San Diego Unified School District (PERB 0879E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
STEVE 	LOHMANN,
Charging Party,
V.
SAN DIEGO UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3020
PERB Decision No. 	879
May 21, 	1991
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Appearances: 	Steve Lohmann, 	on his own behalf; 	Jose A. 	Gonzales,
Assistant General Counsel, 	for San Diego Unified School District.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal 	by Steve 	Lohmann of
the Board agent's dismissal 	(attached hereto) 	of his 	charge 	that
the 	San 	Diego 	Unified 	School 	District 	violated 	section 	3543.5(a)
of 	the Education Employment Relations Act 	(EERA).1 We have
reviewed the dismissal 	and, 	finding 	it to be 	free of prejudicial
error, 	adopt it as 	the Decision of the Board itself.
EBRA 	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.
1
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_______________ )

The unfair practice charge 	in Case No. 	LA-CE-3020 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
N	
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STATE OF CALIFORNIA 	. 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard. Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
March 11, 	1991
Steve 	Lohmann
Re: 	Steve 	Lohmann v. 	San Diego Unified School 	District
Unfair Practice Charge No. 	LA-CE-3020, 	First Amended Charge
DISMISSAL 	OF 	CHARGE AND 	REFUSAL 	TO 	ISSUE 	COMPLAINT
Dear Mr. 	Lohmann:
The 	above-referenced 	charge was 	initially 	filed 	on August 	22,
1990. 	A First Amended Charge was 	filed March 4, 	1991 	(U.S.
Express 	Mail). 	The First Amended Charge alleges 	that the San
Diego 	Unified 	School 	District 	(District) 	violated 	EERA 	section
3543.5(a) 	by 	committing unlawful 	reprisals 	and/or other 	acts
against Mr. 	Lohmann.
I 	indicated to you in my attached 	letter dated February 	26, 	1991,
that 	for the 	case to go 	further, 	you needed to 	file an amended
charge which 	included, 	among other things, 	the adverse actions
you believe 	the 	District engaged 	in. 	I 	also 	indicated 	in summary
that 	the 	amended 	charge 	should 	contain 	facts 	and dates 	describing
your protected/union activity, 	the 	District's 	knowledge 	of 	said
activity, 	the adverse actions 	taken by the 	District, 	and the
reasons 	you believe the 	adverse actions 	were 	taken in retaliation
for your protected activity 	(i.e. 	nexus 	between the adverse
actions 	and protected activity). 	You were 	further advised 	that
unless 	I 	received an amended 	charge 	or withdrawal 	from you 	before
March 	5, 	1991, 	the charge would be dismissed.
Your 	first three adverse actions 	are, 	in essence, 	that on
December 	11, 	1989, 	you were 	involved 	in an unfair 	interview for
promotion, 	you discovered on or about 	February 	9, 	1990, 	that 	the
District violated their administrative procedures, 	and 	that 	on
February 15, 	1990, 	Mr. 	James R. 	Rhetta, 	Director of Classified
Personnel, 	advised you to 	file 	an administrative procedures
violation on 	a 	Merit 	System Rules 	complaint 	form, 	knowing 	that 	it
should have been 	filed as 	a 	grievance 	by 	the union. 	These 	three
alleged 	adverse 	actions 	fail 	to 	state 	a prima 	facie 	case 	as 	they
are 	untimely. 	Section 	3541.5(a) 	of 	EERA does 	not 	allow a
complaint 	to 	issue 	regarding 	a 	charge 	based 	upon 	an alleged
unfair practice 	occurring 	more 	than 	six 	months 	prior 	to 	the

