Sweetwater Union High School District (PERB 1439E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MICHAEL NATHANIEL MILLER,
Charging Party, Case No. LA-CE-4238-E

V. PERB Decision No. 1439

SWEETWATER UNION HIGH SCHOOL May 22, 2001

DISTRICT,

Respondent.

Appearances: Michael Nathaniel Miller, on his own behalf; Atkinson, Andelson, Loya, Ruud
and Romo by Clifford D. Weiler, Attorney, for Sweetwater Union High School District.
Before Amador, Baker and Whitehead, Members.
DECISION
AMADOR, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Michael Nathaniel Miller (Miller) to a Board agent's dismissal (attached)
of the unfair practice charge. The charge alleges that the Sweetwater Union High School

District violated section 3543.5(a) of the Educational Employment Relations Act (EERA)' by

' EERA is codified at Government Code section 3540 et seq. Section 3543.5(a)
provides, in relevant part:

It shall be unlawful for a public school employer to do any of the
following:

(a) Impose or threaten to impose reprisals 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. For

placing Miller on administrative leave after he requested union representation at a disciplinary
hearing.
After reviewing the entire record, the Board finds the dismissal to be free of prejudicial
error and adopts it as the decision of the Board itself.2
ORDER
The unfair practice charge in Case No. LA-CE-4238-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
purposes ofthis subdivision, "employee" includes an applicant
for employment or reemployment.
2 The Board notes that in his appeal, Miller asserts that he did not receive the warning
letter in a timely fashion. 	Assuming this assertion to be true, the Board reviewed the appeal to
ascertain whether Miller has stated a prima facie case of a violation of EERA. Having found
none, dismissal is appropriate for the grounds stated by the Board agent in the attached
dismissal.
2

OF
CALIFORNIA 	GRAY
DAV,.,
Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay
Street, Suite
2201
Oakland, CA
94612
1510)
622-1016
February
	27, 	2001
Michael
	Miller
540
	65th,
	Apt.
	201
San
	Diego,
	CA
	92114
Re:
	Michael
	Nathaniel
	Miller
	v. 	Sweetwater
	Union High
	School
District
Unfair
	Practice
	Charge
	No.
	LA-CE-4238
Dismissal
	and
	Refusal
	to 	Issue
	a
	Complaint
Dear
	Mr.
	Miller:
In 	the 	above-referenced
	charge,
	filed
	on
	November
	14, 	2000,
Michael
	Nathaniel
	Miller 	alleges
	the
	Sweetwater
	Union 	High 	School
District
	(District) 	violated
	the 	Educational
	Employment
	Relations
Act
	(EERA
	or
	Act)
	§
	3543.5
	by
	placing
	him 	on
	administrativeleave.
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	datedFebruary
	16, 	2001,
	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
	thecharge.
	You
	were
	further
	advised
	that,
	unless
	you 	amended
	the
charge
	to
	state
	a
	prima
	facie 	case 	or
	withdrew
	it
	prior 	to
February
	26, 	2001,
	the
	charge
	would 	be
	dismissed.
I
	have
	not
	received
	either
	an
	amended
	charge
	or
	a
	request 	for
withdrawal. 	Therefore,
	I 	am
	dismissing 	the 	charge 	based
	on
	the
facts
	and
	reasons 	contained 	in
	my
	February
	16,
	2001
	letter.
Right
	to
	Appeal
Pursuant 	to 	Public
	Employment
	Relations
	Board
	regulations,
	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.
	(Cal.
	Code
	Regs.
,
	tit.
	8,
sec.
	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	
11
filed
11	
when
	actually 	received 	before
the 	close 	of 	business
	(5
	p.m.) 	on 	the 	last
	day 	set 	for 	filing 	or
when 	mailed 	by
	certified 	or 	Express 	United 	States 	mail, 	as 	shown
on 	the 	postal 	receipt 	or 	postmark, 	or 	delivered 	to
	a 	common
carrier 	promising 	overnight 	delivery, 	as 	shown 	on 	the 	carrier'sreceipt, 	not 	later 	than 	the 	last 	day 	set 	for 	filing. 	(Cal. 	Code

