Los Angeles Community College District (Mrvichin) (PERB 1091E)

2 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

GEORGE VLADIMIR MRVICHIN,
Charging Party, Case No. LA-CE-3346
Vv. PERB Decision No. 1091

LOS ANGELES COMMUNITY COLLEGE
DISTRICT,

March 16, 1995

Respondent.

Mee Mee ee ee et ee ee ee ee

Appearances: Charles A. Goldwasser, Attorney, for George
Vladimir Mrvichin; Office of the General Counsel by Camille A.
Goulet, Attorney, for Los Angeles Community College District.
Before Blair, Chair; Carlyle and Johnson, Members.
DECISION

JOHNSON, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by the Los Angeles
Community College District (District) of the administrative law
judge's (ALJ) proposed decision (attached). In the proposed
decision the ALJ determined that the District: (1) issued a
Notice of Unsatisfactory Performance to George Vladimir Mrvichin
(Mrvichin) who was an athletic trainer; (2) terminated his
employment as trainer at one of the schools in the District; and
(3) failed to rehire him as an instructor in the Physical

Education Department, in violation of section 3543.5(a) of the

Educational Employment Relations Act (EERA) .*

“EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. Section 3543.5 states, in pertinent
part:

2
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the proposed decision, 	transcript, 	exhibits, 	the
District's 	statement 	of 	exceptions 	and Mrvichin's 	response
thereto. 	The Board finds 	the ALJ's 	findings of 	fact and
conclusions 	of 	law to be 	free 	of prejudicial 	error and adopts
them as 	the 	decision 	of 	the 	Board 	itself 	in accordance with 	the
following 	discussion.
STATEMENT OF 	FACTS
Mrvichin 	is 	an athletic 	trainer and a 	teaching 	instructor
for the District. 	As 	such he 	is both a 	classified and
certificated employee of 	the District. 	He 	is 	a 	classified
employee 	because 	of 	his 	athletic 	trainer position and a
certificated 	employee because 	of 	his 	teaching 	assignments.2
Mrvichin has 	two 	immediate 	classified supervisors, 	Rudolph
Valles 	(Valles), 	dean of athletics, 	and Gilbert Rozadilla
(Rozadilla), 	athletic director. 	Mrvichin's immediate
certificated supervisor 	is Gerald Heaps 	(Heaps).
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.
2According 	to the charge, 	Mrvichin is 	employed 	full 	time as
a 	classified 	employee 	(athletic 	trainer) 	and as 	an hourly 	rate
certificated employee 	(instructor). 	PERB 	issued a 	complaint
which alleged 	that 	Mrvichin was 	"dismissed 	from his 	position."
"Position" 	meaning both 	classified 	and 	certificated.
2

3
Mrvichin 	actively participated 	in 	the 	protest 	against 	campus
President Omero Suarez' 	(Suarez) 	decision to discontinue
interscholastic 	football. 	As 	both a 	classified and 	certificated
employee, 	Mrvichin filed grievances. 	Mrvichin's 	complaint
alleges 	that 	in retaliation 	for participating 	in this protected
activity, 	protesting and filing grievances, 	the District
terminated his 	employment.
Mrvichin 	contends 	that 	the District 	used 	student 	trainer,
Xochilt Valdivia's 	(Valdivia) 	accusations 	to terminate him.
Valdivia 	filed a grievance 	and a 	sexual 	harassment 	complaint
against 	Mrvichin 	alleging 	improper 	conduct.
Initially, 	Valdivia's 	student 	grievance was 	handled by 	the
District's Ombudsman, 	Daniel Castro 	(Castro). 	During the
handling 	of 	Valdivia's 	suspension and name 	calling 	incident,
Mrvichin 	filed several 	grievances 	against 	Castro. 	Due 	to the
number of 	grievances 	filed by Mrvichin against 	Castro, 	College
President 	Suarez appointed Ron Dyste 	(Dyste), 	Dean of Student
Services, 	to handle Valdivia's complaints.
On August 	19, 	1993, 	the District 	tendered Mrvichin a
Notification of Unsatisfactory Performance, 	Statement 	of Charges,
and terminated him. 	The Notice 	of Unsatisfactory Performance, 	a
form located at 	page 	87 	in 	the 	Collective 	Bargaining Agreement
(CBA), 	has a signature line 	for both the 	immediate 	supervisor and
the next higher level 	supervisor. 	Heaps, 	Chair of 	the Men's
Physical 	Education Department, 	who worked for the District 	for 25
years 	and as Mrvichin's 	certificated 	supervisor, 	testified 	that
3

4
before a Notice of Unsatisfactory Performance 	is 	issued, 	it
should be 	discussed with 	the 	Chair of 	the Department.3
Mrvichin's 	two 	immediate 	classified supervisors, 	Rozadilla and
Valles, 	were not 	consulted regarding Mrvichin's 	termination.
Valles 	testified 	that 	he was 	not 	contacted by 	the 	District 	until
he was 	directed 	to 	sign Mrvichin's 	Notice 	of Unsatisfactory
Performance. 	Rozadilla did not 	sign the 	form.
Twenty-one days after his termination, 	Mrvichin, 	on
September 9, 	1993, 	filed with PERB an unfair practice 	charge
against 	the 	District 	alleging 	retaliatory discrimination.
ALJ'S 	PROPOSED 	DECISION
After hearing 	four days 	of 	testimony, 	the ALJ analyzed the
statements 	of 	the witnesses and compared the 	testimony of: 	(1)
Rozadilla versus Dyste, 	(2) 	Valles versus Suarez, 	(3) 	Valles
3Transcript, Volume II, pages 61-62:
Q. 	I want 	to ask you some questions about a
Notice 	of Unsatisfactory Performance. 	Would,
to your understanding, 	a Notice of
Unsatisfactory 	Performance 	ordinarily 	be
discussed with a Department 	Chair prior 	to
its 	being 	issued 	to an employee?
A. 	I would certainly hope 	so.
Q. 	Do you know if 	it's 	required by the
rules?
A. 	As 	far as 	I know it 	is.
Q. 	Would a Statement 	of 	Charges 	seeking an
employee's 	dismissal 	ordinarily be 	discussed
with a Department 	Chair prior 	to 	its 	being
issued?
A. 	It 	should be.
Q. 	Was 	either 	the Notice 	of Unsatisfactory
Performance 	that was 	issued to Mr. 	Mrvichin
or 	the 	Statement 	of 	Charges 	seeking his
dismissal 	that was 	issued to Mr. 	Mrvichin
ever 	discussed 	with you?
A. 	No.
4

5
versus Dyste, 	(4) 	Rozadilla versus Suarez, 	(5) 	Mrvichin versus
Dyste, 	(6) 	Heaps versus Dyste, 	and 	(7) 	Dyste versus Mrvichin.4
The ALJ found that Mrvichin, 	Rozadilla, 	Valles, 	and Heaps were
credible 	while 	the 	testimony 	of 	Suarez 	and Dyste was 	deemed not
credible. 	There were too many conflicts, 	inconsistencies and
problems 	with Suarez 	and Dyste's 	testimony.
Citing Novato Unified School District 	(19 82) 	PERB
Decision No. 	210 	(Novato) 	and a number of cases 	following it, 	the
ALJ assessed 	retaliation by 	the 	District 	against 	Mrvichin 	for
engaging 	in protected activity based 	on 	the 	following 	six
incidents: 	(1) 	Valdivia's petition to change her grade, 	(2)
Valdivia's student grievance, 	(3) 	Valdivia's sexual harassment
charge, 	(4) 	Mrvichin's performance as an athletic trainer, 	(5)
Mrvichin's performance as an instructor, 	and 	(6) 	Mrvichin's
termination. 	All 	of 	these 	six events 	occurred 	in a 	little more
than one 	school 	semester.
The ALJ's 	findings 	concluded 	that 	the 	District's 	departure
from its 	established procedures 	included: 	(1) 	changing Valdivia's
grade; 	(2) 	investigating Valdivia's sexual harassment 	complaint;
and 	(3) 	attempting 	to negatively 	influence 	the 	supervisor's
evaluation. 	Moreover, 	the ALJ also 	considered the District's
verbal 	expression of 	animosity toward Mrvichin. 	The ALJ 	inferred
a nexus 	between 	the 	adverse action 	taken by 	the District 	and
Mrvichin's protected activity 	(grievances and protest). 	Thus,
4For an 	in depth analysis 	see pages 	14-18 	of 	the ALJ's
proposed 	decision.
5

6
the ALJ 	concluded 	that 	ample 	evidence 	supports 	the 	finding 	that
the District's 	issuance 	of 	a Notice 	of 	Unsatisfactory 	Performance
and termination of Mrvichin as 	an athletic 	trainer, 	plus 	the
failure 	to 	rehire 	him as 	an 	instructor 	in 	the 	Physical 	Education
Department, 	violated section 3543.5(a) 	of EERA.
DISTRICT'S 	EXCEPTIONS
The District 	filed 24 	exceptions 	to 	the ALJ's proposed
decision which 	can be 	classified 	into 	eight 	areas:
(1) 	jurisdiction;5 (2) 	sexual harassment; 	(3) 	grade change;
(4) . performance evaluation; 	(5) teaching assignment;
(6) 	certification of hours; 	(7) 	credibility and finding of
inconsistent 	explanations; 	and 	(8) 	prior employment history.
The District urges 	that 	PERB 	"defer" 	jurisdiction over 	this
unfair practice 	charge pending a 	full 	adjudication 	of Mrvichin's
termination by 	the 	Personnel 	Commission of 	the 	Los 	Angeles
Community College District 	(PCLACCD). 	The District argues 	that
EERA section 3541.56 is 	instructive, 	in that 	it allows 	the Board
5See 	"Jurisdiction" 	discussion, 	below.
6EERA section 3541.5 provides, 	in pertinent part, 	that:
The 	initial 	determination as 	to whether 	the
charges 	of unfair practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate 	the purposes 	of 	this 	chapter,
shall 	be 	a matter within 	the 	exclusive
jurisdiction of 	the 	board. 	. . .
(a) 	Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the board
shall not . 	. 	.
6

7
discretion 	to 	assert 	jurisdiction 	for 	settlement 	and arbitration
awards 	and as 	such, 	the Board 	should defer ruling on this matter
until 	PCLACCD's 	decision.
The District 	contends 	the ALJ 	erred by 	finding 	that 	the
District 	departed 	from established procedures. 	Specifically, 	the
District 	excepts 	"to 	the 	finding 	that 	the District 	departed 	from
established procedures, 	and that 	the 	complaint 	is 	to go 	to a
hearing 	officer." 	The District 	asserts 	that 	they had 	the 	"duty
and 	the 	authority 	to 	address 	the problem directly" 	when 	the
complainant 	(Valdivia) 	refused to elect 	to go to 	factfinding.
The 	District 	also asserts 	the ALJ erred when he 	concluded
that 	"there was 	an 	inadequate 	investigation" 	regarding Valdivia's
grade 	change, 	and also when the ALJ concluded she 	filed a 	second
petition for a grade 	change. 	First, 	the District 	contends 	that
the 	investigation was 	adequate because Dyste 	reviewed 	the 	roster,
talked to students, 	talked to Mrvichin, 	and attempted to obtain
the 	syllabus. 	Additionally, 	the District asserts 	that when Dyste
reviewed 	the 	roster 	submitted by Mrvichin, 	he 	found 	some
inconsistencies with respect 	to 	"points" 	and subsequent 	grades
assigned 	to 	students.
(2) 	Issue a complaint against 	conduct also
prohibited by 	the provisions 	of 	the 	agreement
between the parties 	until 	the grievance
machinery of the agreement, 	if 	it exists and
covers 	the matter at 	issue, 	has been
exhausted, 	either by settlement 	or binding
arbitration.
7

8
The 	District 	contends 	that 	the ALJ erroneously prohibited
the 	District 	from putting 	on 	evidence 	which 	showed 	that 	Mrvichin
was 	terminated 	from a previous 	athletic 	trainer position with
another 	school 	district 	and 	that Mrvichin did not 	reveal 	this
information when applying 	for his 	position with 	the 	District.
According 	to the District, 	this 	evidence may independently
support Mrvichin's 	termination.
Concerning 	the ALJ's proposed remedy, 	the District 	also
objects 	to 	the ALJ's 	order 	involving Mrvichin's 	teaching
assignment. 	The District 	contends 	the 	PERB 	complaint was 	based
solely 	on Mrvichin's 	termination 	from his 	position 	as 	an athletic
trainer and 	it 	is 	improper 	to 	order make whole 	remedies 	relating
to any 	teaching 	assignments.
MRVICHIN'S 	RESPONSE TO THE 	DISTRICT'S 	EXCEPTIONS
Mrvichin 	responds 	by 	indicating 	that 	the District 	either
misread 	the ALJ's proposed decision, 	misunderstood 	the basis 	for
the 	introduction of 	certain evidence, 	or misunderstood the ALJ's
reasoning with 	regard 	to 	such 	evidence.
Mrvichin asserts 	that 	many of 	the 	exceptions 	noted by 	the
District 	fail 	simply on the 	credibility issue alone. 	Basically,
Mrvichin 	rejects 	the District's 	arguments 	and 	concurs 	in 	the
findings 	of 	the ALJ 	that 	the District 	retaliated against 	him when
it 	circumvented, 	abused, 	and avoided the District's process 	for
employee 	termination and 	administration 	of 	the 	Sexual 	Harassment
(S/H) 	Policy.

