Orange Unified School District (PERB 1670E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOHN ROSSMANN,
Charging Party, Case No. LA-CE-4753-E

Vv. PERB Decision No. 1670

ORANGE UNIFIED SCHOOL DISTRICT, July 28, 2004

Respondent.

Appearances: John Rossmann, on his own behalf; Parker & Covert by Spencer E. Covert,
Attorney, for Orange Unified School District.

Before Duncan, Chairman; Whitehead and Neima Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by John Rossmann (Rossmann) of a Board agent’s
dismissal (attached) of his unfair practice charge. The charge alleged that the Orange
Unified School District (District) violated the Educational Employment Relations Act
(EERA) section 3543.5(c)' by providing an exclusive representative with inaccurate
information regarding the financial resources of the District.

Section 3 543.5(c) makes it a violation to bargain in bad faith. The exclusive

representative is the correct party under this code section.”

‘EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. Under
Section 3543.5(c) it is unlawful for the employer to “[rJefuse or fail to meet and negotiate
in good faith with an exclusive representative.”

*As of January 1, 2004, section 3543.5(c) has been amended to include “Knowingly
providing an exclusive representative with inaccurate information, whether or not in response

As the District points out, the exclusive representative for teachers and other
certificated non-management personnel is the Orange Unified Education Association
(Association). 3
We find the warning and dismissal letters of the Board agent to be without prejudicial
error and adopt them as the decision of the Board itself as discussed below.
DISCUSSION
Rossmann has not provided any information or facts to show he has any authority to
speak for the exclusive representative. He therefore, does not have standing to bring these
charges.
Individual employees do not have standing to allege unilateral change violations
(Oxnard School District (Gorcey/Tripp) (1988) PERB Decision No. 667) nor allege violations
of sections which protect the collective bargaining rights of employee organizations. (State of
California (Department of Corrections) (1993) PERB Decision No. 972-S.)
Rossmann has appealed the Board agent's determination that there is a lack of standing
based on his belief that any citizen has a right and a civic obligation to defend the law.
The rule that individual employees do not have standing to assert violations of EERA
section 3543.S(c) is based on the fact that this section prohibits an employer from bargaining
in bad faith with an exclusive representative. 	The obligation to bargain does not extend to
individual employees or "any citizen."
As Rossmann lacks standing it is unnecessary to reach the merits of the charges.
We therefore find that the Board agent's dismissal is affirmed.
to a request for information, regarding the financial resources of the public school employer
constitutes a refusal or failure to meet and negotiate in good faith."
3The Associaton has been the exclusive representative since 1976, according to the
District.
2

ORDER
The unfair practice charge in Case No. LA-CE-4753-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
3

(- 	(- 	\oLD SCHWARZENEGGER, Governor
=============>-- 	================---
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
103118th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax: (916) 327-63 77
June 8, 2004
John Rossman
14661 Berkshire Place
Tustin, CA 92780
Re: 	John Rossmann v. Orange Unified School District
Unfair Practice Charge No. LA-CE-4753-E
DISMISSAL LETTER - First Amended Charge
Dear Mr. Rossman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 17, 2004. John Rossmann alleges that the Orange Unified
School District violated Educational Employment Relations Act (EERA)1 section 3543.S(c) by
knowingly providing an exclusive representative with inaccurate information regarding the
financial resources of the District.
I indicated to you in my attached letter dated May 18, 2004, 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 May 28, 2004, the charge would be dismissed.
On June 2, 2004 I received an amended charge. The amended charge asserts that "any and all
citizens have the constitutional right - indeed, have the civic obligation to assert charges in
defense of the law." (emphasis in the original.) As such, the reasoning in the warning letter
that denies standing to the charging party is wrong. 	Second, a prima facie case was stated by
the evidence presented in the original charge because no contradictory evidence was
presented.2 Third, the documents show that Superintendent French knowingly presented false
information. Fourth, the Superintendent's April 2, 2004 letter was directed to Orange Unified
Education Association Members which is the equivalent to providing it to the Association
because the members of the Association include its officers.
The first assertion in the amended charge concerns the issue of standing. As discussed in the
warning letter, PERB has determined that individual employees do not have standing to assert
violations of EERA section 3543.S(c). This rule is based on the fact that this section prohibits
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 The District's response to the original and amended charge was filed on June 4, 2004.

