Associated Teachers of Metropolitan Riverside (Petrich) (PERB 0598E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TONY PETRICH,
Charging 	Party,
v.
ASSOCIATED 	TEACHERS 	OF METROPOLITAN
RIVERSIDE,
Respondent.
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) 	Case 	No. 	LA-CO-338
PERB 	Decision 	No. 	598
December 	22, 	1986
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Appearance; 	Tony Petrich, 	on his 	own behalf.
Before Hesse, 	Chairperson; Morgenstern, 	Burt, 	Porter and Craib,
Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(Board) 	on 	appeal 	by Charging 	Party of 	the 	Board 	agent's
dismissal, 	attached hereto, 	of his 	charge 	alleging that 	the
Associated 	Teachers 	of 	Metropolitan 	Riverside 	violated 	section
3543.6(a) 	and 	(b) 	of 	the 	Educational 	Employment 	Relations 	Act
(Gov. 	Code sec. 	3540 et seq.).
We have 	reviewed 	the 	dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the 	Decision of 	the 	Board 	itself.
ORDER
The unfair practice charge 	in 	Case 	No. 	LA-CO-338 	is
DISMISSED WITHOUT LEAVE 	TO AMEND.
By 	the 	BOARD.
(
e

STATE 	OF 	CALIFORNIA 	GEORGE DEUKMEJIAN,
PUBLIC EMPLOYMENT RELATIONS BOARD
HEADQUARTERS OFFICE
1031 18th STREET
SACRAMENTO, CALIFORNIA 95814
(916) 322-3098
July 31, 	19B6
Tony Petrich
Re: 	Tony Petrich v. 	Associated Teachers 	of Metropolitan
Riverside. Case No. LA-CO-338
You have 	filed a 	charge against the Associated Teachers of
Metropolitan Riverside 	(ATMR) 	alleging that 	it has 	violated
Educational Employment Relations Act sections 	3543.6(a) 	and 	(b)
by: 	(1) 	causing the Riverside Unified School District 	(District)
to 	issue derogatory memos 	against you on two 	occasions and
(2) 	removing union material 	from a 	bulletin board 	at Woodcrest
Elementary School.
I 	indicated to you 	in my attached 	letter 	dated July 21. 	1986.
that 	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 July 30.
1986. 	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 	case 	based 	on the 	facts and
reasons 	contained 	in my July 21. 	1986 	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 	(California Administrative
Code, 	title 8, 	section 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
(5:00 p.m.) on August 20. 	1986. 	or sent by telegraph, 	certified
or Express United states mail 	postmarked not 	later 	than
August 20. 	1986 	(section 32135). 	The Board's address is:

Mr. 	Tony Petrich
July 31, 	1986
Page 	2
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
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 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 	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
be accompanied by proof 	of -service 	of 	the 	request 	upon each
party (section 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,
JEFFREY 	SLOAN
General 	Counsel
By Jorge A.Leon
Staff 	Attorney
Attachment
5557d