Dismissal
	Letter
Page
	2
Regs.,
	tit.
	8,
	sec.
	32135(a); 	see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32130.)
A
document
	is
	also
	considered
	"filed"
	when
	received
	by
	f~csimiletransmission 	before 	the 	close 	of 	business
	on
	the
	last
	day
	for
filing
	together
	with
	a
	Facsimile 	Transmission
	Cover
	Sheet
	which
meets
	the 	requirements 	of
	Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
	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.
	(Cal.
	Code.
	Regs.,
	tit.
	8,
	secs.
	32135
(b),
	(c)
	and
	(d);
see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
	secs.
	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.
	(Cal.
	Code
Regs.,
	tit.
	8,
	sec.
	32635(b).)
Service
All
	documents
	authorized 	to
	be
	filed
	herein
	must
	also
	be
	"served"
upon
	al
1
	parties 	to 	the 	proceeding,
	and
	a
	nproof
	of
	service''
must 	accompany
	each
	copy
	of
	a
	document
	served
	upon
	a
	party 	or
filed
	with
	the
	Board
	itself.
	(See
	Cal.
	Code
	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.
	A
document
	filed
	by
	facsimile 	transmission
may
	be
	concurrently 	served via 	facsimile 	transmission
	on
	all
parties
	to 	the 	proceeding.
	(Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
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

LA-CE-4238
Dismissal 	Letter
Page 	3
be 	accompanied 	by 	proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code 	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,
ROBERT 	THOMPSON
Deputy General 	Counsel
By
Attachment
cc: 	Clifford D. 	Weiler

STATE
OF
CALIFORNIA	
GRAY
DAVIS,
Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay Street, Suite
2201
Oakland, CA
94612
(510)
622-1016
February
	16,
	2001
Michael
	Miller
540
	65th,
	Apt.
	201
San
	Diego,
	CA
	92114
Re:
	Michael
	Nathaniel 	Miller
	v.
	Sweetwater
	Union 	High
	School
District
Unfair
	Practice
	Charge
	No.
	LA-CE-4238
WARNING
	LETTER
Dear
	Mr.
	Miller:
In 	the 	above-referenced
	charge,
	filed
	on
	November
	14, 	2000,
Michael
	Nathaniel
	Miller 	alleges
	the
	Sweetwater
	Union 	High
	School
District
	(District) 	violated
	the 	Educational
	Employment
	Relations
Act
	(EERA
	or
	Act)
	§
	3543.5
	by
	placing
	him on
	administrativeleave.
	My
	investigation
	of 	the
	charge
	revealed 	the 	following
information.
Miller
	is
	employed 	by
	the
	District
	as
	a
	Custodian
	at
	Eastlake
High
	School.
	As 	a
	classified
	employee,
	Miller
	is
	exclusivelyrepresented
	by
	the 	California
	School 	Employees
	Association.
	CSEA
and
	the
	District
	have
	a
	collective
	bargaining
	agreement
	with
effective
	dates 	of
	1999-2001.
On
	August
	9, 	2000,
	Charging
	Party
	and
	his
	union
	representativeattended
	a
	Level
	II
	Grievance 	meeting 	with
	Assistant 	~rincipal
Ricardo 	del
	Rio,
	regarding
	Charging
	Party's
	performance
evaluation.
	The
	parties
	were
	unable
	to
	reach
	an 	agreement.
At
	approximately 	4:15 	p.m., 	del
	Rio
	left
	his 	office 	for 	the
	day.At
	approximately 	4:30 	p.m.,
	Charging
	Party 	entered 	del 	Rio's
office
	using
	his
	master
	key. 	Charging
	Party
	is
	not 	responsible
for 	cleaning 	the 	administrative 	offices
	and
	is
	not
	authorized 	toaccess 	such
	offices.
	Upon
	entering 	del 	Rio's 	office,
	Charging
Party 	locked 	the 	door 	and
	shut 	the 	blinds.
At
	approximately 	5:00 	p.m., 	Assistant 	Principal
	Bob
	Barrett
walked
	past 	del 	Rio's 	office
	and
	noticed 	the 	light
	was
	on. 	While
next 	to 	the 	door,
	Barrett 	reported 	hearing 	keystrokes
	on
	a
computer 	keyboard, 	and 	believing 	del
	Rio
	to
	be
	in 	his 	office,Barrett
	knocked 	on 	the 	door. 	After
	20
	seconds, 	Charging 	Partyopened 	the 	door 	to 	del 	Rio's 	office. 	Barrett 	asked
	if
	del 	Riowas
	there 	and 	Charging 	Party 	said
	"No." 	Charging 	Party 	then 	leftthe 	office. 	After 	asking 	the 	Charging 	Party 	to 	exit 	the 	office,
Barrett 	telephoned 	del 	Rio. 	Del 	Rio 	then 	telephoned 	Charging
Party 	at
	home 	to 	set 	up 	a 	meeting 	for 	the 	next 	day.
..,

