Apple Valley Unified School District (PERB 0963E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
APPLE 	VALLEY 	CLASSIFIED
EMPLOYEES 	ASSOCIATION,
Charging 	Party,
v.
APPLE VALLEY 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-3095
PERB Decision No. 	963
December 7, 	1992
Appearance: 	California 	Teachers Association by Charles 	R.
Gustafson, 	Attorney, 	for Apple Valley Classified Employees
Association.
Before Hesse, 	Chairperson, 	Camilli and Carlyle, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the Apple Valley Classified
Employees Association 	(Association) 	of 	the 	Board agent's 	partial
dismissal, 	attached hereto, 	of 	its 	charge alleging that the Apple
Valley Unified School District violated 	section 3543.5(a), 	(b)
and 	(c) 	of the Educational Employment Relations Act 	(EERA).1
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.5 	states, 	in pertinent 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 purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
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The 	Board 	finds 	the Association's 	claim on appeal, 	that 	the 	Board
agent 	showed bias, 	is 	unsupported by any 	factual 	assertions 	and
is 	therefore without merit. 	Moreover, 	having reviewed the
dismissal de novo, 	we 	find the dismissal 	to be 	free of
prejudicial 	error and adopt 	it as 	the decision of 	the 	Board
itself.2
The 	Board hereby AFFIRMS 	the 	Board 	agent's 	partial 	dismissal
in Case No. 	LA-CE-3095.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
(b) 	Deny to 	employee organizations 	rights
guaranteed to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
2Chairperson Hesse 	finds 	that 	on the 	transferring of
bargaining unit work allegation, 	a prima 	facie 	case has 	been
established 	and that a 	complaint 	should be 	issued.
2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard. Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
July 8, 	1992
Charles R. 	Gustafson, 	Esq.
Dept. 	of Legal Services
California 	Teachers 	Association
P.O. 	Box 	92888
Los Angeles, 	California 	90009-2888
Re: 	PARTIAL DISMISSAL OF CHARGE
Unfair Practice Charge No. 	LA-CE-3095,
Appl	-----	e 	Valley 	Classified 	Employees
Association v. 	Apple Valley Unified School 	District.
Second 	Amended 	Charge
Dear Mr. 	Gustafson:
On June 	14, 	1991, 	you filed the above referenced charge. 	It was
placed in abeyance on July 29, 	1991. 	On February 	19, 	1992, 	you
filed the First Amended Charge. 	After receiving your letter
dated June 4, 	1992, 	the case was taken out of abeyance on June 	8,
1992. 	You allege 	that the Apple Valley Unified School 	District
(District) 	committed unlawful reprisals/discrimination,
interference, 	denial of representation, 	and unilateral changes 	in
violation of Government Code section 3543.5(a), 	(b) 	and 	(c) 	of
the Educational Employment Relations Act 	(EERA).
I 	indicated to you, 	in my attached 	letter dated June 	23,1992,
that the 	First Amended 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 June 	30, 	1992, 	the
charge would 	be 	dismissed.
On June 26, 	1992, 	I 	received a Second Amended Charge which
changed/added 	to 	some 	of 	the paragraphs. 	Other than paragraph
3.g., 	I 	determined 	that 	the 	Second Amended Charge 	contained 	the
same 	or 	similar problems 	that were 	indicated 	in my 	letter dated
June 23, 	1992. 	I 	telephoned your office around 	10:00 	a.m. 	on
July 2, 	1992, 	to obtain additional 	information. 	I was 	advised by
Anita 	that you would be 	in later in the day. 	I 	left a message 	to
call and 	indicated that 	I 	had 	some questions 	on this 	case. 	At
1:10 	p.m., 	Amy called me 	the 	same day and 	indicated 	that 	she
learned 	that 	you would not be coming 	in that day, 	and that 	your
office was 	closed on Friday, 	July 3, 	1992. 	She advised me that
you would be 	in around 	10:00 a.m. 	on July 6, 	1992, 	and that you
would call me back at that time. 	To date, 	I have not heard from.

