Riverside Unified School District (PERB 0622E)

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 Nos. 	LA-CE-2112
LA-CE-2130
LA-CE-2134
LA-CE-2143
PERB Decision No. 	622
June 	11, 	1987
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Appearance; 	Tony 	Petrich, 	on his own behalf.
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
CRAIB, 	Member: 	These 	cases 	are before the 	Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed
by the 	charging party, 	Tony 	Petrich, 	to the 	attached proposed
decision 	of 	a 	PERB 	administrative 	law 	judge 	(ALJ) 	dismissing
all 	four of the 	complaints. 	Case Nos. 	LA-CE-2112, 	LA-CE-2130
and 	LA-CE-2134 were 	consolidated 	for hearing 	and 	decision, 	and
Case 	No. 	LA-CE-2143 	was 	consolidated with 	the 	others 	for
decision. 	At 	the 	close 	of 	the 	charging party's 	case 	in 	chief,
the 	ALJ dismissed 	Case 	Nos. 	LA-CE-2112 	and 	LA-CE-2130 	for
failure 	to establish 	a prima 	facie 	case. 	At 	the 	close 	of 	the
charging party's 	case 	in chief 	in 	Case No. 	LA-CE-2143, 	the ALJ
took 	under 	submission 	(pending 	receipt 	of 	the 	transcript 	and
submission 	of briefs) 	the 	Riverside 	Unified 	School 	District's
(District) 	oral 	motion 	to dismiss. 	The 	District was 	required
to go 	forward with 	evidence 	in 	Case 	No. 	LA-CE-2134.
'I

We 	have 	carefully 	reviewed 	the 	entire 	record, 	including 	the
transcript 	and 	exceptions 	filed by 	the 	charging party, 	and,
finding 	the ALJ's 	findings 	of 	fact 	and 	conclusions 	of 	law 	free
of 	prejudicial 	error, 	we 	adopt 	them as 	the 	Decision of 	the
Board 	itself, 	except 	as 	set 	forth below. 	We 	agree 	that 	the
charging party 	failed, 	in all 	four of 	the 	cases before us, 	to
establish 	a 	violation 	of 	the 	Educational 	Employment 	Relations
Act 	(EERA).1
Case No. 	LA-CE-2134 	involves 	an 	alleged 	threat 	of 	reprisal
during an 	August 	23, 	1984 meeting 	concerning 	the 	District's
desire 	to change 	the 	charging party's 	starting 	time. 	While
viewing 	it as a 	close question, 	the ALJ 	concluded that, 	when
viewed 	in 	light 	of all 	the 	surrounding 	circumstances, 	the
comments 	at 	issue 	did 	not 	constitute 	a 	threat. 	Our 	review of
the 	record has 	revealed 	no basis 	upon 	which 	to disturb 	the
conclusion 	that 	no 	threat 	occurred. 	The 	ALJ's 	determination
relied 	heavily 	upon 	the 	credibility 	of 	the 	various 	witnesses
and 	is, 	therefore, 	deserving of deference. 	Santa 	Clara Unified
School 	District 	(1979) 	PERB Decision No. 	104 	(the Board will
give 	deference 	to an ALJ's 	credibility determinations).
Although 	she 	found 	no 	threat, 	the ALJ 	further 	concluded
that 	even 	if a 	threat had been made, 	it was 	not 	in 	response 	to
protected 	activity 	because 	the 	charging 	party had 	no 	right 	to
negotiate 	a 	change 	in his 	starting 	time. 	While we 	agree 	that
1The 	EERA 	is 	codified 	at Government 	Code 	section 	3540, 	et
seq.
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no 	threat 	occurred, 	we 	find 	it 	unnecessary to address 	the
question 	of 	whether 	the 	charging party was 	engaged 	in 	protected
activity and we 	do 	not 	adopt 	that 	portion 	of 	the 	ALJ's
analysis. 	Since 	there was 	no 	threat, 	it was unnecessary to
assume 	there 	was 	in 	order 	to 	consider 	whether 	it 	was 	in 	response
to protected 	activity.
ORDER
Case Nos. 	LA-CE-2112, 	LA-CE-2130, 	LA-CE-2134 and LA-CE-2143
are 	hereby 	DISMISSED.
Chairperson 	Hesse 	and Member 	Porter 	joined 	in 	this 	Decision.
33

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
TONY PETRICH,
Charging 	Party,
v.
RIVERSIDE UNIFIED 	SCHOOL DISTRICT,
Respondent.
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) 	Unfair 	Practice
Case Nos. 	LA-CE-2112
LA-CE-2130
LA-CE-2134
LA-CE-2143
PROPOSED DECISION
(2/5/86)
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Appearances: 	Tony Petrich 	(in Pro Per), 	Charles D. 	Field
(Best, Best & Krieger), Attorney for Respondent.
Before Barbara E. 	Miller, 	Administrative Law Judge.
I. 	INTRODUCTORY 	STATEMENT
The 	above 	captioned 	cases 	all 	involve 	Tony 	Petrich
(hereinafter Charging Party or Petrich), 	a Gardener 	for 	the
Riverside Unified 	School 	District 	(hereinafter 	Respondent 	or
District). 	The cases reflect 	an ongoing saga 	of difficulty
between the 	Respondent 	and 	the 	Charging Party, 	allegedly
because 	of 	the 	latter's protected activity pursuant 	to 	the
Educational Employment Relations Act 	(hereinafter EERA)
Each 	case 	has 	a 	somewhat 	varied and 	complicated procedural
1
1 The 	Educational 	Employment Relations Act 	is 	codified
beginning at Government 	Code section 3540, 	et seq. 	Unless
otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code.
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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1

history, which 	is set forth 	in detail below.2
II. 	PROCEDURAL HISTORY
A. 	Case No. 	LA-CE-2134
This Charge was 	first 	filed 	on February 11, 	1985, 	and
investigated by 	a Regional Attorney. 	The General 	Counsel 	for
the 	Public 	Employment Relations 	Board 	(hereinafter 	PERB 	or
Board) 	subsequently issued a Complaint on May 8, 	1985. 	The
Complaint 	issued simultaneously with 	a partial dismissal.4
In operative part, 	the Complaint alleges 	that Petrich 	"has had
a history of personnel 	issues with 	the District 	since 	1982";
the 	Complaint 	further 	alleges 	that 	reprimands 	had 	been 	placed
in his 	file 	on 	various 	occasions 	and 	that 	he had utilized 	the
contractual 	grievance procedure. 	Moreover, 	the Complaint
alleges that on or about August 	23, 	1984, 	Petrich and his CSEA
representative, Alan Aldrich, 	met with representatives of
Respondent 	to discuss 	a proposed 	change 	in Petrich's 	starting
32
2In 	addition to 	the cases under 	consideration here, 	the
Charging Party filed Case No. 	LA-CE-2097. 	That was partially
settled, 	a partial dismissal was not appealed, 	and the case 	is
closed. 	He also filed Case Nos. LA-CE-2114, LA-CE-2129, and
LA-CE-2131. 	Each 	case was 	dismissed and 	the 	dismissals 	upheld,
in respectively, 	Riverside Unified School District 	(1985) 	PERB
Decision Nos. 	511, 512 and 522.
3Although 	this 	case 	has 	a 	later 	filing 	number 	than 	some
of 	the 	cases 	encompassed by this decision, 	the events alleged
are first 	in time.
4The 	Regional Attorney's partial 	dismissal 	of 	an
allegation pertaining 	to 	the 	change 	in 	starting 	time was 	upheld
by PERB 	itself 	in Riverside Unified School 	District 	(1985) 	PERB
Decision No. 	523, 	as there actually was no change prior 	to
exhaustion of 	the 	negotiation process.
22

time and 	that 	during 	the 	course 	of 	that 	meeting 	the 	Charging
Party was 	threatened with 	a reduction 	in hours 	and/or
replacement 	if 	he 	did not 	agree 	to 	an earlier 	starting 	time.55
On May 24, 	1985, 	the Respondent filed its Answer and, 	in a
perfunctory fashion, 	denied all 	the material 	allegations 	in 	the
Charge/Complaint. 	An 	informal 	conference was 	conducted 	and
when 	the parties were unable 	to resolve their 	dispute, 	the
matter was 	scheduled for 	formal hearing. 	The 	case was
consolidated with Case Nos. 	LA-CE-2112 	and LA-CE-2130 	on
July 	1, 	1985. 	A pre-hearing conference was 	conducted on
July 8, 	1985 and the formal hearing on July 15, 	16, 	and 17,
1985.
As 	in the other 	cases 	to be discussed below, 	on August 	16,
1985, 	the Charging Party filed 	a document entitled 	as 	follows:
(1) 	Request for Decision from the Board Itself; 	(2) 	Motion for
Reconsideration of 	Intended Ruling; 	(3) 	Notice of 	Intent to
Except; 	and 	(4) 	Brief 	in Support.66 Notwithstanding the
5The 	Complaint alleges 	that Assistant 	Director 	of
Operations 	Benzor 	made 	threatening 	comments 	to 	the Charging
Party. 	During the formal hearing, 	it was agreed that the
Complaint, 	whether 	supported or 	not, 	erroneously attributed the
alleged 	statements 	of George Williams 	to 	Benzor.
6 The 	Request 	for 	Decision 	from the 	Board 	itself was
denied by the Executive Director 	on August 	29, 	1985. 	On
September 	8, 	1985, 	Mr. 	Petrich essentially appealed that
determination and on September 	18, 	1985, 	the parties were
notified that 	the matter 	was 	deemed an 	administrative 	appeal.
Case Nos. 	LA-CE-2112 	and LA-CE-2130 	had the same status. 	The
appeal 	was 	denied by 	the 	Board 	itself 	in 	Riverside 	Unified
School District 	(1985) 	PERB Decision No. 	Ad-152. 	The Board's
decision 	also 	covered 	issues 	raised 	by 	subsequent 	motions
regarding Case No. 	LA-CE-2143.
33

post-hearing briefing schedule, 	on September 18, 	1985, 	the
Charging 	Party 	informed 	the 	undersigned 	that 	he 	did 	not 	intend
to 	file 	a post-hearing brief, 	and 	that 	the previously
referenced document 	should serve 	that purpose. 	Thereafter, 	the
Respondent 	filed 	its 	post-hearing 	brief 	addressing 	Case 	No.
LA-CE-2134 	only. 	Although 	that brief 	was 	technically 	filed
late, 	given a 	certain amount 	of 	confusion created by not
knowing 	the status 	of Petrich's Opening Brief, 	the undersigned
accepted the 	late 	filing. 	Time was 	allotted 	for 	the 	filing of
the 	Charging 	Party's 	reply brief 	and when 	such 	brief 	was 	not
timely filed, 	unsuccessful 	attempts were made 	to 	contact 	the
Charging Party. 	Thereafter, 	although 	the matter 	was
simultaneously before 	the 	Board 	and 	the 	undersigned, 	on
November 	12, 	1985, 	it was deemed under 	submission for proposed
decision.
B. 	Case No. 	LA-CE-2112
This case was 	originally filed on December 	26, 	1984. 	After
an 	investigation by a Regional Attorney, 	a Complaint and a
partial 	dismissal 	issued 	on April 	2, 	1985. 	The 	Complaint
alleges 	that 	the 	Charging 	Party 	engaged 	in 	activity 	protected
by the EERA and as 	a 	result of 	that activity, 	on 	or 	about
December 10, 	11, and 19, 	1984, 	the Respondent, acting through
its agent, 	Principal 	Mary Ann Sund, 	took 	retaliatory action
77
7 The 	appeal 	of 	the partial 	dismissal 	was 	denied by 	the
Board 	itself 	in Riverside 	Unified 	School 	District 	(1985) 	PERB
Decision No. 	510.
A4

against 	the 	Charging Party by writing 	disciplinary 	letters 	to
be placed 	in his personnel 	file. 	The Respondent 	filed 	its
Answer 	on May 4, 	1985, 	denying the operative allegations 	in 	the
Complaint. 	An 	informal 	conference was 	scheduled 	and
unsuccessful. 	Thereafter, 	the matter was 	scheduled for 	a
pre-hearing 	conference 	and 	hearing.
Subsequently, on or about June 13, 	1985, 	it came to the
attention 	of 	the 	undersigned 	that 	the original 	Complaint
alleged 	that 	the 	Charging 	Party was 	an 	employee 	organization as
that 	term 	is 	defined 	in 	the 	EERA. 	Having 	reviewed 	the Charge
and 	finding no 	evidence to support such an allegation, 	it was
concluded 	that 	the allegation was 	a 	typographical 	error 	or
oversight and, 	accordingly, 	an order 	amending the Complaint 	and
deleting 	the paragraph which 	referred 	to 	the Charging 	Party 	as
an employee organization was issued on June 13, 	1985.8
On or 	about June 	18, 	1985, 	the Charging Party moved to
amend the Complaints 	in Case Nos. 	LA-CE-2112 	and LA-CE-2130.
The 	request 	for 	amendment 	was 	denied 	by 	the 	undersigned on
June 19, 	1985, 	and appealed by the Charging Party on June 26,
1985. 	The appeal of 	the denial of 	the amendment was 	upheld by
the Board 	in Riverside Unified School District 	(1985) 	PERB
8Matters 	pertaining 	to 	the 	order 	amending 	the 	Complaint
and 	a unit modification 	petition 	filed 	by 	the Charging 	Party 	as
a 	result of 	the 	original 	Complaint were 	disposed 	of 	by 	the
Board 	in Riverside 	Unified 	School 	District 	(1985) 	PERB Decision
No. 	Ad-148.
u
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Decision No. 553.9
Thereafter, 	on July 3, 	1985, 	the Charging Party filed a
document pertaining 	to Case Nos. 	LA-CE-2112 	and LA-CE-2130
entitled, 	in relevant part, 	as follows: 	(1) 	Disqualification
of Board Agent; 	and 	(2) 	Motion for Continuance. 	At 	the
pre-hearing 	conference 	conducted 	by 	the 	undersigned 	on 	July 	8,
1985, 	the undersigned set 	forth 	the reasons why the Charging
Party's 	request 	for 	disqualification was 	denied. 	At 	that 	same
pre-hearing conference, 	the 	Charging Party 	indicated 	that 	he
was 	no 	longer 	seeking a 	continuance.
The 	formal hearing 	in Case No. 	LA-CE-2112 	convened on
July 15 	and 	ended on July 16. 	At 	that 	time, 	the Charging Party
indicated 	that 	he 	had no 	further 	evidence 	to present. 	The
undersigned then advised the parties 	that, 	in my opinion, 	the
Charging Party had 	failed 	to 	establish 	a prima 	facie 	case 	and,
accordingly, 	the Respondent was not 	required 	to 	go forward; 	the
case was 	being dismissed.
As 	previously noted, 	the 	Charging Party asked 	that 	his
post-hearing, 	pre-transcript pleading be 	considered 	his 	brief
in this case, 	notwithstanding the 	fact 	that the undersigned
requested points 	and authorities 	setting 	forth 	why 	the 	case
should not 	have been 	dismissed based 	upon 	the 	evidence
9 The 	proposed amendments were, 	however, 	remanded to the
General 	Counsel 	for 	processing 	as 	new charges.
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6

presented at 	the hearing. 	Similarly, 	the Respondent 	failed 	to
file 	a 	brief 	setting 	forth why 	the 	dismissal 	was 	appropriate.
Nevertheless, 	based on 	the briefing schedule 	established 	in
these consolidated cases, 	this 	case was 	considered 	under
submission on November 	12, 	1985.
C. 	Case No. 	LA-CE-2130
This Charge was 	originally filed on February 4, 	1985, 	and
subsequently amended on March 25, 	1985. 	On April 10, 	1985, 	a
Complaint 	and 	partial 	dismissal 	were 	issued by 	the 	Regional
Attorney.10	10 The Complaint alleges, 	in relevant part, 	that
certain negative memoranda were placed 	in Mr. 	Petrich's
personnel 	file because 	he 	engaged 	in protected 	activity. 	The
Complaint 	further 	alleges 	that 	the 	dismissal 	of 	Mr. 	Petrich was
recommended 	following a 	pre-disciplinary hearing 	on 	January 	17,
1985, 	and that on January 30, 	1985, 	Mr. 	Petrich was sent a
memorandum 	indicating 	that 	he 	would 	automatically 	be 	docked 	pay
for 	any 	day he 	was 	absent 	from work because 	of 	illness without
written verification by 	a physician.
An Answer, 	substantially denying 	the allegations 	in the
Complaint, was filed on May 8, 	1985. 	In all other 	respects,
the procedural 	history of 	Case 	No LA-CE-2130 parallels 	that 	of
1 0 The Regional Attorney's 	dismissal 	of 	the 	remainder 	of
the 	Charge was 	sustained by the 	Board 	in Riverside 	Unified
School District 	(1985) 	PERB Decision No. 	513.
77

