Riverside Unified School District (PERB 0511E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
TONY PETRICH,
Charging 	Party,
v.
RIVERSIDE UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2114
PERB 	Decision No. 	511
June 21, 	1985
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Appearance; 	Tony Petrich, 	on his 	own behalf.
Before Hesse, 	Chairperson; Jaeger, Morgenstern, 	Burt and Porter,
Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(Board) 	on appeal by the 	Charging Party of 	the Board agent's
dismissal, 	attached hereto, 	of his 	charge alleging that 	the
Riverside 	Unified 	School 	District 	violated section 3543.5(a),
(b), 	(c) 	and 	(d) 	of the Educational Employment Relations Act
(Government Code section 3540 et seq.).
We have 	reviewed 	the 	Board 	agent's 	dismissal 	and, 	finding
it 	free 	from prejudicial 	error, 	adopt 	it as 	the Decision of the
Board 	itself.
ORDER
The unfair practice charge 	in Case No. 	LA-CE-2114 	is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
By 	the 	BOARD
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STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18th STREET. SUITE 102
SACRAMENTO. CALIFORNIA 	95814
(916) 322-3198
Match 14. 	1985
Mr. 	Tony Petrich
Re: 	Petrich v. 	Riverside Unified 	School 	District
Unfair 	Practice Charge No. 	LA-CE-2114
Dear Mr. 	Petrich:
The 	above-referenced 	charge 	alleges 	that 	the 	Riverside 	Unified
School District 	(District) 	has 	failed 	to 	provide 	the 	Charging
Party with 	grievance 	forms 	in 	a 	timely manner 	and 	that 	the 	form
is 	generally 	inadequate 	for 	its 	intended use. 	This 	conduct 	is
alleged to violate section 3543.5(a). 	(b). 	(c) 	and 	(d) 	of the
Educational 	Employment 	Relations 	Act 	(EERA).
I 	indicated 	to 	you 	in my 	letter 	dated March 	1. 	1985 	that 	the
above-referenced 	charge 	did 	not 	state 	a 	prima 	facie 	case, 	and
that 	unless 	you 	amended 	the 	charge 	to 	state 	a 	prima 	facie 	case,
or withdrew it 	prior 	to March 11. 	1985. 	it would 	be dismissed.
More 	specifically. 	I 	informed you 	that 	if 	there were 	any
factual 	inaccuracies 	or 	additional 	facts 	which would 	correct
the 	deficiencies 	explained 	in that 	letter, 	you 	should 	amend 	the
charge 	accordingly.
You 	chose 	not 	to 	amend 	the 	charge 	but 	rather 	to 	explain 	to 	me
in 	telephone 	conversations 	on March 	6 	and 	7. 	why you 	felt 	the
charge 	as 	presently written 	stated 	a 	prima 	facie 	case. 	After
carefully 	reviewing your 	original 	charge 	and. 	the 	facts 	and
legal 	argument 	presented 	in our 	telephone 	conversations. 	I 	have
concluded 	that 	the 	charge 	fails 	to 	present 	a 	prima 	facie 	case
based 	on 	the 	facts 	and 	reasons 	contained 	in my March 	1 	letter
(attached 	as 	Exhibit 	1) 	as well 	as 	the 	reasoning 	below.
First, 	during 	our 	conversation you 	indicated 	that 	during 	the
December 	3 	grievance 	meeting 	the 	District's 	Assistant
Superintendent 	for 	Personnel. 	Mr. 	Tucker, 	appeared 	happy that
he 	had 	no 	forms 	to 	provide 	to you. 	You 	alleged 	that 	this
demonstrates 	that Mr. 	Tucker 	was 	intending 	to 	interfere with
your 	ability 	to 	file 	grievances 	in the 	future. 	However, 	you
have 	failed 	to 	show 	that 	the District's 	inability 	to 	provide
you with 	forms 	has 	in 	anyway 	interfered 	with your 	rights 	to
file 	a 	grievance.

