Riverside Unified School District (Petrich) (PERB A148EA)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
TONY
	PETRICH,
Appellant,
and
CALIFORNIA
	SCHOOL
	EMPLOYEES
ASSOCIATION,
Employee
	Organization,
and
RIVERSIDE 	UNIFIED
	SCHOOL
	DISTRICT,
Employer.
)
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___________________ )
Case
	No. 	LA-UM-368
Request
	for 	Reconsideration
PERB
	Order	
No.	
Ad-148
PERB
	Order
	No.
	Ad-148a
December
	23,
	1985
Appearance:	
Tony
	Petrich,
	on
	his
	own
	behalf.
Before
	Hesse,
	Chairperson;
	Morgenstern
	and
	Burt,
	Members.
DECISION
BURT,
	Member: 	The
	Public
	Employment
	Relations
	Board
	(PERB
or 	Board), 	having 	duly 	considered 	the 	request 	for
reconsideration
	of
	PERB
	Order
	No.
	Ad-148
	filed	
by	
Appellant
Tony
	Petrich,
	hereby 	denies
	that
	request 	for 	the 	reasons
	set
forth
	below.
BACKGROUND
In
	PERB
	Order
	No.
	Ad-148,
	the
	Board
	upheld 	the 	regional
director's
	administrative 	decision 	dismissing
	a
	unit
modification 	petition
	without 	leave 	to
	amend. 	The
	petition
	was
filed
	by
	rony
	Petrich,
	an
	individual
	employee 	of 	Riverside

Unified
	School
	District 	(District).
	It
	was
	dismissed
	on
	the
ground
	that
	only 	recognized 	or
	certified
	employee
	organizations
or
	employers, 	or 	both
	jointly,
	have
	standing
	to
	file
	unit
modification
	petitions
	pursuant 	to
	section
	32781
	of
	the
	Board's
.
Regu
l
ations.
1
In
	his
	appeal
	to 	the
	Board,
	Petrich 	asserted
that
	the
	petition
	was
	timely
	filed
	within
	a
	window
	period
	as
required
	by
	section
	32781, 	and
	that
	the
	regional
	director
improperly
	failed
	to 	accord
	him
	status
	as
	an 	employee
organization.
	In
	PERB
	Order
	No.
	Ad-148,
	the
	Board
	summarily
denied 	the 	appeal.
In
	this
	Request
	for 	Reconsideration,
	Petrich 	raises 	issues
not 	previously 	presented 	to 	the
	Board
	or
	its
	agents
	at
	any
stage 	in 	these 	proceedings.
	He
	claims. 	in 	effec~,
	a
	statutory
right
	to
	file
	a
	unit
	modification
	petition
	based
	on
section
	3543
	of
	the 	Educational
	Employment
	Relations
	Act
(EERA).	
He
	further
	argues
	that
	the
	Board
	is
	obligated 	to
~nn~i~~r
	his 	petition
	because
	it
	seeks 	to 	exclude 	employees
	on
statutory
	grounds
	from
	the
	certified
	bargaining
	unit
	of 	which
he
	is
	a
	member.
	In 	essence,
	he
	contends
	that
	PERB
	is
statutorily
	compelled
	to 	consider 	his
	petition,
	notwithstanding
the 	provisions 	of
	section
	32781
	of
	its
	Regulations.
2
PERB
	Regulations 	are 	codified 	at 	CaliforniaAdministrative
	Code,
	title
	8,
	section
	31001
	et
	seq.
l
The 	EERA
	is 	codified 	at
	Government 	Code
	section
	3540
et
	seq. 	Unless 	otherwise 	noted,
	all 	statutory 	references 	are
to 	the 	Government 	Code.
2
2