9
Mrvichin also asserts 	that 	since 	the District 	raises 	for the
first 	time 	on appeal 	"the argument 	that 	the District's 	Personnel
Commission 	should be 	allowed 	to 	rule 	on 	the 	disciplinary action
before 	PERB 	issues 	a 	final 	decision," 	the deferral 	issue 	should
not be heard. 	Mrvichin contends 	that 	there was 	"no 	earlier
suggestion, 	either informally or by motion, 	that 	this proceeding
(before 	PERB) 	should 	for some 	reason trail 	the 	Personnel
Commission." 	Moreover, 	Mrvichin argues 	that 	the deferral 	issue
was 	not 	raised 	for 	consideration before 	the ALJ and 	there 	was 	no
opportunity 	for 	the 	parties 	to 	respond by presenting 	evidence 	on
the District's 	deferral 	request.
Finally, 	Mrvichin asserts 	that 	the District was 	correctly
precluded 	from presenting 	after 	acquired 	information 	regarding
Mrvichin's 	termination 	from a previous 	position with another
school 	district. 	Therefore, 	Mrvichin requests 	PERB 	to uphold the
ALJ's 	decision.
DISCUSSION
The 	Board generally gives 	deference 	to ALJ's 	factual
findings 	that 	are based on 	credibility determinations. 	(Regents
of 	University of 	California v. 	Public 	Employment 	Relations 	Board
(1986) 	41 Cal.3d 601, 	617 	[224 Cal.Rptr. 	631].) 	In this case
many of 	the ALJ's 	findings are based, 	at 	least 	in part, 	upon
credibility determinations. 	After analyzing all 	the 	testimony,
the ALJ 	found 	that 	"there were 	too many witnesses 	with 	too many
statements 	in 	conflict with Dyste 	and Suarez."
With regard to cases 	of 	this nature, 	PERB has 	stated that:
9

[W]e must 	emphasize 	that 	credibility-
determinations play a vital 	role 	in 	the
consideration of 	this 	allegation. 	While we
are 	free 	to 	consider 	the 	entire 	record and
draw our 	own 	conclusions 	from the 	evidence
presented, 	we will 	afford deference 	to an
ALJ's 	findings 	of 	fact which 	incorporate
credibility determinations. 	Santa Clara
Unified School 	District 	(1979) 	PERB Decision
No. 	104. 	This appears to us to be a classic
instance where deference 	is 	appropriate.
(Los Angeles Unified School 	District 	(1988)
PERB Decision No. 	659, 	p. 	8.)
This 	rule 	recognizes 	the 	fact 	that 	by virtue of 	having witnessed
the 	live 	testimony, 	an ALJ is 	in a better position than the Board
itself 	to accurately make 	such determinations, 	because 	the Board
only 	reviews 	the written 	transcript 	of 	the hearing. 	(Temple 	City
- -
Unified School District 	(1990) 	PERB Decision No. 	841, 	p. 	5.) 	We
uphold 	the ALJ's 	finding 	that 	Suarez 	and Dyste were 	not 	credible
witnesses 	as 	to what 	transpired.
Discrimination
In order 	to prevail 	on a 	retaliatory adverse 	action charge,
Mrvichin must 	establish that: 	(1) 	he 	engaged 	in protected
activity, 	(2) 	the employer had knowledge of his protected
activity, 	(3) 	the employer took adverse action against him, 	and
(4) 	the 	employer 	took adverse action motivated by 	that 	activity.
(Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89
(Carlsbad); 	(Novato).) 	Unlawful motivation is essential to
Mrvichin's 	case. 	In the absence of direct evidence, 	proof 	of a
connection 	or 	nexus 	may be 	established by 	circumstantial 	evidence
and 	inferences 	can be 	drawn 	from the 	record as 	a whole.
10

(Livingston Union School District 	(1992) 	PERB Decision No. 	965;
Carlsbad.)
From Novato, 	and a number of 	cases 	following it, 	any host 	of
circumstances may 	justify an 	inference 	of unlawful 	motivation 	on
the part 	of 	the employer. 	Such circumstances 	include: 	(1)
departure 	from established procedures 	or 	standards 	(Santa 	Clara
Unified School District 	(1979) 	PERB Decision No. 	104); 	(2) 	the
timing of 	the adverse action in relation to 	the 	exercise 	of 	the
protected activity 	(North Sacramento School 	District 	(1982) 	PERB
Decision No. 	264 	(North Sacramento)); 	(3) 	inconsistent or
contradictory 	justification 	for 	the 	employer's 	actions 	(State 	of
California 	(Department of 	Parks and Recreation) 	(1983) 	PERB
Decision No. 	328-S); 	(4) 	the employer's disparate treatment of
the 	employee 	(State 	of 	California 	(Department 	of 	Transportation)
(1984) 	PERB Decision No. 	459-S); 	or 	(5) 	employer animosity
towards 	union activists 	(Cupertino Union 	Elementary 	School
District 	(1986) 	PERB Decision No. 	572).
Once 	an 	inference 	is made 	the burden of proof 	shifts 	to 	the
District 	to 	establish 	that 	it would have 	taken 	the 	action
complained 	of 	regardless 	of 	the 	employee's 	protected activities.
(Novato.)
Filing 	grievances 	and participating 	in 	employee
organizational 	activities 	is protected conduct. 	EERA
section 	3543 	permits 	any employee 	to present grievances 	to his
employer. 	(See also North Sacramento 	[filing grievance
considered 	protected 	activity].)
11

Knowledge 	of Mrvichin's 	protected activity 	is 	attributed 	to
the District. 	There 	is 	no question that 	the District was 	aware
of 	Mrvichin's 	participation 	in 	the protest 	against 	Suarez's
decision to discontinue 	interscholastic 	football. 	Moreover, 	the
District 	responded 	to Mrvichin's 	grievances.7 These 	issues
preceded Mrvichin's 	termination by 	several 	months.
Although timing of 	the adverse action alone 	is 	not
sufficient 	to justify an 	inference 	of 	unlawful 	motivation
(Charter Oak Unified School 	District 	(1984) 	PERB Decision
No. 	404), 	it may, 	when coupled with other factors, 	constitute a
basis 	for such conclusion. 	(Campbell 	Union High School 	District
(1988) 	PERB Decision No. 	701; 	Moreland Elementary School District
(1982) 	PERB Decision No. 	227.)
Several 	incidents 	were 	analyzed and assessed by 	the ALJ with
respect 	to 	the 	retaliation 	for Mrvichin's 	protected activity.
The ALJ analyzed Valdivia's petition 	for grade 	change, 	her
student 	grievance, 	and her sexual 	harassment 	charge. 	The ALJ
also 	evaluated Mrvichin's performance as 	athletic 	trainer, 	as
instructor, 	and his 	termination. 	The ALJ found that 	the
inferences 	which 	emerged 	from this 	chain of 	events 	compels 	the
conclusion 	that 	the District's 	actions 	were based 	in part 	because
of 	Mrvichin's 	protected activity.
In 	its 	exceptions 	the 	District 	contends 	the ALJ erred when
he 	found 	that 	the 	District 	departed 	from established procedures.
7The 	District 	did not 	dispute Mrvichin's participation 	in
the protected activities.
12

The District 	asserts 	that 	its 	sexual 	harassment procedures 	call
for the complainant, 	Valdivia, 	to elect to go to factfinding, 	and
when she declined to go 	to 	factfinding, 	the president 	of 	the
college 	had 	the 	authority 	to address 	the problem directly. 	Even
though the president 	of 	the 	college may have had 	the 	authority 	to
address 	a problem directly, 	he 	failed 	to 	explain why 	the District
had 	to depart 	from 	its 	own 	S/H 	Policy when Valdivia 	refused 	to
take 	her harassment 	complaint 	to 	factfinding.
Instead of using 	its 	own S/H Policy, 	the District 	terminated
Mrvichin via a Notice of Unsatisfactory Performance. 	The Notice
form contains 	a 	signature 	line 	for 	the 	immediate 	supervisor and
another 	signature 	line 	for the 	next 	higher level 	supervisor.
Rozadilla 	is Mrvichin's 	immediate 	classified supervisor, 	and
Valles 	is Mrvichin's next higher level 	supervisor. 	It 	is 	an
undisputed 	fact 	that 	neither Rozadilla 	or Valles 	were 	consulted
before 	the Unsatisfactory Notice was 	prepared.
The District 	takes 	exception to 	the 	relevancy of 	this 	fact
arguing 	that 	the 	S/H 	Policy does 	not 	call 	for 	the 	supervisor's
involvement. 	The District 	is 	correct. 	The S/H Policy does not
require 	the 	involvement 	of 	the 	employee's 	immediate 	supervisors,
and there was 	no 	such 	finding made by the ALJ.
The 	ALJ 	found 	that 	when 	the 	District 	investigated Valdivia's
sexual 	harassment 	complaint, 	Mrvichin's 	immediate 	supervisors
were not 	consulted. 	Valles, 	Dean of Athletics, 	and Mrvichin's
immediate 	classified 	supervisor, 	testified that 	when he was 	Dean
of 	Students 	he 	conducted an 	investigation 	of 	complaint 	of 	sexual
13

harassment pursuant 	to 	the District's 	S/H procedures. 	Valles
confirmed 	the 	fact 	that 	as 	Dean of 	Athletics 	he 	should have 	been
contacted by 	the 	person 	representing 	the 	student 	in 	the
grievances. 	Valles 	testified that 	the administration 	should
have, 	as 	a courtesy, 	contacted him but 	should not have directed
him to 	sign Mrvichin's 	Notice 	of 	Unsatisfactory Performance.
Likewise, 	Heaps, 	Chair of 	the Men's Physical Education
Department, 	worked for the District 	for 25 years. 	He testified
that 	before a Notice 	of Unsatisfactory Service 	is 	tendered to an
employee 	the 	signatures 	of 	the 	immediate 	supervisor and 	the 	next
higher supervisor are 	required on the 	form. 	Heaps was 	not 	asked
to 	sign the Notice 	of Unsatisfactory Performance.
The 	ALJ 	listed 	"departure 	from established procedures" 	as
one 	of 	five 	factors 	of 	circumstantial 	evidence he 	considered when
determining whether District 	animus 	was 	present.
The District 	also excepted to 	the ALJ's 	failure 	to make a
finding 	that 	the District 	had a 	legal 	obligation 	to 	address
incidents 	of 	sexual 	harassment 	and, 	after investigation of 	those
incidents, 	to 	lawfully terminate an employee based on 	findings 	of
misconduct 	toward a student. 	This 	exception is 	rejected. 	In
this 	case, 	Mrvichin provided sufficient 	evidence 	to demonstrate
that 	the 	District 	acted with unlawful 	motivation when 	it
terminated him. 	At 	that point, 	the burden shifted to 	the
District 	to demonstrate 	that 	it 	would have 	terminated Mrvichin as
a 	result 	of 	his 	improper conduct 	regardless 	of 	his 	participation
in protected activity. 	The 	District 	failed 	to provide 	sufficient
14

evidence 	in 	the 	record 	that 	showed 	cause 	to 	support Mrvichin's
termination.
The District 	argues 	that 	the ALJ erred 	in his 	finding 	that
the District 	conducted 	an 	inadequate 	investigation 	of 	Valdivia's
request 	for a grade 	change. 	The District 	contends 	that Valdivia
did not 	file 	a 	second petition. 	Whether Valdivia 	filed 	one 	or
two petitions 	for a grade 	change, 	or whether there was 	one
informal 	petition made 	orally 	in 	February and 	one 	formal 	written
petition in May, 	is not 	relevant 	to this 	case. 	What 	is 	relevant
is 	that 	Dyste 	and Suarez 	departed 	from the 	District's 	established
procedures 	and 	the 	Education Code8 when 	they 	changed Valdivia's
grade. 	The District 	contends 	that Dyste 	reviewed 	the 	roster,
talked to 	students, 	talked to Mrvichin, 	and attempted to obtain
the 	syllabus. 	At 	first blush this appears 	to be an adequate
investigation. 	However, 	what 	the District 	fails 	to disclose 	is
that when Dyste went 	to 	talk to Mrvichin regarding his 	roster,
Dyste 	failed 	to ask Mrvichin what 	the 	numbers 	on 	the 	roster
meant. 	Dyste 	testified that 	he assumed 	the numbers were
"points".
Dyste 	also 	testified 	that 	he 	talked 	to 	students 	in
Mrvichin's 	class. 	Out of 	the nine students, 	Dyste talked to four
of 	the students. 	Two of 	the students, 	Valdivia and her close
friend Losa, 	asserted that Mrvichin's 	grading policies were
arbitrary. 	A third 	student 	said 	the 	grading was 	fair while 	a
8Education Code 	section 	76224(a) 	allows 	the 	employer to
change a grade 	if 	there 	is a 	showing of bad faith.
15

