Riverside Unified School District (PERB 0562EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
TONY 	PETRICH.
Charging 	Party,
v.
RIVERSIDE UNIFIED SCHOOL DISTRICT.
Respondent.
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) 	Case No. 	LA-CE-2188
Request 	for 	Reconsideration
PERB Decision No. 	562
PERB Decision No. 	562a
May 	16, 	1986
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Appearance: 	Tony Petrich, 	on his 	own behalf.
Before Hesse, 	Chairperson; 	Morgenstern. 	Burt. 	Porter and Craib.
Members.
DECISION
CRAIB. 	Member: 	Tony Petrich requests 	reconsideration of
Decision No. 	562 	issued 	by the Public Employment Relations
Board 	(PERB or Board) 	on January 24. 	1986. 	The 	request 	is
based 	on 	the 	contention 	that Decision No. 	562 	contains 	errors
of 	fact 	and 	law. 	For 	the 	reasons which follow, 	we 	grant 	the
request.
PROCEDURAL 	HISTORY
Tony Petrich 	filed 	an unfair 	practice 	charge 	on
May 22, 	1985 	against 	the Riverside Unified 	School 	District
(District). 	Over 	the following several weeks, 	four 	amendments
to 	the 	charge were 	submitted, 	each adding new and 	further
allegations 	of 	unlawful 	conduct 	on 	the 	part 	of 	the District.
The 	regional 	attorney 	reviewed 	these 	submissions 	and, 	as