Mr. 	Tony Petrich
March 14. 	1985
Page 2
Second, 	you stated 	that the District failed to provide a
reasonable 	justification why 	the 	forms 	couldn't 	be 	provided 	and
that 	if 	the Association had asked for 	the forms 	that 	they would
have 	received 	them. 	Without 	a 	showing 	that 	the 	lack of 	forms
impeded your 	ability to file a grievance, 	the fact 	that 	the
District 	provided no 	justification for 	lack of 	forms 	is 	of 	no
consequence. 	Although you 	speculated 	that 	the District would
have 	provided 	forms 	for 	the Association, 	you did not 	present
facts 	indicating either 	that 	the District was 	requested 	to
provide such forms or 	that 	it did provide such forms 	to 	the
Association during the time 	in which 	it 	failed 	to provide 	them
to you.
Third, 	you alleged 	that Mr. 	Tucker's 	suggestion that you use
any piece of 	paper 	to file a grievance 	is a unilateral 	change
in practice. 	As explained 	in the March 1 letter, 	to
demonstrate 	a 	unilateral 	change Charging Party must 	show that
the District 	has 	implemented a change 	in policy. 	There 	are 	no
facts 	presented 	in this 	charge nor did you provide me with any
which indicate how Mr. 	Tucker's suggestion is a change 	in
policy. 	Rather, 	the statement appears 	to be an attempt 	to
solve 	the problem of 	a 	lack of grievance forms. 	You also
stated 	that 	lack of 	correct 	grievance 	forms 	disadvantages 	you
because of 	the 	need 	to meet 	the contractual 	time 	lines 	for 	the
filing of a grievance. 	However, 	you have not 	presented 	facts
showing 	that you 	filed 	grievances 	on anything 	other 	than
District 	forms, 	that 	such filings were denied 	by the District
because they failed 	to meet 	the time 	lines 	in the contract, 	or
that 	the District 	refused 	your 	request 	for 	an extension of 	time
lines as 	provided for 	in section 18.3 	of 	the 	contract. 	Without
such facts 	there 	is 	no showing of a prima facie case of
discrimination.
Finally, 	you argue 	that 	this 	charge 	should 	be viewed 	not 	solely
under 	the 	letter 	of 	the 	law, 	but 	rather with respect 	to 	the
spirit 	of 	the 	law. 	Section 3540 of 	the EERA reads 	in pertinent
part:
It 	is 	the purpose of this chapter 	to promote
the 	improvement 	of 	personnel 	management 	and
employer-employee 	relations 	within 	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

• • •
Mr. 	Tony 	Petrich
March 14. 	1985
Page 	3
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 	appropriate 	unit,
Although 	Charging 	Party 	believes 	that 	this 	purpose 	has 	been
violated, 	the 	fact6 	presented 	in 	this 	case 	simply do 	not
demonstrate 	such a violation. 	It 	is 	in 	the 	spirit 	as well 	as
the 	letter 	of 	the 	EERA 	that 	this 	charge 	must 	be 	dismissed.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulation
section 	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 	dismissal 	(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 April 	3.
1985. 	or 	sent 	by 	telegraph or 	certified 	United 	States 	mail
postmarked 	not 	later 	than April 	3. 	1985 	(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 	to 	issue 	a
complaint, 	any 	other 	party 	may 	file 	with 	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 must 	also 	be
"served" 	upon all 	parties 	to 	the 	proceeding, 	and 	a 	"proof 	of
service" 	must 	accompany 	the 	document 	filed 	with 	the 	Board

M E . Tony Petrich
March 14, 	1985
Page 4
itself 	(see 	section 	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.
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 (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 M. 	SULLIVAN
General 	Counsel
By
Robert 	Thompson
Regional Attorney

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Lovemor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET. SUITE 102
SACRAMENTO. CALIFORNIA 	95814
(916) 323-3198
March 1. 	1985
Mt. 	Tony Petrich
Re: 	Petrich v. 	Riverside Unified 	School District
Unfair Practice Charge No. 	LA-CE-2114
Dear Mr. 	Petrich:
The 	above-referenced 	charge 	alleges 	that 	the Riverside Unified
School District 	(District) 	has 	failed 	to provide 	the Charging
Party with grievance 	forms 	in a 	timely manner 	and 	that 	the 	form
is generally inadequate for 	its 	intended use. 	This 	conduct 	is
alleged to violate section 3543.5(a). 	(b). 	(c) and (d) of the
Educational Employment Relations Act. 	(EERA)
My 	investigation revealed 	the 	following 	fact6: 	On November 	20,
1984. 	Mr. 	Petrich requested 	that Frank Tucker, 	the District's
assistant superintendent for 	personnel, 	provide 	him with a 	set
of 	level 	I and level II grievance forms. 	Mr. 	Tucker replied
that 	he would comply with the 	requests. 	On December 	3. 	1984.
Mr. 	Petrich renewed 	his 	request 	and Mr. 	Tucker 	informed 	him he
was out of grievance forms, 	but 	that Mr. 	Petrich could write
the 	grievance down on 	"any old 	piece of 	paper." 	On
December 	11. 	Mr. 	Petrich again requested grievance forms 	and
was 	told by Mr. 	Tucker 	that 	he was unaware of when the forms
would be available. 	On December 	13. 	Mr. 	Tucker 	indicated
during 	a 	level 	II 	grievance 	conference 	that he 	could 	not 	read
the 	immediate 	supervisor's 	response 	contained 	on the Charging
Parties copy of 	the 	level 	I 	grievance form.
Based 	on the 	facts 	outlined 	above, 	this 	charge 	fails 	to 	state 	a
prima 	facie violation of 	the EERA for 	the 	reasons which
follow.
A violation of EERA section 3543.5(a) 	requires 	allegations
that: 	(1) 	an employee has 	exercised 	rights under 	the EERA;
(2) 	the employer 	has 	imposed 	or 	threatened to oppose 	reprisals,
discriminated or 	threatened to discriminate, 	or otherwise
EXHIBIT I

