Grossmont Union High School District (PERB 2126E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KENNETH MEREDITH,
Charging Party,
v.
GROSSMONT UNION HIGH SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-5133-E
PERB Decision No. 2126
August 13, 2010
Appearances: Paul Gomez, Representative, for Kenneth Meredith; Atkinson, Andelson, Loya,
Ruud & Romo by William A. Diedrich, Attorney, for Grossmont Union High School District.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by Kenneth Meredith (Meredith) to the proposed
decision (attached)
of
an administrative law judge (ALJ). 	The complaint issued by
PERB's
Office
of
the General Counsel alleged that the Grossmont Union High School District
(District) violated the Educational Employment Relations Act (EERA)1 by giving Meredith a
negative performance evaluation and demoting him because he: 	(1) sent a letter to his
principal accusing the principal
of
violating the applicable collective bargaining agreement;
and (2) requested union representation during a meeting with his manager, his principal, and
the District's director
of
human resources.
Before the scheduled hearing in this matter, the Board issued a decision in arelated
case involving Meredith, Service Employees International Union, Local 221 (Meredith) (2008)
1 EERA is codified at Government Code section 3540 et seq. 	Unless otherwise
indicated, all statutory references are to the Government Code.

PERB Decision No. 1982, which arose out of the same incidents alleged in this case. In its
decision, the Board held that Meredith failed to state a prima facie case that his union caused
or attempted to cause the District to reject him on probation. Relying largely on the Board's
findings in that decision, the District moved to dismiss the complaint. 2 The ALJ granted the
District's motion.
The Board has reviewed the proposed decision and the record in light of Meredith's
exceptions, the District's response, and the relevant law. Based on this review, we find the
proposed decision to be well-reasoned, adequately supported by the record and in accordance
with applicable law. Accordingly, the Board adopts the proposed decision as the decision of the
Board itself,3 as supplemented by the discussion below.
DISCUSSION
Meredith excepts to the ALJ's conclusion that the District decided to reject him on
probation before he engaged in the protected activities of writing a letter to Principal Timothy
Schwuchow (Schwuchow) and requesting union representation during a meeting with
Schwuchow and other District representatives. Meredith asserts that an "honorable agreement"
2 In City of Porterville (2007) PERB Decision No. 1905-M, the Board, citing the
"doctrines of res judicata and collateral estoppel," gave preclusive effect to a Board agent's
dismissal of identical allegations in a separate unfair practice charge. However, a Board
agent's review of a charge to determine whether it establishes a prima facie case of an unfair
practice does not meet the "actually litigated" requirement for collateral estoppel. To be
"actually litigated" for purposes of collateral estoppel, an issue must have been decided based
on the presentation of evidence at a hearing. (Groves v. Peterson (2002) 100 Cal.App.4th 659,
668.) The Board has consistently held that the function of a Board agent's investigation is not
to resolve the merits of the case because such resolution is reserved for PERB's hearing
process. (Golden Plains Unified School District (2002) PERB Decision No. 1489; Eastside
Union School District (1984) PERB Decision No. 466.) We therefore overrule City of
Porterville, supra, to the extent it granted preclusive effect to a dismissal of an unfair practice
charge based solely on a Board agent's charge investigation.
3 On page 4 of the attached proposed decision, the date in the fourth line of the only full
paragraph on that page should read "July 18, 2007," not "July 17, 2008."
2

