Los Angeles Community College District (PERB 1667E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GEORGE
V.
MRVICHIN,
Charging Party,
V.
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-4464-E
PERB Decision No.
	166
7
July
	27,
	2004
Appearances: 	George
V.
Mrvichin, on his own behalf; Martine Magana, Associate General
Counsel, for Los Angeles Community College District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on appeal by George V. Mrvinchin (Mrvinchin) from a Board agent's dismissal (attached)
of
his unfair practice charge. The charge alleged that the Los Angeles Community College
District (District) violated the Educational Employment Relations Act (EERA) 1 by forcing
Mrvinchin to retire.
The Board has reviewed the entire record in this matter, including the original,
amended, and second amended unfair practice charge, the warning and dismissal letters,
Mrvinchin's appeal and the District's response.2 The Board finds the warning and dismissal
letters to be free
of
prejudicial error and adopts them as the decision
of
the Board itself.
1EERA is codified at Government Code section 3540, et seq.
2Mrvinchin filed several documents with the Board after completion of the record.
These documents were not considered by the Board as Mrvinchin has not demonstrated good

ORDER
The unfair practice charge in Case No. LA-CE-4464-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
cause for their late submission. (PERB Reg. 32136; PERB regs. are codified at Cal. Code
Regs., tit.8, sec. 31001, et seq.)
2

STATE OF CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
September 30, 2003
George Mrvichin
1512 N. Vanderwell
Valinda, CA 917 44
Re: 	George Mrvichin v. Los Angeles Community College District
Unfair Practice Charge No. LA-CE-4464-E
DISMISSAL LETTER
Dear Mr. Mrvichin:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 23, 2002. George Mrvichin alleges that the Los Angeles
Community College District (District) violated the Educational Employment Relations Act
(EERA) 1 by discriminating against him.
I indicated to you in my attached letter dated July 17, 2003, 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 July 24, 2003, the charge would be dismissed.
I received an amended charge from you on July 25 and a second amended charge on July 28,
2003.
In your second amended charge, you refer to a grievance you filed against the District that was
denied in May 2002. You contend that denial of the grievance "is a form of interference and
restraint" and state that the grievance procedure between LACCD and AFT Guild 1521 does
not provide for denial of a grievance. However, a review of that grievance procedure (Article
28) merely provides (Step One) for a college administrator to communicate his/her decision in
writing. The grievance procedure contains no language which prohibits denial of a grievance.
Additionally, I am aware of no legal authority that makes the denial of a grievance a per se act
of illegal inference under EERA.
You also cont~nd that since you filed PERB charges against College President Ernest Moreno
between 1992 and 1995, he has taken reprisals against you and given rewards to other
employees for creating a hostile workplace for you. Few specifics are provided although these
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4464-E
September 30, 2003
Page 2
instances appear to be outside PERB' s six month statutory limitation period. EERA section
3541.S(a)(l) prohibits PERB from issuing a complaint with respect to "any charge based upon
an alleged unfair practice occurring more than six months prior to the filing
of
the charge."
The limitations period begins to run once the charging party knows, or should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.) The charging party bears the burden
of
demonstrating that the charge is
timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No. 1024; State
of
California (Department oflnsurance) (1997) PERB Decision No. 1197-S.)
The information provided regarding these earlier events does not demonstrate that the notice
of
termination, the subject
of
this charge, was motivated by your earlier protected activity.
You also make a general allegation that Moreno has not followed the requirements
of
"Employee Agreement at Article 18, which states in part that prior to placing any materials
into Personnel File (Which is the only file which may be used by the employer.) that the
employee must be given an opportunity to sign the material and have attached any response
they may wish to address." This allegation was also made in your original charge. However,
no facts are provided that demonstrate how, when, or in what manner Article
18
was violated.
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
Thus, the charging party's burden includes alleging the "who, what, when, where and how"
of
an unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.) Without specific facts
demonstrating how and when Article 18 was violated such an allegation does not provide
indicia that the District was improperly motivated to issue the notice
of
termination.
You present other discussion
of
"additional reprisals" and other matters. However, your
amended charge does not provide sufficient facts to demonstrate that the District was
improperly motivated when it issued the notice
of
termination.
As stated in my prior letter, although the timing
of
the employer's adverse action in close
temporal proximity to the employee's protected conduct is an important factor (North
Sacramento School District (1982) PERB Decision No. 264), 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 (State of California (Department of
Transportation) (1984) PERB Decision No. 459-S); (2) the employer's departure from
established procedures and standards when dealing with the employee (Santa Clara Unified
School District (1979) PERB Decision No. 104.); (3) the employer's inconsistent or
contradictory justifications for its actions (State of California (Department of Parks and
Recreation) (1983) PERB Decision No. 328-S; (4) the employer's cursory investigation of the