Case No. 	LA-CE-2112 and, 	accordingly, 	the matter was submitted
for proposed decision on November 	12, 	1985.
D. 	Case No. 	LA-CE-2143
Case No. 	LA-CE-2143 was 	filed on March 1, 	1985. 	After 	an
investigation by the Regional Attorney on May 31, 	1985, 	a
partial 	dismissal 	regarding 	an 	alleged 	illegal 	transfer 	and
other matters, 	and a Complaint were issued. 	As 	of 	this
writing, 	the appeal of 	the partial dismissal 	is 	still pending
before 	the Board 	itself.
The 	allegations 	in 	the Complaint which 	did 	issue pertain 	to
the District's 	initial 	recommendation 	of 	dismissal 	and 	its
subsequent 	recommendation 	for 	a 	30 	day suspension of 	Mr.
Petrich, 	a suspension which 	the District admits was 	of
unprecedented 	duration. 	The 	matter 	eventually was 	submitted 	to
advisory arbitration, 	the 	arbitrator 	found 	all 	the District's
allegations to be 	of merit, 	but 	found the 	suspension to be 	too
severe 	and recommended 	a 	10 	day suspension. 	The District
eventually 	accepted 	the 	arbitration 	award.
The Answer 	was 	filed on June 	6, 	1985 	denying 	the
allegations 	in 	the Complaint 	and 	the 	Informal 	Conference
conducted on July 	8, 	1985 was unsuccessful. 	The formal hearing
was conducted on September 	18, 	1985. 	After 	the Charging Party
rested 	its case, 	the District orally made 	a Motion 	to Dismiss.
A 	schedule was 	established for 	the 	filing 	of 	Points 	and
Authorities 	in 	Support 	of 	the Motion 	and 	the 	District's 	written
8

pleading was filed on November 14, 1985.1111
In the meantime, on October 18, 	1985, 	Petrich filed a
document with 	the Board called: 	(1) 	Request 	for 	Decision from
the Board Itself; 	(2) 	Response to Motion for Dismissal, 	Case
No. 	LA-CE-2143; 	and 	(3) 	Request to Effectuate Consolidation of
Case Nos. 	LA-CE-2112, 	LA-CE-2130 and LA-CE-2134 with Case No.
LA-CE-2143 	for 	Decision 	from the Board 	Itself. 	Because 	the
undersigned thought 	Mr. 	Petrich might have been withholding a
response 	to 	the District's 	Motion 	until 	the Board 	itself 	ruled
on his 	various previously mentioned pleadings, 	extra 	time was
given 	for 	him to 	file a 	responsive pleading. 	When 	no 	request
for 	such 	extension 	of 	time was 	received 	and 	no 	document
actually received, 	the 	case was 	deemed 	under 	submission 	on
January 6, 	1986.12
Based 	upon 	Petrich's 	belated 	request 	for 	consolidation
11Again 	the pleading was 	not 	timely filed, 	a matter
brought 	to my attention by Mr. 	Petrich 	in 	an ex parte telephone
conversation he 	initiated on January 7, 	1986. 	Accordingly, 	it
should 	not 	be 	considered. 	Given 	the 	latitude extended 	to 	Mr.
Petrich, 	however, 	it would be unfair 	to 	impose a different
standard on the Respondent. 	In any event, 	whether 	the written
Motion is 	considered or 	not, 	an oral motion was made at 	the
hearing 	and, 	the 	undersigned has 	the 	independent 	authority and
responsibility to 	determine whether 	the 	Charging 	Party
established 	a prima 	facie 	case.
12A 	Senior 	Legal 	Secretary at 	the 	Los Angeles Regional
Office 	of PERB tried contacting 	the Charging Party 	to 	see 	if 	he
intended to 	file additional pleadings. 	Her phone calls were
not 	returned. 	During 	the previously mentioned 	telephone
conversation with Mr. 	Petrich on January 7, 	he was asked 	if 	he
wanted 	to 	file 	a 	responsive pleading 	and 	indicated 	he 	did 	not.
11
9

before 	the 	Board, 	and based 	upon 	Board precedent 	which 	suggests
that numerous 	cases 	should be 	looked at 	in 	their 	entirety, 	Case
No. 	LA-CE-2143 	was 	consolidated with 	the 	others 	pending 	before
the undersigned on January 	6, 	1986. 	Los 	Angeles 	Unified school
District 	(Wightman) 	(1984) 	PERB Decision No. 	473.
III. 	FINDINGS OF FACT
A. 	The Major 	Cast 	of Characters
At all 	times 	relevant hereto, 	Tony Petrich has been a
Gardener 	at Woodcrest 	Elementary School 	in 	the Riverside
Unified 	School 	District.13	13 He 	has 	been 	employed by 	the
District 	for 	approximately 16 	years. 	There 	is 	no 	dispute 	that
he 	has 	consistently and 	vigorously 	pursued 	what 	he 	perceived 	to
be 	his 	rights 	under 	the 	EERA or 	under 	the 	collective bargaining
agreement between CSEA and 	the 	District. 	Petrich was 	president
of 	the 	local 	CSEA chapter 	in approximately 1980 	and, 	although
the 	record 	is 	not 	entirely clear, 	had 	filed several 	grievances
prior 	to 	the 	events 	giving 	rise 	to 	any 	of 	the 	four 	unfair
practice proceedings under 	consideration. 	Petrich, 	as will be
described below, 	did 	not have 	a 	good employment 	record 	dating
back 	to at 	least 	the 	1982-1983 	school 	year. 	Petrich was 	not 	a
13Petrich 	was 	briefly 	reassigned 	to 	North 	High 	School
over 	the winter holidays since, 	according to Sund, 	she was not
going 	to be 	around and believed 	it 	best 	to 	separate Petrich 	and
Magana, 	the 	lead custodian. 	After 	the events described 	in the
cases 	under 	consideration, 	Petrich was 	permanently 	reassigned
to North 	High 	School.
10

witness 	in 	the 	instant proceedings and, 	with 	the 	exception 	of
Case Nos. 	LA-CE-2134 and LA-CE-2143, 	he tried to establish his
position through 	the 	use of 	adverse witnesses 	only.
Accordingly, 	no observations 	can be made about his demeanor 	or
credibility as 	a witness and no 	judgments will 	be made based
upon his method of 	advocacy.
As 	a Field Representative, 	Alan Aldrich has been active 	in
CSEA affairs 	at 	the District 	since sometime 	in 1981. 	Prior 	to
the 	instant proceedings, 	he 	knew Tony Petrich as 	the 	result 	of
a 	series 	of 	requests made 	by Petrich 	for 	representation by
CSEA. 	Over 	the years, 	Aldrich 	estimated 	that he had been
involved 	in between 	five 	to 	seven 	grievances 	concerning 	the
Charging Party. 	As a witness 	in 	the 	instant proceedings,
Aldrich was calm, 	composed, 	and precise. 	He presented himself
as perceptive, 	capable, 	and 	intelligent. 	Although he was not
officially 	retained 	to 	represent 	the 	Charging 	Party 	in 	these
unfair practice proceedings, 	he did serve as an aide and, 	based
on 	the precision 	of 	his 	testimony and 	the 	careful 	consideration
given prior 	to 	each 	response, 	tried to 	assist his 	constituent
as far 	as practicable.
George Williams 	is 	a personnel 	administrator 	for 	the
District who works with 	the 	classified employees. 	He has been
employed by the District since 	1974. 	The 	record 	does 	not
reflect 	that 	he 	has 	any 	decision making 	authority with 	respect
to Petrich and the 	imposition of 	discipline, 	transfers 	or
reprimands. 	The 	record does 	reflect 	that Williams 	is only
11

involved in Case No. 	LA-CE-2134 	and 	that 	historically he 	has
had 	a professional, 	but 	contentious 	relationship with Aldrich.
Aldrich 	characterized 	their 	relationship as 	follows:
George 	and 	I 	regularly get 	into more
contentious disputes 	than 	I 	get 	into with
other managers, 	we seem to have 	a continuing
professional 	difference 	of 	opinion as 	to
what's 	appropriate 	conduct 	and what's 	lawful
conduct. 	(Transcript 	from hearing
commencing July 15, 	1985, 	p. 	4 4 . ) 1 4
During 	the 	course 	of 	his 	testimony 	it 	was 	clear 	that Williams
is 	intense 	and 	earnest 	and 	takes 	his 	District 	responsibilities
seriously.
Mary Ann 	Sund 	is 	a primary actor 	in 	the 	series 	of 	events 	to
be described below. 	At 	the time 	of 	the hearing, 	Sund had been
employed by 	the Riverside 	School 	District 	for 	a 	total 	of 	eight
years. 	She has 	a doctorate 	in education and prior 	to her
tenure as Principal at Woodcrest 	Elementary School, 	she was 	the
Principal 	of 	Highland 	Elementary School 	for 	two years 	and
Pachappa Special 	School 	for 	three years. 	Sund has been 	the
Principal 	at Woodcrest Elementary School 	since July 1983, 	and
it 	appeared to 	the 	undersigned that 	she 	is 	forthright,
14Hereinafter 	references 	to 	the hearing 	in Case Nos.
LA-CE-2112, 	LA-CE-2130, 	and LA-CE-2134 will be noted as 	1-Tr:_.
References to 	the hearing from September 	18, 	1985 	in Case No.
LA-CE-2143 	will 	be 	noted as 	2-Tr: 	. 	Transcript citations
-	will not be made in all instances, 	where, however, 	information
relevant 	to one case was 	introduced 	in another, 	efforts will be
made to provide all 	such 	citations. 	References 	to Exhibits 	in
the 	first hearings will 	be noted as 	1: 	Exh. 	and 	from the
second as 2: 	Exh. 	. 	Unless otherwise 	indicated, 	all
citations will 	be 	to 	the Charging Party's 	Exhibits.
12

energetic, 	and professional. 	She has responsibility for 	22
certificated 	employees 	and 	approximately 	8 	classified
employees. 	Although prior 	to 	the years 	in question 	in 	these
cases most 	of her 	time was 	spent 	with 	the 	delivery 	of
educational 	services 	and 	the quality 	of 	the 	educational 	program
at 	the 	schools where she was 	the principal, 	she testified that
as 	time progressed at Woodcrest, 	a disproportionate amount of
her 	time was 	spent dealing with events 	concerning Mr. 	Petrich;
sometimes as much as 	50 	percent of her 	time a week. 	(1-Tr:
220.)
At 	all 	times relevant herein, 	Frank Tucker was 	the
District's Assistant Superintendent 	of Personnel; 	he 	served 	the
District 	in 	that 	capacity 	for 	11 years. 	Effective June 	28,
1985, 	Tucker 	has 	an ongoing relationship with 	the District 	as 	a
manager 	emeritus, 	and he will 	serve 	in 	that capacity as 	a
part-time employee 	for 	the District 	for 	five years. 	Tucker
presented himself, 	through his 	testimony and 	his 	body 	language
while on the witness 	stand, 	as 	an extraordinarily affable and
competent manager, 	although apparently reluctant to 	initiate
firm rapid 	disciplinary action. 	Throughout 	his 	testimony,
Tucker did not demonstrate frustration, 	contentiousness, 	or 	a
disagreeable 	attitude 	toward 	the 	Charging 	Party 	notwithstanding
the 	ongoing disputes 	between 	Mr. 	Petrich 	and 	the 	District's
personnel 	administration.
B. 	Background
Although 	each 	of 	the 	cases 	under 	consideration 	will 	be
13

discussed separately, 	in order 	to 	fully appreciate 	the
discussions which follow, 	it 	is necessary to provide some
background 	information 	regarding 	Petrich's 	relationship 	with
the 	District 	and 	the various 	supervisors 	for 	whom he worked.
Mary Ann 	Sund 	testified 	that 	during 	her 	tenure 	at 	Woodcrest
Elementary School, 	she had 	innumerable problems 	or 	difficulties
with Mr. 	Petrich. 	Sund, 	when asked whether Petrich was
documented more 	than other 	employees, 	and when asked whether
she 	spoke 	to 	Frank 	Tucker 	regularly about 	the 	Charging 	Party,
responded 	as 	follows:
I 	would say that 	in 	the period 	of 	the 	last
year 	and 	a half 	to 	two years 	your 	behavior
on 	the 	school 	site 	caused more 	difficulties
with more 	employees 	than 	anyone 	else 	on 	the
site and 	I 	refer 	to him 	[Tucker] 	very often
in 	terms 	of what 	course 	of 	action would be
appropriate 	to 	remedy many 	of 	the 	problems
that were created. 	(1-Tr: 	190-191.)
(See also 	1-Tr: 	229-230.)
Sund was also asked 	if 	she 	spoke 	to Tucker 	with 	a 	focus 	toward
finding 	a way 	in which 	to 	terminate 	the Charging 	Party and
responded as 	follows:
Certainly not 	in the beginning. 	When I
first began to talk 	to Mr. 	Tucker 	about
remediation, 	that was really the 	focus of
our 	intent and 	a 	lot 	of 	that material was
not documented. 	I 	believe that 	there was
concerted 	effort 	to make 	the 	expectations
clear 	to 	you 	and 	to 	communicate 	to you what
was needed 	in terms 	of changed 	[sic] 	your
behavior 	and 	some 	of 	the 	inappropriateness
of 	things 	that you had done. 	None of 	that
is 	really documented, 	when 	in 	fact 	it
became 	clear 	to me 	that 	we were 	not
communicating verbally, 	it 	became 	necessary
4	1

to put many things 	in writing 	so 	that 	I 	was
assured 	that you 	understood what 	I 	was
trying to communicate, 	and when I began
doing that, 	I began to talk with Mr. 	Tucker
more 	frequently about 	how 	that 	needed 	to 	be
done. 	And 	it wasn't 	really until 	that was
done 	for 	an 	extended period 	of 	time 	that 	any
question of dismissal 	came up. 	(1-Tr: 	191.)
Throughout her 	testimony, 	Sund 	tried 	to describe 	the nature
of 	the difficulty that 	she had with 	Mr. 	Petrich. 	She testified
that on numerous occasions 	she would give him an order, 	or 	Mr.
Lewis, 	the prior head custodian, 	or Mr. 	Magana, 	the new lead
custodian, 	would give him instructions 	and 	Mr. 	Petrich would
deny 	that 	such 	directives 	had been 	issued. 	On 	other 	occasions,
Sund 	testified 	that 	Petrich 	claimed 	that 	he 	did 	not 	understand
the 	instructions 	that had been 	given 	or 	that he 	was 	following
the 	instructions 	that 	had 	been 	given 	and 	that 	Sund was 	mistaken
about what was required of him. 	(See, 	e.g., 	1-Tr: 	215-216,
222. )
In 	terms of 	documentation, 	the 	record reflects 	that on
August 	9, 	1983, 	Sund sent 	Petrich 	a memorandum expressing
concern about his 	inattention 	to 	his 	duties 	and
responsibilities 	and alleging 	that 	he 	took 	a 	two hour 	and
thirty minute 	break 	when he 	ought 	to 	have been 	performing his
duties and responsibilities as 	a gardener. 	At 	that 	time, 	Sund
attempted to arrange a meeting for August 	10, 	1983, 	a time
Petrich 	subsequently claimed 	was 	inconvenient. 	Petrich 	also
denied 	the material 	allegations 	in 	the memo 	from Sund.
However, 	Petrich, 	having failed 	to 	take 	the witness 	stand,
15

