Los Angeles Community College District (Kimmett) (PERB 0418E)

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-1870
PERB Decision No. 	418
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 	unfair 	practice charge 	against 	the Los Angeles
Community College District 	(District). 	Although 	the Public
Employment Relations Board 	(PERB or Board) 	affirms the
dismissal, 	it finds 	that one aspect of the notice of dismissal
merits clarification.
Under 	appropriate circumstances, 	Kimmett would have
standing 	to 	file 	a charge 	alleging 	that 	the District violated
its duty 	to negotiate 	in good faith with Local 	99, 	Service
Employees 	International 	Union by failing 	to provide 	Local 	99
with 	information necessary 	to 	its negotiation efforts. 	See
South 	San 	Francisco 	Unified 	School 	District
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(1/15/80) 	PERB Decision No. 	112; 	Kimmett v. 	Los Angeles
Community College District 	(10/18/84) 	PERB Decision No. 	417
issued 	herewith.
However, 	as 	the Board 	also 	indicated 	in South San Francisco
Unified School District, 	supra, 	an employee may not utilize an
unfair practice 	charge 	to 	insert himself between 	the 	employer
and 	the 	exclusive 	representative as 	the party with whom 	the
former must deal. 	This 	is what Kimmett seeks to do here.
The 	right 	to demand 	that 	the 	employer 	furnish 	information
runs 	solely 	in 	favor 	of 	the exclusive 	representative 	as
bargaining agent for 	the unit. 	Here, 	Local 99 has 	found 	the
District's 	response 	to 	its 	request 	for 	information 	to be
adequate. 	Kimmett does not. 	His pursuit of this charge
despite 	the Union's 	satisfaction makes 	it clear 	that he 	is 	not
seeking 	to protect 	the 	exclusive 	representative's 	right 	to
information, 	but to satisfy some 	ill-conceived concept of his
own rights.
ORDER
Based on 	the 	record, 	the 	Public Employment Relations 	Board
ORDERS 	that 	the General Counsel's dismissal of 	the unfair
practice charge 	filed by Jules Kimmett 	against 	the 	Los Angeles
Community College District 	is AFFIRMED.
Members 	Morgenstern 	and Burt 	joined in 	this 	Decision.
N	2

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
January 31, 1984
Jules Kimmett
1106-D West Olive Avenue
Burbank, 	CA 	91506
Mary Dowell, Esq.
Los Angeles Community
College District
617 West 7th Street
Los Angeles, CA 	90017
RE: 	LA-CE-1870, Jules Kimmett v. Los Angeles Community
College District, 	DISMISSAL OF UNFAIR PRACTICE CHARGE
Dear Parties:
The above charge, 	filed with the PERB on December 	6, 	1983,
alleges that the District refused to turn over 	to 	the Union,
SEIU, Local 99, 	a complete seniority list, 	including employee
names and employee numbers. 	Further, 	the charge alleges that
two custodial 	supervisors did not appear on the 	seniority list
that was provided.
My investigation has revealed 	the following facts. 	Sometime 	in
about August, 1983, 	it became evident to the parties that,
because of serious financial difficulties, 	the District would
have to implement layoffs to effectuate a reduction in force.
At about 	that 	time, 	the Union anticipated a need 	for a
seniority list 	in order to enable 	it to negotiate any effects
of a future layoff and 	to determine whether 	the 	"bumping
procedures" 	would be 	implemented consistently and 	fairly.
The Charging Party alleges that 	he and 	fellow members of SEIU
Local 	99's 	bargaining 	team requested 	an updated 	seniority
list. 	A seniority list was provided, however, 	it did not
contain employees' 	names, 	only employee numbers. 	Local 99 had,
however, 	been provided with a complete list of employees
(though not a seniority list) 	including names 	and employees
numbers, which Local 99 	representatives could have used to
cross-reference 	the seniority list to 	find out where 	each
employee fell 	in seniority. 	The District has stated, without
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January 31, 1984
LA-CE-1870
Page 2
contradiction, 	that 	it did not keep a seniority list that
included both names and employee numbers, prior 	to November
of 1983.
On about October, 	1983, 	the District passed a resolution to
reduce 	its 	classified employees by approximately 500
positions. 	Subsequently, 	the parties met to negotiate the
effects of 	the proposed layoffs during November 	And December,
1983. 	The parties are still 	involved 	in negotiations over 	the
effects of 	the layoffs.
Jules Kimmett 	is a member of 	the negotiating committee and 	shop
steward of SEIU, Local 99. 	William Price, 	also 	involved in the
negotiations, 	is the official Business Representative for SEIU,
Local 99. 	Because, as of November 12, 1983, the District had
not 	turned over 	a seniority list 	to the satisfaction of
Kimmett, 	he filed 	the 	instant unfair practice charge.
On about November 21, 	1983, William Price and Jules Kimmett
were provided with a list of employees, 	including names,
employee numbers 	and their 	seniority. 	Jules Kimmett has
referred to this list as a 	"bumping list".
Although Jules 	Kimmett 	is dissatisfied with 	the District's
list, 	the Union has officially stated that it is currently
negotiating the effects of the layoffs with the District, 	and
is 	satisfied with the list provided on November 	21, 	1983. 	It
feels 	that 	the provision of 	the list 	is an adequate response to
its requests for information.
The District responded 	to this charge by noting, 	inter alia,
that Kimmett was 	asserting violations of EERA sections
3543.5(b) 	and 	(c), 	that he had no standing to bring these
charges, 	that SEIU was the exclusive representative of the
bargaining unit including Kimmett, that Kimmett was not
authorized 	to bring this unfair practice, 	that 	the District had
provided 	information to 	the Union official 	representative's
satisfaction, 	and that Kimmett was attempting to insert himself
and 	interfere with 	the ongoing negotiations process 	between 	the
exclusive representative and 	the District. 	In addition, 	the
District 	responded 	that Kimmett was attempting 	to assert 	the
rights of 	two supervisorial employees 	(those not on 	the 	list)
who belong 	to and are represented by SEIU, 	Local 347.