interfered with, 	restrained, 	or coerced the employee because of
the exercise of 	rights guaranteed 	by the EERA. 	Carlsbad
Unified School District 	(1/30/79) 	PERB Decision No. 	89;- Novato
Unified School District 	(4/30/82) 	PERB Decision No. 	210.
Mr. 	Tony Petrich
March 1. 	1985
Page 2
Although the Public Employment Relations Board 	(PERB) 	has 	ruled
that 	employees 	have 	a 	protected 	right 	to 	file 	a 	grievance North
Sacramento School District 	(12/20/82) 	PERB Decision No. 	264,
this 	does 	not 	translate 	into 	having a 	protected 	right 	to 	either
obtain grievance 	forms on demand 	or 	have 	those 	grievance 	forms
redesigned. 	First. 	Charging Party has 	failed 	to demonstrate
through a presentation of 	facts 	that 	the 	lack of 	grievance
forms 	has 	prevented 	him or 	others 	from filing grievances. 	To
the 	contrary, 	the 	charge states 	that the District was willing
to accept 	grievances 	that were 	not 	on the 	grievance 	form.
Therefore, 	the District's 	inability to provide Mr. 	Petrich with
grievance forms 	does 	not 	interfere with his 	right to file a
grievance. 	Second, 	the possible 	inefficiencies 	connected with
the present 	style 	of 	form outlined 	in the 	charge do 	not 	rise 	to
an 	interference with Charging Party's 	right 	to 	file a
grievance. 	Accordingly. 	Charging Party has failed to make 	out
a violation of section 3543.5(a) 	or 	(b).
In determining whether 	a 	party has 	violated 	section 	3543.5(c)
of EERA, 	the PERB utilizes either 	the 	"per 	se" 	or 	the 	"totality
of 	the conduct" 	test, 	depending on the specific 	conduct
involved and 	the 	effect of 	such conduct 	on the 	negotiating
process. 	Stockton Unified School District 	(11/2/80) 	PERB
Decision No. 	143. 	Unilateral 	changes 	are considered 	"per 	se"
violations 	if 	certain criteria are met. 	Those 	criteria 	are:
(1) 	the employer 	has 	implemented a 	change 	in policy concerning
a matter within 	the 	scope 	of 	representation, 	(2) 	the 	change is
implemented 	prior 	to 	the 	employer 	notifying 	the 	exclusive
representative 	and 	giving 	it 	an opportunity to 	request
negotiations. 	Walnut Valley Unified 	School District 	(3/30/81)
PERB Decision No. 	160. 	Grant Joint Union High School District
(2/26/82) PERB Decision No. 	196.
This 	charge 	fails 	to 	state 	a unilateral 	change 	because 	the
Charging 	Party 	has 	failed 	to 	present 	evidence 	shoving 	that 	the
District 	has 	changed any previous 	practice. 	Although Charging
Party is unhappy with the present 	format 	of 	the 	grievance 	form,
there are no 	facts which 	indicate 	that 	the District 	has 	changed
that 	form within the six months 	prior 	to 	the 	filing of 	the

Mr. 	Tony Petrich
March 1. 	1985
Page 3
charge. 	In discussions with the undersigned, Charging Party
stated 	that 	the 	present 	grievance 	form has 	been 	in effect
without change since approximately 1977. 	Thus, 	these
allegations do not state a violation of 	section 3543.5(c).
Finally, 	it 	is alleged that 	the employer's 	conduct has violated
EERA section 3543.5(d). 	Section 3543.5(d) 	reads.
It shall 	be unlawful for 	a 	public 	school
employer 	to dominate or 	interfere with the
formation or 	administration of 	any employee
organization, 	or contribute financial or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join any organization 	in
preference 	to another.
There were 	no 	facts 	presented 	in this 	charge 	or 	discovered
during 	the 	investigation which would 	support 	a 	prima 	facie
violation of 	this 	section.
For 	these reasons, 	charge number LA-CE-2114, 	as presently
written, 	does not state a prima facie case. 	If you feel 	that
there are any factual 	inaccuracies 	in this 	letter 	or 	any
additional 	facts which would 	correct 	the 	deficiencies 	explained
above, 	please amend 	the charge accordingly. 	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 	be 	served 	on the 	respondent 	and 	the 	original 	proof 	of
service must 	be filed with PERB. 	If 	I 	do 	not 	receive an
amended charge or withdrawal from you before March 11, 	1985. 	I
shall dismiss your 	charge. 	If you have any questions on how to
proceed, 	please call me at 	(916) 	322-3198.
Sincerely yours.
Robert 	Thompson
Regional 	Attorney