Los Angeles Community College District (Kimmett) (PERB 0417E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JULES KIMMETT,
Charging 	Party,
v.
LOS ANGELES 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-1877
PERB Decision No. 	417
October 18, 	1984
Appearances: 	Jules Kimmett, 	representing himself;
Mary L. 	Dowell, 	Attorney for Los Angeles Community College
District.
Before Jaeger, 	Morgenstern and Burt, Members.
DECISION
JAEGER, 	Member: 	Jules Kimmett appeals 	the attached
dismissal 	of his 	charge 	that 	the Los Angeles Community College
District 	(District) 	violated subsections 3543.5(a), 	(b) 	and 	(c)
of 	the Educational 	Employment Relations Act 	(EERA)1
' 	by
refusing him entrance 	to meetings 	between 	the District 	and
certain 	employees 	concerning 	seniority 	and 	bumping 	rights 	of
employees 	facing 	layoff.
The charge 	asserts 	that Service Employees 	International
Union, 	Local 99 	(Local 99 or Union), 	the employees' exclusive
representative, 	and 	the District had agreed 	that all Union
1EERA 	is codified 	at Government Code 	section 3540 	et 	seq.
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representatives 	would 	be 	entitled 	to 	attend 	such meetings 	but
that 	Kimmett 	was 	barred 	by management 	representatives 	from 	such
a meeting 	even 	though 	he 	informed 	them of 	the parties'
agreement.
During 	the course 	of a 	regional 	attorney's 	investigation 	of
the charge, 	it was 	revealed that the District and Union had
agreed 	that 	these meetings would 	be considered 	as 	extensions 	of
current bargaining sessions which 	included, 	inter alia, 	the
effects 	of prospective layoffs. 	The District admitted 	that
Kimmett, 	as a member of 	the Union bargaining committee, 	was
entitled 	to attend 	the meetings, 	attributed 	the denial of
access to a failure 	in its 	internal communications, 	and assured
Local 	99 	representatives 	that Kimmett would not again be denied
access. 	Local 	99 	accepted 	this 	explanation and commitment and
the matter was considered settled. 	Copies of the documents
setting 	forth 	the 	facts and 	agreement were 	sent 	to 	Kimmett.
There 	is 	no 	indication 	in the 	record 	that he either 	replied 	or
agreed with 	the 	settlement 	terms.
The 	regional 	attorney, 	citing Grant Joint Union High 	School
District 	(2/26/83) 	PERB Decision No. 	196, 	dismissed 	the charge,
concluding 	that 	the 	District's 	action 	represented 	an 	individual
breach of 	its agreement with 	Local 	99 	rather 	than 	a change 	in
policy, 	and 	therefore did not rise 	to the 	level of an unfair
practice. 	We reject 	the 	regional attorney's 	reasoning,
although 	we 	find 	other 	grounds 	for 	dismissing 	the 	charge.
N	2

EERA subsection 	3541.5(a) 	authorizes 	an employee to 	file 	an
unfair practice charge. 	In 	South 	San Francisco Unified School
District 	(1/15/80) 	PERB Decision No. 	112, 	the Public Employment
Relations 	Board, 	concluding 	that an employee may file 	an unfair
practice 	charge 	against 	the employer 	based on 	the 	employer's
violation of the rights of the exclusive representative,2 •
stated:
Although 	only an 	exclusive 	representative
possesses a negotiating right, 	an 	individual
as 	well as 	an exclusive representative may
properly 	file 	the charge pursuant 	to 	section
3541.5(a) 	in order 	to show a violation of
law and seek 	its correction, 	pp. 	6 and 	7.
(Footnote 	omitted.)
However, 	Kimmett's 	right 	to file 	the charge does not carry
with 	it 	the conclusion 	that he had 	a personal 	statutory 	right
to 	serve on 	the Union's 	bargaining 	committee or 	to attend 	its
bargaining 	sessions. 	Although he 	unquestionably 	enjoyed 	a
broad right 	to participate 	in organizational activities, 	his
appointment 	to 	the 	bargaining 	committee 	was 	completely
dependent 	on Local 	99's 	statutory 	right 	to bargain and 	its
concomitant 	right 	to 	select 	its 	bargaining committee without
interference by the employer. 	Thus, 	when Kimmett 	filed his
charge, 	he was seeking first to demonstrate 	that 	the District
violated 	the 	law by 	interfering 	with 	Local 	99's 	bargaining
committee appointments, 	thereby denying Local 99 	its 	subsection
2There, 	the charging party, 	an 	individual employee,
charged 	the district with 	refusal 	to negotiate 	in good 	faith.
w	
3