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
HEADQUARTERS OFFICE
1031 18TH STREET
SACRAMENTO, CALIFORNIA 	9 5 8 1 4
(916) 322-3088
July 21. 	1986
Tony 	Petrich
Re: 	Tony 	Petrich v. 	Associated Teachers 	of Metropolitan
Riverside. 	Case No. 	LA-CO-338
You 	have 	filed 	a 	charge 	against 	the 	Associated 	Teachers 	of
Metropolitan Riverside 	(ATMR) 	alleging 	that 	it 	has 	violated
Educational 	Employment 	Relations 	Act 	sections 	3543.6 	(a) 	and
(b) 	by: 	(1) 	causing 	the Riverside Unified 	School District
(District) 	to 	issue 	derogatory memos 	against 	you 	on 	two
occasions 	and 	(2) 	removing union material 	from a 	bulletin 	board
at 	Woodcrest 	Elementary 	School.
My 	investigation 	revealed 	the 	following 	information. 	Ann 	Lisby
and 	Beckey 	Porter 	are 	employed 	as 	teachers 	by 	the 	District.
Lisby 	teaches 	at 	Woodcrest 	Elementary 	School 	and 	Porter 	teaches
at North High School. 	On December 	7. 	1984. 	you were 	placing
"several 	materials" 	on 	the 	bulletin 	board 	at 	Woodcrest 	which 	is
provided 	by 	the 	District 	for 	the 	California 	School 	Employees
Association 	(CSEA), 	of 	which you are 	a member. 	Lisby came 	to
you 	and 	asked 	you 	to 	help move 	a 	piano. 	The 	two 	of 	you 	engaged
in 	a 	discussion 	about when you would 	be 	able 	to 	do 	so. 	Four
days 	later, 	on December 	11, 	1984. 	you 	received 	a memorandum
from Principal 	Sund 	which 	included 	a 	statement 	that 	you 	were
engaged 	in union 	activity 	during work 	time 	on December 	7. 	The
memo 	was 	based 	upon 	information 	provided 	to 	Sund 	by 	Lisby.
You 	allege 	that 	this 	conduct 	constitutes 	an 	attempt 	by 	ATMR 	to
cause 	the 	District 	to 	violate 	the 	EERA 	and 	that 	it 	constitutes
interference 	by ATMR with your 	exercise 	of 	rights.
On February 	7. 	1985. 	you 	returned 	to 	work 	after 	an 	11-day
absence 	due 	to 	illness. 	You 	discovered 	that 	day 	that 	"all 	of
the 	CSEA 	materials" 	had 	been 	removed 	from 	the 	CSEA 	bulletin
board 	at 	Woodcrest 	Elementary. 	You 	spoke 	with Barbara
Boettcher. 	CSEA 	site 	steward, 	about 	the 	matter. 	She 	told 	you
that while you were 	away, 	your 	"stuff 	fell 	off 	the 	wall." 	You
do 	not 	allege 	in 	the 	charge 	that 	an 	agent 	of 	CSEA 	removed 	the
material. 	You 	do 	not 	allege 	that 	an 	agent 	of 	ATMR 	removed 	the
material. 	Nor 	do 	you 	allege 	that 	an 	agent 	of 	the 	District
removed 	the 	material. 	You 	do 	state 	that 	the 	materials 	were
never 	returned 	to 	you.

Tony 	Petrich/LA-CO-338
July 21. 	1986
Page 	2
On June 20, 1985. 	North High School Principal Wolf 	gave you a
derogatory memo 	based 	on 	information given 	him 	by ATMR member
Porter 	regarding 	inappropriate 	comments which Porter 	alleges
you 	made 	to 	her 	such as 	calling her 	"sexy 	lady" 	and 	"my 	little
puppy dog." 	Two days earlier, 	at a District Board meeting, 	the
ATMR vice-president 	had 	been chastised 	by 	"a 	member 	of 	the
public" 	for 	"accepting subsidization 	[sic] 	from the District"
for 	certain union activities.1 Your 	charge 	implies 	that
Porter was 	motivated 	by 	that 	public 	criticism against 	the ATMR
vice-president to report your 	alleged comments 	to Wolf, 	in turn
causing him to 	issue you the derogatory memo.
You 	assert 	that Lisby and Porter 	acted 	on 	these 	occasions 	as
agents of ATMR. 	In support of 	that assertion you offer 	only
that they have the right to act as agents 	of ATMR. 	a 	labor
organization under EERA section 3543.
Analysis . . .
Section 3541.5(a) 	of the EERA states in part:
. 	. 	. 	the board shall not do either of the
following: 	(1) 	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; 	. 	. 	.
The charge was filed on August 27. 	1985. 	PERB is 	barred by the
above provision from 	issuing a 	complaint 	respecting 	incidents
which occurred prior 	to February 27. 	1985. 	The allegations
asserting: 	(1) 	that ATMR 	(through Lisby) 	caused the District to
violate 	the EERA and 	that 	it 	interfered with your 	exercise of
rights, which you learned about on December 11. 	1984. 	and
(2) 	that CSEA removed 	literature 	from the 	bulletin board which
act you 	learned 	about on February 7. 	1985 	are 	time-barred.
Both 	incidents 	occurred 	outside of 	the 	six-month filing
period. 	For 	this 	reason alone, 	it appears 	that the charge does
not 	state a prima facie case. 	However, 	further deficiencies 	in
the 	allegations 	are discussed 	below.
Regarding the Lisby-prompted memorandum, 	there are 	no 	facts 	in
the 	charge 	supporting an 	inference 	that Lisby 	acted 	as 	an agent
1You 	have not provided 	the name of ATMR's vice-president,
but 	during our 	telephone discussions you 	clarified 	that 	it was
not Becky Porter.

