State of California (Department of Developmental Services) (PERB 0990S)

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STATE OF CALIFORNIA

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PUBLIC EMPLOYMENT RELATIONS BOARD

BRENT JACKSON,
Charging Party, Case No. LA-CE-260-S
Vv. PERB Decision No. 990-S

STATE OF CALIFORNIA (DEPARTMENT OF

April 20, 1993
DEVELOPMENTAL SERVICES),

Respondent.

Appearances: Brent Jackson, on his own behalf; Paul M. Starkey,
Labor Relations Counsel for State of California (Department of
Developmental Services).

Before Hesse, Caffrey, and Cariyle, Members.
DECISION
HESSE, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Brent Jackson
(Jackson) of a Board agent’s dismissal (attached) of his charge
that the State of California, Department of Developmental
Services (State) violated section 3519(c) of the Ralph C. Dills
Act (Dills Act) .!
PERB Regulation 32635(a),? which governs review of
dismissals, states, in pertinent part:
The appeal shall:
(1) State the specific issues of procedure,

fact, law or rationale to which the appeal is
taken;

The Dills Act is codified at Government Code section 3512
et seq.

°"PERB regulations are codified at California Code of
Regulations, title 8, section 31001 et seq.

(2) Identify the page or part of the
dismissal to which each appeal is taken;
(3 ) 	State the grounds for each issue stated.
Jackson timely filed a single page "Notice of Appeal. " 	The
State filed a letter of opposition to the appeal. 	This appeal
does not comply with PERB Regulation 32635, as it does not
identify which portions of the dismissal are challenged, nor does
it indicate the grounds for the appeal.
Jackson filed a "Notice of Appeal Supplemental Addendum"
(Addendum) dated February 20, 1993, that was received by PERB on
February 23, 1993. The Addendum was not timely filed as it
should have been filed in the PERB Headquarters Office on or
before February 8, 1993. 	Jackson did not file a request for an
extension of time to file the appeal with the Board in accordance
with PERB Regulation 32132 (a) .
PERB Regulation section 32136 provides:
A late filing may be excused in the
discretion of the Board for good cause only.
A late filing which has been excused becomes
a timely filing under these regulations.
Jackson has not demonstrated good cause for the Board to
consider his amended appeal that was filed 15 days after the due
date for filing an appeal. 	The Board has held that compliance
with regulations governing appeals is required to afford the
respondent and the Board an adequate opportunity to address the
issues raised, and noncompliance will warrant dismissal of the
appeal . 	(See Oakland Education Association (Baker) (1990) PERB
Decision No. 827, p. 2; United Teachers - Los Angeles (Abboud, et
2

al.) (1989) PERB Decision No. 738, p. 2.) The Board, therefore,
rejects the appeal.
ORDER
The unfair practice charge in Case No. LA-CE-260-S is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Caffrey and Carlyle joined in this Decision.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blud., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
January 14, 1993
Brent Jackson
406 N. Maryland Ave.
Glendale, California 91206-2237
Re : 	Brent Jackson v. State of California (Department of
Developmental Services), Unfair Practice Charge No.
LA-CE-260-S, DISMISSAL OF CHARGE AND REFUSAL TO ISSUE
COMPLAINT
Dear Mr. Jackson:
In the above referenced charge which was filed on April 13, 1992,
you allege, in part, that the State of California (Department of
Developmental Services) , hereafter the State, unlawfully
discriminated/retaliated against you, and that the State failed
to meet and confer with your union prior to implementing a
unilateral policy change. This conduct is alleged to violate
Government Code section 3519 (c) of the Ralph C. Dills Act (Dills
Act) . On November 12, 1992, this case was placed in abeyance
over the issue of post-contract expiration deferral to the
contractual grievance procedure. 	This case was taken out of
abeyance on December 31, 1992.
I indicated to you, in my attached letter dated December 31,
1992, 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
January 7, 1993, the charge would be dismissed.
You called me on January 6, 1993 and left a message requesting a
two (2) week extension. 	We traded several messages but finally
spoke on January 7, 1993. I suggested that instead of amending
the charge, you provide me verbally, at this time, with the
I note that your charge cites other sections of the
Government Code and the Agreement between the State and your
union, which you allege were violated as well. Although you have
not specifically alleged that Dills Act section 3519 (a) was
violated, as the facts appear to allege
discrimination/retaliation, I am treating this as an alleged
violation of Dills Act section 3519 (a) .

additional information needed pursuant to my December 31, 1992
letter. You agreed with this approach and provided the following
information.
During February and March 1992, your supervisors requested that
you, a Painter I, sign, according to their policy, the DDS DS-40
and DS-41 forms, which you contend, would obligate you to report
sexual and physical abuse at the Lanterman Developmental Center
(LDC) in Pomona, California. Your first response, in early March
1992, was a refusal to sign since you did not believe you were
required to report such conduct, as your job description was not
a licensed level of care position, i. e. , you were not a health
care practitioner. Instead, you attached as exhibits to the
forms, Penal Code section 11166 and Welfare and Institutions Code
sections 15830, et seq. , plus a two page explanatory letter.'
You believed that the state statutes preempted the Institution's
policy and that there was no legal ground to force you into this
situation (to sign) . You were willing to voluntarily (using your
discretion) comply, but forcing you to agree/sign, thus requiring
you to make reports, you felt was involuntary servitude, in
violation of the 13th Amendment to the United States
Constitution. If you later violated your agreement and failed to
report such conduct, you believed you could be criminally
prosecuted. You maintained this position with Arthur Parks,
Chief of Plant Operations I (CPO I) and Jerry Bender, CPO III.
You then appealed to Alan Maderios, the Hospital Administrator.
On or about March 17, 1992, at this level, you were given an
ultimatum in writing (for the first time) to either sign the
forms unconditionally (without your attachments) , or be suspended
for thirty (30) days.' You then, for the first time, signed the
forms as requested. 	Without your knowledge, Mr. Parks had begun
disciplinary action against you on or about March 9, 1992, for
alleged insubordination of direct order (s) to sign the forms.
The documents were typed and contained the approximate date of
March 16, 1992. On or about March 19, 1992, you were finally
served with the disciplinary documents, which indicated your
thirty (30) day suspension would commence at the conclusion of
your March 23, 1992 work shift. You attended a Skelly hearing on
March 23, 1992. In attendance were John Borne, Executive
Director of the LDC, and Ms. Nancy Irving, Personnel Officer.
Although you tried to reverse the discipline or reduce it, you
were not successful. 	You appealed and a hearing before the State
Personnel Board was scheduled for December 30, 1992. It has been
rescheduled for in or about February 1993.
You executed the forms with "signed under duress" next to
your signature and added some additional language onto the forms
which you noted in the charge.
You had refused to sign unconditionally up to this point.

One year earlier, around March 1991, your supervisors requested
that you sign a different form mandating that you submit to drug
testing. You refused to sign and appealed the matter three (3)
levels (which includes your Headquarters Office in Sacramento) .
You were unable to prevail and were required to sign. You did
sign, but you added attachments to the form, and you added words
generally to the effect that you were signing under duress. 	The
State did not take any adverse action against you for your
conduct at that time. You contend that the 1991 incident was
held against you when the more recent incident, above, occurred.
I asked you if you had any support for your assertion, but you
had none. You indicated that for both instances, all the other
painters signed the forms as requested, even though you believe
they were not happy to do so.
On January 7, 1993, you advised me that you were going to
withdraw the above charge. 	On January 13, 1993, I received your
letter indicating, in part, that you had advised me on January 7,
1993 that you were amenable to a withdrawal of the charge. Your
letter went on to ask/raise questions about a possible tolling of
the statute of limitations should you wish to file a charge
regarding this matter (containing the necessary "nexus" elements)
later. 	I called you on January 13, 1993 and indicated, in part,
that your letter did not appear to be a withdrawal. I provided
you with some information regarding Dills Act section 3514.5 (a) .
You then indicated that you would not be withdrawing this charge
and understood that I would be issuing a dismissal letter
instead.
Based on the above, the charge does not state a prima facie case.
As indicated at page two of my letter dated December 31, 1992,
the allegation that the State violated Dills Act section 3519 (c)
by failing to meet and confer with your union prior to
implementing a unilateral change, fails to state a prima facie
case. 	An individual does not have standing to raise this type of
violation. Oxnard School District (Gorcey and Tripp) (1988) PERB
Decision No. 667. 	Thus, this allegation is being dismissed.
Next, as explained on page two of my letter dated December 31,
1992, to show a reprisal/discrimination violation (Dills Act
section 3519 (a) ) , you must show that you exercised rights under
the Dills Act, that the employer had knowledge of the exercise of
those rights, that the employer imposed or threatened to impose
reprisals, and that the employer took the adverse action because
of your exercise of those rights (nexus) . Although complaining
to management is arguably protected activity, it does not appear
that you were suspended for complaining. See Pleasant Valley
School District (1988) PERB Decision No. 708 where an employee
engaged in protected activity by raising a safety complaint with
his immediate supervisor. You were suspended for your refusal to
sign the forms as directed, i.e. for your alleged insubordination
of direct order (s) to sign the forms. As indicated on page three
3

