State of California (Department of Parks and Recreation) (Kalko) (PERB 1031S)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
JOHN	
M.	
KALKO,
Charging
	Party,
v.
STATE 	OF 	CALIFORNIA
	(DEPARTMENT
OF
	PARKS
	AND
	RECREATION),
Respondent.
)
)
)
)
)
)
)
)
)
)
)
Case
	No.
	LA-CE-277-S
PERB
	Decision
	No.
	1031-S
January
	4, 	1994
___________________
)
Appearance: 	John
	M.
	Kalko,
	on
	his
	own
	behalf.
Before
	Blair,
	Chair; 	Caffrey
	and
	Garcia,
	Members.
DECISION
AND
	ORDER
GARCIA,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(Board) 	on
	appeal
	by 	John
	M.
	Kalko 	(Kalko)
	of
	a
Board
	agent's
	dismissal 	(attached 	hereto) 	of
	his 	unfair practice
charge. 	In
	the
	charge,
	Kalko
	alleged 	that
	the
	State
	of
California
	(Department
	of
	Parks 	and
	Recreation)
	violated 	section
3519(a) 	of
	the
	Ralph
	C.
	Dills
	Act
	(Dills
	Act
	or
	Act)
1	
by
discriminating
	and
	taking
	reprisal
	actions 	against
	Kalka
	because
1
The
	Dills
	Act
	is
	codified
	at
	Government
	Code
	section
	3512
et
	seq. 	Unless 	otherwise 	indicated,
	all
	statutory 	references
herein 	are 	to 	the
	Government 	Code.
	Section
	3519(a)
	provides, 	in
part 	that:
It
	shall
	be 	unlawful
	for 	the
	state 	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 	coerceemployees 	because 	of 	their 	exercise 	of 	rightsguaranteed by
	this 	chapter.

of
	his 	exercise
	of
	rights
	protected
	by
	the
	Act.
	The
	Board
	agent
dismissed
	his
	charge
	and
	refused 	to 	issue
	a
	complaint
	on
	the
grounds
	that
	Kalko
	had
	failed
	to
	state
	a
	prima
	facie
	case
	of
	a
violation
	of
	section
	3519(a).
The
	Board
	has 	reviewed
	applicable
	statutes
	and
	case 	law,
	the
warning
	and
	dismissal
	letters,
	the
	charge, 	Kalko's 	appeal
	and
	the
entire
	record
	in
	this
	case.
	The
	Board
	finds 	the
	Board
	agent's
dismissal, 	for
	failure
	to
	state
	a
	prima
	facie
	violation
	of
	the
Dills
	Act,
	to
	be
	free
	of
	prejudicial 	error
	and
	adopts
	it
	as
	the
decision
	of
	the
	Board
	itself.
The
	unfair 	practice
	charge
	in
	Case
	No.
	LA-CE-277-S
	is
	hereby
DISMISSED WITHOUT
	LEAVE
	TO
	AMEND.
Chair
	Blair
	and
	Member
	Caffrey 	joined
	in 	this
	Decision.
2

ST,,Tf
OF
CALIFORNIA	
PETE
W!LSON,
Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
--~,--
/ 	\
Sacramento
Regional Office
1
031
18th
Street,
Room 1
02
Sacramento,
CA
95814-4174
(91 6)
322-3198
August
	31,
	1993
John
.M.
	Kalko
Re:
	NOTICE 	OF
	DISMISSAL
	AND
	REFUSAL
	TO
	ISSUE
	COMPLAINT
John
	M.
	Kalko
	v.
	State
	of
	California
	(Department
	of
	Parks
and
	Recreation)
Unfair
	Practice
	Charge
	No.
	LA-CE-277-S
Dear
	Mr.
	Kalko:
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	dated
	August 	13,
	l993,
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
	prirna
	facie
	case
	or
	withdrew
	it
	prior
	to
	August
26, 	1993,
	the
	charge
	would
	be
	dismissed.