set 	forth 	in her warning 	letter 	of 	August 	16, 	1985 	(attached
hereto), 	found a total of 	twenty-one allegations of unlawful
conduct. 	The warning 	letter 	concluded 	by 	stating 	that 	a
complaint would 	issue 	on eight 	of 	the 	allegations. 	The
remainder 	of 	the allegations, 	said 	the 	letter, 	failed 	to 	state
a 	prima 	facie 	case; 	unless 	additional 	supporting material 	was
submitted or 	the allegations withdrawn by August 	26, 	1985.
those 	allegations 	would 	be 	dismissed.
In response 	to 	the warning 	letter, 	Petrich elected not 	to
supplement 	or withdraw his 	charge 	but, 	instead, 	filed an
"Appeal 	of 	Dismissal" 	with the Board 	itself 	even before
receiving 	the 	notice 	of 	dismissal which 	the 	regional 	attorney
issued 	on August 	27. 	1985. 	When this 	document was 	received 	by
the Board, 	it was 	reviewed 	by the 	executive director.
Upon 	review of 	the 	record, 	the 	executive director 	concluded
that 	Petrich was 	attempting 	to 	appeal 	the warning 	letter 	and
that 	PERB Regulations 	and 	procedures 	made 	no 	provision 	for 	such
an appeal. 	Only an appeal 	of 	the notice 	of 	dismissal 	is
permitted. 	The 	executive 	director 	informed 	Petrich 	of 	these
conclusions 	by 	letter dated August 	30, 	1985. 	The 	letter 	also
stated 	that 	the 	notice 	of 	dismissal 	had 	issued 	on August 	27 	and
thus 	the 	last day to 	file 	a valid 	appeal 	of 	the 	dismissal would
be September 16. 	1985.
On 	September 	6, 	the Board 	received 	a 	filing 	from Petrich,
again 	labeled 	"Appeal 	of 	a Dismissal." 	This 	document 	raised
none 	of 	the 	issues 	which Petrich 	had 	raised 	in his 	August 	27
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appeal of 	the warning letter. 	Instead, 	it 	raised 	just 	two
issues, 	neither 	of which had 	been mentioned 	in Petrich's 	first
filing.
On January 24. 	1986, 	the Board 	issued Decision No. 	562. 	In
his valid 	appeal 	of 	September 	6, 	Petrich had 	not 	indicated 	in
any way 	that 	he 	intended 	to 	incorporate 	into 	the valid 	appeal
any of 	the 	exceptions 	or 	arguments 	raised 	in his 	rejected
appeal 	of August 	27. 	The Board 	therefore 	reviewed 	only 	the 	two
exceptions 	set 	forth 	in the 	latter 	appeal. 	The 	first 	of 	those
concerned 	the 	regional 	attorney's 	dismissal 	of 	the 	allegation
that 	the 	District 	violated 	the 	Educational 	Employment 	Relations
Act 	(EERA or 	Act)1 by 	locking 	the 	entry doors 	to 	its
personnel 	office during 	the 	noontime 	hour. 	The 	second
exception 	concerned 	the 	dismissal 	of 	his 	allegation 	that 	the
District 	violated 	the EERA 	by 	issuing 	an 	evaluation 	of 	Petrich
which 	expressed 	critical 	findings 	and 	which was 	accompanied 	by
supporting attachments 	taken 	from his 	personnel 	file. 	The
Board 	concluded 	after 	its 	own 	review of 	the 	charge 	that 	the
regional 	attorney had 	acted 	correctly 	in 	refusing 	to 	issue 	a
complaint 	on either 	of 	these 	allegations.
THE 	REQUEST FOR 	RECONSIDERATION
As 	a 	preliminary matter 	to 	his 	request 	for 	reconsideration,
Petrich 	asks 	that 	the 	three 	Board 	members 	who 	rendered 	Decision
1 The 	EERA 	is 	codified 	at Government 	Code 	section 	3540
et 	seq.
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No. 	562 	disqualify 	themselves 	pursuant 	to PERB Regulation
32155.2 That 	request 	has 	been 	denied 	by 	letter 	issued
April 	1, 	1986.
Petrich asserts 	that Decision No. 	562 	contains 	errors 	of
law and 	fact with 	regard 	to 	the 	two 	exceptions 	therein
reviewed. 	His arguments, 	however, 	are primarily reassertions
of 	arguments 	presented 	previously 	and 	therefore 	provide 	no
ground 	for 	granting 	reconsideration. 	Rio 	Hondo 	Community
College District 	(1983) 	PERB Decision No. 	279a. 	After 	a
careful 	review of 	the 	instant 	request, 	together with 	the 	record
in this 	case as 	a whole, 	we find no 	prejudicial 	errors 	in
Decision No. 	562 	and 	on that 	basis 	deny the 	request 	for
reconsideration of 	those matters.
Finally. 	Petrich asserts 	that 	the Board 	erred 	in failing 	to
consider 	and 	render 	a 	decision 	on his 	attempted 	appeal 	of
August 	27. 	1985. 	While 	the Board's 	executive director 	rejected
that 	filing 	as 	noted 	above, 	we 	recognize 	that 	Petrich 	is
representing 	himself 	in 	these 	proceedings 	and 	is 	untrained 	in
legal matters; 	he may. 	therefore, 	have failed 	to understand the
import 	of 	the 	executive 	director's 	letter. 	We 	have 	concluded
that, 	while 	neither 	the Board 	nor 	its 	agents 	have 	committed 	any
error 	in this matter, 	the 	purposes 	of 	the Act will 	best 	be
2pERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31001 et 	seq.
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served 	in 	this 	instance 	by 	considering 	and 	deciding 	the 	issues
raised 	in 	the 	document 	served 	by Petrich 	on August 	27.
DISCUSSION
As 	noted 	above, 	the 	regional 	attorney who 	investigated
Petrich's 	charge 	identified 	and 	numbered 	21 	individual
allegations 	of 	unlawful 	conduct 	on the 	part 	of 	the District.
The 	premature 	appeal 	filed 	by Petrich 	contests 	the 	dismissal 	of
11 of these.
In allegation 2. 	Petrich asserts 	that 	the District violated
the 	contractual 	grievance 	procedure when 	it 	failed 	to 	hold 	a
level 	II 	conference 	on a 	grievance 	he 	filed 	on February 7,
1985. 	This action, 	maintains Petrich, 	evidences both a
unilateral 	change 	in 	the District's 	grievance 	policy and 	an 	act
of 	reprisal 	for 	protected 	activities. 	The 	regional 	attorney
received 	information 	during 	her 	investigation 	indicating 	that 	a
level 	II 	conference was 	in fact 	held. 	Concluding 	that
Petrich's 	factual 	claim was 	false, 	she 	dismissed 	the 	allegation.
We 	find 	that 	the 	regional 	attorney 	erred 	in 	dismissing 	this
allegation. 	In San Juan Unified 	School District 	(1977) 	EERB
Decision No. 	12.3 the Board 	set 	out 	the principle 	that 	facts
alleged 	in a 	charge 	are 	presumed 	true 	for 	purposes 	of
pre-hearing charge processing. 	Here, 	Petrich has 	alleged:
(1) 	that 	the 	existing grievance policy, 	as 	established 	by
3prior 	to January 1. 	1978. 	PERB was 	known as 	the
Educational 	Employment 	Relations 	Board.
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3
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contract, 	provides 	that a 	conference 	shall 	be held 	for 	level 	II
grievances; 	and 	(2) 	that 	the District has 	indicated 	through 	its
action that 	it will 	no 	longer 	hold 	such conferences. 	If 	true,
these 	allegations 	establish a 	prima 	facie 	case 	of 	unilateral
change 	in negotiable 	policy. 	The 	truth or 	falsehood 	of 	these
allegations 	is 	not 	to 	be 	determined 	by an 	ex parte
investigation 	but 	by a 	hearing 	in which 	both parties 	may have 	a
full 	and 	fair 	opportunity 	to 	present 	evidence 	in 	support 	of
their 	positions. 	We note, 	however, 	that 	this 	allegation fails
on 	its 	face 	to 	contain 	facts 	supporting 	the 	claim 	that 	the
District's 	alleged 	failure 	to 	hold 	the 	conference was 	an 	act 	of
reprisal. 	Our 	order 	for 	issuance 	of 	a 	complaint 	on this
allegation, 	therefore, 	will 	be 	limited 	to 	the unilateral 	change
aspect.
In allegation 	3, 	Petrich asserts 	that 	he 	filed 	another
grievance on March 8. 	1985. 	Again, 	says Petrich, 	the District
refused 	to 	follow the 	contractual 	grievance 	procedure. 	In 	this
instance, 	he claims, 	the District bypassed the 	level 	I
procedures 	and 	routed 	his 	grievance 	directly 	to 	the Assistant
Superintendent 	for Personnel, 	who held 	a 	level 	II 	proceeding.
Upon 	investigation, 	the 	regional 	attorney 	received 	information
that 	the District 	has 	on 	previous 	occasions 	bypassed 	the 	first
level 	of 	the 	grievance 	procedure. 	The 	regional 	attorney
dismissed 	the 	allegation 	based 	on 	her 	conclusion 	that 	the
District's 	action was 	not 	inconsistent 	with 	existing 	policy 	as
she 	found 	it 	to 	be.
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Again, 	it 	appears 	that 	the 	investigation has 	framed a
dispute 	as 	to 	the 	true 	existing 	grievance 	policy. 	In
discrediting Petrich's 	version of 	that 	policy, 	the 	regional
attorney again 	ran afoul 	of 	the 	San Juan rule. 	We will
therefore 	reverse 	the dismissal 	of 	this 	allegation.
In allegation 4, 	Petrich asserts 	that 	he was 	subjected 	to
reprisal 	and 	unilateral 	change when 	the 	District 	denied 	his
after-the-fact 	request 	for 	personal 	necessity 	leave 	and 	docked
him six 	and 	one-half 	hours 	pay. 	He 	alleges 	that 	he 	took 	off
the entire workday of March 7, 	1985, 	in order 	to attend a PERB
informal 	conference 	held 	that 	day at 	3:30 	p.m. 	in Riverside.
He 	claims 	disparate 	treatment 	because 	two 	representatives 	of
the California 	School Employees Association 	(CSEA) 	were 	given
leave time 	to attend the conference and, 	in 1982, 	the District
had 	granted 	Petrich 	one 	day 	of 	personal 	necessity 	leave 	to
attend 	an 	informal 	conference.
Upon 	investigating 	the 	charge, 	the 	regional 	attorney
learned 	that 	the 	CSEA representatives 	had 	only 	been 	granted
leave 	from 2:45 	p.m. 	to 	the 	end 	of 	the day. 	and 	the 	full 	day of
leave was 	granted 	in 	1982 	because 	the 	conference was 	held 	not
at 	3:30 	in Riverside 	but 	at 	noon 	in downtown Los Angeles.
Petrich was 	granted 	the 	same 	leave 	time 	as 	the 	CSEA
representatives, 	but was docked for 	the 	earlier 	hours 	of 	the
day 	taken without 	permission.
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In her warning 	letter 	of August 	16. 	the 	regional 	attorney
informed 	Petrich 	that 	she 	had 	received 	this 	supplementary
information. 	The 	letter 	stated 	that 	if 	Petrich felt 	there were
facts 	or 	legal 	argument which would 	support 	a 	different
conclusion, 	he 	could 	submit 	that 	input 	by filing an amended
charge. 	Petrich submitted 	nothing 	further 	to 	the 	regional
attorney.
The 	information 	obtained 	by 	the 	regional 	attorney 	in 	this
instance 	does 	not 	contradict 	the 	facts 	pled 	by Petrich 	in his
charge; 	rather, 	it expands upon the factual picture. 	Thus, 	the
regional 	attorney did 	not 	violate 	the 	San Juan rule 	in
crediting this 	information. 	Because 	of 	this, 	and 	because
Petrich 	supplied 	no 	further 	pleading 	on 	this matter, 	the
regional 	attorney 	could 	properly 	rely 	on 	the 	newly-obtained
information. 	Taken as 	a whole, 	the facts 	presented 	fail 	to
establish a 	prima 	facie 	case 	of 	either 	reprisal 	or 	unilateral
change. 	The dismissal 	of 	this 	allegation 	is 	therefore 	affirmed.
In allegation 5. 	Petrich asserts 	that 	by docking him six
and 	one-half 	hours 	pay without 	prior 	notice, 	the District
violated 	contract 	section 	19.1, 	which requires 	that 	the
District 	first 	give 	him advance 	notice 	and 	the 	opportunity 	to
request 	a 	hearing. 	However, 	in a 	telephone 	conversation with
the 	regional 	attorney, 	Petrich admitted 	that he 	had 	in fact
received 	the 	notice. 	He was 	advised 	in 	the warning 	letter 	of
the 	regional 	attorney's 	intention 	to 	rely on this 	admission 	but
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did 	not 	contest 	it 	and 	does 	not 	contest 	it 	on appeal. 	We
therefore 	affirm 	this 	dismissal.
In allegations 	6 	and 	13. 	Petrich alleges 	that 	on or 	about
March 21. 	and again on May 29 and 	31. 	1985, 	his briefcase,
which was 	locked 	in the 	trunk of 	his 	car. 	was 	opened 	by-
unauthorized 	persons who were 	representatives 	of 	the District.
Upon 	inquiry 	by 	the 	regional 	attorney. 	Petrich 	revealed 	that 	he
has 	no 	evidence 	to 	prove 	this 	assertion.
The 	burden of 	proving a 	charge 	is 	upon the 	charging 	party.
Where, 	as here, 	the charging party has 	no evidence 	to prove his
allegation, 	no 	purpose 	is 	served 	by 	issuing a 	complaint. 	See
Los Angeles Unified 	School District 	(1984) 	PERB Decision
No. 473.
In allegation 7, 	Petrich alleges 	that North School 	Plant
Supervisor 	Hodnett 	removed 	the 	master 	key 	from Petrich's 	set 	of
work 	keys 	and 	replaced 	it with a 	"section" 	key which 	gives 	him
access 	to 	locked 	doors 	only 	in a 	limited 	area. 	Petrich argues
that 	this was 	an act 	of 	reprisal.
In order 	to establish a prima 	facie case of 	reprisal, 	a
charging 	party must 	allege 	facts 	which 	support 	an 	inference
that 	an employee's 	exercise 	of 	protected 	rights was 	a
motivating factor 	in 	the 	employer's 	decision to 	take 	adverse
personnel 	action against 	that 	employee. 	In the 	instant 	charge,
Petrich 	has 	alleged 	that 	he 	engaged 	in 	protected 	activity,
consisting 	primarily 	of 	filing 	grievances 	with 	his 	employer 	and
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filing unfair 	practice 	charges 	with 	this 	agency. 	He 	has 	also
alleged 	that 	the 	employer 	took 	action which was 	at 	least
arguably adverse 	to 	him. 	However, 	no 	facts 	are 	alleged which
raise 	an 	inference 	that 	the 	protected 	activity was 	a 	causative
factor 	in 	the 	employer's 	decision 	to 	take 	that 	action. 	The
mere 	fact 	that 	a 	disciplined 	employee 	has 	been active 	in
exercising protected 	rights 	does 	not, 	without more, 	raise 	the
inference 	that 	the 	discipline was 	an act 	of 	reprisal. 	The
dismissal 	of 	this 	allegation 	is 	therefore 	affirmed.
In allegation 11, 	Petrich asserts 	that his April 	1985
paycheck 	reflected 	a 	dock 	of 	a 	half 	day of 	wages 	because 	his
physician's verification of 	illness 	for March 25, 	1985 was
found 	unsatisfactory. 	The 	current 	CSEA-District 	contract
provides 	at Article 	XIX 	that 	the District 	may dock 	pay for 	an
absence without authority. 	It also 	provides 	that, 	prior 	to
docking 	pay, 	the 	employee 	is 	entitled 	to 	notice 	and 	the 	right
to 	an 	informal 	hearing with 	the 	immediate 	supervisor. 	Petrich
alleges 	that 	he was 	denied 	the 	right 	to 	notice 	and 	the
opportunity to 	request 	a 	hearing. 	He 	argues 	that 	the
District's 	conduct 	evidences 	a 	unilateral 	change 	in pay-docking
rules 	and 	in disciplinary procedure.
Upon 	investigation, 	the 	regional 	attorney 	learned 	that
Petrich 	has 	an 	extensive 	history 	of 	excessive 	and 	undocumented
sick 	leave. 	She 	concluded, 	therefore, 	that 	the District acted
within 	its 	contractual 	authority when, 	in February 1985. 	it
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notified 	Petrich 	that 	all 	future 	sick 	leave 	absences 	must 	be
documented 	by a 	physician's 	verification. 	She 	learned 	further
that 	on March 25. 	1985 	Petrich had 	left work for 	a 	doctor's
appointment 	and 	had 	failed 	to 	return without 	explanation,
thereby missing 	four 	and 	one-half 	hours 	of work. 	This was 	the
cause 	of 	the April 	pay dock. 	The 	regional 	attorney went 	on 	to
review the 	contract 	language 	at 	Article 	XIX 	and 	concluded 	that
the 	contractual 	right 	to 	prior 	notice 	and 	an opportunity 	to
request 	a 	hearing do 	not 	apply 	to 	the 	circumstances 	Petrich
raises.
Neither 	the 	charge 	nor 	the 	investigation 	present 	facts
which, 	if 	true, 	would show that 	the District has unilaterally
changed 	its 	policy 	on 	sick 	leave 	verification 	requirements.
Petrich 	has 	not 	alleged 	that 	he 	presented 	verification 	of 	a
kind which, 	in the past, 	has 	been accepted as adequate.
Rather, 	he 	only asserts 	that 	the verification he 	submitted was
found unsatisfactory 	by 	the District. 	We 	therefore 	affirm 	the
dismissal 	of 	the 	allegation 	that 	the District violated 	the EERA
when 	it 	rejected 	Petrich's 	proffered 	verification 	of 	his 	sick
leave claim for March 25. 	1985.
On our 	own 	review of 	the 	contract 	provision 	on 	prior 	notice
of 	disciplinary action, 	however, 	we 	find 	it not at 	all 	certain
that 	the 	regional 	attorney's 	interpretation of 	the 	contract 	is
correct. 	Article XIX 	is 	expressly 	entitled 	"Disciplinary
Action and Dismissal 	Procedures" 	and 	specifically 	provides 	for
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pay docking, 	yet 	the 	regional 	attorney 	concluded 	that 	Petrich's
dock was 	not 	a 	form of 	discipline 	and 	thus 	does 	not 	give 	rise
to 	the 	rights Petrich claims. 	In 	light 	of 	this uncertainty, 	it
appears 	that 	the 	regional 	attorney violated 	the 	San Juan 	rule
by discrediting 	the 	contract 	interpretation 	proffered 	in 	the
charge. 	We will 	therefore 	order 	that 	a 	complaint 	should 	issue
on 	this 	unilateral 	change 	allegation.
In allegation 14. 	Petrich asserts 	that his May 1985 	pay
warrant 	reflected 	a 	dock 	of 	one 	and 	one-half 	days 	for 	April 	22
and 	23. 	1985. 	He alleges 	that he 	submitted 	a 	physician's
verification certificate which covers 	the days 	of April 	22. 	23.
and 	25. 	Petrich says 	he 	inquired 	of 	plant 	supervisor 	Hodnett
about 	the matter 	and Hodnett 	responded 	that 	he 	had 	not 	received
any 	such verification.
Upon 	investigation, 	the 	regional 	attorney 	received
information from the District 	that 	it 	has 	no 	record 	in 	its
files 	of 	the 	physician's 	verification 	certificate 	in question.
The District 	does 	not 	deny 	that 	Petrich may 	have 	submitted 	such
a 	certificate, 	but 	only that 	it did 	not 	receive 	it.
The 	facts 	here 	presented 	fail 	to 	show that 	the District 	has
embarked 	on a 	new policy 	of 	denying 	sick 	leave 	to 	employees 	who
have 	submitted 	verification. 	As 	the 	regional 	attorney
concluded. 	Petrich may well 	have 	had 	a 	basis 	for 	filing a
grievance 	(although he did not file one), 	but 	the facts
presented 	fail 	to 	evidence 	a 	change 	in policy having 	"a
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generalized 	effect 	or 	continuing 	impact 	upon 	the 	terms 	and
conditions 	of 	employment." 	Grant 	Joint Union High School
District 	(1982) 	PERB Decision No. 	196. 	Petrich also argues
that 	the District's 	course 	of 	conduct was 	an act 	of 	reprisal.
However, 	no 	facts 	are alleged which would 	show a 	nexus 	between
this 	conduct 	and 	any protected 	activity on Petrich's 	part. 	We
therefore 	affirm the 	dismissal 	of 	this 	allegation.
In allegation 	19. 	Petrich asserts 	that 	the District 	changed
his 	assigned work 	hours 	for 	the 	period 	June 	21 	through
August 	30, 	1985 	from 7:00 	a.m. 	until 	4:00 	p.m. 	to 	6:00 	a.m.
until 	2:30 	p.m., 	with one-half 	hour 	for 	lunch 	instead 	of 	one
hour. 	He 	states 	that, 	even though the District 	may have
changed 	the 	summer work hours 	in this manner 	in years 	past, 	it
has 	more 	recently agreed 	that, 	once 	an employee's work hours
are 	established, 	any change 	in those hours 	is 	negotiable. 	Upon
investigation, 	the 	regional 	attorney received 	information 	that
the District 	had 	in 	fact 	changed 	the 	summer 	hours 	of 	gardeners
in this 	manner 	for 	many years 	past. 	She 	concluded 	that 	this
practice 	established 	the 	applicable 	policy and 	that 	the
District's 	alleged 	action 	therefore 	did 	not 	appear 	to 	deviate
from 	that 	policy.
Here, 	the 	regional 	attorney has 	again run afoul 	of 	the
San Juan 	rule. 	Petrich has 	specifically alleged 	that 	current
policy obligates 	the District 	to 	negotiate 	prior 	to 	changing 	an
13