As
	an
	additional
	ground
	for
	reconsideration,
	Petrich
attaches
	a
	copy
	of
	a
	letter
	apparently 	sent
	to
	him 	by
	counsel
for
	the
	California
	School
	Employees
	Association
	{CSEA),
	the
exclusive
	representative
	of
	his 	bargaining
	unit. 	Petrich
contends
	that
	the
	letter
	represents
	retaliation
	against
	him
	for
exercise
	of
	his 	alleged
	right
	to
	file
	a
	unit
	modification
pe~ition.
DISCUSSION
Section
	32410(a) 	of
	PERB's
	Regulations 	provides
	in
pertinent 	part 	that:
'
Any
	party
	to
	a
	decision
	of
	the
	Board
	itself
may,
	because 	of
	extraordinary
	circumstances,
file
	a
	request
	to
	reconsider
	the
	decision
....
	The
	grounds
	for 	requesting
reconsideration 	are 	limited 	to
	claims
	that
the
	decision
	of
	the
	Board
	itself
	contains
prejudicial 	errors
	of
	fact,
	or
	newly
discovered 	evidence 	or
	law which
	was
	not
previously 	available
	and
	could 	not
	have 	been
discovered 	with 	the
	exercise
	of
	reasonable
diligence.
Petri~h
	nnP~
	not
	contest 	the
	factual 	basis 	for 	the 	Board's
Order
	that
	he
	is
	not
	an 	employee
	organization. 	Rather,
	he
argues
	that
	the 	Board's 	Decision
	and
	the 	Board's 	Regulation
32871
	are 	inconsistent
	with 	the
	EERA
	itself.
	We
	find
	no
	such
inconsistencies
	and,
	therefore,
	no
	grounds
	for 	reconsidering
Order
	No.
	Ad-148.
A. 	The
	Unit 	Modification 	Issues
The
	short
	answer 	to
	Petrich's 	contentions 	is 	that
	he 	does
not 	have
	a
	statutory 	right
	as 	an
	individual 	to 	present
	a
	unit
3

composition
	question
	to 	the
	Board.
	The
	statutory
	scheme
established
	by
	EERA
	provides
	for
	representation
	procedures 	in
which
	the
	participants
	are
	employers
	and
	employee
organizations.
3 EERA
	further 	establishes
	the
	rights
	of
individual
	employees
	to
	form,
	join
	and
	participate
	in
	employee
organizations,
4
and
	provides 	the
	unfair 	practice
	mechanism
	to
•
pr~vent
	interference
	with 	the
	exercise
	of
	those
	rights
	by
employers 	or
	employee
	organizations.
	Under
	the
	terms
	of 	the
statute,
	individuals 	acting
	alone
	have
	standing 	to
	file
	unfair
practice
	charges. 	but 	not
	to
	initiate
	or
	to
	participate
	as
parties
	in 	representation
	proceedings.
5
•
PERB 	s
	authority
	and
	duty 	to 	determine
	appropriate
	units
arise
	initially
	where
	a
	question
	concerning
	representation
(QCR)
	is
	raised.
	A
QCR
	may
	be
	raised
	only
	by
	an 	employee
organization
	(EERA
	sections
	3544
	and
	3544.4(b)) 	or
	by
	employees
acting 	collectively
	(EERA
	section
	3544.3).
	Once
	the
	Board
begins
	its
	investigation,
	the 	only
	parties 	entitled
	under
	EERA
to 	contest 	the
	composition 	of
	a
	proposed
	bargaining
	unit
	are
the
	employer
	(EERA
	section 	3544.l(a)
	and
	3544.S(a)) 	or
	a
competing
	employee
	organization
	(EERA
	sections 	3544.l(b)
	and
3544.S(c)
	and
	(d)).
3 	1
4EERA
	section
	3543
	provides 	in 	pertinent 	part
	as
	follows:
Public 	school
	employees
	shall
	have
	the
	right
to
	form,
	join.
	and
	participate
	in 	the
activities
	of
	employee
	organizations
	of
their
	own
	choosing 	for 	the 	purpose 	of
representation
	on
	all
	matters 	ofemployer-employee
	relations
....
compare
	EERA
	section
	3541.S(a) 	which
	provides
	that[a]ny
	employee, 	employee
	organization 	or 	employer
	shall
	have
the 	right
	to
	file
	an
	unfair 	practice
	charge
	..
	11
	with
	EERA 1 s
sections
	on
	representation 	proceedings
	cited 	in 	footnote
	3
above.
5
11
4