never 	denied, 	under 	oath, 	the material 	allegations 	in 	the
memorandum.15 (1-Exh. 	15.)
On August 18, 	1983, 	Petrich received a formal letter of
reprimand 	from George Williams, 	detailing the 	incident
complained of 	in the memorandum sent by Sund. 	Moreover, 	in his
memorandum, 	Williams 	noted 	that 	when 	Petrich was 	evaluated 	on
June 30, 1983, by Mrs. Ginwright, 	then the school principal, he
was 	advised 	that 	he must 	decrease 	his propensity 	to 	visit with
others 	during working hours 	and 	that 	he must 	learn 	to 	take
direction without debate. 	(1: 	Exh. 	16.)
16	16The 	next written 	documentation 	in 	evidence 	relates 	to 	a
reprimand sent by 	Sund to Petrich 	dated May 17, 	1984, 	wherein
Petrich 	was 	reprimanded 	for 	failing 	to 	properly prepare
waterbasins 	for 	eight 	recently 	transplanted 	tree., 	Sund
testified 	that 	Petrich 	had 	been 	told 	how 	to properly prepare
the basins 	and 	take 	care of 	the 	trees, 	but 	had 	not 	followed 	the
1 5 A11 	the 	documents 	introduced 	are 	hearsay 	and 	the
parties 	were 	advised 	that 	they were 	not 	being 	admitted 	for 	the
truth of 	the matters 	asserted. 	The Charging Party stated he
understood 	what 	that 	meant 	and 	apparently 	the 	consequences
thereof. 	(1-Tr: 59, 	129; 2-Tr: 	116-117.) 	Nevertheless, some
of 	the documents are relevant, 	even when unaccompanied by
testimony, 	to 	show that 	the District 	expressed 	dissatisfaction
with 	Petrich prior 	to 	the 	time he engaged 	in 	the protected
activity 	alleged 	herein.
16NO 	evidence was presented as 	to whether 	or 	not 	Petrich
received 	other 	written 	reprimands 	between 	August 	1983 	and 	May
1984, 	although Sund testified that 	she 	spoke with him or
attempted 	to 	speak 	with 	him 	frequently.
16

directions and, 	as 	a consequence, 	three of 	the trees where he
allegedly cut 	the main roots 	to within 	six 	to eight 	inches 	of
the tree trunk, 	died. 	(1-Tr: 	199-202; 	1-Exh. 	17.)
On August 	7, 	1984, 	Petrich received a memorandum from Sund
which 	set 	forth 	a 	variety of 	complaints 	she 	had with 	Petrich's
job performance. 	She complained 	of 	his 	extended 	coffee breaks
and 	the 	fact 	that 	he 	was 	not 	authorized 	to 	alter 	the 	time when
he 	took 	his 	breaks. 	Principal 	Sund also 	complained about 	the
way 	in which Mr. 	Petrich was 	trimming bushes 	around 	the
school. 	By way of background, 	Sund testified 	that 	the 	school
site 	is 	rather 	unattractive 	and 	she was 	trying 	to 	enhance 	its
appearance 	by 	letting 	the 	shrubbery 	grow to 	a 	certain 	level.
Mr. 	Petrich, 	however, 	had a propensity to cut the bushes down
to 	a 	level 	that 	she 	considered unacceptable. 	Accordingly,
samples 	were 	prepared by 	Sund 	herself 	and 	Magana 	to 	show Mr.
Petrich 	what was 	expected. 	Sund alleged 	that 	Petrich
deliberately altered 	the 	samples 	and 	cut 	them 	down 	to 	an
unacceptable level. 	Finally, 	the August 	7, 	1984 memorandum
complains 	of 	Petrich leaving work 	four 	times 	in 	the previous
week 	for 	doctor 	appointments 	at 	noon 	and 	not 	returning before
the 	end 	of 	his 	shift at 	4:00 	p.m. 	She 	advised Petrich 	that 	he
would be required to advise his supervisor, 	Mr. 	Magana, 	in
writing, 	if 	he planned 	to 	continue 	that medical 	appointment
schedule 	so 	necessary substitutes 	could be 	employed. 	(1-Tr:
202-203; 1: Exh. 18.)
17

Next, 	on August 21, 	1984, 	Petrich received a memorandum
from Sund summarizing the following concerns. 	Number 	one, 	his
failure 	to 	take 	direction from Mr. 	Magana with 	respect 	to when
he was 	supposed to perform certain tasks. 	Moreover, 	Sund
showed her 	disapproval 	for 	the way 	in which Mr. 	Petrich 	related
to Mr. 	Magana 	since 	it was 	alleged 	that 	Petrich 	simply laughed
and walked away while Mr. 	Magana was 	trying 	to 	give 	him
directions. 	As 	a second 	item, 	the memo again complains about
Petrich's 	refusal 	to 	follow 	direction 	from Mr. 	Magana 	and 	his
watering 	of 	trees when he was 	told 	to mow the 	lawn. 	And last,
the memo 	complains 	about 	an 	extended break 	when, 	at 	10:30 	a.m.,
Mr. 	Petrich was 	sitting 	in 	the 	teacher's 	lounge although 	his
scheduled break 	time was 	between 	9:00 	a.m. 	and 	9:15 	a.m. 	(1:
Exh. 	1 at pp. 	4-5.)
At 	the close of 	the August 	21, 	1984 memorandum, 	Sund
indicated 	to Petrich 	that 	there would be 	a meeting 	in her
office on August 22, 	1984, 	at 3:00 p.m. 	to review his work
schedule and his responsibilities. 	It 	is 	that meeting 	that 	led
to 	the 	events which 	gave 	rise 	to 	the first 	case now under
consideration, 	Case No. 	LA-CE-2134. 	Prior 	to that meeting,
there 	is 	no 	evidence that 	Petrich 	filed 	any grievances 	or
unfair 	practice 	charges 	concerning 	Sund.
Before the events in the next case, 	LA-CE-2112, 	the record
reflects 	that 	the 	Charging 	Party 	received 	numerous 	written
reprimands. 	On September 	12, 	1984, 	after 	first asking Petrich
18

for 	an 	explanation, 	Sund 	reprimanded 	Petrich 	for 	leaving 	his
work 	site 	1 	hour 	and 	35 	minutes 	early 	to attend 	a 	meeting which
was only 15-20 minutes away. 	(1-Tr: 	204; 	1: 	Exh 	19.)
On October 	1, 	1984, 	Petrich 	received a reprimand 	for
allegedly arriving 	late 	and 	not 	following 	the 	directions 	of 	Mr.
Magana and being rude to his 	supervisor. 	In a 	15 page
response, 	Petrich 	denied 	the 	charges 	and 	accused 	Sund 	and
Magana 	of 	"conspiring" 	against 	him 	and 	subjecting 	him 	to
"spite, malice, embarrassment, ridicule, put-down, humiliation
and mortification." 	(1: 	Exh. 	21.)
Again on 	October 	1, 	the 	Charging Party 	received 	a
memorandum 	from Sund 	complaining 	that 	he 	had, 	without
notification or 	justification, 	removed 	the 	calendar 	of 	a
bilingual 	aide 	from her 	"mini-classroom." 	In his 	response, 	the
Charging Party 	complained 	that 	although 	he 	did 	remove 	the
calendar, 	upon notification that 	it was being used, 	he 	replaced
it. 	Moreover, 	he pointed out that 	the 	facility in question was
unsafe for the teaching of children. 	(1-Tr: 	206; 	1: 	Exh. 	20.)
On October 	26, 	1984 	Sund wrote 	to Petrich 	complaining 	that
he 	removed 	the 	bars 	from the 	Kindergarten 	teeter 	totters
without 	first 	checking with his 	supervisor. 	In 	response to
Petrich's 	complaints 	about Magana's 	new rules 	for 	the 	storage
of tools, 	she stated she approved. 	(1: 	Exh. 	2 at p. 	3.)
On November 	15, 	1984, 	Sund wrote a memorandum describing a
meeting 	she held on 	November 	14 	with 	Petrich 	and Aldrich. 	In
19

that 	memorandum, 	Sund 	reviewed written 	complaints 	from 	another
employee, 	dated October 	15, 	October 	26, 	and November 	5. 	Dr.
Sund 	indicated 	that 	if 	those written 	complaints 	were 	true, 	the
behavior 	described 	therein 	was 	"inappropriate 	and 	unacceptable
and must not be repeated." 	(1: 	Exh. 	23.)
On November 	21, 	1984, 	Sund wrote a memorandum to Petrich
setting 	forth 	eight 	instances 	when 	he 	had been 	late 	and
reminding 	him 	that 	he 	had previously 	received 	memoranda
regarding 	adherence 	to 	established 	work 	hours. 	In 	his
response, 	Petrich 	"emphatically 	and profoundly 	denied" 	the
allegations. 	(1: Exh. 24.)
According 	to 	the 	documentation 	attached 	to 	and 	incorporated
by Riverside 	Unified 	School 	District 	(1985) 	PERB 	Decision 	No.
513, 	Mr. 	Petrich filed five grievances 	in 1982. 	Grievances
were also filed on September 25, 	1984, 	November 13, 	1984, 	and
February 7, 	1985. 	In addition to 	the Unfair Practice
Complaints under 	consideration, 	he filed Case No. 	LA-CE-2097 	on
November 27, 	1984, Case No. 	LA-CE-2114 on January 2, 	1985, 	and
Case Nos. 	LA-CE-2129 and LA-CE-2131 on February 4, 	1985. 	See
footnote 2, 	supra.
C. 	Case No. 	LA-CE-2134
Sometime during the summer 	of 	1984, 	Principal Mary Ann 	Sund
determined that 	it would 	be beneficial 	if 	the ground watering
schedule 	at Woodcrest Elementary School 	were modified. 	In 	the
past, 	Tony Petrich, 	who had arrived on 	campus 	at 	7:00 	a.m., 	was
20

directed to water 	the grounds upon arrival. 	As 	a result, 	when
the 	children 	arrived 	at 	school 	the 	grounds 	were 	still 	damp and,
after 	playing before 	the 	commencement 	of 	classes, 	they 	then
tracked mud 	into 	the 	classrooms. 	In 	order 	to avoid 	that
problem, 	Sund proposed 	changing 	the 	watering 	schedule 	to
6:00 	a.m. 	rather 	than 7:00 	a.m.. 	In 	order 	to 	accomplish 	that,
it 	would be 	necessary to 	either 	change 	the 	Charging 	Party's
starting time, 	or 	employ someone to do the watering 	in his
stead.
To 	discuss 	that matter 	with 	Petrich 	and also 	to 	discuss
certain changes 	or 	clarifications 	in 	the duties 	and
responsibilities 	of 	his 	gardener 	position 	and 	the 	memoranda
from August 	7 	and 	21, 	a meeting was arranged 	for August 	22,
1984, 	at 	3:00 	p.m. 	The meeting was 	attended by Sund, 	George
Williams, 	Ernie Benzor, 	the Plant Manager, 	and David Magana,
the 	Lead/Head Custodian 	at Woodcrest.
At 	the beginning 	of 	the meeting, 	Sund distributed 	copies 	of
the 	proposed 	changes 	in 	duties 	and 	discussed 	the 	proposed
change 	in starting time. 	At 	that 	time, 	Petrich 	indicated that
he 	did not want 	the meeting 	to 	progress 	further 	unless 	and
until 	he 	had union 	representation. 	After 	a brief 	discussion,
it 	was 	agreed 	that 	the meeting would 	reconvene 	at 	a 	time
convenient 	for 	Petrich 	and his 	representative.
On August 23, 	1985, 	the parties again met but on this
occasion 	Petrich 	was 	accompanied 	by 	CSEA 	representative 	Alan
21

Aldrich 	and 	his 	site 	grievance 	representative 	Joe 	Gandara.
Management 	explained 	to 	Aldrich 	the 	perceived 	need 	to 	change
Petrich's 	hours 	and 	Aldrich 	indicated 	that 	he 	considered 	the
matter 	negotiable.17	17 According to Aldrich, 	he 	and Williams
then engaged 	in 	an animated 	discussion. 	He 	specifically denied
it was 	a heated argument and stated, 	"I 	consider 	it 	to be a
course 	of 	conversation 	of 	the 	day." 	Aldrich 	further 	testified
voices 	were 	raised 	"as 	people will 	do when 	they 	attempt 	to make
a point 	vigorously" 	but 	he 	did 	not 	believe 	there was 	any
shouting.
Williams 	was 	admittedly 	frustrated 	over 	the 	resistance 	to
changing Petrich's starting 	time 	in 	order 	to 	benefit 	the
children of 	the District 	and 	the 	condition 	of 	the 	school 	site.
During their 	exchanges, 	according to Aldrich, 	Williams 	told
Aldrich 	that 	if Petrich was 	unwilling to 	join Dr. 	Sund's 	team,
they would 	find 	someone who would. 	Although 	the 	discussion 	was
predominantly between Aldrich 	and Williams, 	Aldrich 	said 	that
Williams 	looked 	at 	Petrich when 	the 	former 	statement 	was made.
There was 	no 	testimony as 	to whether 	Petrich 	and Williams made
17 The 	collective 	record 	implies 	that 	there 	was 	no 	uniform
starting time 	for 	gardeners 	throughout 	the District. 	At 	North
High School, 	for 	example, 	Petrich himself 	suggested that 	the
starting 	time was 	from 6:00 	a.m. 	- 	3:00 	p.m., 	over 	Christmas 	in
school year 	1984-1985. 	(2-Tr: 	71.) 	Tucker 	indicated that
crews 	at 	different 	sites 	apparently worked different hours.
(2-Tr: 	70.) 	In another Petrich case, 	it was noted that 	the
District 	had 	changed hours 	during 	the 	summer 	for 	20 	years.
Riverside Unified School District 	(1986) 	PERB Decision No. 	562.
22

eye 	contact. 	Aldrich 	also 	said 	that Williams 	threatened 	a
reduction 	in Petrich's hours 	if 	he would 	not 	agree 	to 	change
his 	starting time.
Williams 	admits 	stating 	that 	if 	Petrich 	did 	not 	join 	the
team they would 	get 	someone who would, 	but 	denies 	that 	he meant
that 	any 	retaliatory 	action 	would 	be 	taken 	against 	Petrich.
Rather, 	Williams 	explained 	that 	he meant 	that 	they would 	simply
find 	some other 	way 	to 	get 	the watering 	accomplished earlier 	in
the 	morning.18 Aldrich 	interpreted 	the 	statement 	as 	one
designed 	to get Petrich 	to agree 	to 	a change 	in his 	starting
time. 	At worst, 	he 	thought Petrich might be transferred to a
different site. 	(1-Tr: 	65-66.)
Williams 	adamantly 	denies 	threatening 	to 	change 	Petrich's
hours 	or 	reduce 	them in any fashion. 	Sund supports Williams'
version of the meeting. 	Although, 	ordinarily, 	I 	found the
testimony of Aldrich 	to be candid 	and credible, 	in 	this
instance there 	is 	some basis 	for 	crediting Williams' 	account of
that aspect 	of 	the meeting. 	The 	reason 	for 	reaching 	this
conclusion is that on August 	28, 	1984, 	Aldrich wrote a 	letter
1 8 In his pleading filed August 28, 	1985, 	at page 	19,
Petrich 	takes 	the 	following position:
I 	assert that 	the statements made by Mr.
Williams were 	not 	in relation 	to any
protected activity; 	they were merely an
instrument 	of simple 	intimidation, 	the
result of 	instructions, 	given 	to him by Sund
prior 	to 	the meeting 	in question.
23

to 	Frank 	Tucker 	complaining 	or 	summarizing 	a 	meeting 	the 	two
had 	regarding 	the 	negotiability 	of 	the 	change 	in 	Petrich's
starting 	time 	and 	setting 	forth 	a 	summary 	of 	what 	took 	place 	at
the meeting on August 23, 	1984. 	In that letter, 	Aldrich stated
as follows:
I 	explained to Ms. 	Sund and 	Personnel
Administrator 	George Williams that 	such 	a
change was 	negotiable 	and 	should 	not 	be
implemented 	independent 	of 	the 	bilateral
process. 	At which 	time Williams 	responded
that 	CSEA and 	Petrich 	"did 	not 	wish 	to 	get
with 	the 	program" 	(and 	apparently 	agreed 	to
this 	change) 	that 	"they would 	find someone
who would." 	Clearly 	inappropriate, 	and
perhaps 	unlawful 	comments 	in 	relationship 	to
Petrich's 	clearly 	established 	rights 	to 	seek
representation, 	and engage 	in appropriate
protected activities. 	(1: 	Exh. 	39.)
Given Aldrich's precision, 	the 	undersigned 	finds 	it 	difficult
to believe 	that he would 	have 	ignored 	the 	threat 	to 	reduce
hours 	in his letter. 	On the other 	hand, 	Aldrich 	did testify
that he 	did not 	take 	the 	threat to 	reduce hours 	seriously, 	he
recognized Williams 	was 	upset, 	and 	knew 	that Williams 	knew 	that
a 	reduction 	in hours would not 	be 	lawful 	under 	the 	contract or
otherwise. 	Nevertheless, 	in this instance, 	I 	find it necessary
to resolve this credibility issue 	in Williams' 	favor.
The 	Complaint 	further 	alleged 	that 	Sund 	threatened 	to 	find
someone 	else 	to perform Petrich's 	job 	unless 	he 	agreed 	to 	sign
the 	revised work 	schedule. 	Aldrich 	testified 	that 	he 	did not
recall 	Sund making such 	a 	statement, 	and 	Sund 	denied making
such a 	statement. 	Thus, 	it must be concluded 	that 	the
24

