State of California (Department of Parks and Recreation) (PERB 1125S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOHN KALKO AND DAVID RUGER, )
)

Charging Parties, ) Case No. S-CE-667-S
)
Vv. ) PERB Decision No. 1125-S
)
STATE OF CALIFORNIA (DEPARTMENT ) November 30, 1995

OF PARKS AND RECREATION) ,

)
Respondent. )
}

Appearances: John Kalko and David Ruger, on their own behalf;
State of California (Department of Personnel Administration) by
Linda A. Mayhew, Labor Relations Counsel, for State of California
(Department of Parks and Recreation) .
Before Caffrey, Chairman; Carlyle and Garcia, Members.
DECISION

CARLYLE, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by John Kalko
(Kalko), David Ruger (Ruger) and the State of California
(Department of Parks and Recreation) (DPR or State) to a PERB
administrative law judge's (ALJ) proposed decision (attached)
dismissing the unfair practice charge which alleged that the

State violated section 3519(a) of the Ralph C. Dills Act (Dills

Act).* Prior to the issuance of the proposed decision, the State

'The Dills Act is codified at Government Code section 3512
et seq. Unless otherwise noted, all statutory references herein
are to the Government Code. Section 3519 states, in pertinent
part:

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

filed an appeal 	of 	the ALJ's 	denial 	of 	its motion to dismiss 	and
defer 	to binding arbitration. 	The 	Board hereby 	consolidates
these 	two 	cases 	in this 	decision.
After review of 	the 	entire 	record, 	including 	the 	State's
motion to dismiss, 	Kalko and Ruger's 	opposition thereto, 	and the
exceptions 	filed by 	the parties, 	the 	Board hereby affirms 	the
ALJ's 	denial 	of 	the motion to dismiss 	to 	the 	extent 	consistent
with 	the 	following discussion. 	With 	regards 	to 	the proposed
decision, 	the Board 	finds 	the ALJ's 	findings 	of 	fact 	to be 	free
from prejudicial 	error. 	We are also 	in agreement with, 	and
hereby adopt, 	the 	conclusions 	of 	law set 	forth 	in the ALJ's
proposed 	decision.
PROCEDURAL 	BACKGROUND
Kalko and 	Ruger 	filed an unfair practice 	charge 	against 	DPR
in June of 1993. 	On August 31, 	1993, 	after investigation, 	the
Office 	of 	the 	General 	Counsel 	issued a 	complaint 	alleging 	that
certain 	conduct 	taken against 	Kalko and Ruger was 	an 	illegal
reprisal 	in violation of Section 3519(a) 	of 	the Dills Act.
Informal 	conferences 	failed to 	resolve 	the 	dispute.
A formal 	hearing was 	conducted on March 1, 	1994. 	DPR 	filed
a written motion to dismiss 	on March 3, 	1994 	asserting that 	PERB
lacked 	jurisdiction 	to 	issue 	the 	complaint 	because 	Kalko and
Ruger 	failed 	to 	exhaust 	the 	contractual 	grievance procedure. 	The
ALJ denied that motion on March 31, 	1994. 	The State appealed the
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
22