.
fourth 	student 	said Mrvichin would grade 	a 	student 	on what
Mrvichin 	thought 	the 	student 	deserved, 	rather than the 	objective
grades 	they earned during 	the 	course.
Mrvichin gave Valdivia a 	class 	grade 	of 	"B." 	She wanted an
"A." 	Mrvichin testified 	that Valdivia 	did not 	take 	the 	final
exam nor did she 	complete 	the 	lecture 	requirements 	of 	the 	class.
Giving a 	student 	a 	"B" 	instead of 	an 	"A" 	who did not 	take a 	final
exam or 	complete 	the 	lecture 	requirements 	does 	not 	demonstrate
bad faith. 	Furthermore, 	Valles, 	Dean of Athletics, 	testified to
what 	the 	normal procedures are 	for a grade 	change. 	Valles 	stated
how the District 	did not 	follow its 	usual 	procedure. 	As 	a 	reason
for not 	following the District's normal procedures, 	Valles
advised 	that 	he 	was 	informed by 	the Vice 	President 	of 	Academic
Affairs 	that 	legal 	counsel 	had 	requested 	the grade 	change 	and,
thus, 	the president 	of 	the 	college ordered it. 	Once ordered,
Valdivia's 	grade was 	changed. 	Changing a grade via 	this method
is not 	the normal procedure. 	Thus, 	we uphold the ALJ's 	finding
that 	the District's 	investigation of Valdivia's 	grade 	change was
inadequate.
The 	District 	argues 	that 	the 	ALJ 	erroneously prevented 	the
District 	from presenting 	evidence which 	showed 	that 	Mrvichin was
terminated 	from a previous 	position 	as 	an athletic 	trainer with
another 	school 	district 	and 	that 	he 	did not 	reveal 	this
information when 	applying 	for his 	position with 	the District.
The District 	claims 	that 	this 	evidence may 	independently 	support
Mrvichin's 	termination. 	We 	reject 	this 	exception because 	the
16

District 	gave 	no 	indication 	that 	he 	was 	terminated 	from the
District 	for any misinformation 	in 	the 	application process.
Rather, 	the District 	repeatedly asserted that Mrvichin was
terminated because 	of 	improper 	conduct. 	The United States
Supreme 	Court 	recently ruled 	in McKennon v. 	Nashville 	Banner
Publishing Co. 	(January 23, 	1995) 	U.S. 	_ 	[63 	U.S.L. 	Week
41045] 	that 	evidence 	of wrongdoing 	is 	not 	itself a bar to all
relief 	sought by a victim of 	discrimination. 	Likewise,
information acquired after Mrvichin was 	hired was 	correctly
prohibited 	from use 	by the District.
The District 	objects 	to 	the ALJ's 	proposed 	remedy with
respect 	to Mrvichin's 	teaching assignment. 	The District 	contends
that 	the 	complaint 	was 	based 	solely 	on Mrvichin's 	termination
from his position as 	an athletic 	trainer and 	it 	is 	improper 	to
order make whole 	remedies 	relating 	to any teaching assignments.
The record, 	however, 	is 	replete with references to both
classified and certificated positions. 	In the 	charge, 	Mrvichin
lists 	himself 	as 	both a 	classified and 	certificated 	employee 	of
the District. 	At 	the hearing, 	Mrvichin testified that he was
terminated because 	Suarez 	was 	upset 	because he 	filed numerous
grievances 	- - 	two of which were 	in his 	capacity as a certificated
employee. 	The ALJ made 	several 	findings 	regarding Mrvichin as 	an
instructor, 	but makes no conclusion of 	law with respect 	to
Mrvichin in that position. 	Nevertheless, 	there 	is 	sufficient
evidence 	in the 	record to 	support 	a 	conclusion that Mrvichin was
17

terminated 	from his 	classified position as 	well 	as 	his 	teaching
position because 	of 	his 	union activity.
Pursuant 	to PERB Regulation 32320, 	the Board has 	the
authority 	to modify the ALJ's proposed decision. 	PERB
Regulation 32320 states, 	in pertinent part:
(a) 	The Board itself may:
(2) 	Affirm, 	modify or reverse 	the proposed
decision, 	order the 	record reopened 	for the
taking of 	further evidence, 	or take 	such
other action as 	it 	considers proper.
The 	District 	was 	put 	on notice 	that Mrvichin's 	termination
was 	related 	to his 	certificated position. 	Mrvichin held two
positions: 	(1) 	athletic trainer, 	classified position; 	and 	(2)
instructor, 	certificated position. 	During the 	first 	day of 	the
hearing, 	Mrvichin 	testified 	that 	he 	was 	both a 	certificated and a
classified employee. 	Mrvichin 	filed 	eight 	grievances 	pertaining
to 	the 	sexual 	harassment 	allegations. 	He also 	filed two
grievances 	as 	a 	classified 	employee 	and 	two 	as 	a 	certificated
employee, 	all unrelated to the 	sexual 	harassment 	incident.
Furthermore, 	Mrvichin testified 	that 	he was being dismissed
because 	"Dr. 	Suarez was upset with me 	[Mrvichin] 	for my filing of
grievances." 	The District 	was 	aware 	that Mrvichin 	filed
grievances 	as 	a 	certificated and classified employee, 	and
any professed 	confusion now 	strains 	the 	credibility 	of 	the
District.
Jurisdiction
Finally, 	the District 	contends 	that 	PERB should 	"defer" 	its
jurisdiction over 	this unfair practice 	charge until 	the 	PCLACCD
18

has 	had an 	opportunity 	to 	fully adjudicate Mrvichin's
termination. 	Termination of Mrvichin based on District 	animus
and 	termination 	of 	Mrvichin 	for 	cause 	are 	two 	separate 	and
distinct 	issues 	and should not be 	confused. 	PERB has 	exclusive
initial 	jurisdiction 	to 	consider unfair 	labor practices.
District 	animus 	is 	an unfair 	labor practice. 	EERA section 3541.5
states, 	in pertinent part:
The 	initial determination as. to whether the
charges 	of unfair practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate 	the purposes 	of 	this 	chapter,
shall 	be 	a matter within 	the 	exclusive
jurisdiction 	of 	the board.
(Emphasis 	added.)
In San Diego Teachers Assn. 	v. 	Superior Court 	(1979) 	24 	Cal.3d 1
[154 Cal.Rptr. 	893], 	the California Supreme Court recognized the
preemptive nature 	of 	PERB's 	jurisdiction. 	Where 	the 	courts 	have
said 	that 	PERB has 	exclusive 	initial 	jurisdiction even over 	the
court, 	PERB's 	jurisdiction requires 	deferral 	to a collectively
negotiated grievance 	and arbitration procedure.9 That 	is 	not 	the
case here. 	Accordingly, 	the District's 	jurisdictional 	exception
is 	rejected.
ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
the 	law and the 	entire 	record in this 	case, 	it 	is 	found that 	the
Los Angeles 	Community College District 	(District) 	violated the
Educational Employment Relations Act 	(EERA), 	Government
9Section 3541.5(a)(2). 	See also Lake Elsinore School
District 	(1987) 	PERB Decision No. 	646.
19

Code 	section 3543.5(a) 	by unlawfully: 	(1) 	issuing a Notice 	of
Unsatisfactory 	Performance 	to George Vladimir Mrvichin
(Mrvichin); 	(2) 	terminating his employment as the athletic
trainer at East Los Angeles Community College 	(ELACC); 	and
(3) 	delaying and/or withholding administrative approval 	of
certificated 	employment 	offered 	to him at 	ELACC 	for 	the 	fall
semester of 	1994.
Pursuant to EERA section 3541.5(c), 	it 	is hereby ORDERED
that 	the District, 	its officers and its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Imposing or threatening to 	impose 	reprisals,
discriminating or threatening 	to discriminate 	against, 	or
otherwise 	interfering with, 	restraining 	or coercing Mrvichin
because 	of 	his 	exercise 	of 	rights 	guaranteed by EERA.
2. 	Delaying 	and/or withholding 	administrative
approval 	of 	certificated 	employment 	offered 	to him at 	ELACC 	for
the 	fall 	semester of 	1994.
3. 	Issuing to Mrvichin a Notice 	of Unsatisfactory
Performance 	based 	on 	activities 	protected by EERA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE POLICIES OF. EERA:
1. 	Reinstate Mrvichin to his position as 	the 	athletic
trainer at 	ELACC 	and any 	lost 	opportunities 	to work as 	a
certificated 	instructor.
2. 	Rescind and destroy all 	copies 	of 	the Notice 	of
Unsatisfactory 	Performance 	issued 	to Mrvichin 	in 	September 	of
1993.
20

3. 	Delete 	from Mrvichin's personnel 	file any
reference 	to 	the Notice 	of Unsatisfactory Performance, 	Xochilt
Valdivia's sexual harassment complaint, 	or her grievance, 	and any
other writings 	that 	are 	inconsistent 	with 	this 	decision and make
no 	further use 	of 	such materials 	in any personnel 	action with
regard 	to 	him.
4. 	Pay to Mrvichin the 	salary that 	he 	lost 	as 	a
result 	of 	the unlawful 	termination. 	Such retroactive salary
award shall 	include 	interest at 	the 	rate 	of 	seven 	(7) 	percent per
annum.
5. 	Make Mrvichin whole 	for any other losses 	that 	he
may have 	suffered as 	a result 	of 	the District's 	unlawful 	action,
for example, 	loss of benefits, 	seniority credit(s), 	leave
credit(s), 	and reasonably expected overtime 	salary opportunities.
6. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no longer subject 	to reconsideration, 	post at
all 	work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the Notice attached as an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable steps 	shall be 	taken to ensure 	that 	the
Notice 	is 	not 	reduced 	in size, 	altered, 	defaced or covered by any
other material.
7. 	Written notification of 	the 	actions 	taken 	to
comply with 	this 	Order shall 	be made 	to 	the 	San 	Francisco
21

Regional 	Director of 	the 	Public 	Employment 	Relations 	Board 	in
accordance with the 	director's 	instructions.
It 	is 	further ORDERED 	that 	all 	other aspects 	of 	the 	charge
and 	complaint 	are 	hereby DISMISSED.
Member Carlyle 	joined 	in 	this 	Decision.
Chair Blair's 	concurrence and dissent begins 	on page 	23.
22

BLAIR, 	Chair, 	concurring and dissenting: 	I 	concur in the
determination 	that 	the 	Los 	Angeles 	Community College District
(District) 	violated section 3543.5(a) 	of 	the Educational
Employment Relations Act 	(EERA)1 when it 	terminated George
Vladimir Mrvichin 	(Mrvichin) 	from his position as 	an athletic
trainer. 	However, 	based upon a de novo review of 	the 	record,2 I
do not 	agree with all 	of 	the 	findings 	of 	the 	PERB administrative
law judge 	(ALJ). 	Furthermore, 	I dissent 	from the remedy ordered.
In 	its 	exceptions 	the District 	contends 	the ALJ 	erred when
he 	found 	that 	the 	District 	departed 	from established procedures
by 	failing 	to 	involve Mrvichin's 	immediate 	supervisors 	in 	the
investigation of 	the 	sexual 	harassment 	complaint. 	The District
argues 	that 	the 	sexual 	harassment 	complaint procedure does 	not
require 	the participation 	of 	the 	alleged 	offender's 	immediate
supervisor.
1EERA section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
2The 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
applies 	a de 	novo 	standard of 	review of 	cases 	on appeal 	and 	the
Board 	itself 	is 	free 	to draw its 	own conclusions 	from the 	record.
(Santa Clara Unified School 	District 	(1979) 	PERB Decision
No. 	104.)
23

