Riverside Unified School District (PERB 0592E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
TONY 	PETRICH,
Charging 	Party,
v.
RIVERSIDE UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-2188
PERB 	Decision 	No. 	592
October 	10, 	1986
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Appearances; 	Tony Petrich, 	on his own behalf.
Before Hesse, 	Chairperson; 	Burt, 	Porter and Craib, Members.
DECISION
CRAIB, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations 	Board 	(Board) 	on exceptions 	filed by the 	charging
party, 	Tony Petrich, 	to 	the 	attached 	proposed decision of 	an
administrative 	law judge 	(ALJ) 	dismissing 	the 	complaint. 	At
the 	conclusion 	of 	the 	charging 	party's 	presentation 	of
evidence, 	the 	respondent, 	Riverside Unified School District
(District), 	moved for dismissal 	of 	the complaint 	for 	failure of
the 	charging 	party to 	establish 	a 	prima 	facie case. 	After
reviewing 	the 	transcript 	of 	the 	hearing 	and 	giving 	the 	parties
the 	opportunity to 	submit 	briefs, 	the ALJ granted 	the motion to
dismiss.
We 	have 	carefully 	reviewed 	the 	entire 	record, 	including 	the
transcript 	and 	the 	exceptions 	filed 	by 	the 	charging 	party 	and,
finding 	the ALJ's 	decision 	free 	from prejudicial 	error, 	we
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adopt 	it 	as 	the Decision of 	the Board 	itself. 	We 	agree 	that
the 	evidence 	presented 	by 	the 	charging 	party was 	insufficient
to 	establish 	any 	prima 	facie 	violation 	of 	the 	Educational
Employment Relations Act 	(EERA).l On appeal, 	the charging
party 	also makes 	various 	claims 	of 	irregularities 	in 	the
conduct 	of 	his 	hearing 	and 	in 	the 	filing 	and 	content 	of 	the
District's 	post-hearing 	brief. 	We will 	briefly comment 	on each
of 	these claims.
1
Rather 	than 	filing 	a 	brief 	in 	response 	to 	the motion 	to
dismiss, 	the charging party filed 	a Motion 	to Exclude Briefs
for Respondent 	from Consideration. 	This motion, 	based 	on the
fact 	that 	the District's 	proof 	of 	service 	of 	its 	brief 	was
inadvertently dated May 29, 	rather than April 29, 	1986, 	was
denied. 2 The 	charging 	party now appeals 	that 	denial. 	This
claim is without merit. 	It would constitute 	a 	grave 	injustice
to 	exclude 	a 	party's 	filing due to 	a 	clerical 	error 	in 	the
proof of 	service when, 	in 	fact, 	all 	filing 	requirements were
met 	and 	the 	opposing 	party 	suffered 	no 	prejudice.
1The 	EERA 	is 	codified 	at 	Government 	Code, 	section 3540,
et 	seq.
2 The 	District's 	brief was 	timely 	served 	on April 	29, 	and
timely filed on May 2, 	1986, 	in accordance with PERB
Regulations. 	PERB Regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31001 et seq.
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The 	charging 	party 	also 	claims 	that 	the District's 	brief
relies 	on waived 	affirmative defenses. 	However, 	the brief
merely details 	testimony 	supporting 	the 	District's 	position
that 	the 	adverse 	actions 	taken 	against 	the 	charging 	party were
warranted 	and 	not 	the 	result 	of 	retaliation 	for 	protected
activities.
Additionally, 	the charging 	party claims 	that 	the ALJ
improperly 	excluded 	evidence 	of 	Unalleged 	unfair 	practices
which 	the 	charging 	party 	asserts 	he 	should 	have 	been 	allowed 	to
pursue 	in 	the 	hearing. 	We 	find 	that 	the ALJ 	properly excluded
such evidence, 	for 	it either 	concerned 	allegations 	previously
filed 	and 	dismissed 	by 	the 	Board 	or was 	irrelevant 	to 	any
allegations 	articulated 	by 	the 	charging 	party.
Lastly, 	the 	charging 	party claims 	that 	the ALJ 	improperly
cut 	off 	his 	opening 	statement 	before 	its 	conclusion. 	First,
parties 	have 	no 	absolute 	right 	to make 	opening 	statements.3
Second, 	the charging 	party suffered 	no 	prejudice, 	for 	his
opening 	statement 	consisted 	of 	a 	string 	of 	citations 	of
authority unconnected to 	the 	facts 	of 	his 	case. 	As 	the ALJ
explained 	to 	the 	charging 	party, 	the 	authorities 	cited were
known 	to 	him 	and 	added 	nothing 	to 	the 	record.
3 PERB Regulation 32180 	defines 	the 	rights 	of 	parties 	in 	a
hearing; 	there 	is 	no mention of 	opening 	statements 	or 	oral
argument:
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Each 	party to 	the 	hearing 	shall 	have 	the
right 	to 	appear 	in person, 	by counsel 	or by
other 	representative, 	and to call, 	examine
and 	cross-examine witnesses 	and 	introduce
documentary 	and 	other 	evidence 	on 	the 	issues.
The Administrative 	Procedure Act 	contains 	a 	similar
provision, 	at Government Code section 11513(b):
Each party shall have these 	rights: 	to 	call 	and
examine witnesses; 	to introduce exhibits; 	to
cross-examine 	opposing 	witnesses 	on 	any matter
relevant 	to 	the 	issues 	even 	though 	that matter was 	not
covered 	in 	the direct 	examination; 	to 	impeach 	any
witness 	regardless 	of 	which 	party 	first 	called 	him to
testify; 	and to 	rebut 	the evidence against him. 	If
respondent 	does 	not 	testify 	in his 	own behalf, 	he may
be 	called 	and 	examined 	as 	if 	under 	cross-examination.
While Code 	of 	Civil 	Procedure 	section 	607 	appears 	to
provide 	for 	opening 	statements 	in 	the 	conduct 	of 	jury 	trials,
there 	is 	no 	such 	statutory basis 	with 	regard 	to 	bench 	trials.
Gillette v. 	Gillette 	(1960) 	180 Cal.App.2d 777, 	781, 	Oil
Workers 	Intl. 	Union v. 	Superior Court 	(1951) 	103 	C.A.2d 	512,
581 	("oral 	argument 	in 	a 	civil 	proceeding 	tried 	before 	the
court without a jury, 	is a privilege, 	not a right, 	which is
accorded to 	the parties 	by the court 	in 	its discretion").
ORDER
Case No. 	LA-CE-2188 	is 	hereby DISMISSED.
Chairperson Hesse 	and Members 	Burt 	and 	Porter 	joined 	in 	this
Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
TONY 	PETRICH.
Charging 	Party,
v.
RIVERSIDE 	UNIFIED 	SCHOOL
DISTRICT.
Respondent.
Unfair 	Practice
Case No. 	LA-CE-2188
PROPOSED 	DECISION
(6/12/86)
Appearances: 	Tony Petrich, 	on his own behalf; 	Best. 	Best &
Krieger 	by Charles D. 	Field, 	for Riverside Unified 	School
District.
Before: 	Martin Fassler. 	Administrative Law Judge.
INTRODUCTION AND PROCEDURAL 	SUMMARY
This 	case 	concerns 	a 	series 	of 	critical 	memoranda 	given 	to
Tony Petrich, 	a 	gardener 	employed 	by 	the Riverside Unified
School District 	(the District), 	by various supervisors and
administrators 	of 	the District. 	The 	complaint 	alleged 	that
eight 	such memoranda 	issued 	to 	Petrich were 	in 	retaliation 	for
Petrich's 	participation 	in 	activities 	protected 	by 	the
Educational 	Employment Relations Act: 1 the 	filing 	of 	PERB
1The 	Educational Employment Relations Act. 	is 	found 	at
Government Code 	Sections 	3540 	et. 	seq. 	All 	further 	references
herein are 	to 	the Government Code, 	unless 	otherwise 	indicated.
Section 3543.5(a) 	provides 	that 	it 	is 	an unfair 	practice 	for 	a
public 	school 	employer 	to 	"[I]mpose 	or 	threaten 	to 	impose
reprisals on employees 	. 	. 	. 	because of 	their exercise of
rights 	guaranteed 	by 	this 	chapter."
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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unfair 	practice 	charges 	against 	the District 	and 	the 	filing 	of
contract 	grievances 	against 	the District.2
The 	charging 	party 	(hereafter 	referred 	to 	as 	"Petrich")
presented 	evidence 	in support 	of 	the 	allegations 	of 	the
complaint on January 21. 	22 and 	31. 	1986. 	At 	the close of 	the
presentation of 	evidence 	by Petrich, 	counsel 	for 	the District
moved 	for 	dismissal 	of 	all 	the 	allegations 	of 	the 	complaint,
based 	on an 	asserted 	insufficiency of 	evidence 	to 	establish a
prima 	facie 	case 	in support 	of 	each allegation. 	The 	parties
were 	given an 	opportunity 	to 	examine 	the 	transcript 	made 	of 	the
hearing 	to 	that 	point, 	and 	to 	submit written argument with
respect 	to 	the motion. 	The District 	submitted 	a written brief
in support 	of 	its 	motion on April 	29.3 Petrich did 	not
submit 	a written argument 	in 	connection with 	the motion.
FINDINGS 	OF FACT
Petrich was 	a gardener 	employed 	by the District, 	who, 	on
February 25, 	1985, 	was 	re-assigned 	from Woodcrest Elementary
2on 	the 	date 	the 	complaint was 	issued, 	the Los Angeles
Regional 	Attorney 	of 	the 	Public Employment 	Relations 	Board
(PERB) 	issued 	a 	letter 	dismissing numerous 	other 	allegations
included 	in the 	charge 	(and 	its 	four 	amendments). 	Since 	then,
the Board 	itself 	reinstated 	four 	of 	those 	allegations 	of 	unfair
practices. 	(Petrich v. 	Riverside Unified School District, 	PERB
Decision 562a. 	May 16. 	1986). 	No aspect of 	this order 	is
intended 	to 	reflect 	on any of 	those 	four 	allegations. 	A
hearing 	on 	those 	allegations 	has 	been scheduled, 	but 	has 	not
yet 	been 	held.
3Petrich filed 	a 	motion 	to 	"Exclude 	from Consideration"
the District's 	brief, 	on the ground 	that 	it was 	not properly
filed. 	The motion was 	dismissed 	in an order 	issued 	on May 27,
1986.
w
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School 	to North High School. 	He worked 	at 	the 	high school
throughout 	the 	period 	covered 	by the 	events 	at 	issue 	here. 	He
was 	assigned 	some 	custodial 	tasks, 	as well 	as 	gardening and
grounds 	maintenance work.4
A. 	Petrich's 	Protected Activities
The District 	did 	not 	dispute 	the 	allegations 	of 	the
complaint 	concerning Petrich's 	protected 	activities. 	In 	1984.
Petrich filed 	two 	grievances, 	using 	the 	grievance 	procedure 	of
the 	collective 	bargaining 	agreement 	between 	the 	District 	and
California School Employees Association 	(CSEA), 	the
organization which 	represented 	the 	classified 	employees 	of 	the
District. 	Petrich filed 	one 	unfair 	practice 	charge 	against 	the
District 	in November, 	1984 	and another 	in 	late December. 	He
filed 	numerous 	grievances 	in early 	1985. 	and 	six unfair
practice 	charges 	against 	the District, 	all 	prior 	to March 4,
1985, 	the date 	of 	the first allegedly unlawful 	action by the
District.
B. 	The Critical Memoranda
The 	complaint 	alleges 	that 	eight 	critical 	or 	corrective
memoranda which were 	given 	to 	Petrich from March 4, 	1985
through June 	20. 	1985 were 	issued 	in retaliation for 	Petrich's
protected activities. 	One 	of 	the 	eight was 	given to him
4Assignment 	of 	custodial 	tasks 	to 	gardeners was
apparently an 	accepted 	practice 	of 	the District. 	Petrich makes
no 	allegation 	that 	any 	of 	his work 	assignments were 	improper.
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by Frank Tucker, 	then assistant 	superintendent 	for 	personnel.
One was 	given 	to 	him 	by North High 	School Vice 	Principal
Robert Moshier; 	two were 	given to 	him by North High School
Principal Douglas Wolf; 	and 	the 	remaining four were written 	by
Petrich's 	immediate 	supervisor 	Phillip Hodnett, 	North High
School 	plant 	supervisor.
Petrich did 	not 	testify during 	the 	hearing. 	However, 	he
called as witnesses Tucker. 	Moshier. 	Wolf 	and Hodnett. 	The
administrators' 	and supervisors' 	testimony was. 	with one
exception noted 	below, 	straightforward 	and 	credible. 	Petrich
also 	called 	as 	witnesses 	two 	non-supervisory employees 	of 	the
District, 	each of whom was 	familiar with events 	underlying one
of 	the 	documents 	which Petrich 	challenged 	in his 	unfair
practice 	charge. 	The 	testimony of 	these 	two witnesses, 	also
straightforward 	and 	credible, 	confirmed 	the 	accuracy of 	the
accounts 	of 	the 	supervisors 	and 	administrators who wrote 	the
critical 	memoranda 	to Petrich.
The 	facts 	underlying 	each 	of 	the 	critical 	memoranda 	are 	set
out 	briefly 	in 	sections 	C 	through J.
C. 	The March 4. 	1985 Memorandum from Assistant
Superintendent 	Frank 	Tucker.
On March 	4. 	Assistant 	Superintendent Frank Tucker 	sent 	to
Petrich 	a 	one-page 	memorandum about 	an 	incident which 	had
occurred 	earlier 	that 	day. 	The 	memorandum criticized 	Petrich
for 	entering Tucker's 	office while 	Tucker 	was 	out 	of 	the
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office, 	at 	lunch, 	and noted 	that shortly after 	that. 	Tucker 	had
instructed 	Petrich 	that 	in 	the 	future 	he was 	forbidden 	to 	enter
Tucker's 	office when Tucker 	was 	not 	present.s
Tucker 	was 	the 	only witness 	to 	testify about 	the 	incident.
His 	testimony was 	consistent 	with 	the 	concise 	description 	in
the March 4 	memorandum.6 Shortly before 	1:00 	p.m. 	that 	day.
Tucker 	returned 	to 	his 	office 	and 	found 	on 	his 	desk 	a 	letter
5The 	memorandum 	is 	in evidence 	as 	Charging Party Exh. 	4.
It reads, 	in its entirety:
TO: 	Tony Petrich
FROM: 	Frank C. 	Tucker
SUBJECT: 	Conversation. March 4, 	1985
I 	returned 	from 	lunch at 	12:52 	p.m..
March 4, 	1985 	to 	find 	a 	letter 	from you 	rebutting
my memo 	of 	February 26. 	1985 	on my desk. 	My
secretary was 	still 	out 	to 	lunch. 	Within
approximately five minutes, 	you 	came 	in the
office 	and 	asked 	that 	I 	confirm the 	filing 	of 	a
grievance. 	I 	complied with your 	request. 	I
attempted 	to 	return 	to you 	the 	hub 	cap you 	had
given to Principal 	Sund 	and 	she 	had 	refused. 	You
refused 	to 	take 	it. 	You 	said 	the 	hub 	cap
belonged to her. 	not 	to you.
I 	directed 	you 	never 	again 	to 	enter 	my
office unless 	I was present. 	You acknowledged
that 	you 	heard 	and 	understood 	the 	direction.
A copy 	of 	this 	memorandum will 	be 	entered 	in
your 	personnel 	file 	as 	a matter 	of 	record.
6 Tucker's 	testimony about 	the 	incident 	is 	in Volume 	III
of the transcript, 	pp. 	21-31. 	Hereafter, 	transcript references
will 	take 	the 	form TR: 	. 	. 	with the volume 	indicated 	by a
Roman number 	and 	the 	page 	number 	by an Arabic 	numbers.
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from Petrich 	regarding 	an 	earlier 	dispute. 	The 	entrance 	to
Tucker's 	office 	from 	the 	building 	corridor 	was 	through 	an
office used 	by Tucker's 	secretary. 	Tucker 	and 	his 	secretary
were 	both 	absent 	from 	their 	offices 	for 	lunch 	during 	the 	same
hour. 	Tucker 	testified.
A 	few minutes 	after 	Tucker 	arrived 	in 	his 	office 	and 	found
Petrich's 	memo 	on his 	desk, 	Petrich arrived. 	Tucker 	confirmed
that 	a 	grievance 	filed 	by CSEA on behalf 	of 	Petrich 	in another
matter 	had 	been 	timely filed. 	He 	then 	tried 	to 	return 	to
Petrich 	an 	automobile 	hub 	cap which Petrich 	had 	tried 	to 	bestow
on a 	school 	principal 	as 	a 	gift. 	Petrich would 	not 	take 	back
the 	hub 	cap. 	He 	and 	Tucker 	discussed 	the 	hub 	cap 	incident.
After 	that. 	Tucker 	told 	Petrich not 	to 	enter 	Tucker's 	office
when Tucker 	was 	not 	present, 	instructions which he 	repeated 	in
writing 	in 	the 	challenged 	memorandum.7
Tucker's 	testimony 	is 	credible 	and unchallenged. 	It 	is
credited.
D. 	Hodnett's Memorandum Concerning 	the 	Broken Light 	Cover
On March 28. 	Hodnett 	gave 	to Petrich a memorandum
criticizing 	Petrich's 	failure 	to 	follow Hodnett's 	directions 	on
the afternoon of March 26. 	The memorandum reads, 	in pertinent
part:
7petrich 	elicited 	from Tucker 	testimony 	that 	the 	District
personnel 	office 	for 	classified 	employees 	was 	closed 	between
noon 	and 	1:00 	p.m., 	every day. 	Petrich apparently 	believed
this 	testimony to be helpful, 	but 	it 	is 	beside 	the point.
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On Tuesday. 	March 26. 	at approximately 3 p.m., 	in
the 	storeroom, 	you asked 	me where 	the 	light
covers were 	so 	that you 	could 	replace 	one 	in 	the
Attendance Office. 	I 	told you not 	to worry about
the 	light 	cover, 	that 	I wanted you 	to 	clean your
restrooms. 	You 	then 	stated 	that 	you 	had
promised 	to 	replace 	it. 	I 	then told you not 	to
replace 	it. 	that 	I wanted you to 	clean your
restrooms. 	You then stated. 	"There they are." 	I
then 	told 	you 	not 	to 	touch 	the 	light 	covers 	and
again told you 	I 	wanted you 	to 	clean your
restrooms. 	You 	then stated 	that you 	still 	had
time 	to 	replace 	the 	cover 	and 	clean the
restrooms. 	I 	told you. 	if you had 	that much
time, 	you 	could 	finish picking up 	the 	palm tree
fronds 	in your 	area. 	You 	stated you 	didn't 	have
that much time. 	I 	then again told you 	to 	leave
the 	light 	cover 	alone 	and 	clean your 	restrooms.
You 	then 	left 	the storage 	room. 	I went 	home.
Upon my return to 	school 	at 	5:30 p.m., 	I was
informed 	that 	you were 	seen 	leaving 	the 	storage
room with a 	light 	cover. 	I 	then checked 	the
restrooms you were 	told 	to 	clean. 	The 	boys'
restroom was 	clean. 	The 	girls' 	restroom was 	not
clean and was 	unlocked. 	You 	failed 	to 	perform
the assigned duty in a satisfactory manner 	. 	. 	.
You 	failed 	to 	obey direction. 	This 	type 	of
behavior 	and 	work 	performance 	cannot 	continue.
(Charging Party Exhibit 7 ) 8
Very 	little 	testimony was 	given 	about 	the 	incident which
preceded 	this memorandum. 	Hodnett's 	testimony, 	in response 	to
Petrich's 	question 	asking 	him 	to 	describe 	the 	circumstances
which led 	to 	the writing of 	the memorandum, 	was 	this:
WITNESS: 	As 	it 	stated here, 	you were not
doing your 	work 	and you were 	going 	to 	do
something 	that was 	not 	in your 	job
description. 	I 	asked you not to do that, 	to
go 	ahead 	and do your work. 	You did what 	I
asked you 	not 	to 	do 	and your work 	still 	was
not done. 	That's why this was written up.
(TR: II. 19).
8Hereafter. 	charging 	party 	exhibits 	will 	be 	referred 	to
as CPX 	, 	with 	the 	exhibit 	number 	following 	the 	abbreviation
CPX.
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Hodnett's 	testimony, 	while 	informal 	and abbreviated, 	is
consistent with his 	written description 	of 	the March 	26
events. 	There 	is 	no 	other 	evidence 	about 	the March 26 	events.
It 	is 	found 	that 	the 	events 	of 	that 	day took place 	as 	described
in Hodnett's March 28 	memorandum.
E. 	The April 	2 Memorandum from Hodnett
On April 	2, 	Hodnett 	gave Petrich another 	critical 	note. 	It
read, 	in pertinent part:
On Thursday, 	March 28, 	I 	gave you a memo about Failure to
Perform Assigned 	Duty 	in 	a 	Satisfactory Manner 	March 	26.
(Girls' 	restroom not 	clean and 	left unlocked) 	Again on
March 28 	and March 29, 	I 	found 	the girls' 	restroom had not
been cleaned 	and was 	left 	unlocked. 	Your 	afternoon 	break
is 	from 2:30 	p.m. 	to 	2:45 	p.m. 	From 2:45 	p.m. 	until
4:00 p.m.. 	you are to sweep, 	clean, 	dust, 	take out all
trash and mop 	all 	the 	restrooms 	in 	the 	social 	study area.
(Men, 	Men Faculty. 	Women, 	Women Faculty Restrooms) 	(CPX 2)
There was 	no 	evidence 	offered 	about 	these 	events. 	Petrich,
as 	noted, 	did not 	testify about 	them. 	Hodnett, 	the other
person who 	apparently had 	information about 	them, 	was 	not 	asked
about 	them, 	nor was 	any other witness.
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There 	is 	insufficient 	evidence 	to 	make 	any findings 	about
the memorandum or 	the underlying 	incidents.
9The 	closest 	Petrich 	came 	to 	asking 	about 	the 	events 	here
was 	to 	ask Hodnett 	about 	a 	conference which 	took 	place 	later 	on
April 	2. 	after 	Hodnett 	had 	given Petrich 	the memorandum. 	None
of 	the 	testimony about 	that 	conference 	sheds 	any 	light 	on 	the
events which preceded 	issuance 	of 	the 	critical 	note. 	CSEA
Alan Aldrich. 	field 	representative 	testified 	that 	at 	that
meeting 	Petrich asserted other 	employees 	had 	been 	assigned 	to 	do
the work in question 	(TR: 	I. 	154). 	However. Hodnett
specifically denied that to be the case 	(II. 	80).
8

