Los Banos Unified School District (PERB 1935E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CHARLES E. ULMSCHNEIDER,
Charging Party, Case No. SA-CE-2421-E
Vv. PERB Decision No. 1935
LOS BANOS UNIFIED SCHOOL DISTRICT, December 21, 2007
Respondent.

Appearances: Charles E. Ulmschneider, on his own behalf, Atkinson, Andelson, Loya, Ruud
& Romo by Todd A. Goluba, Attorney, for Los Banos Unified School District.

Before Neuwald, Chair, McKeag and Rystrom, Members.
DECISION

McKEAG, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Charles E. Ulmschneider (Ulmschneider) of a Board agent’s dismissal
(attached) of his unfair practice charge. The charge alleged that the Los Banos Unified School
District (District) violated the Educational Employment Relations Act (EERA)' by conducting
“unscheduled” and “unplanned” meetings with Ulmschneider and by denying representation to
Ulmschneider during these meetings. The Board agent found the charge, as written, did not
state a prima facie case.

The Board has reviewed the entire record, including but not limited to, the unfair practice
charge, the District’s position statement, the warning and dismissal letters, Ulmschneider’s
appeal and the District’s opposition to the appeal. Based on this review, the Board finds the
dismissal of this case was proper and adopts the warning and dismissal letters as a decision of

the Board itself.

'EERA is codified at Government Code section 3540, et seq.

ORDER
The unfair practice charge in Case No. SA-CE-2421-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Neuwald and Member Rystrom joined in this Decision.
2

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office
of
the General Counsel
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
August 23, 2007
Charles E. Ulmschneider
P.O. Box 523
Los Banos, CA 93635
Re: 	Charles E. Ulmschneider v. Los Banos Unified School District
Unfair Practice Charge No. SA-CE-2421-E
DISMISSAL LETTER
Dear Mr. Ulmschneider:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 10, 2007. Charles E. Ulmschneider alleges that the Los Banos
Unified School District (District) violated the Educational Employment Relations Act (EERA)1
by conducting "unscheduled, unplanned" meetings with him and by denying representation to
him in these meetings.
I indicated to you in my attached letter dated July 30, 2007, 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 August 9, 2007, the charge would be dismissed.
On August 15, 2007, I confirmed by the attached letter that the August 9, 2007 deadline was
extended to August 22, 2007.
I have not received either an amended charge or a request for withdrawal.2 Therefore, I am
dismissing the charge based on the facts and reasons contained in my July 30, 2007 letter.
Right to Appeal
Pursuant to PERB Regulations,3 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. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 We spoke by telephone on August 23, 2007, at which time you confirmed that you
had not filed an amended charge and requested information about your appeal rights.
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-2421-E
August 23, 2007
Page 2
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section l 1020(a).) A document
is also considered "filed" when received by facsimile transmission before the close
of
business
together with a Facsimile Transmission Cover Sheet which meets the requirements
of
Regulation 32135(d), provided the filing party also places the original, together with the
required number
of
copies and proof
of
service, in the U.S. mail. (Regulations 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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. (Regulation 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 Regulation 32140 for the required contents.) The
documentwill be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. 	(Regulation
32135(c).)
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
ofeach other party regarding the extension, and shall be accompanied by proof of service
of
the
request upon each party. 	(Regulation 32132.)

SA-CE-2421-E
August 23, 2007
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,
TAMI R. BOGERT
General Counsel
ByL~
Les Chisholm
Division Chief
Attachments
cc: Elizabeth P. Lind