LA-CE-4753-E
June 8, 2004
Page 2
an employer from bargaining in bad faith with an exclusive representative. The obligation to
bargain does not extend to employees. The same is true for the employer's obligation to
provide accurate financial information to the exclusive representative.
Under Government Code section 3541.3:
The board shall have all
of
the following powers and duties:
(i) To investigate unfair practice charges or alleged violations
of
this chapter, and take any action and make any determinations in
respect ofthese charges or alleged violations as the board deems
necessary to effectuate the policies
of
this chapter.
(n) To take any other action as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the
purposes
of
this chapter.
Based on these provisions and Government Code section 3543.5(c), the Board has determined
that employees do not have standing to pursue a violation
of
Government Code section
3543.5(c). (State
of
California (Department
of
Corrections) (1993) PERB Decision No. 972-S.)
Accordingly this charge must be dismissed based on the facts and reasons contained in this
letter and my May 18, 2004 letter.
As Mr. Rossmann lacks standing to pursue this charge, it is unnecessary to review the other
allegations made in the amended charge.
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
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 before the close
of
business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-4753-E
June 8, 2004
Page 3
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 95814-4174
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 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. A document filed by
facsimile transmission may 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
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)

LA-CE-4753-E
June 8, 2004
Page 4
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
General Counsel
Attachment
cc: Spencer Covert, Attorney

ST ATE OF CALIFORNIA 	( 	(-- mLD SCHWARZENEGGER, Governor
===============--
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
103118th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax: (916) 327-6377
May 18, 2004
John Rossmann
14661 Berkshire Place
Tustin, CA 92780
Re: 	John Rossmann v. Orange Unified School District
Unfair Practice Charge No. LA-CE-4753-E
WARNING LETTER
Dear Mr. Rossmann:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 17, 2004. John Rossmann alleges that the Orange Unified
School District violated Educational Employment Relations Act (EERA)1 section 3543.S(c) by
knowingly providing an exclusive representative with inaccurate information regarding the
financial resources of the District.
I attempted to telephone you at the number listed on the unfair practice charge but received no
answer and was unable to leave a message. In January 2004, District Superintendent Robert
French sent a letter to voters in the District indicating that District enrollment was continuing
to rise. The March 11, 2004, District Board agenda stated that the District's enrollment would
remain the same for the next year. The California Department of Education shows the
District's enrollment to be different than the Superintendent's letter or the Board agenda. The
charge also details other discrepancies regarding District revenues and health insurance
premiums.
The information provided in the charge does not state a prima facie violation for the reasons
that follow.
The charge alleges that the employer violated EERA section 3543.S(c) by knowingly providing
an exclusive representative with inaccurate information regarding the financial resources of the
District. Although the charge includes information that shows arguable discrepancies between
information provided by District and other sources of information, that is not the end of the
inquiry. The violation is not simply to be incorrect but rather to "knowingly provide an
exclusive representative with inaccurate information, ... " Nothing in the charge indicates that
the information was provided to an exclusiverepresentative. And there is no information
demonstrating how the District knowingly provided inaccurate information. Without this
information, there is no violation of this provision.
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.

LA-CE-4753-E
May 18, 2004
Page 2
Finally, even
if
the allegations in the charge were amended to demonstrate these elements,
charging party does not have standing to file this type
of
charge. The section
of
the EERA that
is the subject
of
this charge was amended into the act effective January
1,
2004. Accordingly,
there are no Board decisions interpreting it. However, individual employees do not have
standing to allege unilateral change violations (Oxnard School District (Gorcey/Tripp) (1988)
PERB Decision No. 667.) nor to allege violations
of
sections which protect the collective
bargaining rights
of
employee organizations. (State
of
California (Department
of
Corrections)
(1993) PERB Decision No. 972-S.) 	The language in question is located in the section that
makes it a violation to bargain in bad faith. Failure to provide necessary and relevant
information was a violation
of
this section before the amendment.2 Therefore it is reasonable
to conclude that individual employees do not have standing to assert a violation
of
this section
of3543.5(c).
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 May 28, 2004, I shall dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
General Counsel
2 The exclusive representative is entitled to all information that is "necessary and
relevant" to the discharge of its duty of representation. (Stockton Unified School District
(1980) PERB Decision No. 143). Failure to provide such information is a per se violation ofthe duty to bargain in good faith.