Elk Grove Unified School District (PERB 1190E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF STATE,
COUNTY, 	AND MUNICIPAL EMPLOYEES,
LOCAL 	258,
Charging 	Party,
v.
ELK GROVE UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SA-CE-1750
PERB Decision No. 	1190
March 25, 	1997
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Appearances; 	Jeannine Hartson, 	Business Agent, 	for American
Federation of State, 	County and Municipal Employees, 	Local 258;
Kronick, 	Moskovitz, 	Tiedemann & Girard by James Scot Yarnell,
Attorney, 	for Elk Grove Unified School 	District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by the American
Federation of State, 	County and Municipal 	Employees, 	Local 	258
(AFSCME) 	of a Board agent's partial dismissal 	(attached) 	of
AFSCME's 	unfair practice 	charge. 	The Board agent 	dismissed
AFSCME's 	allegations 	that 	the 	Elk Grove Unified School 	District
(District) 	violated the Educational 	Employment Relations Act
(EERA)1 by denying AFSCME access 	to bargaining unit members,
interfering with AFSCME's 	ability 	to 	represent 	its 	membership and
discriminating against 	an 	employee because 	of 	his 	exercise 	of
protected 	activity.
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.

The 	Board has 	reviewed 	the 	entire 	record 	in this 	case
including AFSCME's 	original 	and amended unfair practice 	charge,
the 	Board agent's partial 	warning and partial 	dismissal 	letters,
AFSCME's 	appeal 	and the District's 	response 	thereto. 	The Board
finds 	the partial 	warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and hereby adopts 	them as 	the 	decision 	of 	the
Board 	itself.
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	SA-CE-1750 	is hereby AFFIRMED.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
January 8, 	1997
Jeannine Hartson
Business Agent
American Federation of State,
County, 	and Municipal Employees
555 Capitol Mall, 	Suite 1225
Sacramento, 	CA 95814
Re: 	Unfair Practice Charge No. 	S-CE-1750
American Federation of State, 	County, 	and Municipal
Employees
- - , 	Local 258 v. 	Elk Grove Unified School District
PARTIAL DISMISSAL LETTER-------==-===~~-
Dear Ms. Hartson:
I indicated to you, 	in my attached letter dated December 11,
1996, 	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. 	You were further advised that, 	unless you amended these
allegations to state a prima facie case or withdrew them prior to
December 19, 	1996, 	the allegations would be dismissed.
On December 20, 	1996, 	Mr. 	Jerry Marois called on your behalf to
request an extension of time. 	Because you were on vacation when
my attached letter arrived, 	I 	extended your time to respond until
December 27, 	1996. 	On December 26, 	1996, 	I received an amended
charge. 	That charge asserts that Mr. 	Marois was American
Federation of State, 	County, 	and Municipal Employees, 	Local 258's
(Federation) 	"business agent" when the District placed him on
administrative 	leave pending investigation of the 	sexual
harassment complaint. 	As I stated in my December 11, 	1996
letter, 	however, 	a school district may restrict an employee
organization's access through reasonable regulation. 	(Long Beach
Unified School District 	(1980) 	PERB Decision No. 	130 at 4.)
Although the charge asserts 	that 	the 	administrative 	leave
prevented Mr. 	Marois 	from performing the duties of business
agent, 	it does not indicate that the administrative leave
interfered with Federation job stewards or employees' 	ability to
perform these duties. 	Therefore, 	the amended charge fails to
state a prima facie case for denial of access.
The 	amended charge also asserts 	that 	the Elk Grove Unified School
District 	(District) 	interfered with union members rights when it
interviewed union board members 	regarding statements made by Mr.
Marois during union meetings. 	As 	I 	indicated in my December 11,
1996 	letter, 	because the amended charge does not 	indicate that
(

S-CE-1750
Partial Dismissal 	Letter
January 8, 	1997
Page 2
the interviews concerned any Federation business, 	it does not
allege facts sufficient to state a prima facie charge of
interference. 	(See Clovis Unified School District 	(1980) 	PERB
Decision No. 	389 at 15-16.)
Based on the 	facts and reasons 	contained in both this 	letter and
in my December 11, 	1996 letter, 	I am dismissing the allegations
concerning denial of access, 	discrimination, 	and interference.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal 	of certain allegations
contained in the charge by filing an appeal 	to the Board itself
within twenty 	(20) 	calendar days after service of this dismissal.
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32635(a).) 	To be timely filed,
the original and five copies of such appeal must be actually
received by the Board itself before 	the 	close of business
(5 p.m.) 	or sent by telegraph, 	certified or Express United States
mail postmarked no later than the last date 	set 	for filing.
(Cal. Code of Regs., 	tit. 	8, 	sec. 32135.) 	Code of Civil
Procedure section 1013 	shall apply. 	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
copies of a statement 	in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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
(

S-CE-1750
Partial Dismissal 	Letter
January 8, 	1997
Page 3
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. 	(Cal. Code of Regs., 	tit. 8, 	sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time 	limits have expired.
Sincerely,
Charles Sakai
Board Agent
Attachment
cc: 	James Scot Yarnell
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall, 	27th Floor
Sacramento, 	CA 95814-4417