Upon a 	review of 	the 	sexual 	harassment 	complaint 	procedure,
I 	find merit 	in the District's argument. 	The 	complaint procedure
requires 	a 	complaint 	to be 	filed with 	the 	sexual 	harassment
compliance 	officer who 	is 	responsible 	for developing an action
plan to resolve 	the 	complaint. 	There 	is 	nothing 	in the 	sexual
harassment 	complaint 	procedure 	which 	requires 	the 	involvement
of 	an employee's 	immediate 	supervisor. 	The 	employee 	grievance
procedure, 	set out 	in the parties' 	collective bargaining
agreement, 	however, 	begins with an employee's 	immediate
supervisor and 	can be 	appealed 	through various 	levels 	to 	the
college president.
Two 	of 	Mrvichin's 	supervisors 	testified 	that 	they had been
contacted 	in 	the past 	concerning grievances 	involving employees.
However, 	these 	supervisors 	did not 	indicate whether 	these
previous 	disputes 	involved 	employee 	grievances 	or 	sexual
harassment 	complaints. 	I 	conclude 	that Mrvichin has 	failed to
provide 	evidence which clearly 	shows 	that 	there 	is 	an 	established
practice 	in 	the District 	of 	contacting an employee's 	immediate
supervisor when a 	sexual 	harassment 	complaint 	has 	been 	filed
against an employee. 	Therefore, 	I would reverse this 	finding.
The District 	also 	contends 	the ALJ erred when he 	concluded
that 	the District 	granted Xochilt Valdivia's 	(Valdivia) 	petition
for a 	grade 	change 	"after a very 	cursory 	investigation."
Ron Dyste 	(Dyste), 	Dean of Student Services, 	investigated
Valdivia's petition 	for a grade 	change. 	Dyste 	testified 	that he
spoke 	with 	four 	students 	about Mrvichin's 	grading practices 	and
24

he 	obtained 	the 	class 	roster which 	contained the 	scores 	of 	all 	of
the 	students. 	In unrebutted 	testimony Dyste 	stated 	that Mrvichin
explained his 	grading point 	system to him. 	Mrvichin 	indicated
that 	assigned grades 	corresponded 	to 	a 	certain number 	of 	points
listed on the 	class 	roster. 	Dyste 	noted that 	the grades 	were not
consistent 	with 	the points 	written 	on 	the 	roster by Mrvichin.
Consequently, 	Dyste 	informed College 	President 	Omero 	Suarez
(Suarez) 	that 	the grading could have been arbitrary. 	Regardless
of whether Dyste and Suarez gave Valdivia the proper grade, 	I
believe 	there 	is 	sufficient 	evidence 	in 	the 	record to demonstrate
that 	the District 	did conduct more 	than a 	"cursory
investigation." 	Accordingly, 	I would reverse 	the ALJ on this
finding.
The 	District 	excepted 	to 	the 	fact 	that 	the ALJ 	ignored 	its
legal 	obligation to address 	incidents 	of 	sexual 	harassment 	and,
after 	investigation of 	those 	incidents, 	to lawfully terminate
an employee based on 	findings 	of misconduct 	towards 	a 	student.
Mrvichin provided sufficient 	evidence 	in 	this 	case 	to
demonstrate 	that 	the 	District 	acted with unlawful 	motivation when
it 	terminated his 	employment 	as 	an athletic 	trainer. 	At 	that
point, 	the burden shifted to 	the District 	to demonstrate 	that
it 	would have 	terminated Mrvichin as 	a 	result 	of 	his 	improper
conduct 	regardless 	of 	his 	participation 	in protected activity.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210.)
The District 	simply 	failed 	to put 	sufficient 	evidence 	in 	the
record 	to 	establish 	that 	it 	would have 	terminated Mrvichin
25

regardless 	of 	his protected activity. 	Therefore, 	I would dismiss
this 	exception.
In a related exception, 	the District argues 	that 	the ALJ
erroneously 	prohibited 	the 	District 	from 	submitting 	evidence
which 	showed 	that 	Mrvichin was 	previously 	terminated 	from an
athletic 	trainer position 	in another 	school 	district 	and 	that
Mrvichin did not 	reveal 	this 	information when applying 	for his
position with the District. 	The District 	implies 	that 	this
evidence 	may 	independently 	support 	Mrvichin's 	termination.
This 	exception 	is 	rejected because 	the District 	gave
no 	indication 	that Mrvichin was 	terminated because 	of 	any
misinformation in the application process. 	Rather, 	the District
repeatedly asserted 	that 	he 	was 	terminated because 	of 	improper
conduct 	in 	relation 	to a 	student.
Concerning 	the ALJ's 	proposed remedy, 	the District 	objects
to 	the ALJ's 	order 	regarding Mrvichin's 	teaching assignment. 	The
District 	contends 	the allegations 	in the 	complaint were based
solely 	on Mrvichin's 	termination 	from his 	position as 	an athletic
trainer and 	it 	is 	improper to order make whole 	remedies 	relating
to 	any 	teaching assignments.
Mrvichin was 	issued a Notice 	of 	Unsatisfactory 	Service 	on
or about August 	18, 	1993, 	and his termination from his athletic
trainer position was effective October 20, 	1993. 	Mrvichin was
not 	employed as 	an 	instructor at 	the 	time 	of his 	termination.
He 	testified that 	he was unable 	to 	teach during 	the 	fall 	1993
semester 	due 	to 	illness 	and he 	had not been 	offered a 	teaching
26

position for the 	spring of 	1994. 	The 	complaint 	references 	the
Notice 	of 	Unsatisfactory 	Service 	and Mrvichin's 	termination 	as
a 	result 	of 	his 	filing grievances. 	Mrvichin did not 	allege 	that
his 	teaching 	assignments 	were 	affected by his 	filing 	grievances
and there 	is 	insufficient 	evidence 	in the 	record 	to 	reach that
conclusion. 	Accordingly, 	I dissent 	from the remedy ordered and
would modify 	the 	remedy 	to 	exclude 	any 	order pertaining 	to
Mrvichin's 	teaching assignments.
Finally, 	the District 	contends 	that 	PERB should 	"defer" 	its
jurisdiction over 	this unfair practice 	charge 	pending 	completion
of 	the District's personnel 	commission appeals process.
PERB has 	exclusive 	initial 	jurisdiction to 	consider unfair
labor practices. 	EERA section 3541.5 	states, 	in pertinent part:
The 	initial 	determination as 	to whether the
charges 	of unfair practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate 	the purposes 	of 	this 	chapter,
shall 	be 	a matter within the 	exclusive
jurisdiction of 	the board.
(Emphasis 	added.)
In San Diego Teachers Assn. 	v. 	Superior Court 	(1979)
24 Cal.3d 1 	[154 Cal.Rptr. 	893], 	the California Supreme Court
recognized the preemptive nature 	of 	PERB's 	jurisdiction. 	Where
the 	courts 	have 	said 	that 	PERB 	has 	exclusive 	initial 	jurisdiction
even over the 	courts, 	PERB's 	jurisdiction must 	certainly prevail
over an administrative proceeding 	of 	the District. 	One 	exception
to 	PERB's 	exclusive 	jurisdiction requires 	deferral 	to a
27

collectively 	negotiated 	grievance 	and 	arbitration procedure.3
That 	is 	not 	the 	case here. 	Accordingly, 	this 	exception should be
dismissed.
3EERA section 3541.5(a)(2). 	See also Lake Elsinore 	School
District 	(1987) 	PERB Decision No. 	6.46.
28

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice 	Case No. 	LA-CE-3346,
George Vladimir Mrvichin v. 	Los Angeles 	Community College
District, 	in which all parties had the right to participate, 	it
has been 	found 	that 	the 	Los Angeles 	Community College 	District
(District) 	violated 	the 	Educational 	Employment 	Relations Act
(EERA), 	Government Code section 3543.5(a) 	by unlawfully: 	(1)
issuing 	a Notice 	of 	Unsatisfactory 	Performance 	to George Vladimir
Mrvichin 	(Mrvichin); 	(2) 	terminating his employment as the
athletic 	trainer at 	East Los Angeles Community College 	(ELACC);
and 	(3) 	delaying and/or withholding administrative approval 	of
certificated employment 	offered 	to him at 	ELACC 	for 	the 	fall
semester of 	1994.
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Imposing 	or 	threatening 	to 	impose 	reprisals,
discriminating 	or threatening 	to discriminate against, 	or
otherwise 	interfering with, 	restraining 	or 	coercing Mrvichin
because 	of 	his 	exercise 	of 	rights 	guaranteed by EERA.
2. 	Delaying and/or withholding administrative
approval 	of 	certificated employment 	offered 	to him at 	ELACC 	for
the 	fall 	semester of 	1994.
3. 	Issuing to Mrvichin a Notice 	of Unsatisfactory
Performance 	based 	on activities 	protected by 	EERA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	EERA:
1. 	Reinstate Mrvichin to his position as 	the 	athletic
trainer at 	ELACC and any 	lost 	opportunities 	to work as 	a
certificated 	instructor.
2. 	Rescind and destroy all 	copies 	of 	the Notice 	of
Unsatisfactory 	Performance 	issued 	to Mrvichin 	in 	September 	of
1993.
3. 	Delete 	from Mrvichin's personnel 	file 	any
reference 	to the Notice of Unsatisfactory Performance, 	Xochilt
Valdivia's 	sexual harassment 	complaint, 	or her grievance, 	and any
other writings 	that 	are 	inconsistent 	with 	this 	decision and make
no 	further use 	of 	such materials 	in any personnel 	action with
regard 	to 	him.

2
4. 	Pay 	to Mrvichin the 	salary that 	he 	lost 	as 	a
result 	of 	the unlawful 	termination. 	Such retroactive 	salary
award shall 	include 	interest at 	the 	rate 	of 	seven 	(7) 	percent per
annum.
5. 	Make Mrvichin whole 	for any other losses 	that he
may have 	suffered as 	a 	result 	of 	the District's 	unlawful 	action,
for example, 	loss of benefits, 	seniority credit(s), 	leave
credit(s), 	and reasonably expected overtime salary opportunities.
Dated: 	LOS ANGELES 	COMMUNITY
COLLEGE 	DISTRICT
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
2

\_
STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GEORGE 	VLADIMIR MRVICHIN,
Charging 	Party,
v.
LOS ANGELES 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-3346
PROPOSED DECISION
(8/23/94)
)
)
)
)
)
)
)
Appearances; 	Charles A. 	Goldwasser and Corey W. 	Glave,
Attorneys, 	for George Vladimir Mrvichin; 	Camille A. 	Goulet and
Martha A. 	Torgow, 	Attorneys, 	for Los Angeles Community College
District.
Before Allen R. 	Link, 	Administrative Law Judge.
INTRODUCTION
This 	case 	involves 	the 	dismissal 	of 	the athletic 	trainer,
George Vladimir Mrvichin 	(Mrvichin), 	at East Los Angeles
Community College 	(ELACC), 	one of 	the campuses 	of 	the Los Angeles
Community College District 	(District). 	He was heavily involved
in 	the protest 	against 	campus 	President 	Omero Suarez's 	(Suarez)
decision 	to discontinue 	interscholastic 	football. 	In addition to
his 	classified employee duties as a trainer, 	since 	1988, 	he was a
certificated 	instructor.
One of his student 	trainers, 	Xochilt Valdivia 	(Valdivia),
petitioned to 	raise a grade. 	Shortly after he 	denied 	it 	she
filed both a 	student 	grievance 	and a 	sexual 	harassment 	charge
against 	him asking 	for money damages, 	alleging he 	chased her
around a 	training 	room, 	grabbed and spanked her, 	and called her a
"bitch."
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.

