Salinas City Elementary School District (Rodriquez) (PERB 1131E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JERRY RUBEN RODRIQUEZ, )

Charging Party, ) Case No. SF-CE-1777
)

Vv. ; ) PERB Decision No. 1131
SALINAS CITY ELEMENTARY SCHOOL ) January 10, 1996
DISTRICT, )

)
Respondent. )
)
Appearance; Jerry Ruben Rodriquez, on his own behalf.

Before Caffrey, Chairman; Garcia and Johnson, Members.

DECISION AND ORDER

JOHNSON, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Jerry Ruben
Rodriquez (Rodriquez) of a Board agent's dismissal (attached) of
his unfair practice charge. In the charge, Rodriquez alleged
that the Salinas City Elementary School District violated section
3543.5 of the Educational Employment Relations Act (BERA)? when

it terminated his employment. The Board agent dismissed

1RERA is codified at Government Code section 3540 et seq.
EERA section 3543.5 reads, 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.

Rodriquez's 	charge 	and 	refused 	to 	issue 	a 	complaint 	on 	the
grounds 	that 	his 	allegations were untimely 	filed, 	failed 	to
state a prima 	facie case, 	and were outside PERB's 	jurisdiction.
The 	Board has 	reviewed 	the 	applicable 	statutes 	and 	case
law, 	the warning and dismissal 	letters, 	the original 	and amended
charges, 	Rodriquez's appeal 	and the 	entire record in this 	case.
The 	Board 	finds 	the 	Board agent's 	warning and dismissal 	letters
to be 	free 	of prejudicial 	error and adopts 	them as 	the 	decision
of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	SF-CE-1777 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Garcia 	joined 	in 	this 	Decision.
2
.

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
August 2, 	1995
Jerry Ruben Rodriguez
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
Jerry Ruben Rodriguez v. 	Salinas 	City Elementary School
District
Unfair Practice Charge No. 	SF-CE-1777
Dear Mr. Rodriguez:
The above-referenced unfair practice charge, 	filed on March 14,
1995, 	alleges that the Salinas City Elementary School District
(District) 	engaged in various unfair practices against Jerry
Ruben Rodriguez. 	This conduct is alleged to violate Government
Code section 3543.5 of the Educational Employment Relations Act
(EERA).
I indicated to you, 	in my attached letter dated July 21, 	1995,
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 the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to July
28, 	1995, 	the charge would be dismissed.
A brief extension of 	time was granted for the filing of an
amended charge. 	An amended charge was 	filed on July 31, 	1995.
The amended charge contains numerous additional allegations.
However, 	for the reasons explained in the July 21, 	1995 letter,
the new allegations that arise outside of the six month statute
of limitations period 	(i.e., 	prior to September 15, 	1994) 	cannot
be the basis 	for a prima facie violation and need not be
summarized here.
The new allegations within the statute of limitations period that
concern the District's conduct relate generally to issues arising
in the context of his Worker's Compensation case, 	such as the
District's periodic 	issuance of 	temporary and permanent
disability checks during the period it 	considered him on the 39-
month reemployment list. 	As noted in the July 21, 	1995 letter,
PERB lacks jurisdiction over such claims.

Dismissal 	Letter
SF-CE-1777
August 2, 	1995
Page 2
The undersigned has 	reviewed the amended charge and finds 	no
material allegations 	to support a prima facie violation of 	the
EERA. 	Therefore, 	I am dismissing the charge based on the facts
and reasons set forth above and in my July 21, 	1995 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 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

Dismissal 	Letter
SF-CE-1777
August 2, 	1995
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,
ROBERT THOMPSON
Deputy General 	Counsel
DONN GINOZA]
Regional Attorney
Attachment
cc: 	Christopher D. 	Keeler