Petrich
	contends
	that
	he
	has
	a
	right
	under
	EERA
	section
3543
	to
	participate
	in
	determining 	the
	scope 	of
	his 	bargaining
unit.
	Section
	3543
	establishes
	Petrich's
	rights
	as
	an
individual
	to
	form 	and
	to
	participate
	in
	an 	employee
organization.
	The
	organization,
	and
	not
	Petrich
	as
	an
individual,
	is
	then
	entitled
	to
	participate
	in
	representation
pr9ceedings
	in
	an
	appropriate
	bargaining
	unit.
	Therefore,
	we
reject 	Petrich's
	claim 	to
	file
	a
	petition
	for
	unit
	modification
under
	section
	3543.
Petrich
	next 	contends
	that
	PERB's
	Order
	is
	inconsistent
with
	EERA
	sections
	3540.l(m), 	3543.4,
	and
	3545(b)(2),
6
in
that
	his 	bargaining
	unit 	allegedly
	contains 	supervisory,
managerial
	and
	confidential
	employees
	in
	violation
	of
	these
sections.
	He
	argues
	that
	PERB
	has
	a
	duty 	to
	monitor
	the
composition 	of 	bargaining
	units
	on
	a
	periodic 	basis.
	However,
as
	already 	discussed, 	the
	EERA
	itself
	makes
	no
	provision 	for
review 	of
	unit
	composition 	except
	when
	a
	QCR
	is 	raised
	and
	it
is
	necessary 	to 	determine 	the 	appropriate 	unit 	in 	order 	to
conduct
	an
	election.
6
section
	3540.l(m)
	defines 	supervisory
	employees.
Section
	3543.4
	provides,
	among
	other 	things, 	that
	managerialand
	confidential
	employees	
may	
not
	be
	represented
	by
	an
exclusive 	representative. 	section
	3545(b){2) 	provides.
	among
other 	things, 	that
	a
	negotiating 	unit
	of 	supervisory
	employees
may
	not
	be
	represented	
by	
the
	same 	employee
	organization
	which
represents 	the
	employees
	whom
	they 	supervise.
5

In
	section
	32781
	of
	its
	Regulations,
	PERB
	has
	established
additional
	procedures
	for
	review 	of
	unit
	composition
	in
situations
	in
	which
	parties
	to 	the 	bargaining
	relationship
	in
an
	established 	unit 	raise 	specified
	grounds
	for
	such
	review.
The
	existence
	of
	statutorily
	excluded
	positions 	in
	the
	unit
	is
one 	such
	ground
	under
	section 	3278l(b)(5).
7
However,
	section
3278l(b)
	restricts
	the
	right
	to
	file
	unit
	modification
At
	the
	time 	of
	filing
	of 	the
	petition
	for
	unit
modification 	herein. 	section
	3278l(b) 	read
	in
	pertinent 	part
	as
follows:
7
(b)
	A
	recognized 	or
	certified
	employee
organization,
	an 	employer, 	or 	both
	iointly
may
	file
	with 	the
	regional
	office
	a
	petition
for
	change
	in
	unit
	determination:
(1)
	To
	delete
	classifications
	or
positions
	no
	longer
	in 	existence
	or
which
	by
	virtue
	of 	changes
	incircumstances
	are
	no
	longer
	appropriateto 	the
	established 	unit;
(5)
	To
	delete
	classification(s)
	or
position(s)
	not
	subject 	to
	(1) 	above
which
	are
	not
	apptopriate
	to 	the
	unit
because
	said
	classification(s)
	or
position(s) 	are
	management,
	supervisory,
confidential,
	provided
	that:
(A)
	The
	petition 	is 	filed 	jointly
	by
the
	employer 	and
	the 	recognized 	or
certified
	employee
	organization,
	or
(B)
	There
	is
	not 	in 	effect
	a
	lawful
written
	agreement 	or
	memorandum
	of
understanding. 	or
(C) 	The
	petition 	is 	filed 	during 	the
11
window
	period
11
	of
	a
	lawful 	written
6

petitions 	under 	all 	of 	its 	subsections 	to 	employers 	and 	to
recognized 	or 	certified 	employee 	organizations. 	The 	EERA
itself 	imposes 	no 	requirement 	for 	regular 	monitoring 	of 	unit
composition. 	PERB's 	decision 	to 	provide 	for 	such 	review 	in 	its
regulations 	only 	on 	a 	petition 	by 	a 	party 	to 	the 	bargaining
relationship 	is 	consistent 	with 	the 	statutory 	scheme 	and 	serves
the 	purpose 	of 	protecting 	the 	stability 	of 	bargaining
relationships.
In 	this 	case, 	PERB 	is 	not 	faced 	with 	an 	appropriate
petition under 	section 	32781, 	that 	is, 	one 	raised 	by 	a 	party 	to
the 	bargaining 	relationship. 	In 	fact, 	the 	regional 	director
determined 	that 	CSEA does 	not 	wish 	to 	change 	the 	composition 	of
tis	h 	unit. 	Even 	assuming 	that 	Petrich 	is 	co~rect 	that 	some
8	. 	.
agreement 	or 	memorandum 	of
understanding 	as 	defined 	in 	these
regulations 	in 	section 	33020 	for
EERA, 	40130 	for 	SEERA 	or 	51026 	for
HF.F.RA_ 	(F.mph~~i~ 	arlnPn_)
Effective 	November 	9, 	1985, 	section 	3278l(b)(5) 	was 	amended
to 	include 	as 	an 	additional 	ground 	the 	deletion 	of
classifications 	or 	positions 	not 	covered 	by 	EERA, 	HEERA 	or
SEERA.
we 	take 	note 	of 	the 	Board's 	Decision 	in Riverside
Unified 	School 	District 	(Petrich) 	(1985) 	PERB 	Decision
No. 	512. 	During 	his 	invest~gation 	of 	the 	underlying 	charge 	in
that 	case, 	the 	regional 	attorney 	ascertained 	that 	it 	was 	CSEA's
position 	that 	job 	classifications 	contended 	by 	Petrich 	to 	be
supervisory 	pertained 	to 	lead 	positions 	and 	were 	not
supervisory. 	He 	further 	ascertained 	that 	CSEA 	did 	not 	wish 	to
change 	the 	composition 	of 	the 	bargaining 	unit.
B
7

of 	these
	employees
	may
	be
	in
	excluded
	categories.
	no
	apparent
purpose
	would
	be
	served
	by
	permitting
	an
	individual
	to
	initiate
a
	regional
	office 	unit 	investigation
	when
	neither 	party
	to
	the
bargaining
	relationship
	seeks 	to
	do
	so.
	Any
	harm
	to
	Petrich's
rights
	as
	an
	individual
	may
	be
	adequately
	protected
	through 	the
charge 	procedure.
9
B
..
	The
	Retaliation
	Claim
Petrich's 	retaliation
	claim
	is
	not
	properly 	before
	the
Board
	in
	a
	Request
	for
	Reconsideration
	under
	section
	32410(a).
CSEA's
	letter
	is
	not
	••newly-discovered 	evidence"
	within 	the
meaning
	of
	section
	32410(a).
	since
	it
	has
	no
	bearing
	on
	the
issues
	decided
	in
	PERB
	Order
	No.
	Ad-148.
	It
	is 	therefore
	not
petrich 	further
	claims
	that
	the 	Board's
	decision 	in
Order
	No.
	Ad-148
	is 	arbitrary
	in
	light
	of
	its
	earlier
	decisiondismissing 	his
	charges
	based
	on
	these
	same
	facts.
	See
	PERB
Decision
	No.
	512,
	supra, 	in
	which
	PERB
	affirmed 	the
	regional
attorney's
	dismissal
	of
	Petrich's
	charges
	against 	his
	employer,
alleging 	that
	the 	presence
	in 	his 	bargaining
	unit
	of
statutorily
	excluded
	employees
	constituted
	a
	violation
	of
	EERA
section
	3543.S(a),
	(b)
	and
	(d). 	In
	that
	case, 	the
	regional
director
	determined
	that 	Petrich
	had
	not
	stated
	a
	prima
	facie
case
	of
	a
	violation
	of
	EERA,
	but
	was
	instead 	attempting 	to
	use
the 	unfair 	practice
	charge 	procedure 	to 	gain 	standing 	to
petition
	to
	modify
	his
	unit.
	The
	regional 	attorney
	noted
	thatthe 	proper 	procedure
	for 	petitioning
	to
	modify
	a
	bargaining
unit
	was
	set 	forth 	in 	section
	32781,
	and
	concluded
	that 	Petrich
could 	not 	use
	the 	charge 	procedures 	to 	circumvent 	the 	standingrequirements 	in 	section
	32781.
	We
	affirmed.
	PERB
	Decision
No. 	512
	is
	thus
	entirely 	consistent 	with 	our
	decision 	in
	Order
No. 	Ad-148.
9
8

properly
	presented 	in
	a
	Request
	for 	Reconsideration
	of
	that
Order. 	Furthermore,
	allegations
	of
	retaliation
	for
	the
exercise
	of
	protected
	rights
	are 	properly
	raised
	by
	filing
	an
unfair 	practice
	charge
	in 	the
	regional
	office.
ORDER
T~e
	Public
	Employment
	Relations
	Board,
	having 	duly
co~sidered 	Appellant
	Tony
	Petrich's
	Request
	for 	Reconsideration
of
	PERB
	Order
·No.
	Ad-148
	and
	finding
	no
	grounds
	for
reconsideration,
	hereby
	DENIES
	that
	request.
Chairperson
	Hesse
	and
	Member
	Morgenstern
	joined
	in
	this
Decision.
9

PROOF
OF
SERVlCE
BY
MAIL
C.C.P.
1013a
I declare
that
I am employed in the County of
___
S_a_c_r___
a
__
m;..;e~n-t;...o;..._
__
.
California.
I am over
the
age
of
1 8 years and not a party to
the
within
entitled
ca
use: my business
address
is
1031
	18th
	Street,
	Suite
	200
	Sacramento,
	California
	95814
On 	December
	23,
	193·5
	. 1served the enclosed
PERB
	Order
	No.
	148a
{Date)
Riverside 	Unified
	School
	District
Case
	No.
	LA-UM-368 (Describe Document)
on
the-parties to this case
by
placing a true copy thereof enclosed in a sealed envelope with
postage thereon
fully
prepaid,
in
the United States
Mail, (City or Town)
--~S.;;;a'-"c;..;;;r;..;a;;;.;;m=e.;;;.n;;.;;..;;;;t..;:.o
___
_
California, addressed
as
follows:
George
	Lantz, 	Superintendent
Riverside 	Unified
	School
	District
3380
	14th
	Street
Riverside,
	CA
	92501
Charles
	D.
	Fields,
	Esq.
Best, 	Best	
&	
K~ieger
4200 	Orange
	StreetRiverside,
	CA
	92502
A.
	Alan
	Aldrich
Field 	Representative,
	CSEA
326 West
	Katella
	Ave.,
	Suite
	E
Orange,
	CA
	92667
Tony
	Petrich
24536 	Vandenberg
	Drive
Sunnyrnead,
	CA
	92388
I declare under penalty of perjury that the foregoing is true and correcr
and ,hat
this
declaration was executed on
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at
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S_a_c_r_a_m_e_n_t_o
{City or Town)
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. California.
Noel 	E 	Lawrence
(Type or print name1 	(Signature,
PERB 119 	( 10 / 8 5)