in the complaint or who is the parent or guardian of a student in the school district or is an adult student in the district ..••• 2
37070. Obliqations of the Regional Director. (e) If the complaint fails to state a prima facie violation of Government Code section 3547 and cannot be amended to state a prima facie violation, the Regional Director shall dismiss the complaint. A copy of the complaint and the letter of dismissal shall be served on the employer and the exclusive representative by theRegional Director •••• DISCUSSION The complaint alleges that Los Angeles Community College District adopted an annual budget without complying with the requirements of EERA subsection 3547(e). Subsection 3547(e), however, is not a section which sets forth rights and obligatio~s of persons or entities covered by the Act. Rather, this subsection merely permits PERB to adopt rules and regulations to implement the public notice provisions of the EEAA. Subsection 3547(e) further sets forth the intent of the Legislature in adopting section 3547, namely: "that the public be informed of th~ issues that~ being neqotiated .::!.P2!2 and have a full opportunity to express their views •••• " · [Emphasis supplied. J Assuming that the complaint had been filed under a subsection of section 3547 which governs public school employer conduct and assuming that the Los Angeles Community College District had adopted its budget without following the 3
procedures outlined in ~~is section of the Act, still no pri~a facie violation could be found. 3 The E2R.~ is limited in sco?e. The purpose of the rlCt is to "improve personnel management and employer-e~ployee relations wit.l-iin the public school systems in the ,State of California by providing a uniform basis for recognizing the right of public school employees to join organizations of their own choice, to be represented by such organizations in their professional and employment relationships with public school employers, to select one employee organization as the exclusive representative of the employees in an appro9riate unit, and to afforj certificated e~?loyees a voice in the formu:aticn of educational policy." (California Government Code section 3540.) Thus, the Act does not purport to regulate every aspect of the public school employer's conduct. Rather, the ZE..~~ regulates certain conduct by public school employers and exclusive representatives concerning employer-employee relations. 3The complaint in this matter is technically deficient i~ some particulars. However, as sho•,m below, the complaint dces not state a prima facie case and cannot be amended to do so. Therefore, the Complainant will not be asked to go through an exercise of futility in amending ~,e complaint. - 4
Article 8, section 3547 of the EERA entitled "Public Notice" requires that public school employers and exclusive representatives ensure that the puqlic be informed of ninitial contract proposals" and "new subjects of meeting and negotiating arising after the presentation of initial proposals. 11 (California Government Code section 3547(a) and (d)) • Except for initial contract proposals and new subjects of meeting and negotiating, the EERA does not require that the public be informed of subsequent contract proposals or even final agreements let alone unspecified matters which may be considered at a public school board meeting. The Legislature was careful to limit the degree to which,govern.~ent would intrude into the affairs of the public school employer especially at its public board meetings. By his complaint, the Complainant seeks to have the public notice requirements of the EERA apply to the adoption of an annual budget by a school district. Arguably, the Complainant would have the public notice provisions apply to every deliberation of the school district. This is simply not the law. The Act is clear and unambiguous. The only business of a public school employer subject to the public notice provisions of EERA, section 3547 and the scrutiny of this agency relates to initial co.ntract proposals or initial proposals on new subjects of meeting and negotiating, While an annual budget might relate in some tangential way to an employer's position in bargaining, so might a plethora of other items of discussion 5