2
President 	Suarez 	and Dean of 	Student 	Services 	Ron Dyste
(Dyste), 	after an abbreviated investigation, 	determined that
Mrvichin was 	guilty of 	the 	charges 	and 	terminated his 	employment.
Concomitant with this 	investigation, 	Dyste and Suarez brought
pressure 	to bear on several 	of Mrvichin's 	supervisors 	to 	change
otherwise 	favorable performance 	ratings.
PROCEDURAL 	HISTORY
On September 9, 	1993, 	Mrvichin filed an unfair practice
charge 	against 	the District 	alleging violations 	of 	subdivision
(a) 	of section 3543.5 which is a part 	of 	the Educational
Employment Relations Act 	(EERA or Act).1
On September 27, 	1993, 	the Office of the General Counsel of
the Public Employment Relations Board 	(PERB or Board), 	after an
investigation of 	the 	charge, 	issued a 	complaint 	alleging
violations of subdivision 	(a) 	of section 3543.5.
On October 29, 	1993, 	an informal 	conference was held in an
attempt 	to 	reach voluntary 	settlement. 	No 	settlement 	was
reached. 	On November 2, 	1993, 	the respondent 	filed its answer to
the 	complaint.
1EERA is 	codified at Government Code 	section 3540 	et 	seq.
All 	section references, 	unless otherwise noted, 	are to the
Government Code. 	Subdivision 	(a) 	of 	section 3543.5 	states 	that
it 	shall 	be 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. 	. 	. 	.
2

3
A formal 	hearing 	was 	held by 	the 	undersigned 	on 	February 	22
through 24 	and March 11, 	1994. 	Each side 	filed post-hearing
briefs. 	The last brief was 	filed on May 26, 	1994, 	and the case
was 	submitted 	for a proposed decision at 	that 	time.
JURISDICTION
The parties 	stipulated 	that 	the 	charging party 	is 	a public
school 	employee 	and 	the 	respondent 	is 	a public 	school 	employer
within the meaning of 	section 3540.1.
FINDINGS 	OF 	FACT
I. 	Football 	Program Suspension Proposed by Suarez
In the beginning of 	1993 	Suarez proposed the 	suspension of
the 	ELACC 	football 	program. 	A number of 	students 	and 	employees
organized a series 	of protests. 	Mrvichin, 	Gilbert Rozadilla
(Rozadilla), 	ELACCs athletic director, 	Rudolpho Valles 	(Valles),
E L A C C s 	dean of 	athletics, 	along with other coaches 	and allied
personnel, 	were at 	the forefront of 	this protest.
Mrvichin had an 	especially high profile 	due 	to 	his 	multiple
grievances, 	which were based on Suarez's 	alleged 	failure 	to
follow the principles 	of 	shared governance of 	the 	college, 	as
well 	as 	his 	habit 	of 	extensively 	researching his 	charges 	and
alleging 	specific violations 	of 	regulations and statutes. 	The
protest 	caught 	the 	interest 	of 	the Los Angeles Times. 	as well 	as
the 	campus 	newspaper, 	creating 	considerable negative public
opinion towards Suarez's action(s).
Despite 	these 	protests 	and negative public 	opinion 	the
football 	program was 	ultimately 	eliminated.
3

4
II. 	Petition for Grade 	Change
Valdivia was 	a 	student 	trainer, 	working under the
supervision of Mrvichin. 	She was 	also a 	student 	in his 	beginning
athletic 	training 	course.2 In the 	fall 	of 	1992 	she 	received a
grade 	of 	"B" 	from him. 	She petitioned for an 	increase 	to a grade
of 	"A." 	This petition followed the usual 	college grade appeal
procedures. 	Mrvichin denied the petition, 	as 	did his 	two
immediate 	scholastic 	supervisors, 	Physical 	Education Department
Chair Gerald Heaps 	(Heaps), 	and Dean of Academic Services 	Ed
Mitchell 	(Mitchell). 	She was notified that her petition was
denied.
Later, 	she 	filed a 	second petition for a higher grade. 	This
petition was 	handled 	in a manner 	that 	totally 	circumvented 	the
usual 	procedures. 	Dyste was 	assigned to 	investigate 	the matter.
He 	testified 	that 	he 	attempted 	to 	call 	nine 	students 	in
Valdivia's 	class, 	but spoke to only four of them. 	Two, 	Valdivia
and her 	friend and witness 	to all 	of 	her allegations 	against
Mrvichin Sherrie Losa 	(Losa), 	said that Mrvichin's grading
policies 	were 	arbitrary. 	A third 	said 	the 	grading policy was
fair. 	The 	fourth, 	according to Dyste, 	said Mrvichin would grade
students 	based on what he 	thought 	they deserved, 	rather 	than the
objective 	grades 	they earned during 	the 	course.
2Rozadilla was 	told by Mrvichin, 	at 	some 	time 	"long before"
either her grievance 	or her 	sexual 	harassment 	charge 	was 	filed,
that Valdivia was 	a 	"problem" 	student.
4

5
On the basis 	of 	this 	"investigation," 	Dyste determined that
there 	was 	bad 	faith 	on Mrvichin's 	part 	and 	recommended 	to 	Suarez
that Valdivia's grade be. changed from a 	"B" 	to an 	"A."
However, 	on October 25, 	1993, 	Suarez wrote Ernest Moreno,
vice president 	for academic affairs, 	directing him to 	change 	the
grade due to, 	among other things, 	he had 	"been advised that Mr.
Mrvichin agreed to 	change Ms. 	Valdivia's 	grade 	to an 	'A' 	during
meetings 	last 	spring 	semester, 	reversing his previous denial 	of
her Grade 	Petition." 	Mrvichin denies 	he agreed 	to 	the 	change but
admits 	to a discussion of 	this possibility as 	a part 	of 	a
settlement 	of 	the 	sexual 	harassment 	suit.
Eventually Valles was 	told 	that 	the District's 	legal 	counsel
and Suarez were 	ordering him to 	change Valdivia's 	grade. 	Under
these 	circumstances 	he had no 	choice but 	to 	comply and make 	the
grade change.
In a related matter, 	Rozadilla, 	after Mrvichin's
termination, 	was 	ordered to give Valdivia a meritorious
certificate 	for having spent 	900 hours, 	instead of 	300, 	on school
athletic 	endeavors.3 Rozadilla 	refused 	to 	sign 	the 	ordered
certificate, 	preparing it, 	instead, 	for Suarez's signature. 	He
was 	never 	given any 	reason why 	Suarez 	believed 	such 	certificate
was 	warranted. 	Suarez was 	never asked about 	this matter during
his 	testimony.
3Mrvichin had previously given 	her a 	certificate 	for 	only
3 00 hours.
5

III. 	Valdivia's Student Grievance
Valdivia 	filed 	a 	student 	grievance 	over a previous
suspension by Mrvichin of 	her as 	a 	student 	trainer. 	As 	a part 	of
this 	same grievance, 	she 	included an allegation that 	he had
called her a 	"bitch." 	She 	filed 	the 	charge with Daniel 	Castro
(Castro), 	ELACC's ombudsman. 	Eventually Dyste was substituted
for Castro's replacement, 	as ombudsman, 	but only for this case.4
Dyste 	spoke 	to Valdivia, 	Losa and Mrvichin. 	According to
Dyste, 	all 	she wanted was 	an apology and the matter entered 	into
his personnel 	record. 	During the period of 	time 	that Dyste was
acting as 	an ombudsman for 	the grievance procedure, 	he attempted
to get Valdivia and Mrvichin to agree 	to a 	settlement 	of 	their
dispute. 	Mrvichin 	consistently maintained 	that 	the 	only 	reason
for 	the 	grievance was 	retaliation 	for his 	having previously
suspended5 her as 	a 	trainer and 	for the 	"B" 	she 	received. 	Dyste
admitted 	that 	some 	of 	the 	information 	that 	he 	obtained while
operating as 	a 	temporary ombudsman was 	used 	to 	support Mrvichin's
eventual 	termination notice.
Eventually she withdrew the grievance, 	according to Dyste,
because 	she was 	frustrated 	that 	the grievance process, 	which was
running parallel 	to the 	sexual 	complaint process, 	seemed to be
"bouncing her between the 	two" 	and was 	taking 	too 	long.
4The 	reason 	for 	this 	substitution was 	a 	grievance Mrvichin
filed against 	Castro 	regarding 	the manner 	in which he processed
Valdivia's 	student 	grievance.
5There was 	no evidence proffered as 	to 	the 	reasons 	for such
suspension.
6

7
IV. 	Sexual Harassment Charge
ELACC has a sexual 	harassment policy 	(S/H Policy) 	that
contemplates 	the utilization of 	a 	campus 	sexual 	harassment
compliance officer, 	Rose Najar 	(Najar). 	It sets 	forth four
steps, 	the 	last 	of which 	is a 	formal 	fact-finding procedure
before a hearing 	officer, 	chosen jointly by the 	"affected
parties" 	and the Office 	of 	Employer-Employee Relations. 	The 	S/H
Policy has 	very 	specific 	timelines 	controlling when notices 	shall
be 	served and when various 	other steps 	shall be 	taken. 	The 	first
two 	steps 	are described as 	a part 	of 	an 	informal 	resolution
process. 	The 	third 	is a more 	formal mediation process 	in which
the 	sexual 	harassment 	compliance 	officer, 	along with another
member of 	the administration, 	attempts 	to mediate 	the dispute.
Specific 	sections 	are 	devoted 	to 	the 	scheduling and 	the minute-
taking of 	such mediation meetings. 	If this 	step fails, 	or if 	the
alleged offender elects not 	to participate 	(emphasis added), 	the
administrators 	are 	to 	submit 	a 	report 	and advise 	the 	complainant
of 	procedures 	for 	filing a 	request 	for 	fact-finding. 	The process
before 	the 	hearing 	officer 	contemplates 	the 	testimony of
witnesses 	and the production of 	records. 	The hearing officer's
decision is 	final 	and binding on the parties.
Valdivia 	filed her charge on February 24, 	1993, 	and although
it was not 	entered into the 	record, 	there was 	evidence 	that 	she
complained of Mrvichin 	(1) 	calling her a 	"bitch,"6 (2) 	chasing
6Mrvichin insists 	that 	he never 	called her a 	"bitch," 	but
rather 	told her 	to 	"stop acting 	like 	a bitch." 	At 	a meeting 	of
ELACCs 	trainers' 	club, 	Valdivia was verbally attacking both
7

after her and spanking her, 	and 	(3) 	grabbing his 	crotch in an
obscene manner.7
According 	to Suarez 	and Dyste, 	Najar 	(she 	did not 	testify)
complained about Mrvichin's 	lack of 	cooperation 	in her
investigation. 	It 	is 	true 	that he 	filed eight grievances against
her, 	citing alleged violations 	of 	the S/H Policy timelines, 	but
no 	evidence 	was 	proffered by 	either 	side 	regarding 	the 	specifics
of 	the manner 	in which she 	followed the appropriate procedures.
Suarez 	insisted he 	stepped 	in because 	of 	the 	long 	delay between
the 	filing of 	the 	complaint 	and the hearing. 	No evidence was
proffered by 	either 	side 	as 	to which 	step 	the 	S/H 	Policy 	reached.
Nor was 	any evidence brought 	forth 	regarding any specifics 	of
Mrvichin's 	"lack of 	cooperation." 	However, 	it was 	clear that no
formal hearing was 	ever held; 	therefore, 	no findings of 	fact were
ever issued by a hearing officer, 	ELACC, 	or the District.
Suarez, 	in an informal discussion, 	while the process was
ongoing, 	urged Mrvichin to participate 	in the 	sexual 	harassment
procedure. 	During 	that 	conversation Mrvichin, 	according to
Suarez, 	admitted 	that 	he 	had picked up Valdivia and grabbed her
rear end.8 Suarez 	does 	not 	remember anything about 	spanking
Mrvichin and Cessie Alvarado, 	an unidentified 	ELACC 	student 	or
employee. 	Mrvichin told her to quiet 	down. 	She 	refused to do
so. 	After repeatedly trying to get her to 	calm down, 	he 	told her
to 	"stop acting 	like 	a bitch."
7Mrvichin denies 	the 	obscene gesture 	charge. 	At 	the very
most, 	he asserts, 	he was just adjusting his trousers.
80n February 25, 	1993, 	Mrvichin had a physical ailment 	that
caused him to 	suffer 	from diarrhea. 	An attack 	came 	on while
Valdivia and Losa were 	complaining 	to him about 	something. 	He
8

9
being a part 	of 	the 	charge 	or admission. 	Mrvichin denies 	he made
an admission of 	any sort 	to him at 	that 	or any other 	time.
Suarez 	had heard that Valdivia was 	going 	to 	sue 	the District, 	but
insists 	that neither that 	fact, 	nor Mrvichin's participation in
the 	football 	grievance process 	influenced his 	decision 	to
terminate 	him.
On October 14, 	1993, 	after he had been terminated, 	Mrvichin
learned 	from the District's 	attorneys 	that 	the 	sexual 	harassment
charge had been dropped. 	There 	is 	no 	evidence 	in 	the 	record with
regard to whether the 	charges were dropped as 	a part 	of 	a
settlement, 	but 	in her testimony before 	the unemployment
administrative 	law judge, 	Valdivia admitted 	to 	receiving 	$18,000
from the District.
Rozadilla and Valles, 	Mrvichin's 	two 	immediate 	supervisors,
stated that 	he 	(Mrvichin) 	had no past 	history of making 	sexual
comments, 	gestures 	or 	inappropriate 	language around the 	female
trainers. 	To the 	contrary, 	Rozadilla remembered Mrvichin
told them that 	he had 	to go 	to 	the men's 	room. 	They 	insisted
that he 	stay and listen 	to 	their 	complaints. 	He 	repeated his
insistence 	that 	he had to leave. 	They continued to block the
way. 	He pushed them out 	of 	the way and went 	directly 	to 	relieve
himself, 	but not before he soiled his pants. 	This, 	according to
Mrvichin, 	was 	the 	only behavior he 	engaged 	in that 	could remotely
be 	connected 	to 	the 	"grabbing and 	spanking" 	allegation.
At 	the 	unemployment 	insurance 	appeals 	hearing Valdivia 	and
Losa 	testified about 	Mrvichin 	running 	after 	and 	spanking
Valdivia, 	although Losa 	stated Mrvichin put Valdivia across 	his
lap and Valdivia testified that 	he put 	her across 	a 	table. 	Both
Valles and Rozadilla 	testified that Mrvichin, 	due 	to 	(1) 	his
size, 	he is considerably overweight, 	and 	(2) 	a bad knee, 	is
unable to run at all.

admonishing 	the 	football 	players 	when 	they were 	around 	the 	female
trainers by insisting, 	"Let's be gentlemen."
Even though 	(1) 	they were Mrvichin's 	immediate 	supervisors
and 	(2) 	the 	alleged misconduct 	occurred 	in an area over which
they were 	directly 	responsible, 	neither Valles 	nor Rozadilla were
involved or even consulted by either Dyste 	or Suarez, 	in any
manner, 	about Valdivia's 	sexual harassment 	charge.
V. 	Mrvichin's 	Performance 	as 	ELACC's 	Athletic 	Trainer
Mrvichin 	consistently 	received 	good 	to 	glowing 	performance
reports with regard to his 	job as 	a trainer. 	However, 	despite
this unconditional approval of his 	immediate supervisor(s), 	Dyste
tried 	to pressure both of 	them into modifying Mrvichin's 	late
spring 	1993 	performance 	evaluation. 	He 	told Rozadilla 	that 	the
evaluation was a thorn in their 	(Dyste and Suarez) 	side. 	He
wanted Mrvichin 	to 	get 	an overall 	rating 	of 	"unsatisfactory."
Valles 	testified 	to 	his 	conversation with Dyste 	regarding
this matter as 	follows:
Q. 	Did he 	tell you 	-- 	I don't know how
to say this. 	Did he 	implore you to 	change
the 	evaluation?
A. 	He did , 	so I sort of 	- - 	and if I
might use 	the 	little vulgar words, 	with your
permission. 	"You got 	to change 	this 	'cause
otherwise 	Omero's 	going 	to be very pissed
and going 	to be very pissed at you, 	and
you're, 	you know 	-- 	you're going to be 	in a
bad 	light 	with Omero."
Q. 	And Omero 	is who?
A. 	Dr. 	Suarez, 	the President of the college
at 	that 	time. 	And I proceeded to tell 	him,
I 	says, 	"I'm not 	changing 	it. 	If you want 	to
make amendments, 	you'll have that 	right 	if you
10

want 	to, 	but 	I'm not 	going 	to do anything with
that."
Dyste 	denied 	that 	he 	demanded 	the 	evaluation be 	changed.
However, 	he does admit that he questioned the ratings. 	He
insists 	that 	he 	learned 	of 	things 	about Mrvichin's 	performance
while 	he 	was 	investigating Valdivia's 	grievance 	that made 	him
question his abilities as 	a trainer. 	He reiterates 	that he did
not 	demand that Valles make 	changes 	"because 	I 	intended to 	review
his 	performance myself." 	He 	insists Valles 	was 	"kind of 	. . .
cooperative 	. 	. 	. 	there was no tension over this."
VI. 	Mrvichin's 	Performance as an ELACC Instructor
Heaps, 	Mrvichin's 	immediate 	certificated supervisor,
consistently 	gave 	him good 	evaluations 	as 	an 	instructor.
Heaps was not 	involved, 	nor consulted in any manner, 	in the
sexual 	harassment 	charge.
In fact, 	Heaps 	thought 	enough of Mrvichin's 	teaching
abilities 	to 	offer him an 	instructor's 	position 	for 	the 	fall
semester of 	1993. 	However, 	the class was 	cancelled due to an
insufficient 	student 	enrollment, 	although the history of physical
education 	courses 	at 	ELACC 	shows 	that many 	students 	sign up 	for
classes after the 	start 	of 	the 	semester. 	There was 	insufficient
evidence 	educed at 	the hearing 	to make 	a determination as 	to
whether such 	class was prematurely 	closed. 	Mrvichin was 	not
offered a 	teaching position 	for the 	spring of 	1994, 	but was
offered one pending administrative 	approval 	for 	the 	fall 	semester
of 1994.
11

VII. 	Mrvichin's Termination
In August 	1993 	Mrvichin was 	given a Notice 	of 	Unsatisfactory
Performance 	and 	terminated. 	Neither his 	classified nor
certificated 	supervisors 	were 	involved 	in 	the 	investigation prior
to the preparation of 	this notice, 	although Valles was 	directed
to 	sign the document. 	Valles 	testified, 	with regard to the
manner 	in which he was 	directed to affix his 	signature 	to 	the
notice, 	as follows:
Q. 	Well, 	who said 	"sign it?"
A. 	Mr. 	Dyste 	is the one.
Q. 	Okay.
A. 	Dyste 	is 	the Dean of Students. 	And
I 	looked and I 	says 	-- 	I wasn't 	even comfort-
able with it once 	I 	started to read some of
it. 	To this date 	I don't 	even recall 	every-
thing that was 	said, 	but 	I was not comfortable
with it.
Q. 	Why Not?
A. 	It had to do with a complete, 	I think, 	of
unsatisfactory 	service 	and 	it 	was 	the 	final
stage, 	I would have to say, 	for firing Mr.
Mrvichin. 	I was 	told in a harsh voice, 	loud
voice, 	and came very close 	to my face 	sort 	of
like reaching over and saying, 	"Sign it. 	You
got 	to sign this." 	And saying 	that 	I 	knew that
George was 	guilty and had done 	all 	these wrong
things. 	And if I didn't sign it, 	"Omero is
going 	to be very pissed at you and you know how
he 	is." 	And I 	took that as 	a threat 	to me and my
position 	and my 	livelihood.
Q. 	Did you 	sign 	it?
A. 	I 	felt 	that 	I had no choice. 	I 	signed it.
Q. 	When he said to you, 	"you know how he 	is,"
referring to Dr. 	Suarez, 	what did you understand
him to mean? 	I mean how did 	- - 	what did you
understand Mr. 	Dyste to mean when he said, 	"you
12

know how he is," 	referring to Dr. 	Suarez?
A. 	Well, 	the impression that 	I had, 	and distrust
and behavior, 	was 	that 	I would be 	retaliated on
if 	I refused.
Dyste 	denies 	this 	conversation ever occurred. 	He 	said he
and Valles 	worked 	on Mrvichin's 	Notice 	of 	Unsatisfactory
Performance 	together. 	He believed 	that Valles 	agreed with 	the
notice.
VIII. 	Unemployment 	Insurance Appeals 	Hearing
Mrvichin was 	awarded unemployment 	insurance benefits 	after
his termination. 	ELACC appealed. 	On December 22, 	1993, 	a
hearing 	was 	held before 	Unemployment 	Insurance Administrative 	Law
Judge 	(ALJ) 	Catherine Leslie. 	Mrvichin was 	represented by an
attorney, 	Charles Goldwasser. 	The District was 	represented by
two employee 	relations 	officers, 	Karen Billings and Herbert
Spillman.
These two officers, 	Valdivia, 	Losa and Mrvichin all
testified. 	Valdivia admitted that many of 	the allegations 	she
related at 	the hearing were 	not 	reported 	to 	the District 	until
she 	filed her sexual 	harassment 	complaint. 	In at 	least 	one 	case
this was 	three 	to 	five months 	after 	they allegedly 	occurred.
Other 	incidents 	were 	not 	reported until 	four to 	seven days 	after
they occurred. 	Although Goldwasser was 	able 	to 	cross-examine 	the
District's witnesses, 	the ALJ made 	it quite 	clear that 	the 	scope
of 	such 	cross-examination was 	restricted.
Mrvichin denied all 	of Valdivia's 	charges 	except 	the 	one
regarding 	the use 	of 	the word 	"bitch" 	which he 	explained 	in
13

context. 	There was 	no evidence proffered regarding 	the 	outcome
of 	the unemployment 	insurance appeals 	hearing.
VIII. 	Credibility Conflicts
A. 	Rozadilla versus Dyste 	- 	Rozadilla 	testified that Dyste
conveyed 	to him the 	feeling 	that 	he 	(Dyste) 	and Suarez 	resented
the 	fact 	that Mrvichin 	filed grievances 	against 	the 	football
suspension. 	Dyste 	told Rozadilla he 	should 	control 	Mrvichin and
should persuade him to back off 	on the grievances. 	Rozadilla
refused 	to do 	so. 	He 	told Dyste 	that Mrvichin had every right 	to
file 	a grievance. 	This 	conversation occurred 	in the 	spring 	of
1993.
Dyste denies 	this 	conversation ever occurred, 	but believes
Valles may have 	called Rozadilla and made 	such demands.
B. 	Valles versus Suarez 	- 	1. 	Valles says Suarez
complained about 	Mrvichin 	filing 	grievances.
Suarez 	says 	he does 	"not 	recall making 	that 	statement."
2. 	Valles 	also 	stated that 	Suarez 	told him that 	he
(Valles) 	was not a good supervisor because he 	let people
complain.
Suarez 	denies making 	this 	statement.
3. 	In November of 	1992, 	Valles 	told Mrvichin that
Suarez's 	attitude 	toward 	the 	entire 	athletic department 	was 	very
negative 	and 	that 	everyone 	in the department, 	Valles 	and Mrvichin
included, 	should watch themselves 	and not 	give 	him any 	reason 	to
act 	on this 	attitude. 	A number of 	times 	during 	the 	spring
semester 	of 	1993 	Valles 	told Mrvichin 	that 	he 	should watch
14

himself because 	Suarez did not 	like him 	(Mrvichin) 	and that 	he
(Suarez) 	believed he was a 	"pain in the ass."
Suarez was 	not 	asked about 	this 	statement 	in his 	testimony.
C. 	Valles versus Dyste 	- 	1. 	Dyste 	told Valles during the
spring of 	1993 	that Mrvichin was a 	"pain in the ass" 	because of
these 	grievances 	and 	that 	he 	had been assigned by Suarez 	to
respond 	to 	the 	grievances 	and 	to neutralize Mrvichin.
Dyste denies making 	this 	statement.
2. 	At 	a different 	time Dyste 	told Valles 	that 	Suarez
and the District's 	chancellor, 	wanted 	to get 	rid of Mrvichin and
that 	they had 	found a way 	to do 	so.
Dyste denies making 	this 	statement.
D. 	Rozadilla versus 	Suarez 	- 	Prior to the 	football
suspension 	issue 	arising, 	Suarez 	told Rozadilla 	that Mrvichin did
not 	exemplify 	or 	typify a 	real 	trainer because 	he was 	fat 	and
smoked 	too much.
Suarez 	denies making 	this 	statement.
E. 	Mrvichin versus Dyste 	- 	Dyste 	says Mrvichin admitted,
in a meeting 	in the 	school's 	stadium late one 	evening, 	that he
chased Valdivia.
Mrvichin remembers 	the 	evening 	"meeting." 	He 	states 	that
Dyste 	came 	into his work area 	to talk to him. 	Mrvichin referred
him to Michael 	Lopez, 	an assistant trainer, 	instead. 	Dyste 	spoke
to 	Lopez 	for about 	an hour 	to an hour and a half. 	Mrvichin was
not present during this 	conversation, 	therefore, 	he denies making
any statements 	to Dyste at 	that 	time.
15

F. 	Heaps versus Dyste 	- 	In a conversation in his office
Heaps 	testified he 	told Dyste 	that 	he 	had no problems 	with
Mrvichin's 	teaching performance. 	Dyste 	said 	"Come on 	- 	his
records are a mess."
Dyste 	denies 	Heaps 	ever made 	this 	positive 	teaching
performance 	statement about Mrvichin to him. 	He also denies 	he
ever 	said anything 	about 	Mrvichin's 	record keeping 	abilities 	or
that he was ever in Heaps' 	office.
G. 	Dyste versus Mrvichin, 	Rozadilla, 	Valles, 	and Heaps 	-
When Dyste 	was 	asked why Mrvichin's 	certificated and 	classified
supervisors 	would all 	support 	him by 	testifying 	that 	Dyste made
statements 	that he never actually made, 	he answered as 	follows:
A. 	Yes, 	the 	-- 	the answer to me, 	remember
I'm new to 	this 	campus. 	The 	chain of 	com-
mand that 	I've had the most 	attention, 	that
has 	absorbed most 	of my 	time 	since 	I've been
at the campus, 	has 	involved Rudy Valles, 	the
Head of Admissions, 	and the Athletic Director
and the Athletic program. 	We have 	changed
the entire 	registration process, 	reorganized
the way we handle 	the Athletic program, 	we
eliminated major sport. 	One 	employee was
involved 	in major grievances. 	It's absorbed
a 	tremendous amount 	of 	time. 	The men involved,
it's my clear impression, 	that 	they are all
very close 	to each other, 	they've been friends
for years, 	and they're very disturbed by all 	of
these 	changes, 	and 	I'm a part 	of 	the process 	and
one 	of 	the 	individual who's made 	those 	changes.
And 	I know Rudy's 	gone home 	ill 	on occasion
because of 	stress. 	There's been a lot 	of 	change
over in that area, 	and I 	think they're all very
resentful. 	They have never, 	though, 	told me any-
thing 	to my 	face. 	They never 	challenged me. 	But
on many many occasions 	I 	know 	they've bad-mouthed
me 	behind my back because 	I've 	had people 	come 	and
tell me, 	including the President. 	I have never
taken any action against 	them 	for doing 	this
because 	I understand it. 	You know, 	I don't
retaliate. 	People have feelings, 	I try to work
16

