Riverside Unified School District (Petrich) (PERB 0639E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TONY PETRICH,
Charging 	Party,
v.
RIVERSIDE UNIFIED 	SCHOOL DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-2359
PERB 	Decision 	No. 	639
November 23 	1987
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Appearances; 	Tony Petrich, 	on his own behalf; 	Best, 	Best &
Krieger, 	by Bradley E. 	Neufeld 	for 	Riverside 	Unified School
District.
Before Hesse, 	Chairperson; 	Craib and Cordoba, 	Members.
DECISION
CRAIB, 	Member: 	This case 	is before the Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed by 	the
charging party, 	Tony Petrich, 	to the 	attached proposed decision
of 	a 	PERB administrative 	law 	judge 	(ALJ). 	The ALJ dismissed
the 	complaint, 	finding 	that 	the 	charging party 	failed 	to
establish a 	prima 	facie 	case 	as 	to 	any of 	the 	allegations
contained 	therein. 	Charging 	Party 	alleged 	that 	Respondent,
Riverside 	Unified 	School 	District, 	placed him on paid 	leave 	and
then 	later 	dismissed him 	from 	employment 	in 	reprisal 	for
protected 	activity. 	Charging 	Party 	further 	alleged 	that
Respondent 	unilaterally 	altered 	portions 	of 	the 	dismissal
procedures 	specified 	by 	the 	collective 	bargaining 	agreement.
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We have 	carefully reviewed 	the 	entire 	record, 	including 	the
proposed 	decision, 	the transcript, 	the 	exceptions 	filed by 	the
charging 	party and 	the 	response 	to 	the 	exceptions 	file by
Respondent. 	Finding 	the ALJ's 	findings 	of 	fact 	and 	conclusions
of 	law 	free 	of prejudicial 	error, 	we 	adopt 	them as 	the 	Decision
of 	the Board 	itself. 	However, 	we believe 	that 	one of 	Charging
Party's 	exceptions 	requires 	response.
Charging 	Party 	asserts 	that 	unlawful 	motivation may be
inferred 	from 	the 	failure 	of 	Paul 	Paynter, 	Assistant
Superintendent 	for 	Personnel, 	to conduct 	an 	independent
investigation 	of 	charges 	of 	misconduct 	and 	poor 	job performance
submitted by 	Charging 	Party's 	immediate 	supervisor, 	Phillip
Hodnett. 	The ALJ concluded 	that 	there 	was 	no obligation 	to
conduct 	such 	an 	investigation because 	the 	record 	failed 	to
demonstrate 	that 	Paynter 	had 	any 	reason 	to 	question 	the
documentation 	submitted 	by 	Hodnett.
We 	adopt 	the 	ALJ's 	reasoning 	and 	further hold 	that, 	absent
evidence 	casting 	suspicion upon the 	employer's 	actions, 	the
mere 	failure 	to conduct 	an 	independent 	investigation 	of 	a
supervisor's 	charges 	of 	misconduct 	or poor 	job performance 	does
not 	itself 	reflect 	unlawful 	motivation. 	Such 	action must 	be
evaluated 	on 	a 	case by case basis 	within 	the 	context 	in which
it 	occurred. 	Among 	the 	factors 	to be 	considered 	would be
whether 	the 	employer has 	a policy or 	practice of 	conducting
such 	investigations 	and 	whether 	the 	record 	otherwise 	reflects
anti-union 	animus 	on 	the part 	of 	the 	supervisor 	or 	the
reviewing decision maker. 	For 	example, 	in Woodland Joint

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Unified School 	District 	(1987) 	PERB Decision No. 	628, 	we
inferred 	unlawful 	motivation 	from 	the 	failure 	of 	an
administrator 	to 	inquire 	as 	to the 	charging party's 	version of
events 	(even 	though 	the 	administrator 	did 	speak 	with 	the
charging party's accusers). 	However, 	in that case, 	the
administrator's 	conduct 	was 	found 	to be 	a 	departure 	from 	the
respondent's 	established 	disciplinary 	procedures 	and 	the
immediate 	supervisor 	was 	found 	to have 	long-standing 	anti-union
sentiments.
Here, 	Charging 	Party has 	not 	demonstrated 	that 	the
respondent 	had 	any 	established 	practice 	regarding 	disciplinary
investigations, 	much 	less 	that 	Paynter's 	conduct 	was 	a
departure 	from 	it. 	Nor has 	the 	charging party otherwise
established 	that 	either 	Paynter 	or 	Hodnett 	was 	motivated 	by
anti-union 	animus 	or 	that 	there 	were 	other 	circumstances 	that
would 	cast 	suspicion upon their 	actions. 	Therefore, 	there 	is
no 	reason 	in 	this 	case 	to 	infer 	unlawful 	motivation 	from 	the
failure 	to conduct 	an 	independent 	investigation of 	the 	charges
of 	misconduct 	and 	poor 	job performance 	against 	the 	charging
party.
ORDER
Case 	No. 	LA-CE-2359 	is hereby DISMISSED.
Chairperson 	Hesse 	and Member 	Cordoba 	joined 	in 	this 	Decision.