I
	have
	not 	received
	either
	an
	amended
	charge
	or
	a
	request
	for
withdrawal. 	Therefore,
	I 	am
	dismissing 	the
	charge 	based
	on
	the
facts
	and 	reasons 	contained
	in
	my
August 	13,
	1993
	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
	o.nd
	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).)

Dismissal
	Letter
LA-CE-277-8
August 	31,
	1993
Page
	2
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
	orfiled
	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
	11
served
11
	when
	personallydelivered 	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
Les 	Chisholm
Regional
	Director
Attachment
cc: 	Linda
	A. 	Mayhew

STATE
OF
CALIFORNIA
PUBLIC
EMPLOYMENT
RELATIONS BOARD
..
-...c/
..
~~~.i:...!l;_\,(.1;,
c 3 ;c~L\fo
Sacramento
Regional Office
1
031
18th
Street,
Room
102
Sacramento,
CA
95814-4174
(916)
322-3198
August 	13,
	1993
John
	M.
	Kalko
Re:
	WARNING
	LETTER
John
	M.
	Kalko
	v.
	State
	of
	California
	(Department
	of
	Parks
and
	Recreation)
Unfair
	Practice
	Charge
	No.
	LA-CE-277-S
PETE
WILSON
Govr-:rr,or
Dear
	Mr.
	Kalko:
The
	above-referenced
	unfair practice
	charge,
	filed
	in
	the
	Los
Angeles 	Regional
	Office 	of 	the 	Public
	Employment
	Relations
	Board
(PERB
	or
	Board) 	on March
	2, 	1993,
	alleges 	that
	the
	State
	of
California
	(Department
	of 	Parks
	and
	Recreation)
	(hereafter,
Employer
	or
	DPR)
	violated
	Government
	Code
	section
	3519(a)	
bydiscriminating
	and
	taking
	reprisal
	actions 	against
	John
M.
	Kalko
(Kalko
	or
	Charging
	Party) 	because
	of
	his 	exercise
	of
	rightsprotected
	by
	the
	Ralph
	C.
	Dills
	Act
	(Dills
	Act)
. 1
My
	investigation
	of
	this
	charge 	has
	revealed 	the 	following.
Kalko
	is
	employed
	as
	a
	State
	Park 	Ranger
	I
	(Permanent
Intermittent) 	in
	DPR's 	Orange
	Coast
	District.
	His
	position
	is
included
	in 	State
	Bargaining 	Unit
	7 	-
	Protective 	Services 	and
Public 	Safety
	which
	is
	represented
	by
	the 	California
	Union
	of
Safety
	Employees
	(CAUSE).
Kalko
	has, 	since
	1985,
	filed
	several 	grievances.
	Beginning
	in
1990,
	and
	continuing 	each
	year
	thereafter,
	the
	DPR
	has
	reducedKalko's 	hours 	of
	employment 	from
	a
	range 	of
	1200-1300
	per
	year
	to
a
	range 	of
	600-750.
	On
	November 	6, 	1990,
	a
	Notice 	of 	Adverse
Action
	(5%
	salary
	reduction)
	was
	served
	on 	Kalko
	based
	on
	alleged
non-adherence
	to
	DPR
	policy
	on
	the
	wearing 	of
	Low
	Profile
	Peace
Officer 	Protective
	Equipment. 	Kalko
	grieved 	the 	adverse
	action
and
	alleged 	the
	salary 	reduction 	constituted
	a
	reprisal 	action
based
	on
	earlier protected 	activity.
	While
	the 	salary 	reduction
·
was
	rescinded,
	DPR
	refused 	to
	acknowledge
	that 	the 	supervisor
	had
acted 	inappropriately 	or
	engaged
	in 	reprisals 	against
	Kalko.
CAUSE
	declined 	to 	take
	this
	grievance 	to 	arbitration.