with them. 	And I 	think the 	reason that 	these
things 	that you're asking me 	-- 	asking me astonish
me, 	that 	these things are being said. 	But 	in the
context 	of 	that 	college, 	I'm not 	really 	surprised
because 	of 	the 	fact 	that people 	fabricate 	stories
and create alliances, 	and I mean it's, 	it's 	-- 	I
told 	the 	President when 	I was 	there 	a week 	that 	he
had a medieval 	management 	system where 	everybody
was 	jousting with each other, 	and everybody had
fiefdoms. 	It was 	incredible. 	And I 	think this 	is
the main reasons, 	that 	these gentlemen are 	resentful
and unhappy about 	the 	changes 	that 	they've been put
through. 	But 	rather than coming directly to me and
confronting me 	about 	them, 	they talk about me 	to
other people and this 	is 	another 	form for doing 	that,
that's all. 	But while 	-- 	I want to emphasize
something. 	I 	have been hearing about 	this 	sort 	of
thing 	for a long long time 	that 	goes 	on. 	It 	gets
back to 	me, 	but 	I have never taken any action against
those guys 	that would be adverse.
IX. 	Credibility Findings
There 	are 	too many witnesses 	with 	too many statements 	in
conflict 	with Dyste 	and Suarez 	to arrive 	at 	anything 	other 	than a
finding that 	their testimony is not 	credible. 	Dyste was
obviously a very powerful 	administrator at 	ELACC. 	And yet 	three
sub-administrators, 	plus Mrvichin, 	have testified to having heard
eight 	separate 	improper statements, 	all 	of which Dyste and Suarez
have denied making. 	These 	sub-administrators 	all 	hold
responsible positions 	at 	the 	college and have done 	so 	for many
years. 	They are putting 	their 	careers 	on 	the 	line 	in testifying
to 	the truth as 	they know it. 	This writer does not believe 	they
would 	contradict 	the 	testimony 	of 	their 	supervisors 	without
sufficient 	provocation.
Even more persuasively, 	an. objective evaluation of 	the
evidence 	leads 	to an 	inescapable 	conclusion 	that Mrvichin was
well 	aware 	of 	the 	charges against him, 	the process by which such
17

charges 	would be 	investigated and 	the 	consequences 	of 	a 	negative
recommendation by 	the 	sexual 	harassment 	compliance 	officer. 	He
filed 	grievance 	after grievance 	complaining 	about 	technical
deficiencies 	in 	the manner 	in which 	the 	S/H 	Policy was 	being
implemented.
In order to credit 	the statements of Dyste and Suarez, 	it
would be 	necessary 	to believe 	that 	in a 	casual 	conversation with
Suarez 	and 	in a 	slightly more 	formal 	investigatory 	interview with
Dyste, 	Mrvichin blurted out 	a complete 	confession to all 	of 	the
charges 	against 	him. 	To believe 	that 	this 	happened strains 	one's
credulity.
Due 	to all 	of 	the above, 	the testimony of Mrvichin,
Rozadilla, 	Valles and Heaps 	is 	credited over that 	of Dyste and
Suarez.
ISSUE
Did 	the District 	terminate Mrvichin 	in 	retaliation 	for his
protected activities 	in violation of 	the Act?
CONCLUSIONS 	OF LAW
I. 	Precedent 	and Test
The Board, 	in Carlsbad Unified School District 	(1979) 	PERB
Decision No. 	89 	(Carlsbad), 	set forth the following test for
alleged violations 	of 	subdivision 	(a) 	of 	section 3543.5 	of 	EERA:
1. 	A single 	test 	shall 	be applicable 	in all
instances 	in which violations 	of 	section
3543.5(a) 	are alleged;
2. 	Where 	the 	charging party establishes 	that
the 	employer's 	conduct 	tends 	to 	or does
result 	in 	some 	harm to 	employee 	rights
18

granted under 	the 	EERA, 	a prima 	facie 	case
shall 	be deemed to exist;
3. 	Where the harm to the employees' 	rights
is 	slight, 	and the employer offers
justification based 	on 	operational 	necessity,
the 	competing 	interest 	of 	the 	employer and
the 	rights 	of 	the employees will be balanced
and 	the 	charge 	resolved accordingly;
4. 	Where 	the harm is 	inherently destructive
of employee rights, 	the employer's 	conduct
will 	be 	excused only on proof 	that 	it 	was
occasioned by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no alternative
course 	of 	action was 	available;
5. 	Irrespective of 	the 	foregoing, 	a 	charge
will 	be 	sustained where 	it 	is 	shown that 	the
employer would not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for an unlawful
motivation, 	purpose or intent. 	[Emphasis
added.]
In Novato Unified School 	District 	(1982) 	PERB Decision No.
210 	(Novato), 	the Board clarified the Carlsbad test 	for
retaliation 	or discrimination 	in 	light 	of 	the National 	Labor
Relations Board decision in Wright Line. 	Inc. 	(1980) 	251 NLRB
1083 	[105 	LRRM 1169] 	enforced in part 	(1st Cir. 	1981) 	662 	F.2d
899 	[108 	LRRM 2513]. 	In Novato. 	unlawful motive must be proven
in order to 	find a violation. 	In addition, 	a nexus 	or connection
must 	be 	demonstrated between 	the 	employer's 	conduct 	and 	the
exercise 	of 	a protected 	right 	resulting 	in harm or potential 	harm
to that 	right.
In order to establish a prima 	facie 	case, 	the 	charging party
must 	first 	prove 	the 	subject 	employee 	engaged 	in protected
19

activity.9 Next, 	he must 	establish that 	the employer had
knowledge of 	such protected activity. 	Lastly, 	it must be proven
that 	the subject adverse action(s) 	were taken, 	in whole or in
part, 	as 	a result 	of 	such protected activity.
There 	is 	no 	doubt 	that Mrvichin 	filed grievances 	and had a
very high profile 	with 	regard 	to 	the 	campus 	protest 	over Suarez's
decision 	to 	suspend ELACC's 	football 	program. 	The 	direction he
took 	in his 	football 	suspension grievances was 	that 	his 	rights 	as
an 	employee 	were 	diminished 	and 	even 	abrogated by 	Suarez's
refusal 	to 	follow the principles 	of 	"shared governance" 	of 	the
college 	with 	regard 	to his 	decision 	to 	suspend 	the 	ELACC 	football
program. 	Nor 	is 	there any doubt 	that both Suarez 	and Dyste were
aware 	of Mrvichin's 	activities with regard 	to 	this matter.
The 	crucial 	question 	is whether 	the District's 	adverse
actions were motivated in whole, 	or in part, 	by Mrvichin's
participation 	in 	such protected activities.
Proving 	the 	existence 	of 	unlawful 	motivation 	can be 	a
difficult burden. 	The Board acknowledged that when 	it 	stated the
following 	in 	Carlsbad:
Proof 	of 	Unlawful 	Intent 	Where 	Offered or
Required
Unlawful motivation, 	purpose or intent 	is
essentially a state of mind, 	a subjective
9Section 3543 	grants public 	school 	employees:
. 	. 	. 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 	of
employer-employee relations. 	. 	. 	.
20

condition 	generally known 	only 	to 	the 	charged
party. 	Direct 	and affirmative proof 	is 	not
always 	available or possible. 	However,
following 	generally 	accepted 	legal 	principles
the presence 	of 	such unlawful motivation,
purpose 	or 	intent may be 	established by
inference 	from the 	entire 	record. 	[Fn.
omitted.]
In addition, 	the Board in Novato set 	forth examples 	of 	the
types 	of 	circumstances 	to be 	examined 	in a determination of
whether union animus 	is 	present 	and a motivating 	factor 	in 	the
employer's action(s). 	These circumstances are 	(1) 	disparate
treatment of the affected employee(s), 	(2) 	proximity of time
between 	the 	participation 	in protected 	activity and 	the 	adverse
action, 	(3) 	inconsistent explanations of the employer's
action(s), 	(4) 	departure from established procedures or
standards, 	and 	(5) 	inadequate investigation(s). 	(See also
Baldwin 	Park Unified School 	District 	(1982) 	PERB Decision No.
221.)
A. 	Disparate 	Treatment 	of Mrvichin
The manner 	in which Valdivia's 	second grade 	appeal 	petition
was 	handled suggests 	disparate 	treatment 	of Mrvichin. 	Her 	first
petition went 	through the usual 	steps, 	from her teacher up
through his 	academic 	supervisors. 	The 	second petition went
directly 	to Dyste, 	and after a very 	cursory 	investigation
process, 	was granted. 	And yet, 	Heaps 	testified that no grade
should ever been changed unless 	the 	instructor agrees, 	or
mistake, 	fraud, 	bad faith or incompetency is proven. 	Certainly,
Dyste's 	conversation with two uninvolved students, 	was
21

'
insufficient to prove that mistake, 	fraud, 	bad faith, 	or
incompetency were present 	in Valdivia's 	case.
In addition, 	a 	certificate 	for an additional 	600 	hours 	of
community service was 	awarded Valdivia. 	There was 	no evidence 	of
any sort 	proffered to justify this 	certificate. 	Suarez 	did not
even go 	through 	the pretense 	of 	suggesting 	that Mrvichin had
agreed to such issuance. 	Granted, 	Suarez was 	the president 	of
the ELACC campus, 	and as 	such he had certain rights. 	However,
the individual 	instructors have rights, 	as well. 	The 	changing of
a grade 	and tripling 	of 	the number of 	hours 	cited 	in a
"meritorious" 	certificate, 	without 	the agreement of 	the 	involved
instructor, 	is 	not 	an accepted manner of processing a grade
petition appeal. 	Valdivia's 	appeal 	was 	handled 	in a 	rather
cursory fashion, 	one that was designed to ignore, 	or at 	least
minimize, 	Mrvichin's 	input. 	In other words, 	with regard to
Valdivia's 	second petition, 	Mrvichin was 	treated differently 	from
other 	instructors 	who have 	faced a 	student 	grade petition appeal.
The manner 	in which Valdivia's 	sexual 	harassment 	complaint
was 	handled also 	raises 	questions 	of 	disparate 	treatment 	of
Mrvichin. 	Although 	the 	sexual 	harassment 	allegedly occurred
within the purview of 	the athletic department, 	neither of
Mrvichin's 	athletic department 	immediate 	supervisors, 	Rozadilla
and Valles, 	were 	involved in the 	investigation of 	the 	charge.
Nor was his academic supervisor, 	Heaps, 	involved in the
investigation. 	In fact, 	not only were 	they not 	involved, 	they
were not 	even 	informed such an 	investigation was 	ongoing. 	As
22

Mrvichin was 	treated differently 	than 	other 	instructors 	in 	this
regard, 	this 	evidence sets 	forth another 	instance of 	disparate
treatment 	of 	him.
B. 	Proximity of 	Time
All 	of 	the 	events 	that 	occurred 	in this 	case were
concentrated 	in little more 	than one 	semester. 	There was 	ample
evidence 	to 	show that 	Suarez 	and Dyste were 	upset 	over Mrvichin's
football 	grievances. 	The processing of Valdivia's 	grievance,
sexual 	harassment 	complaint 	and grade 	petition appeal 	occurred
during 	the 	time 	that Mrvichin's 	grievances 	were 	being processed.
The 	evidence 	shows 	that 	Suarez's 	and Dyste's 	negative 	comments
about Mrvichin's 	grievances 	were being made 	at 	the very 	same 	time
his 	termination was 	being 	orchestrated.
Although 	"proximity of 	time" 	alone 	is 	not 	sufficient 	to
create 	an 	inference 	of 	unlawful 	motivation 	(Moreland 	Elementary
School District 	(1982) 	PERB Decision No. 	227; 	Charter Oak Unified
School District 	(1984) 	PERB Decision No. 	404), 	it certainly can
be 	used 	in 	conjunction with other 	credible 	evidence 	to 	support 	an
inference 	of unlawful motivation.
C. 	Inconsistent 	Explanations 	of 	the 	Employer's Actions
1. 	Suarez 	told Ernest Moreno 	that Mrvichin agreed with 	the
grade 	change. 	Mrvichin never agreed to 	such change.
2. 	Valles was 	told that 	the District's 	legal 	department
was 	directing him to make 	such a grade 	change. 	There was 	no
evidence 	to 	show that 	the District's 	legal 	department was 	ever
involved 	in 	the grade 	change.
23