Dismissal 	of 	Charge
LA-CE-3020
March 	11, 	1991
Page 	2
filing of 	the 	charge. 	The 	adverse 	actions 	above 	occurred prior
to February 22, 	1990, 	and are 	therefore 	untimely and will 	be
dismissed. 	Also, 	although you have 	some protected activity
occurring prior to 	the other two adverse 	actions, 	you have
alleged 	no prior protected 	activity 	for 	the 	first 	adverse 	action
occurring on December 	11, 	1989.
Next, you allege that Mr. 	Rhetta made his 	decision denying your
merit 	system complaint on February 22, 	1990. 	Although you have
prior protected activity, 	you have 	failed 	to demonstrate 	that 	Mr.
Rhetta's 	response was 	made 	in retaliation 	for your protected
activity. 	You essentially contend, 	in part, 	that proper or
standard procedures were not 	followed 	in that 	(1) 	the 	District,
in part, 	violated 	their administrative procedures 	in December
1989 	and 	(2) 	Mr. 	Rhetta 	incorrectly and/or knowingly advised you
to 	file 	this 	issue 	on a 	Merit 	System Rules 	complaint 	form 	instead
of as 	a grievance filed by the union. 	First, 	the alleged
violation of 	the District's 	administrative procedures 	relates 	to
the 	above 	December 	1989 	interview problem, 	and does 	not
demonstrate nexus 	for Mr. 	Rhetta's February 22, 	1990 response to
your Merit 	System Rules 	complaint 	(which 	you 	filed 	February 	15,
1990, 	and then revised February 20, 	1990). 	Second, 	Mr. 	Rhetta's
recommendation was 	proper according 	to Article XIII, 	section 	6.M.
of 	the Collective 	Bargaining Agreement 	(Agreement) 	between the
District and the union, 	which 	states 	that 	"Actions 	to 	challenge
the 	Merit 	System, 	procedures 	and policies 	of 	the 	District. 	. . .
or 	to appeal 	the District's 	adherence 	to or application of 	any of
the 	aforementioned 	shall 	not 	be 	undertaken through 	the 	grievance
procedure." 	(Emphasis added.) 	Thus, 	your Merit System Complaint
in February 	1990 	regarding the 	entire 	December 	1989 	incident was
not 	inappropriate. 	You have 	not demonstrated that 	standard
policy or procedures were 	not 	followed or 	shown nexus 	in any
other 	way.
You 	argue 	that only 	the 	union can 	file 	grievances 	over 	violations
of 	the 	District's 	administrative procedures. 	You point 	out 	that
the Agreement at Article 	III, 	Employee Organization Rights,
Section 	11, 	Administrative Regulations 	and Procedures, 	states
that 	"The District will provide 	the 	Union one 	(1) 	set of
Administrative Regulations 	& 	Procedures 	and 	revisions 	thereto."
Section 	19, 	Rights Grievable, 	states 	that 	"Rights 	granted by 	this
Article 	III 	shall be grievable 	only by 	the 	Union." 	This 	only
means 	that 	should the union not be 	given one 	set, 	only 	it 	can
file a grievance. 	It does 	not mean that only the 	union can
grieve violations 	of 	the Administrative 	Regulations 	& 	Procedures.

Dismissal 	of 	Charge
LA-CE-3020
March 	11, 	1991
Page 3
Next, 	you allege 	that you appealed1 to 	the Assistant 	to 	the
Superintendent 	for Personnel 	Services, 	Mr. 	George Russell, 	and he
"either 	knowing 	(sic) 	or 	negligently 	allowed 	this 	inappropriate
procedure to continue." 	Negligence does 	not violate EERA. 	Also,
it 	is unclear this 	is an adverse action based on the above. 	Palo
Verde Unified School District 	(1988) 	PERB Decision No. 	689. 	Even
if 	it is adverse, 	there is no evidence of nexus. 	Furthermore,
pleading a bare allegation, 	without 	supporting 	facts, 	is
insufficient 	for purposes 	of 	alleging 	a prima 	facie 	case.
California State University 	(Pomona) 	(1988) 	PERB Decision No.
710-H.
Next, 	you allege that Mr. 	Raymond J. 	Blake was appointed Merit
System Rules 	fact-finder 	for your case 	and 	that 	he 	"either
knowing 	(sic) 	or negligently decided on an Administrative
Procedure violation when he no 	(sic) 	right or authority 	to do
so." 	You further allege that since Mr. 	Blake took time to decide
this matter, 	he 	increased his arbitrator's 	stipend, 	which
resulted 	in Mr. 	Lohmann being charged an unfair amount.2
Negligence does not violate EERA. 	Also, 	it 	is unclear these are
adverse 	actions 	in 	light 	of 	the 	above. 	Palo Verde 	Unified 	School
District, 	supra. 	Also, 	the Merit System Rules 	for Classified
Employees provide at Article XI, 	section 	5.d.(3) 	that if the
appeal 	is denied, 	the appellant and the 	Board of 	Education will
share 	equally in the cost of the 	fact-finder's 	stipend. 	Here,
your 	fair share was 	$213.86, 	which was 	in fact refunded to you by
the union on or about July 24, 	1990. 	Even if these are adverse
actions, 	there are no facts 	showing that Mr. 	Blake's 	conduct was
done 	in 	retaliation 	for your protected 	activity.
Next, 	you allege that on May 	5, 	1990, 	you appealed the 	fact-
finder's 	decision 	to 	Superintendent 	Thomas 	Payzant 	and 	asked 	him
to 	look into the case. 	On May 	18, 	1990, 	in denying your appeal,
you 	allege 	that 	"He 	negligently 	allowed 	this 	violation3• of 	the
Union Contract 	to go uncorrected. 	He 	stated 	in his 	decision
'This was 	not 	a matter relative 	to 	a 	union contract but dealt
1You appealed to Mr. 	Russell 	on March 2, 	1990, 	and met with
him on March 28, 	1990.
2Mr. 	Blake 	submitted the 	fact-finder's 	Review and Advisory
Decision in favor of the 	District 	on April 	23, 	1990. 	A question
exists whether the 	fact-finder 	is 	an agent of 	the District. 	The
fact-finder 	is 	being treated 	here 	as 	an agent without deciding
the 	issue.
3It 	is 	unclear which 	exact 	violation you 	are 	referring 	to
here.