Complaint 	either 	should 	not 	have 	issued 	regarding 	Sund 	or 	it
should 	have 	attributed 	the 	comment 	to Williams.
D. 	Case No. 	LA-CE-2112
Specifically, 	in one of 	its more 	recent cases 	involving Mr.
Petrich, 	the Board 	itself 	characterized 	the allegations 	in 	this
case as 	follows:
1. 	Placement 	of 	a 	letter 	from Principal
Mary Ann Sund, 	regarding work keys, 	in
Charging Party's 	personnel 	file 	on
December 10, 1984.
2. 	Placement 	of 	a 	letter 	from Sund,
regarding 	Charging 	Party's 	absence 	from
work, 	in his personnel 	file on December 	11,
1984.
3. 	Placement 	of 	a 	letter 	from Sund,
regarding obtaining work 	keys 	prior 	to
beginning work, 	in Charging 	Party's
personnel 	file 	on 	December 	19, 	1984.19
Riverside Unified School District 	(1985) 	PERB Decision No. 	553.
Because 	the 	Charging 	Party 	failed 	to 	call 	anyone 	other 	than
adverse witnesses 	during the presentation of his 	case, 	it 	is
not precisely 	clear 	what happened with 	respect 	to 	each 	of 	the
memoranda 	in question. 	As previously noted, 	Sund did 	say that
it had become necessary, 	over 	the years, 	to communicate with
Mr. 	Petrich in writing because of his failure or 	refusal to
respond 	to verbal 	commands. 	Although 	Sund 	did testify 	that 	it
was 	sometimes 	necessary to 	communicate 	in writing because Mr.
19The 	dates 	referenced 	in 	the 	Board's 	summary 	are 	the
dates 	the 	letters were written, 	not 	the 	dates 	each was placed
in the Charging Party's personnel 	file.
25

Petrich 	refused 	to 	speak 	with 	her 	without 	a 	union
representative, 	there is no evidence 	that the communications
she wanted 	to 	make were 	the 	type 	which 	required 	such
representation; 	they were 	usually 	simple work 	related
directives. 	As evidenced by a 	memorandum she wrote on
October 	29 	to Petrich when 	she wanted 	to discuss 	serious 	job
deficiencies, 	she asked him to arrange for 	union
representation. 	(2: 	Exh. 	1.) 	Moreover, 	the record supports
the 	conclusion that 	during her 	brief 	tenure at Woodcrest, 	Sund
had placed 	approximately 	20 	memoranda 	in 	other 	employees' 	files
and 	that given the 	relatively small 	size 	of 	the 	staff, 	the
placement of material 	in personnel 	files was not 	an
extraordinary, 	or 	unusual 	event. 	Aldrich 	testified that 	he
observed 	and believed, 	Sund was 	generally vigorous 	in 	the
documentation 	of 	what 	she 	considered 	employee 	misconduct.
(1-Tr: 	68-69.) 	(See also, 	1-Tr: 	189; 	2-Tr: 	77.)
In any event, 	the December 	10 memorandum reads as follows:
It 	has been reported 	to me 	that you were
late as follows:
November 	23 	- arrival 	time 	7:15 	a.m.
December 	3 	- 	return 	from lunch 	12:15 	p.m.
December 	5 	- 	arrival 	time 	7:05 	a.m.
I 	am compelled 	to 	say 	that 	your 	repeated 	few
minutes 	lateness appears 	to me 	to be a way
for you to upset Mr. 	Magana and 	to delay
starting work 	both 	for 	him and 	for 	you. 	You
have 	received memo's 	regarding 	lateness 	from
me, 	dated June 19, October 1 and
November 21, 1984. 	I repeat, you are to
adhere 	to 	established work 	hours.
26

There has 	also been 	some 	confusion 	in 	the
morning about your 	picking 	up your 	keys.
You 	are 	expected to be 	at 	the 	head
custodian's 	office 	exactly 	at 	7:00 	a.m.
every morning 	to 	receive your 	keys 	from Mr.
Magana. 	This will 	be your 	first
responsibility upon 	arrival 	at work. 	You
will 	be 	expected upon 	receiving your 	keys 	to
begin work 	immediately. 	I 	repeat you 	are 	to
begin 	your 	duties 	immediately 	upon receiving
your 	keys. 	Mr. 	Magana will be 	in his office
at 	7:00 	a.m.
This memo 	is 	to be placed 	in your 	District
Personnel 	file. 	You have 	the opportunity 	to
review and comment hereon, 	if 	you so
desire. 	Ten working days 	from the 	date 	of
this memo 	(December 	27, 	1984) 	this memo and
your written response 	(if any) 	will be
placed 	in 	your 	District 	Personnel 	file.
(1: Exh. 	6.)
Sund's 	memorandum seems 	entirely 	consistent 	with 	her
testimony 	regarding 	the 	difficulties 	in 	communicating 	with 	Mr.
Petrich. 	She 	also 	testified that 	she 	relies 	upon her
supervisory or 	lead personnel 	for 	information, 	a practice which
seems 	consistent with 	good managerial 	techniques. 	Beyond 	this,
there 	is 	nothing 	to be 	said about 	the December 	10 	memorandum
because 	no 	appreciable 	testimony 	was 	elicited 	regarding
it.20 Although 	the 	document and 	Mr. 	Petrich's 	response 	to 	it
20After 	Case No. 	LA-CE-2112 	and 	LA-CE-2130 	had 	been
dismissed, 	Aldrich 	did claim that 	the attitude 	toward Petrich
soured 	dramatically 	after 	Petrich 	refused 	to 	begin 	work
earlier. 	Aldrich based 	this 	conclusion 	on 	a 	claim 	that 	Magana
admitted being 	frustrated. 	Even 	if 	considered 	evidence 	in 	Case
Nos. 	LA-CE-2112 and LA-CE-2130, 	Magana's alleged frustration,
whether 	justified or not, 	does not, 	by itself, 	support a
conclusion 	that 	he would 	then 	be 	dishonest 	in 	reporting 	to his
superior, 	Sund, 	nor 	does 	it 	support a finding that Sund would
then be 	less 	than 	candid about 	her 	own 	observations 	or 	those 	of
other 	staff members.
27

were admitted 	into 	evidence, 	neither 	was 	admitted 	for 	the 	truth
of 	the matter 	asserted. 	Accordingly, 	nothing more 	can be said
about this aspect of Case No. 	LA-CE-2112.
There 	was 	testimony 	regarding 	the 	second 	allegedly
inappropriate 	letter 	placed 	in 	Petrich's 	personnel 	file.
Again, 	however, 	to fully appreciate the dynamics of the
interactions between the parties 	it 	is 	necessary, 	although
perhaps tedious, 	to quote from the December 	11, 	1984 memorandum
in 	its 	entirety.
On the morning of 	December 	6, 	1984 	it was
reported to me by Mr. 	Magana that:
1. 	On the morning of 	December 	5th 	Mr.
Magana 	saw 	that 	you 	had 	removed 	seats
from the school 	tricycles. 	Mr. 	Magana
told you 	you 	were 	not 	to work 	on
playground 	equipment 	without 	specific
instructions 	from him or 	from me. 	One
of 	the 	seats you 	removed appears 	to 	be
damaged.
2. 	On the morning of 	December 	6th Mr.
Magana 	found 	you 	drilling 	into 	the
seats you had 	removed from the bikes.
You 	told him you were 	going 	to put 	them
on the teeter totters. 	Mr. 	Magana
instructed you 	to stop. 	You 	ignored
him and continued. 	Mr. 	Magana came 	to
my office.
I 	spoke to you about 	these 	incidents. 	At
that 	time 	you were working 	on part 	of 	the
teeter 	totter 	outside 	the 	custodian's 	room.
When 	I 	asked you about Mr. 	Magana's
instructions you 	said you 	could 	not 	remember
what 	he 	had 	said yesterday about 	the
equipment. 	I 	instructed you 	to 	follow Mr.
Magana's directions 	about 	work 	to 	be 	done
today.
28

I 	asked you, 	on behalf of Mr. 	Tucker, 	for
clarification of your 	request 	for
November 	27th as 	personal 	necessity 	leave.
You 	responded 	that 	you would 	not 	clarify 	the
request without 	representation. 	I 	repeated
that 	Mr. 	Tucker 	only wished to be 	clear 	as
to 	the 	request before approval was 	given.
You 	repeated 	that 	you 	would 	say 	nothing
without 	an 	official 	representative with
you. 	I will convey this message to Mr.
Tucker.
We 	have met 	on 	several 	occasions 	and 	you
have 	received written 	instructions 	regarding
your 	responsibilities 	and 	following 	Mr.
Magana's instructions, dated August 21, 	in
meeting summaries of August 	22 and 23, 	on
October 	1st and on October 	26, 	1984. 	I 	feel
that 	your 	recent 	actions 	were 	in 	deliberate
defiance of these 	instructions.
Again, 	I 	cannot emphasize more strongly to
you, 	that you are not 	to deviate 	from your
regular 	duties 	unless 	instructed 	by 	Mr.
Magana. 	You are to 	follow his 	instructions
and 	directions 	as you would mine. 	Should
you not 	do 	so 	it will 	be my recommendation
that 	appropriate 	disciplinary 	action 	beyond
a 	reprimand be 	initiated.
On Friday, 	December 	7, 	I 	received a number
of 	complaints 	about your 	behavior:
1. 	Mr. 	Magana 	reported that you had left
your 	tools 	out overnight. 	When he
asked you about 	it, 	you 	said 	they did
not 	look 	like 	yours 	and 	gave him no
further 	explanation. 	They were
identified by Mr. 	Magana as 	tools you
had been 	using.
2. 	It has been reported that on
December 	6, 	you 	ignored Mr. 	Magana
while he was 	giving you 	directions 	in
the 	lunch area. 	This was observed by a
lunch 	supervisor 	and 	she 	reports 	that
one 	of 	the 	kindergarten 	students
pointed out 	to you 	that 	"it was 	rude 	to
not 	answer 	people when 	they 	talk 	to
you."
29

3. 	Staff 	reported that you were 	in 	the
teachers' 	lounge on December 	7, 	from
8:50 	a.m. 	until 	after 	9:30 	a.m. 	putting
notices 	on 	the 	CSEA bulletin board.
During about 	five minutes 	of 	that 	time
you left 	to assist Mr. 	Magana 	in moving
a piano, 	at the repeated insistence of
the music 	specialist. 	You were
conducting union business 	on 	time 	other
than your 	break, 	lunch period or 	before
or 	after your work hours. 	Your 	break
time 	is 	from 9:00 	a.m. 	to 	9:15 	a.m.
4. 	On December 	7, 	Mrs. 	Lisby, 	the music
specialist, 	during the 	time described
above while you were 	in 	the 	lounge,
asked you 	to help Mr. 	Magana 	to move 	a
piano for 	her 	upcoming 	class. 	She
reported 	that 	you 	ignored 	her 	request
until 	she persisted. 	You 	left 	to
assist Mr. 	Magana about 20 	- 25 minutes
after 	she 	asked 	for 	immediate
assistance.
It 	appears 	that 	your 	behaviors 	are
deliberately 	intended 	to 	cause 	difficulties
at 	this work 	site. 	They demonstrate a 	lack
of cooperation, 	rudeness 	in dealing with
others and affect 	the morale of 	staff. 	This
is unacceptable.
Again, 	should your actions continue, 	I will
be 	compelled 	to 	recommend 	disciplinary
action beyond 	a 	reprimand.
This memo 	is 	to be placed 	in your 	District
Personnel 	file. 	You have 	the 	opportunity to
review and comment hereon, 	if you so
desire. 	Ten working days 	from the date 	of
this memo 	(December 	28, 	1984) 	this memo and
your written response 	(if any) 	will 	be
placed 	in your 	District Personnel 	file.
(1: Exh. 7.)
During the course of 	the hearing, 	there was 	no 	evidence
that any of 	the allegations 	set 	forth 	in Dr. 	Sund's 	letter 	were
30

incorrect. 	Mr. 	Petrich did challenge the extent 	of 	her
investigation 	into 	the matters 	discussed 	in 	the 	letter, 	and Dr.
Sund 	responded 	by 	saying 	that 	she 	verified 	the 	incidents
through 	her 	own observations 	and 	by 	discussing 	the 	matter 	with
other members 	of 	the staff.21
Mr. 	Petrich took particular 	exception to 	Dr. 	Sund's
inclusion 	in 	the memorandum of 	the matter 	relating 	to 	his
personal necessity leave. 	Dr. 	Sund's explanation was, 	in the
opinion of the undersigned, 	acceptable. 	Also, 	the evidence
supports 	a 	finding that 	it was 	not 	out 	of 	the 	ordinary 	for 	the
District 	to place documents 	or 	communications 	in personnel
files that were unrelated to 	employee 	job performance. 	(2-Tr:
68.) 	Finally, 	based on her 	deteriorating relationship with
Petrich, 	she had made it a point to try and memorialize 	in
writing 	everything 	that 	transpired between 	the 	two 	of 	them.
Based on her 	demeanor while being questioned, 	it 	is 	found that
no 	ill 	or 	illegal 	intent 	led 	to the 	inclusion 	in 	the memorandum
of 	the 	reference 	to 	Petrich's 	request 	for 	union 	representation;
it was a statement, 	nothing more.
21For 	the most part, 	Dr. 	Sund was 	reluctant to 	identify
the 	teachers 	and other 	members 	of 	staff. 	She testified 	that
they asked her 	not 	to because 	they were 	concerned 	about 	the
Charging 	Party's 	reaction; 	they were 	afraid of 	him.
(1-Tr: 	146.) 	Absent an evidentiary challenge 	to Sund's
testimony or 	allegations 	that 	the 	incidents 	took 	place, 	the
undersigned did not 	compel 	disclosure of 	the 	names. 	Moreover,
Petrich 	did 	not make 	a 	sufficient 	showing 	to 	compel 	disclosure
at the time the issue arose. 	(See generally, 	1-Tr: 	141-142;
145-148.)
31

The 	third 	letter 	in 	the 	instant 	case 	which 	was 	placed 	in
Mr. 	Petrich's personnel 	file, 	allegedly unlawfully, 	provided as
follows:
At 	approximately 	7:50 	a.m. 	on Wednesday,
December 	19th you were 	in 	the 	outside 	lunch
area when 	I 	arrived. 	You 	told me David
would not 	give you your 	keys. 	I 	spoke with
David. 	He 	reported that 	he 	had been 	in his
office prior 	to 	7:00 	a.m. 	until approximately
7:10 	a.m. 	He 	said 	that 	he 	heard you 	come
into the M.P. 	room, 	he heard you enter 	and
leave 	the 	restroom and 	smelled 	the 	cigarette
you were having 	outside 	the 	doorway 	to his
office. 	He stated you 	did not 	come 	in 	for
your 	keys, 	when he walked out of his office
to get you, 	you were 	sitting on 	the stage 	in
the M.P. 	room smoking a cigarette. 	Mr.
Magana said to you, 	"aren't you to be 	in my
office 	to get your 	keys?" 	You 	did not
reply. 	Mr. 	Magana reports that he politely
repeated his 	statement 	to you 	and you 	told
him that 	you went 	into 	his 	office 	and 	did
not 	see him there. 	Mr. 	Magana told you 	that
he 	had been 	there 	since 	6:55 	a.m. 	You
repeated your 	statement. 	There was 	some
discussion then, 	Mr. 	Magana asked you to
"please 	come 	into his 	office 	for 	your
keys." 	You did not 	respond. 	He 	repeated
the 	request 	and again you 	did not 	respond.
Therefore, 	Mr. 	Magana told you he was going
to 	start work 	and he 	closed 	the 	office 	and
left 	the area. 	After 	receiving this
information from Mr. 	Magana, 	I 	then told you
to pick 	up your 	keys 	from Mr. 	Magana 	and you
did so.
Mr. 	Tucker 	reported 	to me 	that you 	called
Mr. 	Lantz's 	office 	at 	approximately 7:45
a.m. 	and 	stated 	that 	you were 	"locked out"
and had 	also 	called 	Mr. 	Benzor 	and CSEA.
You were not locked out, 	but 	in fact, 	did
not 	follow 	directions 	previously 	given 	for
getting your 	keys. 	You are 	expected 	to
follow 	procedures 	(sic) 	described 	in my
memo to you of December 10, 	1984.
32

