Mt. Diablo Unified School District (Dyogi) (PERB 1034E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GEORGE P. 	DYOGI,
Charging 	Party,
v.
MT. 	DIABLO UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1656
PERB Decision No. 	1034
January 13, 	1994
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Appearances: 	George P. 	Dyogi, 	on his own behalf; 	Breon,
O'Donnell, 	Miller, 	Brown & Dannis by Nancy B. 	Bourne, 	Attorney,
for Mt. 	Diablo Unified School District.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
BLAIR, 	Chair: 	This case is before the Public Employment
Relations Board 	(Board) 	on appeal by George P. 	Dyogi 	(Dyogi) 	to a
Board agent's dismissal 	(attached) 	of his 	charge. 	In the charge,
Dyogi 	alleged that 	the Mt. 	Diablo School 	District violated
section 3543.5(a) 	of 	the Educational 	Employment Relations Act1
(EERA) 	by terminating him and 	refusing 	to 	rehire 	him.
JEERA 	is 	codified at 	Government 	Code 	section 3540 	et 	seq.
EERA 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.
_________________ )

The Board has 	reviewed the 	entire 	record 	in this 	case 	and
finds 	the Board agent's 	dismissal 	to be 	free of prejudicial 	error
and adopts 	it 	as 	the decision of 	the Board itself.
The unfair practice 	charge 	in Case No. 	SF-CE-1656 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Caffrey and Carlyle 	joined 	in 	this 	Decision.
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STATE 	STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
November 3, 	1993
George P. 	Dyogi
Re: 	George P. 	Dyoai v. 	Mount Diablo Unified School District
Case No. 	SF-CE-1656
DISMISSAL 	LETTER
Dear Mr. 	Dyogi:
On September 22, 	1993, 	you 	filed a 	charge 	in which you allege
that 	the Mount 	Diablo Unified School 	District 	(District) 	violated
section 	3543.5 	of 	the 	Educational 	Employment 	Relations Act
(EERA) . 	Specifically, 	you allege that the District has 	failed to
reinstate you 	to 	a position 	in 	the 	classified bargaining unit
represented by Public 	Employees Union Local 	1(Local 	l ) . 	From the
material you provided in support 	of your charge, 	I was able 	to
extract 	the 	following 	information. 	You were 	absent 	from your
probationary job beginning August 20, 	1990, 	due 	to a bereavement
leave. 	While 	on 	leave you were being 	treated by a physician 	in
the 	Philippines 	who 	indicated you were not 	able 	to 	travel. 	On
October 3, 	1990, 	you were 	terminated by the District 	for being
absent 	without 	leave.
In 	1991 	you 	contend 	that 	a 	Local 	1 	representative 	and 	the
District 	reached an agreement 	to 	rehire you whenever 	there was 	an
opening 	in a custodian position. 	You learned in March, 	1993,
from a 	friend at 	Northgate 	High 	School 	that 	a new custodian had
been hired. 	You 	contacted Joe Garcia, 	Local 	1 Representative, 	to
inquire about 	a 	job 	for you. 	Mr. 	Garcia was 	told there was
nothing 	to be 	done with your 	case.
I 	indicated to you, 	in my attached letter dated October 	8, 	1993,
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
October 20, 	1993, 	the 	charge would be dismissed.
On October 20, 	1993, 	I 	received your request 	for an extension of
time 	in order 	to allow you 	to 	gather more 	facts 	in 	support 	of
your charge. 	Your request was 	granted. 	On November 2, 	1993 your
first 	amended 	charge 	was 	received. 	Your amended 	charge 	alleges