Dismissal 	of 	Charge
LA-CE-3020
March 	11, 	1991
Page 4
strictly with Administration of 	the 	Merit 	System 	Rules 	and, 	as
such, 	was 	totally 	in the hands of 	the 	fact-finder.'" 	As
indicated above, 	EERA does 	not make 	it 	a 	violation 	for 	school
districts 	to act negligently. 	Also, 	you must allege 	that the
superintendent 	acted 	in a discriminatory way. 	You 	have 	failed 	to
show any 	nexus 	between your protected 	activity and 	the
superintendent's 	conduct.
Therefore, 	I 	am dismissing this 	charge without leave 	to amend
based on the 	facts 	and 	reasons 	contained 	above 	and 	in 	the
attached February 	26, 	1991 	letter.
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 	(California Code of Regulations, 	title
8, 	section 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 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified or Express 	United States 	mail 	postmarked 	no
later than the 	last date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure section 	1013 	shall apply. 	The Board's address 	is:
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 	calendar days
following the date of 	service of 	the appeal 	(California 	Code 	of
Regulations, 	title 8, 	section 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 California 	Code of 	Regulations,
title 	8, 	section 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.

Dismissal 	of Charge
LA-CE-3020
March 	11, 	1991
Page 5
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 	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 	(California 	Code 	of
Regulations, title 8, 	section 32132).
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when 	the 	time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By Marc S. 	Hurwitz
Regional 	Attorney
Attachment
cc: 	R. 	Ann Wright, 	Employee Relations 	Director
San 	Diego 	Unified 	School 	District
Jose Gonzales, 	Assistant General 	Counsel
San 	Diego 	Unified 	School 	District

STATE Of CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3S30 Wilshire Boulevard. Suite 630
lot Angeles, CA 	90010-2334
(213) 736-3127
February 26, 	1991
Steve 	Lohmann
Re: 	Steve Lohmann v. San Diego Unified, School District
Unfair Practice Charge No. 	LA-CE-3020
WARNING 	LETTER 	rict
Dear Mr. 	Lohmann:
The 	above-referenced charge was 	filed on August 	22, 	1990. 	You
allege that 	the San Diego Unified School 	District 	(District) 	has
violated 	the 	Educational 	Employment 	Relations Act 	(EERA),
Government Code 	section 3543.5(a) 	and 	(c) 	through various 	adverse
actions 	or 	reprisals 	taken against 	you.1 At all 	times 	relevant
hereto, 	you have been an employee 	of 	the District working as 	a
gardener.
After reading your charge, 	I 	could not 	identify 	the basis 	for
your 	claims 	against 	the 	District 	and/or 	it 	appeared 	the 	elements
to 	state a prima 	facie case were 	lacking. 	I 	called you in
January 	1991 	and during 	several 	telephone 	conversations 	you
essentially 	indicated that 	the 	following 	actions 	(several 	of
which 	are 	derived 	from 	this 	charge 	or your 	unfair practice 	charge
No. 	LA-CO-544 	against CSEA) 	were taken for discriminatory
reasons:
1. 	On December 8 and 	11, 	1989, 	interviews were held for a
vacant 	Landscape Maintenance Supervisor 	(LMS) 	position. 	You were
not 	invited to 	interview. 	Also on December 	11, 	1989, 	another 	LMS
position became 	available. 	You were 	contacted at work and
interviewed on short notice, 	but not 	selected. 	(You contend the
Merit System Rules 	for Classified Employees 	(1986), 	and the
District Administrative Procedures were violated. 	You
subsequently 	filed one or more 	complaints 	under 	the 	Merit 	System
Rules.)
1 Regarding the EERA section 3543.5 	(c) 	violation, 	there are
no 	facts 	in this 	charge that 	indicate a violation of 	this 	type.
For that reason, 	this allegation will 	not be treated 	in detail.
Furthermore, 	an 	individual does 	not have 	standing to raise 	this
type 	of 	violation. 	Oxnard 	School 	District 	(Gorcey & 	Tripp)
(1988) 	PERB Decision No. 	667. 	Thus, 	this allegation is being
dismissed.
. 	.u.c.t