of 	the 	ATMR when 	she 	allegedly 	reported 	your 	union 	activity 	to
Sund. 	During 	the 	investigation 	of 	this 	charge, 	you 	have 	been
unable 	to 	present 	any 	fact6 	which would 	support 	such 	an
inference. 	The 	charge 	relies 	on 	the 	assertion 	that 	Lisby 	has 	a
right 	under 	the 	EERA 	to 	participate 	in ATMR's 	activities 	and 	to
act 	on 	behalf 	of 	ATMR 	to 	support 	the 	proposition 	that 	she 	did
so 	in December 	1984. 	In 	the 	absence 	of 	any 	facts 	supporting
this 	proposition, 	the 	allegation 	that 	Lisby 	acted 	on 	behalf 	of
ATMR 	does 	not 	present 	a 	prima 	facie 	case 	of 	an 	EERA violation
by 	the 	ATMR.
Tony 	Petrich/LA-CO-338
July 21. 	1986
Page 	3
As 	to 	the 	removal 	of 	materials 	from 	the 	CSEA 	bulletin 	board,
the 	charge 	does 	not 	attribute 	the 	removal 	to 	any 	person 	or
entity, 	much 	less 	the 	Respondent. 	The 	only 	factual 	information
you 	have 	provided 	regarding 	the 	material's 	disappearance
concerns 	a 	conversation with 	a 	CSEA 	site 	steward 	who 	told 	you
that 	the 	material 	had 	fallen. 	This 	is 	insufficient 	to 	support
an 	inference 	that 	ATMR 	had 	anything 	at 	all 	to 	do 	with 	the
materials' 	disappearance. 	For 	these 	reasons, 	this 	allegations
fails 	to 	set 	forth 	a 	prima 	facie 	case 	of 	a 	violation of 	the
EERA 	by 	ATMR.
The 	final 	allegation 	contained 	in 	the 	charge 	concerns 	Porter's
assertions 	to 	Principal 	Wolf 	which 	led 	to 	Wolf's 	issuance 	of 	a
derogatory memo 	to 	you. 	This 	allegation was 	filed 	within 	the
six-month 	filing 	period 	set 	forth 	in EERA 	section 	3541.5(a).
and 	is 	therefore 	timely. 	However, 	as 	with 	the 	Lisby 	incident,
there 	is 	no 	factual 	support 	for 	the 	proposition 	that 	Porter
acted 	as 	an 	agent 	of 	ATMR when 	she 	reported 	the 	alleged
inappropriate 	comments 	to Wolf. 	Under 	such 	circumstances, 	the
conduct 	cannot 	be 	attributed 	to 	ATMR.
Moreover, 	there 	are 	no 	facts 	which 	connect 	the 	public 	criticism
of 	ATMR's 	vice-president 	to 	Porter's 	action 	in 	reporting your
comments 	to 	Principal 	Wolf. 	You 	do 	not 	allege 	that 	Porter 	was
even 	aware 	of 	the 	public 	criticism. 	Absent 	such 	a 	connection,
it 	cannot 	be 	inferred 	that 	ATMR 	engaged 	in 	conduct 	which
interferes 	with 	your 	exercise 	of 	rights.
Finally, 	even 	if 	it 	could 	be 	concluded 	that 	Porter 	was 	acting
on 	behalf 	of 	ATMR 	and 	that 	she 	was 	motivated 	by 	the 	public
criticism 	at 	the 	Board meeting 	to 	urge 	Wolf 	to 	issue 	you 	a
derogatory 	memo, 	the 	conduct 	in 	which 	you 	were 	engaged 	—
allegedly 	making 	inappropriate 	comments 	to 	Porter 	-- 	is 	not
protected 	by 	the 	Government 	Code. 	For 	these 	reasons, 	the

allegation fails 	to present a prima facie 	case of 	a violation
of 	the EERA by ATMR.
Tony 	Petrich/LA-CO-338
July 21. 	1986
Page 4
For 	these reasons, 	the charge as presently written does not
state a prima facie case. 	If you feel 	that there are any
factual 	inaccuracies 	in this 	letter 	or 	any additional facts
which would 	correct 	the deficiencies 	explained above, 	please
amend 	the 	charge 	accordingly. 	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 	amende- d 	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 before July 29, 1986, 	I 	shall dismiss your
charge. 	If you have any questions on how to proceed, 	please
call me at 	(916) 	322-3198.
Sincerely.
Jorge Leon
Staff 	Attorney
5431d