Riverside Unified School District (PERB 0513E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TONY PETRICH, )
Charging Party, ) Case No. LA-CE-2130
Vv. ) PERB Decision No. 513
RIVERSIDE UNIFIED SCHOOL DISTRICT, June 21, 1985

Respondent.

me eet

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
partial dismissal, attached hereto, of certain portions of his
charges alleging that the Riverside Unified School District
violated section 3543.5(a), (b), (c) and (d) of the Educational
Employment Relations Act (Government Code section 3540 et
seq.).°
We have reviewed the Board agent's partial dismissal and,

finding it free from prejudicial error, adopt it as the

Decision of the Board itself.

“On April 10, 1985, the Board's regional attorney issued
a complaint in the instant case wherein she found that certain
allegations contained in the charge established a prima facie
violation of Government Code section 3543.5(a).

ORDER
Charging Party's appeal of the partial dismissal is hereby

DENIED.

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
24536 	Vandenberg 	Drive
Sunnymead, 	California 	92388
Re: 	LA-CE-2130, 	Tony Petrich v. 	Riverside Unified 	School
District 	PARTIAL 	DISMISSAL OF 	UNFAIR 	PRACTICE 	CHARGE
Dear Mr. 	Petrich:
The 	above-referenced 	charge 	and 	first 	amended 	charge 	allege
that 	the 	Riverside 	Unified 	School 	District has 	violated
Government Code section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment 	Relations Act 	(EERA) 	as 	follows:
1. 	An 	alleged 	derogatory document 	by 	Principal
Dr. 	Mary Ann 	Sund purporting 	to 	summarize 	a 	conference
with Tony 	Petrich and placed 	in his 	personnel 	file 	on
or about August 	22, 	1985 was a reprisal because of his
exercise 	of 	rights 	guaranteed by the 	EERA, 	in
violation of 	section 3543.5(a).
2. 	A correction memo by Dr. 	Sund, 	erroneously dated
January 	8, 	1984 and placed 	in the personnel 	file 	of
Mr. 	Petrich, 	noting his alleged refusal 	to 	follow
certain 	instructions 	regarding 	the 	removal 	of 	leaves
on the 	school grounds, 	was a reprisal because of his
exercise 	of 	rights 	guaranteed by the 	EERA, 	in
violation of section 3543.5(a).
3. 	A letter 	to Mr. 	Petrich from Assistant
Superintendent 	Frank C. 	Tucker dated January 8, 	1985,
advising him 	that 	Dr. 	Sund 	could 	not 	accept his 	gift
of 	a hubcap was 	a 	reprisal 	because 	of his 	exercise 	of
rights 	guaranteed by the EERA, 	in violation of 	section
3543.5(a).
4. 	Dr. 	Sund denied Mr. 	Petrich's right 	to
representation 	at 	a 	pre-disciplinary 	meeting 	held 	on
January 14, 	1985, 	because Dr. 	Sund expressed her
unhappiness 	regarding 	the 	amount 	of 	time 	needed 	for
him 	to 	arrange 	union 	representation 	for 	the 	meeting,
in violation of section 3543.5(a), 	(b), 	(c) and 	(d).

LA-CE-2130
April 10, 	1985
Page 	2
5. 	A memorandum to Mr. 	Petrich 	from Dr. 	Sund dated
January 17, 	1985 and placed 	in his personnel 	file,
purporting 	to describe 	the 	pre-disciplinary meeting,
wherein Dr. 	Sund noted that, 	"You 	stated that you
thought 	you would have 	to 	file 	a grievance 	as 	a 	result
of 	[her] 	error" 	in dating 	the January 8, 	1985 memo was
a 	reprisal 	taken because 	of his 	exercise 	of 	rights
guaranteed by 	the 	EERA, 	in violation of 	section
3543.5(a).
6. 	Dr. 	Sund's 	recommendation that Mr. 	Petrich be
dismissed 	as a 	result 	of 	the 	January 	8 meeting,
memorialized 	in the January 17 memorandum, 	was a
reprisal 	taken because 	of his 	exercise of 	rights
guaranteed by the 	EERA, 	in violation of 	section
3543.5(a).
7. 	A January 30, 	1985 	letter to Mr. 	Petrich from
Mr. 	Tucker, 	placed 	in his personnel 	file and 	sent 	to
Payroll, 	advising him that his pay will 	be
automatically docked 	for 	any day he 	is 	absent 	from
work because 	of 	illness 	between February 	8 and 	June
30, 	1985 unless he provides written verification
signed by a physician, 	is 	a 	reprisal 	taken because of
his 	exercise of 	rights guaranteed by the EERA, 	in
violation of section 3543.5(a).
8. 	The January 	30, 	1985 	letter described 	in paragraph
7 	above 	was 	a 	unilateral 	change of 	a collective
bargaining agreement 	in violation of 	section 	3543.5(c).
9. 	Dr. 	Sund's 	insistence 	that 	the grievance 	regarding
contractual 	guidelines 	for 	the placement 	of 	alleged
derogatory materials 	in personnel 	files 	be 	scheduled
at 	3:15 p.m. 	on February 12, 	1985, 	and at no other
time, 	was 	a denial 	of 	rights guaranteed by the 	EERA,
in violation of section 3543.5(a).
I 	indicated 	to you 	in my letter dated 	February 26, 	1985 	that
certain 	allegations 	contained 	in 	the 	charge 	did 	not 	state 	a
prima 	facie 	case. 	The 	letter 	is attached as 	Exhibit 	1. 	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
March 11, 	1985, 	they would be dismissed. 	Thereafter, 	I allowed

