Riverside Unified School District (Petrich) (PERB 0523E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
TONY PETRICH.
Charging 	Party.
v.
RIVERSIDE UNIFIED SCHOOL DISTRICT.
Respondent.
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) 	Case 	No. 	LA-CE-2134
PERB 	Decision No. 	523
September 	25, 	1985
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Appearance: 	Tony Petrich, 	on his own behalf.
Before Hesse. 	Chairperson; 	Jaeger. Morgenstern. 	Burt and
Porter. Members.
DECISION AND 	ORDER
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
charge 	alleging 	that 	the 	Riverside 	Unified 	School 	District
violated 	section 3543.5(a) 	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.
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
May 	8, 	1985
Tony 	Petrich
Re: 	LA-CE-2134, 	Tony Petrich v.
Riverside 	Unified 	School 	District
PARTIAL 	DISMISSAL 	OF 	UNFAIR 	PRACTICE 	CHARGE
Dear Mr. 	Petrich:
The 	above-referenced 	unfair 	practice 	charge 	filed 	on
February 	11, 	1985 	alleges 	that 	the 	Riverside 	Unified 	School
District 	attempted 	to 	unilaterally 	change 	your 	work 	hours 	and
threatened 	you 	with 	reprisals 	when 	you 	refused 	to 	allow 	the
change 	and 	requested 	to meet 	and 	negotiate 	the 	change- 	This
conduct 	is 	alleged 	to 	violate 	Government 	Code 	section 	3543.5(a)
and 	(d) 	of 	the 	EERA. 	Arguably, 	it might also violate 	section
3543.5(b) and (c).
A complaint 	based 	on 	the 	allegations 	related 	to 	the 	threatened
reprisals 	is 	issuing 	simultaneously with 	this 	letter 	dismissing
the 	remaining 	allegations. 	The 	complaint 	is 	attached hereto
and 	incorporated 	by 	reference.
I 	indicated 	to you 	in my 	attached 	letter 	dated April 	22, 	1985
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 	accordingly. 	You 	were 	further 	advised 	that 	unless you
amended 	these 	allegations 	to 	state 	a prima 	facie 	case, 	or
withdrew them prior 	to April 	29, 	1985, 	they would be dismissed.
I 	have 	not 	received 	either 	a 	request 	for 	withdrawal 	or 	an
amended 	charge 	and 	am 	therefore 	dismissing 	those 	allegations
which 	fail 	to 	state 	a prima 	facie 	based 	on 	the 	facts 	and
reasons 	contained 	in my April 	22, 	1985 	letter.
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.

May 	8, 	1985
LA-CE-2134
Page 	2
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 	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 May 28, 	1985, 	or
sent 	by 	telegraph 	or 	certified 	United 	States 	mail 	postmarked
not 	later than May 28, 	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 each copy of 	a document 	served 	upon a
party 	or 	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.
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).

May 	8, 	1985
LA-CE-2134
Page 	3
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. 	Stuart
Regional 	Attorney
cc: 	Charles Field, 	Esq.
Attachments
BTS:djm

• 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 	22, 	1985
Tony 	Petrich
Re: 	LA-CE-2134, 	Tony Petrich v.
Riverside 	Unified 	School 	District
Dear Mr. 	Petrich:
The 	above-referenced 	unfair 	practice 	charge 	filed 	on
February 	11, 	1985 	alleges 	that 	the 	Riverside Unified 	School
District 	attempted 	to 	unilaterally 	change 	your 	work 	hours 	and
threatened 	you 	with 	reprisals 	when 	you 	refused 	to 	allow 	the
change 	and 	requested 	to meet 	and negotiate 	the 	change. 	This
conduct 	is 	alleged 	to 	violate 	Government 	Code 	section 	3543.5(a)
and 	(d) 	of 	the 	EERA. 	Arguably, 	it might 	also violate 	section
3543.5(b) and (c).
Facts
My 	investigation 	revealed 	the 	following 	facts. 	Tony 	Petrich 	is
a gardener at 	the V7oodcrest 	Elementary School. 	He 	is 	a member
of 	the 	classified 	bargaining 	unit 	represented 	by 	California
School 	Employees Association, 	Chapter 	#506 	(CSEA). 	The
bargaining 	unit 	is 	currently 	covered 	by 	a 	1982-85'collective
bargaining 	agreement. 	The 	contract 	states 	that 	regular
full—time 	employment 	shall 	be 	eight 	hours 	per 	day 	and 	forty
hours 	per 	week, 	but 	does 	not 	specify workday beginning 	and
ending 	times. 	The 	contract 	does 	not 	provide 	for binding
arbitration of 	grievances.
As background 	information, 	Mr. 	Petrich has 	had 	a history of
personnel 	issues with 	the 	District 	since 	1982. 	Mr. 	Petrich has
filed 	grievances 	pursuant 	to 	the 	contractual 	grievance
procedure. 	Reprimands 	have 	been placed 	in his 	personnel 	file
on 	various 	occasions. 	In 	1984 and 	1985, 	subsequent 	to the
occasion at 	issue 	in the 	instant 	case, 	Mr. 	Petrict 	filed a
series 	of 	unfair practice 	charges 	against 	the 	District.
Against this background, 	on August 	22, 	1984 Mr. 	Petrich
attended 	a 	meeting 	called 	by 	Dr. 	Sund. 	Also present 	at 	the
meeting were 	David 	Magana, 	Head 	Custodian; 	Ernie Benzor,