This 	memo 	is 	to be placed 	in your 	District
Personnel 	file. 	You have 	the opportunity to
review and comment hereon, 	if you 	so
desire. 	Ten working days 	from the date 	of
this memo 	(January 7, 	1984) 	this memo and
your written response 	(if 	any) 	will be
placed 	in 	your 	District 	Personnel 	file.
(1-Exh. 	9.)
Again, 	the 	record 	is 	devoid of 	evidence 	that 	the matters
alleged 	in Sund's memorandum did 	not 	in 	fact 	take place. 	Again
there 	is 	no basis 	for 	concluding 	that 	Magana would 	fabricate
stories 	just 	to get Petrich 	in trouble, 	for any reason, 	let
alone 	the 	exercise 	of 	rights protected by 	the 	EERA.
E. 	Case No. 	LA-CE-2130
In 	this 	case 	the 	Board 	itself 	characterized 	the 	allegations
as follows:
A. 	Placement 	of 	a 	correction memo by 	Sund,
erroneously 	dated 	January 	8, 	1984 	(should 	be
1985), 	in Charging Party's personnel file.
The 	memo 	concerned 	Charging 	Party's 	alleged
refusal 	to 	follow 	instructions 	regarding
removal of leaves.
B. 	Sund's 	recommendation 	that 	Charging
Party be 	dismissed 	as 	a 	result 	of 	the
January 	8, 	1985 	meeting with Charging Party,
memorialized in Sund's January 17, 	1985
memo.22
C. 	Assistant 	Superintendent 	Frank 	Tucker's
January 30, 	1985 	letter 	to Charging Party
(placed 	in 	the personnel 	file 	and 	sent 	to
22The 	meeting concerned the January 8 	Memorandum, 	but 	did
not 	take place 	on that date.
33

payroll) 	advising him that his 	pay would be
docked 	for 	any day he 	is 	absent 	due 	to
illness 	from February 8, 	1985 	to June 	30,
1985, 	unless he provided a doctor's written
verification of 	illness.
With 	respect 	to 	the 	memorandum which 	was 	erroneously 	dated
1984 	but 	subsequently corrected, 	Dr. 	Sund described 	the
incident 	or 	incidents which 	led 	to 	the writing 	of 	the
memorandum. 	She testified that 	in her 	presence, 	she
specifically heard Mr. 	Magana ask 	Petrich 	to remove 	a pile 	of
leaves 	that were 	close 	to 	the office 	area. 	Magana mentioned to
Sund 	that 	several 	times 	thereafter 	he 	had 	asked 	Petrich 	to
remove 	the 	leaves 	but 	they 	remained. 	Sund herself 	spoke 	to
Petrich 	early 	in 	the 	afternoon 	and 	directed him 	to 	remove 	the
leaves. 	When she checked at 	3:45 p.m., 	however, 	prior 	to
Petrich's 	leaving time, 	the leaves were still there, 	and when
she 	began work 	the 	next morning 	at 	7:30 	a.m., 	the 	leaves 	were
still there. 	Sund testified, 	as her memorandum indicates, 	that
she 	considered 	such 	actions 	by Petrich 	to 	be 	insubordination
and 	that 	she wanted 	to arrange 	an 	appointment with 	him 	to 	give
him 	some 	opportunity 	to 	explain 	why 	she 	should 	not 	recommend
disciplinary action. 	(1-Tr: 	169-170.)
The 	second 	action alleged 	to 	be 	unlawful 	is 	Sund's
recommendation, 	after 	meeting with 	Petrich 	and his
representative, 	that he be dismissed. 	Petrich alleges 	that 	the
recommendation 	of 	dismissal 	was 	in 	retaliation 	for 	his
protected 	activity. 	The 	uncontroverted 	testimony 	of 	Sund 	was
34

that Petrich 	engaged 	in 	repeated 	acts 	of 	insubordination. 	Her
memorandum, 	dated January 17, 	1985 states as follows:
Following the meeting, 	I 	reviewed the 	issues
with 	the 	Assistant 	Superintendent 	for
Personnel. 	I 	find 	it 	impossible to excuse
your 	failure 	to 	follow 	reasonable
directions, 	repeatedly given. 	This 	incident
appears 	to be simply the 	last 	of 	a series 	of
actions 	indicating 	your 	unwillingness 	to
give 	the 	minimum cooperation 	necessary 	to
the 	effective and 	efficient 	operation 	of
this 	school. 	This behavior 	cannot be
disregarded. 	Therefore, 	I 	am recommending
that you be dismissed. 	You will 	hear 	from
the 	personnel 	office 	concerning 	my
recommendation within two weeks, 	I 	am sure.
(1-Exh. 12.)
As 	will 	be 	demonstrated below, 	Sund was 	merely making 	a
recommendation based on her 	assessment 	of 	Mr. 	Petrich.
Throughout 	the hearing, 	she 	testified 	that 	she was 	not
experienced 	in 	the 	technical 	aspects 	of 	personnel
administration or 	in contract 	administration 	and, 	accordingly,
she 	frequently 	relied 	upon 	Tucker 	and 	other 	personnel
administrators.
In 	any event, 	based on 	the 	unrefuted testimony of 	Sund, 	it
is found, 	as a matter of fact, 	that her 	recommendation was not
unreasonable and was 	made 	in 	response 	to 	her 	perception 	that
trying 	remedial 	action with 	Mr. 	Petrich 	would only be 	a waste
of 	her 	time. 	She had talked 	to 	him frequently 	and written
several 	memoranda which 	addressed 	his 	attitude 	generally 	and
the need to maintain the school grounds, 	specifically, 	in
addition, 	she had written him just 	one month earlier, 	on
35

December 	11, 	1985, 	advising him that 	if he did not 	follow her
directions 	and 	those of 	Magana, 	she would 	recommend
disciplinary 	action 	beyond 	a 	reprimand.
Moreover, 	when Tucker was 	asked by the Charging 	Party 	if
discussions 	of 	discipline began 	subsequent 	to 	the 	filing of 	the
first Unfair Practice Charge, 	Case No. 	LA-CE-2097, 	Tucker
responded as 	follows:
I 	do not 	even remember 	the 	date 	of 	the
filing of LA-CE-2097. 	I 	don't try to
remember 	that. 	I 	look 	those things 	up 	in my
file when I 	need to know them. 	Mr. 	Petrich,
it has always been my contention, 	which I
have made often with Mr. 	Aldrich, 	that the
District fires no-one, 	that in our District
the 	employee has 	to 	fire himself. 	And 	I'll
have 	to admit 	that by 	some 	time 	in November
I 	had 	just 	about 	reached 	the 	conclusion 	that
you were, 	regardless 	of 	anything we did,
somehow or 	other 	you would 	find 	a way 	to
fire yourself. 	(1-Tr: 	239.)
Tucker's 	testimony was 	credible 	and 	convincing. 	Whether
discussions 	of 	discipline 	took 	place 	before 	or 	after 	the 	first
unfair 	practice charge, 	it 	clearly had no 	influence 	on 	Tucker's
stance regarding discipline. 	Thus, 	it 	is 	found that there was
no 	overt 	relationship between 	the 	recommendation 	and 	the
Charging 	Party's 	protected 	activity.
The next matter 	at 	issue 	in this particular 	case, 	pertains
to 	Tucker's 	memorandum 	requiring 	doctor's 	verification 	of
illness when Mr. 	Petrich utilized his 	sick 	leave. 	Tucker
testified 	that 	he 	sends 	out 	such 	letters 	on many 	occasions 	and
that 	on 	each 	of 	those occasions 	a 	copy of 	the 	letter 	is 	sent 	to
36

that 	employee's personnel 	file. 	Tucker 	further 	testified 	that
in sending 	the 	letter 	to 	Petrich 	and placing 	it 	in 	his
personnel file, he was relying, 	in part, 	on Article 13.3.4 of
the collective bargaining contract, 	which provides, 	in relevant
part, as follows:
A 	doctor's 	certificate or 	other 	proof 	of
illness 	or 	disabling 	condition 	may be
required 	by the 	District 	for 	any 	illness 	or
disabling 	condition 	when 	the 	classified
employee 	has 	been 	informed 	that 	verification
for 	future 	absences 	will 	be 	required.
Tucker 	testified 	that 	he 	routinely 	sends 	such 	letters 	to
employees 	and 	that 	Petrich was 	treated 	in precisely 	the 	same
manner 	as 	all 	other 	employees 	in 	the 	District 	based 	on 	the
calculation 	of 	excessive 	use of 	sick 	leave.
Tucker 	was 	asked about 	his 	motivation 	in 	sending 	the 	letter
to 	Petrich 	and 	in 	ultimately 	recommending 	Petrich's 	dismissal
prior 	to the 	Skelly hearing. 	(Case No. 	LA-CE-2143.)
Specifically, 	Tucker 	was asked about 	his 	level 	of 	frustration
over 	the 	extensive 	negotiations 	which 	took 	place 	with 	respect
to changing Petrich's starting 	time. 	In what 	the 	undersigned
found 	to be 	extraordinary candor, 	Tucker 	responded 	that 	he 	did
not believe 	or 	was 	unsure whether 	the 	subject was 	even 	a matter
for 	negotiations, 	but that 	out 	of 	respect 	for 	Alan Aldrich he
agreed 	to negotiate 	the 	issue. 	The 	negotiations 	apparently
lasted 	only 	several 	minutes 	because 	Petrich 	indicated 	that
there was 	nothing 	the District 	could 	do 	to 	get 	him to 	agree 	to
37

change his 	hours. 	Tucker 	characterized 	the 	sequence 	of 	events
as 	a learning experience. 	(1-Tr: 	236-237.) 	When asked about
the extent of his 	frustration, 	answered as 	follows:
I 	found it, 	I thought it was, 	it frustrated
me to this extent, Mr. 	Petrich, 	I thought
it, 	I have a great deal 	of admiration for
the 	procedures 	that 	have 	been 	created 	by 	the
State 	of 	California 	to protect 	employees,
but I 	have to admit 	I 	thought this was an
abuse 	of 	those 	extensive 	and
well-established procedures. 	So, 	to that
extent, 	I was frustrated. 	But that's the
law of the land, 	Mr. 	Petrich. 	(1-Tr: 	237.)
As previously stated, 	Tucker 	presented himself 	as 	a man 	not
easily riled. 	He may have been 	irritated with 	the process, 	but
I 	cannot 	find, 	as a matter 	of fact, 	that he would retaliate
against Mr. 	Petrich for his 	invocation of 	it. 	In fact, 	based
upon 	the 	record, 	it 	appears 	that 	he 	displayed 	extraordinary
restraint 	in 	all 	his 	dealings 	and 	recommendations 	vis-a-vis 	the
Charging 	Party. 	For 	example, 	although 	the memorandum
requiring a 	doctor's 	verification 	of 	illness 	stated 	the
starting date was February 	8, 	Mr. 	Petrich was not 	docked 	for
several 	subsequent 	absences when 	he 	brought 	an 	unacceptable
"verification." 	(2-Tr: 	84.)
F. 	Case No. 	LA-CE-2143
This 	case 	involves 	Tucker's 	initial 	recommendation 	of
dismissal 	and subsequent 	recommendation 	of 	a 	30 	day
suspension. 	Both actions are 	alleged 	to be 	in 	retaliation 	for
Petrich's protected activity. 	In 	this hearing, 	Carlos 	Corona
38

testified 	on 	behalf 	of 	the 	Charging 	Party. 	His 	recollection
was 	so vague 	on all material 	issues 	that 	it must 	be
disregarded. 	He 	was 	a 	newly appointed 	grievance 	chairperson
who 	attended 	several 	meetings. 	He 	testified 	that 	he 	thought
Tucker 	said words 	to 	the 	effect 	that 	he 	would 	see 	Petrich
disciplined before Tucker 	retired, 	but, 	by itself, 	even 	if
credited, 	the 	testimony sheds 	little 	light 	on 	the 	case.
Alan Aldrich was also 	called by 	the 	Charging 	Party. 	This
witness, 	who 	is not an agent of 	the District, 	was 	considered by
the 	Charging 	Party 	to be 	an 	expert 	on 	labor 	relations.
Although 	technically 	no 	proper 	foundation 	was 	laid 	to 	find 	Mr.
Aldrich 	an 	"expert," 	he 	is experienced, 	intelligent 	and has
worked with 	District management 	for 	four 	years.
Aldrich 	testified 	that 	Tucker 	was 	clearly 	irritated 	with
Petrich. 	He 	testified as 	follows:
Well, 	Frank was 	clearly extremely 	irritated
by 	the 	situation. 	And his 	irritation was
directly 	linked 	to what 	he 	perceived 	as
calculated 	insubordination 	actions 	by 	Mr.
Petrich 	at 	the Woodcrest 	site. 	(2-Tr:
34-35.)
Upon questioning 	by 	the 	undersigned 	regarding 	the 	nature 	of 	the
alleged 	acts 	of 	insubordination 	and 	documented 	incidents 	of
misconduct, 	Aldrich was 	asked 	if 	he 	included the 	filing 	of
grievances and responded, 	"No, 	I 	don't." 	When asked if he
included the 	filing of 	unfair 	practice charges, 	he 	said
"[a]bsolutely not." 	(2-Tr: 	35.)
39

The 	Charging 	Party 	further 	questioned 	Aldrich 	trying 	to
ascertain 	if 	there was 	something 	unusual 	regarding 	the
procedures 	which 	ultimately 	resulted 	in 	the 	imposition 	of
discipline. 	The 	Charging 	Party 	suggested 	that 	the 	District
"negotiates" 	with 	CSEA prior 	to 	making 	its 	pre-Skelly
recommendation 	and 	that 	failure 	to 	do 	so 	in 	this 	instance
constituted a 	deviation 	from past 	practice, 	an 	indicia 	of
unlawful motivation. 	Aldrich 	responded 	that 	there 	was 	no
contractual 	obligation 	or 	rigid 	past 	practice 	requiring 	the
employer 	to 	enter 	into 	informal 	negotiations 	in 	an 	attempt 	to
reduce proposed 	disciplinary 	action. 	He 	testified 	as 	follows:
Over 	the 	last 	three years, 	I 	would say that
informal 	negotiation 	had 	occurred 	in
probably 	70 	percent 	of 	the proposed
disciplinary cases. 	And 	the other 	30
percent, 	the Employer 	chose 	to simply
implement 	the 	clear 	language 	of Article 	19.
(2-Tr: 46-47.)
At 	the 	time of 	the hearing, 	however, 	Aldrich 	indicated 	that 	in
40 	percent of 	the 	cases, 	the 	employer 	did not meet 	informally
prior 	to 	issuance 	of 	a 	disciplinary 	recommendation.
Finally, 	Petrich 	asked Aldrich 	the 	following 	question.
Mr. 	Aldrich, 	in your professional opinion,
do you believe that 	Dr. 	Sund was 	to the end
of 	her 	rope with 	the 	Charging 	Party because
of his exercise of rights, 	continuing
grievances, 	and unfair 	practice 	charges?
Aldrich 	responded 	as 	follows:
My professional 	opinion 	is 	that 	Doctor 	Sund
was at 	the 	"end of her 	rope," 	because 	of
alleged misconduct 	that 	the 	Charging 	Party
40

was 	engaging 	in. 	And 	its 	— 	my 	firm 	sense
of 	things 	is 	that 	the 	Employer 	had very
little 	concern 	or 	regard 	for 	the 	unfair
practices, 	or 	the grievances 	that were being
filed. 	And 	they were 	concerned 	with
attempting 	to 	remediate what 	they 	perceived
to 	be 	a 	difficult 	disciplinary 	situation
that 	was 	ongoing 	at 	the 	site. 	That's 	— 	my
professional opinion. 	(2-Tr: 	61-62.)
(Emphasis 	added.)
Again, 	Alan Aldrich's 	candor 	is 	to be 	commended 	and 	respected.
He 	is 	the 	designated representative 	of 	Mr. 	Petrich 	and his
demeanor 	on 	the 	witness 	stand 	clearly 	evidenced 	that 	he 	did 	not
want to damage his 	constituent's case. 	Nevertheless, 	he found
it necessary, 	under 	oath, 	to admit what he as an experienced
labor 	relations 	specialist perceived, 	namely, 	that 	the District
was 	concerned 	about 	behavior 	and 	not 	with 	alleged 	protected
activity.
Mr. 	Petrich 	next 	called 	Frank 	Tucker 	to 	the witness 	stand.
He 	was 	asked 	very 	few questions 	directly 	relating 	to 	the 	issues
in this case. 	Although 	the 	undersigned 	is 	not 	in a position 	to
determine why 	Mr. 	Tucker 	was 	called 	and 	interrogated 	in 	the
manner 	in which he was, 	the Charging Party apparently wanted 	to
display 	that 	he 	had 	been 	subjected 	to 	disparate 	treatment 	with
respect 	to 	any number 	of 	matters 	which 	preceded 	the
disciplinary 	recommendation.
One had 	to do with Dr. 	Sund's 	rejection of Mr 	Petrich's
Christmas 	gift. 	By way of background, 	Dr 	Sund's 	car 	had
apparently 	lost 	a hubcap and Mr. 	Petrich 	gave her 	a hubcap 	as 	a
41