Partial 	Dismissal 	of Charge
LA-CE-3095
July 8, 	1992
Page 2
you. 	Since you have not returned my call, 	I 	am therefore
dismissing all 	allegations 	in the 	Second Amended Charge, 	except
for paragraph 	3.g., 	based on the 	above 	and 	the 	facts 	and reasons
contained in my June 23, 	1992 	letter.
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
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

Partial 	Dismissal 	of 	Charge
LA-CE-3095
July 8, 	1992
Page 3
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,
JOHN W. 	SPITTLER
General 	Counsel
By
Marc S. 	Hurwitz
Regional 	Attorney
Attachment
cc: 	Steve Andelson, 	Esq. 	and Robert L. 	Sammis, 	Esq.

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard. Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
June 23, 	1992
Charles R. 	Gustafson, 	Esq.
California 	Teachers 	Association
Dept. 	of Legal Services
P.O. 	Box 	92888
Los Angeles, 	California 90009-2888
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3095,
Apple Valley Classified 	Employees 	Association v. 	Apple	-
Valley Unified School 	District. 	First Amended Charge
Dear Mr. 	Gustafson:
On June 	14, 	1992 you filed the above referenced charge. 	It was
placed in abeyance on July 29, 	1991. 	On February 	19, 	1992, 	you
filed 	the 	First Amended Charge. 	After receiving your 	letter
dated June 4, 	1992, 	the case was taken out of abeyance on June 8,
1992. 	You allege that the Apple Valley Unified School 	(District)
committed unlawful reprisals/discrimination, 	interference, 	denial
of representation, 	and unilateral changes 	in violation of
Government Code section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations Act 	(EERA).
The 	First Amended Charge 	as 	presently written does 	not 	state 	a
prima 	facie violation of 	the 	EERA for the 	reasons 	that 	follow.
At paragraphs 	3a. 	through 	3m., 	you have alleged approximately 	13
acts/instances 	of 	reprisal/discrimination 	(involving 	about 	5
employees), 	including several alleged threats 	(or interference).
PERB Regulation 32615(a)(5) 	(California Code of 	Regulations,
title 	8, 	section 32615(a)(5)) 	requires that a charge contain a
"clear and concise 	statement 	of 	the 	facts 	and conduct alleged to
constitute 	an unfair practice." 	In order to 	state a prima 	facie
reprisal/discrimination violation of EERA section 3543.5(a), 	the
charging party must 	show that: 	(1) 	the 	employee 	exercised rights
under the EERA, 	(2) 	the employer had knowledge of the 	exercise of
those rights, 	and 	(3) 	the 	employer imposed1 or threatened to
impose reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained 	or 	coerced 	the 	employees
1Paragraph 3j. 	involving Association officer Chuck Eiding
appears to allege insufficient facts, 	in part, 	since it may not
even allege an adverse action. 	This 	is 	because your Exhibit 	B
memo dated October 	17, 	1991, 	criticizing Chuck Eiding, 	was 	sent
from one Supervisor to another. 	Also, 	it does 	not 	reflect 	that
a 	copy was 	placed 	in the 	employee's 	personnel 	file.

Warning 	Letter
LA-CE-3095
June 	23,.1992
Page 2
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 	"nexus" 	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 	Decision
No. 	264. 	As presently written, 	this First Amended Charge at
paragraphs 	3a. 	through 3m. 	provides vague allegations,
insufficient 	facts 	and legal conclusions. 	It fails 	to clearly
and concisely 	(who, what, when, where, 	and how) 	demonstrate with
sufficient 	facts 	the above required elements 	and 	factors, 	and
therefore, 	does 	not 	state a prima 	facie violation of 	section
3543.5(a).2
For 	several 	alleged 	instances 	involving 	threats/interference 	with
protected rights, 	you have not stated a prima 	facie 	violation of
EERA 	section 	3543.5(a) 	as 	you have 	not 	clearly and 	concisely
(who, 	what, 	when, 	where and how) 	demonstrated with sufficient
facts 	that the 	District's 	conduct tends 	to or does 	result 	in 	some
2Regarding paragraph 3i., 	even if 	sufficient 	facts were
alleged, 	it appears 	that the allegations 	involving the June 	18,
1991 	memo to 	Pres. 	Dennis 	Ryan are untimely and will be dismissed
since the amended charge was 	filed February 	19, 	1992. 	EERA
section 3541.5(a). 	There is no relation back as paragraph 3i. 	was
raised 	for the 	first 	time 	in the 	amended 	charge 	on February 	19,
1992. 	This problem will also apply to parts 	of paragraph 	3j.
involving Association officer Chuck Eiding. 	All 	allegations 	in
paragraph 	3j. 	of unlawful conduct occurring prior to August 	19,
1991 	are untimely 	and will be dismissed.
),,