employee's 	hours, 	notwithstanding past 	practice. 	This 	factual
allegation must 	be 	deemed 	true 	for 	purposes 	of 	charge
processing. 	We 	therefore will 	order 	that 	a 	complaint 	should
issue 	on this 	matter.
In allegation 20. 	Petrich asserts 	that 	the District made a
unilateral 	change 	by 	switching 	the 	night 	shift 	employees 	to 	the
day 	shift 	and 	reducing 	their 	lunch 	hour 	by 	one-half 	hour.
Petrich has 	stated 	in his 	charge 	that 	he 	is 	a day shift
employee. 	As 	such, 	it 	appears 	that 	he was unaffected 	by the
change 	in hours 	of 	night 	shift 	employees. 	The Board 	has
previously 	held 	that 	an 	individual 	employee 	has 	standing 	under
the Act 	to 	bring a 	charge 	alleging a unilateral 	change 	in
negotiable working 	conditions. 	South San Francisco Unified
School District 	(1980) 	PERB Decision No. 	112. 	However, 	nowhere
in PERB's 	decisions, 	nor 	in California 	law generally, 	has
standing 	been 	found 	for 	a 	party who 	is 	entirely unaffected 	by
the 	complained-of 	conduct. 	We 	decline 	to 	adopt 	such a 	rule.
We 	therefore 	affirm 	the 	dismissal 	of 	allegation 	20.
ORDER
Upon the 	entire 	record 	in 	this 	case, 	including 	the 	request
for 	reconsideration of 	PERB Decision No. 	562 	filed 	by
Tony Petrich, 	the 	Public Employment Relations 	Board 	ORDERS 	that
this 	case 	be REMANDED to 	the 	general 	counsel with directions 	to
issue 	a 	complaint 	consistent with 	the 	foregoing Decision.
14

