Fresno Unified School District (PERB 1335E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 535,
Charging 	Party,
v.
FRESNO UNIFIED SCHOOL DISTRICT,
Respondent.
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)
)
) 	Case No. 	SA-CE-1883
PERB Decision No. 	1335
June 	25, 	1999
)
)
)
)
)
)
ROBERT MILOVICH,
Real 	Party in Interest.
)
)
)
; 	)
Appearances: 	Miller, 	Brown & Dannis by Enid Y. 	Rivera, 	Attorney,
for Fresno Unified School District; 	Robert Milovich, 	on his own
behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on appeal 	by Robert
Milovich 	(Milovich) 	of a Board agent's dismissal 	(attached) 	of
the 	unfair practice 	charge 	filed on his behalf by 	the 	Service
Employees International Union, 	Local 	535 	(SEIU). 	Pursuant to
PERB Regulation 32164(d)(2)(A)1 the Board orders 	the 	joinder of
1PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 et seq. 	Regulation 32164
states, 	in pertinent part:
(d) 	The Board may order joinder of an
employer, 	employee organization or
individual, 	subject to its jurisdiction, 	on
application of 	any party or 	its 	own motion 	if
it determines that:

Milovich 	to allow him to protect 	his 	interest 	in 	the 	dismissed
charge. 	In the 	charge, 	SEIU alleged that 	the Fresno Unified
School District 	(District) 	violated section 3543.5(a) 	of 	the
Educational 	Employment Relations Act 	(EERA)2 by retaliating
against Milovich 	for his participation 	in protected activities.
The 	Board has 	reviewed 	the 	entire 	record in 	this 	case,
including 	SEIU's 	original 	and amended unfair practice 	charge, 	the
Board agent's 	warning and dismissal 	letters, 	Milovich's 	appeal
and the District's 	response 	thereto. 	The Board 	finds 	the warning
and dismissal 	letters 	to be 	free 	of 	prejudicial 	error and adopts
them as 	the decision of 	the Board itself.
(2) 	The employer, 	employee organization or
individual 	has 	an 	interest 	relating 	to 	the
subject 	of 	the action and is 	so 	situated 	that
the disposition of 	the action 	in their
absence may:
(A) 	As a practical matter impair or impede
their ability to protect 	that 	interest.
2EERA 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.
22

ORDER-
The unfair practice charge in Case No. 	SA-CE-1883 is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Dyer and Amador joined in this Decision.
33

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
April 	5, 	1999
Thomas M. 	Sharpe, 	Attorney
2300 Tulare Street, 	Suite 310
Fresno, 	CA 	93721
Re: 	DISMISSAL 	LETTER
Service 	Employees 	International 	Union. 	Local 	535 v. 	Fresno
Unified 	School 	District
Unfair Practice 	Charge No. 	SA-CE-1883
Dear Mr. 	Sharpe:
On January 25, 	1999, 	you 	filed the 	above-referenced unfair practice
charge 	on behalf 	of 	the Service Employees 	International Union, 	Local
535 	(SEIU). 	In this charge, 	you allege that the Fresno Unified School
District 	(District) 	violated the 	Educational 	Employment 	Relations Act
(EERA) 	when 	it 	terminated substitute 	teacher Robert 	Milovich on or
about December 14, 	1998. 	You assert that the District terminated
Milovich due 	to 	his participation 	in the 	organizing drive 	being
conducted by SEIU. 	This 	organizational 	activity resulted 	in 	a 	PERB
conducted election in January, 	1999. 	It 	can be 	inferred from your
charge 	that 	you allege 	that 	the 	District violated section 	3543.5(a) 	of
EERA when 	it 	terminated Milovich 	in December of 	1998.
I 	indicated to you, 	in my attached letter dated February 25, 	1999,
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 March 8, 	1999, 	the charge would be dismissed.
You were granted additional 	time 	to amend the 	charge 	and on March 22,
1999 	the 	First Amended Charge was 	filed. 	The 	amended charge 	attempts
to 	address 	the 	deficiencies 	in the 	original 	charge 	by providing
information 	relative 	to 	the 	District's 	knowledge of Mr. 	Milovich's
protected 	activity and points 	to 	the 	disparate 	treatment 	Mr Milovich
received 	as 	compared 	to 	other 	substitute 	teachers 	with more 	than 	three
negative evaluations.
The 	additional 	information 	in your allegations 	contends 	that 	Mr.
Milovich became 	active 	in SEIU organizing activities 	in April 	1998 	and
participated 	in a 	"blitz" 	of 	District 	schools 	in May 1998 	to gather
authorization cards 	in 	support 	of 	SEIU's 	filing a 	request 	for
recognition 	in a substitute 	teachers' 	unit. 	He was referred to in
various 	SEIU newsletters 	and bulletins 	throughout 	the 	Summer 	and 	Fall
of 	1998 	and 	attended District 	Board meetings 	and a 	PERB 	hearing 	in
October 1998.

Dismissal 	Letter
SA-CE-1883
April 2, 	1999
Page 2
On March 25, 	1998, 	Mr. 	Milovich received a negative evaluation for his
work at 	Bullard Talent 	Elementary School. 	He 	was 	accused of 	showing
an unauthorized movie 	in the 	class 	in which he 	was 	serving as 	a
substitute. 	This 	was 	his 	third negative 	evaluation 	focusing on 	that
subject 	and 	his 	sixth overall 	negative 	evaluation. 	The 	District 	has 	a
policy that 	provides 	for 	substitute 	teachers 	to be 	struck 	from 	its
rosters 	following three negative 	evaluations. 	The 	District's 	copy of
the 	March 	25 	evaluation 	reflects 	that 	it 	was 	received 	in 	the 	Personnel
office on April 24, 	1998. 	On April 27, 	1998, 	the District notified
Mr. 	Milovich that 	any 	further negative 	evaluations 	referencing 	the
showing 	of 	unauthorized movies 	in 	the 	classroom would 	result 	in his
name 	being removed 	from the 	available 	substitutes 	list. 	This 	warning
came prior to Mr. 	Milovich's 	active 	role 	in SEIU's 	campaign.
You 	contend 	that 	this warning came 	close 	in time 	to Mr. 	Milovich
meeting with Gordon Lindberg, 	the 	District's 	Labor Relations
Administrator, 	and Deberie Gomez, 	Associate Superintendent. 	The
meeting was 	held 	in mid-April 	to 	discuss 	the 	District 	providing SEIU a
list 	of 	substitute 	teachers.
On November 25, 	1998, 	regular teacher, 	Fred Jacobs, 	from McLane High
School 	completed a negative 	evaluation which alleges 	that 	Mr. 	Milovich
showed an unauthorized movie on November 23, 	1998. 	The 	Principal 	at
McLane 	indicated 	that 	Mr. 	Milovich 	apologized profusely and 	that 	she
would 	recommend he 	be 	given 	future 	assignments 	and 	forwarded 	the
evaluation 	form 	to 	the 	District 	office 	responsible 	for maintaining 	the
personnel 	files 	for substitutes. 	The District 	on December 14, 	1998
informed Mr. 	Milovich 	that 	his 	name 	would be 	removed 	from the 	active
roster of 	substitute 	teachers 	based on a 	review of 	his 	work history
and evaluations.
The element 	of 	"nexus" 	which you raised in the 	amended charge was 	the
disparate 	treatment 	of Mr. 	Milovich as 	compared 	to other substitute
teachers 	similarly situated. 	You 	contend that 	there 	are 	at 	least
three 	other 	substitute 	teachers 	who have 	at 	least 	three 	or more
negative 	evaluations who continue 	to work for the District. 	I 	asked
you 	to verify 	if 	any of 	them had 	received a 	warning 	letter 	similar 	to
Mr. 	Milovich or 	if 	any of 	them had as many as 	seven negative
evaluations. 	Your reports back did not 	support 	your 	theory of
disparate 	treatment 	in 	that 	none 	of 	the 	three 	had 	as 	many as 	six or
seven negative 	evaluations 	and none 	had received a warning 	letter
followed by 	another negative 	evaluation. 	(Although you 	contend 	that 	at
least 	one 	of 	the 	three 	substitutes 	did receive 	a warning with his
third negative 	evaluation, 	he 	had not 	received another negative
evaluation.)
I 	find that 	Mr. 	Milovich's 	treatment 	was 	not 	disparate 	in 	comparison
to these 	other teachers. 	Mr. 	Milovich was 	specifically warned not 	to
show unauthorizes 	movies 	but 	admittedly did 	so 	on November 	23. 	No

Dismissal 	Letter
SA-CE-1883
April 2, 	1999
Page 3
other 	teachers 	were 	allowed 	to 	ignore 	such a warning. 	Nor did other
teachers 	have 	as many negative 	evaluations.
You argue 	that 	none 	of 	the 	three 	substitutes 	had as 	many years 	of
service as Mr. 	Milovich. 	Proportionately, 	you argue, 	his seven
evaluations 	over 	twenty years 	were 	fewer than 	the 	three 	that 	some 	of
these 	substitute 	teachers 	had accumulated 	in 	five 	years 	of 	service 	or
less. 	This 	is 	not 	a basis 	to 	find that 	the District 	treated Mr.
Milovich 	disparately.
For the 	reasons 	outlined 	in this 	letter and my February 25, 	1999,
letter, 	your charge 	is 	hereby 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 Regs., 	tit. 	8, 	sec. 	32635(a).)
Any document 	filed with 	the 	Board must 	contain 	the 	case 	name 	and
number, 	and the 	original 	and five 	(5) 	copies of all 	documents must be
provided to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before 	the
close of business 	(5 p.m.) 	on the 	last 	day set 	for filing or when
mailed by certified or 	Express 	United States mail, 	as 	shown on 	the
postal 	receipt 	or postmark, 	or delivered to 	a 	common carrier promising
overnight 	delivery, 	as 	shown on the 	carrier's 	receipt, 	not 	later than
the last day set for filing. 	(Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(a);
see also Cal. 	Code Regs., 	tit. 	8, 	sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of 	business 	on the 	last 	day 	for 	filing
together with 	a 	Facsimile 	Transmission 	Cover Sheet 	which meets 	the
requirements of Cal. 	Code Regs., 	tit.8, 	sec. 	32135(d), 	provided the
filing party also places 	the 	original, 	together with 	the 	required
number of copies and proof of service, 	in the U.S. 	mail. 	(Cal. 	Code.
Regs., 	tit. 	8, 	secs. 32135(b), 	(c) 	and (d); see also Cal. Code Regs.,
tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960

Dismissal 	Letter
SA-CE-1883
April 2, 	1999
Page 4
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 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 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. 	A document
filed by 	facsimile 	transmission 	may be 	concurrently 	served via
facsimile 	transmission on all parties 	to the proceeding. 	(Cal. 	Code
Regs., tit. 8, 	sec. 32135(c).)
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 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
Rog^jf Smith
Board 	Agent
Attachment
cc: 	Enid Y. 	Rivera, 	Attorney

STATE OF CALIFORNIA 	GRAY DAVIS. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
February 25, 	1999
Thomas M. 	Sharpe, 	Attorney
2300 Tulare Street, 	Suite 	310
Fresno, 	CA 	93721
Re: 	WARNING LETTER
Service 	Employees 	International Union. 	Local 	535 v. 	Fresno
Unified 	School 	District
Unfair Practice Charge No. 	SA-CE-1883
Dear Mr. 	Sharpe:
On January 25, 	1999, 	you 	filed the above-referenced unfair
practice 	charge 	on behalf 	of 	the 	Service 	Employees 	International
Union, 	Local 	535 	(SEIU). 	In this charge, 	you allege that the
Fresno Unified 	School 	District 	(District) 	violated the
Educational 	Employment Relations Act 	(EERA) 	when 	it 	terminated
substitute 	teacher Robert Milovich on or about December 	14, 	1998.
You assert 	that 	the 	District 	terminated Milovich due 	to 	his
participation 	in 	the 	organizing 	drive 	being 	conducted by 	SEIU.
This 	organizational 	activity resulted 	in a 	PERB 	conducted
election in January, 	1999. 	It 	can be 	inferred from your charge
that you allege 	that 	the District violated section 3543.5(a) 	of
EERA when 	it 	terminated Milovich 	in December of 	1998.
As 	I 	indicated 	in our telephone 	conversation, 	PERB has
established 	standards 	to prove 	a prima 	facie 	violation 	of
retaliation. 	The 	charge 	as 	currently 	filed does 	not 	provide
factual 	allegations 	to 	support 	your 	conclusions. 	You 	indicated
that 	you would 	review 	this 	warning 	letter 	and respond
accordingly. 	As 	I 	also indicated, 	with the District's
concurrence, 	I 	am enclosing the 	employer's 	response 	to 	the 	charge
(without declarations).
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; 	arid 	(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

Warning 	Letter
SA-CE-1883
February 25, 	1999
Page 2
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).
You 	contend 	that 	Milovich 	actively campaigned 	on 	behalf 	of 	SEIU
but provide no evidence of 	such activity. 	Further, 	you provide
no 	facts 	to 	support 	the necessary element 	of 	employer knowledge
of 	the protected 	conduct 	other 	than 	a broad 	statement 	that
"managerial 	and 	supervisory employees 	of 	FUSD were 	aware" 	of 	his
protected 	conduct.
As 	to 	the 	"nexus", 	you have provided legal 	conclusions but no
facts 	to 	support 	the 	contention 	that 	the 	District 	violated 	the
EERA through 	its 	termination of 	Milovich. 	You assert 	that 	the
District 	failed 	to grant 	Milovich an 	informal 	hearing as 	it 	had
other 	substitute 	employees. 	What 	is 	the 	informal 	hearing
process? 	How often does 	the District 	use 	it? 	Is 	it 	used 	for
cases 	similar 	to Milovich's?
Furthermore, 	you contend that 	the District 	did not 	question 	the
validity of 	the 	complaint 	brought 	by 	the 	regular 	classroom
teacher which 	lead to Milovich's 	termination. 	Is 	this 	a
departure 	from 	established 	procedure?
Finally, 	you 	assert 	that 	the 	District 	took 	the 	action of
termination despite 	the willingness 	of 	a 	supervisory employee 	to
give 	Milovich 	an opportunity 	to 	continue 	his 	twenty year
employment 	as 	a 	substitute 	teacher. 	Have 	there 	been 	instances
where 	supervisors 	have 	had 	the 	authority 	to 	convince 	management
not 	to 	terminate 	employees 	similarly situated? 	You 	need 	to
provide 	facts 	to 	support your 	allegations.
For these 	reasons 	the charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there are 	any factual 	inaccuracies

Warning 	Letter
SA-CE-1883
February 25, 	1999
Page 3
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 	have 	the 	case number written on. the 	top right
hand 	corner 	of 	the 	charge 	form. 	The 	amended charge 	must 	be
served on 	the 	respondent's 	representative 	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 8, 	1999, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198 ext. 	358.
Sincerely,
Roger 	Smith
Board 	Agent
RCS:ces
Enclosure