Los Banos Unified School District (PERB 1828E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

GEORGE GARY CASPER,
Charging Party, Case No. SA-CE-2301-E
v. PERB Decision No. 1828

LOS BANOS UNIFIED SCHOOL DISTRICT, March 9, 2006

Respondent.

Appearances: George Gary Casper, on his own behalf; Atkinson, Andelson, Loya, Rudd &
Romo by Todd A. Goluba, Attorney, for Los Banos Unified Schaol District.

Before Duncan, Chairman; Shek and Neuwald, Members.
DECISION

NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by George Gary Casper (Casper) of a Board agent’s dismissal
(attached) of his unfair practice charge. The unfair practice charge alleges that los Banos
Unified School District (District) violated the Educational Employment Relations Act (EERA)'
by withholding Casper’s wages while he was involved in a grievance with the District and by
knowingly providing an exclusive representative inaccurate information.

The Board has reviewed the unfair practice charge, the amended unfair practice charge
and attached documents, the warning and dismissal letters, Casper’s appeal and the District’s
response. The Board finds the Board agent’s dismissal to be free of prejudicial error and

adopts it as a decision of the Board itself.

cece WSR Y Loe

DISCUSSION
On appeal, Casper presents new charge allegations and new supporting evidence that
were not previously presented and that were known to Casper when he filed his unfair practice
charge and amended unfair practice charge. 	PERB Regulation2 32635(b) precludes a charging
party from raising new allegations or new supporting evidence on appeal without good cause.
Casper has failed to demonstrate good cause for the presentation of new allegations and/or
supporting evidence on appeal, and nothing in the documents filed related to the appeal
indicates good cause.
ORDER
The unfair practice charge in Case No. SA-CE-2301-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member Shek joined in this Decision.
~ERB regulations are codified at California Code of Regulations, title 8,
section 31001, ct seq.
2

---c---
ARNOl,ll SCHWARZENEGGER Gowrnor
sacninwnto Regional Otficc
1031 18th Slrect
Sacr~mcnto, CA 95814-4 l 74
Telephone: (916) J27-8387
f'ax: (9!6) 327-6J77
July 13, 2005
George Gary Casper
620 Harlequin Drive
Los llanos, CA 93635
Re: 	.George Gary Casner v. Los Banos Unified School Di.§trict
Unfair Practice Charge No. SA-CE-2301-E
DISMISSAL LETTER
Dear Mr. Casper:
--•·-----"-· 	C ·- - .-· ·----
The abovc-rcfcrcncc<l unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 6, 2005. You allege that the Los Banos Unified School
District (District) violated the Educational Employment Relations Act (EERA)1 by refusing to
pay you back wages owed unless you waive your grievance rights.
I indicated to you in my attached letter <lated April 25, 2005, that the abovc-rcforenced charge
did not slate 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 facic case or withdrew it prior to May 5, 2005, the charge would be dismissed.
You were granted additional time to provide further information and on May l 0, 2005, an
amended charge was received. The amended charge was filed on your behalf by RolfTallberg,
Executive Director of Merced/Mariposa Uniscrv. 	I pointed out to Mr. Tallberg that the
amended charge did not correct the deficiencies as spelled out in my April 25, 2005 letter. Ile
asked that no furter action be taken on the charge as the parties were attempting to reach some
accord on the amount of salary owed for the 2003-2004 school year. The District concurred
and the charge was placed in abeyance.
When contacted recently, Mr. Tallberg advised that there was no agreement reached. The
amended charge does establish that the District provided you and Mr. Tallberg, an October 6,
2004 release and settlement of your claims, thus arguably the charge raises a timely claim.
I fowevcr, you have not established what protected EERA right you engaged in when you
requested back wages for yourself. Therefore, I am dismissing the charge based on the facts
and reasons contained in this and my April 25, 2005 letter.
r·- ----- --- ---- --
EERA is codified at Government Code section 3540 ct seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CE-2301-E
July 13, 2005
Page 2
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. 	(Regulations 32l35(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 (ct); sec 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
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 \Vriting and filed with the Board at the previously noted address. A request for an extension
---~---- -- 	-----·····-
PER n's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-2301-E
July 13, 2005
Page 3
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
ByO~J.~RogeS11lith
Labor Relations Specialist
Attachment
cc; Rolf Tall berg
Todd A. Goluba

PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento l{cgionu! Olhcc
1031 18lh Street
Sacramcnlo, CA 95814-4 !7-!
Telephone: (916) 327·8387
Fa,: (916) 327-6377
April 25, 2005
George Gary Casper
620 Harlequin Drive
Los Banos, CA 93635
Re: 	~h:~orgc Ci-ary Casper v. J,os Banos Unified School Qj_fil.rict
Unfair Practice Charge No. SA-CE-2301-F
WARNING LETTER
Dear Mr. Casper:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERJ3 or Board) on April 6, 2005. You allege that the Los Banos Unified School
District (District) violated the Educational Employment Relations Act (EERA)1 by refusing to
pay you back wages owed unless you waive your grievance rights.
In my telephone calls with you, I was able to ascertain that you were a teacher with the District
until the Summer of 2004. 	You advised me that there was a dispute over some monies owed
you by the District and you had contacted Rolf Talberg, a staff representative of California
Teachers Association. 	I pointed out to you that in order for PERB to further process this
charge, I needed specific dates and a clearer understanding of what the District had done to
violate the EERA. 	You indicated that you would -contact your lmvyer and make sure this was
taken care of.
I have yet to hear from your lawyer and for that reason I am writing to you. 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 Aericulture) ( 1994) PERB Decision No. l 071-S,
citing !Jnitcd Tcac.!1ers-Los Angeles (Ragsdalctl (1992) PERO Decision No. 944.) Mere legal
conclusions are not sufficient to state a prima facic case. (Ibid.; Charter Oak Unified School
District (1991) PERB Decision No, 873.)
As we discussed you must file an unfair practice charge within six months of the alleged illegal
act occutTing. 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) PERO Decision No. 1177.) The statute oflimitations is an
--- -·-- 1 EERA i~ ~~dificd at Government Code section 3540 ct seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.pcrb.ca.gov.

SA-CE-2301-li
April ?.'1, ?.005
Page 2
affirmative defense which has been raised by the respondent in this case. (Long Hcacl:!,
ComHli!-I!_iJy College Dis!rict (2003) PERB Decision No. 1564.) Therefore, charging party now
bears the hurdcn of demonstrating that the charge is timely filed. (cf. Tehachapi Unif}cd
SchoolJ?istrict (1993) PERI3 Decision No. 1024; State_.Qf California (Dcp__nr!!n~_nl of
Jnsurancc) (1997) PERB Decision No. 1197-S.)
The test for whether a respondent has interfered with the rights of employees under the EERA
does not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. The Board described the standard as follows:
[l]n order to establish a prima facic case of unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under EERA. (State ofCalifornia_(Department ofDcvelopm~ntal
Services) (1983) PER13 Decision No. 344-S, citing Carlsbad
!)nifi,cd School District (1979) PERB Decision No. 89; _licrvi_Qf
Employees lntQ.Ina!iQ_nal Union, Local 99 (Kimmett) (1979)
PER13 Decision No. l 06.)
Under the above-described test, a violation may only be found if FERA provides the claimed
rights. 	In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a
finding of coercion does not require evidence that the employee actually felt threatened or
intimidated or was in fact discouraged from participating in protected activity.
The right to your payment of back wages is not a right guaranteed by EERA hut rather through
any collective bargaining agreement that might exist between the District and California
Teachers Association. 	That is unless you arc asserting that the District is retaliating against
you for your having engaged in some form of union activity.
To demonstrate a violation ofEERA section 3543.S(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; all(l (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because o_f the exercise of those rights. 	(N_Qvato Unified School Di~_tx.i.9J (1982)
VERB Decision No. 210 (Novato); .r.mlsbad Unified School District (1979) PERH 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 Sacra1nento 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
(StQ.tC of California (Dc_pn.rtmen! of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the

SA-CE-2301-E
April ?.5, 2005
Page 3
employee (Santa Clara Unified School J2i~trict (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State ofCalifornjn
(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
ElcmcntaI)_' School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. 	(Novato; North SacranJ..9Jlt9 School
I2i§tric.1, supra, PERB 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 im__Q_act on the employee's
empl.9ymenl. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
You have not provided the "who, what, when where or how," nor have you provided the details
necessary to demonstrate an interference or discrimination violation.
For these reasons the charge, as presently written, does not state a prima facic case. 	If there
arc any factual inaccuracies in this letter or additional facts that would correct the defidencies
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
reprcscntat,!ye and the original proof of service must be filed with PERl3. If I do not receive an
amended charge or withdrawal from you before May 5, 2005, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
(52uL:,;z
RogCr Smith
I,abor Relations Specialist
cc: Mark Northway