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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
TONY PETRICH,
Charging 	Party,
v.
RIVERSIDE UNIFIED 	SCHOOL
DISTRICT,
Respondent.
UNFAIR 	PRACTICE
Case No. 	LA-CE-2359
PROPOSED 	DECISION
(6/5/87)
Appearances: 	Tony Petrich, 	on his own behalf; 	Best, 	Best &
Kreiger, 	by Charles D. 	Field, 	and Cathrine Nove for Riverside
Unified 	School District.
Before: 	James W. 	Tamm, 	Administrative Law Judge
PROCEDURAL 	HISTORY
On March 17, 	1986, 	Tony Petrich 	(hereinafter Charging Party
or Petrich) 	filed this charge against the Riverside Unified
School District 	(hereinafter District). 	The charge alleged
that 	Petrich had 	been placed 	on paid 	leave 	and dismissal
proceedings 	had been 	initiated 	against 	him because 	of 	his
protected activities. 	On May 13, 	1986, 	Charging Party amended
the charge, 	alleging 	that during his dismissal 	hearing 	the
District unilaterally altered portions 	of Article 	19 	of 	the
contractual 	dismissal procedure.
A complaint was 	issued June 19, 	1986, 	and a corrected
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

complaint was 	issued June 23, 	1986. 	Informal 	settlement
conferences were held, l however, 	the matter 	remained
unresolved. 	A formal 	hearing was 	held on
December 8 	and 9, 	1986.
At 	the hearing, 	Charging Party sought 	to 	amend the
complaint 	regarding 	two 	issues. 	The first 	amendment 	reflected
that 	since the time the original 	charge was 	filed, 	the District
had 	actually discharged the Charging Party. 	Therefore, 	Petrich
sought 	to 	include the discharge 	itself 	as part of 	the
District's 	retaliation 	against 	him. 	The District did not
object 	to 	this 	amendment 	and 	it was 	therefore 	allowed.
A second 	amendment was 	to 	allege unilateral 	changes 	to
Article 	17 of 	the Collective Bargaining Agreement. 	That
article deals with records being placed 	into personnel 	files.
This 	amendment 	sought 	to 	raise 	an 	issue never 	before 	raised,
(i.e., 	when must documents be placed into personnel 	files 	in
order to use them for disciplinary purposes). 	Since the
District was 	unprepared 	to 	litigate that 	issue 	and because
Charging 	Party could 	offer 	no 	satisfactory 	reason 	for waiting
until 	the beginning of 	the hearing to 	raise that 	issue, 	the
1The 	undersigned Administrative Law Judge 	(ALJ) 	was
assigned to conduct 	a 	settlement conference 	in this 	case.
Generally, 	ALJs 	conducting 	settlement conferences 	are not
assigned the formal hearing 	in the same case. 	However, 	the
parties 	in this 	case 	requested 	I 	also conduct 	a 	formal 	hearing
and waived 	any objections 	on 	the 	record.
N	2

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motion to amend was denied.2
At 	the conclusion of 	the hearing, 	a transcript was
prepared. 	Briefs were 	filed 	and the matter was 	submitted 	for
decision on February 10, 	1987.
FINDINGS OF FACT
Tony Petrich was 	hired by the District 	in 	approximately
1971 as 	a gardener. 	At some later date, 	he was transferred to
a position of 	gardener/custodian. 	His duties 	regularly
included picking up 	trash, 	cleaning 	the 	student 	parking 	lot,
chopping weeds, 	cleaning 	restrooms 	and assisting 	in the
clean-up of 	trash 	in the 	school's 	arcade 	following 	the 	student
lunch period. 	His 	early years 	of 	employment were 	apparently
uneventful. 	However, 	from August 1983 until July 1985, 	the
District gave Petrich a 	series 	of 	verbal warnings 	and
counseling sessions, 	along with eleven 	(11) 	written reprimands,
culminating 	in a 	recommendation for 	a 	30-day suspension. 	The
Charging Party, 	represented by the California 	School 	Employees
Association 	(CSEA), 	appealed the suspension to 	advisory
arbitration. 	The 	arbitrator 	found Petrich guilty of
inattention to 	and dereliction of duty, 	failing 	to perform
2At 	the hearing, 	Charging Party sought 	to enter 	testimony
regarding Article 	17 	to 	show that documents were used to
support 	his 	dismissal which had not 	previously been placed 	in
his 	personnel 	file. 	To the extent 	such evidence was 	admitted,
it was 	allowed only to 	support Charging Party's 	argument 	of
shifting 	justifications 	for 	his discharge 	and not 	to 	support
allegations of unilateral changes 	to Article 17 of 	the contract,
3Charging 	Party Exhibit No. 	11.

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assigned duties 	in a 	satisfactory manner, 	failing 	to obey
directions 	and observe 	rules 	of 	the campus 	and 	a persistently
discourteous 	attitude 	toward 	the 	administration 	and 	fellow
employees. 	Nevertheless, 	the arbitrator 	recommended the 30-day
suspension be 	reduced to 	a 	10-day suspension.4
On September 23, 	1985, 	Petrich's immediate supervisor,
Plant 	Supervisor Phillip Hodnett, 	wrote 	a memorandum to Paul
Paynter, 	Assistant Superintendent for Personnel, 	detailing
Petrich's 	poor 	attendance 	and 	job performance 	since 	Petrich's
return from the suspension. 	According to Hodnett, 	between
September 3, 	1985, 	and September 23, 	1985, 	Petrich had been
either 	absent 	from work or 	tardy on 	15 days. 	Hodnett 	also
complained that 	Petrich had 	refused to 	clean the girls'
restroom after 	repeatedly being 	told to do 	so.
During 	the weeks 	following the memorandum, 	Petrich
continued 	a consistent 	pattern of 	tardiness 	and Hodnett
continued documenting 	it.
On November 14, 	1985, 	Petrich filed an unfair practice
charge 	against 	CSEA.5 In the charge, 	Petrich named his
supervisor, 	Hodnett, 	as 	acting on behalf of CSEA in coercing
employees.6
4 The 	arbitrator 	reasoned 	that 	never 	before had 	the
District 	suspended 	an employee for more than five 	(5) 	days
Therefore, 	a 	10-day suspension would be sufficient.
5Case No. LA-CO-347.
6Specifically the charge 	alleged 	that 	on
November 	6, 	1985, 	when Hodnett handed out official Public

