State of California (Department of Developmental Services) (PERB 0423S)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
ADOLPH 	DONINS,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF DEVELOPMENTAL SERVICES),
Respondent.
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) 	Case No. 	LA-CE-132-S
PERB Decision 	No. 	423-S
October 	24, 	1984
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Appearances; 	Adolph Donins, 	in propria persona.
Before Hesse, Chairperson; 	Morgenstern and Burt, Members.
DECISION
MORGENSTERN, 	Member: 	Charging Party Adolph Donins appeals
the attached dismissal of his 	charges 	alleging violations 	of
section 	3519 	of 	the 	State Employer-Employee Relations Act
(Government Code section 3512 et seq.).
The Public Employment Relations Board 	(Board) 	has 	reviewed
the regional attorney's dismissal 	in light of 	the appeal and
the entire record herein and, 	finding 	it 	free 	from prejudicial
error, 	adopts it as the decision of the Board itself.11
1We 	disagree 	that 	the 	allegation 	of discrimination 	by 	the
hospital's 	initial refusal to permit 	Donins to file 	a grievance
was 	rendered 	"moot" 	by the hospital's 	subsequent acceptance of
the grievance. 	Nonetheless, 	this finding 	is not prejudicial
since 	the 	allegation was properly dismissed 	on 	the grounds 	that
the hospital's 	subsequent 	conduct 	served 	to dispel 	any
inference 	of unlawful motivation.
__ )
l

ORDER
Adolph Donins' 	appeal in Case No. 	LA-CE-132-S is hereby
DENIED.
Chairperson Hesse and Member 	Burt 	joined 	in 	this Decision.
22

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
November 10, 1983
Adolph 	Donins
1931 North "H" Street, Apt. 67
Oxnard, 	CA 	93030
Wayne 	Heine
Dept, of Develop. Services
1600 	9th Street
Sacramento, 	CA 	95814
Rich McWilliam, 	Labor Relations Officer
Department of 	Personnel Administration
1115 - 11th Street
Sacramento, 	CA 	95814
RE: 	DISMISSAL OF UNFAIR PRACTICE CHARGE
LA-CE-132-S, Adolph Donins v. 	State of California
(Department of Mental Health)
Dear Parties:
The above charge was filed on September 12, 	1983, 	and alleges
that 	the Camarillo State Hospital 	retaliated 	and discriminated
against Adolph Donins by not allowing him to return to work
after he had obtained 	a medical release 	from a doctor 	who did
not 	initially certify Donins1 disability. 	Donins 	further
claims 	that he was discriminated and 	retaliated against by 	the
hospital's refusal to allow him to file a grievance. 	As a
related allegation, Donins alleges 	that the hospital changed
its policy and past practice by refusing 	to honor his personal
doctor's medical release to return to work, 	and by 	insisting
that he obtain a release from Doctor Borreli, who initially
certified 	the disability.
My 	investigation 	revealed 	the 	following 	facts. 	Adolph 	Donins
is a psychiatric 	technician for 	the Camarillo State Hospital,
age 58. 	His duties over the many years there 	(25) 	as a
"psych-tech", 	include restraining often-violent mental
patients. 	As a result of his job, Mr. Donins has sustained a
recurring 	injury 	to his elbow and 	shoulder 	area. 	The 	initial
injury occurred on or about August 23, 	1979, while Mr. Donins
had 	to use a great deal of force to restrain a patient who
attacked him. 	Since then, 	there has been a history of
recurring problems with this 	injury, 	and 	recurring medical
examinations and 	injury leaves, 	followed by light-duty
assignments upon return.

LA-CE-132-S
November 10, 1983
Page 2
On about September, 	1982, Donins reinjured his right arm and
was certified disabled by Doctor 	Lawrence Borreli. 	During 	the
period of September, 1982 to August 7, 	1983, Donins was on an
injury leave and 	received several physical examinations, 	all of
which 	indicated 	that 	the symptoms of 	the disability continued.
On August 8, 	1983, however, Donins obtained a release-to-work•
letter 	from Doctor Daniel A. 	Capen, 	and used 	it to request the
hospital 	to reinstate him. 	The situation baffled 	the hospital
because Doctor Capen 	issued a 	second 	letter dated August 	9,
1983, 	which indicated that, 	although Donins could return to
work, 	he recommended that Donins not resume "performing
activities on a continuous basis with his upper extremities".
During this period of disability, 	Donins was on a
rehabilitation program under Worker 	Compensation wherein he was
receiving 	training and monetary benefits. 	Just prior 	to August
8, 	1983, Donins failed to pass a written examination on a
training 	test for respiratory technician. 	Mr. Donins signed a
statement acknowledging this failure on August 8, 	1983, 	and was
made aware that his rehabilitation moneys would be 	stopped if
he continued 	to fail 	the retraining program. 	The hospital,
aware of 	this, was apprehensive about the coincidence of these
events.
It was the same type of apprehension created by the ambiguous
release 	that had prompted the hospital to 	implement a policy
back 	in May, 	1982, to require employees returning from a
disability to produce a 	release from the physician who
initially certified the disability. 	The hospital produced
evidence during this investigation to show that, 	in fact, a
uniform policy had been 	implemented 	beginning 	in May, 	1982
(prior 	to the most 	recent collective bargaining agreement) that
required Donins 	to obtain a release 	from Doctor Borreli.
Independent employee witnesses confirmed 	that such a policy had
been in effect.1
Therefore, 	in response to Donins1 request to return to work in
August, 	1983, 	the hospital personnel official informed Mr.
Donins that he would 	first have to obtain a written release
1Donins 	stated during 	the 	investigation 	that 	he was
unsure of 	the hospital's past practice since he did not have
access to hospital records. 	He has not given any evidence that
the past practice 	is different 	than 	that procedure 	that was
applied 	to his 	situation.