On
	various 	occasions, 	including 	in
	Dece1uJ_;e1.. 	1-::,:::;;
l;
	0cc..1u2ry
	a1:;_u
May
	1991, 	co-workers 	reported 	to
	Kalko
	that
	DPR
	managers 	and
1
The
	Dills 	Act
	is 	codified 	at
	Government 	Code
	section 	35l2ec 	seq. 	All 	statutory 	references 	herein 	are 	to 	the 	Goverrunent
Code 	unless 	otherwise 	specified.

Warning
	Letter
LA-CE-277-S
August 	13,
	1993
Page
	2
supervisors
	had
	been
	heard
	to
	say
	that
	"heads
	would
	roll,
11
Kalko's
	hours
	would
	be
	"zeroed 	out"
	or
	similar
	comments
	to
	the
effect 	that
	the
	department
	intended 	to
	"get"
	Kalko
	if
	he
continued
	to
	file
	grievances.
On
	or
	about 	January
	2,
	1992,
	information 	concerning
	the
	grievance
filed
	by
	Kalka
	over
	the
	1990
	adverse
	action,
	specifically
information
	raised
	by
	Kalka
	in 	his
	grievance 	concerning
	alleged
illegal 	activities
	by
	DPR
	Lifeguards,
	was
	shared
	by
	Kalko's
supervisor
	with
	other
	DPR
	employees
	who
	had
	no
	"need
	to
	know"
information
	from
	the 	grievance.
	Kalka
	alleged
	that 	this
disclosure
	of
	confidential
	information
	was
	engaged
	in
	as
	a
reprisal
	for
	filing
	the
	earlier
	grievance
	and
	caused
	fellow
employees
	to 	believe
	he 	had
	caused
	a
	curtailment 	of
	their 	rights
to
	hold
	parties
	within
	park
	grounds.
	Kalka
	filed
	a
	grievance
concerning 	the
	alleged 	disclosure
	of
	confidential
	grievance
information
	on
	January
	26, 	1992,
	alleging
	a
	violation
	of
	the
	"No
Reprisals"
	article
	of
	the
	CAUSE
	contract.
	This
	grievance
	was
denied
	at
	each
	step;
	DPR
	noted
	in
	its
	response
	that
	no
	contract
was
	in 	effect 	in
	Unit	
7	
but
	still
	responded
	to 	the 	substance 	of
the 	grievance.
2	
Kalka
	received
	written notice
	on
	September
	6,
1992
	that
	CAUSE
	had
	declined 	to 	take 	the 	grievance 	to
arbitration.
Discussion
This 	charge
	alleges 	three 	unfair 	practices
	by
	the
	Employer:
	the
reprisal
	in
	the
	form
	of
	a
	salary
	reduction
	imposed
	in
	November
1990;
	the 	reduction 	of
	hours 	beginning
	in
	1990
	and
	continuing 	in
1993;
	and
	the 	disclosure, 	in
	January
	1992,
	of
	confidentialinformation
	from
	the 	grievance
	filed
	in
	1990.
PERE,
	pursuant 	to 	section
	3514.S(a) 	of 	the
	Dills
	Act,
	lacks
jurisdiction
	to 	issue
	a
	complaint 	concerning
	any
	alleged
	unfairpractices
	occurring
	more
	than
	six
	months
	prior 	to 	the
	filing
	of
the 	charge.
Charging
	Party's
	first
	allegation,
	concerning
	reprisals 	allegedly
imposed
	in
	November 	1990,
	is
	untimely
	and 	must 	be 	dismissed.
The
	second
	allegation,
	concerning 	reductions 	in 	hours 	imposed
	in
1990 	and
	other 	years,
	is 	also 	untimely.
	The
	charge 	alleges
	on
its
	face 	that
	Charging 	Party
	had 	reason 	to 	believe 	as 	early 	asJanuary 	1991
	that
	Kalko'
s
	numbers 	of
	ho1-11-s 	assi.gr1:=d
	':
11
.\
2 7
-~e
	iI~·~"!
reduced 	as
	a
	reprisal 	for 	earlier 	protected 	activity.
	The
	charge
2
The
	prior 	Unit
	7
	contract 	had 	expired 	on
	July 	30, 	1991, 	and
there 	was 	no 	new 	agreement 	in 	effect 	until 	July 	l,
	1992.