LA-CE-2130
April 10, 	1985
Page 	3
you two extensions of 	time, 	ultimately until March 28, 	1985, 	to
amend 	the 	charge.
On March 25, 	1985, 	you 	filed the 	first amended charge. 	It
supplied 	facts 	relating 	to grievances 	filed pursuant 	to 	the
negotiated 	contract 	and 	unfair 	practice 	charges 	filed 	with 	the
PERB, 	thus 	showing activity protected by the EERA. 	The 	first
amended 	charge 	also 	supplied 	facts 	indicating 	a possible 	nexus
between your protected 	activities 	and 	the 	District's 	conduct
summarized 	above.
A complaint based 	on 	the allegations 	alleged 	in paragraphs 	2, 	6
and 	7 	above 	is 	issuing 	simultaneously with 	this 	letter
dismissing 	the 	remaining 	allegations.
Facts 	and 	Discussion
My 	investigation based 	on a 	review of 	the 	charge 	and 	first
amended charge, 	and our conversations on February 	7 and 	11,
1985, 	revealed the 	following 	facts.
Mr. 	Petrich has had 	a history of personnel 	issues 	with the
Riverside 	Unified 	School 	District 	since 	1983. 	In 	that 	year 	one
reprimand was placed 	in his personnel 	file. 	In 1984, 	four more
reprimands 	were placed 	in his personnel 	file, 	each concerning a
different 	issue. 	He 	filed 	responses 	to each of 	the
reprimands. 	Between October 1 and December 	31, 	1984, 	fourteen
different 	"derogatory" 	materials 	were placed 	in Mr. 	Petrich's
personnel 	file by Dr. 	Sund and Mr. 	Tucker.
In 1982, 	Mr. 	Petrich 	filed 	five grievances pursuant 	to the
grievance 	procedure 	negotiated 	between 	the 	District 	and 	his
exclusive 	representative, 	the 	California 	School 	Employees
Association, 	Riverside 	Chapter 	#506. 	He 	also 	filed grievances
on September 25, 	1984, 	November 13, 	1984 and February 7, 	1985
regarding 	the 	placement 	of 	alleged derogatory materials 	in his
personnel 	file.
In 	1984 Mr. 	Petrich 	filed 	two unfair practice 	charges 	against
the 	District. 	The 	first 	charge was 	LA-CE-2097 	filed on
November 	27, 	1984, 	and a partial 	complaint was 	issued. 	The
second charge was LA-CE-2112 	filed on December 	26, 	1984. 	In
1985, 	prior 	to this 	charge, 	he also 	filed charge 	LA-CE-2114 on
January 2, 	1985.

LA-CE-2130
April 10, 	1985
Page 	4
August 	21, 	1984 Placement 	of 	Derogatory Material 	in Personnel
File
On or about August 	22, 	1984, 	Dr. 	Sund placed 	in the personnel
file of Mr. 	Petrich an 	alleged derogatory document 	purporting
to 	summarize 	a 	conference 	with him 	regarding his 	hours 	of
employment.
This 	allegation was 	initially 	raised 	in 	the 	first 	amended
charge filed March 25, 	1985. 	Additionally, 	it is already the
subject of 	a 	separate 	unfair practice 	charge, 	Petrich v.
Riverside Unified School District, 	LA-CE-2134, 	filed on
February 11, 	1985. 	Because 	the 	issue will be 	fully treated 	in
case LA-CE-2134, 	the 	allegation 	is dismissed 	from the 	instant
charge.
January 8, 	1985 Hubcap Letter
Mr. 	Petrich 	received 	the 	following 	letter dated 	January 	8, 	1985
from Assistant 	Superintendent 	Frank 	C. 	Tucker:
Dear 	Tony,
I 	am holding 	in my 	office a 	new Toyota hubcap
which 	I am told you gave 	to Dr. 	Sund 	as a 	replacement
for 	one 	she 	lost 	months 	ago. 	She 	could 	not 	accept
this gift because 	she 	is your 	supervisor. 	Please come
take 	the hubcap 	after 	work 	any afternoon you 	find
convenient. 	My 	secretary will have 	it 	ready 	for 	you.
Dr. 	Sund told me 	that when she 	tried 	to return 	it
you 	refused 	to take 	it back. 	This 	is 	why she 	sent 	it
to me. 	Please 	understand 	that 	supervisors 	cannot
accept 	gifts 	of 	any 	significant 	value 	from employees
whose 	work 	they evaluate. 	To do 	so might 	indicate 	to
other 	employees 	that gifts were expected, 	and 	if 	not
presented, 	the 	employee would 	receive 	an
unsatisfactory 	evaluation. 	Neither 	should 	an 	employee
offer 	a 	supervisor 	a gift 	of 	significant 	value.
Offering 	a 	gift 	can create an 	implication 	that 	gifting
can purchase 	a 	satisfactory evaluation.
Having known you 	for 	several years, 	I believe you
offered 	the 	gift 	in good 	faith, 	and 	with no 	ulterior