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
July 21, 	1995
Jerry Ruben Rodriguez
Re: 	WARNING LETTER
Jerry Ruben Rodriguez v. 	Salinas City Elementary School
District
Unfair Practice Charge No. 	SF-CE-1777
Dear Mr. Rodriguez:
The above-referenced unfair practice charge, 	filed on March 14,
1995, 	alleges that the Salinas City Elementary School District
(District) 	engaged in various unfair practices against Jerry
Ruben Rodriguez. 	This conduct is alleged to violate Government
Code section 3543.5 	of the Educational Employment Relations Act
(EERA) .
Investigation of 	the 	charge 	revealed the 	following.1 Jerry Ruben
Rodriguez was employed as a maintenance worker by the District
during the period from February 1990 	through March 1995. 	The
Association is the exclusive representative of his bargaining
unit. 	On February 22, 	1990, 	Rodriguez's supervisor ordered
Rodriguez 	to meet him the following morning at a school 	for
instructions on repair of a heating unit. 	The supervisor
provided Rodriguez with a wiring diagram which Rodriguez 	could
not understand and which his supervisor could not explain. 	The
supervisor then physically demonstrated to Rodriguez how to wire
the heating unit. 	He told Rodriguez to complete the repairs
quickly. 	Rodriguez completed the wiring and then turned to
ignite the heater. 	The heating unit exploded, 	singing Rodriguez
and throwing him backward. 	Leaving the area, 	Rodriguez
encountered representatives 	the Association. 	Rodriguez
complained about his supervisor's lack of experience. 	One of the
representatives notified the school principal who assisted
Rodriguez 	in boarding a school vehicle to transport him to a
local hospital for medical attention. 	Rodriguez returned to work
after his examination and was handed a Workers' 	Compensation form
by the principal.
The following day, 	Rodriguez began to experience problems with
shortness of breath. 	He arranged for a further medical
1 The charge consists of a 49-page chronological 	statement
of 	facts. 	The recitation of facts contained herein has been
abbreviated.

Warning 	Letter
SF-CE-1777
July 21, 	1995
Page 2
examination. 	Several days later, 	tests revealed moderate
pulmonary function restriction and possible pneumonitis.
Rodriguez retained a Workers' 	Compensation attorney. 	Rodriguez
was 	referred to psychological 	counseling due to severe 	fear and
anxiety of returning to work. 	During March 1990, 	Rodriguez
complained of 	increasing difficulty breathing, 	particularly when
exercising.
During March and April 1990, 	Rodriguez was not pleased with his
Workers' 	Compensation attorney's failure to act on his complaints
about his 	supervisor and aggressively assert his 	rights 	in the
claim. 	The District's claims adjuster arranged for Rodriguez to
be seen by pulmonary specialists at 	the Stanford Medical 	Center.
These tests 	revealed moderate lung capacity reduction,
tentatively attributed to asthma. 	After further tests, 	the
doctors would suggest 	that Rodriguez had had a preexisting
condition, 	which Rodriguez denied.
In June, 	the District offered vocational rehabilitation benefits,
which Rodriguez accepted.
Further tests at Stanford Medical Center led doctors to the
conclusion that Rodriguez 	suffered hyper-reactive bronchial
airways, 	should be on inhaled steroids, 	and should avoid
exposures 	to precipitating conditions. 	They found no evidence
that 	the accident contributed to any appreciable lung injury.
The District's 	superintendent 	ordered that 	staff work with
Rodriguez and the rehabilitation consultant 	to develop
alternative positions. 	The District worked with Rodriguez to
develop a new job description. 	Rodriguez 	rejected a proposed job
description around the time of 	the targeted date 	for his 	return
to work in November 1990.
In December, 	Rodriguez returned to work without a job
description. 	Rodriguez 	evaluated the District's equipment 	repair
needs to determine what cost effective alternatives existed. 	In
January 1991, 	he proposed dropping an audio visual and equipment
repair contract with an outside vendor. 	In March, 	after further
research by Rodriguez, 	his rehabilitation plan was 	submitted to
the claims adjuster for approval. 	After submission to the
Workers' 	Compensation Rehabilitation District Office, 	the plan
was rejected for lack of documentation. 	Nevertheless, 	Rodriguez
worked for the District making equipment 	repairs during this
period of time, 	while maintaining his eligibility for
rehabilitation benefits. 	His vocational 	consultant continued to
issue progress reports.
In July 1991, 	the District rejected Rodriguez's claim for
permanent partial disability.

