California School Employees Association (Petrich) (PERB 0767E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TONY PETRICH,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. LA-CO-3 3 9
PERB Decision No. 	767
September 18, 	1989
Appearance: 	Tony Petrich, 	on his own behalf.
Before Porter, 	Craib and Camilli, 	Members.
DECISION
PORTER, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by Tony Petrich
(Petrich) 	of 	the Board agent's dismissal 	of a portion of his
unfair practice 	charge 	against 	the 	California 	School 	Employees
Association 	(CSEA). 	The Board agent 	found that Petrich's
allegation that CSEA threatened 	to 	impose 	reprisals 	on Petrich
because 	he 	engaged 	in protected 	activity 	failed 	to 	state 	a
prima 	facie violation of 	section 3543.6(b) 	of the Educational
Employment Relations Act 	(EERA).1 We agree that Petrich has
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1JEERA	EERA 	is 	codified at Government Code 	section 3 540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.6 provides, 	in relevant
part:
It 	shall be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose reprisals
. . . . 	. 	. . . . . . . . . . . . . . . 	. 	. .

failed to 	state 	a prima 	facie violation of 	section 	3543.6(b)
inasmuch 	as 	we 	find 	that 	Petrich's 	conduct 	did 	not 	constitute
protected 	activity.
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise 	of 	rights
guaranteed by this 	chapter.
FACTUAL 	SUMMARY
Petrich 	filed 	a 	unit 	modification petition 	seeking
to 	remove 	115 	employees 	from the 	existing bargaining unit
represented by CSEA at 	the 	Riverside 	Unified 	School 	District
where he was 	employed. 	The 	PERB regional 	director rejected
the petition on the 	ground 	that 	Petrich had no 	authorization
from CSEA to 	file 	the petition, 	nor did Petrich have 	independent
standing to 	file 	the petition. 	Petrich 	appealed the 	rejection
of 	the petition to 	the 	Board 	itself, 	and the Board affirmed 	the
rejection of 	the unit modification petition. 	(Riverside 	Unified
School District 	(Petrich) 	(1985) 	PERB Order No. 	Ad-148a.)
Meanwhile, 	CSEA notified Petrich by mail 	that his
unauthorized conduct was 	detrimental to CSEA and 	its 	members, 	and
was 	in violation of CSEA's 	internal rules. 	Petrich was 	further
informed that 	similar conduct 	in the 	future 	could result 	in CSEA
taking disciplinary 	action 	against 	him.
Petrich 	filed 	a 	charge 	against CSEA alleging that 	CSEA
imposed a reprisal on him 	(i.e., 	the letter from CSEA), 	thereby
interfering with his 	exercise of protected rights.
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DISCUSSION
The 	issue 	to be determined 	is whether Petrich's 	individual
or 	unauthorized 	filing 	of 	the 	unit 	modification petition
constitutes protected conduct. 	Government Code 	section 	3543,
which prescribes 	the rights 	of public 	school 	employees 	that 	are
protected by EERA, 	does 	not give a public 	school 	employee the
right 	to 	file 	a unit modification petition. 	PERB 	Regulation
32781 	(Cal. Admin. Code, 	tit. 	8, 	sec. 	32781) affords the right
to petition 	for a unit modification only to an exclusive
representative 	employee 	organization and/or to 	a public 	school
employer. 	Accordingly, 	this Board, 	in Riverside Unified School
District 	(Petrich). 	supra, 	PERB Order No. 	Ad-148a, 	held that
the 	charging party did not have 	standing to 	file 	the 	unit
modification petition. 	We, 	therefore, 	find that Petrich's
individual 	or unauthorized 	filing 	of 	the petition did 	not
constitute 	the 	exercise 	of 	any 	right 	guaranteed 	to 	him under
EERA.
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The 	conduct 	at 	issue here 	is 	to be distinguished 	from the
situation where 	an 	individual 	employee 	files 	an unfair practice
charge with PERB, 	which 	filing 	is 	an expressly granted right
pursuant to EERA section 	3541.5(a). 	Where an individual
exercises 	a 	statutory right, 	such as 	in the case of 	filing an
unfair practice charge, 	the merit 	(or lack thereof) 	of the 	charge
is 	immaterial 	to a determination of 	the 	status 	of the 	conduct.
In other words, 	the conduct is protected even if the charge 	is
found to be meritless.
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ORDER
For 	the 	reasons 	stated above, 	the 	Board hereby DISMISSES
WITHOUT LEAVE 	TO AMEND the portion of 	the 	charge 	alleging a
violation of 	section 3543.6(b) 	of EERA in Case No. 	LA-CO-339.
Members 	Craib and Camilli 	joined 	in this 	Decision.
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