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Employee Retirement System election ballots, 	he also
distributed 	a 	CSEA memorandum endorsing 	a 	particular
candidate. 	This 	charge was dismissed by the Public Employment
Relations Board 	(PERB or Board) 	Regional Attorney for 	failure
to 	state 	a 	prima 	facie violation. 	The dismissal was upheld by
the 	Board 	in California 	School 	Employees 	Association 	(Petrich)
(1986) 	PERB Decision No. 	577.
Although Petrich served 	a 	copy of 	the charge upon counsel
for the District, 	there is no evidence that charge was 	ever
brought 	to Hodnett's 	attention. 	Hodnett 	credibly testified
that he had never 	seen the charge nor even heard of 	it until 	he
was 	questioned 	about 	it by Petrich at 	the hearing. 	Paynter
testified that, 	although he had no 	specific 	recollection of 	the
charge being brought to his 	attention, 	he was 	probably informed
of 	the charge by the District's 	counsel 	shortly after 	it was
filed. 	Other 	than being 	informed 	about 	the charge, 	Paynter 	had
no 	further dealings with the charge. 	Because the charge was
not against the District, 	no action was necessary, 	so he gave
it no 	further thought. 	Paynter never brought 	the charge to
Hodnett's 	attention.
Paynter did testify, 	however, 	that he was 	aware that
Petrich had 	filed 	a 	number 	of 	unfair practice charges 	against
the District 	as well 	as 	against CSEA and the Teachers
Association.7
7A 	review of 	PERB case 	files 	indicates 	that 	Petrich 	is
Charging Party in approximately 20 	charges: 	thirteen 	(13)
against the District, 	two 	(2) 	against CSEA, 	and two 	(2) 	against
the Teachers Association. 	Although many of the charges were
not 	filed until 	after his dismissal, 	the District 	stipulated 	at
the hearing 	that 	it had knowledge of 	Petrich's 	unfair practice
charge 	filings prior to his dismissal.

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.
On November 25, 	1985, 	Paynter sent Petrich a Notice of
Intent 	to Recommend Dismissal. 	The Notice of 	Intent 	accused
Petrich of: 	(1) 	inattention to or dereliction of duty; 	(2)
failure 	to 	perform assigned duties 	in a 	satisfactory manner;
(3) 	failure to obey directions or observe 	rules of 	school
district superiors, 	and 	(4) 	persistent discourteous treatment
of 	fellow employees. 	The Notice of 	Intent, 	based upon
documentation 	supplied by Hodnett, 	specified 49 	alleged
instances of misconduct between September 3, 	1985, 	and
November 20, 	1985. 	Paynter drafted the notice upon receiving
the 	supporting documentation 	from Hodnett. 	Paynter 	then had
copies 	of 	the notice 	and of Hodnett's memorandum placed 	into
Petrich's 	personnel 	file.
Although there 	is no set 	format 	for such notices, 	the first
page of 	the notice 	advised Petrich of 	his 	rights 	under 	the
District's dismissal procedures. 	Most of the second, 	third,
and 	fourth pages 	listed 	specific 	allegations 	against 	Petrich by
date. 	In the final paragraph on page 4, 	the allegations were
more general 	such 	as 	"In 	addition to 	the 	above 	listed 	specific
acts or omissions, 	you have routinely been uncooperative and
argumentative with your immediate supervisor 	. 	. 	. 	". 	Petrich
responded to the Notice of 	Intent on November 28, 	1985, 	denying
all 	allegations 	against 	him and 	requesting 	a 	hearing 	regarding
the matter.
On December 3, 	1985, 	Petrich filed a grievance with the
District 	alleging 	that 	the District 	had 	improperly calculated

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the 	salary schedule 	for 	all 	classified employees.
g
Petrich
filed the grievance with Hodnett who 	said he did not understand
the 	grievance 	and claimed 	to 	know nothing 	about 	how the 	salary
schedule was calculated. 	Hodnett wanted to bypass 	the normal
Level 	I meeting 	and moved 	it directly to Level 	II where 	it
could be handled by Paynter. 	Petrich's 	insistence on holding 	a
meeting with Hodnett 	over 	the 	grievance 	angered Hodnett.
Hodnett 	contacted Paynter 	and was 	told 	to 	go 	ahead 	and 	hold 	the
Level 	I meeting 	if 	that was what Petrich wanted. 	At the
meeting, 	Hodnett told Petrich he was 	angry about having 	to hold
a meeting 	over 	an 	issue he 	knew nothing 	about 	and could not
possibly 	remedy.
When the grievance was moved to the second 	level, 	Paynter
recalculated 	Petrich's 	salary 	in 	the manner 	that 	Petrich urged
in the grievance 	and discovered that 	it would 	result 	in a
reduction of 	salary to Petrich 	rather 	than an 	increase.
Paynter 	later denied the grievance 	at Level 	II 	on
January 16, 	1986.
On December 19, 	1985, 	a pre-termination (Skelly) 	hearing
was 	held with Petrich 	represented by CSEA. 	At 	the hearing,
Petrich was 	given 	an opportunity to 	rebut 	the 	allegations
against 	him and 	to 	dissuade 	the District 	from going 	forward
with the dismissal. 	After considering Petrich's 	arguments, 	the
8The 	same 	subject was 	the basis 	of 	an unfair 	practice
charge filed a day earlier. 	That charge 	(LA-CE-2292) 	was
withdrawn by Petrich prior 	to 	formal 	hearing.

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District decided to go 	forward with the discharge. 	The next
day, 	December 20th, 	Paynter mailed Petrich a notice that his
dismissal was 	to be effective January 6, 	1986.
Article 	19.5.2 	of 	the Collective Bargaining Agreement 	in
effect 	at 	that 	time 	required 	the District 	to 	attach to 	the
notice copies 	of 	documents 	and other materials which 	supported
the purposed 	action. 	When Paynter 	sent Petrich the notice, 	he
inadvertently 	failed 	to 	attach the 	supporting documents 	as
required by the contract.
Prior 	to 	this 	omission being 	brought 	to Paynter*s
attention, 	Paynter had 	received a 	request 	from the principal 	at
Petrich's 	school 	that Petrich be 	removed 	from that campus.
Petrich*s 	refusal 	to perform his work was, 	according 	to 	the
principal, 	generating a great deal of 	animosity among other
employees 	at the site. 	Paynter felt 	it would be 	impractical to
move Petrich to 	another 	school 	since the District 	had 	already
decided to dismiss him, 	so 	it was decided to simply put Petrich
on paid 	leave until 	his dismissal.
g
That decision was made
prior 	to 	the 	1985 	Christmas vacation 	and was carried out 	on
January 3, 	1986. 	On that day, 	Paynter personally delivered a
written notice of 	the paid 	leave to Petrich. 	Paynter had
Hodnett 	accompany him to 	receive Petrich's 	school 	keys.
9Article 	19.2 	of 	the contract provides 	that 	a 	suspension
with pay may be made pending 	formal 	action by the District.
The District 	has 	taken similar 	action with other 	employees 	in
the past.