existed between himself and Schwuchow whereby Schwuchow would defer his decision
regarding Meredith's rejection on probation until August 20, 2007, when Meredith was
scheduled to complete a particular project. Meredith contends the ALJ erred by not allowing
him to present evidence of the agreement at a hearing.
We find the ALJ's conclusion is supported by the record, particularly Meredith's
July 29, 2007 letter to Schwuchow, which was not part of the record in Service Employees
International Union, Local 221 (Meredith), supra. The subject line of the letter states:
"Declining Offer to Resign as Head Custodian (Meeting: July 20, 2007)." The letter contends
Schwuchow did not give Meredith "time to consider your alternatives to either: a. voluntarily
resign from my current position as Head Custodian (Probationary) and go back to my previous
position as Custodian, orb. accept a poor evaluation and/or termination from Facilities
Manager, Ms. Tree Torres." The letter closes:
I am, therefore, declining to accept your offer to resign
voluntarily. Any further actions upon your part are at your
discretion and will determine my appropriate response/sin the
future. 	If you would like to discuss this letter, feel free to contact
me.
(Emphasis in original.)
It is apparent from Meredith's letter that during a meeting on July 20, 2007,
Schwuchow offered Meredith the option to resign in lieu of being rejected on probation as
head custodian. If, as Meredith claims, this meeting resulted in an agreement to defer
Schwuchow's decision on his probation until August 20, 2007, Meredith would not have
needed to reject the resignation offer on July 29. Thus, Meredith's own evidence supports the
s conclusions that no deferral agreement existed and that Schwuchow had decided to
3

reject Meredith on probation by July 20, 2007 at the latest. Because this decision was made
prior to Meredith's protected activity, the ALJ properly dismissed the complaint.4
Meredith also asserts for the first
titn:e
in his exceptions that the District retaliated
against him for filing the instant charge by sending a cease and desist letter to his
representative, Paul Gomez (Gomez). The letter alleged that Gomez entered the Granite Hills
High School campus without proper authorization and served a subpoena for the PERB hearing
in this matter on a District employee. Meredith sent a copy
of
the letter and Gomez's response
to the ALJ and served copies on the District. However, the complaint was never amended to
add this allegation and the ALJ did not address the issue in his proposed decision.
Consequently, this allegation is not properly before the Board. (See PERB Reg. 32300(a)(1)5
[requiring exceptions to address "specific issues
of
procedure, fact, law or rationale" contained
in the proposed decision]; Tahoe-Truckee Unified School District (1988) PERB Decision
No. 668 [Board may not review "issues neither set forth in the complaint nor fully litigated
after proper notice and an opportunity to defend"].)
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5133-E are
hereby DISMISSED.
Members McKeag and Wesley joined in this Decision.
Although the ALJ quoted extensively from the Board's decision, he did not appear to
give Service Employees International Union, Local 221 (Meredith), supra, preclusive effect.
Rather, the ALJ addressed the allegations in the complaint in light of the Board's findings in
the prior decision while leaving open the possibility that the allegations, including some not
made in Meredith's related charge, could establish a prima facie case. We thus conclude that
the ALJ's analysis is consistent with our partial overruling of City
of
Porterville, supra.
5 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
4

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
KENNETH MEREDITH,
Charging Party,
V.
GROSSMONT UNION HIGH SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5133-E
PROPOSED DECISION
( 4/8/09)
Appearances: Paul Gomez for Kenneth Meredith; Atkinson, Andelson, Loya, Ruud & Romo
by Todd M. Robbins, Attorney, for Grossmont Union High School District.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an employee alleges that a school district unlawfully retaliated against him.
The district denies the allegation.
Kenneth Meredith (Meredith) filed an unfair practice charge against the Grossmont
Union High School District (District) on November 12, 2007. The General Counsel of the
Public Employment Relations Board (PERB) issued a complaint against the Districton
June 20, 2008. The District filed an answer to the complaint on July 23, 2008.
PERB held an informal settlement conference on July 22, 2008, but the case was not
settled and was set for hearing. 	The District filed a motion to dismiss on November 1, 2008,
before the hearing was to be held. Meredith filed a response to the motion on November 13,
2008. Because the motion to dismiss appeared meritorious, I told the parties I would take the
case off calendar and issue this proposed decision.

