Los Angeles Unified School District (PERB 1431E)

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

KIRK ANTHONY ROBINSON,
Charging Party, Case No. LA-CE-4232-E

v. PERB Decision No. 1431

LOS ANGELES UNIFIED SCHOOL DISTRICT, April 30, 2001

Respondent.

Appearance: Kirk Anthony Robinson, on his own behalf.
Before Amador, Baker and Whitehead, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Kirk Anthony Robinson (Robinson) of a Board agent's dismissal (attached) of his
unfair practice charge.

The charge alleged that the Los Angeles Unified School District (District) violated
section 3543.5(a) of the Educational Employment Relations Act (EERA)' by dismissing

Robinson from his position with the District.

' BRERA is codified at Government Code section 3540 et seq. Section 3543.5 provides,
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

After reviewing the entire record in this case, including the unfair practice charge, the
dismissal and warning letters, and Robinson's appeal, the Board finds the dismissal letter to be
free from prejudicial error and adopts it as the decision of the Board itself.
ORDER
The unfair practice charge in Case No. LA-CE-4232-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Amador and Whitehead joined in this Decision.
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
2

GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay
Street, Sune
2201
Oakland, CA
94612
(510)
622-1016
December 	11,
	2000
Kirk
	Anthony
	Robinson
1540
	W.
	186th
	Street
Gardena,
	CA
	90248
Re:	
DISMISSAL
	OF
	CHARGE/REFUSAL
	TO
	ISSUE
	COMPLAINT
Kirk
	Anthony 	Robinson 	v.
	Los
	Angeles
	Unified
	School
	District
Unfair
	Practice
	Charge
	No.
	LA-CE-4232;
	First
	Amended
	Charge
Dear
	Mr.
	Robinson:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	October
	25,2000, 	and 	amended 	on
	November
	9, 	2000,
	alleges
	the
	Los
	Angeles
Unified
	School
	District
	(District) 	discriminated 	against
	Charging
Party
	because
	of
	his 	protected
	activity.
	Charging
	Party
	alleges
this
	conduct
	violates
	Government
	Code
	section
	3543.5(a)
	of 	theEducational
	Employment
	Relations
	Act
	(EERA
	or
	Act)
. 1
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	dated
	November
	15,2000,
	that
	the 	above-referenced 	charge
	did
	not
	state
	a
	prima
facie
	case.
	You
	were
	advised
	that,
	if
	there
	were
	any
	factualinaccuracies 	or 	additional 	facts
	which 	would
	correct 	the
deficiencies
	explained 	in 	that
	letter,
	you
	should
	amend
	thecnarge.
	You
	were
	further
	advised
	that,
	unless
	you 	amended
	thecharge
	to
	state
	a
	prima
	facie
	case 	or
	withdrew
	it
	prior 	to
November 	22, 	2000,
	the
	charge
	would 	be
	dismissed.
On
	November
	22, 	2000, 	Charging
	Party 	requested
	a
	one-week
excension 	to
	file
	an
	amended
	charge. 	That
	extension
	was
	granted
to
	November
	29, 	2000.
	No
	amended
	charge
	was
	filed
	by 	November
29, 	2000.
	On
	December 	4, 	2000,
	five
	days
	after
	the
	amended
charge
	was
	due, 	Charging 	Party 	telephoned
	this 	office 	requesting
Charging
	Party 	also 	alleges 	the
	District's
	conduct
violated 	the 	California
	Education
	Code,
	the 	California
Constitution, 	the 	United 	States 	Constitution, 	the
	Freedom
	ofInformation Act, 	and 	the 	parties 	collective 	bargaining 	agreement.However, 	PERB
	only 	has
	jurisdiction 	over 	violations 	of 	the
	EERA.
Allegations 	regarding 	the 	California 	Education
	Code 	and
	all 	other
statutes
	must 	be 	pursued 	in 	state 	or 	federal 	court.
Aaaicionally, 	Charging 	Party 	does 	not 	have 	standing 	to 	allege 	the
District 	unilaterally 	changed
	its 	past 	practice 	or 	written
policy. 	(Oxnard 	School 	District 	(1988) 	PERB 	Decision 	No. 	667.)