LA-CE-I32-S
November 10, 1983
Page 	3
from Doctor 	Borreli. 	Donins 	thereafter 	sought to file a
grievance based 	upon 	the hospital's 	failure 	to allow him to
return to work. 	The hospital 	failed 	to allow him to file such
a grievance, 	but counseled him to file a 	"Complaint" 	under 	the
contractual grievance procedure. 	The Complaint, with no
recourse 	to binding 	arbitration as are other grievances, 	was
summarily rejected as not having merit. 	Thereafter, 	Donins
filed 	the 	instant unfair practice 	charge.
During 	the 	investigation of 	the unfair practice charge, 	Donins
agreed to be examined by Doctor Borreli. 	The hospital was
informed 	by Donins 	that 	although Borreli 	had verbally 	released
him to work, 	he 	refused 	to provide Donins with a written
release. 	In light of 	these developments 	and the 	facts 	that
Donins had complied with 	all previous 	requirements 	asked 	for by
the hospital, 	and based upon 	its desire to settle the unfair
practice dispute, 	the hospital decided to allow Donins to
return to work. 	Donins had effectively won his grievance, 	and
was told 	to report 	to work.
However, on October 13, 	1983, 	the hospital received a written
letter 	from Doctor Borreli 	stating 	that, 	although the
disability 	in the elbow and shoulders was gone, he had some
reservations about Donins returning 	to work, noting his age,
weight, 	and 	the risk 	involved 	in Donins working around violent
patients. 	Thus, 	when the hospital officially notified Donins
in writing 	that he could return to work, 	he was asked to submit
to a subsequent orthopedic examination. 	Donins argues that
this 	is 	further 	evidence of discrimination, 	retaliation against
him, 	and a change 	from past practice.
However, 	this 	investigation has drawn evidence that, 	although
Donins did engage 	in protected activities, 	the hospital's
actions were consistent with 	its past practice. 	The
investigation 	revealed 	that other 	employees 	in like
circumstances were 	treated the same way as Mr. Donins. 	The
requirements 	imposed upon Donins 	as preconditions 	to his return
to work were 	imposed 	uniformly, 	notwithstanding any protected
activities. 	It should also be noted 	that Donins's most recent
protected 	activities date 	back 	to 	late July or 	early August,
1982. 	In sum, 	there 	is no evidence of disparate treatment.
As noted 	above, 	there 	is also no evidence of a unilateral
change of terms and conditions of employment, much less a
unilateral change of 	the 	same.
\

LA-CE-132-S
November 10, 1983
Page 4
Insofar 	as 	the hospital requires 	that Donins submit 	to a
post-employment examination, 	this 	is not contrary to past
practice, 	nor 	is 	it a requirement which has generalized effect
or 	a 	"continuing 	impact upon the 	terms and conditions of
employment of bargaining 	unit members". 	See Grant Joint Union
High School District 	(2/26/82) 	PERB Decision No. 196. 	Instead,
the hospital, 	faced with two ambiguous medical releases, and
potential 	legal 	liability 	should Donins 	suffer 	avoidable
physical harm, 	decided 	to require Donins to submit 	to such a
medical examination, while allowing him to work 	in the
meantime. 	No facts have been alleged or produced 	to 	indicate
that such post-employment examinations, 	in circumstances such
as 	these, 	are a departure 	from established practice or 	that
such was discriminatorily motivated. 	Nor was such 	an
examination made a prerequisite 	to Donins1 return to work.
For all of 	the 	foregoing reasons, 	the facts alleged 	in the
charge and 	those produced during 	this 	investigation 	indicate
that a prima 	facie violation of 	the 	SEERA does not exist.
Because 	the hospital has since allowed Donins to file a
grievance, 	which Donins effectively won, 	that issue 	is now
moot. 	Therefore, 	the unfair practice charge is dismissed.
Pursuant to Public Employment Relations Board regulation 	32635
(California Administrative Code, title 8, party 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 Notice 	(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 November 	30, 1983, or sent by
telegraph or 	certified United States mail postmarked not 	later
than November 30, 1983 	(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, 	any other party may
file with 	the executive assistant to 	the Board an original and

LA-CE-132-S
November 10, 1983
Page 5
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 except 	for
•	amendments 	to the charge must also be 	"served" 	upon 	all parties
to 	the proceeding, 	and a 	"proof of 	service" must accompany the
document 	filed with 	the Regional Office or 	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
executive assistant to the Board 	at 	the previously noted
address. 	A request for an extension 	in which to file a
document with 	the Regional Office 	should 	be addressed 	to the
Regional Attorney. 	A request 	for 	an extension must be 	filed at
least three 	(3) 	calendar days before the expiration of the time
required 	for 	filing 	the subject 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
Manuel M. 	Melgoza
Regional Attorney
MMM:djm