LA-CE-2130
April 10, 	1985
Page 5
motive. 	As a knowledgeable man, 	I believe you must
understand why Dr. 	Sund cannot accept 	a gift 	from you,
Yours 	truly,
Frank C. 	Tucker
Assistant 	Superintendent, 	Personnel
This 	letter 	is 	a mild correction of poor 	judgment 	demonstrated
by Mr. 	Petrich 	in giving a gift of 	significant 	value 	to a
supervisor. 	The 	letter does 	not 	concern Mr. 	Petrich's working
conditions. 	It does not contain a threat of 	reprisal or 	force
or promise 	of benefit. 	Rio Hondo Community College 	District
(5/19/80) 	PERB Decision No. 	128. 	Thus, 	there 	is no harm to Mr.
Petrich's 	employee 	rights 	under 	the 	EERA. 	Absent 	such harm
there exists 	no nexus between 	the 	employer's 	conduct 	and 	the
exercise of 	employee 	rights, 	and this allegation 	is dismissed.
Carlsbad Unified 	School 	District 	(1/30/79) 	PERB 	Decision No.
89; 	Novato Unified School District 	(4/20/82) 	PERB Decision No.
210.
January 14, 	1985 	Pre-Disciplinary Meeting
Mr. 	Petrich received a correction memo 	from Dr. 	Sund,
erroneously dated 	January 8, 	1985, 	noting his alleged 	refusal
to 	follow certain 	instructions 	regarding 	the 	removal 	of 	leaves
on 	the 	school 	grounds. 	The memo 	instructed Mr. 	Petrich 	to meet
with Dr. 	Sund 	at 	the 	earliest 	time her 	secretary could arrange
an 	appointment 	to discuss his 	actions 	and possible 	disciplinary
action.
Before 	the pre-disciplinary meeting 	Dr. 	Sund 	indicated 	to
Mr. 	Petrich 	that 	she did 	not 	wish 	to postpone 	the 	meeting 	to
allow 	California 	School 	Employees 	Association 	representative,
Mr. 	Alan Aldrich, 	to attend. 	She thought 	it was more
appropriate 	for another classified staff member, 	Ms. 	Barbara
Boettcher, 	to represent Mr. 	Petrich. 	Ms. 	Boettcher had
previously written 	certain accusations 	against Mr. 	Petrich
which Dr. 	Sund 	documented 	for his personnel 	file 	and Mr.
Petrich did 	not 	wish her 	to 	represent him.
The pre-disciplinary meeting was held on January 14, 	1985, 	four
workdays 	after 	the 	January 8 memo. 	Mr. 	Aldrich was present 	and
represented Mr. 	Petrich. 	Dr. 	Sund again expressed to Mr.
Petrich her 	displeasure 	at 	delaying 	the 	meeting 	so 	that 	he
might be 	represented by Mr. 	Aldrich.

LA-CE-2130
April 10, 	1985
Page 	6
Under 	the 	EERA, 	employees have 	the 	right 	to 	representation by
their 	exclusive 	representative 	at 	a pre-disciplinary meeting.
Rio 	Hondo Community College 	District 	(1982) 	PERB 	Decision
No. 	260. 	Mr. 	Petrich alleges that this right was denied
because 	Dr. 	Sund did 	not 	wish 	to delay the meeting 	four
workdays 	until 	his 	union 	representative 	was 	available,
complained 	regarding 	the delay, 	and 	suggested 	that 	he 	use as a
representative 	another 	employee whom he did 	not 	trust. 	Mr.
Petrich 	feels 	that 	Dr. 	Sund 	should have not 	expressed her
desire 	for 	an 	earlier 	meeting 	or 	attempted 	to persuade 	him 	to
accept 	a different 	representative.
The 	fact 	remains 	that 	Dr. 	Sund did delay the pre-disciplinary
meeting 	until 	Mr. 	Petrich's 	desired 	representative 	was 	able 	to
be present. 	In so doing, 	she did allow him his 	right 	to
representation. 	Additionally, 	she did not 	act 	unlawfully 	in
expressing her 	own desires. 	Representatives of 	an 	employer may
express 	their 	opinions 	on 	employment 	matters 	so 	long 	as 	there
is 	no 	interference with the 	employee's 	exercise 	of 	rights 	under
the 	EERA. 	Rio Hondo Community College District 	(5/19/80) 	PERB
Decision No. 	128.
The 	facts 	as 	alleged 	do not 	indicate 	interference 	with Mr.
Petrich's 	rights, 	and 	therefore 	the employer's 	actions
regarding 	the 	pre-disciplinary meeting 	did 	not 	violate 	section
3545.5(a). 	Because the employer's actions did not 	violate
section 3543.5(a), 	they also did not violate section 3543.5(b),
(c) 	and 	(d). 	There was no denial of employee organization
rights 	guaranteed by 	EERA; 	no unilateral 	change 	of 	an
established practice; 	and 	no domination of 	or 	interference 	with
an 	employee 	organization.
January 	17, 	1985 Memorandum 	Regarding 	the 	Pre-Disciplinary
Conference
A memorandum to Mr. 	Petrich 	from Dr. 	Sund 	dated 	January 	17,
1985 	and placed 	in his personnel 	file, 	purported 	to describe
the 	pre-disciplinary meeting held on January 	14. 	In 	this
memorandum Dr. 	Sund wrote:
You pointed 	out 	that 	the 	date 	on 	the 	memo was
incorrect. 	It 	reads January 8, 	1984. 	It 	should read
January 8, 	1985. 	The error 	is a common, 	typographical
error 	at 	the beginning of 	a new year. 	This 	memo 	is
not 	scheduled 	to be 	placed 	in your 	file 	until 	January
22, 	1985. 	I will make the necessary correction before
it 	is placed 	in the personnel 	file.