Warning 	Letter
LA-CE-3095
June 23, 	1992
Page 3
harm to 	employee 	rights. 	Carlsbad 	Unified 	School 	District 	(1979)
PERB Decision No. 	89.
You also allege 	in part at paragraph 	3h. 	that the 	District 	denied
Steve 	Smith representation at a meeting on or about June 	7, 	1991.
Under NLRB v. Weingarten. 	Inc. 	(1975) 	420 U.S. 	251, 	43 L. 	Ed.2d
171 	and Redwoods Community College District v. 	PERB 	(1984) 	159
Cal. 	App.3d 617, 	you are required to show that Mr. 	Smith
requested representation, 	that 	the request was 	for an
investigatory meeting 	(questions were asked), 	and that he
reasonably believed 	that 	the 	interview might 	result 	in
disciplinary action against him. 	Absent 	the discipline 	element,
representation 	is 	granted under EERA only 	in 	"highly 	unusual
circumstances." 	As 	you have alleged 	insufficient 	facts 	to
clearly and concisely 	show these required 	elements, 	a prima 	facie
Weingarten violation has 	not been shown.
- -
Paragraph 4 	alleges 	that due to the actions 	of 	the District
involving withholding timely approval of vacation 	(3b.), 	use of
break time 	(3e.), 	and denial of a representative 	(3h.), 	the
District has 	committed an unlawful unilateral 	change. 	In
determining whether a party has violated 	section 3543.5(c) 	of
EERA, 	the 	PERB utilizes 	either the 	"per se" 	or 	"totality of the
conduct" 	test, 	depending on the 	specific 	conduct 	involved and the
effect of 	such conduct on the negotiating process. 	Stockton
Unified School District 	(1980) 	PERB Decision No. 	143. 	Unilateral
changes 	are considered 	"per 	se" 	violations 	if certain criteria
are met. 	Those criteria are: 	(1) 	the employer implemented a
change 	in policy concerning a matter within the 	scope 	of
representation, 	and 	(2) 	the change was 	implemented before the
employer notified the 	exclusive 	representative 	and 	gave 	it 	an
opportunity to request negotiations. 	Walnut Valley 	Unified
School District 	(1981) 	PERB Decision No. 	160; 	Grant Joint Unified
High School District 	(1982) 	PERB Decision No. 	196. 	With respect
to the unilateral 	change allegations, 	as 	you have not alleged
sufficient 	facts 	to 	clearly 	and 	concisely 	demonstrate 	the
elements 	of the Grant case, 	the allegations will be dismissed.
Paragraph 	5 	alleges 	that due to the 	establishment by the 	District
of 	a work 	experience program, 	it has 	committed unlawful
unilateral actions. 	Presently, 	paragraph 5 contains 	legal
conclusions with 	insufficient 	facts 	to 	show the 	elements 	of 	the
Grant case. 	Therefore, 	a prima 	facie case has not been 	stated
and 	the 	allegations will be dismissed.
For these 	reasons, 	the amended charge 	as presently written does
not 	state a prima facie case. 	If there are any factual
inaccuracies 	in this 	letter or any additional 	facts 	that would
correct the deficiencies 	explained above, 	please 	amend the 	charge
(

Warning 	Letter
LA-CE-3095
June 23, 	1992
Page 	4
accordingly. 	The 	amended charge 	should be prepared 	on 	a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	Second 	Amended
Charge. 	contain all 	the 	facts 	and allegations 	you wish to make,
and must 	be 	signed 	under penalty of 	perjury 	by 	the 	charging
party. 	The amended 	charge must be 	served on the 	respondent3 and
the original proof 	of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	a 	Second Amended Charge 	or withdrawal 	from you before
June 30, 	1992, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney
3l Steve Andelson, 	Esq. 	and Robert L. 	Sammis, 	Esq.
. 	. 	- .