April 22, 	1985
LA-CE-2134
Page 	2
Assistant 	Director 	of 	Operations; 	and George Williams,
Personnel 	Administrator. 	At 	the 	meeting 	Dr. 	Sund 	explained 	to
Mr. 	Petrich 	that 	they were 	to 	review his 	work 	schedule 	and
description of 	duties 	to be 	effective 	September 	4, 	1984. 	The
District 	sought 	to 	change Mr. 	Petrich's 	working hours 	from 	7
a.m.-4 p.m. 	to 6 	a.m.-3 p.m. 	Dr. 	Sund asked Mr. 	Petrich to
review 	these 	documents 	and 	bring 	to her 	attention 	any 	area 	of
concern 	to him. 	Mr. 	Petrich 	replied 	that he 	would 	not 	respond
in 	any way 	without 	representation. 	The 	meeting 	concluded
fifteen minutes 	after 	it 	began.
A 	second 	meeting 	was 	scheduled 	and 	held 	the 	following 	day, 	on
August 	23, 	1984. 	Present 	were Mr. 	Petrich and his
representatives, 	Mr. 	Alan Aldrich, 	CSEA Field Representative
and 	Joe 	Gandara, 	CSEA Grievance 	Chairperson. 	Also present were
Dr. 	Sund, 	Mr. 	Magana, 	Mr. 	Benzor and Mr. Williams. 	Mr. 	Aldrich
stated that 	the 	District 	did 	not 	have 	the 	right 	to change an
employee's 	working hours 	once 	they had 	been 	initially
established 	without 	meeting 	and 	negotiating 	with 	the 	exclusive
representative.
An 	argument 	developed 	over 	the 	issue 	of 	negotiability. 	Mr.
Williams 	said he 	would 	reduce Mr. 	Petrich's hours of 	employment
unless he 	agreed 	to 	sign 	the 	revised 	work 	schedule 	as 	written,
including 	the 	change 	in his 	hours 	of 	employment. 	He 	said words
to 	the effect, 	"If 	you do not 	want 	to work 	6 a.m. 	to 	3 p.m.,
we'll 	just 	cut 	your hours." 	Dr. 	Sund 	stated 	that unless Mr.
Petrich 	agreed 	to 	sign 	the 	revised 	work 	schedule, 	she 	would
"get 	somebody else" 	to do the 	job. 	Mr. 	Petrich interpreted
this 	statement 	to 	mean 	that 	she 	would 	fire 	him 	from 	his
employment.
No agreement 	was 	reached 	in 	the 	discussion. 	The 	meeting
concluded 	with Dr. 	Sund 	stating 	that 	she 	would 	confer 	with Mr.
Williams 	and Mr. 	Tucker 	regarding 	further procedures 	in the
matter.
On August 	28, 	1984, 	Mr. 	Aldrich wrote a letter to Mr. 	Tucker
regarding his 	and 	Chapter 	President 	Gary 	Prince's 	concerns
relative 	to 	the proposed 	change 	of 	hours 	impacting Mr.
Petrich. 	He 	reiterated 	CSEA's position 	that hours of
employment 	are 	a 	mandatory 	subject 	of bargaining 	under 	the
EERA. 	He pointed 	out 	that 	the 	collective bargaining 	agreement
was 	silent 	on 	the 	issue 	of 	changes 	of 	unit 	member 	hours 	and
that 	he 	found 	nothing 	within 	the 	agreement 	that 	constituted 	a
clear 	and 	unmistakable 	waiver 	of 	CSEA's 	right 	to 	negotiate 	the
issue. 	The 	letter 	concluded 	with 	a 	request 	to 	negotiate
regarding 	the proposed 	change 	of 	hours 	impacting Mr. 	Petrich.