LA-CE-4464-E
September 30, 2003
Page 3
(
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; (6) employer
animosity towards union activists (Cupertino Union Elementary School District) (1986) PERB
Decision No. 572.); or (7) any other facts which might demonstrate the employer's unlawful
motive. (Novato; North Sacramento School District, supra, PERB Decision No. 264.)
Without the necessary evidence of indicia regarding employer motivation, I must dismiss the
charge based on the facts and reasons contained herein and in my July 17 letter.
Right to Appeal
Pursuant to PERB Regulations,2 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. (Regulation 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.
(Regulations 32135(a) and 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 Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 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
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. (Regulation 32635(b).)
Service
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-4464-E
September 30, 2003
Page 4
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 Regulation 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. (Regulation 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. (Regulation 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
General Counsel
By 	-~h-hJBernard McMonigle
Regional Attorney
Attachment
cc: Martine Magafia, Associate General Counsel

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
July 17, 2003
George Mrvichin
1512 N. Vanderwell
Valinda, CA 917 44
Re: 	George Mrvichin v. Los Angeles Community College District
Unfair Practice Charge No. LA-CE-4464-E
WARNING LETTER
Dear Mr. Mrvichin:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 23, 2002. George Mrvichin alleges that the Los Angeles
Community College District violated the Educational Employment Relations Act (EERA)1 by
discriminating against him.
Your charge states that you were "forced to retire" by the actions of District President Ernest
Moreno. He issued you a Notice of Recommended Dismissal dated May 30, 2002, from your
classified position as an athletic trainer2. Instead, you retired from that position and sought a
disability retirement that was denied. You contend that Moreno's action is part of a "long
history" of "interference/restraint" which includes the issuance of two PERB complaints (the
last settled in July 2001).
You objected to "a number of matters improperly placed into" the disciplinary matter. You
also object that Moreno was the Skelly hearing officer and upheld his earlier proposed
discipline.
You filed discrimination complaints with the District Office of Diversity Programs and Dean
of Students in summer 2002. You were not satisfied with the results.
Your charge states that you are "still under doctors care for illness/injury caused by Moreno
and others." It also states that you "continue to suffer additional reprisals concerning
"retirement and health benefits". You also mention "continued reprisals as a Certificated
Instructor" in a matter over which you filed a grievance; however, few details are provided.
1 BERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 You filed a grievance, denied by Moreno, alleging that the dismissal violated Article
18 of the collective bargaining agreement between LACCD and the AFT. Article 18 states the
types of records that may be place in an official personnel file. The exact nature of the
grievance is not clear from the charge.

LA-CE-4464-E
July 17, 2003
Page 2
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
Thus, the charging party's burden includes alleging the "who, what, when, where and how" of
an unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
With respect to "additional reprisals" beyond the June 4, 2002, notice of termination you have
provide insufficient facts to determine whether there may be any cognizable violations of
BERA. Two of the allegations involve matters that appear to not be covered by the BERA.
You allege that you suffered work-related injuries and health problems; such matters are
generally remedied under the workers' compensation law. You also allege a reprisal
concerning retiree benefits; retirees are not covered employees under BERA. San Leandro
Unified School District (1984) PERB Decision No. 450
It does appear that you believe that the June 4 notice was retaliation for your prior protected
activity. After you received this notice, you unsuccessfully sought a disability retirement.
You now seek to return to service as an athletic trainer. However, you have not provided
sufficient facts to establish that the termination notice was retaliatory.
To demonstrate a violation of BERA section 3543.S(a), the charging party must show that:
(1) the employee exercised rights under BERA; (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 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), 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
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California .
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (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; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which

LA-CE-4464-E
July 17, 2003
Page 3
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERE Decision No. 264.)
Evidence
of
adverse action is also required to support a claim
of
discrimination or reprisal
under the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No.
689.)
In
determining whether such evidence is established, the Board uses an objective test
and will not rely upon the subjective reactions
of
the employee. (Ibid.)
In
a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action
to
be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. [Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
You have established that you engaged in protected activity; you filed PERB charges and
grievances. However, you have not demonstrated "nexus"; your charge does not present
sufficient facts to demonstrate that the notice
of
termination was motivated
by
the protected
activity.
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 that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared
on
a
standard PERE 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
comer
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 July 24, 2003, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Bernard McMonigle
Regional Attorney
BMC