3543.5(b) 	right to represent its constituency, 	and second, 	to
correct 	that violation.
When, 	in the course of the 	investigation of the charge, 	the
District 	admitted 	that 	Kimmett 	should 	not 	have 	been 	denied
access 	to 	the bargaining 	session and 	assured Local 	99 	that 	the
incident would not be repeated, 	and when 	Local 	99, 	the 	real
aggrieved party, 	accepted 	that 	explanation and 	assurance 	in
settlement of the dispute, 	Kimmett was 	left with no 	surviving
interest 	in the matter.
ORDER
Based 	on 	the record, 	the Public Employment Relations Board
ORDERS 	that 	the 	unfair 	practice 	charge 	filed by Jules 	Kimmett
against 	the Los Angeles Community College 	District be 	DISMISSED.
Members Morgenstern and 	Burt 	joined 	in 	this 	Decision.
4

STATE OF 	CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3470 Wilshire Blvd, Suite 1001
Los Angeles, California 90010
(213)736-3127
,
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: 	~	, 	.•.
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1106-D West Olive Avenue
Burbank, 	CA 	91506
January 25, 1984
Jules 	Kimmett
Mary L. 	Dowell
Los Angeles Community
College District
617 West Seventh Street
Los Angeles, CA 	90017
RE: 	Kimmett v- Los Angeles CCD, LA-CE-1877,
DISMISSAL OF UNFAIR PRACTICE 	CHARGE
Dear Mr. Kimmett:
The above charge was filed with the PERB on November 29, 	1983,
and alleges 	the 	the District 	unilaterally changed 	an
agreed-upon 	"policy" 	allowing Union representation 	in meetings
between management and employees who were subject 	to layoff.
My investigation has revealed 	the 	following facts. 	On about
October 19, 	1983, 	the District passed a resolution to layoff
classified personnel to achieve a reduction of some 500
positions. 	Having passed 	the resolution, 	the parties began to
negotiate 	regarding the effects of 	the layoffs. 	During those
negotiations, on about November 17, 1983, the negotiators for
SEIU, 	Local 99 and District Negotiator Dan Means 	agreed
verbally to allow a union representative 	to be present at
meetings held 	between management and 	employees where 	the 	issues
of layoffs and bumping rights would be discussed. 	Such an
arrangement was 	to be considered as an extension of the
negotiations on effects of 	the planned layoffs.
Shortly thereafter, on November 21, 	1983, at about 12:00
midnight, 	Jules Kimmett, 	a union steward and member of SEIU,
Local 99's negotiating Committee, 	attempted to sit in on such a
meeting 	involving 	several employees 	who had 	received 	layoff
notices. 	The principal 	(also referred 	in the charge as
President Lee) 	refused to allow Kimmett 	into the meeting,
claiming 	that 	the meeting was not disciplinary in nature.
Although 	Kimmett 	attempted 	to explain the 	agreement 	that 	had