April 	22, 	1985
LA-CE-2134
Page 	3
On September 	19, 	1984, 	Mr. 	Tucker met with Mr. 	Petrich and his
representatives 	Mr. 	Aldrich and Mr. 	Prince 	to negotiate 	the
change 	in hours. 	The 	parties 	were 	unable 	to 	reach agreement.
After 	the meeting, 	Mr. 	Tucker wrote a 	letter to Ms. 	Frances A.
Kreiling, 	Regional 	Director of 	the 	Los Angeles Office of 	the
PERB, 	stating 	that 	the 	District 	agreed 	that 	the 	changing 	of
hours 	was 	a bargainable 	issue, 	but 	that 	an 	impasse 	existed
between 	the parties 	because 	they 	were 	unable 	to 	reach
agreement. 	He 	requested 	the 	appointment 	of 	a 	mediator.
Mr. 	Tucker 	was 	notified by 	PERB by 	letter 	dated 	October 	10,
1984, 	that 	a mediator had been appointed 	in case 	LA-M-1350,
Riverside 	Unified 	School 	District. 	The 	mediation did 	result 	in
an 	agreement 	to change Mr. 	Petrich's hours 	effective
February 	1, 	1985 	to 	those 	desired 	by the 	District 	in exchange
for 	an extra day of 	vacation 	each year 	for 	Mr. 	Petrich.
Threats 	of 	Reprisal
The 	charge 	states 	a prima 	facie 	violation of 	section 	3543.5(a)
based upon, the 	statements by Dr. 	Sund and Mr. 	Williams quoted
above. 	These 	statements 	arguably 	threatened 	reprisals 	against
Mr. 	Petrich because of his 	exercise 	of 	enployee 	rights 	in
seeking 	to have 	the 	exclusive 	representative 	represent 	him
regarding 	the 	change 	in his work hours. 	The 	statements 	alone
may 	not 	be 	sufficient 	to 	constitute a 	threat, 	but 	in the
context of 	the history of 	personnel 	issues between Mr. 	Petrich
and 	the 	District, 	the 	Charging 	Party may be 	able 	to 	show a
violation of 	section 	3543.5(a). 	Wightman v. 	Los Angeles
Unified 	School 	District 	(12/31/84) 	PERB Decision No. 	473.
Unilateral 	Change 	in 	Hours
The 	charge 	could be 	argued 	to 	allege 	a 	violation 	of 	section
3543.5(c) 	by 	virtue 	of 	the 	District's 	attempt 	to 	unilaterally
impose a 	change of 	work hours 	on Mr. 	Petrich. 	In 	addressing
this 	issue, 	it 	is 	not 	necessary to 	resolve 	the 	issue of whether
the 	change 	of 	work hours 	of one 	employee 	is 	negotiable. 	In
Grant 	Joint 	Union High 	School 	District 	(2/26/82) 	PERB 	Decision
No. 	196, 	the 	Board 	indicated 	that 	to constitute 	an unlawful
unilateral 	change, 	the employer's 	conduct 	must 	constitute a
"change 	of 	policy" 	which has 	a 	"generalized 	effect 	or
continuing 	impact 	upon 	the 	terns 	and 	conditions 	of 	employment
of 	bargaining 	unit 	members."
Nevertheless, 	leaving open the 	question of 	negotiability, 	here
the 	charge 	still 	does 	not 	allege 	a prima 	facie 	violation of 	the

April 	22, 	1985
LA-CE-2134
Page 	4
EERA 	because 	no 	change 	was 	actually made 	until 	after
negotiations 	were "held 	and agreement 	was 	reached. 	The
District's 	initial 	position was 	that 	the 	issue 	of 	hours was 	not
negotiable 	because 	of 	the 	management 	rights 	clause present 	in
the 	negotiated 	contract. 	Mr. 	Petrich's 	representatives were
able 	to 	convince 	the 	District 	to 	negotiate.
A violation of 	section 	3543.5(c) 	will be 	found where 	(1) 	the
employer has 	implemented 	a 	change 	in policy 	in a 	matter 	within
the 	scope of 	representation, 	and 	(2) 	the 	change 	is 	implemented
prior 	to 	the 	employer 	notifying 	the 	exclusive 	representative
and 	giving 	it 	an 	opportunity 	to 	request 	negotiations. 	V7alnut
Valley Unified 	School 	District 	(3/30/81) 	PERB Decision No. 	160;
Grant 	Joint 	Union High 	School 	District, 	supra; 	State 	of
California 	(Dept, 	of 	Transportation) 	(11/28/83) 	PERB Decision
No. 	361-S. 	In the 	instant 	case, 	there was 	no change
implemented 	by 	the 	District 	until 	after 	negotiations 	with 	the
exclusive 	representative. 	Thus, 	a critical 	element 	of 	a prima
facie 	case 	is 	missing, 	and 	no 	complaint 	can 	issue 	on this
allegation.
Since 	no 	(c) 	violation 	is 	stated by the charge, 	there can be no
derivative 	(b) 	violation 	regarding 	the 	alleged 	unilateral
change 	of 	hours. 	(San 	Francisco 	Community 	College 	District
(10/12/79) 	PERB Decision No. 	105.)
Alleged 	3543.5(d) 	Violation
The 	charge 	states 	that 	the 	District 	by 	its 	conduct 	described
above has 	violated 	section 	3543.5(d). 	This 	section provides
that:
It 	shall 	be 	unlawful 	for 	a public 	school 	employer 	tor
(d) 	Dominate 	or 	interfere 	with the 	formation or
administration 	of 	any 	employee 	organization, 	or
contribute 	financial 	or 	other 	support 	to 	it, 	or 	in any
way 	encourage 	employees 	to 	join 	any 	organization 	in
preference 	to 	another.
However, 	none 	of 	the 	allegations 	in 	the 	charge 	support 	a
violation of 	this 	section by the 	District. 	Thus, 	this 	alleged
violation 	should 	be 	dismissed.
Opportunity 	to 	Amend
For 	the 	reasons 	stated 	above, 	the 	charge 	as 	presently written
does 	not 	state 	a 	prima 	facie 	violation of 	the 	EERA. 	If you

