Los Angeles Community College District (Mrvichin) (PERB 1222E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GEORGE V. 	MRVICHIN,
Charging 	Party,
v.
LOS ANGELES 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-3790
PERB Decision No. 	1222
October 1, 	1997
Appearance: 	George V. 	Mrvichin, 	on his own behalf.
Before Johnson, 	Dyer and Amador, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations Board 	(Board) 	on appeal by George V. 	Mrvichin
(Mrvichin) 	to a Board agent's dismissal 	(attached) 	of his unfair
practice 	charge. 	Mrvichin 	alleges 	that 	the Los Angeles
Community College District violated section 3543.5(a) 	of 	the
Educational Employment Relations Act 	(EERA)1 by: 	(1) 	interfering
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
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with his 	grievance; 	and 	(2) 	discriminating against him for
engaging 	in protected activity when 	it 	processed his 	grievance.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the Board agent's 	warning and dismissal 	letters, 	the
original 	and amended unfair practice 	charge, 	and Mrvichin's
appeal. 	The Board 	finds 	the warning and dismissal 	letters 	to be
free 	of prejudicial 	error and adopts 	them as 	the decision of 	the
Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-3790 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Dyer and Amador 	join 	in 	this 	decision.
2
2

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
June 27, 1997
George V. 	Mrvichin
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
George V. 	Mrvichin v. 	Los Angeles Community College District
Unfair Practice Charge No. 	LA-CE-3790
Dear Mr. Mrvichin:
The above-referenced unfair practice charge, 	filed May 6, 	1997,
alleges 	the Los Angeles Community College District 	(District)
interfered with the processing of your grievance. 	This conduct
is alleged to violate Government Code section 3543.5(a) 	of the
Educational Employment Relations Act 	(EERA or Act).
I indicated to you, 	in my attached letter dated June 5, 	1997,
that the above-referenced charge did not state a prima facie
case. 	You were advised that, 	if there were any factual
inaccuracies 	or additional 	facts which would correct 	the
deficiencies explained in that letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to June
13, 	1997, 	the charge would be dismissed. 	On June 16, 	1997, 	I
received a first amended charge 	in this matter.
The amended charge reiterates the original allegations and adds
the following theory. 	You assert the District not only
interfered with your grievance, 	but also discriminated against
you in the processing of your grievance. 	With the exception of
the following, 	the amended charge does not provide any additional
facts regarding these allegations.
On April 10, 	1997, Ms. Maria Elena Martinez, Vice President of
Academic Affairs, 	and the supervisor charged with Level I and II
responsibility over your grievance, 	informed you during an oral
conversation that Ms. 	Files was not authorized to receive your
grievances. 	You assert such a conversation amounted to
harassment on the District's part.
•

Dismissal 	Letter
LA-CE-3790
June 27, 1997
Page 2
Based on the 	facts 	stated in both the original and amended
charges, 	the charge fails to state a prima facie violation of the
EERA, 	for the reasons stated below.
Charging Party asserts the District's actions amounts to unlawful
discrimination. 	To demonstrate a violation of EERA section
3543.5(a), 	the charging party must show that: 	(1) 	the employee
exercised rights under EERA; 	(2) 	the employer had knowledge of
the exercise of those rights; 	and 	(3) 	the employer imposed or
threatened to impose reprisals, 	discriminated or threatened to
discriminate, 	or otherwise interfered with, 	restrained or coerced
the employees because of the exercise of those rights. 	(Novato
Unified School District 	(1982) 	PERB Decision No. 	210; 	Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89; Department
of Developmental Services 	(1982) 	PERB Decision No. 	228-S;
California State University 	(Sacramento) 	(1982) 	PERB Decision
No. 211-H.)
Although the 	timing of the employer's adverse action in close
temporal proximity to the employee's protected conduct 	is an
important factor, 	it does not, without more, 	demonstrate the
necessary connection or 	"nexus" between the adverse action and
the protected conduct. 	(Moreland Elementary School District
(1982) 	PERB Decision No. 	227.) 	Facts establishing one or more
of the following additional 	factors must also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's 	departure 	from established procedures 	and standards
when dealing with the employee; 	(3) 	the employer's inconsistent
or contradictory justifications for its actions; 	(4) 	the
employer's 	cursory investigation of the employee's misconduct;
(5) 	the employer's failure to offer the employee justification at
the time it took action or the offering of exaggerated, 	vague, 	or
ambiguous reasons; 	or 	(6) 	any other facts which might demonstrate
the employer's unlawful motive. 	(Novato Unified School District.
supra: 	North Sacramento School District 	(1982) 	PERB Decision
No. 	264.) 	As presently written, 	this charge fails to demonstrate
any of these 	factors and therefore does not state a prima facie
violation of EERA section 3543.5(a).
The amended charge asserts 	the requisite nexus 	is demonstrated by
the District's action. 	Specifically, 	you allege the District
failed to conform to the established grievance procedure,
preformed a cursory investigation into your grievance, 	and
demonstrated disparate treatment towards you. 	In support of
these contentions, 	you note the District failed to provide you
with a copy of its Notice of Appearance, 	failed to provide you a
written Level 	II response, 	and denied your grievance at Levels I
and II, 	without the proper authority. 	I will address each of the
allegations in turn.