3. 	Dyste 	says Valles 	worked with him on developing
Mrvichin's 	Notice 	of 	Unsatisfactory 	Performance 	and 	termination.
Valles 	says 	he 	never 	saw 	the 	document 	before Dyste presented 	it
to him as 	a 	completed document.
4. 	Dyste 	says 	that Valles 	agreed with the 	substance and
issuance 	of 	a Notice 	of 	Unsatisfactory Performance 	to Mrvichin.
Valles 	testified 	that Dyste 	threatened him with Suarez's 	wrath 	if
he did not 	agree 	to 	sign the document. 	He not 	only did not 	agree
with it, 	but he even became uncomfortable with it as 	soon as he
started 	to 	read 	it.
5. 	Both Suarez and Dyste testified, 	under oath, 	that 	they
had no problems 	with Mrvichin 	filing 	grievances 	over 	the 	football
suspension issue. 	However, 	Rozadilla testified that Dyste 	told
him that 	he 	(Dyste) 	and Suarez 	"have 	found a technicality so we
are 	going 	for an 	immediate 	unsatisfactory notice 	and 	immediate
dismissal."
All 	of 	these, 	and they are just 	representative, 	are
inconsistent 	explanations 	of 	the 	employer's 	actions 	and 	support
an 	inference 	of unlawful motivation.
D. 	Departure 	From Established 	Procedures
Many of 	the 	examples 	of 	this were 	covered above, 	such as
the manner 	in which the 	grade petition was processed, 	the
issuance 	of 	a meritorious 	certificate 	tripling 	the 	hours 	devoted
to 	the 	school 	athletic program, 	and failure 	to 	involve 	the
charged 	employee's 	immediate 	supervisors 	in 	the 	sexual 	harassment
complaint. 	All 	of 	these are examples 	of 	Suarez's and Dyste's
24

departures 	from established procedures 	and 	support 	an 	inference
of unlawful motivation.
In addition, 	the evidence 	shows 	that Dyste attempted to
browbeat 	Mrvichin's 	immediate 	supervisors 	into 	changing his
annual 	performance 	evaluations. 	The 	fact 	that 	the 	supervisors
refused 	to be 	intimidated 	certainly does 	not prohibit 	the use 	of
this 	attempt 	as 	additional 	support 	for an 	inference 	of unlawful
motivation.
E. 	Inadequate 	Investigation
The 	evidence 	in this 	case 	is 	replete with examples 	of
inadequate 	investigations. 	They include 	(1) 	Valdivia's
grievance, 	(2) 	her sexual harassment complaint, 	and 	(3) 	her grade
petition appeal.
The 	sexual 	harassment 	complaint 	deserved 	some 	level 	of
special 	investigatory 	consideration. 	Valdivia 	charged Mrvichin
with engaging 	in specific acts. 	The 	only witness 	she had was 	her
friend, 	Losa. 	Mrvichin denied the acts. 	Valdivia received
$18,000 	from the District 	due 	to her complaint. 	Mrvichin had a
history 	of 	proper actions 	towards 	females 	within his 	realm of
authority. 	No 	reference was made 	to any other 	female 	on the
ELACC 	campus 	that 	believed Mrvichin had acted 	improperly 	towards
her. 	Even before 	the alleged sexual 	harassment 	incidents
occurred, 	Valdivia had had difficulties at ELACC, 	i.e. 	(1)
Mrvichin 	told Rozadilla 	she was 	a problem student 	and 	(2) 	she had
been suspended 	from her duties 	as 	a 	student 	trainer. 	Under all
of 	these 	circumstances, 	logic would suggest 	that 	there was
25

something more 	to 	this 	case 	than a 	simple 	case 	of 	harassment 	on
the part 	of 	the 	instructor, 	and yet 	Suarez and Dyste
"investigated" 	the 	case 	only to 	the degree 	that 	they received
confirmation of 	their preconceived 	ideas, 	and 	terminated
Mrvichin.
Suarez 	insists 	that 	he had to 	insert Dyste 	into 	the 	sexual
harassment 	investigation process 	because 	Najar 	said 	that 	Mrvichin
refused to 	cooperate with her. 	There was 	no evidence proffered
with 	regard 	to 	the manner 	in which he 	"refused 	to 	cooperate"
other than allegedly refusing 	to attend meeting(s). 	Najar did
not 	testify, 	so we have 	insufficient 	evidence 	regarding whether
he was being a 	recalcitrant 	accused, 	or an employee who was 	upset
over her 	refusal 	to 	follow the very specific 	time 	and 	subject
matter guidelines 	set 	forth 	in 	the District 	S/H 	Policy.
Even 	if 	Suarez 	is 	correct 	and Mrvichin was 	uncooperative,
the 	S/H 	Policy provides 	a 	remedy 	for 	such a 	circumstance. 	The
policy 	states 	that 	"if 	the 	alleged 	offender elects 	not 	to
participate" 	the 	complaint 	is 	to go directly to 	the 	formal
hearing 	stage before a hearing 	officer. 	If Mrvichin had refused
to participate 	at 	that point, 	the District would be 	entitled 	to
take whatever steps 	were appropriate. 	Rather than availing
himself 	of 	the District's policy remedy, 	Suarez 	elected to
interject Dyste 	into 	the process.
Based on the 	circumstances 	set 	forth above, 	it 	is 	concluded
that 	the manner 	in which Suarez 	implemented 	the District 	S/H
26

Policy with 	regard 	to Mrvichin 	supports 	an 	inference 	of 	unlawful
motivation.
As 	the 	District 	provided 	insufficient 	legal 	justification
for its actions, 	it 	is determined that when it 	took specified
negative 	actions 	towards Mrvichin 	it 	did 	so with an unlawful
motivation, 	and therefore violated subdivision 	(a) 	of 	section
3543.5.
SUMMARY
Based 	on 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record in this 	case, 	it 	is determined that
when the District 	(1) 	issued a Notice 	of Unsatisfactory
Performance to Mrvichin, 	(2) 	terminated his employment as the
trainer at ELACC, 	and 	(3) 	to whatever extent 	it has 	failed to
hire 	him as 	an 	instructor 	in 	the 	Physical 	Education Department,
it violated subdivision 	(a) 	of 	section 3543.5.
REMEDY
PERB, 	in section 3541.5(c) 	is given
. 	. 	. 	the power to issue a decision and order
directing 	an offending party 	to 	cease 	and
desist 	from the unfair practice 	and 	to 	take
such affirmative action, 	including but not
limited 	to 	the 	reinstatement 	of 	employees
with or without back pay, 	as 	will 	effectuate
the policies of 	this 	chapter.
In order to 	remedy 	the unfair practice 	of 	the District 	and
to prevent 	it 	from benefitting 	from its 	unfair 	labor practice,
and to effectuate 	the purposes 	of 	the EERA, 	it 	is appropriate 	to
order 	the District 	to 	(1) 	rescind and destroy the Notice 	of
Unsatisfactory 	Performance 	issued 	to George Mrvichin 	in 	September
27

of 	1993, 	(2) 	reinstate him to his position as 	the athletic
trainer at ELACC, 	(3) 	stop delaying and/or withholding
administration approval 	to 	certificated 	employment 	offered 	to 	him
at 	ELACC 	for the 	fall 	semester of 	1994, 	and 	(4) 	to cease and
desist 	from discriminating against 	him because 	of 	his 	exercise 	of
rights 	guaranteed by 	EERA.
It 	is also appropriate 	that Mr. 	Mrvichin be made whole by
receiving any 	salary 	lost 	as 	a 	result 	of 	his unlawful 	termination
as 	athletic 	trainer and any 	lost 	opportunities 	to work as 	a
certificated 	instructor. 	Such 	retroactive 	salary 	award 	shall
include 	interest at a rate of 	7 percent 	(7%) 	per annum. 	He
should also be made whole 	for any other losses, 	such as benefits,
seniority credit(s), 	leave credit(s) 	and reasonably expected
overtime 	salary opportunities, 	for example, 	he would have
received, 	but 	for the District's unlawful 	actions.
It 	is 	also appropriate 	that 	the District be 	required to post
a notice 	incorporating 	the 	terms 	of 	this 	Order. 	The 	notice
should be 	subscribed by an authorized agent 	of 	the District,
indicating 	that 	it will 	comply with the 	terms 	therein. 	The
notice 	shall 	not be 	reduced in size, 	defaced, 	altered or covered
by any other material. 	Posting 	such a notice will 	provide
employees 	with notice 	that 	the District 	has 	acted 	in an unlawful
manner and 	is 	being 	required 	to 	cease 	and desist 	from this
activity. 	It 	effectuates 	the purposes 	of 	the Act 	that 	employees
be 	informed 	of 	the 	resolution of 	the 	controversy and will
announce 	the District's 	readiness 	to 	comply with 	the 	ordered
28

remedy. 	(See 	Placerville Union School District 	(1978) 	PERB
Decision No. 	69.) 	In Pandol 	and Sons v. 	Agricultural 	Labor
Relations Board 	(1979) 	98 Cal.App.3d 580, 	587 	[159 Cal.Rptr.584],
the 	California District 	Court 	of Appeals 	approved a 	similar
posting 	requirement. 	(See also National 	Labor Relations 	Board v.
Express Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].)
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and the entire 	record in this 	case, 	as 	it 	is 	found that 	the
Los Angeles 	Community College District 	(District) 	violated
subdivision 	(a) 	of section 3543.5, 	of the Educational Employment
Relations Act 	(Act) 	by unlawfully 	(1) 	issuing a Notice of
Unsatisfactory 	Performance 	to 	George 	Vladimir Mrvichin
(Mrvichin), 	(2) 	terminating his employment as the athletic
trainer at 	East 	Los Angeles 	Community College 	(ELACC) 	and 	(3)
delaying 	and/or withholding 	administrative 	approval 	of
certificated 	employment 	offered 	to 	him at 	ELACC 	for 	the 	fall
semester of 	1994, 	it 	is hereby ORDERED that the District, 	its
officers 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Imposing or 	threatening to 	impose 	reprisals,
discriminating 	or threatening 	to discriminate against, 	or
otherwise 	interfering with, 	restraining 	or 	coercing Mrvichin
because 	of 	his 	exercise 	of 	rights 	guaranteed by the Act.
29

2. 	Delaying and/or withholding administrative
approval 	of 	certificated 	employment 	offered 	to him at 	ELACC 	for
the fall 	semester of 	1994.
3. 	Issuing to Mrvichin a Notice 	of Unsatisfactory
Performance 	based 	on activities 	protected by 	the Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE ACT:
1. 	Reinstate Mrvichin to his position as 	the athletic
trainer at 	ELACC.
2. 	Rescind and destroy all 	copies 	of 	the Notice 	of
Unsatisfactory 	Performance 	issued 	to Mrvichin 	in 	September 	of
1993.
3. 	Delete 	from Mrvichin's 	personnel 	file any
reference 	to 	the Notice of Unsatisfactory Performance, 	Xochilt
Valdivia's 	sexual harassment 	complaint, 	or her grievance, 	and any
other writings 	that 	are 	inconsistent 	with 	this 	proposed decision
and make 	no 	further use 	of 	such materials 	in any personnel 	action
with 	regard 	to 	him.
4. 	Pay to Mrvichin the 	salary that 	he 	lost 	as 	a
result 	of 	the unlawful 	termination. 	Such retroactive 	salary-
award shall 	include 	interest at 	the 	rate of 	7 percent 	(7%) 	per
annum.
5. 	Make Mrvichin whole 	for any other losses, 	such as
benefits, 	seniority credit(s), 	leave credit(s), 	and reasonably
expected overtime 	salary opportunities, 	for example, 	that he may
have 	suffered as 	a 	result 	of 	the District's unlawful 	action.
30

6. 	Within ten 	(10) 	workdays 	of 	service of a 	final
decision 	in this matter, 	post at all District 	sites 	and all 	other
work 	locations where notices 	are 	customarily placed, 	copies 	of
the notice attached hereto as 	an Appendix. 	The notice must be
signed by an authorized agent 	of 	the District, 	indicating 	that
the District will 	comply with the 	terms 	of 	this 	Order. 	Such
posting 	shall 	be maintained 	for a period of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be 	taken 	to 	insure
that 	the Notice 	is not reduced in size, 	altered, 	defaced or
covered by any 	other material.
7. 	Upon issuance of a final decision, 	make written
notification of 	the actions 	taken 	to 	comply with this 	Order 	to
the 	San 	Francisco Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with his 	instructions. 	Continue 	to
report, 	in writing, 	to the regional director thereafter as
directed. 	All 	reports 	to 	the 	regional 	director shall 	be
concurrently 	served 	on 	the 	charging party herein.
It 	is 	further ORDERED 	that 	all 	other aspects 	of 	the 	charge
and 	complaint 	are 	hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party 	files 	a 	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,
31

relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit, 	8, 	sec. 	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 	". 	. 	.or when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the last day set for filing. 	. 	." 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently 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 Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
ALLEN R.. LINK
Admj Administrative Law Judge
32