LA-CE-2130
April 10, 	1985
Page 	7
You 	stated 	that 	you 	thought 	you would have 	to 	file 	a
grievance.
Dr. 	Sund's memorandum does 	no more than 	summarize what was 	said
at 	the pre-disciplinary conference. 	It 	is a 	statement of
fact. 	On 	its 	face 	it does 	not constitute a 	reprisal or 	threat
of 	reprisal 	against 	Mr. 	Petrich and 	therefore 	the 	allegations
are 	dismissed. 	Rio Hondo Community College District, 	supra
(5/19/80) 	PERB Decision No. 	128.
January 	30, 	1985 	Letter 	Regarding Pay Docks 	for Unauthorized
Absences
A January 30, 	1985 	letter to Mr. 	Petrich 	from Mr. 	Tucker,
placed 	in his personnel 	file and 	sent 	to Payroll, 	advised him
that his 	pay will 	be 	automatically docked 	for 	any day he 	is
absent 	from work because 	of 	illness 	between February 	8 	and
June 	30, 	1985, 	unless 	he provides written verification of the
illness 	signed by a physician. 	The 	letter 	indicates 	the 	action
is 	being 	taken because of 	excessive 	use of 	sick 	leave between
July 1, 	1984 and January 29, 	1985.
The 	1982-1985 	collective bargaining agreement 	for Mr. 	Petrich's
bargaining 	unit 	between 	the 	Riverside 	Unified 	School 	District
and 	Riverside 	Chapter 	#506, 	affiliate of 	the 	California 	School
Employees Association, 	provides 	in Article XIII on Leaves,
section 13.3.4:
A doctor's 	certificate 	or 	other proof 	of 	illness 	or
disabling 	conditions 	may be 	required 	by 	the 	District
for 	any 	illness 	or 	disabling 	condition 	in 	which 	the
absence 	is 	five 	(5) 	days or more or when the
classified 	employee has been 	informed 	that
verification 	for 	future 	absences 	will 	be 	required.
Such 	verification 	statements 	may be 	required 	by 	the
District 	Personnel 	Office.
Article 	XIX 	on 	Disciplinary Action 	and 	Dismissal 	Procedures,
section 19.0 provides:
The 	District 	may 	impose 	discipline 	or 	dismissal 	on
permanent 	employees 	when 	the 	work performance 	or
behavior 	of 	the 	employee 	is 	such 	that 	prior 	verbal
and/or 	written warnings 	by 	the 	immediate 	supervisor
have 	failed 	to 	result 	in a 	remediation of 	the
unsatisfactory performance or behavior. 	The 	District
may suspend with pay, 	suspend without 	pay, 	reduce

LA-CE-2130
April 10, 	1985
Page 	8
employee's hours, 	dock pay 	for absence without
authority, 	or discipline employees 	in other
appropriate manners 	to correct 	or 	remediate 	an
employee's 	unsatisfactory performance 	or 	behavior.
The 	District 	may dismiss 	permanent 	bargaining 	unit
employees 	when 	the 	District 	has 	attempted 	to 	remediate
unsatisfactory performance 	or behavior. 	(Emphasis
added.)
Section 	19.1 	regarding 	the 	right 	to 	request 	a hearing provides:
A permanent 	employee has 	the 	right 	to 	request 	an
informal 	hearing 	with 	the 	immediate 	supervisor prior
to disciplinary action and/or dismissal. 	If
requested, 	such a hearing will be held.
Article XIX of 	the 	negotiated 	agreement, 	concerning
Disciplinary Action and Dismissal 	Procedures, 	quoted 	above,
specifically provides 	in 	section 	19.0 	that 	the 	District 	may
dock pay 	for 	absence without 	authority, 	subject 	to 	the
employee's 	right 	to 	request 	a hearing 	as provided 	in 	section
19.1. 	Mr. 	Tucker's January 30 letter warns Mr. 	Petrich that he
intends 	to 	exercise 	the District's prerogative to dock pay
absent 	a physician's 	verification 	in case of 	future 	illness.
The 	letter does 	not 	negate Mr. 	Petrich's 	right 	to 	request 	a
hearing pursuant 	to the contract. 	There has 	not 	to date been a
dock of pay prior 	to 	such a hearing. 	Therefore 	the 	employer's
actions 	do not 	constitute a 	unilateral 	change 	of 	the 	terms 	and
conditions 	of 	the contract 	in violation of 	section 3543.5(c).
Inflexibility 	in 	Setting February 12, 	1985 Grievance 	Conference
The 	first 	amended 	charge 	raises 	the 	new allegation 	that
Dr. 	Sund 	inflexibly 	insisted 	that 	the 	grievance 	conference
relating 	to a 	February 	7, 	1985 	grievance be 	scheduled 	at 	3:15
p.m. 	on February 12, 	1985, 	and at no other time. 	The grievance
related 	to guidelines 	under 	the 	contract 	for 	the 	placement 	of
alleged derogatory materials 	in personnel 	files. 	Mr. 	Petrich
alleges 	that 	this 	action denied his 	right 	to 	representation
under 	the 	EERA.
The 	first 	amended 	charge 	also 	notes 	that 	the 	conference 	was
held 	as 	scheduled because Mr. 	Petrich was 	able to 	attend 	at
that date 	and 	time. 	For this 	reason, 	Mr. 	Petrich has 	failed 	to
show 	the 	employer's 	conduct 	resulted 	in 	some harm 	to his
employee 	rights. 	Absent this element, 	there 	is 	no violation of

LA-CE-2130
April 10, 	1985
Page 	9
section 	3543.5(a) 	and 	this allegation is dismissed. 	Carlsbad
Unified 	School 	District, 	supra, 	and 	Novato Unified 	Schoo-. . - l
District, supra.
Right 	to Appeal
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.
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 	29, 	1985, 	or
sent 	by 	telegraph 	or 	certified 	United 	States 	mail 	postmarked
not 	later than April 	26, 	1985 	(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 	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.