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Paynter 	told Petrich 	the 	paid 	leave would give 	him more 	time 	to
prepare 	his 	defense 	to 	the pending dismissal 	but did not
discuss 	the 	issue further.
That 	same day, 	Petrich filed 	a 	grievance regarding
Paynter*s 	failure 	to 	attach 	supporting documents 	to 	the earlier
dismissal notice. 	When Paynter 	received the grievance, 	he
checked 	Petrich's 	file 	and verified 	that 	he 	had not 	attached
the documents. 	Paynter then 	issued 	a new notice of dismissal
which 	included the 	supporting documents. 	Petrich was 	told to
disregard 	the 	earlier 	notice 	and 	that 	his 	dismissal 	effective
date was 	extended until February 3, 	1986. 	Petrich was 	kept on
paid 	leave 	for 	the 	additional 	time.
Petrich grieved his 	dismissal 	to 	advisory arbitration. 	A
hearing was held and the arbitrator, 	Kenneth Perea, 	held that
Petrich was 	guilty of 	inattention to 	or dereliction of duty,
failure 	to 	perform assigned duties 	in 	a 	satisfactory manner,
and failure to obey directions 	or observe 	rules 	of 	school
district 	superiors. 	Perea 	specifically found 	that 	Petrich had
been tardy on 38 occasions between September 3, 	1985, 	and
November 20, 	1985, 	and that he had failed to clean the women's
restroom on nine 	(9) 	instances within the same period. 	Petrich
had 	also been 	inefficient 	in his duties 	by refusing 	to use 	a
"yard vacuum" 	to clean the parking 	lot, 	continuing to use a
small 	broom and dustpan 	instead. 	Perea 	concluded 	by
recommending 	the discharge of 	Petrich.

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During the arbitration hearing, 	as part of his case 	in
chief, 	Petrich offered 	an affirmative defense by testifying
that 	he 	had never 	been told he was 	responsible 	for 	certain
duties. 	On cross-examination, 	the District 	offered documentary
evidence to 	impeach Petrich's 	testimony. 	Petrich objected 	to
the 	introduction of 	these documents 	because 	they had not
accompanied 	the District's 	dismissal 	notice.
Perea 	ruled 	that 	documentary evidence 	offered 	for
impeachment 	purposes 	and 	in 	rebuttal 	to 	the union's 	affirmative
defense 	should 	not 	be 	excluded 	from evidence based 	upon
Article 	19.5.2 of 	the contract. 	Perea held 	it would have been
unreasonable to have 	required the District 	to provide copies 	of
the 	rebuttal documents 	at 	the time the dismissal notice was
issued 	since the District was 	not 	then aware of what 	the
union's 	contentions 	in the hearing would be.
At 	the unfair practice hearing, 	Petrich offered 	testimony
of 	CSEA Senior 	Field Representative Alan Aldrich. 	Aldrich had
been 	involved 	in two 	other discharge 	arbitrations 	prior 	to
Petrich's. 	Aldrich testified that he had no 	recollection of
the District's 	seeking 	to enter 	into 	the 	record 	any additional
documents 	that were 	not 	included with 	the District's 	dismissal
notice 	in the two previous cases.
Immediately 	after 	the 	District 	received 	the 	arbitration
decision 	recommending Petrich's 	dismissal, 	Paynter 	sent 	Petrich
a 	letter 	saying 	that 	Petrich's 	dismissal would 	be 	submitted 	for
action by the 	school board at 	its 	next closed 	session. 	That

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letter was 	delayed by the mailroom over 	the weekend 	and mailed
to 	Petrich the 	same day as 	the school board's 	closed 	session.
On May 5, 	1986, 	the District's 	school board dismissed Petrich.
ISSUES
1. 	Did the District 	place Charging 	Party on paid 	leave 	and
discharge him because of 	his 	exercise of 	protected
activities? 	and,
2. 	Did the District unilaterally alter Article 	19 	of 	the
Collective Bargaining Agreement by introducing, 	at 	an
arbitration hearing, 	documents which had not been
attached to 	the District's Notice of Proposed
Disciplinary 	Action?
DISCUSSION
A. 	Allegation of Discrimination.
Under EERA section 3543.5(a), 	it is unlawful for a public
school 	employer to:
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.
In Novato Unified School District 	(1982) 	PERB Decision No.
210, 	the Board set 	forth the 	standards 	to be applied 	in cases
where employers 	are 	alleged 	to 	have discriminated 	against
employees because of 	an exercise of protected 	rights. 	Under
the Novato test, 	a prima 	facie case of discrimination or
reprisal 	because of 	protected 	activities 	is 	established 	if