F. 	Moshier's Memorandum 	to 	Petrich 	about 	Parking
Assignments.
On April 	26. 	Vice-Principal 	Richard Moshier 	and Hodnett 	met
with Petrich 	to 	discuss 	parking 	assignments. 	Petrich asked 	to
be 	represented 	at 	the meeting 	by an agent 	of 	CSEA. 	Since 	none
was 	present, 	the meeting was 	postponed. 	After 	that 	brief
encounter, 	Moshier 	wrote 	and 	gave 	to Petrich a written
memorandum about 	the 	subject. 	It read, 	in pertinent part:
When you 	started 	to work at North High School, 	you
began 	parking 	in 	an 	assigned 	teachers 	and 	visitors 	parking
space 	in the front parking lot. 	On March 13, 	1985, 	you
were 	told by your 	immediate supervisor, 	Phil Hodnett, 	to
park 	in 	the 	custodian 	parking 	lot. 	You 	then 	began 	parking
in the 	student 	parking 	lot. 	You were 	then 	told 	by 	the
campus aide, 	Mr. 	Taylor, 	that you could not park in the
student 	parking 	lot without 	a 	sticker. 	Then you 	began to
park 	in 	someone's 	assigned 	space 	in 	the 	cafeteria 	parking
lot. 	You were 	again told 	by your 	supervisor 	to 	park 	in 	the
custodian parking 	lot. 	You 	asked 	to 	be 	assigned 	a 	parking
space 	in 	the 	cafeteria 	parking 	and were 	told 	by your
supervisor 	to 	see 	me 	about 	being 	assigned 	a 	parking 	space.
You came to see me on Monday, 	April 15, 	1985, 	and 	I
told 	you 	about 	the 	fact 	that you were 	parked 	in 	an 	area
that 	is 	not 	for 	parking. 	I 	also discussed with you 	that
Mr. 	Hodnett, 	your 	immediate supervisor, 	could 	show you
where 	to 	park 	or 	you 	could 	get 	a 	parking 	sticker 	from my
secretary and 	park 	in the 	student 	parking 	lot. 	As 	of 	today
you 	have 	not 	complied with the 	above. 	This 	is
insubordination.
Also, 	when you 	enter 	and 	leave 	the 	student 	parking 	lot
in the performance of your 	duties, 	anytime you unlock a
gate 	to 	enter 	or 	leave 	the 	student 	parking 	lot you 	shall
lock 	it 	behind you.
You 	are 	to meet with Mr. 	Hodnett 	and 	me 	on May 2.
1985. 	at 	9 	a.m. 	in my office. 	If you desire you may bring
representation at 	that 	time.
9

A 	copy 	of 	this 	memo will 	be 	placed 	in your 	district
personnel 	file 	in five 	(5) 	working days. 	You have 	the
right 	to 	respond 	and 	to 	have 	that 	response 	attached 	to 	this
document. 	(CPX 9)
On May 	2. 	another 	meeting 	took 	place 	about 	the 	same
subject. 	Present at 	this meeting were Moshier. 	Hodnett.
Petrich, 	CSEA Staff 	Representative Alan Aldrich. 	and 	Carlos
Corona 	(grievance 	chairperson 	for 	the 	CSEA 	chapter 	in Riverside
during 	that 	school 	year). 	Aldrich questioned Moshier 	about why
Moshier 	had written a 	formal 	memorandum to 	Petrich 	about 	the
parking dispute. 	Moshier 	explained 	that 	he wrote 	it 	because
Petrich had 	asked 	for 	a 	"formal" 	meeting about 	the 	subject.
Moshier 	believed 	that 	such 	a 	meeting 	should 	have 	a 	formal
document for all parties to consider. 	(TR: 	I. 	66, 	158).
Hodnett, 	similarly, 	said 	something 	to 	the effect 	that 	the
written 	memorandum would 	not 	have 	been 	prepared 	if 	Petrich 	had
not 	asked 	for 	a 	meeting with 	representation 	by CSEA
(TR: I. 159).10
Assistant 	Superintendent 	Tucker 	testified 	that 	the 	parking
problem memorandum was 	ultimately 	not 	placed 	in Petrich's
personnel file, 	at Tucker's instructions. 	(TR: 	III. 	60-61).
As 	to 	the 	substance 	of 	the 	dispute, 	Moshier 	testified 	that
his 	description of 	the 	sequence 	of 	events 	in the 	spring
semester 	of 	1985, 	in the April 26 memorandum to Petrich, 	is
correct, 	with one 	exception which 	is 	of 	no 	significance
10Aldrich, 	Moshier 	and 	Hodnett 	all 	testified 	about 	this
meeting. 	Their 	testimony 	is 	generally consistent.
10

here.1 1
Petrich 	never 	testified 	about 	any 	of 	the 	incidents
described 	in the memo. 	Moshier's 	testimony 	is 	credible 	on 	its
face, 	is uncontradicted, 	and 	is credited.
G. 	Hodnett's April 	30 Memorandum Regarding Absences
The 	collective 	bargaining 	agreement 	between 	the 	District
and CSEA, 	which was 	in effect during 	the 	first 	half 	of 	1985.
included 	the 	following provision 	in Article XIII. 	concerning
leaves 	of 	absence:
13.3.4 	A doctor's 	certificate 	or 	other
proof 	of 	illness 	or 	disabling 	conditions 	may
be 	required 	by 	the District 	for 	any 	illness
or 	disabling 	condition 	in which 	the 	absence
is 	five 	(5) 	days 	or more or when the
classified 	employee 	has 	been 	informed 	that
verification for 	future 	absences will 	be
required. 	Such verification 	statements 	may
be 	required 	by 	the District Personnel 	Office.
It 	is 	inferred 	that 	some 	time 	shortly 	before 	Petrich's
reassignment 	from 	the 	elementary 	school 	to North High 	School,
the District 	notified Petrich 	that 	he would 	be 	required 	to
provide 	a 	doctor's 	verification 	for 	any 	absence 	assertedly
caused 	by 	illness. 	There 	are 	two 	references 	in the 	record 	to
this 	requirement, 	although 	the 	document 	imposing 	this
11Moshier 	testified 	that 	the 	memorandum's 	statement 	in
its 	first 	paragraph. 	"Then you 	began parking 	in someone's
assigned 	space 	in the cafeteria 	parking 	lot" 	is 	incorrect. 	In
fact, 	Moshier 	testified, 	Petrich then began parking 	in an area
which was 	not marked 	as 	a 	parking 	spot, 	which Moshier 	intended
to 	keep 	clear 	of 	parked 	cars 	because 	of 	its 	proximity to 	the
entrance 	to 	the 	parking 	area 	and 	to 	the 	cafeteria 	delivery
area. 	(TR: 	77-78. 	92-93)
11