Christmas present. 	Dr. 	Sund, 	recognizing the expense of 	the
hubcap, 	refused 	to accept 	it. 	Tucker 	had repeated
communications 	with 	Petrich 	about 	the 	necessity 	for 	him 	to
retrieve 	the hubcap as 	it 	could 	not 	be 	accepted. 	There was 	no
evidence 	that 	Dr. 	Sund accepted 	gifts 	costing 	$50.00 	or 	more
from any employees 	or 	that 	her 	rejection 	of 	the 	hubcap was 	any
form of 	discrimination against Mr. 	Petrich. 	Going further, 	Mr,
Petrich 	complained 	about 	the placement 	in his 	personnel 	file
about 	correspondence 	regarding 	the 	hubcap, 	again 	intimating
that placement 	in his personnel 	file 	of 	such 	documentation was
in 	retaliation 	for 	his protected activity.23 Tucker
explained the 	situation 	as 	follows:
We 	usually place 	in 	the personnel 	file
correspondence 	between 	the 	employee 	and
personnel 	— 	or 	the 	employee 	and 	the
personnel office, 	or management; 	anything
that 	may be significant 	in 	the work
relationship. 	This was 	apparently
significant 	to you. 	We 	tried 	to return the
hubcap. 	You refused to accept 	it. 	We tried
to 	return 	the 	hubcap with 	a 	— 	with 	what 	I
regard as 	a 	reasonably courteous 	letter 	of
explanation. 	And then finally, 	on
February 20, 	I 	am still sitting, holding
something 	that 	we 	regard 	as 	your 	property 	of
significant value. 	So 	I 	directed you 	to
come 	and reclaim your property, 	and thought,
now I 	had better make a 	record, 	certainly in
the personnel 	file where 	it would withstand
2 3 In 	Riverside Unified 	School 	District 	(1985) 	PERB
Decision No. 	513, 	the Board upheld the Regional Attorney's
determination 	that 	the hubcap 	letter 	did 	not 	constitute a
reprisal 	against 	the 	Charging 	Party 	for 	engaging 	in protected
activity.
42

time, 	in 	case 	there had to be a 	subsequent
reference thereto.
I 	think 	its 	clearly obvious 	that you 	failed
to follow my direction, 	that you 	did not
come to 	reclaim the 	hubcap, 	and 	that
instead, 	you submitted 	a rather 	lengthy
response. 	Is 	this the 	one 	in which you
direct 	me 	to put 	the hubcap 	on 	Doctor 	Sund's
car? 	(2-Tr: 	77.)
It 	is found, 	as a matter of fact, 	that there was nothing
offensive 	in 	Tucker's communication 	to Petrich 	about 	the
hubcap. 	Moreover, 	the 	incident relating to 	the hubcap bears
some relevance 	to 	this proceeding because 	it 	shows 	that Tucker
had 	first 	hand 	knowledge of 	what 	he 	perceived 	to 	be 	the
Charging Party's 	insubordination and, 	accordingly, 	he was 	not
simply 	relying 	on 	his 	subordinates 	when 	he 	pursued matters
genuinely at 	issue 	in this proceeding, 	namely his
recommendation of 	dismissal 	and 	his 	subsequent 	recommendation
of a 30 	day suspension.
During 	the 	course of 	the 	Charging Party's 	examination of
Tucker, 	he actually asked very 	few questions germane 	to the
issues 	in 	this proceeding. 	To the 	extent the matter was
explored, 	it 	is described below. 	Tucker 	admits 	that he drafted
the document 	dated February 1, 	1985, 	and 	formally entitled
"NOTICE 	OF 	INTENT 	TO RECOMMEND 	DISMISSAL." 	Tucker 	explained
- -
that 	dismissal 	had 	been 	recommended by 	Petrich's 	supervisor,
Sund, 	and that 	the notice was necessary under 	the 	contract 	to
give Petrich 	an 	opportunity to 	respond 	as 	to whether 	or 	not
43

dismissal was 	an 	appropriate 	recommendation.
Tucker 	admits 	to having numerous 	conferences 	with 	Petrich
prior 	to 	drafting 	the 	dismissal 	recommendation 	but 	further
admits 	that 	he had 	no specific 	conference with 	the Charging
Party or 	his 	exclusive 	representative prior 	to 	drafting 	the
document. 	Furthermore, 	Tucker 	admits 	that he did not 	conduct
his 	own 	independent 	investigation 	to 	determine whether 	or 	not
there was merit 	to 	some 	of 	the allegations which 	formed 	the
basis of 	the 	recommendation. 	Nevertheless, 	upon questioning by
the undersigned. 	Tucker 	indicated that, 	in his capacity as
Assistant Superintendent, 	when 	it 	came 	to managing personnel
matters, 	he almost 	always 	relied upon 	the 	judgment 	of 	the
managers 	in 	the 	field. 	Moreover, 	it must be noted 	that part 	of
the 	investigatory procedure 	is 	the 	Skelly conference which 	was
to follow issuance of 	the dismissal 	recommendation, 	if 	Mr.
Petrich 	elected 	to participate 	in 	such 	a 	conference.
Tucker 	also 	responded 	to 	questions 	about 	the 	Skelly
conference 	itself. 	He related 	that Aldrich argued 	that 	there
was 	a personality conflict 	at 	the 	site 	which was 	responsible
for 	the alleged acts 	of misconduct, 	that dismissal 	was 	overly
severe in 	light of 	the nature of 	the offenses, 	and 	in 	light of
past practice. 	Included 	in that past practice was 	the 	fact
that Mr. 	Petrich had never 	been 	suspended 	in 	the past.
After 	the 	Skelly conference, 	Petrich 	was notified 	that 	the
Board of 	Education was 	being 	asked 	to 	suspend him 	for 	30
44

workdays. 	He was 	also 	informed of 	the method to be 	followed 	in
appealing 	that 	recommendation 	to 	the 	Board 	of 	Education.
Although not 	set 	forth 	in 	the 	letter, 	such 	an appeal would
result 	in advisory arbitration.
Tucker 	freely admitted that 	a 	suspension 	for 	30 	workdays
was 	a severe recommendation. 	He was 	then asked by the
undersigned questions 	regarding 	the 	duration 	of 	the
suspension. 	The question and response were as 	follows:
Question: 	What was 	it 	about the
circumstances of Mr. 	Petrich's case, Mr.
Tucker, 	that persuaded you 	to 	conclude 	that
a 	30 	day suspension 	was 	appropriate?
Answer: 	Mr. Petrich, 	in my opinion, 	and
speaking 	from my 	experience 	in 	that
District, 	is what the Canadians call a oner,
a unique situation. 	We had tried, 	in my
opinion, 	every way we knew how, 	counseling,
warnings, 	reprimanding, 	almost endlessly,
about what 	I 	came 	to believe were 	deliberate
malfeasances, provocative in nature,
calculated 	harassment 	of 	two 	lead
custodians, 	leading 	the 	— 	in 	my opinion,
causing the 	former 	lead 	custodian 	to 	retire
earlier 	than 	he would 	simply because 	the
burden of 	supervision of 	Mr 	Petrich was
great 	enough 	that 	it 	encouraged him to
retire 	rather 	than 	— 	running 	the 	warfare.
I 	simply concluded 	that 	it 	took 	something
legitimately severe 	to 	convince Mr. 	Petrich
that 	if he was 	to continue 	in 	the employment
of 	the Riverside Unified School 	District,
that his behavior, 	that his attitude toward
his supervisors had to change. 	And so, 	when
we 	— 	when 	we 	changed 	our 	recommendation 	—
or 	in 	notifying him 	first, 	we 	intended 	to 	—
dismiss him. 	And 	then 	convinced 	or
persuaded by Mr. 	Aldrich's 	representation
that that might be too precipitous a move, 	I
recommended a 	30 	day suspension. 	(2-Tr:
103-104.)
45

In 	the opinion of 	the undersigned, 	there 	is no 	reason 	to doubt
or question 	Tucker's 	decision making process 	in 	recommending 	a
30 	day suspension of 	Mr. 	Petrich. 	Most of 	the 	events which 	led
to 	the 	suspension were uncontroverted during 	the 	course 	of 	the
four 	formal hearings. 	Moreover, 	Sund 	corroborated Tucker's
position 	or 	complemented 	it 	by her 	testimony 	in 	the previous
hearings 	regarding all 	the 	initial 	attempts 	to 	remediate
Petrich's 	behavior 	before 	the 	series 	of 	documentation began.
Dr. 	Mary Ann 	Sund was 	next 	called as 	a witness by 	the
Charging Party. 	Dr. 	Sund was 	asked about 	alleged 	improprieties
with 	respect 	to 	the memorandum that 	she 	had 	given 	to 	Charging
Party that 	was 	incorrectly dated 	1984 	rather 	than 	1985. 	(Case
No. 	LA-CE-2130.) 	Petrich 	seemed upset 	that 	Sund 	failed 	to 	give
Charging 	Party 	a 	corrected 	copy of 	the memorandum prior 	to 	its
placement 	in his personnel file, 	although there was 	no 	dispute
that 	a correction had been made. 	Beyond 	that, 	Sund was 	not
asked any questions 	which were 	particularly germane 	to 	the
instant proceedings.
Shortly thereafter, 	Petrich's 	examination of 	Sund 	concluded
and he 	indicated, 	after ascertaining 	that 	all 	his exhibits were
in evidence, 	that he was resting. 	Notwithstanding admonitions
regarding the limitations 	on 	the use of 	the exhibits, 	Mr.
Petrich rested his 	case, 	and thereafter, 	the District made 	its
Motion 	to Dismiss.
6	4

IV. 	CONCLUSIONS OF 	LAW
A. 	Case No. 	LA-CE-2134
Under 	the 	circumstances, 	the 	undersigned does 	not 	believe
that 	the Charging Party 	or 	his 	CSEA representative had 	a 	right
to negotiate a 	one hour 	change 	in 	starting time with 	no 	other
change 	in hours of work. 	Nevertheless, 	the question 	is
sufficiently debatable, 	there being no 	definitive 	Board
precedent 	on 	a case such 	as 	this, 	that 	the undersigned 	finds
that 	the Charging Party had 	every 	right 	to 	insist 	on
Association representation regarding 	the matter. 	Moreover, 	at
the 	meeting which 	eventually took 	place, 	dissatisfaction with
Petrich's 	job performance was 	ultimately discussed. 	In 	any
event, 	there 	is 	no evidence that 	there was 	any objection 	to
Petrich's 	request 	for 	Association 	representation. 	The 	District
quickly 	ended 	the 	meeting 	on 	August 	22 	and 	allowed 	two
representatives, 	Aldrich and Gandara, 	at 	a time mutually agreed
upon 	the 	next 	day. 	Williams 	testified 	that 	such 	requests were
normal 	and 	the District often interrupted meetings 	in order 	to
await Aldrich. 	(1-Tr: 	82.)
The evidence disclosed that at an August 23, 	1984,
discussion 	of 	changing 	the Charging 	Party's 	starting 	time,
Williams became agitated. 	I 	credit Aldrich's description of
Williams 	as contentious during the meeting 	in question. 	I 	also
credit, 	and in fact it 	is not denied, 	that Williams indicated
that 	if 	Petrich 	did 	not accept 	the 	change 	in starting 	time,
47

someone 	else would be 	obtained 	to perform the 	job. 	I 	credit
Williams 1 account 	that 	he 	did 	not 	intend 	to 	threaten 	Petrich
with 	retaliation 	and 	simply meant 	that 	someone 	else would 	do
the watering of 	the school grounds 	at 	an earlier 	hour, 	a 	feat
that was 	in 	fact 	accomplished by 	having 	Magana 	do 	part 	of
Petrich's 	job. 	Aldrich, 	however, 	testified that Williams'
manner 	was 	threatening and he perceived 	it 	as 	a 	threat.
Aldrich 	was 	sufficiently concerned 	about 	the 	tenor 	of 	the
meeting 	that 	he 	followed 	up his 	conversation with 	Williams 	by
first 	talking 	to 	and then sending 	a 	communication 	to 	Tucker.
This particular 	case 	raises questions 	as 	to whether 	or 	not
there was 	a violation of the Charging Party's rights, 	codified
in section 	3543.5(a) 	of 	the Government 	Code.24 The 	case
raises questions of 	retaliation, 	and questions 	of 	interference
or threats. 	Thus, 	the appropriate tests to use include the one
set 	forth 	in Carlsbad Unified School District 	(1979) 	PERB
Decision No. 	89, 	as subsequently modified by more recent Board
decisions. 	The Carlsbad test provides as 	follows:
24	24 	Section 3543.5. 	provides, 	in relevant part, 	as follows:
It 	shall 	be unlawful 	for 	a public 	school 	employer 	to:
(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.
48