Warning
	Letter
LA-CE-277-S
August 	13,
	1993
Page
	3
does
	not
	provide
	any
	information,
	e.g.,
	the
	filing
	of
	grievances
over
	the 	reductions
	in
	hours,
	which
	might
	toll
	the
	time
	limitsrelative
	to
	the
	filing
	of
	this
	charge.
	The
	charge
	also
	does
	not
contain
	specific 	allegations
	which
	provide
	a
	basis 	for
	concluding
that
	the
	numbers
	of 	hours
	have
	been
	further
	reduced
	within
	the
six
months
	prior
	to
	the
	filing
	of
	this
	charge. 	This
	allegation
must
	also,
	therefore,
	be
	dismissed.
The
	third
	allegation,
	apparently 	timely
	filed,
	concerns
	the
Employer's
	disclosure 	to
	co-workers 	of
	information
	from
	an
earlier
	grievance 	of
	Charging
	Party.
	To
	demonstrate
	a
	violation
of
	section
	3519(a),
	the
	charging
	party
	must
	show
	that:
	(1)
	the
employee
	exercised
	rights
	under
	the
	Dills
	Act;
	(2)
	the
	employerhad
	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
	employee
	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;
	Department
	of
	Developmental
	Services
(1982)
	PERB
	Decision
	No.
	228-S;
	California 	State
	University
(Sacramento)
	(1982)
	PERB
	Decision
	No.
	211-H.)
Prima
	facie
	evidence
	of
	some
	adverse
	action
	is
	also 	required
	to
support
	a
	claim 	of
	discrimination 	or 	reprisal
	under
	this
	Novato
standard.
	(Palo
	Verde
	Unified
	School
	District
	(1988)
	PERB
Decision
	No.
	688.)
	In
	determining 	whether prima
	facie 	evidence
of
	an
	adverse
	action
	is
	established, 	the
	Board
	uses
	an
	objective
test
	and
	will
	not
	rely
	upon
	the 	subjective 	reactions
	of 	the
employee.
	(Id.) 	In
	a
	later
	decision, 	the
	Board
	furtherexplained
	that
The
	test
	which must 	be
	satisfied 	is
	notwhether 	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'semployment. 	(Newark
	Unified
	School
	District
(1991)
	PERB
	Decision
	No.
	864; 	emphasis 	added;
footnote 	omitted.)
The
	instant 	allegation
	does 	not 	meet
	the 	standard 	establishedunder 	Novato, 	and
	Pa_l9
	Verde 	Unified_
S_c;:_hq9J
	_____________________
	______________
	andNewark
	Unified 	School
	District,
	suDra.
	The
	charge 	does 	not
allege 	facts 	to 	establish
	how
	(using 	an 	objective 	test) 	the
action 	of 	the 	Employer
	in 	disclosing 	information 	from 	a
	grievance
to 	the 	grievant's 	co-workers 	caused 	harm 	or 	had 	"impact 	on
	theemployee's 	employment." 	However 	underst.andable 	the 	Charging

Warning 	Letter
LA-CE-277-S
August 	13, 	1993
Page 	4
Party's 	subjective 	reaction 	to 	this 	incident, 	the 	facts 	alleged
here 	do 	not 	bring 	the 	conduct 	within 	the 	ambit 	of 	a 	violation 	of
the 	Dills 	Act 	and 	the 	allegation must 	be 	dismissed.
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 	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 	be 	served 	on 	the 	respondent 	and 	the 	original
proof 	of 	service 	must 	be 	filed 	with 	PERE. 	If 	I 	do 	not 	receive 	an
amended 	charge 	or 	withdrawal 	from 	you 	before 	August 	26, 	1993, 	I
shall 	dismiss 	your 	charge. 	If 	you 	have 	any 	questions, 	please
call 	me 	at 	(916) 	322-3198.
Sincerely,
Les 	Chisholm
Regional 	Director