requirement was 	not 	entered 	into 	evidence. 	In a February 20
letter 	to 	Petrich 	informing 	him of 	his 	reassignment 	to 	the 	high
school. 	Assistant 	Superintendent Tucker wrote:
Please 	be 	aware 	that you must 	still 	provide
a 	physician's verification of 	illness 	if 	you
are 	to 	be paid 	for 	days you are 	off work
because 	of 	illness. 	This 	order 	stands
through June 30. 	1985. 	(CPX 3)
The 	second 	reference 	to 	the 	requirement 	is 	in a 	letter 	sent
to Petrich by Tucker 	on February 26. 	In this 	letter 	(CPX 2 ) .
Tucker 	rejects 	the 	letter 	of 	verification 	offered 	by Petrich
for 	absences 	on January 23 	through 27 	and February 	13 	and 	15.
Tucker writes:
The 	physician's 	verification 	of 	illness 	you
provided 	for 	your 	absences 	of 	January 	23
through January 27. 	and February 13. 	15 	is
not an acceptable verification 	. 	. 	.
Because 	the verification was 	not 	required
before February 11. 	and because 	I want 	to
give 	you 	ample 	warning without 	penalty
before you 	are 	refused 	paid 	sick 	leave, 	the
district will 	not 	dock your 	pay 	for 	the
February 13 	and 	15 absences. 	However, 	a
non-verification such as Dr. 	Lee's will 	not
be 	acceptable 	for 	absences 	after
February 15, 	1985.
On April 	30, 	Hodnett 	gave 	to Petrich a memorandum which
read, 	in part:
Your 	reassignment 	to 	North High 	School
started February 25. 	1985. 	Since your
reassignment 	to North High School, 	the 	rate
of 	usage 	of 	sick 	leave 	and 	other 	absences
has 	become 	detrimental 	to 	the 	proper
maintenance, 	health, 	and safety of 	our
school 	and 	students. 	Your 	attendance 	record
is 	listed as follows:
12