LA-CE-2130
April 10, 	1985
Page 	10
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. StuartBarbara T. 	Stuart
Regional 	Attorney
cc: 	Charles 	Field
BTS:djm

Governor	G E O R G E DEUKMEJIAN,	
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
LOS ANGELES, CALIFORNIA 	90010
(213) 736-3127
February 26, 	1985
Tony 	Petrich
24536 	Vandenberg 	Drive
Sunnymead, 	California 	92388
RE: 	LA-CE-2130, 	Tony Petrich v. 	Riverside School District
Dear Mr. 	Petrich:
The 	above-referenced 	charge 	alleges 	that 	the 	Riverside 	Unified
School 	District has violated Government 	Code 	section 	3543.5(a),
(b) 	and 	(c) 	of the Educational 	Employment Relations Act 	(EERA)
as follows:
1. 	A correction memo by Principal 	Dr. 	Mary Ann 	Sund
dated January 	8, 	1984 and placed 	in your personnel
file 	noting your 	alleged 	refusal 	to 	follow 	certain
instructions 	regarding 	the 	removal 	of 	leaves 	on 	the
school 	grounds 	was 	a 	reprisal because of your 	exercise
of 	rights guaranteed by EERA, 	in violation of 	section
3543.5(a).
2. 	A 	letter 	to you 	from Assistant 	Superintendent
Frank C. 	Tucker dated January 8, 	1985, 	advising you
that 	Dr. 	Sund 	could 	not 	accept 	a gift 	of 	a hubcap was
a 	reprisal because 	of 	your 	exercise 	of 	rights
guaranteed by EERA, 	in violation of 	section 	3543.5(a).
3. 	Dr. 	Sund denied your 	right 	to representation at 	a
pre-disciplinary meeting held on January 14, 	1985,
because 	Dr. 	Sund 	expressed her 	unhappiness 	regarding
the 	amount 	of 	time 	needed 	for you 	to arrange 	union
representation 	for 	the meeting, 	in violation of
section 3543.5(a), (b), (c) and (d).
4. 	A memorandum 	to you 	from Dr. 	Sund dated
January 17, 	1985, 	and placed 	in your personnel 	file,
purporting 	to 	describe 	the 	pre-disciplinary 	meeting,
wherein Dr. 	Sund 	noted 	that, 	"You 	stated 	that you
thought you would have 	to 	file 	a grievance 	as 	a 	result
of 	[her] 	error" 	in dating the January 8, 	1985 memo was
ao~mo,

LA-CE-2130
February 26, 	1985
Page 	2
a 	reprisal 	taken because 	of your 	exercise 	of 	rights
guaranteed by EERA, 	in violation of 	section 3543.5(a).
5. 	The decision 	to dismiss you memorialized 	in the
January 	17, 	1985 memorandum was a reprisal 	taken
because 	of 	your 	exercise 	of 	rights guaranteed by EERA,
in violation of 	section 3543.5(a).
6. 	A January 30, 	1985 	letter to you 	from Mr. 	Tucker,
placed 	in your personnel 	file 	and 	sent 	to 	Payroll,
advising 	you 	that 	your pay will 	be 	automatically
docked 	for 	any day you 	are 	absent 	from work 	because 	of
illness between February 8 and June 30, 	1985, 	unless
you provide 	written 	verification 	signed by 	a
physician, 	is both a 	reprisal 	in violation of 	section
3543.5(a) 	and a unilateral 	change of 	a collective
bargaining agreement 	in violation of 	section 	3543.5(c).
Facts
My 	investigation based 	on a 	review of 	the 	charge 	and 	our
conversations on February 7 and 	11, 	1985, 	revealed 	the
following 	facts.
You have 	had 	a history of personnel 	issues 	with 	the 	Riverside
Unified 	School 	District 	since 	1983. 	In that year 	one 	reprimand
was placed 	in your personnel 	file. 	In 1984, 	four more
reprimands 	were placed 	in your personnel 	file, 	each concerning
a 	different 	issue. 	You 	filed 	responses 	to each of 	the
reprimands.
In 	1982, 	you 	filed 	five grievances pursuant 	to the grievance
procedure 	negotiated 	between 	the 	District 	and 	your 	exclusive
representative, 	the 	California School 	Employees Association,
Riverside 	Chapter 	#506. 	You 	also 	filed grievances 	on
September 	24, 	1984, 	November 13, 	1984 and February 7, 	1985
regarding 	the 	placement 	of 	alleged 	derogatory 	materials 	in your
personnel 	file.
In 	1984 you 	filed 	two unfair practice 	charges 	against 	the
District. 	The 	first 	charge 	was 	LA-CE-2097 	filed 	on
November 	27, 	1984, 	and a partial 	complaint was 	issued. 	The
second charge was LA-CE-2112 	filed on December 	26, 	1984. 	In
1985, 	prior 	to this 	charge, 	you also filed charge LA-CE-2114 on
January 2, 	1985.