April 22, 	1985
LA-CE-2134
Page 	5
feel 	that 	there 	are 	facts 	or 	legal 	arguments 	which 	would
require 	different 	conclusion, 	an 	amended 	charge 	should 	be
prepared 	on 	a 	standard 	PERB 	unfair 	practice 	charge 	form 	clearly
labeled 	First 	Amended 	Charge, 	should 	contain 	all 	the
allegations 	you 	wish 	to 	make 	and 	be 	signed 	under 	penalty 	of
perjury. 	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 by
April 	29, 	1985, 	I 	shall dismiss your charge. 	If you have any
questions on how 	to proceed, 	please 	call me at 	(213) 	736-3127.
Sincerely,
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-2134
COMPLAINT 	(Unfair 	- 	EERA)
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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 	3240.1(k).
2. 	The 	Charging 	Party 	is 	an 	employee 	within 	the 	meaning
of 	Government 	Code 	section 	3540.l(j).
3. 	The 	charge 	was 	filed 	with 	the 	PERB on 	February 	11,
1985, 	and 	served on Respondent on February 11, 	1985.
)
_______________ )

4. 	Tony 	P e t r i , 	at 	all 	relevant 	times, 	was 	employed as a
gardener 	at 	Woodcrest 	Elementary 	School 	by 	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 	(CSEA) 	and 	the
Riverside 	Unified 	School 	District.
5. 	Mr. 	Petrich has had 	a history of personnel 	issues with
the 	District 	since 	1982. 	Reprimands have been placed 	in his
personnel 	file 	on various 	occasions. 	Mr. 	Petrich has 	filed
grievances 	pursuant 	to 	the 	contractual 	grievance procedure.
6. 	On or 	about August 	23, 	1984, 	Charging 	Party and his
CSEA 	representatives 	attended 	a 	meeting 	with 	representatives 	of
Respondent 	to 	discuss 	a proposed 	change 	of 	Charging 	Party's
work 	hours.
7. 	During 	said 	meeting, 	Respondent's 	representative.
Assistant 	Director 	of 	Operations 	Benzor, 	stated 	to Charging
Party words 	to 	the 	effect, 	"If you do not 	want 	to 	work 	6 	a.m.
to 	3 p.m., 	we'll 	just 	cut your hours."
8. 	During 	said 	meeting, 	Respondent's 	representative.
Principal 	Mary Ann 	Sund, 	stated 	to 	Charging 	Party words 	to the
effect 	that 	unless 	Mr. 	Petrich 	agreed 	to 	sign 	the 	revised work
schedule, 	she 	would 	"get 	somebody else" 	to do the 	job.

9. 	The 	actions 	described 	above 	in paragraphs 	7 	and 	8
constituted 	an 	unlawful 	threat 	of 	reprisal 	against 	Mr. 	Petrich
when viewed 	in 	their 	overall 	context 	in violation 	of 	Government
Code section 3543.5(a).
10. 	The 	remaining 	allegations 	made 	in 	the 	charge 	are 	being
dismissed 	by 	letter 	to 	issue 	simultaneously 	with 	this
complaint. 	Said 	letter 	is 	attached 	hereto 	and 	incorporated 	by
reference.
DATED: 	May 8, 	1985 	DENNIS 	M. 	SULLIVAN
General 	Counsel
BY
Barbara T. 	Stuart
Regional 	Attorney