The 	memorandum then 	listed 	19 	dates 	between February 	28 	and
April 	26 when, 	according to Hodnett, 	Petrich was 	either absent
or 	late 	to work. 	Hodnett 	listed 	seven days 	of 	full 	day
absence. 	11 days 	of 	partial 	absence 	(generally 1 1/2 	hours) 	and
one 	day 	on which Petrich was 	20 minutes 	late 	arriving 	at work.
Petrich had 	provided 	a 	doctor's verification for 	five 	of 	the
seven full-day absences. 	According 	to 	the memorandum. 	Petrich
claimed 	each of 	the 	11 	partial-day absences was 	caused 	by a
physician's 	appointment. 	He had 	(again, 	according 	to 	the
memorandum), 	provided physician's verification on only one of
the 	11 	days. 12
Hodnett's 	memorandum 	also 	commented 	upon Petrich's 	work
shortcomings 	on 	the 	days 	he 	had worked 	(including 	some 	cited 	in
the March 28 	and April 	2 memoranda). 	Hodnett 	then instructed
Petrich 	to 	clean 	the girls' 	restroom 	in his work area 	daily,
without 	having 	to 	receive 	daily directions, 	and 	also 	gave 	these
general 	instructions:
I 	want you 	to 	improve 	the 	quality and 	volume
of 	acceptable work. 	Clean all 	restrooms 	in
the 	social 	studies 	area 	and 	provide me with
a 	physician's 	verifications 	for 	all 	doctor's
appointments 	and 	illnesses.
Any 	future 	failure 	to 	perform 	assigned
duties 	in a 	satisfactory manner.
Article 19.3.1, 	and failure to obey
12The 	full-day absences 	for 	which 	there were 	no
verification, 	according to 	the memorandum, 	were March 7 	and
April 	22. 	The 	partial-day absences 	lacking verification were
on March 6. 	8. 	13. 	15. 	20. 	22. 	25, 	29, April 5 and 23. 	The
late day was April 26 	(20 minutes).
13
12The

directions. 	Article 19.3.2. 	will result in a
request 	from me 	to 	George Williams 	for
disciplinary action. 	Your 	behavior 	at North
High School 	is 	becoming a 	case 	of 	aggravated
insubordination not 	only to 	me 	but 	to
Mr. 	Moshier. 	the vice principal at North
High School.
While 	there was 	no 	testimony about 	most 	of 	the 	dates 	cited.
Hodnett 	testified 	to 	the 	general 	accuracy 	of 	the 	dates 	and
absences 	noted 	in his 	memorandum, 	and 	commented 	upon Petrich's
general 	failure 	to 	provide 	a 	doctor's 	verification 	of 	illness
on days he was absent from work (TR: 27-28, 33).13
The 	District 	did 	not 	submit 	any 	documentary 	evidence
prepared 	on a 	daily basis, 	to 	confirm Hodnett's 	allegations 	of
absence 	on 	the 	various 	days 	listed 	in 	the memorandum.
Based 	on 	the 	little 	evidence 	about 	this 	subject 	in 	the
record 	the 	following 	findings 	of 	fact 	are made:
(1) 	The 	only physician's 	notes 	which Petrich 	submitted
during 	the 	period 	in 	question 	(late 	February 	through 	late
13The 	only dates 	which were 	the 	subject 	of 	specific
testimony were April 	22 	and 	23. 	Petrich submitted 	to Hodnett 	a
note dated April 	25. 	1985. 	signed by a Dr. 	Anil Garde. 	The
handwritten note, 	which confirms 	the 	popular 	belief 	that
doctors 	have very poor 	handwriting, 	probably says:
Pt. 	[Patient] 	was 	seen today because of 	abd
[abdomenal] 	pain. 	He had 	similar 	episodes
earlier 	i.e. 	Mon 	[Monday] 	[and] 	Tuesday.
[April 	22 and 23]. 	(CPX 14)
Hodnett 	did 	not 	accept 	this 	letter 	as 	verification of 	illness
on April 	22 and April 	23. 	Hodnett noted, 	correctly, 	that 	the
note 	does 	not 	say 	that Petrich was 	seen 	by a 	doctor 	on April 	22
or 	23. 	(TR: 	II. 	53-55).
13
14
I

April) 	are 	those 	acknowledged 	in the April 	29 	memorandum 	in
evidence: 	those notes cover February 28, 	March 1. 	March 18.
March 27. 	and April 	1, 	and April 	25. 	The finding 	that no 	other
physician's 	notes 	were 	submitted 	by Petrich 	is 	permitted 	by
Evidence 	Code 	Section 	413 14
(2) 	No 	findings 	are made 	on whether 	Petrich was 	absent
from work 	on any of 	the 	days 	cited 	in the 	note, 	other 	than
April 	25. 	the 	only date which was 	the 	subject 	of 	direct
evidence. 	No 	findings 	are 	possible 	on this 	point 	because 	there
is 	no 	documentary evidence, 	and 	because Hodnett's 	testimony was
so vague.
(3) 	Finally, 	there 	is 	no evidence 	that Hodnett's 	conduct
in this 	respect, 	or 	the District's 	conduct generally, 	was 	based
on hostility 	toward 	CSEA, 	or 	that 	any such conduct was 	in
retaliation 	for 	Petrich's 	EERA-protected 	activities 	(the 	filing
of 	contract grievances and use of 	PERB procedures).
H. 	Hodnett's 	June 	7. 	Memorandum
On June 	7. 	Hodnett 	sent 	to 	Petrich a 	memorandum commenting
critically upon Petrich's 	"Tardiness. 	Failure 	to Work
14Evidence 	Code 	section 413 	provides:
In determining what 	inferences 	to 	draw from
the 	evidence or 	facts 	in the 	case against 	a
party, 	the trier of 	fact may consider, 	among
other 	things, 	the party's 	failure to 	explain
or 	to 	deny by his 	testimony 	such evidence 	or
facts 	in the case against 	him, 	or 	his
willful 	suppression 	of 	evidence 	relating
thereto, 	if 	such be the case.
15