Members Morgenstern and Burt 	joined 	in 	this Decision.
Member 	Porter's 	concurrence and 	dissent 	begins 	on p. 	16,
Chairperson Hesse 	joined 	in his 	concurrence 	and 	dissent.
15

Porter, 	Member, 	concurring and dissenting: 	I 	concur 	in
the 	majority's 	denial 	of 	part 	of 	Petrich's 	request 	for
reconsideration, 	but 	respectfully 	dissent 	from 	the 	remainder
of 	the 	majority 	opinion's 	decision 	to 	grant 	reconsideration.
As 	to 	the merits 	of 	the 	reconsideration 	itself, 	I 	concur 	in
those 	portions 	of 	the 	majority 	decision 	that 	affirm 	the
regional 	attorney's 	dismissal, 	but 	dissent 	from 	those 	portions
that 	would 	issue 	a 	complaint.
Reconsideration
I 	concur 	in 	the 	majority's 	denial 	of 	reconsideration 	as 	to
a 	portion 	of 	Charging 	Party's 	request. 	However, 	I 	would 	deny
the 	remainder 	of 	the 	request 	on 	the 	ground 	Petrich 	has 	failed
to 	bring 	his 	request 	within 	the 	requirements 	of 	Regulation
32410(a). 	That 	regulation 	states 	in 	relevant part:
The 	grounds 	for 	requesting 	reconsideration
are 	limited 	to 	claims 	that 	the 	decision 	of
the 	Board 	itself 	contains 	prejudicial 	errors
of 	fact, 	or 	newly 	discovered 	evidence 	or 	law
which 	was 	not 	previously 	available 	and 	could
not 	have 	been 	discovered with 	the 	exercise
of 	reasonable 	diligence.
Regarding 	Petrich's 	claim 	that 	the 	Board 	failed 	to 	take
note 	of 	his 	initial 	appeal 	of 	the warning 	letter, 	Petrich was
clearly 	notified 	by 	the 	Executive 	Director 	that 	our 	regulations
do 	not 	permit 	an 	appeal 	of 	a warning 	letter. 	Apparently 	in
response 	to 	this 	letter, 	Petrich 	filed 	his 	appeal 	that 	was
considered 	by 	the 	Board. 	This 	appeal 	failed 	to mention 	or 	in
any way 	reference 	or 	incorporate 	the 	premature 	appeal 	and, 	on
16

that 	basis, 	the 	Board 	disregarded 	the 	premature 	appeal. 	I 	see
no 	reason 	now 	to 	reconsider 	this 	decision. 	The 	fact 	that
Petrich 	is 	representing 	himself 	does 	not 	persuade 	me 	the 	Board
should 	apply 	a 	different 	standard 	to 	him, 	especially 	since 	he
is 	quite 	experienced 	in PERB 	proceedings, 	and was 	given 	full
notice 	and 	adequate 	opportunity 	to 	correct 	the 	deficiency.
Specific 	Allegations
The 	majority 	opinion 	reverses 	the 	regional 	attorney's
dismissal 	of 	allegations 	2, 	3, 	11 	and 	19 	insofar 	as 	they allege
unlawful 	unilateral 	changes. 	Allegations 	2, 	3 	and 	11 	assert
that 	the 	District 	violated the 	contract 	in 	various 	ways. 	I
would 	affirm 	the 	regional 	attorney's 	dismissal 	of 	those
allegations, 	for 	the 	same 	reasons as 	I 	discussed 	in my
concurrence 	and 	dissent 	in 	Riverside 	Unified 	School 	District
(1986) 	PERB Decision No. 	571, 	namely, 	that 	they fail to allege
a 	change 	in 	policy 	that 	has 	a 	generalized 	effect 	and 	continuing
impact, 	Grant 	Joint 	Union High 	School 	District 	(1982) 	PERB
Decision No. 	196, 	and 	that 	an 	individual 	employee 	lacks
standing 	to 	assert 	a 	unilateral 	change 	in 	policy 	based 	on 	the
collective 	bargaining 	agreement.
Regarding 	allegation 	19, 	I 	disagree 	that 	the 	regional
attorney made 	a 	factual 	resolution 	that 	is 	contrary 	to 	San 	Juan
Unified School 	District 	(1977) 	EERB Decision 	No. 	12. 	In 	his
charge, 	Petrich 	asserts 	on pages 	2 	and 	3 	of 	the 	Fourth Amended
Charge:
17

Assuming 	arguendo, 	that 	the 	employer 	has
effectuated 	implementation 	of 	alleged 	"past
practice": 	1) 	said practice 	does 	not apply
to 	Charging 	Party 	because 	the 	employer
agreed 	that 	once 	an 	employee's 	work 	hours
have 	been established, 	a change 	is
negotiable. . . .
Thus, 	it 	appears 	that 	Petrich 	recognized 	the 	employer's 	past
practice 	in 	his 	charges, 	but 	claimed 	he 	was 	exempted 	from 	that
past 	practice 	based 	on 	the 	employer's 	agreement 	to 	negotiate 	a
change 	in 	his work 	hours. 	This 	charge 	fails 	to meet 	the 	Grant
standard, 	because 	it 	is 	clear 	there 	is 	no 	generalized 	effect 	in
the 	employer's 	alleged 	conduct. 	The 	regional 	attorney's
investigation 	merely 	confirmed 	what 	Petrich 	included 	in 	his
charges 	regarding 	the 	past 	practice, 	and 	therefore, 	there was
no 	disputed 	fact 	which 	she 	resolved. 	Further, 	since 	Petrich
failed 	to 	allege 	any 	further 	facts 	regarding 	the 	"agreement,"
his 	allegation 	cannot 	be 	read 	to mean 	that 	this 	"agreement"
changed 	the 	existing 	practice. 	(See 	the 	discussion 	in my
concurrence 	and 	dissent 	in Riverside 	Unified 	School 	District,
supra, 	regarding 	the 	same 	allegation of 	a 	District 	"agreement"
to 	negotiate 	a 	change 	in 	schedule.)
For 	the 	foregoing 	reasons, 	I 	would 	deny 	in 	toto 	Charging
Party's 	request 	for 	reconsideration, 	or 	alternatively, 	I would
summarily 	affirm 	the 	regional 	attorney's 	dismissal 	of 	the
allegations 	before 	us.
Chairperson 	Hesse 	joined 	in 	this 	Concurrence 	and 	Dissent.
18

STATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN, 	Governor Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1301
LOS ANGELES, CALIFORNIA 	90010
(213) 736-3127
August 	16, 	1985
Tony 	Petrich
Re: 	LA-CE-2188, Tony Petrich v. 	Riverside Unified
School District
Dear Mr. Petrich:
The above-referenced charge 	filed on May 22, 	1985 	and 	four 	amended
charges 	filed 	thereafter 	allege 	that 	the 	Riverside 	Unified 	School
District discriminated 	against Mr. Petrich 	and 	acted 	unilaterally 	i
violation of Government Code 	section 3543.5(a), (b), 	and 	(c) 	of 	the
Educational Employment Relations Act 	(EERA).
The charge 	filed on May 22, 	1985 alleges:
1. 	A March 4, 	1985 memorandum to Mr.
Petrich 	from District 	Superintendent 	Frank
C. 	Tucker memorialized an 	incident on 	the
same date 	whereby Mr. 	Petrich entered Mr.
Tucker's 	office when 	neither 	he 	nor 	his
secretary were present. 	The memorandum
directed Mr. 	Petrich 	not 	to enter
Mr. 	Tucker's office unless 	he was present.
See paragraphs 6 	through 9 	and exhibits 1
through 4 	of 	the charge.
2. 	Mr. 	Tucker 	failed 	to hold a 	level II
conference 	for 	a February 7, 	1985 grievance
filed by Mr. 	Petrich 	in violation of 	the
District's obligation 	set 	forth 	in 	section
18.2.2 of 	the 	1982-85 	agreement between the
District and Mr. 	Petrich's 	exclusive
representative. 	See paragraphs 6, 	7 	and 10
and 	exhibits 	1 and 5 	of 	the charge.
3. 	On March 8r 	1985, 	Mr. Petrich 	filed a
grievance 	regarding 	Mr. 	Tucker's March 4,
1985 	memorandum mentioned 	in 	paragraph 	1
above. 	In violation of 	subsection 	18.2.1 of
_..,

August 16, 	1985
LA-CE-2188
Page 	2
the 	negotiated contract, 	North High School
Plant Supervisor 	Hodnett advised Mr. 	Petrich
that 	he would not hold a 	level 	I
conference. 	Instead, 	the grievance was
submitted 	to North High School 	Principal
Douglas Wolf 	who 	in 	turn submitted 	it 	to
Mr. 	Tucker who held 	the 	level 	I conference
himself on March 21, 	1985. 	Mr. Tucker's
reply was drafted 	in the 	space on the 	form
reserved 	for 	the 	immediate 	supervisor's
response 	and Mr. 	Tucker changed 	the 	form 	to
read, 	"Grievance Form-Level II". 	See
paragraphs 11 through 14 and exhibits 	3, 	6
and 	7 of 	the charge.
4. 	On March 15, 	1985, 	in a "derogatory
communication" 	from Mr. 	Tucker placed 	in Mr.
Petrich's personnel file, 	the District
denied Mr. 	Petrich personal 	necessity 	leave
for March 	7, 	1985 when he attended a 	PE?3
informal 	conference 	concerning 	unfair
practice charge 	LA-CE-2097. 	For 	a prior
similar 	occasion 	the 	District had 	approved
personal 	necessity 	leave with pay. 	See
paragraphs 17, 	18 and 	32 and exhibits 	8 and
9 of 	the charge.
5. 	When 	Mr. 	Petrich attended the March 7,
1985 	PERB 	informal conference described 	in
paragraph 	4 above, 	the District docked him
6-1/2 	hours 	pay 	without previous 	notice
which would 	have 	afforded him the 	right 	to
request a 	hearing 	as provided 	in section
19.1 	of 	the 	negotiated contract. 	See
paragraphs 17, 18, 31, 32, 33 and 34 and
exhibits 	7, 	8 and 9 of the charge.
6. 	Beginning on or 	about March 21, 	1985,
Mr. 	Petrich's brief case, 	which was 	locked
and 	secured 	in the 	trunk of his car, 	was
opened 	on more 	than one occasion by
unauthorized persons. 	See paragraphs 	19,
23, 	26, 	29, 	32 and 33 of the charge.
7. 	On or about March 28, 	1985, Mr. 	Hodnett,
absent prior 	notification or 	any
justification, 	removed 	the master 	key 	from
Mr. 	Petrich's district 	ring 	set and

August 16, 	1985
LA-CE-2183
Page 3
replaced 	it 	with a 	new 	"section" 	key 	which
denies 	his 	free access to and from one of
his assigned 	work areas. 	See paragraphs 	21,
32 and 	33 	of 	the charge and paragraph 9 	of
the 	first 	amended 	charge.
8. 	On March 	28, 	1985 Mr. 	Petrich received a
"derogatory communication" 	from Mr. 	Hodnett,
also placed 	in his personnel file, 	stating
that Mr. 	Petrich 	failed 	to obey directions
because 	he 	replaced 	a broken light cover 	in
the Attendance Office 	in direct
contradiction 	to 	instructions and 	failed 	to
clean 	the girls' 	restroom. 	See paragraphs
22, 	32 and 33 and exhibit 10 of the charge.
9. 	On April 	2, 	1985, Mr. 	Petrich received a
"derogatory memorandum" 	from Mr. 	Hodnett,
also placed 	in his personnel file, 	stating
that Mr. 	Petrich 	failed to properly clean
the girls' 	restroom and 	left 	it unlocked.
See paragraphs 25, 	32 and 	33 and exhibit 	11
of 	the 	charge.
10. 	On April 	26, 	1985 Mr. 	Petrich received a
"derogatory memorandum", also placed 	in 	his
personnel 	file, 	from North High School
Vice-Principal 	Richard Moshier 	concerning
Mr. 	Petrich's 	"insubordination" 	in refusing
to comply 	with parking 	regulations 	at 	the
high 	school. 	This document was allegedly
drafted 	and placed 	in 	the personnel file
because 	Mr. 	Petrich 	requested 	representation
at a meeting 	held 	on the 	same date 	to
discuss the 	issue. 	See paragraphs 26, 	28,
29, 	32 and 33 and exhibit 12 of the charge.
11. On April 30, 	1985, Mr. Petrich noticed
that 	his 	April pay warrant reflected 	a dock
for 	1/2 	day without 	a 	hearing 	because 	his
physician's 	verification of 	illness 	for
March 	25, 	1985 	was found unsatisfactory.
See paragraphs 30, 31, 32, 33 and 34 and
exhibits 	13 	and 	14 of the charge.
12. 	V7hen questioned 	regarding 	the April pay
dock described 	in paragraph 11 above, 	Mr.
Hodnett presented Mr. 	Petrich with a

August 16, 	1985
LA-CE-2188
Page 	4
"derogatory memorandum" 	dated 	April 	29,
1985, 	also placed 	in his personnel file,
containing 	a 	list of Mr. 	Petrich's sick
leaves and 	other 	absences 	since
his 	reassignment 	to North High School on
February 	25, 	1985, 	noting the absence of
physician verifications, 	and 	referencing
occasions when the girls' 	restroom was not
clean. 	See paragraphs 30, 	31, 	32, 	33 and 34
and exhibits 	13 	and 14 of 	the charge.
The 	first 	amended charge 	filed on June 10, 	1985 alleges:
13. 	With 	reference to paragraph 6 above, 	on
May 	29 	and 	31, 	1985 Mr. 	Petrich found 	fresh
pry marks 	on 	the 	trunk 	rail of his car 	and
determined 	that 	someone 	had 	searched 	his
briefcase. 	See paragraphs 4 and 10 of 	the
first 	amended charge.
14. On May 31, 	1985, Mr. 	Petrich noted that
Mr. 	Hodnett 	had docked 	his May pay warrant
1-1/2 days' 	pay for April 	22 and 23, 	1985
although Mr. 	Petrich 	had 	submitted a
physician's certificate of 	illness. 	See
paragraphs 	5, 	10 	and 	11 and exhibit 1 of 	the
first amended charge, 	and exhibit 14 of 	the
charge.
15. 	The District proposed 	a 30-workday
suspension against Mr. 	Petrich. 	See
paragraphs 	7 and 	8 of 	the charge.
16. On June 7, 	1985, Mr. 	Petrich received a
"derogatory communication" from Mr. 	Hodnett,
also placed in his personnel file, 	stating
that Mr. 	Petrich was late 	to work on various
occasions, 	failed 	to follow his assigned
work schedule 	and 	otherwise 	did 	not 	perform
his duties. 	See paragraphs 9 and 10 and
exhibit 	2 	of 	the 	first 	amended charge.
The 	second 	amended charge 	filed on June 18, 	1985 	alleges:
17. On June 14, 	1985, Mr. 	Petrich received a
"derogatory communication" 	dated 	June 	12,
1985 from Principal Wolf, 	also placed 	in his
personnel file, 	alleging 	that on May 30,

August 16, 	1985
LA-CE-2188
Page 	5
1985 Mr. 	Petrich had a student purchase a
package of cigarettes for him. 	Mr. 	Petrich
was 	directed 	not 	to 	send 	students 	off 	campus
on errands in the future. 	See paragraphs 	3
and 	4 	and 	exhibit 1 of the 	second amended
charge.
The 	third 	amended charge 	filed on June 	24, 	1985 alleges:
18. On June 20, 	1985, Mr. Petrich received a
"derogatory communication" 	dated June 	19,
1985 from Mr. 	Wolf, 	also placed in his
personnel file, 	stating that Mr. 	Petrich had
made 	various offensive 	statements 	to a
teacher 	in 	several 	conversations. 	The memo
asked Mr. 	Petrich to refrain from further
attentions 	in the future. 	See paragraphs 	5
through 7 	and 	exhibit 	1 of 	the third 	amended
charge.
The 	fourth 	amended charge 	filed on July 	5, 	1985 	alleges;
19. On June 19, 1985, Mr. Petrich received
written notification 	from Mr. 	Hodnett 	that
effective June 21 through August 30, 	1985,
his 	work 	hours 	would 	be changed 	from 	7:00
a.m. 	- 	3:30 p.m. 	to 6:00 a.m. 	- 2:30 p.m.,
and 	his 	lunch 	hour 	would 	be 	1/2 hour 	instead
of one hour. 	See paragraphs 3, 	7 and 	8 and
exhibit 	1 of 	the 	fourth amended charge.
20. 	The District changed the entire night
shift, 	with the exception of two
individuals, 	to a day shift and reduced
their 	lunch hour 	to 1/2 hour. 	See
paragraphs 3, 	7 and 8 and exhibit 1 of 	the
fourth 	amended 	charge.
21. On June 26, 1985, Mr. Petrich attended
an 	evaluation 	conference wherein 	he was
represented by 	his exclusive
representative. 	He was presented with 	an
evaluation 	form which 	specified 	many 	factors
which 	were 	"unsatisfactory" 	or 	"improvement
needed". 	Mr. 	Hodnett also 	indicated on 	the
form, 	"I 	believe if Tony is to avoid
termination he must come 	to 	95% of 	the

August 16, 	1985
LA-CE-2183
Page 	6
workdays, 	work diligently for a full 	shift
each day, 	accept direction cheerfully, 	and
do quality 	work." 	Attached 	to 	the
evaluation were 	all of 	the 	"derogatory
materials" 	given Mr. 	Petrich between March
28 and June 19, 	1985. 	Also attached was a
"derogatory written 	statement" 	drafted by
another 	employee which Mr. 	Petrich alleges
is 	improperly attached 	to 	the evaluation.
See paragraphs 	6 through 9 and exhibit 	2 of
the 	fourth amended charge.
My 	investigation 	revealed 	the 	following 	facts 	regarding 	the 	above
allegations. 	Mr. 	Petrich has been employed by the District for
approximately 	seventeen years. 	He 	has had a 	history of personnel
issues with the District since 1982. 	In 1982 Mr. 	Petrich filed 	five
grievances pursuant 	to 	the 	grievance procedure 	negotiated 	between
the District and 	his exclusive 	representative, 	the California School
Employees Association 	(CSEA).
In 	1984 Mr. 	Petrich filed 	two grievances 	regarding 	the placement 	of
alleged derogatory materials 	in his personnel 	file. 	He 	also filed
two unfair 	practice charges 	against 	the District. 	The 	first was
charge LA-CE-2097 	filed on November 	27, 	1984. 	The 	second was charge
LA-CE-2112 	filed on December 	26, 	1984. 	Both charges resulted 	in
partial dismissals 	and 	partial complaints 	issued 	respectively on
January 	15 	and 	April 	2, 	1985. 	No decision has yet 	issued 	after 	the
joint 	formal hearing was held 	in July 1985.
In 	1985 Mr. 	Petrich filed 	numerous grievances 	and 	unfair 	practice
charges 	as 	summarized 	here 	and 	in 	the attached 	"Summary 	of 	Petrich
Cases":
1. 	Charge LA-CE-2114 	filed 	on January 2,
1985 	resulted 	in a 	dismissal affirmed 	by 	the
Board 	in 	Petrich v. 	Riverside Unified 	School
District 	(1985) 	PERB Decision No. 	511.
2. 	Charge LA-CE-2129 	filed on February 4,
1985 	resulted 	in a dismissal affirmed 	by the
Board 	in 	Petrich 	v. 	Riverside 	Unified 	School
District 	(1985) 	PERB Decision No. 	512.
3. 	Charge LA-CE-2130 	filed on February 	4,
1985 	resulted 	in a partial complaint 	and a
partial 	dismissal 	affirmed 	by 	the Board 	in
Petrich 	v. 	Riverside Unified 	School 	District
(1985) 	PERB Decision No. 	513.

August 16, 	1985
LA-CE-2188
Page 	7
4. 	Charge LA-CE-2131 	filed 	on February 	4,
1985 	resulted 	in a dismissal presently on
appeal to the Board.
5. 	Charge LA-CE-2134 	filed on February 	11,
1985 	resulted 	in a partial complaint and a
partial dismissal presently on appeal to 	the
Board.
6. 	Charge LA-CE-2143 	filed on March 	1, 	1985
resulted 	in a partial complaint and a
partial dismissal presently on appeal 	to 	the
Board.
Based 	on the 	following 	facts and 	reasons, 	certain of 	the paragraphs
alleged 	in 	the 	instant charge 	and 	four 	amended charges will be
dismissed absent amendments which would cure 	the defects. 	A
complaint will 	issue 	on the 	allegations 	referred to 	in paragraphs 	1,
8, 9, 	10, 12, 16, 17 and 18 above.
2. 	The charge 	alleges that the District 	failed to 	hold 	a 	level 	II
conference 	for 	a February 	7, 	1985 grievance 	filed 	by Mr. 	Petrich in
violation of the District's obligation set forth 	in section 18.2.2
of 	the 	collective 	bargaining agreement. 	In 	fact the conference was
held at the District office at 	3:00 p.m. 	on March 	7, 	1985, 	just
before 	the 	PERB 	informal conference 	held at 	3:30 p.m. 	on 	the same
date described 	in paragraph 4, 	infra. 	Present were Mr. 	Tucker
representing 	the District 	and 	CSEA 	representatives 	Corona 	and
Prince. 	Mr. 	Petrich did not appear.
No violation of 	the 	EERA exists here because 	the District conformed
to the 	negotiated contract. 	It may be that Mr. 	Petrich did not
receive 	notice 	of 	the 	level 	II conference although 	his CSEA
representatives did. 	If there was such a mistake, 	there has been no
showing 	of 	a policy change 	having 	a 	"generalized 	effect 	or
continuing 	impact 	upon the 	terms 	and 	conditions of 	employment" 	as
required by Grant 	Joint Union High School District 	(1982) 	PERB
Decision No. 	196. 	Therefore this allegation of the charge will be
dismissed.
3. 	It 	is undisputed that Mr. 	Petrich's March 8, 	1985 grievance
concerning 	the memorandum directing 	him not 	to 	enter Mr. 	Tucker's
closed 	office 	was 	not processed 	at 	level 	I 	of 	the 	grievance
procedure, 	but 	instead was forwarded directly to Mr. 	Tucker for
response. 	While 	the contract does 	not expressly allow this the
District has 	records 	indicating 	a past practice, 	in which CSEA has

August 16, 	1985
LA-CE-2188
Page 	8
acquiesced, 	of 	bypassing 	the 	first 	step of 	the grievance procedure
when 	the 	lower-level 	supervisors would be unable 	to effectuate 	a
remedy. 	In 	the present case 	both Plant Supervisor 	Hodnett and
Principal 	Wolf 	had 	no 	knowledge of 	the office 	incident nor any
ability 	to 	remedy 	the 	grievance.
Unless Mr. 	Petrich can produce 	facts demonstrating 	a different past
practice 	and a deviation from that practice, 	this 	aspect of the
charge 	will be dismissed 	since 	no unilateral change has been
demonstrated.
4. 	The District denied Mr. 	Petrich 8 hours' personal necessity
leave 	for March 	7, 	1985 when he attended a PERB 	informal conference
concerning 	unfair 	practice charge 	LA-CE-2097. 	It 	docked 	him 	6-1/2
hours' 	pay. 	Mr. 	Petrich claims that the District 	had previously
allowed him personal 	necessity 	leave 	to 	attend 	an 	unfair practice
informal conference 	and 	that he 	received disparate 	treatment as
compared 	to his CSEA 	representatives who also attended 	the March 	7
informal conference.
On March 7, 	1985, 	the 	informal conference was held at 3:30 p.m. 	in
Riverside. 	Mr. 	Petrich took the entire day off 	from work without
permission. 	When 	he claimed personal necessity 	leave 	for 	the
occasion, 	the 	District 	allowed him one hour 	released time from 	2:30
to 3:30 p.m. 	for clean-up and travel time, 	and from 3:30 p.m. 	to the
end of his shift 	at 	4:00 p.m. 	for 	the informal conference. 	Mr.
Petrich was docked 	for 	the 	remainder 	of 	the time 	taken off.
Also present 	at 	the 	informal conference were CSEA 	representatives
Corona and 	Prince. 	The District 	records 	show that Mr. 	Corona 	left
work 	at 	2:50 p.m. 	and Mr. 	Prince at 	2:45 p.m. 	to 	attend a 	3:00 p.m.
level 	II grievance hearing concerning Mr. 	Petrich's February 7, 	1985
grievance 	referenced 	in paragraph 	2 on page 1 of 	this letter.
Thereafter, 	they 	attended 	the 	3:30 p.m. 	informal conference. 	Both
received 	released 	time 	from 2:50 p.m. 	or 	2:45 p.m. 	until 	the end of
their 	work 	day.
The previous 	PERB 	informal conference to which Mr. 	Petrich refers 	in
case 	LA-CO-230 was 	held midday on June 	15, 	1982 at the PERB 	regional
office 	in downtown 	Los Angeles, 	thereby necessitating an entire day
off 	from work. 	Under 	section 13.5.2(8) 	of 	the 	negotiated contract,
personal 	necessity 	leave 	is allowed 	at the 	"discretion of 	the
District" 	with certain caveats which do not apply 	to the 	instant
situation.
The 	foregoing 	facts do 	not show a change 	in the District's policy 	in
release 	time 	or 	disparate 	treatment of Mr. 	Petrich as compared to

August 16, 	1985
LA-CE-2188
Page 9
his CSEA representatives. 	In 	fact 	they show a consistent policy and
practice. 	Because there has been no unilateral change, 	this aspect
of 	the charge will 	be dismissed.
5. 	The charge 	alleges 	that the District docked Mr. 	Petrich 	6-1/2
hours' 	pay 	for 	the March 7, 	1985 	informal conference described above
without previous 	notice which would 	have 	afforded 	him the 	right 	to
request a 	hearing 	as provided 	in section 19.1 of 	the 	negotiated
contract. 	However, on July 12, 	1984, Mr. Petrich stated in a
telephone 	conversation with the Regional Attorney 	that 	he did 	in
fact 	receive the notice, 	request a hearing, 	and attend a hearing
held on March 	22, 	1985. 	Therefore, 	this aspect of 	the charge will
be 	dismissed.
6 and 13. 	Mr. 	Petrich alleges that his brief case, 	which was locked
and 	secured 	in the 	trunk of 	his car, 	was opened on more 	than one
occasion by 	unauthorized persons. 	He 	assumes 	those persons were
representatives of 	the 	District. 	He has no evidence 	tending to 	show
that a representative 	of the District left pry marks on 	the trunk
rail of his car or 	searched his brief case other 	than the 	facts
recited 	in paragraphs 19, 	23, 	26 and 29 of 	the charge and paragraph
4 	of 	the 	first 	amended 	charge. 	Since these 	factual allegations 	are
insufficient to prove 	the matter, 	these paragraphs of 	the charge
will be dismissed.
7. 	The charge alleges that Mr. 	Hodnett, 	absent prior notification or
any justification, 	removed 	the master key from Mr. 	Petrich's ring
set and 	replaced 	it with a 	"section" 	key which denies his 	free
access to 	and 	from the 	room where he stores his tools.
The District 	states 	that only 	four of 	15 custodian/gardeners carry a
master 	key. 	These are 	the Night Custodian, 	Saturday Custodian, 	Lead
Custodian, 	and 	the 	Custodian assigned to 	supply all 	rooms with paper
and 	other 	products. 	The Night Custodian and Saturday Custodian work
alone. 	The 	Lead 	and Supply Custodian may be 	located 	by 	the 	other
employees 	if 	they have need 	to enter 	rooms outside 	their assigned
section.
Mr. 	Petrich was originally given a master 	key because he was storing
his 	tools 	in an area where his section key did not work. 	However,
according 	to the District, 	he was using 	the master 	key to enter
areas he 	was not 	normally 	assigned 	to do work 	he 	selected 	and
preferred 	to do while 	he 	neglected his assigned duties. 	As a 	result
he 	was asked 	to return the master 	key and move 	his 	tools 	to an area
where 	the 	section 	key would work. 	He 	refused 	to do this.

August 16, 	1985
LA-CE-2188
Page 	10
The 	facts 	show no evidence of 	reprisal against Mr. 	Petrich because
he 	has 	not 	been 	treated differently 	than any other employee
similarly 	situated. 	The 	four 	employees who have master 	keys all
function 	in a 	special capacity. 	Additionally, 	assignment of master
keys 	is not a matter within 	the 	scope of 	bargaining 	and does not
affect Mr. 	Petrich's working conditions. 	The District retains the
managerial prerogative to assign Mr. 	Petrich work 	in the areas 	it
chooses and to give him access to those areas. 	The withdrawal of
the master 	key was 	not an action adverse 	to Mr. 	Petrich because it
did not affect 	his working conditions and was 	not 	a disciplinary
action. 	For these 	reasons, 	this aspect of the charge does not state
a prima 	facie 	case 	and will 	be dismissed.
11. 	The charge alleges that on April 30, 	1985 Mr. 	Petrich found that
his April 	pay 	warrant 	reflected 	a dock 	of 	1/2 	day 	because 	his
physician's verification of 	illness for March 	25, 	1985 was found
unsatisfactory. 	The District had notified Mr. 	Petrich in February
1985 that 	all 	future 	sick 	leave 	absences must 	be substantiated by 	a
physician's verification due 	to excessive use 	of 	sick 	leave 	in the
past. 	This procedure 	is authorized 	in the District's discretion by
section 13.3.4 	of 	the 	negotiated contract. 	The District 	states 	that
two other 	current 	employees are also 	required 	to provide
verification 	of 	sick 	leave 	and 	that 	other 	employees 	have 	been so
required 	in the past.
Mr. 	Petrich was 	absent on Friday, 	March 	22 for 	1-1/2 hours for a
doctor's 	appointment 	and did 	not provide 	verification. 	On Monday,
March 	25 	he had 	a doctor's, appointment and did 	not 	return to work
resulting 	in 	an 	absence 	of 	4-1/2 hours. 	On March 	26 he was present
at work 	and 	was 	requested 	to provide 	verification 	that 	he 	was unable
to 	return 	to work 	after 	the 	appointment on March 	25. 	He was absent
all day 	on March 	27. 	On March 	28 	he came 	to 	work 	and presented a
physician's verification that 	said 	he was 	sick 	on March 	22 but could
return to 	work 	on March 	28. 	On March 	29 	he was 	absent for 	1-1/2
hours 	for 	a doctor's appointment. 	On Monday, 	April 1 he was absent
all day. 	On April 	2 he presented 	a verification which said he was
under 	a doctor's 	care 	from March 	25 	to April 	1 	and could 	return to
work 	on April 	2. 	The District was confused because Mr. 	Petrich had
been back 	to work 	on 	several occasions 	during 	the 	time period
covered 	by the doctor's notes and Mr. 	Hodnett directed Mr. 	Petrich
to correct the 	inconsistencies. 	Mr. 	Petrich did 	not supply any
doctor's 	verification 	to correct 	the 	confusion 	nor 	did 	he 	bring 	in
the 	requested 	verification 	to cover 	the 	4-1/2 	hours on March 	25.
The District 	docked 	him 	for 	this 	time.
The 	negotiated 	contract 	provides 	in 	section 	19.0 	of 	Article XIX on
Disciplinary 	Action 	and 	Dismissal 	Procedures 	that 	the 	District may

August 16, 	1985
LA-CE-2188
Page 	11
dock pay 	for 	an 	absence without authority. 	According 	to the 	same
section 	the 	"District may 	impose discipline or 	dismissal on
permanent 	employees when 	the 	work performance or 	behavior 	of 	the
employee 	is 	such 	that prior 	verbal 	and/or 	written warnings by 	the
immediate 	supervisor 	have 	failed 	to 	result 	in a 	remediation of 	the
unsatisfactory performance 	or 	behavior." 	Section 19.1 provides 	that
a permanent 	employee has a 	right 	to 	request an 	the 	informal hearing
with 	the 	immediate 	supervisor prior 	to disciplinary action.
These 	sections 	on discipline do not 	apply to the 	instant situation
because Mr. 	Petrich's hours were not docked as 	a matter 	of
discipline. 	Rather, 	they were docked because he 	failed 	to provide 	a
physician's verification 	as 	allowed 	by the contract.
The 	foregoing 	facts do 	not 	indicate any 	irregularities 	in the
District's procedure in docking Mr. 	Petrich's pay for March 	25,
1985. 	For 	this 	reason 	this aspect of the charge will be dismissed.
14. 	On May 31, 	1985, 	Mr. 	Petrich noted that his May pay warrant was
docked 1-1/2 days' 	pay for April 	22 and 23, 	1985 although he had
submitted 	a physician's certificate of 	illness. 	The District's
files do not contain the April 	25, 	1985 verification which 	is
attached 	to the 	first 	amended charge as exhibit 	1. 	Absent this
verification the 	District docked Mr. 	Petrich's 	pay 	in accordance
with normal procedures.
Again, 	section 13.3.4 	of 	the negotiated contract allows 	the District
to require 	verification 	of 	sick 	leave 	absences 	and 	section 	19.1
confers the 	right 	to 	request a hearing on a pay dock only when 	it 	is
the 	result 	of disciplinary action. 	Mr. 	Petrich could have 	filed 	a
grievance 	pursuant 	to Article 	XVIII 	of 	the negotiated contract
entitled Grievance 	Procedures, 	although he did 	not.
No 	violation 	of 	the EERA exists 	here 	because the District conformed
with the 	negotiated contract and established procedures. 	There may
have 	been 	a mistake 	in 	that Mr. 	Petrich submitted 	and 	the District
misfiled 	the verification, 	but 	in 	such case there 	is no 	showing of 	a
policy change 	having 	a 	"generalized 	effect or 	continuing 	impact upon
the 	terms 	and conditions of 	employment" 	as required by Grant Joint
Union High School District, 	supra. 	Therefore 	this allegation of 	the
first 	amended charge will 	be dismissed.
15. 	The 	allegation 	that 	the District proposed 	a 	30-workday
suspension 	against Mr. 	Petrich 	is 	the subject of case LA-CE-2143
previously 	filed 	end currently 	being processed. 	In order 	to avoid
redundant 	litigation of 	the 	same 	issue 	this allegation must 	be
dismissed.

August 16, 	1985
LA-CE-2188
Page 	12
19. 	The 	charge 	alleges that the District 	unilaterally changed Mr.
Petrich's 	work hours effective June 	21 through August 	30, 	1985 from
7:00 	a.m. 	- 	4:00 p.m. 	to 	6:00 	a.m. 	to 	2:30 p.m. 	with a lunch hour 	of
one-half 	hour 	instead 	of one hour. 	The District has 	records showing
that 	the past practice 	for 	at least 	20 years 	has been to change 	the
summer 	hours of 	employees 	in this manner 	to accommodate the cooler
morning 	hours 	and 	an earlier watering 	schedule. 	Section 10.6 of 	the
negotiated contract provides that 	the 	length of 	the 	lunch period
"shall be 	for 	a period no longer 	than one 	(1) 	hour nor less than
one-half 	(1/2) 	hour". 	The District's action was consistent with
this provision. 	Mr. 	Petrich has not supplied 	any facts showing that
the past practice 	is otherwise. 	This allegation will be dismissed.
20. 	The charge alleges that the District changed the entire night
shift of custodians, with the exception of two individuals, 	to the
day 	shift 	and 	reduced 	their 	lunch hour 	from one hour 	to one-half
hour. 	Again, 	the District's 	records 	indicate a consistent past
practice 	of 	20 years' 	duration of 	switching the night shift to the
day 	shift 	during 	the 	summer 	holiday and 	shortening 	the 	lunch hour
from one 	hour 	to one-half 	hour. 	Absent 	facts 	indicating a different
past practice 	this allegation of 	the charge must be dismissed.
Opportunity 	to Amend
For 	the 	reasons stated above, 	the charge 	as presently written does
not state 	a prima 	facie violation of the EERA. 	If you feel that
there 	are 	facts or 	legal 	arguments 	which would 	require different
conclusion, 	an amended charge 	should be prepared on a standard PERB
unfair 	practice charge 	form clearly 	labeled 	First Amended 	Charge,
should contain all the 	allegations you wish to make 	and be 	signed
under 	penalty of perjury. 	The 	amended charge must be 	served on the
respondent 	end 	the original proof 	of 	service must be 	filed with
PERB. 	If 	I do not 	receive an amended charge 	or withdrawal from you
by August 	26, 	1985, 	I 	shall dismiss your charge. 	If you have any
questions 	regarding how to proceed, 	please call me at 	(213) 	736-3127.
Sincerely,
Barbara T. 	Stuart
Regional 	Attorney
Attachment
BTS:djm