of my letter dated December 31, 1992, you have failed to clearly
and concisely demonstrate nexus (that you were suspended in
retaliation for your protected activity) . Even considering the
above additional information that you recently provided to me,
you have not demonstrated any of the factors which evidence nexus
or the employer's unlawful motive. Thus, the charge does not
state a prima facie violation of Dills Act section 3519 (a) .*
I am therefore dismissing the charge based on the facts and
reasons contained above and in my attached December 31, 1992
letter.
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
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"
I note that you have not alleged in this case that you
requested, and were denied the right to consult with a union
representative, prior to signing the documents presented to you
by your superior. In Placer Hills Union School District (1984)
PERB Decision No. 377, the Board held that an employee was
entitled to union counsel and direction on the occasions when the
employee was asked to sign for receipt of documents. Such
conduct was found to violate Government Code 3543.5 (a) by
interfering with the employee's statutory right.
4

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 	Marc S. HuringMarc S. Hurwitz
Regional Attorney
Attachment
cc: 	Paul M. Starkey, Esq. , Legal Office, Dept. of Personnel
Administration
UT

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERB
Los Angeles Regional Office
3530 Wilshire Blud., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
December 31, 1992
Brent Jackson
406 N. Maryland Ave.
Glendale, California 91206-2237
Re : 	WARNING LETTER, Unfair Practice Charge No. LA-CE-260-S,
Brent Jackson v. State of California (Department of
Developmental Services)
Dear Mr. Jackson:
In the above referenced charge which was filed on April 13, 1992,
you allege, in part, that the State of California (Department of
Developmental Services) , hereafter the State, unlawfully
discriminated/retaliated against you, and that the State failed
to meet and confer with your union prior to implementing a
unilateral policy change. This conduct is alleged to violate
Government Code section 3519 (c) On November 12, 1992, this case
was placed in abeyance over the issue of post-contract expiration
deferral to the contractual grievance procedure. 	This case is
now being taken out of abeyance.
My investigation of the charge reveals the following facts.
You pointed out to your supervisors that your Painter I
classification was not a licensed level of care job description.
You did not wish to sign the DDS DS-40 and DS-41 forms which you
contend, would obligate you to report sexual and physical abuse.
You signed the forms and put "signed under duress" next to your
signature. You also added some additional language onto the
forms which you noted in the charge. You were then suspended for
thirty (30) days from your position "for alleged insubordination
of direct order (s) to sign said forms. "
Based on the facts stated above, the charge does not state a
prima facie case for the reasons that follow. Government Code
section 3541.5 (a) (1) of the EERA states that PERB shall not
" [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. " It is unclear when you became aware
of the alleged unfair practice (unlawful retaliation/suspension) .
In fact, you have not alleged any dates for the unlawful conduct.
'I note that your charge cites other sections of the
Government Code and the Agreement between the State and your
union, which you allege were violated as well.

It is the charging party's burden, as part of the prima facie
case, to demonstrate that the charge is timely. The Regents of
the University of California (1990) PERB Decision No. 826-H.
Without facts meeting this burden, we must assume the charge is
untimely .
Next, the allegation that the State violated Dills Act section
3519 (c) by failing to meet and confer with your union prior to
implementing a unilateral policy change, fails to state a prima
facie case. 	This section involves the State's refusal or failure
to meet and confer in good faith with the exclusive
representative. There are few facts in this charge to indicate a
violation of this type. For that reason, this allegation will
not be treated in detail. Furthermore, an individual does not
have standing to raise this type of violation. Oxnard School
District (Gorcey and Tripp) (1988) PERB Decision No. 667. Thus,
this allegation is being dismissed.
Next, to demonstrate a reprisal/discrimination violation of EERA
section 3543.5 (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; 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
2

any of these factors. Although the charge arguably alleges your
protected activity (complaining to management) and an adverse
action, it does not clearly and concisely demonstrate nexus (that
you were suspended in retaliation for your protected activity) .
Thus, the charge does not state a prima facie violation of EERA
section 3543 . 5 (a) .
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 January 7, 1993, I
shall dismiss your charge. 	If you have any questions, please
call me at (213) 736-3127.
Sincerely.
Marc S. Hurwitz
Regional Attorney
Paul M. Starkey, Esq. , Dept. of Personnel Administration,
Legal Office, 1515 "S" Street, N. Bldg., Ste. 400, Sacramento,
CA 95814-7243.