LA-CE-4238
Warning
	Letter
Page
	2
On
	August 	10, 	2000,
	Charging
	Party
	was
	called
	into
	a
	meeting 	with
del
	Rio 	and
	Barrett.
	Charging
	Party 	requested
	union
representation
	at 	this
	meeting,
	and
	thus 	the
	meeting
	was
cancelled.
	Charging
	Party
	was
	instructed
	to
	reschedule
	the
meeting
	within
	48
	hours.
	Additionally,
	Charging
	Party
	was
	placed
on
	administrative
	leave
	with
	pay
	pending
	the
	outcome
	of 	the
investigation.
District
	Policy
	4245.1,
	Discipline
	of
	Classified
	Employees,
provides
	employees
	may
	be
	placed
	on
	administrative
	leave 	with
	pay
during 	the 	processing 	of
	allegations 	or
	pending
	the
	outcome
	of
the 	hearing 	process.
The
	above
	stated
	information
	fails
	to
	state
	a
	prima
	facie
violation
	within 	the
	jurisdiction
	of
	PERB
	for
	the 	reasons
	stated
below.
Charging
	Party
	contends 	the
	District
	placed
	him 	on
	administrative
leave
	because
	he
	requested
	a
	union
	representative
	during
	a
disciplinary
	meeting.
	To
	demonstrate
	a
	violation
	of
	EERA
	section
3543.5(a), 	the 	charging
	party
	must
	show
	that:
	(1)
	the
	employee
exercised
	rights
	under
	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;
	Carlsbad
Unified
	School
	District
	(1979)
	PERB
	Decision
	No.
	89;
	Department
of
	Developmental
	Services
	(1982)
	PERB
	Decision
	No.
	228-S;
California 	State 	University
	(Sacramento)
	(1982)
	PERB
	Decision
No.
	211-H.)
Although
	the 	timing 	of 	the 	employer's 	adverse
	action 	in 	close
temporal 	proximity
	to 	the 	employee's
	protected
	conduct
	is
	an
important
	factor,
	it
	does
	not, 	without
	more,
	demonstrate
	the
necessary 	connection
	or
	11
nexus
11
	between
	the 	adverse
	action
	and
the 	protected
	conduct.
	(Moreland
	Elementary 	School
	District
(1982)
	PERB
	Decision
	No.
	227.) 	Facts
	establishing
	one
	or
	more
of 	the 	following 	additional 	factors
	must
	also
	be
	present:
(1)
	the 	employer's 	disparate 	treatment 	of 	the
	employee;
	(2)
	the
employer's 	departure
	from
	established 	procedures
	and
	standards
when
	dealing 	with 	the
	employee; 	(3)	
the 	employer's 	inconsistent
or 	contradictory 	justifications 	for
	its
	actions;
	( 4)
	the
employer's 	cursory 	investigation 	of 	the 	employee's 	misconduct;
(5)
	the 	employer's 	failure 	to 	offer 	the 	employee
	justification at
the 	time
	it
	took 	action 	or 	the 	offering 	of 	exaggerated, 	vague, 	or
ambiguous 	reasons; 	or 	(6) 	any 	other 	facts
	which 	might 	demonstrate
the 	employer's 	unlawful 	motive. 	(Novato 	Unified 	School
	District,
supra; 	North 	Sacramento 	School 	District
	(1982) 	PERB
	DecisionNo. 	264.)

LA-CE-4238
Warning
	Letter
Page
	3
The
	alleged
	adverse
	action 	closely
	followed
	the
	Charging
	Party's
participation
	in
	a
	meeting
	with
	a
	union
	representative.
	However,
it
	appears
	the
	District's
	action 	in 	placing
	Charging
	Party
	on
administrative
	leave 	with
	pay
	was
	consistent
	with
	District
policy,
	which
	provides
	for
	such
	discipline
	when
	charges
	are
pending.
	Moreover,
	Charging
	Party
	was
	informed
	of 	the 	charges
against
	him
	and
	the 	reason 	for
	his 	administrative
	leave.
	As
	the
Charging
	Party
	fails
	to
	provide
	any
	nexus
	factors 	other
	than
timing, 	the
	charge
	fails
	to
	state
	a
	prima
	facie
	case
	and 	must 	be
dismissed.
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
	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
	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
	February
	26, 	2001,
	I
shall
	dismiss 	your 	charge.
	If
	you 	have 	any
	questions, 	please
call
	me
	at
	(510)
	622-1023.
Sincerely,
~~
Tammy
	Samsel
Regional 	Attorney