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charging 	party can prove 	that: 	the employee participated 	in
protected activities; 	the protected 	activity was 	known to 	the
employer; 	and the action of the employer was motivated at 	least
in part 	by the employee's protected 	activities.
Since the employer's motivation can 	rarely be proven by
direct evidence, 	unlawful motivation can be 	inferred 	from
circumstantial evidence such as, 	among others: 	an examination
of 	the 	timing 	of 	the 	alleged discriminatory conduct 	in 	relation
to the exercise of protected 	rights; 	disparate treatment of
similarly situated employees; 	a change in or departure from
established policy, 	procedure or practice when dealing with the
affected employee; 	inconsistent or 	contradictory justifications
offered 	for 	the 	adverse 	actions 	taken 	against 	the employee;
failure 	to offer 	justification to 	the employee 	at 	the time the
action 	is 	taken; 	perfunctory investigation of 	the contentions
of 	the alleged discriminatee, 	or a harsh response by the
employer 	to 	an employee's protected 	activities.10
Once the charging party has made 	a 	prima 	facie 	showing
sufficient 	to 	support 	an 	inference that 	the exercise of
employee 	rights 	granted by the Educational 	Employment 	Relations
Act 	(EERA) was 	a motivating factor in the employer's 	action,
the burden shifts 	to 	the employer 	to prove that 	its 	actions
1 0 See Santa 	Paula 	School 	District 	(1985) 	PERB Decision
No. 	505; 	Rio Hondo Community College District 	(1982) 	PERB
Decision No. 	226; 	San Diego Community College District 	(1983)
PERB Decision No. 	368, 	and Baldwin Park Unified School District
(1982) PERB Decision No. 	221.

13
"
would have been the same despite 	the protected 	activity. 	The
test 	adopted by the Board 	is 	consistent with precedent 	in
California 	and under 	the National 	Labor Relations Act 	(NLRA)
requiring 	the trier of 	fact 	to weigh both direct 	and
circumstantial 	evidence 	in order 	to determine whether 	an 	action
would not have been taken against 	an employee 	"but 	for" 	the
exercise of protected rights. 	See, 	e.g., 	Martori Brothers
Distributors v. 	Agricultural Labor Relations 	Board 	(1981)
29 Cal.3d 721, 	727-730; Wright Line. 	Inc. 	(1980) 251 NLRB 150
[105 LRRM 1169] 	enforced in part 	(1st Cir. 	1981) 	662 F.2d 899
[108 LRRM 	2513].11 Hence, 	assuming 	a prima 	facie case 	is
present, 	an employer has 	the burden of 	producing evidence that
the action would have occurred 	in any event. 	Martori 	Brothers
Distributors v. 	Agricultural Labor Relations Boards 	supra. 	at
730.
B. 	Protected Activity.
The complaint 	in this 	case 	alleges 	the Charging 	Party
engaged 	in 	protected 	activity by 	filing 	unfair 	practice 	charges
on November 14, 	1985, 	and December 2, 	1985, 	and by filing
grievances on December 3, 	1985, 	and January 3, 	1986. 	The
11The construction of provisions 	of 	the NLRA as 	amended
29 USC 151 et seq. 	is useful guidance 	in interpreting parallel
provisions of 	the EERA. 	See San Diego Teachers Association v.
Superior Court 	(1979) 	12 Cal.3d 1, 	12-13; 	Fire Fighters Union v,
City of Vallejo 	(1974) 	12 Cal.3d 608, 	616; 	compare section
3543.5(a) 	of the act with sections 8(a)(l) 	and 	(3) 	of the NLRA,
also 	prohibiting 	interference 	and discrimination 	for 	the
exercise of 	protected rights.

14
Charging 	Party 	argues 	that 	the November 	14th unfair 	practice
charge, 	alleging Hodnett 	interfered with employee 	rights 	on
behalf of CSEA, 	triggered his discharge. 	This 	argument 	is not
supported by the 	record. 	Hodnett 	had no 	knowledge of 	the charge
until 	the day of 	his 	testimony 	in this 	unfair 	practice hearing.
Although Paynter did have notice of 	the November 	14th charge, 	it
caused 	him no 	concern because 	it was 	filed 	against 	CSEA 	and 	not
the District. 	Because 	it had no 	impact upon the District,
Paynter did not even bother 	to 	bring 	it 	to Hodnett's 	attention.
It 	should 	also be noted that 	the unfair practice charges 	and
grievances 	filed December 2 and 3, 	1985, 	and January 3, 	1986,
were 	all 	filed 	after the decision had been made 	to 	dismiss
Petrich 	and would 	therefore offer 	no 	support 	to 	the Charging
Party. 	Nevertheless, 	Petrich has 	filed an abundance of other
charges 	against 	the District 	and the District 	stipulated 	at 	the
hearing 	that 	it 	had 	knowledge 	that 	Petrich had engaged 	in
protected activity. 	Therefore, 	for purposes of this 	analysis,
it 	is 	found that Petrich had engaged 	in protected 	activity and
that 	the District 	had knowledge of 	that 	protected 	activity.
C. 	Unlawful Motivation.
Once Charging 	Party's 	protected conduct 	and 	the District's
knowledge of 	such protected conduct 	is 	established, 	the Charging
Party must 	show sufficient 	evidence 	to 	support 	an 	inference 	that
the protected conduct was 	a motivating 	factor 	in the District's
decision to 	place him on paid 	leave 	and 	terminate him. 	Petrich
offers 	numerous 	arguments 	to 	support 	such an inference.

15
The 	first 	involves 	the use of documents 	from his personnel
file. 	Charging Party argues 	that documents must be physically
placed 	in the personnel 	file 	in the District's 	central 	office
before 	they could be used 	for disciplinary purposes. 	The 	record
here 	reflects 	that when 	Paynter 	received 	the memorandum from
Hodnett he drafted the notice of 	intent to dismiss, 	then placed
a 	copy of 	the notice 	and 	the memorandum from Hodnett 	into
Petrich's 	personnel 	file contemporaneously with 	sending 	a 	copy
to Petrich. 	To 	require the District 	to 	first physically place
Hodnett*s memorandum into Petrich's 	file, 	then 	immediately
thereafter 	remove 	it 	from the 	file to use 	in drafting 	the
disciplinary notice, 	puts 	form over substance. 	The fact that
the District 	put 	the memorandum from Hodnett 	into 	Petrich's
personnel 	file at 	the same time as 	the notice to Petrich does
not evidence unlawful 	intent.
In a 	related 	argument, 	Petrich reasoned that 	since Hodnett's
notes were maintained in a place other 	than the central
personnel 	file, 	the District must have created a 	"secret 	file,"
which evidences unlawful 	intent. 	Under this theory, 	a
supervisor would be precluded 	from keeping 	track of 	attendance
unless 	he 	sent 	a memorandum to 	the personnel 	file each 	and every
time the employee was tardy or 	absent. 	In Petrich's case, 	this
would have 	amounted to 	literally dozens 	of 	separate memorand	. . 	a 	to
his 	file 	rather 	than one memorandum detailing 	his 	poor
attendance over 	a period of 	several months. 	The fact 	that
. Hodnett 	kept attendance 	and performance 	records does 	not 	lead to