throughcut ~~e year. ~he Legislature did not intend to open to public debate and PERS review every item of business which might relate to collective bar;ai:1ing agre<E:ment.s. To do so would transform this agency frcm one entrusted with limited jurisdiction over employer-employee relations into the conscience of public schcol employers and exclusive representatives. CONCLUSION For the reasons set fort.~ above, I find that the Public Employment Relations 3oard is without jurisdiction to hear a com~laint based on the failure of a public school employer to comply with the provisions of EERA section 3547 when adopting an annual budget; and further, that the complaint fails to state a cause of action under section 3547 of the EEAA. ORDER It is hereby crdered that the complaint in this matter is dismissed with prejudice. Pursuant to California Administrative Code, title 8, section 37030(e), Complainant may appeal this dismissal by filing written exceptions with the Board itself at 923 12th St=eet, Suite 201, Sacramento, CA 95814 within seven (7) calendar days following the date of receipt of this order. The exceptions shall be accompanied by a proof of service of the docu::-:ent upon the public school employer and the Regiona_l Director. The exceptions shall state the grounds upon which the dismissal should be reversed.6
If no exceptions are filed, the dismissal shall become final at the end of seven (7) calendar days. Dated: November 2, 1978 7 Frances A. Kreiling Regional Director
September 17, 1978 TO: FRAN KREILING FROM: JULES KIMME'IT At the regular Board Meeting of the Los Angeles College Community District of August 30, 1978 THE ADOPrION OF THE 1978-79 BUDGET W.AS HELD BEFORE THE GRAND AND COLOSSAL PRESENCE OF EIGHTEE.J.'T (18) PEOPLE. On July ZS, 1976 by a motion of the Trustees of 6 to 1 in favor of holding the annual budget hearings beginning at 7: 00 P. M., at night so that a greater number of citizens could be involved to participate and express their views and feelings. On Monday August 2, 1976 a public hearing of the budget was held starting at 7:00 P. M., and ending at 12: 10 A. M., ,;nth over forty-five (45) speakers proclaiming their views and,opinions on the budget. This year the Board saw fit to deliberately flout and flaunt the will of the people and violate their basic constitutional rights guaranteed by the First Amendment by holding the meeting of August 30, 1978 at 1:30 P. M .. This arrogant and arbitrary action was indicative of a callous indif- ference deliberately designed to ignore, blatantly disregard to render the will of the people impotent, ineffective and to strip them of their right to participate in the most important subject critical to the f: 1 nction of the colleges ------ OF SPENDING THEIR HONEY. Article 8. 3547 Sub-Section E · of ;t:;he Californicy G9ternment Coder./ 11 T.HE PUBLIC BE INFORL'1ED AfID HAVE .E"'LJLL jff PORTIJNT'.T"V /rO...EXPRESS THE'TP,. --~VID.JS. 11 / l / J. .:.+ J. ', -:rm::ES K.Ll'll".!.t.J.J. '\·lrite-In Candidate For Governor 11 Chairman Concerned Citizens Comroittee of Burbank Shop Steward Local 99 SEIU11 C 11 Shift CustodiansLos Angeles Valley College JK/ck PLEASE REPLY TO .4.DDR.ESS BELOH 1106-D West Olive Avenue Burbank, California 91506
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October
20,
1978
TO:
FR.A...'Ii..
F:RE.ILilTG
FROM:
JULES KIMMETT
In Re:
September 17, 1978
LACCD
violation
and
your
re~.i...--::i
OJ.~,;;:
Lette=
for Revision
•
-.j
c;::,
1.
LA.CCD,
2140 Olympic
Boulevard,
Los
Angeles,
California
90006.
2.
Same
as
above
in
No.
1.
3.
The Board
of
Tr~stees, Chancellor
Kaltai
and
the
Adr;nistrationof the
Los Angeles College.
District all
at
the
same
address.
4.
Article
8
Section 3547(e).
5.
Body
of
letter
enclosed.
6.
There
is
no
policy
to resolve
issues except to ignore
and indulge
in
stonewalling, silence
and
the constant use of the
Fifth
Amend-
ment.
7.
Same
as
No.
6.
8. There
is
no
pending
litigation.
In
conclusion
and summing
up
the
Powe-rs
to
be
at
the
PL"'ZS
have been
dragging
their feet,
and
to those y{'ry
Powers
agatn I am
delivering
a
stern
admonition
that
the
LAW
BE f)lt1PL=
(I
F'iJl
·
71
/ L .
""'·
JULES KD.lrlETT
"Write-In Candidate for
Governorrr
Chairman Concerned
CitizensCormuittee of Burbank
Sho-o Steward Local 99 SEru
"c11
·Shift CustodiansLos Angeles Valley College
:JK/ck
:--c
....
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