LA-CE-1877
January 24, 	1984
Page 2
been reached 	at 	the negotiations table, 	he was not allowed 	in.
None of 	the District negotiators were present at 	this meeting.
Almost immediately thereafter, officers of SEIU, 	Local 99,
including Business Representative William Price, 	brought 	the
problem to the attention of Mr. 	Means. 	On November 29, 	1983 a
meeting 	was held 	between Dan Means 	and 	the Union's negotiating
team 	(including Kimmett and Price). 	The District explained
that Principal Lee's 	actions were attributable to a lack of
communication between 	the District 	negotiators 	and 	the
principal, 	who was unaware of 	the change in procedures
negotiated at 	the 	table. 	The District assured the Union that
it would not happen again, 	and Kimmett was sent a letter to
this effect on December 5, 	1983.
In 	the 	interest of preventing 	any 	future problems of 	this
nature, 	the District promised 	to put the agreed-upon procedure
in writing. 	On December 19, 	1983, 	it was reduced to writing,
and 	forwarded to the Union on December 20, 	1983.
William Price of SEIU, 	Local 99 has 	indicated that the Union 	is
satisfied with 	the new arrangement 	and 	that 	the 	incident with
Kimmett was an 	isolated 	event due 	to a misunderstanding.
In Grant Joint Union High School District 	(2/26/83) 	PERB
Decision No. 	196, 	the PERB ruled that, 	in order to establish an
unlawful unilateral change, 	the charging party must produce
evidence showing: 	1) 	that 	the employer 	breached or otherwise
altered 	the parties' 	written agreement or 	its own established
past practice; 	2) 	that the breach or alteration amounted to a
change of policy 	(i.e., 	that 	it had a generalized effect or
continuing 	impact upon terms and conditions of employment of
bargaining unit members); 	and 3) 	that the change in policy
concerned matters within 	the scope of representation. 	Kern
CCD, PERB Decision No. 337 (8/19/83), at p.9.
Although 	this case does 	not 	involve a breach of 	a written
agreement, but of a new oral layoff procedure, 	it is arguable
that the 	first element delineated 	in Grant has been met,
inasmuch 	as 	the parties 	established 	a status quo on November
17, 	1983. 	However, 	the second criterion noted above has not
been established 	in 	this 	case. 	Since Principal Lee's actions
toward Kimmett occurred 	in one 	isolated event, 	due to a
miscommunication of 	the new arrangement, 	it cannot be said 	that

January 24, 	1984
LA-CE-1877
Page 3
the District made a unilateral change in policy. 	As 	far as 	the
District was concerned, 	it remained willing to adhere to the
negotiated procedure. 	No continuing 	impact has been
established, 	and the effect was limited to November 21, 	1983.
Other 	than not attending the meeting, 	no other 	impact has been
alleged. 	Therefore, 	since no unilateral change in policy, 	as
defined 	in Grant, 	has been established, 	this charge does not
state a prima facie violation of the EERA, 	and is hereby
dismissed.
Pursuant 	to Public Employment Relations Board 	regulation 32635
(California Administrative Code, title 8, part III), you may
appeal the refusal to issue a complaint 	(dismissal) 	to the
Board 	itself.
Right 	to Appeal
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 Notice 	(section 32635(a).
To be 	timely filed, 	the original and five 	(5) 	copies of such
appeal must be 	actually received 	by 	the Board 	itself before 	the
close of business 	(5:00 p.m.) 	on February 15, 1984, or sent by
telegraph or 	certified United States mail postmarked not 	later
than February 15, 	1984 	(section 32135). 	The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 	95814
If you file a timely appeal of 	the 	refusal, 	any other party may
file with 	the executive assistant 	to the Board an original and
five 	(5) 	copies of a statement in opposition within twenty 	(20)
calendar days 	following 	the date of 	service of the appeal
(section 32635(b)).
Service
All documents 	authorized 	to be 	filed herein except 	for
amendments to the charge must also be 	"served" upon all parties
to the proceeding, 	and a "proof of 	service" must accompany the
document 	filed with 	the Regional Office or 	the Board 	itself
(see 	section 32140 	for 	the 	required contents and a sample

January 24, 	1984
LA-CE-1877
Page 4
form). 	The documents 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
executive 	assistant 	to the Board 	at 	the previously noted
address. 	A request for an extension in which to file a
document with 	the Regional Office 	should 	be 	addressed 	to 	the
Regional Attorney. 	A request 	for 	an extension must be 	filed 	at
least three 	(3) 	calendar days before the expiration of 	the time
required 	for 	filing the subject document. 	The request must
indicate good cause for 	the position of each other party
regarding 	the extension and 	shall be 	accompanied by proof of
service of the request upon each party 	(section 32132) .
Final Date
If no appeal is 	filed within the specified time limits, 	the
dismissal will become 	final when the 	time 	limits have expired.
Very truly yours, 	.
Dennis Sullivan
General Counsel
Manuel M. Melgoza
Regional Attorney
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