16
. .
the conclusion that 	the District 	kept 	a 	separate 	secret 	file 	on
Petrich. 	Petrich also argues 	that this practice was 	a departure
from established District policy; 	however, 	the 	record contains
no evidence 	supporting 	that 	argument.
Petrich next 	argues 	that 	Paynter's 	failure to conduct 	an
independent 	investigation of Hodnett's 	allegations 	evidenced
unlawful 	intent. 	According to Charging Party, 	this 	shows
Paynter's 	preoccupation with getting 	rid 	of 	Charging 	Party and
that 	Paynter 	had no 	real 	concern 	about 	the 	substance of 	any of
the allegations. 	However, 	Petrich never established that
Paynter 	had 	any 	reason to doubt Hodnett's 	records 	and 	thus 	there
existed no 	obligation to do 	an 	independent 	investigation.
Furthermore, 	Petrich was 	given ample opportunity to 	refute the
District's 	allegations 	at 	a pre-termination 	(Skelly) 	hearing,
the arbitration proceeding, 	and the unfair practice hearing
itself. 	Except 	for a few minor discrepancies, 	Petrich was
unable to 	refute them.
The 	next 	argument deals with the manner 	in which the
dismissal notice was 	typed. 	Petrich argues 	that because the
final paragraph on page 4 was 	in summary form rather 	than a
listing by date of occurrence, 	as were the first 	several pages
of the notice, 	it evidences unlawful motive. 	There is, 	however,
no 	set 	format 	for 	such notices.12 The 	intent 	is 	to 	apprise
12Petrich argues in his brief that Articles 	19, 	19.5, 	and
19.5.2 	of 	the contract 	and the Education Code 	section 45116
require 	that 	the 	statement of 	the 	alleged 	acts 	or 	omissions 	be
accompanied by the dates of 	the purported misconduct. 	There 	is,
however, 	no 	such requirement 	in any of 	those sections.

17
the employee of 	allegations 	against him. 	This 	notice clearly
did that. 	The 	fact 	that 	allegations 	in one particular paragraph
were 	typed 	in 	summary form rather 	than 	listed 	by the date 	of
each offense does 	not evidence unlawful motive.
Charging 	Party 	also 	cites 	Hodnett's 	open hostility toward
him regarding 	the 	salary grievance 	as 	evidence of 	unlawful
motive. 	Petrich is correct 	that Hodnett displayed hostility
toward him. 	However, 	the hostility does not evidence unlawful
motive 	regarding his discipline for two 	reasons. 	First, 	this
meeting 	took place 	after 	the decision to dismiss 	Petrich had
already been made and, 	therefore, 	the dispute about the Level 	I
meeting 	could not 	have 	influenced 	the decision 	to 	dismiss
Petrich. 	Second, 	Hodnett's 	irritation was understandable under
the circumstances. 	Hodnett knew nothing about the substance of
the grievance, 	did not even understand it, 	and could not 	remedy
it even 	if he had wanted to. 	Hodnett was 	not 	angry at Petrich
for 	filing 	the 	grievance but 	rather because Petrich 	insisted
upon holding 	an entirely frivolous 	meeting 	prior 	to 	sending 	the
grievance to Paynter, 	who could effectively deal with 	it.
Charging Party's next 	argument 	regarding unlawful motive 	is
that 	the District's 	decision to 	remove him from campus was made
the 	same day as 	and 	in 	retaliation for 	a 	grievance 	filed
January 3, 	1986. 	This 	is 	incorrect because the decision to
remove Petrich from the campus 	had been made by Paynter 	prior 	to
the Christmas vacation. 	Furthermore, 	Paynter's uncontradicted
testimony was 	that the decision was made 	at 	the 	request of 	the

18
principal 	because Petrich's 	refusal 	to do 	assigned 	tasks was
causing 	animosit
. y among other employees 	at 	the work site. 	This
was 	also 	a 	procedure expressly allowed under 	the collective
bargaining 	agreement 	and used by the District 	in the past.
Petrich next 	argues 	that 	the District 	deliberately omitted
supporting 	documents 	from the December 	20th dismissal 	notice.
Once again, 	however, 	uncontradicted evidence thoroughly refutes
this 	argument. 	Paynter 	inadvertently omitted the documents 	and,
when it was 	brought 	to his 	attention, 	he not only supplied the
documents 	but 	he 	also extended Petrich's 	paid 	leave 	status 	for
an additional month to 	avoid any prejudice to Petrich. 	Thus, 	it
is 	difficult to 	read anything 	sinister 	into Paynter's 	actions.
Petrich points 	out 	three 	instances 	occurring 	during 	his
dismissal 	arbitration which he 	says 	helped 	established 	a 	nexus
between his 	protected 	activities 	and 	the 	actions 	taken 	against
him. 	The first was that, 	according to Petrich, 	the District
raised 	an entirely new issue at the hearing. 	According 	to
Petrich, 	the District had accused Petrich of 	failing to use 	a
"yard vacuum" 	to clean the parking 	lot 	for 	the first 	time at 	the
hearing. 	This 	argument 	is clearly contrary to the 	record. 	The
notice 	of 	disciplinary 	actions 	specifically 	included 	the
following:
On numerous occasions, 	you have refused to
use assigned equipment, 	delaying completion
of your assigned tasks. 	For example, 	you
routinely used 	a 	small 	broom and dustpan to
clean the parking 	lot, 	contrary to direct
instructions. 	This 	is 	inefficient beyond
belief, 	insubordinate, 	and a direct
violation of Mr. 	Hodnett's directions.