Dismissal 	Letter
LA-CE-3790
June 27, 1997
Page 3
The amended charge asserts 	that although the District provided
you with a copy of its initial 	response in this matter, 	it failed
to provide you with a copy of a Notice of Appearance. 	You
contend such a failure demonstrates nexus. 	However, 	the
District's 	failure to provide you with a Notice of Appearance,
well after you contend the adverse action occurred, 	is not
relevant 	in demonstrating nexus.1
The amended charge also contends 	the District violated its
grievance procedures in denying your grievance at Levels I and
II. 	Specifically, 	you assert that as the grievance procedure
does not provide for the denial of a grievance, 	the District is
without authority to deny grievances at any level. 	You do not
provide any support for this contention, 	nor is any support found
in the grievance procedures themselves. 	Article 22 of the
Agreement between the District and the Federation contains the
parties grievance machinery. 	Facts provided by the Charging
Party demonstrate 	the District 	followed the grievance procedure
in denying the grievance at Levels I and II. 	Although the
grievance procedure does not use the word 	"deny" 	in its language,
Levels I and II authorize the respective administrators to issue
a written 	"decision" 	on the merits of the grievance. 	Such
language does not require the District to agree with each
grievance filed, 	but merely issue a decision on the merits.
Charging Party also asserts that Ms. M.E. Martinez's failure to
provide a written response at Level 	II demonstrates 	the requisite
nexus. 	However, 	this contention is also unsupported by the facts
provided. 	Article 22, Section E(2) 	provides as follows:
Failure by a supervisor or management
employee to respond to the employee's
grievance within the specific time limits
shall permit the grievant to proceed to the
next 	step unless mutual agreement to extend
the time has been reached.
As the Agreement allows Charging Party to continue to pursue the
grievance, 	Ms. 	Martinez's failure provide a written response does
not jeopardize or interfere with Charging Party's 	rights under
the Agreement or under the EERA. 	Indeed, 	it seems the District
and the Federation forsaw instances where 	response would not be
possible or appropriate, 	and provided for such 	occasions 	in the
1 Examination of the case file demonstrates the District
also failed to serve a Notice of Appearance on PERB. 	The
District's initial response, 	does however, 	designate Herbert
Spillman as 	the District's representative in this matter.

agreement. 	Moreover, 	Charging Party fails to demonstrate why
such action should be 	considered discriminatory in this 	instance.
As such, 	this contention fails to demonstrate the requisite
nexus.
Dismissal 	Letter
LA-CE-3790
June 27, 1997
Page 4
Charging Party also asserts 	the District 	conducted a cursory
investigation into his grievance. 	However, 	as the charge
presents no facts demonstrating a cursory investigation, 	the
allegation fails to support a finding of nexus. 	Indeed, 	the
parties grievance machinery provides only five 	(5) 	days for a
Level I and an additional five 	(5) 	days for a Level 	II response.
As such, 	the District's quick response and/or failure to respond
does not demonstrate a discriminatory motivation on the
District's part.
Finally, 	Charging Party asserts that on April 14, 	1997, 	he was
informed by Federation Chapter Chair, 	Barbara Brice, 	that the
District was attempting to interfere with his grievance. 	This
same allegation was asserted in Charging Party's original 	charge.
My letter dated June 5, 	1997, 	requested Charging Party provide
specifics 	regarding this allegation. 	The amended charge simply
reiterates 	the original allegation without elaboration.
Therefore, 	for the reasons stated in my June 5, 	1997, 	letter,
this allegation fails 	to support a finding of nexus or
interference.
To demonstrate a prima facie case of interference, 	the charging
party must 	show the respondent's 	conduct tends 	to or does 	result
in some harm to the employees rights granted under the EERA.
(Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89.)
In the instant charge, 	you allege the District interfered with
your April 10, 	1997, 	grievance, however you fail to explain how
the District 	interfered with your grievance. 	Mere denial of your
grievance at Level 	I or II is 	insufficient to demonstrate
interference or a threat of reprisal. 	As stated in my June 5,
1997, 	letter, 	an allegation of interference must demonstrate the
District 	took some action which harmed or tended to harm your
protected rights. 	Again, 	the charge is devoid of any such
information and, 	as such, 	is dismissed.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
an appeal 	to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself

before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 shall apply.
The Board's address is:
Dismissal 	Letter
LA-CE-3790
June 27, 1997
Page 5
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
If you file a timely appeal of 	the refusal 	to issue a complaint,
any other party may file with the Board an original 	and five
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All documents authorized to be 	filed herein must also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of service"
must accompany each copy of a document served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will be considered properly 	"served" 	when personally
delivered or deposited in the first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request 	for an extension of 	time, 	in which to file a document
with the Board itself, 	must be in writing and filed with the
Board at 	the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of service of 	the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)

Dismissal 	Letter
LA-CE-3790
June 27, 1997
Page 6
Final Date
If no appeal 	is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Herbert Spillman

STATE OF CALIFORNIA 	' 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
June 5, 	1997
George V. Mrvichin
Re: 	WARNING LETTER
George V. 	Mrvichin v. 	Los Angeles Community College District
Unfair Practice Charge No. 	LA-CE-3790
Dear Mr. Mrvichin:
The above-referenced unfair practice charge, 	filed May 6, 	1997,
alleges the Los Angeles Community College District 	(District)
interfered with the processing of your grievance. 	This 	conduct
is alleged to violate Government Code section 3543.5(a) 	of the
Educational Employment Relations Act 	(EERA or Act).
Investigation of the charge revealed the following. 	You are
employed by the District as an Athletic Trainer at East Los
Angeles Community College. 	You are exclusively represented by
the American Federation of Teachers, 	College Staff Guild, 	Local
1521 	(AFT or Federation).
On April 10, 	1997, 	you filed a grievance with Renee Martinez,
Dean of Academic Affairs. 	The grievance charged that the
District violated the Agreement between the Federation and the
District by rejecting your 	"Request For State Equipment." 	On
April 14, 	1997, Ms. Renee Martinez informed you that Step 1 of
the grievance process 	required the grievance be presented to the
immediate supervisor with authority to adjust the problem. 	You
were 	further informed that 	the Step 1 	response would come from
Maria Elena Martinez, 	Vice President of Academic Affairs.
The charge further asserts that on April 14, 	1997, 	Barbara Brice,
Federation Chapter Chair at East Los Angeles College, 	informed
you that Maria Elena Martinez had interfered with your grievance.
The charge does not provide any further elaboration regarding Ms.
Brice's statement, 	nor does the charge present a declaration from
Ms. 	Brice regarding this conversation. 	The charge continues in
alleging that Ms. 	M.E. Martinez acted outside her authority,
although again further details are omitted.
/

Warning Letter
LA-CE-3790
June 5, 	1997
Page 2
On April 21, 	1997, Ms. M.E. Martinez denied your grievance at
Step 1. 	The charge does not demonstrate whether you appealed
this denial to Step 2.
Based on the above stated facts, 	the charge as presently written
fails 	to demonstrate a prima facie violation of the EERA for the
reasons stated below.
To demonstrate a prima facie case of interference, 	the charging
party must show the respondent's 	conduct 	tends 	to or does 	result
in some harm to the employees rights granted under the EERA.
(Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89.)
In the instant charge, 	you allege the District interfered with
your April 10, 	1997, 	grievance, 	however you fail to explain how
the District 	interfered with your grievance. 	Mere denial of your
grievance at Step 1 	is insufficient to demonstrate interference
or a threat of 	reprisal. 	If you intend to allege an interference
violation, 	you must demonstrate the District took some action
which harmed or tended to harm your protected rights. 	Again, 	the
charge is devoid of any such information.
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this 	letter or additional 	facts which would correct 	the
deficiencies explained above, 	please amend the charge. 	The
amended charge 	should be prepared on a standard PERB unfair
practice charge form, 	clearly labeled First Amended Charge,
contain all the facts and allegations you wish to make, 	and
be signed under penalty of perjury by the charging party. 	The
amended charge must be served on the respondent and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before June 13. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. Rosi
Regional Attorney