Warning 	Letter
LA-CE-3020
February 26, 	1991
Page 	2
2. 	On or about February 	10, 	1990 	or shortly thereafter,
the District 	caused your CSEA Field Representative, 	Steve
Burrell, 	to be taken off your case or got Mr. 	Burrell 	fired.
(The union is 	contending that Mr. 	Burrell went on a one-year
leave 	of absence effective March 	1, 	1990.)
3. 	On February 15, 	1990, 	you met with James R. 	Rhetta,
Director of Classified Personnel, 	and asked 	for the procedure to
complain about 	a 	violation of 	the 	District's 	Administrative
Procedures. 	(Administrative Procedure No. 	7450 	(Rev. 	1-1-84),
Section D.2.) 	He advised you to 	file 	a 	complaint pursuant 	to 	the
Merit 	System Rules. 	You contend this 	issue 	should have been
handled as 	a grievance filed by the union and that Mr. 	Rhetta,
knowingly, 	provided incorrect 	information so that your Merit
System complaint would come back to his 	office.
4. 	The District gave you only 	four days 	notice of a 	fact-
finder's 	hearing/investigatory meeting 	scheduled 	for April 	18,
1990. 	Due to the short notice, 	you were unable to obtain union
representation 	for the meeting.
5. 	On April 23, 	1990, 	the fact-finder, Raymond J. 	Blake,
unfairly decided against you and you were 	charged $213.00. 	On
April 	18, 	1990, 	you were unable to review the December 	1989
interview records 	and resolve 	some questions due to 	a 	thirty 	(30)
minute time limit at the meeting. 	Also, 	several witnesses on
your behalf were 	not 	interviewed by the 	fact-finder.
6. 	On May 5, 	1990, 	you appealed the fact-finder's decision
to 	Superintendent Thomas 	Payzant. 	You requested another 	fact-
finding meeting 	concerning 	your 	right 	to 	union representation and
other procedures in your case. 	On May 	18, 	1990, 	the
Superintendent denied your appeal 	and requests. 	You 	feel 	this 	is
a 	violation of 	the 	collective bargaining 	agreement 	(Agreement)
between the District 	and the union.
For the case to go 	further, 	you need to 	file an amended charge
which includes, 	among other things, 	the adverse actions you
believe 	the 	District 	engaged 	in.
To demonstrate 	these 	actions 	are discrimination 	in violation 	of
EERA section 3543.5(a), 	you must state facts showing: 	(1) 	you
exercised rights 	under the 	EERA, 	(2) 	the 	employer had knowledge
of the exercise of those rights, 	(3) 	the 	employer imposed or
threatened to 	impose 	reprisals, 	discriminated or threatened 	to
discriminate, 	or otherwise 	interfered with, 	restrained or coerced
you, 	and 	(4) 	the employer's 	actions were motivated by or because

Warning 	Letter
LA-CE-3020
February 26, 	1991
Page 3
of your 	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.
To 	state facts which demonstrate motivation, 	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 such motivation. 	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 	explained above, 	your amended charge 	should contain facts 	and
dates 	describing your protected/union activity, 	the District's
knowledge of 	said activity, 	the adverse actions 	taken by the
District, 	and the reasons you believe the adverse actions were
taken 	in retaliation for your protected activity 	(i.e., 	nexus
between the adverse actions and protected activity). 	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 must 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 March 	5, 	1991, 	I 	shall
dismiss your charge. 	If you have any questions, 	please call me
at 	(213) 	736-3127.
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney