Riverside Unified School District (PERB 0512E)

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-2129
PERB 	Decision No. 	512
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 	that 	the Riverside
Unified School District violated section 3543.5(a), 	(b) 	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-2129 	is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
By the 	BOARD
__)

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
April 10, 	1985
Tony 	Petrich
Re: 	LA-CE-2129, 	Tony Petrich v. 	Riverside
Unified 	School 	District
Dear Mr. 	Petrich:
The 	above-referenced 	charge 	alleges 	that 	your 	classified
bargaining 	unit 	of 	the 	Riverside 	Unified 	School 	District
unlawfully contains 	members 	who 	are 	supervisory 	employees.
This 	situation 	is 	alleged 	to 	violate 	Government 	Code 	section
3543.5(a), 	(b) 	and 	(d) 	of the Educational Employment Relations
Act 	(EERA).
I 	indicated 	to you 	in my 	letter 	dated March 	25, 	1985 	that
certain allegations 	contained 	in 	the 	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 	accordingly. 	You were 	further 	advised 	that 	unless you
amended 	these 	allegations 	to 	state a prima 	facie 	case, 	or
withdrew them prior 	to April 	8, 	1985, 	they would be dismissed.
I have 	not 	received 	either 	a 	request 	for withdrawal 	or 	an
amended 	charge 	and 	am 	therefore 	dismissing 	those 	allegations
which 	fail 	to 	state 	a prima 	facie based on the 	facts 	and
reasons contained 	in my March 25, 	1985 	letter which 	is attached
as 	Exhibit 	1.
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 	30, 	1985, 	or
sent 	by 	telegraph 	or 	certified 	United 	States 	mail 	postmarked

not 	later than April 	30, 	1985 	(section 32135). 	The Board's
address 	is:
April 10, 	1985
LA-CE-2129
Page 	2
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 	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
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
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 	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
Barbara T. 	Stuart
Regional 	Attorney
Attachment
cc: 	Charles Field, 	Esq.
BTS:djm

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
March 25, 	1985
Mr. 	Tony 	Petrich
Re: 	LA-CE-2129, 	Tony Petrich v. 	Riverside
Unified 	School 	District
Dear Mr. 	Petrich:
The 	above-referenced 	charge 	alleges 	that 	your 	classified
bargaining 	unit 	of 	the 	Riverside 	Unified 	School 	District
unlawfully 	contains 	members 	who 	are 	supervisory 	employees.
This 	situation 	is 	alleged 	to 	violate 	Government 	Code 	section
3543.5(a), 	(b) 	and 	(d) 	of 	the Educational Employment Relations
Act 	(EERA).
Facts
My 	investigation based 	on 	a 	review 	of 	the 	charge 	and 	our
conversations on February 	7 	and 	19, 	1985, 	revealed 	the
following 	facts. 	You have been 	employed 	as 	a gardener 	for 	the
District 	since 	1971. 	This 	job 	classification has 	been
contained 	in 	the 	classified 	unit 	exclusively 	represented 	by 	the
California 	School 	Employees 	Association,Riverside 	Chapter 	506
(CSEA), 	since 	the bargaining unit 	was established 	in 1976 or
1977 	by 	agreement 	between 	the 	District 	and 	CSEA. 	The 	unit has
also 	contained 	the 	following 	job 	classifications 	since 	it 	was
established:
Head 	Custodian 	I, 	Elementary School
Cooking 	Kitchen 	"Leadperson", 	Elementary School
Producing 	Kitchen 	"Leadperson", 	Elementary School
Receiving 	Kitchen 	"Leadperson", 	Elementary School
Satellite 	"Leadperson" 	and 	Delivery 	Person, 	Elementary
School
Cooking 	Kitchen 	"Leadperson", 	Middle 	School
Producing 	Kitchen 	"Leadperson", 	Middle 	School
Receiving 	Kitchen 	"Leadperson", 	Middle 	School
Secretary 	III, 	all 	schools
Secretary 	IV, 	all 	schools
Air 	Conditioning 	and 	Refrigeration 	Mechanic 	II

Carpenter 	II
Electrician 	II
Electronics 	Technician 	II
Groundsperson 	II
Office Machine 	Repairperson 	II
Painter 	II
Plumber 	II
Special 	Maintenance 	Person 	II
Welder 	Mechanic 	II
Programmer 	Analyst 	II
March 25, 	1985
LA-CE-2129
It 	is 	the 	position 	of 	CSEA that 	these 	job 	classifications
pertain 	to 	lead positions 	and 	are 	not 	supervisory. 	CSEA does
not wish 	to change 	the 	composition of 	the bargaining 	unit. 	You
believe 	some 	or 	all 	of 	the 	classifications 	are 	supervisory
within the meaning 	of 	EERA section 	3540.l(m) 	and 	ask 	PERB 	to
investigate 	them 	for 	potential 	exclusion 	from 	the 	bargaining
unit.
You have 	personal 	knowledge 	of 	the 	job duties 	of 	the 	Head
Custodian 	I, 	Elementary School, 	classification because you have
worked 	for 	a person 	in 	this 	classification 	since 	1979. 	You
state 	that he 	exercises 	independent 	judgment 	in 	supervising
other 	employees. 	You 	also have personal 	knowledge 	of 	the 	job
duties 	of 	the 	Satellite 	Leadperson 	and Groundsperson. II
positions 	and 	state 	that 	they 	exercise 	independent 	judgment 	in
directing 	the work 	of 	subordinate 	employees. 	You 	do 	not 	have
knowledge 	of 	the 	duties 	of 	employees 	in 	the 	other
classifications, 	but 	believe 	they are 	supervisory because 	they
have 	the 	II designation.
You have 	filed 	grievances 	pursuant 	to 	the 	negotiated 	contract,
probably beginning 	in 	1982, 	but have had 	no 	success 	in 	removing
the 	alleged 	supervisors 	from 	the 	unit. 	You 	wish 	the
classifications 	removed 	because 	you believe 	they 	are 	not
lawfully 	in 	the 	unit 	according 	to 	EERA 	section 	3545 	which 	sets
standards 	for 	the 	determination 	of 	appropriate 	bargaining
units. 	You 	note 	that 	most 	of 	the 	materials placed 	in your
personnel 	file 	which 	you 	consider 	derogatory have 	been 	based 	on
information provided 	by 	the 	Head 	Custodian 	I 	at 	your 	school.
Lack 	of 	Standing
The 	charge 	fails 	to 	allege 	a prima 	facie 	case 	of 	a 	violation 	of
the 	EERA because 	you 	do 	not 	have 	"standing" 	to 	file 	an 	unfair
Page 	2