LA-CE-2130
February 26, 	1985
Page 	3
In 	1985 you 	received a 	correction memo 	from Dr. 	Sund dated
January 8, 	1984, 	noting your alleged 	refusal 	to 	follow certain
instructions 	regarding 	the 	removal 	of 	leaves 	on 	the 	school
grounds. 	The memo 	instructed you to meet with Dr. 	Sund 	at 	the
earliest 	time 	her 	secretary 	could 	arrange 	an 	appointment 	to
discuss your 	actions 	and possible disciplinary action. 	The
memo 	stated 	it 	would be placed 	in your personnel 	file.
You 	also 	received 	a 	letter 	from Assistant 	Superintendent 	Frank
C. 	Tucker dated January 8, 	1985, 	advising you that Dr. 	Sund
could 	not 	accept 	a 	hubcap you had 	given her because 	supervisors
cannot 	accept 	gifts 	of 	any 	significant 	value 	from employees
whose 	work 	they 	evaluate.
Before 	the pre-disciplinary meeting 	Dr. 	Sund 	indicated 	to you
that 	she did 	not 	wish 	to postpone 	the 	meeting 	to 	allow
California 	School 	Employees 	Association 	representative,
Mr. 	Alan Aldrich, 	to attend. 	She thought 	it was more
appropriate 	for another classified 	staff member, 	Ms. 	Barbara
Boettcher, 	to represent you. 	Ms. 	Boettcher had previously
written certain accusations 	against you which Dr. 	Sund
documented 	for your personnel 	file 	and you did 	not 	wish her 	to
represent 	you. 	At 	the pre-disciplinary meeting held 	on
January 14, 	1985, 	four workdays after the January 8 memo,
Dr. 	Sund 	again 	expressed 	to you her 	displeasure 	at 	delaying 	the
meeting 	so that you might 	be 	represented by Mr. 	Aldrich.
A memorandum 	to you 	from Dr. 	Sund dated January 	17, 	1985 	and
placed 	in your personnel 	file, 	purported 	to describe 	the
pre-disciplinary meeting. 	In 	this memorandum Dr. 	Sund wrote:
You pointed 	out 	that 	the 	date 	on the memo was
incorrect. 	It 	reads January 8, 	1984. 	It should read
January 8, 	1985. 	The error 	is a common, 	typographical
error 	at 	the beginning of 	a new year. 	This memo 	is
not 	scheduled 	to be placed 	in your 	file 	until 	January
22, 	1985. 	I will make the necessary correction before
it 	is placed 	in the personnel 	file.
You 	stated 	that 	you 	thought 	you would have 	to 	file 	a
grievance.
The January 17, 	1985 memo also 	indicated 	that 	following 	the
meeting Dr. 	Sund had 	consulted 	with Mr. 	Tucker 	and 	decided 	to
recommend 	that 	you be 	dismissed 	from 	employment. 	To date you
have 	not 	been dismissed.

LA-CE-2130
February 26, 	1985
Page 	4
A January 	30, 	1985 	letter 	to you from Mr. 	Tucker, 	placed 	in
your personnel 	file 	and 	sent 	to Payroll, 	advised you that your
pay will 	be 	automatically docked 	for 	any day you 	are 	absent
from work 	because 	of 	illness 	between February 	8 	and 	June 	30,
1985, 	unless you provide written verification of 	the 	illness
signed by a physician. 	The 	letter 	indicates 	the 	action 	is
being 	taken because 	of 	excessive 	use 	of 	sick 	leave between July
1, 	1984 and January 29, 	1985.
The 	1982-1985 	collective 	bargaining 	agreement 	for 	your
bargaining 	unit 	between 	the 	Riverside Unified 	School 	District
and 	Riverside 	Chapter 	#506, 	affiliate of 	the California 	School
Employees Association, 	provides 	in Article XIII on Leaves,
section 13.3.4:
A doctor's 	certificate 	or 	other proof 	of 	illness 	or
disabling 	conditions 	may be 	required 	by 	the 	District 	for
any 	illness 	or 	disabling 	condition 	in which 	the 	absence 	is
five 	(5) 	days or more 	or when the classified 	employee has
been 	informed 	that 	verification 	for 	future 	absences 	will 	be
required. 	Such 	verification 	statements 	may be 	required by
the 	District 	Personnel 	Office.
Article XIX on Disciplinary Action and 	Dismissal 	Procedures,
section 	19.0 provides:
The 	District 	may 	impose 	discipline 	or 	dismissal 	on
permanent 	employees 	when 	the work performance 	or
behavior 	of 	the 	employee 	is 	such that prior 	verbal
and/or 	written 	warnings 	by the 	immediate 	supervisor
have 	failed 	to 	result 	in a 	remediation 	of 	the
unsatisfactory performance or behavior. 	The 	District
may 	suspend with pay, 	suspend without pay, 	reduce
employee's hours, 	dock pay 	for absence without
authority, 	or discipline employees 	in other
appropriate 	manners 	to 	correct 	or 	remediate 	an
employee's 	unsatisfactory performance 	or 	behavior.
The 	District 	may 	dismiss 	permanent 	bargaining 	unit
employees 	when 	the 	District has 	attempted 	to 	remediate
unsatisfactory performance 	or behavior. 	(Emphasis
added.)

LA-CE-2130
February 26, 	1985
Page 	5
And 	section 	19.1:
Right 	to 	Request 	Hearing; 	A permanent 	employee has
the 	right 	to 	request 	an 	informal hearing 	with 	the
immediate 	supervisor 	prior 	to disciplinary 	action
and/or dismissal. 	If 	requested, 	such a hearing will
be held.
Section 	19.6 	sets 	forth the 	details 	of 	the hearing 	and provides
that 	the hearing 	officer's 	decision 	shall 	only be 	advisory and
"The decision of 	the 	Board of 	Education 	shall be 	final."
Reprisal 	Issues
According 	to 	section 	3543.5 of 	the 	EERA, 	it 	is 	unlawful 	for a
public 	school 	employer 	to:
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.
To establish a violation of 	section 	3543.5(a), 	a charging party
must 	show 	that 	(1) 	an employee has 	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 	employee
because of his 	exercise of 	those 	rights. 	Novato Unified 	School
District (4/30/82) PERB Decision No. 	210; Carlsbad Unified
School District 	(1/30/79) 	PERB Decision No. 	89. 	Regarding
these 	elements of proof, 	your 	charge 	fails 	to allege 	sufficient
facts 	showing 	that 	you 	exercised 	rights 	under 	the 	EERA or
showing 	that 	the 	District 	imposed 	reprisals 	because 	of 	your
exercise 	of 	such 	rights.
With the 	exception mentioned below, 	the 	charge 	as 	written does
not 	allege 	facts 	indicating 	that 	you have 	engaged 	in conduct
protected 	by 	EERA because 	your 	activities 	concerned 	matters
solely of 	interest 	to yourself. 	The 	failure 	to clean up the
leaves 	incident, 	hubcap gift 	and 	use 	of 	sick 	leave 	involve 	only
your 	individual 	and personal 	relationship with 	the 	District.
Such 	conduct 	has 	not 	been considered 	"concerted 	activity" 	under
the 	National 	Labor 	Relations 	Act 	nor 	can 	it 	be 	construed 	to
constitute 	an 	"exercise of 	rights" 	protected by 	the 	EERA.
Roadway Express, 	Inc. 	(1981) 	257 NLRB No. 	153, 	108 LRRM 1085.

LA-CE-2130
February 26, 	1985
Page 	6
The 	filing 	of grievances 	pursuant 	to 	the 	contract 	negotiated
between the 	District 	and your 	exclusive 	representative, 	or 	the
filing 	of 	any unfair practice 	charges pursuant 	to 	the 	EERA are
protected activities. 	From our 	oral 	conversations 	it 	appears
that you did 	engage 	in such activity, 	but 	this must 	be 	alleged
in the charge. 	The charge does allege that you 	sought 	to
exercise your 	rights 	to union 	representation at 	the
pre-disciplinary conference held on January 14, 	1985. 	However,
as 	discussed 	in the next paragraph, 	you must 	show 	that 	the
District's 	subsequent 	conduct 	was 	taken because 	of 	your
exercise of 	these rights.
The 	charge 	as 	written does 	not 	allege 	any 	facts 	indicating 	the
District 	acted against 	you because 	of your 	filing 	of 	grievances
or 	unfair 	practice charges 	or 	other 	exercise 	of 	employee
rights. 	You must 	show more 	than the mere 	fact 	that you 	engaged
in protected 	activity 	in order 	to demonstrate 	the 	employer's
unlawful motive. 	The 	timing of 	the 	employer's 	conduct 	in
relation 	to protected activity 	is 	an 	important 	factor, 	but 	is
not 	alone 	sufficient 	to demonstrate 	a 	violation of 	the 	EERA.
Moreland 	Elementary School 	District 	(7/27/82) 	PERB Decision No.
227. 	You must 	also demonstrate one or more of 	the 	following
additional 	factors: 	(1) 	the employer's disparate treatment of
other employees, 	(2) 	the employer's departure from established
procedures and standards when dealing with you, 	(3) 	the
employer's 	inconsistent 	or 	contradictory 	justifications 	for 	its
actions, 	(4) 	the employer's cursory investigation of your
alleged misconduct, 	(5) 	the employer's 	failure 	to offer you
justification at 	the time 	it 	took 	action against you, 	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 	(12/20/82) 	PERB Decision No. 	264.
Absent 	factual 	allegations 	as 	described 	above 	detailing 	the
nature 	of 	your protected 	conduct 	and providing 	an 	inference 	of
the 	employer's unlawful motive, 	the 	charge does 	not 	state 	a
prima 	facie 	case of a violation of 	section 	3543.5(a).
Therefore, 	the allegations described in paragraphs 	1, 	2, 	4 and
5 	above 	may be 	dismissed.
Pre-Disciplinary 	Meeting
Employees 	under 	the 	EERA have 	the 	right 	to 	representation by
their 	exclusive 	representative 	at 	a pre-disciplinary meeting.
Rio Hondo 	Community College 	District 	(1982) 	PERB Decision
No. 	260. 	You allege 	that 	this 	right was denied because

LA-CE-2130
February 26, 	1985
Page 	7
Dr. 	Sund 	did 	not wish 	to delay 	the 	meeting 	four 	workdays 	until
your 	union 	representative 	was 	available, 	complained 	regarding
the delay, 	and 	suggested 	that 	you use as 	a 	representative
another employee whom you did 	not 	trust. 	You 	feel 	Dr. 	Sund
should have 	not 	expressed 	her 	desire 	for 	an 	earlier 	meeting 	or
attempted 	to persuade 	you 	to 	accept 	a different 	representative.
The 	fact 	remains 	that 	Dr. 	Sund did delay the pre-disciplinary
meeting 	until your 	desired 	representative 	was 	able 	to be
present. 	In 	so doing, 	she did allow you your right 	to
representation. 	Additionally, 	she did not 	act unlawfully 	in
expressing her 	own desires. 	Representatives 	of 	an employer may
express 	their opinions 	on 	employment 	matters 	so 	long 	as 	there
is 	no 	interference 	with the 	employee's 	exercise 	of 	rights 	under
EERA. 	Rio Hondo 	Community 	College 	District 	(5/19/80) 	PERB
Decision No. 	128.
The 	facts 	as 	alleged 	do not 	rise 	to 	the 	level 	of 	interference
and therefore, 	the 	employer's 	actions regarding 	the
pre-disciplinary meeting did 	not 	violate 	section 	3545.5(a).
Because 	the 	employer's 	actions 	alleged 	and 	described 	in
paragraph 	3 above did not 	violate section 3543.5(a), 	they also
did not violate sections 3543.5(b), 	(c) 	and 	(d). 	There was no
denial 	of 	employee 	organization 	rights 	guaranteed by EERA; 	no
unilateral change 	of 	Article XIX, 	section 19.1 	of 	the
negotiated 	contract; 	and 	no domination or 	interference 	with an
employee 	organization.
Alleged 	Pay 	Dock 	Unilateral 	Change
Article XIX of 	the 	negotiated 	agreement, 	concerning
Disciplinary Action and Dismissal 	Procedures, 	quoted 	above,
specifically provides 	in 	section 	19.0 	that 	the 	district 	may
dock pay 	for absence without 	authority, 	subject 	to the
employee's 	right 	to 	request 	a hearing 	as provided 	in 	section
19.1. 	Mr. 	Tucker's January 	30 	letter warns you that he 	intends
to exercise 	the 	District's prerogative to dock pay absent 	a
physician's 	verification 	in case of 	future 	illness. 	The 	letter
does 	not 	negate your 	right 	to 	request 	a hearing pursuant 	to the
contract. 	There has 	not 	to date been a dock of pay prior 	to
such 	a hearing. 	Therefore 	the 	employer's 	actions 	alleged 	and
described 	in paragraph 	6 	above 	did 	not 	constitute 	a 	unilateral
change of 	the 	terms 	and 	conditions 	of 	the 	contract 	in 	violation
of section 3543.5(c).

LA-CE-2130
February 26, 	1985
Page 	8
Opportunity 	to Amend
For these 	reasons, 	the charge as presently written does 	not
state a prima 	facie 	violation of 	the SEERA. 	If you 	feel 	that
there 	are 	facts 	which would 	require 	a different 	conclusion,
please 	amend 	the 	charge 	accordingly. 	An amended 	charge 	should
be prepared 	on 	a 	standard 	PERB 	unfair practice 	charge 	and
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 March 11, 	1985, 	I 	shall dismiss your
charge. 	If you have 	any questions on how to proceed, 	please
call me at 	(213) 	736-3127.
Sincerely yours,
Barbara T. 	Stuart
Regional 	Attorney
BTS:djm

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TONY 	PETRICH,
Charging 	Party,
v.
RIVERSIDE UNIFIED 	SCHOOL
DISTRICT,
Respondent.
)
Case No. 	LA-CE-2130
COMPLAINT 	(Unfair 	- 	EERA)
)
)
)
)
)
It having been charged 	by 	the 	Charging 	Party that 	the
Respondent 	has 	engaged 	in 	certain 	unfair practices 	in 	violation
of 	California Government 	Code 	section 	3543.5, 	the General
Counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB) 	on
behalf of 	the 	PERB, 	pursuant 	to California Government 	Code
sections 	3541.3(h) 	and 	(i) 	and California Administrative 	Code,
title 8, 	part III, 	sections 32620(b)(6) 	and 32640, 	issues this
COMPLAINT and 	alleges:
1. 	The 	Respondent 	is 	a public 	school 	employer 	within the
meaning of Government 	Code 	section 3240.l(k).
2. 	The 	Charging 	Party 	is 	an employee within 	the 	meaning
of Government Code 	section 	3540.1(j).
3. 	The 	charge 	was 	filed with the 	PERB on February 4,
1985, 	and 	served on Respondent on February 4, 	1985.
4. 	The 	first 	amended 	charge was 	filed with 	the 	PERB on
March 25, 	1985, 	and 	served on Respondent on March 25, 	1985.
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5. 	Tony Petrion, at 	all 	relevant 	times, 	was 	employed as a
gardener 	for 	Respondent, 	and 	was 	a member 	of 	a bargaining 	unit
of 	classified 	employees 	covered 	by a 	collective 	bargaining
agreement between 	the 	California 	School 	Employees Association,
Chapter 	#506 	and 	the 	Riverside 	Unified 	School 	District.
6. 	Pursuant 	to 	the collective bargaining agreement, 	Mr.
Petrich 	filed grievances on September 	25, 	1984 and November 	13,
1984.
7. 	Mr. 	Petrich 	filed 	unfair practice charges 	against 	the
District pursuant 	to Government 	Code 	section 	3541.5. 	Charge
LA-CE-2097 was 	filed on November 	27, 	1984, 	and a partial
complaint 	was 	issued. 	Charge LA-CE-2112 was 	filed 	on
December 	26, 	1984. 	Charge LA-CE-2114 was 	filed on January 2,
1985.
8. 	A correction memo by Principal 	Dr. 	Mary Ann 	Sund,
erroneously dated 	January 	8, 	1984 and placed 	in the personnel
file of Mr. 	Petrich, 	noted Mr. 	Petrich's alleged refusal 	to
follow certain 	instructions 	regarding 	the 	removal 	of 	leaves 	on
the 	school 	grounds.
9. 	Dr. 	Sund recommended the dismissal of Mr. 	Petrich
following 	a pre-disciplinary meeting 	regarding 	the 	removal 	of
leaves incident, 	as memorialized in her January 17, 	1985
memorandum to Mr. 	Petrich.

10. 	A letter 	to Mr. 	Petrich from Mr. 	Tucker dated
January 	30, 	1985, 	placed 	in his personnel 	file and 	sent 	to
Payroll, 	advised him 	that 	his pay will 	be 	automatically docked
for 	any day he 	is 	absent 	from work because 	of 	illness between
February 8 and June 	30, 	1985 unless he provides written
verification 	signed 	by 	a physician.
11. 	The actions described above 	in paragraphs 	8, 	9 and 	10
were 	taken by Respondent because of Mr. 	Petrich's 	exercise of
rights described 	in paragraphs 	6 and 	7. 	By 	its 	conduct,
Respondent has 	violated Government 	Code 	section 	3543.5(a).
12. 	The 	remaining allegations made 	in the charge are being
dismissed 	by 	letter 	to 	issue 	simultaneously with 	this
complaint. 	Said 	letter 	is 	incorporated 	and 	attached herein.
DATED: 	4/10/85 	DENNIS 	M. 	SULLIVAN
General 	Counsel
BY Barbara T. 	Stuart
Regional 	Attorney