Dismissal
	Letter
LA-CE-4232
Page
	2
a
	second
	extension.
	During
	this
	nearly
	one
	hour
	telephone
conversation
1 	I
	explained 	to
	Charging
	Party 	the
	deficiencies 	in
h_s
	charge
	and
	further
	informed 	Charging
	Party
	that
	I
	would
dismiss 	the 	charge
	if
	I
	did
	not
	receive
	an
	amended
	charge
	by 	5:00p.m.1	
December
	8, 	2000.
	During
	a
	second
	telephone
	conversation
on
	December
	4 1
	2000,
	I
	again 	explained 	the
	deficiencies 	in
	the
charge
	and
	reiterated
	that
	any
	amended
	charge
	must
	be
	on
	my
	desk
by
	5:00
	p.m. 	on 	December 	8, 	2000.
I
	have
	not
	received 	either.
an
	amended
	charge
	or
	a
	request
	for
withdrawal.
	Therefore,
	I 	am
	dismissing 	the
	charge 	based
	on
	the
facts
	and
	reasons 	contained
	in
	my
	November
	15, 	2000,
	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
	Regs.,
	tit.
	8,
sec.
	32635(a) .)
	Any
	document
	filed
	with 	the
	Board 	must
	containthe 	case
	name
	and
	number, 	and
	the
	original
	and
	five
	(5)
	copies
	of
all
	documents 	must
	be
	provided
	to 	the
	Board.
A
document
	is
	considered
	"filed''
	when
	actually
	received 	beforethe 	close 	of 	business
	(5
	p.m.)
	on
	the
	last
	day
	set 	for
	filing
	or
wnen
	mailed
	by
	certified
	or
	Express 	United
	States
	mail, 	as
	shown
on
	the
	postal 	receipt
	or
	postmark,
	or 	delivered 	to
	a 	common
carrier
	promising 	overnight 	delivery,
	as
	shown 	on
	the
	carrier's
receipt,
	not
	later
	than 	the
	last
	day
	set
	for
	filing.
	(Cal.
	Code
Regs.,
	tit.
	8,
	sec.
	32135(a); 	see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32130.)
A
document
	is
	also
	considered
	"filed"
	when
	received
	by
	facsimiletransmission 	before 	the 	close 	of 	business
	on
	the
	last
	day
	for
filing
	together 	with
	a
	Facsimile 	Transmission
	Cover
	Sheet
	which
meets
	the 	requirements 	of 	Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
	32135(d),
provided 	the
	filing
	party 	also 	places 	the
	original, 	together
	with
the 	required
	number
	of 	copies
	and
	proof 	of 	service, 	in 	the
	U.S.
'Tlai~.
	(Cal. 	Code.
	Regs.,
	tit.
	8 1
	secs.
	32135(b),	
\CJ 	and
	(d);
see 	also
	Cal.
	Code
	Regs.,
	tit.
	8,
	secs.
	32090 	and 	32130.)
The
	Board's 	address
	is:
Public
	Employment
	Relations
	Board
Attention: 	Appeals 	Assistant
' 	1031
	18th 	StreetSacramento,
	CA
	95814-4174Fl\.X: 	(916) 	327-7960

Dismissal
	Letter
LA-CE-4232
Page
	3
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
Regs.,
	tit.
	8, 	sec.
	32635(b) .)
Service
All
	documents
	authorized 	to
	be
	filed
	herein
	must
	also
	be
	"served"
upon
	all
	parties
	to
	the
	pr9ceeding,
	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
	Regs.,
	tit.
	8,sec.
	32140
	for 	the 	required 	contents
	and
	a
	sample 	form.)
	The
document
	will
	be
	considered 	properly
	"served"
	when
	personallydelivered 	or 	deposited 	in
	the
	first-class
	mail, 	postage
	paid
	and
~roperly 	addressed.
	A
document
	filed
	by
	facsimile 	transmission
may
	be
	concurrently
	served
	via 	facsimile 	transmission
	on
	all
parties
	to 	the 	proceeding.
	(Cal.
	Code
	Regs.
,
	tit.
	8, 	sec.
32135
(c)
. )
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
	beforethe 	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
be 	accompanied 	by
	proof
	of 	service 	of 	the 	request
	upon
	each
party.
	(Cal.
	Code
	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.
0
',,..,':'erely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By
Kristin
	L.
	Rosi
Regional 	Attorney
Attachment
cc: 	Jesus 	Estrada-Melendez