Warning 	Letter
SF-CE-1777
July 21, 	1995
Page 3
Rodriguez 	complained about breathing problems 	in his new job as a
result of exposure to certain chemical solvents. 	He was examined
by a doctor who advised that he be provided with protective
equipment.
In November 1991, 	the District Board accepted Rodriguez's
proposed job description, 	including a $100 month raise, 	following
reports that his repair program resulted in cost savings 	to the
District.
A doctor's 	evaluation in December 1991 	concluded that Rodriguez
suffered 	from chronic airways 	inflammation due to the short-term,
high-level exposure to irritant materials during the accident.
Another specialist 	concurred in this 	evaluation and recommended
equipment 	that would avoid exposure to irritants.
During March 1992, 	Rodriguez's condition worsened and he took a
100-day medical leave. 	He requested that 	the District agree to
an evaluation by the same doctors he had seen beginning in
December 1991. 	He believed the District had agreed but
discovered that this was not the case. 	In the summer of 1992,
the District 	eliminated Rodriguez's position by signing a
contract with an outside vendor. 	Rodriguez claims that this
information was 	intentionally concealed 	from him.
Further medical 	examination by yet another physician concluded
that Rodriguez's asthma was not the result of the heater
explosion and that he 	could continue working as an audio-visual
equipment repairman if he avoided exposure to toxic chemicals.
In October 1992, 	Rodriguez requested the right to return to work
with accommodations. 	The District advised him that he should
speak to their attorney. 	Rodriguez then sought assistance from
the Association. 	The Association referred him to a panel
attorney who handled Workers' 	Compensation cases. 	This attorney
concurred in his first attorney's opinion that, 	apart from the
Workers' 	Compensation claim, 	there were no other potential claims
for negligence or discrimination.
The Association's 	referral 	attorney arranged for an 	informal
rehabilitation conference with the District 	in October to discuss
accommodation in the workplace. 	The District admitted at the
meeting that Rodriguez's position no longer existed. 	Rodriguez
requested that the attorney file discrimination charges.
A second 	informal 	conference with Rodriguez's attorney and the
District's attorney in December failed to resolve the dispute.
The attorneys agreed to work on mutually selecting a medical
examiner. 	The District urged Rodriguez to continue his job

Warning Letter
SF-CE-1777
July 21, 	1995
Page 4
search outside of the District. 	Rodriguez's attorney refused to
file discrimination charges at 	this 	time and advised him to
obtain assistance 	from the Association regarding the 	contracting
out of the repair work.
The agreed medical 	examiner concluded that Rodriguez's 	condition
persisted, 	was caused by the initial accident, 	and that he should
be reemployed with proper safety equipment. 	In response, 	the
District 	offered only a unpaid leave of absence or placement 	on
the 39-month reemployment 	list.
In March 1993,•Rodriguez 	filed charges under the Americans with
Disability Act 	(ADA) 	with the Equal Employment Opportunities
Commission. 	Marci Seville, 	an Association attorney, 	wrote the
District 	demanding Rodriguez's 	reinstatement and asserting that
his ADA rights had been violated. 	Seville 	informed Rodriguez
that 	the Association had not yet determined whether to provide
him with formal 	legal 	representation in the ADA claim.
In April 	1993, 	Seville referred Rodriguez to a private attorney
who determined that his ADA claim lacked merit. 	She advised
Rodriguez 	to agree to the settlement agreement being proposed by
the District, 	which included his right to return to work.
Seville concurred in this assessment and advised him to accept
the terms of the settlement agreement proposal.
During May 1993, 	the District insisted on Rodriguez's release of
all claims, 	including Workers' 	Compensation and ADA. 	Seville
left 	employment with the Association and assigned his 	case to
another attorney, 	Maureen Whelan. 	Rodriguez told Whelan that he
was opposed to the settlement agreement because of the
rehabilitation plan.
On May 27, 	1993, 	a meeting of the all of the principals involved
occurred at which time the District presented Rodriguez with its
comprehensive settlement agreement. 	Whelan and his Workers'
Compensation attorney urged him to sign the agreement. 	Whelan
told him that his ADA case was weak and that the Association
would not 	continue to represent him if he did not accept 	the
agreement. 	Rodriguez balked and raised an issue of needing funds
to repair his truck that he used in his work. 	The District
offered a portion of his demand in a handwritten addendum.
Rodriguez 	continued to feel pressured into signing the agreement.
He did not like the agreement. 	He signed reluctantly. 	Shortly
after the meeting, 	he discovered that the final copy he received
differed from the one he signed in that 	it 	substituted a
different rehabilitation plan. 	The charge does not explain
precisely how the substituted plan differed, 	but does suggest

Warning Letter
SF-CE-1777
July 21, 	1995
Page 5
that a reference to his 	last leave of absence being a cumulative
injury rather than an independent 	injury was his main concern.
On this basis, 	Rodriguez claims that the District intentionally
discriminated against him as disabled person, 	violated safety
regulations requiring a safe working environment, 	and denied him
his Workers' Compensation benefits.
Rodriguez returned to work in the fall of 1993. 	He was 	fitted
with a respirator. 	He was subsequently fitted with a second
respirator after the first proved to be unsatisfactory.
Rodriguez 	fired his Workers' 	Compensation attorney and pursued a
malpractice action against him.
An 	industrial 	hygienist 	inspected Rodriguez's workplace and
recommended better room ventilation. 	The agreed medical 	examiner
concurred in this recommendation. 	No new measures were taken.
Rodriguez 	complained about 	inadequate heating and had to keep the
existing windows and doors closed. 	His request for improved
heating and ventilation was apparently not acted upon.
In January 1994, 	Rodriguez's condition worsened, 	during a time he
had to keep the windows 	close to avoid the cold.
In February 1994, 	Rodriguez filed a complaint with the Monterey
County District Attorney's office claiming Workers' 	Compensation
fraud based on the alteration of the agreement. 	The office
declined to proceed. 	Rodriguez also began gathering information
regarding a breach of 	the Association's duty to represent him.
Also in February, 	Rodriguez suffered another respiratory episode.
He filed a new Workers' 	Compensation claim.
An Association representative, 	Pat Bollin, 	verbally and
physically assaulted Rodriguez by grabbing him on March 18, 	1994
when she 	learned that he was gathering information against 	the
Association. 	He filed assault and battery charges with the
Salinas Police Department. 	On March 22 and 23, 	he also requested
an investigation of Seville and Whelan by the Association's 	Chief
Counsel, 	Margie Valdez. 	On March 27, 	Rodriguez filed a grievance
based on the Bollin incident. 	He pursued this grievance, 	but the
District rejected it at the first two levels, 	on April 	11 and May
19, 	respectively, 	despite Bollin's admission of the confrontation
and her grabbing of Rodriguez. 	A final 	review resulted in a
denial of the grievance on July 29, 	1994. 	The Salinas Police
Department produced a report which Rodriguez 	submitted at 	the
last 	step of the grievance procedure. 	He later complained that
the police officer had altered the report which the District had
reviewed. 	On April 11, 	Rodriguez requested that Mary Jane
Campbell, 	Chapter President, 	take some action against Bollin for
her assault.