Diligently, 	Failure 	to turn in Key. 	Leaving Campus 	during
Worktime." 	(CPX 	12)
The 	memorandum commented 	upon Petrich's 	hours 	of 	work 	on
May 	31 	and 	June 	3, 	and 	also 	noted 	some 	general 	shortcomings
allegedly noted 	by Hodnett 	over 	a 	period 	of 	time. 	Hodnett
concluded.
After 	working with you 	for 	many weeks 	it
appears 	that your 	performance 	and 	your
attendance 	is 	poor 	because you 	deliberately
make it so. 	Therefore. 	I 	am recommending
that 	the 	severest 	possible 	disciplinary
action be 	taken against you.
Again. 	Petrich did 	not 	testify 	about 	any of 	the 	specific
incidents 	or 	shortcomings 	cited 	by the memo. 	Nor 	did 	he
attempt 	to 	elicit 	from Hodnett 	or 	any 	other 	witness 	detailed
descriptions 	of 	any of 	the 	incidents 	or 	shortcomings 	cited 	in
the 	memorandum. 	The District 	introduced 	no 	evidence,
documentary 	or 	otherwise, 	which would 	substantiate 	the 	specific
criticisms 	in the memorandum. 	Finally, 	there 	is 	no 	evidence
that 	any of Hodnett's 	comments, 	or 	the memorandum as 	a whole,
was 	linked 	in any way with Hodnett's 	hostility to CSEA, 	or 	to
opposition on the 	part 	of 	Hodnett 	or 	the District 	to 	any of 	the
EERA-protected 	activities 	in which 	Petrich 	participated.
I. 	Principal Wolf's Memoranda 	of June 	12.
On June 	12. 	North High School 	Principal Douglas Wolf 	gave
Petrich 	a 	memorandum which 	included 	the 	following:
About 	8:20 a.m. 	on May 30. 	1985. 	you approched a
female 	student 	sitting 	in a 	car 	in the 	student 	parking 	lot
16

and 	requested 	that 	she 	get 	some 	cigarettes. 	You 	gave 	her
some money. 	She drove 	away. 	You waited 	at 	the 	entrance
road 	from Linden Street. 	In a 	few minutes 	she 	returned 	and
gave you 	the 	cigarettes.
Your 	action was 	inappropriate. 	You 	should 	not 	ask
students 	to 	run 	errands 	nor 	should 	you 	give 	them money. 	As
a 	school 	employee, 	you 	exposed 	the 	school 	district
unnecessarily 	to 	a 	possible 	liability 	suit 	had 	the 	student
been 	involved 	in 	an 	accident 	while 	running 	an 	errand 	for
you.
You 	are 	hereby directed 	to 	not 	send 	students 	off
campus 	on errands 	in the 	future. 	You are 	also 	directed 	not
to 	give 	students 	money. 	Failure 	to 	follow this 	direction
will 	result 	in my recommending 	disciplinary 	action 	be 	taken
against you. 	(CPX 13).
Wolf 	testified 	that 	after 	hearing 	about 	the 	incident 	the
day 	it 	happened, 	he 	called 	in the 	student 	involved. 	Julie
Garst. 	who 	then prepared 	a written statement 	about 	the
incident. 	This written 	statement was 	the 	basis 	for Wolf's
memorandum to Petrich 	(TR: 	140-141. 	170). 	Petrich did not call
any other witness 	to 	testify about 	the 	incident, 	nor 	did 	he
testify about 	it 	himself.
It 	is 	found 	that 	the 	memorandum represents 	an accurate
description 	of Wolf's 	understanding 	of 	the 	incident.15 There
is 	no 	evidence 	that Wolf's 	memorandum was 	motivated 	by
hostility 	toward CSEA, 	or 	hostility toward 	Petrich, 	based 	on
any of 	Petrich's 	protected 	activities.
15petrich's 	failure 	to 	testify about 	the 	event, 	or to
present 	any 	other 	evidence 	concerning 	the 	incident, 	lends
support 	to 	this 	finding. 	Evidence Code 	Section 413 	(quoted 	in
footnote 14).
17
15

J. 	Principal Wolf's 	June 	19 Memorandum.
On June 	19. 	1985. 	Principal Wolf 	sent to Petrich a
memorandum regarding 	"Your 	Approaches 	to Miss 	Becky Porter,
Teacher." 	The memorandum read, 	in pertinent part:
Miss 	Porter 	has 	described 	to me what 	appear 	to 	be
inappropriate 	approaches 	you 	have made 	to 	her, 	and 	she 	has
asked me 	to 	intervene.
She 	tells 	me 	that you 	have 	attempted 	to 	engage 	her 	in
conversation 	about 	how female 	students 	have 	flirted with
you 	and 	that you 	then asked 	her 	if 	it would 	not 	be 	better
if 	classified 	employees 	asked 	teachers 	for 	dates. 	She 	said
that 	you 	once 	called 	her 	"my 	little 	puppy dog," 	and 	at
another 	time 	called 	her 	a 	"sexy 	lady."
Tony, 	for 	a male employee 	to 	force 	on a 	female
employee 	unwanted 	and 	uninvited 	attentions 	having 	nothing
to 	do 	with 	work 	could 	be 	considered 	sexual harassment.
This 	is 	prohibited 	by 	law. 	Even though you may not view
your 	own actions 	in that 	light, 	I'm sure you 	are 	aware 	that
such 	actions 	are 	discourteous 	and 	unacceptable.
I'm asking you 	not 	to 	make 	advances 	to Miss 	Porter.
She does 	not welcome 	them, 	and 	she 	is 	entitled 	to 	be 	free
from all 	such contacts. 	(CPX 15).
Wolf 	testified 	that 	he 	prepared 	the 	memorandum after 	having
a 	conversation with Porter, 	and 	then 	receiving 	from her 	a
written description of the incidents. 	(TR: 	II, 	145). 	Porter
testified 	that 	she 	did 	in fact 	tell Wolf 	that 	the 	incidents
described 	in the memorandum had occurred. 	(TR: 	I. 	101-102).
Neither 	Wolf 	nor 	Porter 	was 	specific 	about what 	Porter 	told 	the
principal.16 Porter 	apparently did 	not 	use 	the 	term
16There 	remains 	considerable 	uncertainty about 	the
conversation 	or 	conversations 	which Porter 	and Wolf 	had 	about
18