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Office
of
the General Counsel
103118th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
August 15, 2007
Charles E. Ulmschneider
P.O. Box 523
Los Banos, CA 93635
Charles E. Ulmschneider
3102 W. Flagstaff Avenue
Visalia, CA 93291
Re: 	Charles E. Ulmschneider v. Los Banos Unified School District
Unfair Practice Charge No. SA-CE-2421-E
Dear Mr. Ulmschneider:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 10, 2007. 	Charles E. Ulmschneider alleges that the Los Banos
Unified School District (District) violated the Educational Employment Relations Act (EERA)1
by conducting "unscheduled, unplanned" meetings with him and by denying representation to
him in these meetings.
I informed you in my letter dated July 30, 2007, 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 August 9, 2007, the charge would be dismissed.
I have not received either an amended charge or a request for withdrawal. However, you
telephoned me on August 14, 2007, and left a message stating that did not receive my July 30,
2007 letter until August 14, 2007. You requested additional time in which to review my letter,
This letter confirms my telephone message
of
today's date extending the August 9 deadline to
August 22, 2007.2
If
I do not receive an amended charge or withdrawal from you before the
close
of
business on August 22, 2007, I shall dismiss your charge.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 I am directing this letter to both addresses shown pn the charge form, as you did not
respond to my earlier request that you confirm your full, c;mplete and correct mailing address.

SA-CE-2421-E
August 15, 2007
Page 2
If
you have any questions, please call me at the above telephone number.
Sincerely,
L
Les Chisholm
Division Chief

-STATE
OF
CALIFORNIA
	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office
of
the General Counsel
1031 18th Street
Sacramento,
CA
95811-4124
Telephone: (916) 327-8383
Fax: (916)327-6377
July 30, 2007
Charles E. Ulmschneider
P.O. Box 523
Los Banos, CA 93635
Re: 	Charles
E.
Ulmschneider
v.
Los Banos Unified School District
Unfair Practice Charge No. SA-CE-2421-E
WARNING LETTER
Dear Mr. Ulmschneider:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 10, 2007. 	Charles E. Ulmschneider alleges that the Los Banos
Unified School District (District) violated the Educational Employment Relations Act (EERA)1
by conducting "unscheduled, unplanned" meetings with him and by denying representation to
him in these meetings.
Mr. Ulmschneider is employed
as
a teacher by the District, and is assigned to Los Banos High
School. The District's teachers are exclusively represented by the Los Banos Teachers
Association (LBTA).
The charge first alleges that, on December 5, 2006, Mr. Ulrnschneider was "visited" by Dan
Martin, principal at Los Banos High School, that the meeting was unscheduled and unplanned,
that
Mr.
Ulmschneider was not allowed representation, and that Mr. Ulmschneider
subsequently received "a series
of
formal reprimand letters." On December 15, 2006, Mr.
Ulmschneider had a letter
of
reprimand read to him in the presence
of
a teacher and LBTA
representative, James Orr, and the vice principal, Brett Lee. On December 19, 2007, Mr.
Ulmschneider was required to meet with Principal Martin. On January 30, 2007, Principal
Martin, Vice Principal Lee, and Mr. Orr entered Mr. Ulmschneider's classroom. Mr.
Ulmschneider asked that Kenneth Garst be his LBTA representative, instead
of
Mr. Orr, but
his request was refused. 	Letters
of
reprimand were again read aloud to Mr. Ulmschneider, over
his objections.
On February 13, 2007, Vice Principal Lee entered Mr. Ulmschneider's classroom, during
instruction time, to deliver a letter requiring Mr. Ulmschneider to meet with Principal Martin
later that morning. Mr. Ulmschneider appeared at the meeting and requested that Mr. Garst
represent him instead of Mr. Orr, but his request was refused. A formal letter of reprimand
from Shanna Spiva, District personnel director, was read to Mr. Ulmschneider.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at ~.perb.ca.gov.