January 31, 	1984
LA-CE-1870
Page 3
The Charged Party's arguments are well 	taken. 	Jules Kimmett
filed 	the 	instant unfair practice charge from his home, 	naming
himself 	as Charging Party, 	and without the authority of SEIU,
Local 99. 	Although Local 99 does not wish to 	take an official
position adverse to Kimmett, 	it has stated 	that Kimmett filed
this 	(and others) 	charge without 	the authority of 	the Union and
prematurely. 	He 	is not sanctioned 	to file an unfair practice
charge with PERB, 	and is doing so only as an employee,
according to the Union. 	SEIU, 	Local 99 has indicated that 	it
does not want to be 	involved as 	a party in the 	charge filed 	by
Kimmett.
Although in South San Francisco USD, 	(1/15/80) 	PERB Decision
No 	112, 	the PERB ruled that an employee may, 	under some
circumstances 	file a charge alleging violations of Government
Code sections 3543.5(a) 	and 	(c) , 	the facts of the present
charge extend beyond the parameters of 	that case. 	In South San
Francisco, 	an employee was refused a coaching position based
upon criteria 	that he believed constituted not only
discrimination, 	but also a unilateral change in policy. 	After
denial of his grievance, he 	filed an unfair practice charge
with the PERB, 	and 	the union did not participate 	in either
proceeding.
The PERB held 	that 	there was no 	showing 	that 	the employee was
attempting to 	insert either 	himself or 	a 	rival organization
into the bargaining process. Therefore, it's ruled that the
employee had demonstrated 	a prima 	facie violation of sections
3543.5(c) and (a).
In the present case, unlike South San Francisco, 	the parties
were 	involved 	in active negotiations. 	The essence of 	this
charge 	is 	that the employer 	failed to provide 	information to
the Union. 	A refusal to give 	information is related directly
to the Union's duty to negotiate, 	and as such has a different
impact 	than a unilateral change. 	Further, 	there is evidence
from both 	the District and 	the Union official 	representative
that Kimmett 	is 	injecting himself between the parties and 	is
having 	a disruptive 	influence upon 	the ongoing bargaining
relationship. 	Kimmett is not asserting any adverse 	impact of
District action upon himself, 	but 	is asserting a right owed 	to
the exclusive 	representative 	and 	its ability to negotiate.
Additionally, he alleges a violation of section 3543.5 (b) , as
well as 3543.5 (a) 	and 	(c), 	an allegation not made in South San
Francisco, supra.

January 31, 1984
LA-CE-1870
Page 4
To grant Kimmett 	standing 	to file a charge of 	this 	nature would
undermine 	stable 	labor-management relations by forcing the
District to, 	in effect, bargain with two representatives,
Kimmett and SEIU, 	Local 99, when the positions of 	those two
are, as here, 	inconsistent. 	Therefore, the charge is
dismissed, 	in part, on this basis.
With respect to the merits of the charge, 	there 	is also a lack
of a prima 	facie violation of 	the EERA. 	There is no allegation
that 	either past practice or 	the parties collective 	bargaining
agreement required 	the District to keep a seniority list
complete with names and employee numbers. 	The only evidence
provided shows that the District did not have such a list, 	but
what 	it did have - a seniority list with employee numbers which
could be- 	cross-referenced - 	it 	turned over 	to 	the Union.
Furthermore, 	in November, pursuant to the demands of the Union,
the District compiled and 	turned over 	a 	"bumping 	seniority"
list with names and employee numbers. 	Since the Union is
satisfied with 	the list, 	it cannot be concluded 	that the
employer 	"refused" 	to turn over 	information to it.
An employer 	is not necessarily required to 	turn over
information in the form requested by the Union, 	if 	it fully
cooperates with 	the Union 	in answering questions 	and produces
the information in the form that it keeps its own records.
NLRB v. TexTan, Inc. 318 F2d 472, 53 LRRM 2298 	(1963). 	There
is no evidence that the Employer failed to do so, 	as 	indicated
by the above facts
Regarding 	the 	failure of 	the District's seniority list to
include two custodial supervisors, 	the District and William
Price of SEIU, 	Local 99 	agree that those people are not
included 	in the unit represented by Local 99. 	The parties'
collective bargaining agreement recognizes SEIU, 	Local 99 as
the representative of Unit 2, Maintenance and Operations. 	The
contract in one of the Appendices, 	lists the classifications in
the Unit, 	and Custodial Supervisors are not included therein.
Therefore, Kimmett or SEIU, Local 99 have no standing to assert
representational rights as to those employees.
Given all the above facts, 	no violation of the EERA has been
demonstrated, 	and this charge is hereby dismissed.
Pursuant 	to Public Employment Relations Board 	regulation 	32635
(California Administrative Code, title 8, part III), you may

January 31, 	1984
LA-CE-1870
Page 5
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 20, 	1984, or sent by
telegraph or 	certified United States mail postmarked 	not 	later
than February 20, 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
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

January 31, 1984
LA-CE-1870
Page 6
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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