"inappropriate 	approaches" 	nor 	the 	term 	"sexual 	harassment."
According to Wolf. 	Porter's 	comments were 	"more a 	standpoint 	of
repugnance and 	fear." 	(TR: 	146)
the 	subject. 	Wolf 	testified 	about 	one 	conversation 	in
particular, 	but 	the 	circumstances 	suggest 	he and Porter may-
have 	had 	at 	least 	two 	conversations 	about 	the 	subject. 	Neither
Porter 	nor Wolf 	was 	able 	to 	remember 	the 	date 	or 	dates 	of 	their
conversation(s). 	Further, 	the testimony of 	the two witnesses
is 	inconsistent about the dates 	of 	the 	events 	of which
Ms. 	Porter 	complained. 	She 	testified 	the 	events 	took place
before Memorial Day 	(TR: 	I, 	102). 	Wolf 	testified he was 	told
one event 	took place Thursday, 	May 	30. 	and 	the other 	took place
Wednesday, 	June 5, 	(TR: 	146). 	Since Memorial Day is generally
celebrated 	the 	last Monday 	in May, 	both 	these 	dates 	are 	after
Memorial 	Day.
Petrich did 	not 	testify about 	the 	alleged 	incidents, 	nor
did 	he 	introduce 	any evidence 	about 	the 	incidents, 	other 	than
Porter's 	testimony. 	Since Porter's 	testimony amounted 	to 	a
confirmation 	that 	the 	description 	in Wolf's 	memorandum 	is
correct 	in essence, 	it must 	be 	inferred 	that 	the 	testimony 	is
accurate, 	as 	is Wolf's description in the June 	19 memorandum.
There 	is 	no 	evidence 	to 	suggest 	that 	either Wolf 	or 	Porter
was 	motivated 	in 	any way 	by hostility 	to 	CSEA or 	to 	the
exercise 	of 	EERA-protected 	activities.
There was 	considerable 	evidence 	given 	by various 	witnesses
about 	a 	year-end 	evaluation which Hodnett 	gave 	to 	Petrich.
However, 	there 	is 	no allegation 	in the 	initial 	complaint 	in
this 	case about 	the evaluation. 	Thus, 	there 	is 	no need at 	this
point 	to 	review the 	evidence 	about 	it.
19

LEGAL 	ANALYSIS
The Complaint 	alleges 	that 	all 	of 	the 	memoranda were
written 	"because 	of" 	Petrich's 	protected 	activities,
specifically, 	the 	filing 	of 	unfair 	practice 	charges with PERB
and 	the 	initiation of 	contract 	grievances 	at various 	times 	in
1984 	and 	1985. 	Thus, 	the 	complaint 	puts 	forward a 	retaliation
or 	discrimination allegation.
A 	charging 	party 	alleging 	such 	an unfair 	practice 	by 	an
employer 	has 	the 	burden 	of 	making 	a 	factual 	showing 	sufficient
to 	support 	an 	inference 	that 	protected 	conduct was 	a 	motivating
factor 	in the 	employer's 	decision to 	engage 	in 	the 	conduct 	of
which 	the 	employee 	complains. 	Novato Unified 	School 	District
(1982) PERB Decision No. 	210.
As 	noted, 	very 	little 	evidence was 	introduced 	about 	the
events 	for which Petrich was 	criticized; 	in some 	instances,
there 	is 	no 	direct 	evidence 	about 	the underlying 	events.17
There 	is 	considerable uncertainty about 	the 	accuracy of 	some 	of
the memoranda written 	by Hodnett. 	and 	uncertainty about 	the
dates 	of 	the 	incidents 	in which Ms. 	Porter was 	involved.
However, 	at this 	stage of 	the proceeding, 	the respondent does
1 7 No 	finding 	of 	fact 	may 	be 	based 	on uncorroborated
hearsay evidence 	(PERB Regulation 32176). 	There 	is 	no direct,
first-hand 	evidence about 	some 	of 	the 	events 	reported 	or
described 	in memoranda 	in evidence. 	Since 	these 	documents 	are
hearsay under 	the Evidence Code, 	the 	events 	to which they refer
and 	for 	which 	there 	is 	no 	corroborating 	evidence 	may not 	be
taken as 	proven.
20

not 	have 	an 	obligation 	to 	present 	evidence 	to 	substantiate 	its
actions. 	The 	charging party carries 	the 	burden of 	presenting
evidence 	to 	support 	his 	contention that 	the memoranda 	at 	issue
were 	improperly motivated. 	It 	is 	concluded 	here 	that 	the
charging 	party has 	failed 	to 	establish a 	prima 	facie 	case 	of
discrimination with 	respect 	to 	each 	of 	the 	allegations 	in 	the
complaint. 	With the 	exception of 	the April 	26 	parking
memorandum 	(discussed 	below) 	there 	is 	no 	evidence 	of 	any 	link
between Petrich's 	protected 	activities 	and 	the 	critical
documents which are 	the 	focus 	of 	the 	hearing.
With respect 	to 	that April 	26 memorandum, 	the 	evidence
shows 	that 	it was written 	by Moshier 	after 	Petrich had
exercised 	a 	protected 	right 	- 	- 	after 	Petrich had 	asked 	for
representation 	by CSEA 	in a 	meeting with 	his 	immediate
supervisor 	and 	the assistant principal. 	Thus, 	there 	is 	a 	link
between 	the 	exercise 	of 	a 	protected 	right 	and 	the writing of
the 	memorandum.
However, 	it 	cannot be 	said 	that 	the writing of 	the
memorandum was 	a 	form of 	reprisal. 	Moshier, 	wrote 	the memo 	to
give 	all 	the 	participants 	in the 	scheduled 	meeting 	a 	single
summary document 	to 	serve 	as 	the 	beginning point 	of 	the
discussion. 	The document, 	on its face, 	is suitable for 	that
use, 	and Mosher's 	explanation 	is 	consistent with a 	common-sense
approach 	to 	having 	a 	useful 	discussion 	including 	the 	CSEA
representative who was, 	presumably, 	unacquainted with the
problem.
21

Further. 	Tucker 	testified, 	credibly, 	that the memorandum
was 	not 	placed 	in Petrich's 	personnel 	file, 	at Tucker's
direction. 	Thus, 	the memorandum can play no part 	in any
adverse 	action 	against 	Petrich.
CONCLUSIONS 	AND ORDER
The 	allegations 	that 	the District 	engaged 	in 	the 	conduct
described in complaint paragraphs 9. 	10. 	11, 	12. 	13. 	14. 	15 and
16 	because of Charging Party's protected activities, 	are hereby
dismissed.
Pursuant 	to California Administrative Code, 	title 	8.
part 	III. 	section 32305, 	the charging party has 	the right 	to
file 	exceptions 	to 	the dismissals 	set 	out 	above. 	Those
dismissals 	shall 	become 	final 	on July 2. 	1986 	unless 	the
charging 	party files 	a 	timely 	statement 	of 	exceptions. 	In
accordance with PERB 	regulations, 	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 	supporting 	brief 	must 	be 	actually
received 	by 	the 	Public 	Employment 	Relations 	Board 	at 	its
headquarters 	office 	in Sacramento 	before 	the 	close 	of 	business
(5:00 p.m.) 	on July 2 	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.
22

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. 	sections 	32300 and 32305.
Dated: 	June 12. 	1986 MARTIN 	FASSLER
Administrative 	Law 	Judge
23