March 25, 	1985
LA-CE-2129
Page 	3
practice 	charge 	alleging 	the 	unlawful 	inclusion of 	supervisors
in your bargaining 	unit. 	This 	is because 	the Board has
provided 	only 	one 	mechanism 	for 	changing 	the 	composition 	of 	a
unit 	once 	it has been 	established. 	This mechanism 	is a 	unit
modification petition 	filed 	pursuant 	to 	the 	Board's
regulations. 	(California Administrative Code, 	title 	8,
sections 32780, 	et 	seq.)
According 	to Regulation 	32781, 	only an employer or 	recognized
or 	certified 	employee 	organization 	may 	file 	a petition 	to
delete 	supervisory 	classifications 	from 	an 	established
bargaining unit. 	Subsection 	(b)(l) 	of section 32781 provides
that 	an 	employer 	or 	employee 	organization may 	file 	a petition
to 	delete 	from 	a 	unit 	classifications 	or positions 	no 	longer 	in
existence 	or 	which by 	virtue 	of 	changes 	in 	circumstances 	are 	no
longer 	appropriate 	to 	the 	unit. 	Subsection 	(b)(5) 	of 	the 	same
section provides 	that 	supervisory 	classifications 	or 	positions
which are 	"not 	appropriate 	to 	the 	unit" 	may be deleted 	from 	the
unit provided 	the 	petition 	is 	filed 	jointly by the 	employer 	and
employee 	organization, 	or 	there 	is 	no lawful written agreement
or 	memorandum 	of 	understanding 	in 	effect, 	or 	the petition 	is
filed during 	the 	"window period" 	of 	the 	agreement 	or 	memorandum
of 	understanding. 	(The 	window period 	is 	defined 	in 	Regulation
33020 as 	"the 	29-day period...which is 	less 	than 120 days, 	but
more 	than 	90 days, 	prior 	to the 	expiration date of 	a 	lawful
written 	agreement".)
Under 	these 	regulations, 	any 	incorrect placement of 	supervisors
in 	a 	non-supervisory bargaining 	unit 	cannot 	be corrected 	by an
individual 	employee 	filing 	a 	unit 	modification petition. 	There
is 	no 	reason 	to believe 	the 	Board 	intended 	an 	individual 	might
file 	an unfair 	practice 	charge 	to 	accomplish 	the 	same 	result
precluded 	by 	the 	unit 	modification 	regulations.
In 	promulgating 	the 	unit 	modification regulations, 	the 	Board
must 	have 	considered 	the possibility that 	the parties 	might 	err
in 	their 	initial 	unit 	placement 	of 	certain 	classifications.
Nevertheless, 	it 	chose 	to 	foreclose the possibility of 	deleting
existing 	supervisory 	classifications 	from 	a 	unit 	absent 	a
change 	of 	circumstances 	or 	a 	petition 	jointly 	filed 	by 	the
employer 	and 	employee 	organization
This 	conclusion 	is 	consistent 	with 	federal 	law. 	Rule 	102.60(b)
of 	the 	National 	Labor 	Relations 	Board 	(NLRB) 	provides 	that
petitions 	for 	"clarification" 	of 	an 	existing 	bargaining 	unit
may

March 25, 	1985
LA-CE-2129
Page 	4
be 	filed 	by 	a 	"labor 	organization 	or 	by 	an 	employer." 	The
federal 	cases 	do hold 	that 	unit 	clarification petitions 	may 	be
filed 	during 	the 	term of 	a 	collective bargaining 	agreement, 	but
the 	NLRB 	will 	act 	on 	such petitions 	only where 	it 	will 	not 	be
disruptive 	to the bargaining 	relationship. 	Wallace-Murray
Corp. 	(1971) 	192 NLRB No. 	160, 	78 LRRM 1046; Northwest
Publications, 	Inc. 	(1972) 	197 NLRB No. 	32, 	80 LRRM 1296;
Arizona Electric Power Cooperative. 	(1980) 	250 NLRB No. 	110,
104 	LRRM 	1464. 	All 	the petitions 	in these cases 	were 	filed 	by
an 	employer 	or 	employee 	organization 	and 	not 	by 	an 	individual
employee 	in 	the 	unit.
Absent 	precedent 	for 	the 	filing 	of 	an 	unfair practice 	charge 	by
an 	individual 	alleging 	the 	incorrect 	placement 	of 	supervisors
in a 	rank 	and 	file bargaining 	unit, 	it 	must be 	found 	that 	you
lack 	standing 	to pursue 	the 	instant 	charge 	and 	the 	charge
should 	be 	dismissed.
Untimely 	Filing
This 	charge 	also appears 	to be 	untimely 	filed. 	Under
Government 	Code 	section 3541.5(a), 	the Board will 	not 	"issue 	a
complaint 	in 	respect 	of 	any 	charge 	based 	upon an 	alleged 	unfair
practice 	occurring 	more 	than 	six 	months prior 	to 	the 	filing 	of
the 	charge." 	The 	only action 	taken 	by 	the 	District 	regarding
placement 	of 	the 	job 	classifications 	listed 	above 	in your
bargaining 	unit 	occurred 	in 	1976-1977, 	more 	than 	seven years
before 	the 	charge 	was 	filed.
Adopting 	the 	National 	Labor 	Relations 	Board's 	"continuing
violation" 	doctrine, 	the 	PERB 	Board has 	recognized 	that 	conduct
occurring 	more 	than 	six 	months 	before 	a 	charge 	is 	filed 	may
become 	the 	basis 	for 	issuance of 	a 	complaint 	if 	the 	conduct 	is
repeated 	within 	six 	months 	of 	the 	filing 	date of 	the 	charge.
However, 	where 	there 	is 	no 	identifiable 	repetition of 	the
allegedly 	violative 	conduct 	within 	the 	six 	months proceeding
the 	filing 	of 	the charge, 	no complaint will 	issue. 	San
Dieguito 	Union 	High 	School 	District 	(2/25/82) 	PERB 	Decision
No. 	194. 	In that case a 	school district 	unilaterally
implemented 	a 	policy 	requiring 	teachers 	to 	sign 	out 	every 	time
they 	left 	the 	campus. 	This 	policy was 	implemented 	during 	the
fall 	of 	1977. 	An 	unfair practice 	charge 	was 	not 	filed 	by 	the
union until 	May 	1979, 	two years 	later. 	The union argued 	that
the 	time 	bar 	should 	not 	apply 	because 	a 	new 	violation 	occurred
each 	day 	that 	the 	district 	enforced 	its 	policy, 	making 	it 	a

March 25, 	1985
LA-CE-2129
Page 	5
continuing 	violation. 	The 	Board 	found 	no 	violation because 	the
original 	action was 	not 	"revived" 	by subsequent 	unlawful
conduct 	within 	the 	six-month period.
As 	in San Dieguito, 	the 	violation you allege 	is not
"continuing". 	There 	is 	no 	showing 	of any action by 	the
District 	within 	the 	six 	months 	proceeding 	filing 	of 	the 	charge.
The 	six—month 	statute 	of 	limitations 	may be 	tolled 	while 	a
charging 	party 	pursues 	alternative 	procedures 	for 	obtaining
relief, 	such as 	filing 	grievances 	pursuant 	to a 	negotiated
contract. 	(Ibid.) 	Thus, 	the 	time taken in pursuing related
grievances 	would 	not 	be 	counted 	in determining 	the 	six-month
period. 	There 	is 	no 	showing 	in 	the 	instant 	case 	that 	the
grievances 	you 	filed have 	taken 	since 	1976 	to process.
Therefore, 	the 	six-month 	statute 	of 	limitations 	still 	applies.
It 	might 	be 	argued 	that 	the 	continuing 	violation 	doctrine
should 	not 	apply where 	a 	situation 	repugnant 	to 	the purposes 	of
the 	EERA exists. 	However, 	the 	inclusion of 	supervisors 	in
bargaining units 	is 	not 	such a 	situation. 	If 	it 	were, 	the
Board 	would 	allow 	the 	filing 	of 	a 	unit 	modification petition 	at
any 	time 	and 	absent 	the 	conditions 	of 	changed 	circumstances 	or
joint 	filing 	required by 	Regulation 	32781. 	Further, 	the
federal 	cases 	would 	similarly 	entertain 	all 	unit 	clarification
petitions 	involving 	supervisors 	without 	consideration 	of
whether 	the petition 	undermine 	the parties' 	collective
bargaining 	relationship.
Lack 	of 	Facts 	Regarding 	Supervisory Duties
The 	charge 	fails 	to 	allege 	facts 	describing 	the 	duties 	of 	the
various 	classifications 	claimed 	to be 	supervisory. 	PERB does
not have 	personnel 	to 	investigate 	the duties 	of 	such
classifications 	as 	you have 	requested. 	The 	charging party 	must
allege 	facts 	sufficient 	to 	state 	a prima 	facie 	case 	to 	support
supervisory exclusion 	from 	the 	bargaining 	unit 	pursuant 	to 	EERA
section 	3540.l(m) 	which provides 	as 	follows:
"Supervisory employee" 	means 	any employee,
regardless of 	job description, 	having
authority 	in 	the 	interest 	of 	the 	employer 	to
hire, 	transfer, 	suspend, 	lay off, 	recall,
promote, discharge, 	assign, reward, or
discipline 	other 	employees, 	or 	the

March 25, 	1985
LA-CE-2129
Page 	6
responsibility 	to 	assign 	work 	to 	and 	direct
them, 	or to adjust their grievances, 	or
effectively recommend such action, 	if, 	in
connection with the 	foregoing 	functions, 	the
exercise 	of 	such 	authority 	is 	not 	of 	a
merely routine 	or 	clerical 	nature, 	but
requires 	the 	use 	of 	independent 	judgment.
The 	facts 	alleged 	must 	show 	that 	the employees 	in 	the
classifications 	claimed 	to 	be 	supervisory 	exercise 	with
independent 	judgment 	at 	least 	one 	of 	the duties 	and
responsibilities 	set 	forth 	in section 3540.1(m). 	Sweetwater
Union High School 	District 	(11/23/76) 	EERB Decision No. 	4. 	For
example, 	with 	regard 	to 	the Head 	Custodian I, 	PERB has 	found
employees 	with 	the 	same 	or 	similar 	classifications 	to be 	either
included 	in or 	excluded 	from 	the 	unit 	as 	supervisory, 	depending
upon their duties 	and 	responsibilities. 	See Sweetwater, 	supra.
Head 	Custodians 	excluded 	from 	unit; 	Marin 	Community 	College
District 	(6/26/78) 	PERB Decision No. 	55, 	Custodial Supervisor
included; 	Campbell 	Union High 	School 	District 	(8/17/78) 	PERB
Decision No. 	66, 	Lead 	Custodian excluded; 	Compton Unified
School District 	(10/26/79) 	PERB Decision No. 	109, 	Head
Custodian 	I 	excluded; 	Atascadero Unified 	School 	District
(12/30/81) 	PERB Decision No. 	191, 	Head Custodian I 	excluded.
In 	these 	cases 	the 	Board 	considered 	the 	various 	functions 	of
custodians, 	such as 	their 	role 	in "hiring and 	training, 	ability
to give 	oral 	and 	written 	reprimands, 	documentation 	of
performance problems, 	ability to recommend discipline, 	role 	in
discipline 	and 	evaluations, 	preparation of 	work 	schedules,
establishment 	of priorities, 	alteration of 	regular 	assignments
and 	assignment 	of 	overtime, 	inspection and 	correction 	of
subordinates' 	work, 	number of 	subordinates, 	the supervisory
chain of 	command 	above 	the 	classification 	in 	issue, 	and 	pay
differentials.
Thus, 	even 	if you had 	standing 	to 	file a 	charge alleging 	the
unlawful 	inclusion 	of 	supervisors 	in your bargaining 	unit, 	and
there 	were 	no 	time 	bar 	to 	the 	filing of 	the 	charge, 	the 	charge
still 	fails 	to 	allege a 	prima 	facie 	case because 	it 	lacks
sufficient 	facts 	to 	show 	that 	the 	classifications 	in 	issue 	are
indeed 	supervisory.
Opportunity 	to 	Amend
For 	the 	reasons 	stated 	above, 	the 	charge 	as 	presently 	written
does 	not 	state 	a 	prima 	facie 	violation of 	the 	EERA. 	If 	you

March 25, 	1985
LA-CE-2129
Page 	7
feel 	that 	there are 	facts or 	legal 	arguments which would
require different 	conclusion, 	an amended charge 	should be
prepared 	on a 	standard 	PERB unfair practice charge 	form clearly
labeled First Amended Charge, 	should contain all 	the
allegations you wish to make 	and be 	signed unde	- r penalty of
perjury. 	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 by
April 8, 	1985, 	I shall dismiss your charge. 	If you have any
questions on how to proceed, 	please call me at 	(213) 	736-3127.
Sincerely,
Barbara T. 	Stuart
Regional 	Attorney
BTS:bw