that 	the employer breached a verbal agreement to rehire you upon
a job opening up and that 	the employer unlawfully terminated you
on September 30, 	1990. 	Further, 	you contend that the six month
statute of 	limitations 	should begin when you were advised by the
union representative that 	the District was definitely not going
to rehire you.
Your amended charge provides no additional 	facts 	or legal
theories to overcome the deficiencies as spelled out in my
October 8, 	1993, 	letter. You have not demonstrated that you
engaged in protected conduct, 	that your employer had knowledge of
your protected conduct and that based on this your employer took
adverse action toward you.
As to the timeliness of your charge, 	as I pointed out, 	the six-
month period runs 	from the date the 	charging party knew or
reasonably should have known of 	the alleged unfair practice.
Fairfield Suisun Unified School District 	(1985) 	PERB Decision No.
547. 	You have attached a letter dated October 3, 	1990, 	from your
employer which advises you of your termination. 	If you believed
that your termination was unlawful you needed to submit a charge
within six months of your receipt of that letter.
As 	to your theory that you didn't learn that the District would
not definitely rehire you until August 26, 	1993, 	you overlook the
fact that you knew as of March 1993, 	that the District had hired
a new custodian in a position that you believed had been promised
to you. 	You knew as of March 1993, 	that a possible unfair
practice had occurred. 	The timeline begins when you learned of
the alleged violation. 	For these reasons, 	you have not stated a
prima facie case and as advised in my October 8, 	1993, 	letter
your charge 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:
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
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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.)
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
Labor Relations 	Specialist
Attachment
cc: 	Nancy B. 	Bourne
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
October 8, 	1993
George P. 	Dyogi
Re: 	George P. 	Dyocri v. 	Mount Diablo Unified School District
Case No. 	SF-CE-1656
WARNING 	LETTER
Dear Mr. 	Dyogi:
On September 22, 	1993, 	you 	filed a charge 	in which you allege
that 	the Mount Diablo Unified School 	District 	(District) 	violated
section 	3543.5 	of 	the 	Educational 	Employment 	Relations Act
(EERA) . 	Specifically, 	you allege that the District has 	failed to
reinstate you 	to a position 	in 	the 	classified bargaining unit
represented by Public Employees Union Local 	1(Local 	1 ) . 	From the
material you provided in support 	of your charge, 	I was able 	to
extract 	the 	following 	information. 	You were absent 	from your
probationary job beginning August 	20, 	1990, 	due to a bereavement
leave. 	While 	on leave you were being 	treated by a physician in
the 	Philippines 	who 	indicated you were not 	able to travel. 	On
October 3, 	1990, 	you were 	terminated by the District 	for being
absent 	without 	leave.
In 	1991 	you 	contend that 	a Local 	1 	representative 	and the
District 	reached an agreement 	to 	rehire 	you whenever 	there 	was 	an
opening 	in a 	custodian position. 	You learned in March, 	1993,
from a 	friend at 	Northgate 	High School 	that 	a new custodian had
been hired. 	You contacted Joe Garcia, 	Local 	1 Representative, 	to
inquire about 	a job 	for you. 	Mr. 	Garcia was 	told there was
nothing 	to be 	done with your 	case.
Although you 	did not 	specifically 	state 	what 	employee 	rights 	were
violated 	for purposes 	of 	this 	investigation, 	I will 	infer that
you believe 	that 	the 	District 	has 	violated 	EERA section 	3543.5(a)
which 	states 	that
(i)t 	shall 	be unlawful 	for a public 	school
employer 	to... 	(i)mpose 	or threaten to 	impose
reprisals 	on 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.

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).
In addition, 	you contend that you learned in March, 	1993, 	that,
another 	custodian had been hired at 	Northgate 	High School. 	In
order 	to 	state 	a prima 	facie 	case 	a 	Charging 	Party must 	allege
and ultimately 	establish 	that 	the 	conduct 	complained 	of 	either
occurred 	or was 	discovered within 	the 	six-month period
immediately preceding 	the 	filing of 	the 	charge. 	San Dieguito
Union High School District 	(1982) 	PERB Decision No. 	194,
Government 	Code 	section 	3514.5(a) 	states 	in relevant part:
Any employee, 	employee 	organization, 	or employer shall
have 	the 	right 	to 	file 	an unfair practice 	charge,
except 	that 	the board 	shall 	not 	do either of 	the
following: 	(1) 	Issue a 	complaint 	in respect 	of 	any
charge 	based 	upon 	an 	alleged unfair practice 	occurring
more 	than 	six months 	prior 	to 	the 	filing 	of 	the
charge,...
Your 	charge 	was 	filed with 	the 	Public 	Employment 	Relations 	Board
on September 22, 	1993, 	which means 	that any alleged unfair
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practice by the District 	should have occurred during 	the six-
month statutory period which began on March 22, 	1993.
The 	six-month limitation period runs 	from the date 	the 	charging
party knew or reasonably should have known of 	the alleged unfair
practice, 	if the knowledge was obtained after the conduct
occurred. 	Fairfield Suisun Unified School District 	(1985) 	PERB
Decision No. 	547. 	As currently filed, 	I am unable to determine
whether your charge would be timely.
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 October 20, 	1993, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Roger Smith
Labor Relations 	Specialist
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