STA
TE
OF
CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1
515
Clay St;eet, Suite
2201
Oakland, CA
94612
(510)
622-1016
November
	15,
	2000
Kirk
	Anthony
	Robinson
1540
	W.
	186th
	Street
Gardena,
	CA
	90248
Re:	
WARNING
	LETTER
Kirk
	Anthony 	Robinson
	v.
	Los
	Angeles
	Unified
	School
	District
Unfair
	Practice
	Charge
	No.
	LA-CE-4232;
	First
	Amended
	Charge
Dear
	Mr.
	Robinson:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	October
	25,
2000, 	and
	amended
	on
	November
	9, 	2000,
	alleges
	the
	Los
	Angeles
Unified
	School
	District
	(District) 	discriminated 	against
	Charging
Party
	because
	of
	his 	protected
	activity.
	Charging
	Party
	alleges
this
	conduct
	violates
	Government
	Code
	section
	3543.S(a)
	of 	theEducational
	Employment
	Relations
	Act
	(EERA
	or
	Act)
. 1
Investigation
	of 	the
	charge
	revealed 	the 	following. 	Charging
Party
was
	employed
	by
	the
	District
	as
	a 	Campus
	Aide
	at
	King/DrewMagnet 	High
	School.
	As 	a 	Campus
	Aide, 	Charging
	Party
	was
exclusively 	represented
	by
	the 	Service
	Employees
	International
Union 	(SEIU),
	Local
	99.
	The
	District
	and
	SEIU
	are
	parties
	to
	a
collective
	bargaining
	agreement
	(Agreement) 	which
	expires
	on 	June
30, 	2000.
On
	October 	15, 	1999, 	Charging
	Party
	was
	verbally
	counseled
	by Dr.
Ernie
	Roy,
	Principal,
	regarding 	the 	proper 	procedures
	for
reporting 	absences. 	Charging
	Party
	was
	reminded
	of 	therequirement 	to 	notify
	the 	school
	if
	he
	was
	going
	to
	be
	absent.
Charging
	Party 	also 	alleges 	the
	District's
	conduct
violated 	the 	California
	Education
	Code,
	the 	California
Constitution, 	the 	United 	States 	Constitution, 	the
	Freedom
	ofInformation Act, 	and 	the 	parties 	collective 	bargaining 	agreement.However, 	PERB
	only 	has
	jurisdiction over 	violations 	of 	the
	EERA.
Allegations 	regarding 	the 	California 	Education
	Code 	and
	all 	other
statutes
	must 	be 	pursued 	in 	state 	or 	federal 	court.
Additionally, 	Charging 	Party 	does 	not 	have 	standing 	to 	allege 	the
District 	unilaterally 	changed
	its 	past 	practice 	or 	written
policy. 	(Oxnard 	School 	District 	(1988) 	PERE 	Decision No. 	667.)

Warning
	Letter
LA-CE-4232
Page
	2
On
	January
	21, 	2000,
	Charging
	Party
	was
	again
	verbally
	counseled
by 	Dr.
	Roy
	regarding 	the 	proper 	procedures
	for 	reporting
absences.
	Charging
	Party
	was
	also
	informed
	that 	his
	absences
were
	excessive
	and
	unacceptable.
On
	February
	3, 	2000,
	Charging
	Party
	was
	verbally
	counseled
	for
	a
third
	time
	regarding
	his
	excessive
	absences
	and
	the 	properprocedures
	for 	reporting
	absences.
	Charging
	Party
	was
	told
	to
call
	no
	later
	than
	7:30
	a.m. 	on
	the
	day
	of 	the 	intended 	absence.
Charging
	Party
	was
	also
	i~formed
	that 	his
	excessive 	absences
could
	result
	in
	dismissal.
On
	February
	4, 	2000,
	Charging
	Party
	called
	the
	school
	to 	report
his
	absence.
	In
	a
	conversation
	with
	Mr.
	Edwards,
	Charging
	Party
asked
	Mr.
	Edwards
	to
	tell
	his 	supervisor
	Ms. 	Woods
	that
	Charging
Party
	needed
	some
	time
	off
	and 	would
	call
	when
	he
	was
	ready
	to
return 	to
	work.
On
	February
	10, 	2000,
	Charging
	Party
	called
	the
	school
	and
	left
	a
message
	for
	Ms. 	Woods
	stating
	he
	needed
	more
	time
	off,
	and 	would
call
	back
	at
	a
	later
	date.
	It
	appears
	that
	Charging
	Party
	was
homeless
	during
	this
	time
	period
	and
	may
	have 	been
	seeking
assistance 	for
	a
	drug
	or
	alcohol
	problem.
On
	March 	22, 	2000,
	Charging
	Party
	went
	to
	SEIU's
	office 	todiscuss 	his
	situation
	with
	a
	union
	official.
	While
	at
	SEIU,
Charging
	Party
	spoke
	with
	Labor
	Relations 	Representative 	Terry
Palmer. 	Charging
	Party
	informed
	Mr.
	Palmer
	that
	he 	had
"relapsed" 	but
	was
	now
	"clean"
	and
	ready
	to 	return 	to
	work.
	Mr.
Palmer 	informed 	Charging
	Party
	that
	he
	should
	report
	back
	to
	work
and
	stay 	"clean."
In 	the
	evening 	of
	March 	22, 	2000,
	Charging
	Party
	spoke
	to 	his
mother,
	who
	informed
	him
	that
	he 	had
	received
	a
	letter
	from
	the
District.
	Charging
	Party 	instructed 	his
	mother
	to
	open
	the
letter.
	Inside 	the
	envelope
	was
	a
	Notice 	of 	Unsatisfactory
Conduct 	recommending 	Charging
	Party
	be
	dismissed.
	Specifically,the
	District 	cited
	Charging
	Party's
	twenty-four
	(24)
	absences
from 	October 	14, 	1999
	to
	February
	18, 	2000.
	On
	eighteen
	(18)
	of
those 	occasions, 	Charging 	Party 	failed 	to
	inform 	the 	school 	of
his
	absence.
	The
	District 	also 	cited 	the 	three 	verbal
counselings 	Charging 	Party 	received.
On 	March 	23, 	2000, 	Charging 	Party
	went
	to 	see
	Mr.
	Palmer
	at
	SEIU.
Mr.
	Palmer 	photocopied 	the 	notice
	and 	informed 	Charging 	Party
that 	the 	notice 	appeared 	to 	conform
	to 	the
	due
	process
requirements.
	Mr.
	Palmer 	also 	instructed 	Charging 	Party 	to
return 	to 	work.

Warning
	Letter
LA-CE-4232
Page
	3
On
	March
	28, 	2000,
	Charging
	Party
	telephoned
	his 	supervisor,
	Ms.
Woods,
	and
	expressed
	his 	desire
	to
	return
	to
	work.
	Ms. 	Woods
asked 	Charging
	Party
	why
	he
	didn't 	call
	the 	school.
	Charging
Party
	stated
	he
	wasn't 	thinking
	clearly 	at
	the
	time
	and
	that
	he
needed
	to 	"clear"
	his
	head
	before
	calling.
	Ms. 	Woods
	then
informed 	Charging
	Party
	that 	his 	position
	had 	been
	filled
	by
someone 	from
	Youth
	Services,
	but
	that
	he
	should
	come
	in
	on
	March
31, 	2000,
	to
	speak
	with
	Dr.
	Roy.
On
	March
	31, 	2000,
	Chargiqg
	Party
	met
	with
	Ms.
	Woods.
	Ms. 	Woods
questioned
	Charging
	Party's
	absences,
	and
	then
	left
	to
	speak 	with
Dr.
	Roy.
	Upon
	returning,
	Ms. 	Woods
	presented
	Charging
	Party
	with
a
	March 	6, 	2000,
	letter
	from
	Dr.
	Roy
	requesting
	a
	meeting
	with
Charging
	Party 	for
	March
	14, 	2000.
	Although
	the
	letter
	was
mailed
	to
	Charging
	Party's
	address 	of 	record,
	Charging
	Party
states
	he
	did
	not
	receive
	the
	letter
	and
	saw
	the
	March
	6, 	2000,
letter
	for
	the
	first
	time
	during
	this
	meeting.
	When
	Charging
Party 	again
	inquired
	about
	his
	job
	status,
	Ms. 	Woods
	told
	him
	to
call
	Sheryl
	Negash
	next
	week
	to
	see 	about
	returning 	to
	work.
Upon
	returning
	home
	on
	March
	31, 	2000,
	Charging
	Party
	found 	he
had
	received
	a
	second 	Notice 	of
	Unsatisfactory
	Conduct 	from 	Dr.
,
	dated
	March
	29, 	2000.
	This
	notice 	notes
	Charging
	Party's
excessive
	absences 	without 	leave
	and
	other 	dereliction
	of 	duty,concluding 	with
	a
	recommendation
	that
	Charging
	Party
	be
dismissed.
On
	April
	4, 	2000,
	Charging
	Party 	telephoned
	Ms. 	Woods
	to 	discuss
his
	job
	status.
	Charging
	Party
	was
	then
	referred 	to
	Dr.
	Roy,
	who
in 	turn 	instructed
	Charging
	Party 	to 	telephone 	Sheryl
	Negash.
	On
April
	5, 	2000,
	Charging
	Party
	spoke
	with
	Dr.
	Roy,
	who
	instructed
Charging
	Party 	to
	meet
	with
	him on
	April
	7, 	2000.
On
	April
	7, 	2000,
	Charging
	Party
	met
	with
	Dr.
	Roy.
	Dr.
	Roy
stated
	the 	meeting
	was
	a
	"formal 	meeting" 	and
	that
	Charging
	Party
would 	be
	dismissed
	due
	to 	his 	excessive 	absences
	and
unsatisfactory
	conduct.
	Upon
	leaving 	the 	school, 	Charging
	Party
went
	to
	Local
	99
	headquarters 	to
	speak 	with
	a
	representative.
Charging
	Part-:{
	was 	rnet
	by
	f
..
1r.	
Palrner	
who
	explained
	what
	Mr.
Palmer
	believed 	to
	be 	Charging
	Party's 	rights
	under 	the 	contract.
Mr.
	Palmer
	then 	telephoned
	District 	Staff 	Relations
representative
	John
	Brasfield 	to 	inquire 	about 	Charging
	Party's
employment
	status.
	Mr.
	Brasfield 	stated
	Charging 	Party
	was
	a
"restricted
11
	employee 	and 	had 	no
	rights
	under 	the 	PersonnelCode.
2	
Charging 	Party 	disagreed 	with
	Mr.
	Brasfield
	and
	stated
2	
Education 	Code
	section
	45105 	and
	District 	PersonnelCommission 	Rule 	518
	state 	the 	following 	with 	regard 	to
	a
"restricted" 	employee:

Warning
	Letter
LA-CE-4232
Page
	4
that
	he
	believed
	he
	was
	a
	permanent
	employee
	with
	rights
	under
the
	contract.
3
On
	April
	11, 	2000,
	Charging
	Party
	went
	to
	Local
	99's
	office
	to
discuss 	his
	employment
	status
	and 	any
	options
	he
	might
	have.
	Mr.
Palmer
	stated
	he
	could 	not
	assist
	Charging
	Party,
	because
	as
	a
restricted
	employee, 	Charging
	Party
	was
	not
	afforded 	the
	appeal
rights
	of
	a
	permanent
	employee.
	Charging
	Party 	then
	inquired
about
	the
	Employee
	Assistance
	Program.
	Mr.
	Palmer
	stated
Charging
	Party
	was
	not
	eligible
	for 	the
	assistance
	program
because
	he
	did
	not
	have
	Kaiser 	insurance.
On
	April
	12, 	2000,
	Charging
	Party
	went
	to
	the
	District's
Classified
	Personnel 	Office
	to 	request
	a
	copy
	of
	his
	personnel
status
	report.
	The
	report
	identifies
	Charging
	Party
	as
	a
restricted
	instructional
	aide.
	Charging
	Party believes 	the
report
	was
	changed
	recently 	to
	make
	him
	a
	restricted
	employee.
On
	April
	13, 	2000,
	Charging
	Party
	visited
	several
	Districtoffices
	seeking 	information 	regarding
	his 	rights.
	Additionally,
Charging
	Party
	visited
	Local
	99's
	office
	where 	he
	received
	a
pamphlet
	on
	discipline 	rights.
On
	April
	19, 	2000,
	Charging
	Party
	met
	with
	SEIU
	representative
Kenya
	Posten
	and
	Mr.
	Palmer. 	During
	this
	meeting,
	Ms.
	Posten
explained
	that 	in 	order 	to
	combat
	Charging
	Party's
	Notices 	of
Unsatisfactory
	Conduct,
	they
	must
	demonstrate 	Charging
	Party
	was
(2)
	Persons
	employed
	in
	a
	position 	properly
classified
	as
	"restricted" 	shall
	be
classified
	employees
	for
	all
	purposes 	except:
*
(A)
	They
	shall
	not
	be
	accorded
employment 	permanency
	under 	Section
45113
	or 	Section
	45301
	of
	this
code, 	whichever
	is
	applicable.
* 	* 	*(D)
	They
	shall
	not
	be
	eligible
	forpromotion
	into 	the 	regular
classified
	service
	or,
	in
	districtsthat
	have 	adopted 	the 	merit 	system,
shall
	not
	be
	subject 	to 	the
provisions 	of 	Section
	45241,
	untilthey 	have 	complied with 	the
provisions 	of 	subdivision 	(c).
*
3	
Although 	Charging 	Party 	disputes 	this 	fact, 	each 	Notice
of 	Unprofessional 	Conduct 	Charging 	Party 	received 	notes 	his
status 	as
	a
	restricted
	employee, 	and 	not 	permanent 	or
probationary. 	Additionally, 	Charging 	Party's 	personnel 	record
with 	the 	District 	clearly 	states 	his 	status 	as 	"restricted."

Warning
	Letter
LA-CE-4232
Page
	5
"clean"
	and
	rehabilitated.
	Additionally,
	Ms.
	Posten
	explained
that
	they
	would
	have
	to
	deal 	with
	Charging
	Party's
	absent 	without
leave
	(AWOL)
	status,
	and
	as
	such, 	Charging
	Party
	should 	compilepaperwork
	indicating
	he
	was
	in
	a
	rehabilitation
	facility
	during
his
	prolonged 	absence
	from work.
On
	April
	20, 	2000,
	SEIU
	informed 	Charging
	Party
	that
	they
	had
	set
up
	a
	meeting
	with
	Dr.
	Roy
	for 	April
	21, 	2000.
	On
	April
	21, 	2000,
Charging
	Party
	telephoned
	Dr.
	Roy
	to
	ask
	what
	kind
	of
	meeting
	had
been
	arranged.
	Dr.
	Roy
	st?ted
	Charging
	Party
	should
	call
	SEIU
about
	the
	meeting
	since
	they
	had
	arranged
	it.
	Charging
	Party
	didnot
	attend
	the
	meeting 	with
	Dr.
	Roy.
On
	April
	24, 	2000,
	Charging
	Party
	met
	with
	Mr.
	Palmer,
	Ms.
	Posten
and
	Senior
	Labor
	Relations 	Representative
	Tim 	Tomas.
	Mr.
	Tomas
explained
	that 	in
	order 	to
	assist
	Charging
	Party,
	Charging
	Party
would 	have
	to
	provide
	medical
	records 	demonstrating
	his
	absence
was
	due
	to
	a
	medical
	condition.
	Charging
	Party 	refused
	to
provide
	this
	information,
	stating
	instead
	that
	he
	believe 	the
Personnel
	Code
	entitled
	him
	to 	hearings
	in 	front 	of 	the 	Personnel
Commission.
	Additionally,
	Charging
	Party
	asked
	SEIU
	to 	explainthe
	AWOL
	charge
	he 	had
	received 	for
	not
	calling
	into
	work.
	Ms.
Posten 	then 	questioned
	why
	Charging
	Party 	did
	not
	attend 	the
meeting 	she 	had
	set
	up
	for 	April
	21, 	2000.
	Charging
	Party
	stated
he
	needed
	more
	notice.
At
	this
	point,
	Labor
	Relations 	Representative
	Mr.
	Tatum
	enteredthe 	conversation
	and
	explained
	that
	he 	would
	try
	to 	contact
	Dr.
Roy
	for
	a
	second 	time 	regarding 	continued
	employment
	with
	the
uiscricc.
	Mr.
	Tatum
	telephoned
	Dr.
	Roy
	in
	Charging
	Party's
presence
	and
	attempted
	to
	secure
	employment
	for
	Charging
	Party.
After
	this
	apparently 	heated 	conversation,
	Mr.
	Tatum
	explained
that
	Charging
	Party
	would 	have
	to 	take
	a
	urine
	test
	to
demonstrate
	he
	was
	not
	currently
	using
	controlled 	substances.
Charging
	Party
	stated
	he 	would
	speak
	to 	his
	doctor
	about
	takingthe
	test.
On
	April
	26, 	2000,
	the
	District
	dismissed 	Charging
	Party
	from
	his
employment
	pursuant 	to
	Education
	Code
	section
	45240
	and 	45320.
Charging
	Party 	received
	a
	letter
	confirming
	this 	fact
	on
	April
29, 	2000.
	After 	receiving 	this 	letter,
	Charging 	Party 	telephoned
Mr. 	Tatum
	to 	inform
	him
	of 	the 	dismissal
	and
	to 	request
assistance.
	Mr. 	Tatum
	stated
	Charging
	Party 	should 	have 	allowed
the 	union 	access 	to 	his
	medical
	file
	so 	they 	could 	fight 	thecharges.
Based 	on 	the 	above
	stated 	information, 	the 	charge 	as 	presently
written, 	fails 	to 	state
	a
	prima 	facie 	violation 	of 	the
	EERA,
	for
the 	reasons 	provided 	below.

Warning
	Letter
LA-CE-4232
Page
	6
Charging
	Party
	does
	not
	specify
	an
	alleged
	violation
	of 	the
	EERA,
so
	it
	is
	assumed
	that
	Charging
	Party
	is
	alleging
	the
	District
violated
	the
	EERA
	by
	dismissing
	him. 	However,
	facts
	provided
fail
	to
	demonstrate
	an
	EERA
	violation.
	To
	demonstrate
	a
violation
	of
	EERA
	section
	3543.S(a),
	the
	charging
	party
	must
	show
that:
	(1)
	the
	employee
	exercised
	rights
	under
	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
	wi~h,
	restrained 	or
	coerced
	the
	employees
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 	StateUniversity
	(Sacramento)
	(1982)
	PERB
	Decision
	No.
	211-H.)
Herein,
	Charging
	Party's
	only
	protected
	activity
	consists 	of
contacting
	his
	union
	regarding
	his
	Notices 	of 	Unsatisfactory
Conduct.
	Facts 	provided
	fail
	to
	demonstrate
	that
	the
	District
terminated
	Charging
	Party
	because 	of
	his
	contact
	with
	SEIU.
Instead,
	facts
	provided 	demonstrate 	Charging
	Party
	was
	terminated
because
	of 	excessive
	absences
	and
	his
	AWOL
	status.
	As
	such,
	this
charge
	fails
	to
	state
	a
	prima
	facie 	case.
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,
	andbe
	signed 	under
	penalty
	of 	perjury
	by
	the 	charging
	party.
	The
amended
	charge
	must 	have
	the 	case
	number
	written
	on
	the 	top
	right
hand
	corner 	of 	the 	charge
	form.
	The 	amended
	charge
	must 	be
served
	on
	the 	respondent's 	representative
	and
	the
	original
	proof
of 	service
	must 	be
	filed
	with
	PERB.
	If
	I
	do
	not 	receive
	an
amended
	charge
	or
	withdrawal
	from 	you
	before
	November
	22, 	2000,
	I
shall
	dismiss 	your 	charge.
	If
	you 	have 	any
	questions, 	please
call
	me
	at
	(510)
	622-1016.
Sincerely,
~~~.
Kristin
	L.
	Rosi
Regional 	Attorney