FINDINGS OF FACT
Around the same time that Meredith filed his unfair practice charge against the District,
he also filed an unfair practice charge against his union, the Service Employees International
Union, Local
221
(SEIU), alleging in part that SEIU had caused or attempted to cause the
District to retaliate against him. 	That charge was dismissed by a PERB agent, and Meredith
appealed the dismissal to PERB itself, which issued a decision on October 24, 2008. (Service
Employees International Union, Local 221 (2008) PERB Decision No. 1982 (SEIU).
In both his charge against the District and his charge against SEIU, Meredith
characterized the allegedly retaliatory action against him as a "demotion." In its SEIU
decision, PERB stated in part, "Though the charge characterizes this action as a 'demotion,'
it is clear from the facts alleged in the charge that Meredith was rejected on probation."
Meredith was rejected on probation upon receiving an unsatisfactory performance report
for his performance as head custodian, a position to which he had been promoted subject to a
180-day probation period.
In SEIU, PERB further stated, in part:
The unfair practice charge alleged that the District demoted
Meredith in retaliation for his protected activity. It further alleged
that SEIU caused or attempted to cause the District to demote
Meredith. More specifically, the charge asserted that [SEIU's]
solicitation
of
grievances against Meredith from his staff caused the
District to demote him.
Under EERA, it is unlawful for an employee organization to cause
or attempt to cause an employer to commit an unfair practice.
(EERA sec. 3543.6(a).) A violation of this provision may only be
established by a clear showing of how and in what manner the
employee organization affirmatively acted to cause or attempt to
cause the unfair practice. (Tustin Unified School District ( 1987)
PERB Decision No. 626.) In addition, the facts must establish a
causal connection between the employer's unlawful conduct and
the employee organization's behavior. (State of California
(Department of Personnel Administration) (1987) PERB Decision
No. 609-S.)
2

Thus, before examining SEIU's actions, it is necessary to determine
whether the charge established an unfair practice by the District.
The charge alleged that the District rejected Meredith on probation
in retaliation for his engagement in protected activity. To
demonstrate retaliation in violation
of
EERA section 3543.5(a),
Meredith must show that: 	(1) he exercised rights under EERA;
(2) the District had knowledge
of
the exercise
of
those rights; and
(3) the District imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered
with, restrained, or coerced Meredith because
of
the exercise
of
those rights. iliovato Unified School District (1982) PERB
Decision No. 210 iliovato ); 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 iliorth Sacramento School District (1982) PERB
Decision No. 264 iliorth Sacramento)), 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 (Trustees
of
the
California State University (1990) PERB Decision No. 805-H);
(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 (McFarland Unified School District (1990)
PERB Decision No. 786); (6) employer animosity towards union
activists (Cupertino Union Elementary School District (1986) PERB
Decision No. 572); or (7) any other facts that might demonstrate the
employer's unlawful motive. (Novato; North Sacramento.)
The only protected activity alleged in the charge is Meredith's
request for union representation on August
1,
2007. 	(San Diego
Unified School District (1991) PERB Decision No. 885.)
Meredith's rejection on probation that same day constituted adverse
action. (Madera County Office of Education ( 1999) PERB Decision
No. 1334; State of California (Department of Industrial Relations)
(1998) PERB Decision No. 1299-S.) While the adverse action
certainly occurred close in time to Meredith's protected activity, the
3

charge fails to establish that the District rejected Meredith because
of
his request for union representation. On July 17, 200[7],
[Principal] Schwuchow gave Meredith the option to resign in lieu
of
receiving a poor performance review. This indicates that the
District had already decided as
of
this date to reject him on
probation. Accordingly, the rejection was not the result
of
Meredith's later request for union representation. 	[Emphasis in
original; fn. omitted.]
PERB therefore affirmed the dismissal
of
Meredith's allegation that SEIU caused or attempted
to cause the District to retaliate against Meredith.
In the present case, Meredith alleges that the protected activity for which the District
retaliated against him included sending a letter to his principal on July 29, 2007, as well as
requesting union representation on August
1,
2007. Because both
of
these activities occurred
after July 17, 2008, when the principal gave Meredith the option to resign as head custodian in
lieu
of
receiving a poor performance review and rejection on probation, it would appear from
PERB's SEIU
decision that neither activity could have caused the ultimate rejection. This was
the basis
of
the District's motion to dismiss in the present case.
In his response to the motion to dismiss, Meredith stated in part:
7/18/07:
Meredith telephoned beforehand to meet with Principal
Schwuchow asking for advice about his professional relationship
with his immediate supervisor, Torres; specifically about her
unprofessional, inappropriate, contradicting & contrariness,
emotional behavior. In this meeting, Schwuchow called in
Torres, and all talked about the work to be done.	
It
was then that
Schwuchow asked Meredith to consider resigning or else receive
a poor evaluation. Not understanding his options and rights, he
said that he would resign
if
he did not complete his projects by
8/20/07. Schwuchow was satisfied, praised him saying, "That's
what I like to hear", and the meeting ended.
It
should be noted
that Meredith believes that union representation is denied when
discipline is brought up as an incidental topic, 	an otherwise
non-disciplinary meeting. Where discipline becomes intertwined,
in the control
of
an employer, and where the dynamics of human
behavior are such that an employee is uncomfortable, intimidated,
or unaware of their ability to exercise their rights.
4