19
The 	second 	incident 	occurred when Petrich was 	being
cross-examined 	and counsel 	for 	the District 	called him 	"the
biggest 	liar that ever walked the 	face of 	the earth." 	This,
according 	to Petrich, 	is 	"clearly cruel 	and 	abusive treatment
and evidence of unlawful 	intent." 	This was, 	however, 	said
during 	an adversarial arbitration, 	while counsel was 	seeking to
impeach Petrich's testimony on cross-examination. 	As 	such, 	it
was 	nothing more than the District's 	attempt 	to discredit
Petrich's testimony in the eyes of 	the arbitrator. 	The
statement was 	offered by Petrich without 	any other 	context
which would demonstrate unlawful motive.
The 	final 	incident 	stemming 	from the 	arbitration hearing
was 	that the District sought 	to offer 	as 	evidence documents
which had not been attached 	to 	the notice of disciplinary
action. 	Petrich argues 	this 	is evidence of disparate
treatment. 	The documents were offered, 	however, 	as 	rebuttal to
one of Petrich's 	affirmative defenses. 	The District was
unaware of 	the defense 	at the 	time the disciplinary notice was
issued. 	As will be more 	fully discussed 	later 	in 	the decision
regarding 	allegations of unilateral changes 	to Article 	19, 	the
Charging Party has 	failed to prove that 	the practice was 	either
out of 	the ordinary or 	improper. 	It does not therefore support
a 	finding 	of unlawful motivation.
Immediately 	after 	the District 	received 	the 	arbitration
decision 	recommending Petrich's dismissal, 	Paynter 	sent 	Petrich
a 	letter 	saying 	that Petrich's dismissal would be 	submitted 	for

20
action by the 	school board 	at 	its 	closed 	session. 	That 	letter
was 	delayed by the mailroom over 	the weekend 	and mailed 	to
Petrich the same day as 	the school board's 	closed 	session.
Petrich 	argues without 	any supporting 	evidence on 	the 	record
that 	the delay was 	deliberately arranged by Paynter 	and was,
according 	to Charging Party, 	"conduct unbecoming 	any District
administrator and, therefore, 	evidence of unlawful 	intent."
This 	argument 	is 	totally without basis 	in either 	fact or 	law
and 	is no 	support 	to Charging Party.
In summary, 	although the Charging Party has engaged in
protected conduct, 	there is no support for a finding that he
was 	disciplined 	for 	that 	protected 	activity. 	Charging 	Party
has 	not 	been able 	to 	show disparate treatment 	in either 	placing
him on paid 	leave or 	terminating him. 	There was 	no evidence
that 	other 	employees 	in similar circumstances were 	treated
differently. 	The 	only 	arguable departure 	from established
procedure was 	the District's 	inadvertence 	in omitting 	certain
documents 	from the disciplinary notice 	and 	the District's
offering 	certain 	rebuttal documents 	at 	Petrich's 	arbitration
hearing. 	The omission of documents 	from the notice was
corrected without prejudice to Petrich. 	It 	is 	also
unreasonable 	to 	attach unlawful motivation to 	the District's
offer of 	rebuttal documents 	at the arbitration, 	because until
the time of the arbitration, 	the District was unaware of
Charging Party's 	affirmative defenses.
The 	timing of 	the action 	is 	also 	insufficient 	to establish

. ..
21
a 	nexus 	since Charging 	Party has 	filed 	a 	steady barrage of
charges 	over 	a period of 	several years. 	Disciplinary action
taken 	at 	any given point 	in time would have 	followed 	shortly
behind the filing of a charge. 	That, 	by itself, 	does not
create 	an inference of unlawful 	action. 12 Furthermore, 	the
specific charges 	and grievances 	pointed 	to 	by Charging 	Party 	as
triggering events were either 	filed against his union, 	thus
having 	little, 	if any, 	impact upon the District, 	or filed after
the disciplinary 	action 	had 	already been decided 	upon.
Although Paynter did not 	conduct 	an 	independent
investigation of the allegations 	against Petrich, 	there was no
convincing 	evidence presented 	at 	the hearing 	that Hodnett's
claims 	against 	Petrich were 	in any way inaccurate or 	that 	an
investigation was warranted or 	even 	standard procedure 	in 	such
cases. 	Furthermore, 	Petrich had ample opportunity to 	refute
the District's 	allegations during two arbitrations, 	a Skelly
hearing 	and 	an unfair practice hearing 	and he has 	been unable
to do so.
Finally, 	the District has 	not offered 	inconsistent or
contradictory justifications 	for 	its 	actions 	against Petrich.
The District 	has 	consistently cited Petrich's 	attendance
1 2 In Charter Oak Unified School 	District 	(1984) 	PERB
Decision No. 	404, 	the Board noted that a 	"coincidence in time"
by itself 	is 	insufficient to prove unlawful motivation. 	Were
that the case, 	any employee who perceived that he or 	she might
be 	in danger of disciplinary action could 	shift 	the burden of
producing 	evidence merely by 	filing 	a 	grievance 	or 	unfair
practice charge.