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
PERO
December 11, 	1996
Jeannine Hartson 	.
Business Agent
American Federation of State,
County, 	and Municipal Employees
555 Capitol Mall, 	Suite 1225
Sacramento, 	CA 95814
Re: 	Unfair Practice Charge No. 	S-CE-175
American Federation of State. 	County, 	and Municipal
Employees, 	Local 258 v. 	Elk Grove Unified School District
PARTIA	- - - 	L WARNING LETTER
0
Dear Ms. Hartson:
In the above-referenced charge, 	the American Federation of State,
County, 	and Municipal Employees, 	Local 258 	(Federation) 	alleges
that 	the Elk Grove Community College District 	(District) 	violated
sections 3543, 3543.1(b), and 3543.5(a) and (b) of the
Educational Employment Relations Act 	(EERA) 	during its
investigation of 	alleged sexual 	harassment 	by Jerry Marois
(Marois). 	My investigation revealed the following information:
On or about July 11, 	1996, 	Jim Strumpfer 	(Strumpfer), 	Director of
Purchasing for the District, 	filed a complaint of 	sexual
harassment against Marois, 	Strumpfer's subordinate and the
Federation's local chapter president. 	On that date, 	the District
interviewed Marois 	and placed him on administrative 	leave pending
an investigation of the sexual harassment complaint.
As part of 	its 	investigation of 	the sexual harassment 	complaint,
the District 	interviewed a number of Federation members and
officers. 	These interviews took place between July 11, 	1996 and
July 26, 	1996. 	During these interviews, 	the District asked
questions 	regarding statements 	that Marois 	had allegedly made
during union meetings.
The charge raises a number of potential violations of the EERA.
First, 	an employee has a right to representation during an
investigatory interview which the 	employee 	reasonably believes
may lead to discipline. 	Second, 	the charge alleges that, 	when
the District placed Marois on administrative leave, 	it denied the
Federation access to unit members. 	Third, 	the charge alleges
that 	the District's 	investigation into statements made during
union meetings 	interfered with the 	Federation's 	ability to
represent its membership. 	Finally, 	the charge alleges that the
District discriminated against Marois because of his exercise of
protected 	activity.
=-----_-_-_	--=---

S-CE-1750
Partial 	Warning Letter
December 11, 	1996
Page 2
The 	foregoing facts 	fail 	to state a prima facie violation of the
EERA for the reasons that 	follow.
Under EERA, 	an employee is entitled to representation during an
employer's 	investigatory interview if 	the employee 	reasonably
believes 	that 	the 	interview may lead to discipline. 	(Barstow
Unified School District 	(1996) 	PERB Decision No. 	1164 at proposed
decision 17.) 	In order to exercise that right, 	however, 	the
employee must 	request 	such representation. 	(See Regents of the
University of California 	(1983) 	PERB decision No. 	310-H, 	proposed
Decision at 31) 	The charge does not allege that Marois made any
such request. 	Accordingly, 	the charge fails to state a prima
facie case for violation of Marois' 	right to representation.
EERA section 3543.1(b) 	guarantees employee organizations
reasonable access to areas in which employees work. 	(See
Woodland Joint Unified School District 	(1987) 	PERB Decision No.
628 	at 	3 	(noting that District's discriminatory denial 	of access
constituted interference but not unilateral change).) 	That
access, 	however, 	may be limited by reasonable regulations. 	(Long
Beach Unified School District 	(1980) 	PERB Decision No. 	130 at 4.)
Your charge asserts that the District has denied Mr. 	Marois
access to Federation membership but 	fails 	to allege 	any details
regarding this alleged denial of access. 	Further, 	it 	is not
clear from the charge that the District's actions 	interfered with
the Federation's right of access to its membership through union
stewards or Federation employees. 	In order to demonstrate that
the District has denied the Federation its statutory right 	to
access, 	you must allege that the District has imposed objectively
unreasonable restrictions on the Federation's right of access.
(Ibid; 	see PERB Regs. 	§32615(a)(5) 	(noting that charge must state
with specificity the 	conduct 	alleged to violate 	the 	EERA).)
Accordingly, 	the charge, 	as currently written, 	fails to state a
prima facie case of denial of access.
In order to demonstrate an interference violation, 	a charging
party must show that 	the employer's conduct tends to or does
result 	in some 	harm to employee 	rights. 	(Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89 at 10.) 	The Charge alleges
that 	the District 	interviewed a number of Federation members and
officers 	regarding statements 	that Marois purportedly made while
conducting Federation business. 	The Charge does not 	indicate the
nature of the District's questions, 	however. 	It appears that the
interviews 	concerned statements 	constituting potential 	sexual
harassment 	that were made during Federation meetings, 	rather than
any Federation business. 	Accordingly, 	the Federation has failed
to demonstrate 	that 	the District's 	investigation was 	the 	sort
that 	causes or tends 	to cause harm to the protected rights of

S-CE-1750
Partial Warning Letter
December 11, 	1996
Page 3
Federation members. 	(See Clovis Unified School District 	(1989)
PERB Decision No. 	389 at 15-16.)
A prima 	facie 	showing of 	retaliation or discrimination has 	the
following elements: 	(1) 	the employee exercised rights under the
EERA; 	(2) 	the employer had knowledge of the exercise of those
rights; 	and 	(3) 	the employer imposed or threatened to impose
reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained or coerced the employees
because of the exercise of those rights. 	(Novato Unified School
District 	(1982) 	PERB Decision No. 	210 at 5.) 	Although the charge
alleges that the District was aware of Marois' 	protected
activity, 	it 	fails to allege facts which show that the District
undertook its 	investigation of Marois 	in response to that
protected activity. 	Accordingly, 	the charge fails to state a
cause of action for discrimination as well.
For these reasons 	the 	allegations that 	the District unlawfully
denied the Federation access 	to 	its membership and interfered
with employee 	rights by interviewing union members 	and officers,
as presently written, 	do not state a prima facie case. 	If there
are any factual 	inaccuracies 	in this 	letter or additional 	facts
which 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 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
December 19, 	1996, 	I shall dismiss the above-described
allegations from your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Charles 	Sakai
Board Agent