SA-CE-2421-E
July 30, 2007
Page 2
On February 26, 2007, another letter
of
reprimand was read to Mr. Ulmschneider, with Vice
Principal Lee and Mr. Orr present. On March
1,
2007, both Dave Waller2 and Vice Principal
Lee performed classroom visitations in Mr. Ulmschneider's classroom.
The charge further alleges that, on April 23, 2007, Principal Martin again made an unscheduled
visit to Mr. Ulmschneider' s classroom, to "warn [Mr. Ulmschneider] to turn in things," andthat he was again not allowed a representative from the LBTA.
	On April 24, 2007 and
the
following week, Mr. Ulmschneider received formal letters
of
reprimand from Mr. Martin with
Vice Principal Brett Lee, Mr. Orr and another teacher (Robert Franklin) present.
Discussion
The charge does not allege a specific section
ofEERA
that is violated by the District's
conduct, nor does the charge identify a legal theory under which the allegations should beevaluated. The Board has held that, where a charging party fails to allege that any specific
section
of
the Government Code has been violated, the Board agent, upon a review
of
the
charge, may determine under what section the charge should be analyzed. 	(Los Angeles
County Office
of
Education (1999) PERB Decision No. 1360.) Here, the facts alleged support
analyzing whether the District interfered with Mr. Ulmschneider's rights to representation in
violation
ofEERA
section 3543.5(a).
An employee required to meet with the employer is entitled to union representation where (a)
the employee requested representation, (b) for an investigatory meeting, (c) which the employee
reasonably believed might result in disciplinary action, and (d) the employer denied the request.
(National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 (Weingarten); Rio Hondo
Community College District (1982) PERB Decision No. 260. 	See, also, Redwoods
Community College District v. Public Employment Relations Board (1984) 159 Cal.App.3d
617; Fremont Union High School District (1983) PERB Decision No. 301; Social Workers'
Union, Local 535 v. Alameda County Welfare Department (1974)
11
Cal.3d 382; Civil Service
Assn. v. City and County
of
San Francisco (1978) 22 Cal.3d 552.)
In Rio Hondo Community College District, supra, the Board cited with approval Baton Rouge
Water Works Company (1979) 246 NLRB 995, which provided:
the right to representation applies to a disciplinary interview,
whether labeled as investigatory or not, so long as the interview
in question is not merely for the purpose
of
informing the
employee that he or she is being disciplined.
In approving the Weingarten rule, the U.S. Supreme Court noted with approval that the
National Labor Relations Board would not apply it to "such run-of-the-mill shop-floor
It is my understanding from attachments to the charge that Mr. Waller is a Consulting
Teacher who makes classroom visits as a part of the Peer Assistance and Review (PAR)
program.

SA-CE-2421-E
July 30, 2007
Page 3
conversations as, for example, the giving
of
instructions or training or needed corrections
of
work techniques." (Weingarten, quoting Quality Manufacturing Co. (1972) 195 NLRB 197,
199 [79 LRRM 1269, 1271].) Thus, the key inquiry is whether the interview was investigatory
and
of
the type that might lead to disciplinary action. This "is an objective inquiry based upon a
reasonable evaluation
of
all the circumstances, not upon the subjective reaction
of
the
employee." (Alfred M. Lewis, Inc. v. NLRB (9th Cir. 1978) 587 F.2d 403 [99 LRRM 2841,
2845]
.)
The Board has held that there is no right to representation where the purpose
of
a
meeting is simply to deliver notice
of
the discipline and not to "elicit damaging facts" or possibly
modify the discipline. (State
of
California (California Highway Patrol) (1997) PERB Decision
No. 1210-S, adopting decision
of
administrative law judge; State
of
California (Department
of
Transportation) (1994) PERB Decision No. 1049-S.)
Under the above standards, the present charge does not state a prima facie violation
of
Mr.
Ulmschneider's Weingarten rights. 	There are no facts alleged that demonstrate Mr.
Ulmschneider was required to provide information as a part
of
an investigation at any
of
the
meetings referenced by the charge. As discussed above, a meeting must be an "investigatory
meeting" in order for the Weingarten right to representation to be applicable. Further, the
charge also demonstrates that Mr. Ulmschneider had an LBTA representative present at many
of
these meetings, and the Board has held that an employee is not entitled to demand a specific
union representative. 	(State
of
California (Department
of
Transportation), supra.) In addition,
meetings held to deliver a pre-determined disciplinary action, such as a written letter
of
reprimand, do not trigger the right to representation. 	(See, for example, Regents
of
the
University
of
California (Los Alamos National Laboratory) (2003) PERB Decision No. 1519-
H and State
of
California (Department
of
California Highway Patrol), supra.)
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 that 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 have the case number written on the top right hand
corner
of
the charge form. The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
If
I do not receive an
amended charge or withdrawal from you before August 9, 2007, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Les Chisholm
Division Chief