To 	assist 	the 	parties 	and 	hearing 	officers
in this and future cases, 	PERB finds 	it
advisable 	to 	establish 	comprehensive
guidelines 	for 	the 	disposition 	of 	charges
alleging violations of 	section 3543.5(a):
1. 	A single test 	shall 	be 	applicable 	in 	all
instances 	in which 	violations 	of 	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
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.
In Novato Unified School 	District 	(1982) 	PERB Decision 	No.
210, 	the Board abandoned 	its 	single 	test 	approach 	to violations
of section 3543.5(a), 	recognizing that there was 	a distinction
between 	interference and 	discrimination 	cases. 	In 	the 	latter
case, 	the Board found that 	to establish 	a prima 	facie 	case 	of
discrimination, 	the 	charging party must 	establish 	that 	the
employee participated 	in protected 	activity, 	the 	employer 	had
49

knowledge of 	such participation, 	the 	employer 	took 	action
adverse 	to the employee's 	interest, 	and that 	there was 	an
unlawful motivation 	for 	the 	employer's 	action 	such 	that 	the
employer 	would 	not 	have 	acted 	but 	for 	the protected 	activity.
Since unlawful motivation is 	difficult 	to prove directly, 	the
Board 	recognized 	that 	an 	inference 	of 	such 	unlawful 	intent
would be created by a variety of 	factors, 	including, 	but not
limited to, 	the timing of the employer's action, 	disparate
treatment of 	the employee, 	departure 	from established
procedures 	and standards, 	failure 	to offer 	justification 	to 	the
aggrieved 	employee 	at 	the 	time 	the 	adverse 	action 	was 	taken,
inconsistent 	or 	contradictory 	justifications 	for 	the action, 	or
the 	employer's 	proffering of 	exaggerated 	or 	vague 	and 	ambiguous
reasons 	for 	the action.
In 	the 	instant case, 	it 	is difficult to determine whether
this 	is a case of reprisal, 	or 	interference. 	As noted by the
Board 	in 	Coast Community College 	District 	(1982) 	PERB 	Decision
No. 	251, 	the distinction between 	"interference" and
"discrimination" 	cases 	is 	often blurred. 	With 	respect 	to
interference, 	notwithstanding 	the undersigned's belief 	that
Williams meant 	no 	ill-will 	and was 	simply 	frustrated by 	the
circumstances 	of 	Mr. 	Petrich 	refusing 	to accommodate himself 	to
the needs of 	the 	children and the aesthetics of 	the 	school
site, 	reasonable minds 	could differ 	as 	to whether 	his 	comment
should be 	construed as 	a 	threat. 	But 	for 	Aldrich's 	testimony
regarding Williams' 	level 	of agitation, 	the 	comment 	could be
50

considered a neutral statement. 	With 	respect 	to
discrimination, 	there 	is 	no evidence 	that 	any adverse 	actions
were 	taken against 	the 	Charging Party as 	a 	result 	of 	this
meeting 	notwithstanding 	Magana's 	alleged 	comment 	that 	he 	became
frustrated.
The 	first question 	to be 	determined 	is 	whether 	Williams'
statement 	should be considered 	a 	threat. 	Although 	it may be 	a
close question, 	the undersigned concludes 	that 	it was 	not.
PERB 	has 	long 	recognized 	that 	alleged 	threatening 	comments
should be 	viewed 	in 	their 	overall 	context 	to 	determine 	if 	they
have 	a 	coercive meaning. 	John 	Swett 	Unified 	School 	District
(1981) 	PERB Decision No. 	188. 	In the instant case, 	the meeting
was 	not 	convened 	to 	discuss 	anything 	related 	to 	the 	Charging
Party's protected activity. 	Among other 	things, 	the parties
were assembled 	to 	try to 	get 	the 	Charging Party's 	cooperation
in meeting the perceived needs of 	the school. 	In 	that 	context,
Williams 	displayed his 	frustration 	in 	a manner 	entirely
consistent with 	his 	temperament 	and 	his 	long 	standing
relationship with Aldrich. 	Cf. 	TRW, 	Inc. 	v. 	NLRB 	(5th Cir.
1981) 	654 F.2d 307 	[108 LRRM 2641]; 	NLRB v. 	Big Three
Industries Gas 	& 	Equipment Company 	(5th Cir. 	1971) 	441 	F.2d 774
[77 	LRRM 2120] 	wherein 	the 	Courts 	recognized 	that whether 	or
not 	a 	statement 	is 	a threat 	is 	not a matter which 	can be
analyzed 	in 	a vacuum, 	but must be 	considered 	in 	light 	of 	the
circumstances when 	such 	language 	was 	spoken.
In a different area, 	namely a 	libel 	action, 	the California
51

Supreme 	Court 	has 	recognized 	that 	different 	standards 	should
apply with 	respect 	to 	statements 	made 	in 	the 	context 	of 	labor
disputes 	because 	in passing 	the Labor 	Management Relations 	Act,
29 U.S.C. 	141, 	et seq., 	Congress wanted to encourage free
debate 	on 	issues 	dividing 	labor 	and management. 	Gregory v.
McDonnell Douglas Corp. 	(1976) 	17 Cal.3d 596.
Based upon 	the 	record, 	it 	is 	clear 	that Aldrich perceived
the statement 	not 	as 	a 	threat 	to 	terminate 	or 	take 	adverse
action 	against 	the Charging Party but 	rather 	as 	a 	method of
getting him to agree 	to change his hours. 	This 	conclusion 	is
based on Aldrich's 	testimony 	that 	he 	left 	the 	meeting 	believing
the 	District 	would 	unilaterally 	change 	Petrich's 	starting 	time
and 	that 	once 	the District 	agreed 	to negotiate, 	CSEA did 	not
pursue 	any 	separate 	action 	regarding 	the 	conduct 	of 	the
meeting.25 The conclusion 	is 	also 	supported by Petrich's
assertion that Williams' 	comments 	were 	not 	related 	to protected
activity but were a 	form of 	intimidation. 	(See footnote 	18,
supra.)
No 	matter 	how Petrich 	or 	Aldrich perceived 	the 	statement,
the undersigned concludes 	that 	it 	was 	not 	a threat 	of
25There 	is 	no 	explanation provided 	as 	to why Petrich
himself waited nearly six months 	to 	file 	this 	charge 	in pro
per. 	Although 	it 	was timely filed under 	the 	applicable 	law,
having amply demonstrated his ability to 	file charges, 	prior 	to
February 11, 	1985, 	it is worth some reflection as to whether
Petrich 	considered Williams' 	comments 	to be 	threatening or
whether 	he merely wanted 	to 	add 	additional 	evidence 	of
protected 	activity 	after 	receiving 	notice 	of 	the 	District's
recommendation of 	a 	30 	day suspension on February 8, 	1985.
52

• • • •
retaliation or 	a 	calculated coercive 	statement. 	It was merely
an 	expression 	of 	frustration 	by 	an 	administrator 	who had 	no
authority over 	Petrich. 	Under 	all 	the 	circumstances, 	there was
nothing 	unlawful 	about 	the 	statement.
If 	one should consider Williams' 	statement a threat,
however, 	it must 	then be determined whether 	the Charging Party
was 	engaged 	in 	protected 	activity when 	he 	refused 	to 	cooperate
with 	the District 	and acquiesce 	in 	a 	change 	in his 	starting
time. 	Thus, 	it 	is necessary to examine whether 	or 	not a change
in starting time of one hour, 	with no other 	change 	in duties
and responsibilities within 	the 	job 	description 	and 	no 	other
change 	in working conditions, 	constitutes 	a matter 	within the
scope 	of 	representation 	as 	that 	term 	is 	defined 	in 	section
3543.2. 	That section provides, 	in relevant part, 	as follows:
The 	scope of 	representation 	shall 	be 	limited
to matters related to wages, 	hours of
employment 	and other 	terms 	and 	conditions 	of
employment. 	"Terms and conditions of
employment" 	mean health 	and welfare
benefits, 	. 	. 	. leave, safety conditions of
employment, class size, procedures to be
used 	for 	the evaluation 	of 	employees,
organizational security, 	. 	. 	. procedures
for 	processing 	grievances, 	. . . . 	All
matters 	not 	specifically 	enumerated 	are
reserved 	to 	a public 	school 	employer 	and may
not 	be 	a 	subject 	of 	meeting 	and 	negotiating
The question of 	whether 	a matter 	falls within 	the 	scope 	of
representation 	is 	easy 	to 	resolve 	if 	the matter 	directly
relates to wages, 	hours of employment, 	or another 	specifically
enumerated 	term or 	condition 	of 	employment. 	When 	a matter 	is
53

not 	specifically 	referenced 	in 	the 	definition 	of 	scope 	of
representation, 	however, 	the Board has established a test 	for
addressing 	that question. 	In Anaheim Union High 	School
District 	(1981) 	PERB Decision No. 	177, 	the test was set forth
as follows:
[A] 	subject is 	negotiable even 	though not
specifically enumerated 	if 	(1) 	it 	is
logically and 	reasonably 	related 	to 	hours,
wages 	or 	an enumerated 	term and 	condition 	of
employment, 	(2) 	the subject is of such
concern 	to both management 	and 	employees
that 	conflict 	is 	likely to 	occur 	and 	the
mediatory 	influence 	of 	collective
negotiations 	is 	the 	appropriate means 	of
resolving the conflict, 	and 	(3) 	the
employer's 	obligation 	would 	not
significantly abridge 	his 	freedom 	to
exercise 	those 	managerial 	prerogatives
(including matters 	of 	fundamental 	policy)
essential 	to the 	achievement 	of 	the
District's mission.
The 	test 	established 	in Anaheim, 	and 	upheld by 	the
California 	Supreme 	Court 	in 	San Mateo City School 	District
(1983) 	33 Cal.3d 850, 	is essentially one which accommodates the
interests 	of 	employee organizations 	and 	the employer 	and
harmonizes 	those 	interests with 	public 	policy 	considerations
and 	the 	legislative 	intent 	expressed 	in 	the 	EERA.
The proposed change 	in 	the 	starting 	and ending 	time 	for
Petrich was 	a 	direct 	function 	of 	the perceived 	needs 	of 	the
students and the maintenance of 	the classrooms. 	For 	Petrich,
it 	did 	not 	lengthen the 	"hours 	of work," 	alter 	the distribution
of work within 	the 	day, 	or 	change 	the 	relationship of 	Petrich
to his 	supervisory personnel. 	The 	change was 	not 	one 	directly
54

relating 	to 	"hours 	of 	employment.11 Federal 	courts 	and 	the
National 	Labor Relations 	Board 	have 	long 	recognized, 	however,
that 	the 	time of 	day one 	is 	required 	to work 	is 	a mandatory
subject 	of bargaining. 	In Meatcutters v. 	Jewel 	Tea Company
(1965) 	381 U.S. 	676 	[59 LRRM 2376], 	the Supreme Court stated:
The particular 	hours 	of 	the 	day 	and 	the
particular 	days 	of 	the week 	during which
employees 	may be 	required 	to work 	are
subjects well within 	the 	realm of 	wages,
hours, 	and other 	terms and conditions of
employment 	about 	which 	employers 	and 	unions
must bargain, 	Id 	at 691.
See also, 	Texaco, 	Inc. 	(1977) 	233 NLRB 375 where a unilateral
change 	in 	the 	starting time 	of 	a 	shift was 	held to violate
section 8(a)(5) 	of 	the National Labor Relations Act.
In 	interpreting 	the 	Myers-Milias-Brown Act 	(hereinafter
MMB) 	and regulatory schemes which 	implement 	it, 	the California
courts 	have 	also recognized 	that 	the 	schedule 	of 	hours 	is
negotiable. 	In Firefighters Union v. 	City of Vallejo 	(1974) 	12
Cal.3d 	608, 	citing Jewel 	Tea with approval, 	the California
Supreme Court 	held 	that 	the 	matters 	of 	hours 	of 	work 	and 	shift
are negotiable. 	Similarly, 	in Huntington Beach Police Officers
Ass, 	v. 	City of Huntington Beach 	(1976) 	58 Cal.App.3d 492, 	the
Court 	of Appeal 	found that 	the 	employer 	violated 	the 	MMB when
it 	unilaterally modified the weekly work 	schedule, 	though 	the
number 	of hours 	required per 	week 	remained 	the 	same. 	These
federal 	and 	state authorities 	often provide guidance 	in
interpreting 	the 	language 	found 	in 	the 	EERA. 	Unfortunately, 	in
55

the instant case, 	they do not; 	it 	is 	impossible to determine
whether 	the 	holdings 	cited 	in 	the 	cases 	above 	rest 	on 	a 	finding
that the 	changes 	in work 	schedules 	related to 	"hours" 	or 	"other
terms and conditions of employment." 	In other words, 	those
cases 	do 	not 	provide guidance with 	respect 	to 	scope questions
unique 	to EERA. 	Similarly, 	the PERB's 	decisions 	do not provide
definitive 	guidance 	as 	to whether 	the 	starting 	and 	ending 	time
of 	the workday 	is 	a matter within 	the 	scope of 	representation
when the number 	of hours per 	day 	is 	not 	at 	issue 	or 	when 	the
starting and ending time is not being changed dramatically.26
In Jefferson School District 	(1980) 	PERB Decision No. 	133,
the Board 	did 	not 	have 	to 	reach 	the precise question 	of whether
or 	not 	the 	starting and ending 	time 	of 	a 	teacher's 	day was
negotiable. 	In Jefferson 	the question was whether 	a proposal
for 	the publication 	and mutual 	agreement 	to 	"daily 	school
sessions" 	was 	negotiable. 	Chairman Gluck 	found:
The proposal 	does 	not 	define 	"daily 	school
sessions." 	To 	the extent 	the 	term embraces
the number 	of 	hours 	the 	teachers 	are
required 	to 	be present—the 	hours 	between
the 	starting 	and 	quitting 	time—the
requirement 	that 	it 	be mutually agreed 	upon
is within the 	scope 	and must be 	negotiated.
Id at 36.
-
Thus, 	although not 	directly confronting the question presented
2 6 In 	Pittsburg Unified School 	District 	(1982) 	PERB
Decision No. 	199, 	the Board did uphold an ALJ's determination
that a 	change 	in 	shift was 	negotiable. 	In 	that 	case, 	however,
the 	change 	in 	shift 	simultaneously 	resulted 	in a 	change 	in
hours worked 	and 	the availability of 	overtime 	compensation.
56

here, 	by 	inference, 	Jefferson seems 	to support 	the proposition
that 	the starting and ending time 	of 	the 	teachers' 	day falls
outside 	the scope of 	representation. 	The undersigned sees 	no
compelling 	reason 	to 	distinguish 	the 	school 	day and 	thus 	the
starting and 	ending time 	of 	a 	teacher's 	day from that 	of 	a
gardener whose 	schedule 	it 	is 	necessary 	to 	reorchestrate
because of 	the starting 	time of 	the 	school 	day.
In 	applying Anaheim standards 	to 	the 	question presented
here, 	it 	is 	determined that 	the starting and 	ending time of 	a
gardener 	at Woodcrest 	Elementary 	School 	is 	not 	a matter 	within
the 	scope of 	representation. 	It 	cannot be 	disputed that
starting and 	ending 	time 	is 	a 	subject 	which 	logically 	and
reasonably relates 	to hours 	and 	that 	it 	is 	a matter 	of 	great
concern to both management and employees. 	It 	is not, 	however,
the 	type of 	issue which 	is 	particularly 	conducive 	to 	resolution
through 	the 	"mediatory 	influence 	of 	collective 	negotiations."
Although 	the 	District 	did voluntarily 	agree 	to 	negotiate 	this
matter, 	the 	facts 	disclose that negotiations 	took 	about 	five
minutes 	because Petrich 	said 	there 	was 	nothing 	the 	District
could do to persuade him to change his hours. 	Subsequently,
the matter 	was 	subjected 	to 	mediation 	and 	the 	District 	agreed
to 	give Petrich 	a 	free 	or 	extra vacation 	day. 	Notwithstanding
the 	resolution of 	the dispute 	through what 	might 	be
characterized as 	"negotiations," 	the 	District's position 	in
this 	matter 	was 	dictated by 	concern 	for 	the 	children 	playing 	in
muddy areas 	and by 	concern 	for 	the 	condition 	of 	the 	school 	when
57

the children 	tracked in the mud. 	Thus, 	a 	desire to 	change
Petrich's hours was 	not conducive 	to negotiations because 	it
was 	contingent upon when the 	children 	came 	to school, 	a matter
already 	established.
In 	addition, 	with 	respect 	to the 	third prong 	of 	the Anaheim
test, 	requiring negotiations 	on 	this 	issue might 	seriously
abridge 	certain managerial 	prerogatives 	or 	impinge 	upon 	matters
of 	educational 	policy 	and 	children 	safety 	essential 	to 	the
achievement of the District's mission. 	Certainly, 	Dr. 	Sund has
a 	right 	to 	determine that 	it was 	not 	conducive 	to 	the
educational 	environment 	or 	the welfare of 	the 	school 	to have 	it
filthy 	every morning because 	the 	children 	were 	tracking 	in
mud.2 7
For 	the 	foregoing reasons, 	it 	is 	concluded that when
Petrich 	refused 	to acquiesce 	to 	a 	change 	in his 	starting 	time,
he was 	not 	asserting a 	right protected 	under 	the 	EERA.
Moreover, 	it 	is determined that he was 	not threatened for
asserting 	the 	alleged 	right 	and 	there 	is 	insufficient 	evidence
to conclude 	that 	he was 	retaliated against 	for 	assertion 	of 	the
alleged 	right 	or 	for 	seeking 	union 	representation.
27The 	Respondent also 	argues 	that 	the 	Collective
Bargaining 	Contract which provides 	that 	the District 	will
"determine 	the hours of 	District 	operations" 	and 	"maintain 	the
efficiency of District operations" 	justifies 	its proposed
change in hours. 	Given the conclusions 	reached above, 	it 	is
unnecessary to resolve this 	argument, 	or 	the argument 	that 	a
modification 	of 	Petrich's 	starting 	time 	did 	not 	constitute 	a
change 	given 	the 	District's 	past practice.
58