Warning 	Letter
SF-CE-1777
July 21, 	1995
Page 6
The District rejected the new Workers' 	Compensation claim.
Rodriguez 	informed the District 	that he would not be 	returning to
work until 	the agreed medical 	examiner recommended adequate
ventilation and heat. 	The District responded by requiring a
medical 	release from the examiner prior to his return to work.
In a deposition, 	the medical examiner asserted that Rodriguez
could no 	longer work in his position and should seek another
position.
On June 8, 	1994, 	Rodriguez telephoned Association Executive
Director Bud Dougherty to request an internal 	investigation of
Seville, 	Whelan and Bollin. 	He confirmed this request in a
letter dated June 15. 	Also on June 8, 	Rodriguez called Valdez to
request an inquiry as 	to whether Seville and Whelan had followed
procedures 	in investigating his claims. 	He confirmed this
request 	in a letter dated June 11. 	Valdez responded on June 24
that her investigation revealed no improprieties. 	On June 9,
Rodriguez 	requested that 	the Association Board of Directors and
Association President Steve Araujo also 	initiate an internal
investigation regarding Seville, 	Whelan and Bollin.
On June 20, 	1994, 	the District claimed that Rodriguez was not
participating in the vocational 	rehabilitation program and
threatened to terminate these benefits. 	It also disputed
Rodriguez's claimed permanent disability rating. 	In July, 	the
District proposed two part-time positions 	for Rodriguez, 	which he
rejected.
On September 15, 	1994, Rodriguez requested a medical leave, 	which
the District denied. 	Twice he requested reconsideration but was
denied both times. 	He continued to be eligible for vocational
rehabilitation benefits during the fall of 1994.
In December, 	the District's attorney advised Rodriguez that his
medical 	condition was such that he was not capable of working in
any environment, 	except an office environment. 	The attorney
invited Rodriguez to submit a settlement proposal, 	which he did.
On January 26, 	1995, 	the District notified Rodriguez that he was
no longer employed, 	but placed on the 39 month reemployment list.
Subsequently, 	Rodriguez sought action from the District's Board
of Education to address the serious and wilful 	conduct of the
District 	that 	resulted in his 	irreversible lung damage and
inability to perform his 	job duties and requested a permanent
leave of absence. 	On February 28, 	1995, 	the Board rejected him
on both requests. 	The District claimed that 	it had complied with
the settlement agreement, 	and would not make any special
exceptions for him.

Warning 	Letter
SF-CE-1777
July 21, 	1995
Page 7
Based on the facts stated above, 	the charge as presently written
fails 	to state a prima facie violation of the EERA for the
reasons that follow.
Government Code section 3541.5(a) 	states that PERB 	"shall not
. 	. 	. 	issue a complaint in respect of any charge based upon an
alleged unfair practice occurring more than six months prior to
the filing of the charge."
PERB has held that the six month period commences 	to run when the
charging party knew or should have known of 	the conduct giving
rise to the alleged unfair practice. 	(Regents of 	the University
of California 	(1983) 	PERB Dec. No. 	359-H.)
The charge was filed on March 14, 	1995. 	Therefore, 	only those
actions taken by the District on or after September 14, 	1994 are
timely. 	The only actions by the District 	that 	can be considered
in this case are its placement of him on the 39-month
reemployment list 	(i.e., 	termination) 	and its refusal to grant
him a permanent leave of absence.
However, 	with respect to these allegations, 	the charge fails to
demonstrate a prima facie violation. 	Rodriguez complains that
the District engaged in serious and wilful misconduct 	in causing
the injury which resulted in his permanent disability. 	He also
claims 	that he has been discriminated against based on his
disability. 	PERB lacks jurisdiction over these claims. 	These
are matters covered under the Workers' 	Compensation laws and the
ADA, 	but not the EERA.
PERB's jurisdiction in cases such as these is limited to claims
that the public school employer has 	interfered with an employee's
right participate in union activities. 	No such claim is made or
articulated in this case. 	(Gov. Code, sec. 3543.5(a); see
Carlsbad Unified School District 	(1979) 	PERB Dec. 	No. 	89 	[some
nexus between the employer's 	conduct and interference with
protected activities 	is 	required].)
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 be served on the respondent and the original
proof of service must be filed with PERB. 	If 	I do not receive an

Warning 	Letter
SF-CE-1777
July 21, 	1995
Page 8
amended charge or withdrawal 	from you before July 28. 	1995. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional Attorney