In contrast to the District's Notice
of
Motion and Motion to
Dismiss; Memorandum
of
Points and Authorities in Support
Thereof
that the "District already decided as
of
the date
of
Charging Party's alleged protected activity to reject Charging
Party from probation and issue him a less than positive
performance evaluation", a Demotion and Evaluation
determination had not yet been made prior to Meredith's
alleged protected activity--as evidenced by the verbal
agreement above. [Emphasis in the original.]
Subsequent to Meredith's response to the motion to dismiss, PERB denied a request to
reconsider its SEIU decision. (Service Employees International Union, Local 221 (2009)
PERB Decision No. l 982a.)
ISSUE
Did the District unlawfully retaliate against Meredith?
CONCLUSIONS OF LAW
In the portion
of
PERB
's
SEIU decision quoted above, PERB clearly described the
burden on Meredith to allege facts establishing that the District retaliated against him for his
protected activity. 	PERB also clearly determined that Meredith did not meet that burden
because the alleged facts indicated that the District had decided to take action againstMeredith
as
of
July 17, 2007, before Meredith engaged in any alleged protected activity.
In his response to the motion to dismiss in this case, Meredith alleges facts notalleged
in the SEIU case: that on July 18, 2007, Meredith told the District "that he would resign
if
he
did not complete his projects by 8/20/07" and that "Principal Schwuchow was satisfied, praised
him saying 'That's what I like to hear."' Meredith characterizes this as a "verbal agreement."
In considering the motion to dismiss, I accept as true Meredith's new factual allegations
about what he said and what Principal Schwuchow said. (San Juan Unified School District
5

(1977) EERB 1 Decision No. 12.) I do not, however, accept the legal conclusion that this
conversation created a "verbal agreement" to delay action against Meredith until August 20,
2007, when Meredith would either complete his projects or resign.
"That's what I like to hear" may be language
of
praise (sincere or insincere), but
it
is
not language
of
agreement. Principal Schwuchow did not say that he consented to Meredith's
proposed delay. 2 Principal Schwuchow did not say that Meredith had any options other than
the two previously offered: to resign or to receive a poor performance review (and be rejected
on probation).
I conclude that the new factual allegations in this case do not change PERB's
conclusion in the SEIU case that the District decided to take action against Meredith before his
alleged protected activity, not because
of
his protected activity. Accordingly, Meredith's
allegations
of
retaliation in the present case must be dismissed.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-5133-E,
Kenneth Meredith
v.
Grossmont Union High School District, are hereby DISMISSED.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. The Board's address is:
Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB).
2 Civil Code section 1565 states in part, "The consent of the parties to a contract must
be
...
[c]ommunicated by each to the other." Under the Civil Code, a "contract" includes an
oral agreement not to do a certain thing (Civil Code §§ 1549, 1622).
6

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-,7960
In accordance with PERB regulations, the statement
of
exceptions should identify
by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit.
8,
sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code
section 11020(a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code
of
Regulations, title 8, section 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, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
7
Th;mas
J.
Allen
Administrative Law Judge
0