Accordingly, 	whether 	considered an 	interference 	or 	a
discrimination case, 	he has 	failed 	to 	establish 	a 	nexus 	between
the 	assertion of 	a 	right protected by 	the 	EERA and 	the
District's conduct, 	namely the statement of Williams. 	Thus,
Case No. 	LA-CE-2134 	is DISMISSED.
B. 	Case No. 	LA-CE-2112
This case also alleges a violation of 	section 3543.5(a) 	of
the EERA. 	In this instance, 	however, 	the Complaint 	is clearly
one regarding retaliation. 	In the 	instant case, 	there 	is 	no
basis 	for 	concluding 	that 	the 	various 	allegations 	articulated
in 	the 	Complaint were 	in 	response 	to 	the Charging Party's
exercise 	of 	protected activity. 	Although 	clearly 	the 	Charging
Party 	engaged 	in 	protected 	activity 	by 	the 	filing 	of
grievances, 	alleging contract violations, 	or by the filing of
unfair practice charge, Case No. 	LA-CE-2097, 	the uncontroverted
evidence 	is 	that 	the alleged unlawful 	acts were 	in 	response 	to
the 	conduct 	of 	the 	Charging Party 	and not 	in 	response 	to 	his
filing 	of grievances 	or 	his 	filing 	of 	unfair practice 	charges.
Alan Aldrich 	testified 	in Case No. 	LA-CE-2143 	that 	he 	saw
no 	relationship between 	the 	filing 	of 	grievances 	and 	unfair
practice 	charges 	and 	the 	Charging 	Party's 	receipt 	of 	adverse
memoranda placed 	in his personnel 	file. 	Aldrich 	further
testified 	that 	Sund was 	rigorous 	with 	respect 	to 	documenting at
least 	one 	other 	employee and 	suggested 	that was 	consistent 	with
her 	fundamental 	style.
59

Sund 	testified 	that, 	after 	a 	considerable period 	of 	time
wherein 	she 	tried 	to 	communicate 	with 	the 	Charging 	Party
verbally, 	it became her 	practice 	to commemorate
their interactions 	in writing. 	She 	and 	Tucker 	further 	testified
that 	never 	before had they 	dealt with 	an 	employee who was 	so
totally nonresponsive 	to 	directives 	from 	the 	employer.
Accordingly, 	it may fairly be 	stated that 	there was 	no one
similarly situated 	to 	the Charging 	Party 	to whom his 	record
might be compared. 	He was, 	as characterized by Tucker, 	in a
subsequent proceeding, 	unique. 	Moreover, 	Sund testified 	that
although 	she 	did 	not write 	as 	many memoranda 	to 	other
employees, 	it was her standard practice to place a memorandum
regarding either 	work 	performance 	or 	any other 	matter
concerning 	an 	employee 	in 	that 	employee's personnel 	file.
Moreover, 	it must be remembered, 	that 	Sund 	testified that
verbal 	communication with 	the 	Charging 	Party 	had 	become 	totally
unproductive.
As previously noted, 	there was no specific 	testimony
regarding the December 	10, 	1984, 	memorandum and accordingly,
based upon Novato, 	the Charging Party failed to 	raise an
inference of unlawful motivation. 	Similarly, 	the December 	11,
1984, 	memorandum does not raise an 	inference of 	unlawful
motivation. 	To the extent there was 	testimony, 	Sund stated she
investigated 	the 	allegations. 	Her 	practice of 	writing memos
continued as 	it 	had begun prior 	to 	the 	filing of 	any 	grievances
60

or 	unfair 	practices 	in 	evidence 	in 	these proceedings. 	Finally,
there was 	no significant 	testimony on 	the December 	19, 	1984
memorandum. 	Although 	the 	timing of 	certain 	documentation
corresponds 	with 	the 	timing 	of 	the Charging Party's 	filing 	of
grievances and, 	at that point, 	one unfair practice charge,
timing alone 	is not 	a basis 	for 	raising an 	inference of
unlawful 	motivation. 	Charter 	Oak 	Unified 	School 	District
(1984) 	PERB Decision No. 	404.
With respect to other 	indicia of 	unlawful motivation, 	as
noted above, 	given 	the unique behavior 	of 	the Charging 	Party,
it 	cannot 	be 	concluded 	that 	he was 	subjected 	to 	any 	deviation
in District policy. 	To 	the extent 	Sund was 	interrogated 	about
the memoranda placed 	in 	the Charging Party's 	file, 	she 	credibly
testified and 	justified all 	of her 	actions. 	She 	further
testified 	that 	her 	conduct 	did 	not 	deviate 	from her 	pattern
generally, 	but 	there was 	simply a 	greater quantity because 	of
the propensities 	of 	the 	Charging Party.
In 	terms 	of 	the quality of 	investigation 	conducted 	by Dr.
Sund which Petrich, 	through his questioning, 	implied was
inadequate or 	somehow differential, 	there 	is 	no evidence 	to
support 	such 	a 	conclusion. 	Sund 	testified 	that 	she 	spoke with
all 	concerned personnel 	with 	respect 	to 	the 	alleged misconduct
of 	the 	Charging 	Party 	and 	that 	she 	was 	personally satisfied
with 	the 	conclusions 	and 	the 	information 	she 	received 	from
them. 	In many instances 	she was 	a percipient witness. 	Thus,
61

again, 	the 	evidence presented 	does 	not 	raise 	an 	inference of
unlawful motivation. 	In short, 	there 	is no evidence that Sund
engaged in cursory investigations which might be an indication
of 	unlawful 	motivation. 	North 	Sacramento 	School 	District 	(1982)
PERB Decision No. 	264.
Moreover, 	this 	is not a case similar 	to North Sacramento
where 	an 	employee 	with 	a previously 	good 	record 	is 	repeatedly
reprimanded after 	engaging 	in 	union 	activity. 	Although 	an
employee with 	a 	long work history, 	there 	is 	no evidence 	that
Mr. 	Petrich had a 	good work 	record. 	The previous Principal,
Mrs. 	Ginwright, 	had noted deficiencies 	in his attitude and
attention to 	job duties 	in his 	1983 	evaluation. 	Sund warned
him repeatedly prior 	to 	the events 	giving 	rise 	to 	this 	case 	and
the 	three others. 	Finally, 	Tucker 	testified 	that working with
Petrich was 	so difficult, 	it 	lead to the early retirement 	of
the Charging Party's previous 	supervisor.
Based upon 	the evidence presented, 	the 	testimony 	of 	Sund
and Tucker 	in not only Case No. 	LA-CE-2112, 	but 	in all 	the
cases under 	consideration, 	the undersigned 	is 	compelled 	to
conclude 	that 	the 	Charging Party 	did 	not 	establish 	a 	prima
facie 	case 	and 	the matter 	is 	properly being 	dismissed without
requiring the Respondent 	to go 	forward 	in what would be, 	given
all the circumstances, 	unwarranted. 	Accordingly, 	Case No.
LA-CE-2112 	is 	hereby DISMISSED.
C. 	Case No. 	LA-CE-2130
Conceptually, 	this case is similar 	to Case No. 	LA-CE-2112.
62

That 	is, 	it 	is 	case 	in which 	the Charging Party alleges
retaliation 	and 	the Novato test 	must 	be 	applied. 	Again,
perhaps 	because 	the 	Charging 	Party 	tried 	to 	establish 	his 	case
through 	the 	use 	of 	adverse witnesses 	only, 	he 	failed 	to 	raise
an 	inference of 	unlawful motivation.
The 	first 	alleged unlawful 	act 	was 	the placement 	in
Charging Party's 	personnel 	file 	of 	a 	memorandum 	regarding 	the
removal 	of 	leaves. 	Sund herself 	testified 	regarding 	the 	events
which 	led to 	the writing of 	the memorandum 	in question. 	No
reasonable manager 	could perceive 	the 	Charging 	Party's 	failure
to remove the leaves, without explanation, 	as anything other
than 	an 	act 	of 	insubordination 	and 	the 	undersigned 	finds 	it
impossible 	that 	the writing 	of 	such 	a 	memorandum could 	be
construed as 	an unlawful 	act. 	It 	must 	also be noted 	that 	Sund
proposed a 	meeting 	to 	give 	Petrich 	an 	opportunity 	to 	explain
his 	behavior 	before 	she would 	recommend 	further 	action 	and
Aldrich was 	in 	attendance at 	that meeting.
The 	Charging 	Party totally 	failed 	to 	raise 	any 	inference 	of
unlawful motivation with 	respect 	to 	the writing of 	the
memorandum or 	its placement 	in his personnel 	file. 	Although he
filed a 	grievance regarding 	the 	date 	of 	the memorandum and 	it
was 	subsequently corrected, 	none 	of 	the other 	indicia 	set 	forth
in 	Novato were presented during 	the 	course of 	the 	hearing.
At 	that point 	in time, 	Sund had 	come 	to memorialize all 	her
interactions with 	the Charging Party and, 	accordingly, 	there
63

was 	nothing 	unusual 	or 	out 	of 	the 	regular 	procedure with
respect 	to 	her 	writing 	of 	the memorandum. 	Although 	the 	timing
of 	the 	writing 	of 	the memorandum was 	proximate 	to 	the 	Charging
Party's 	filing of grievances 	and 	unfair 	practice 	charges, 	as
previously stated, 	timing alone, 	given the uncontroverted
evidence 	of Charging Party's misconduct, 	does 	not 	establish
unlawful motivation. 	Moreover, 	these cases 	looked at 	in their
entirety, 	clearly demonstrate that 	a 	school 	district 	cannot 	be
placed 	in 	a 	straight 	jacket 	and 	prevented 	from 	taking
appropriate 	disciplinary action 	simply 	because 	an 	employee
utilizes, 	whether appropriately or 	not, 	procedures established
pursuant 	to 	a 	collective 	bargaining 	contract 	or 	pursuant 	to 	the
EERA.
The 	second 	allegedly 	unlawful 	act 	was 	Sund's 	recommendation
that 	the 	Charging 	Party be dismissed 	subsequent 	to 	a meeting
with the Charging Party, 	the 	subject of 	which was 	discussed 	in
a January 17, 	1985 memo. 	Sund's uncontroverted testimony
established that, 	as the Principal of 	the school, 	she could no
longer 	tolerate 	his 	"unwillingness 	to 	give 	the minimum
cooperation 	necessary to 	the 	efficient 	operation 	of 	the
school." 	Although 	the 	recommendation 	of 	dismissal was 	severe,
there was 	in 	fact 	no 	evidence 	that 	similar 	recommendations 	had
been not been rendered 	in the past. 	In fact, 	Aldrich 	testified
in Case No. 	LA-CE-2143, 	that dismissal recommendations had been
made in the past. 	Thus, 	again, 	the Charging Party failed to
sustain his 	burden with 	respect 	to 	a 	change 	in past 	practice.
64

The most 	damaging 	evidence with 	respect 	to 	this 	aspect 	of
the 	Charging 	Party's 	case perhaps 	came 	from Frank 	Tucker
himself who testified, 	as previously quoted, 	supra at p. 	36,
that 	the 	District 	never 	fired 	anyone 	and 	only 	awaited 	the 	time
when Mr. 	Petrich was 	going to make 	it 	impossible 	to 	recommend
anything 	other 	than 	dismissal.
Assuming, 	arguendo, 	the severity of 	the recommendation
raises 	an inference of unlawful motivation, 	given the use of
adverse witnesses, 	and Aldrich's 	testimony 	in Case No.
LA-CE-2143, 	supra at pp. 	40-41, 	the inference was overcome.
Sund 	credibly 	explained 	her 	action 	and 	Aldrich 	stated 	that 	the
District 	was 	not 	concerned about 	protected 	activity 	but 	rather
behavior. 	Accordingly, 	whether 	the Charging Party met 	his
burden or not, 	this aspect of 	the Complaint cannot be sustained.
The 	final 	allegation 	relates 	to Tucker's 	request 	for
medical 	verification of 	sick 	leave. 	As 	the 	facts 	disclosed 	in
the hearing 	in this case and 	in Case No. 	LA-CE-2143, 	Tucker 	did
not subject 	the Charging Party to disparate treatment, 	the
letter was 	a 	response to 	excessive use 	of 	sick 	leave and, 	under
the circumstances, 	was standard practice 	in the District.
Tucker's 	leniency 	in 	enforcing 	the 	provisions 	of 	the 	letter
further 	supports 	the 	conclusion 	that 	there was 	no 	unlawful
intent or 	an 	inference of 	such 	intent.
Thus, 	based upon 	the entire proceedings before 	the
undersigned, 	Case No. 	LA-CE-2130 	is hereby DISMISSED.
65

D. 	LA-CE-2143
This 	case 	involves a 	challenge 	to Tucker's 	initial
recommendation 	that 	the Charging 	Party 	be 	dismissed 	and 	his
subsequent 	recommendation 	that 	the 	Charging Party 	be 	suspended
for 	30 	days. 	Although 	the unprecedented severity of 	the
initial 	recommendation for 	dismissal 	and 	the 	subsequent 	30 	day
suspension 	is 	indeed severe, 	and although 	severity of
punishment 	and 	deviation 	from past 	practice 	are 	indicia 	or
unlawful motivation, 	in this case, 	even 	if the burden of proof
shifted to 	the Respondent, 	in 	the Charging Party's 	case 	itself
the Respondent 	adequately refuted 	the 	allegations 	set 	forth 	in
the Complaint.
Tucker 	more 	than 	adequately 	explained 	his 	initial
recommendation 	and why he 	deviated 	from 	the 	District's 	past
practice of minor 	suspensions; 	everything else had been
attempted with 	Mr. 	Petrich 	and 	the 	recommendation 	itself 	was
intended 	to 	show him how serious 	the 	District 	was 	about 	a
needed change 	in his behavior. 	It must 	also be noted 	that
Tucker 	backed 	off 	his 	initial 	recommendation based 	on 	the
Skelly conference attended by Mr. 	Aldrich. 	Surely, 	if any
anti-union animus were present, 	Tucker 	would not 	have modified
his 	recommendation based upon 	the 	intervention 	of 	a 	union
representative. 	Moreover, 	further 	supporting 	this 	conclusion
is 	the 	fact 	that 	Tucker 	modified 	and 	reduced 	the proposed
penalty 	after 	Petrich 	had 	filed 	three 	additional 	unfair
66

practice charges.
There 	is no need to belabor 	the 	issue, 	given 	the evidence
presented and 	the 	fact that none of 	the allegations 	against 	Mr.
Petrich were 	controverted. 	Given 	the 	credible and
uncontroverted 	testimony 	of 	Sund 	and 	Tucker 	regarding 	Petrich's
behavior, 	the escalation of 	that behavior, 	and his 	failure or
refusal 	to take direction, 	it cannot be 	found that 	the
District's action was 	unlawfully motivated. 	Accordingly, 	the
Motion to Dismiss 	is granted, 	and Case No. 	LA-CE-2143 	is hereby
DISMISSED.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	Findings 	of 	Fact 	and 	Conclusions
of 	Law and 	the 	entire 	record 	in 	the proceedings 	concerning Case
Nos. LA-CE-2134, LA-CE-2112, LA-CE-2130 and LA-CE-2143, 	it is
hereby ordered 	that 	the 	unfair 	practice 	charges 	and 	the 	PERB
Complaints 	filed 	against 	the Riverside 	Unified 	School 	District
are DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become final on February 25, 	1986, 	unless a party files a
timely statement of exceptions. 	In accordance with 	the rules,
the 	statement 	of 	exceptions 	should 	identify by page 	citation or
exhibit number 	the portions 	of 	the 	record 	relied upon 	for 	such
exceptions. 	See California Administrative Code, 	title 8,
part III, 	section 32300. 	Such statement of exceptions and
67

supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment Relations Board 	itself 	at 	the headquarters 	office 	in
Sacramento before the close of business 	(5:00 p.m.) 	on
February 25, 	1986, 	or sent by telegraph, 	or certified or
Express United States mail, 	postmarked not 	later 	than 	the 	last
day 	for 	filing 	in order 	to be 	timely 	filed. 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Any
statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	served
concurrently with 	its 	filing upon 	each 	party 	to 	this
proceeding. 	Proof 	of service 	shall 	be 	filed with 	the Board
itself. 	See California Administrative Code, 	title 8, 	part 	III,
section 	32300 	and 32305.
Dated: 	February 5, 	1986
Barbara E. Miller
Administrative Law Judge
68