22
records 	and nonperformance of work as 	assigned by Hodnett 	as
the 	reason for 	the disciplinary action taken against 	him.
Thus 	the Charging Party's 	case consists 	of 	nothing more
than unsupported 	accusations which do 	not create 	a nexus
between Charging 	Party's 	protected 	activity 	and 	the 	action
taken against him. 	The complaint 	should therefore be dismissed
for 	failure to establish a prima 	facie violation.
Assuming, 	for the sake of argument only, 	however, 	that
Charging 	Party had been 	able to establish 	a 	nexus 	and 	shift 	the
burden of proof to the District, 	the result would be the same.
The evidence 	supports 	a 	finding 	that 	the District 	followed 	a
rather moderate course of progressive discipline. 	This 	started
with counseling 	sessions 	and verbal warnings 	apparently having
little or no 	impact upon Charging 	Party's work performance or
attendance. 	That 	led to written warnings 	and an unpaid
suspension. 	Following his 	suspension, 	Petrich continued to
defy his 	supervisor's 	instructions 	and 	failed to 	improve his
attendance 	record, 	which 	led to his 	removal 	from the work site
and his dismissal. 	The 	record 	in this case clearly supports
the termination of 	Charging Party for 	just cause.
D. 	Unilateral Change
As 	an independent violation, 	Charging Party argues 	that 	the
District unilaterally altered Article 	19 	of 	the Collective
Bargaining Agreement 	by 	introducing 	into 	evidence 	at 	an
arbitration hearing documents which had 	not 	been 	included with
the disciplinary notice.

23
Section 3541.5(b) provides 	that:
The board 	shall 	not have 	authority to
enforce agreements between the parties, 	and
shall 	not 	issue 	a complaint on 	any charge
based upon 	alleged violation of 	such 	an
agreement that would not 	also 	constitute 	an
unfair practice under 	this 	chapter.
The 	leading case 	interpreting 	this 	section 	is 	Grant 	Joint
Union High School District 	(1982) 	PERB Decision No. 	196 where
the Board held:
The Act 	is designed to 	foster 	the
negotiation process. 	Such a policy is
undermined when one party to 	an 	agreement
changes 	or modified 	its 	terms without 	the
consent of 	the other party. 	PERB 	is
concerned, therefore, 	with the unilateral
change 	in established 	policy which
represents 	a conscious 	or 	apparent 	reversal
of 	a previous understanding, 	whether the
latter 	is 	embodied 	in a contract or evident
from the parties' 	past practice. 	[Citations
omitted.]
The Board went 	onto 	hold 	that 	in order 	to establish 	a 	prima
facie case of unlawful unilateral change in, 	or 	repudiation of,
a contract or past practice, 	the charging party must 	show:
(1) 	that the 	respondent has 	breached or otherwise 	altered the
party's written agreement 	or 	its 	own established past 	practice
and 	(2) 	that the breach constituted a change of policy having 	a
generalized effect 	or continuing 	impact 	on the 	terms 	and
conditions 	of 	employment of 	bargaining unit 	employees.
The Charging Party in this case has not met 	that burden.
The 	only policy or 	practice that Charging 	Party established 	on
the 	record 	is 	that 	the District 	is 	required to provide to
employees 	those documents 	upon which 	it basis 	its 	disciplinary

24
action. 	As 	also 	found by the 	arbitrator 	in 	interpreting
Article 	19 	of 	the contract, there 	is no evidence that this
policy 	limited 	the District's 	right 	to 	impeach Petrich's
testimony on 	rebuttal. 	It would be 	a nonsensical 	policy which
required the District to provide 	all 	rebuttal documents 	to 	an
employee's 	affirmative defenses 	at 	a 	stage 	in the proceeding
when the District 	had no 	knowledge whatsoever 	of 	those
affirmative defenses. 	The testimony of Aldrich that he could
not 	recall 	the District 	introducing 	similar documents 	during
two 	previous 	disciplinary arbitrations 	is 	not 	persuasive
evidence that 	such a 	standard exists. 	Charging Party has
therefore 	failed 	to demonstrate 	that 	the District 	breached or
altered portions 	of Article 	19 	of 	the contract or 	any
established past 	practice.
Furthermore, 	even if 	such a policy or practice had been
breached in Petrich's case, 	there is no evidence whatsoever
that the breach had 	a generalized effect or 	a continuing 	impact
upon terms 	and conditions 	of 	employment 	of 	bargaining unit
members. 	Quite the contrary is 	true. 	The District's 	actions
seemed to be 	limited to one arbitration regarding 	a 	single
employee. 	Thus this issue is 	at most a contract dispute,
remedial 	through 	arbitration or courts 	but 	not 	a violation of
the EERA. 	This 	allegation therefore must 	also be dismissed.
CONCLUSION
Although 	the Charging 	Party has 	engaged 	in protected
conduct of which the District was 	aware, 	there 	is no persuasive

25
evidence 	that 	the protected 	activity was 	a motivating 	factor 	in
the disciplinary action 	taken 	against 	him. 	The Charging 	Party
has 	also 	failed 	to demonstrate 	that 	the District unilaterally
altered Articles 	19 	and 	19.5.2 of 	the Collective Bargaining
Agreement 	by 	introducing 	impeachment 	documents 	in 	rebuttal
during 	Charging 	Party's 	dismissal 	arbitration.
PROPOSED ORDER
The complaint 	in this 	case 	is hereby DISMISSED.
Pursuant to California Administrative Code, 	title 8,
part III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final unless 	a party files 	a timely statement of
exceptions with the Board 	itself 	at 	the headquarters 	office 	in
Sacramento within 20 days of 	service of 	this Decision. 	In
accordance with PERB Regulations, 	the statement of 	exceptions
should 	identify by page citation or 	exhibit 	number 	the portions
of the record, 	if any, 	relied upon for such exceptions. 	See
California Administrative Code title 8, 	part III,
section 32300. 	A document 	is 	considered 	"filed" 	when actually
received before the close of 	business 	(5:00 p.m.) 	on the 	last
day set for filing, 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	.". 	See California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Code of
Civil 	Procedure section 	1013 	shall 	apply. 	Any statement of
exceptions 	and 	supporting 	brief must 	be 	served 	concurrently

26
with 	its 	filing upon each party to 	this 	proceeding. 	Proof of
service 	shall 	accompany each copy served on 	a 	party or 	filed
with 	the Board 	itself. 	See California Administrative Code,
title 8, part III, 	sections 32300, 	32305, 	and 32140.
Dated: 	June 5, 	1987
JAMES W. 	TAMM
Administrative 	Law 	Judge