March 31 	denial 	and on August 	31 	the Board rejected the appeal 	of
the 	denial 	as 	untimely 	filed 	(State 	of 	California 	(Department 	of
Parks and Recreation) 	(1994) 	PERB Order No. Ad-260-S). 	However,
the 	Board 	stated 	that 	the motion 	could be 	renewed at 	a 	later
date. 	When the hearing was 	reconvened on September 8, 	1994, 	DPR
renewed 	its 	motion 	to dismiss 	and defer 	to binding arbitration.
The motion was 	again denied by 	the ALJ. 	The 	State 	filed another
appeal 	of 	the ALJ's 	order denying 	their motion 	to dismiss 	with
the 	Board 	itself. 	The 	hearing proceeded and the ALJ's 	proposed
decision 	followed. 	Kalko 	and Ruger 	filed 	exceptions 	regarding
the ALJ's 	finding of 	facts and procedural 	rulings. 	The State
filed 	exceptions 	challenging 	the ALJ's 	factual 	findings 	and
conclusions 	of 	law regarding 	PERB's 	jurisdiction.
FACTUAL 	BACKGROUND
Kalko and Ruger are both employed as 	State 	Park Ranger 	I's
at 	Crystal 	Cove State 	Park in Orange 	County. 	In July of 	1992,
Kalko 	and Ruger 	issued 	citations 	to 	two 	individuals 	at 	the park.
In August 	of 	1992, 	they met with their supervisor, 	Michael 	Eaton
(Eaton), 	a State 	Park Ranger II 	to discuss 	their handling of 	the
incident. 	Eaton 	issued 	corrective 	counseling memos 	to both
employees 	addressing 	the 	issues 	of private person arrests 	and
timeliness 	in the preparation of 	crime reports. 	As a result 	of
these 	corrective 	counseling memos, 	Kalko and Ruger 	filed a
grievance 	on August 	16, 	1992. 	They were 	represented by their
exclusive 	representative, 	the 	California Union of 	Safety
Employees 	(CAUSE).
W	
3

In 	the 	grievance, 	Kalko and Ruger 	contended that 	the
employer 	issued 	the 	counseling memos 	as 	reprisals 	against 	them
for 	"the 	filing of 	grievances 	in the past."
The grievance alleged a violation of 	the 	"no 	reprisal"
section 	of 	the 	collective bargaining agreement 	(CBA or agreement)
between CAUSE and the State.2 Section 2.6 	of 	the 	CBA reads:
The 	State and CAUSE 	shall 	not 	impose 	or
threaten to impose reprisals 	on employees, 	to
discriminate 	or 	threaten 	to 	discriminate
against 	employees, 	or otherwise 	interfere
with, 	restrain, 	or coerce employees because
of 	the 	exercise of 	their rights under the
Ralph C. 	Dills Act 	or any 	right 	given by this
Contract.
Article 	6 	of 	the 	CBA is 	the grievance and arbitration
procedure which ends 	in binding arbitration. 	Only CAUSE 	has 	the
right 	to 	submit 	a grievance 	to arbitration.
The 	grievance was processed 	in a 	timely 	fashion 	through 	the
first 	four steps 	of 	the 	grievance procedure. 	When the grievance
was denied at 	the 	fourth level 	on January 20, 	1993, 	CAUSE
notified the State 	on February 1, 	1993 	that 	it was 	exercising its
right 	to submit 	the grievance 	to arbitration. 	Section 6.13 	of
the 	agreement 	requires 	CAUSE 	to notify 	the 	State 	in writing 	that
it 	is 	requesting 	to 	jointly select 	an arbitrator within 	14 	days
of a pre-arbitration meeting. 	Section 6.13 	states, 	in part, 	"If
no 	request 	is 	forwarded, 	the grievance 	shall be deemed
withdrawn." 	On March 25, 	1993, 	CAUSE and the State discussed the
grievance 	in a pre-arbitration meeting. 	However, 	CAUSE made no
2The agreement was 	effective 	from July 1, 	1992 	through
June 30, 	1995.
4

request 	to jointly request an arbitrator. 	On April 	14, 	1993,
CAUSE 	sent 	a 	letter to 	the 	grievants 	informing 	them of 	its
decision not 	to pursue 	the matter to arbitration.
THE ALJ'S 	DENIAL OF RESPONDENT'S MOTION TO DISMISS
The ALJ 	twice 	denied 	the 	State's motion 	to 	dismiss 	and defer
to the grievance/arbitration procedure, 	based, 	in part, 	on the
State's 	refusal 	to waive procedural defenses. 	Additionally, 	the
ALJ 	stated 	that 	the 	case may give 	PERB 	an 	opportunity 	to 	refine
its 	standards 	on futility.
EMPLOYER'S 	POSITION ON MOTION
DPR 	contends 	that 	PERB 	has 	no 	jurisdiction 	to hear 	this
dispute because 	it 	must 	defer 	to 	the 	grievance machinery provided
in the CBA. 	According to 	the State, 	Kalko and Ruger may only
demonstrate 	futility by prevailing 	in an action against 	CAUSE 	for
breach of 	its 	duty of 	fair representation. 	The 	State also argues
that as a matter of public policy, 	deferral 	to the grievance
machinery 	is 	necessary to preserve 	the 	integrity of 	the
collective 	bargaining 	system.
KALKO AND RUGER'S 	POSITION
Kalko 	and Ruger 	assert 	that 	futility has 	been 	demonstrated
because 	CAUSE 	refused 	to proceed 	to 	arbitration and 	there was 	no
settlement 	of 	the 	grievance. 	Section 	6.6 	of 	the 	CBA provides
that 	only CAUSE has 	the 	right 	to move grievances 	to arbitration.
Kalko and Ruger 	requested 	that 	CAUSE 	do 	so and CAUSE 	refused.
Accordingly, 	futility has been demonstrated.
55

DISCUSSION
Section 3514.5(a) 	of the Dills Act 	states, 	in relevant part,
that 	PERB shall 	not:
Issue 	a 	complaint 	against 	conduct 	also
prohibited by 	the provisions 	of 	the 	[CBA in
effect] 	between the parties until 	the
grievance machinery of the agreement, 	if 	it
exists and covers 	the matter at 	issue, 	has
been exhausted, 	either by settlement 	or
binding 	arbitration.
In Lake 	Elsinore School 	District 	(1987) 	PERB Decision
No. 	646, 	PERB held that Section 3541.5(a) 	of the Educational
Employment Relations Act 	(EERA),3 which contains 	language
identical 	to Section 3514.5(a) 	of 	the Dills Act, 	established a
jurisdictional 	rule 	requiring 	that 	a 	charge be 	dismissed and
deferred 	if: 	(1) 	the grievance machinery of 	the agreement 	covers
the matter at 	issue and 	culminates 	in binding arbitration; 	and
(2) 	the 	conduct 	complained of 	in the unfair practice 	charge 	is
prohibited by 	the provisions 	of 	the 	agreement 	between 	the
parties.
These 	standards are met with respect 	to this 	case. 	First,
the 	grievance machinery 	of 	the 	agreement 	covers 	the 	dispute
raised by 	the 	unfair practice 	charge 	and 	culminates 	in binding
arbitration. 	Second, 	the 	conduct 	complained of 	in this 	charge,
that 	Kalko and Ruger were 	discriminated against 	because 	of 	their
protected activity, 	is 	arguably prohibited by Section 2.6 	of 	the
CBA.
3EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
6

However, 	Section 3514.5(a) 	of 	the Dills Act also states:
. 	. 	. 	when the charging party demonstrates
that 	resort 	to 	the 	contract 	grievance
procedure would be 	futile, 	exhaustion shall
not be 	necessary.
In State 	of 	California 	(Department 	of Developmental
Services) 	(1985) 	PERB Order No. 	Ad-145-S, 	the Board dismissed the
charge 	of 	an 	employee who had not 	requested union assistance 	in
taking a 	reprisal 	grievance 	to arbitration. 	The Board
interpreted 	futility under 	those 	facts 	as 	requiring 	a 	showing
that 	the 	union has 	committed 	itself 	to 	a position 	in 	conflict
with the 	interests 	of 	the grievant, 	that 	the union acted to
further the 	employer's aims, 	or that 	the union condoned the
employer's 	alleged 	illegal 	act.
In State of 	California 	(Department 	of 	Corrections) 	(1986)
PERB Decision No. 	561-S, 	the Board again applied this 	rule 	to
dismiss 	a 	complaint 	alleging 	illegal 	employer discrimination by 	a
State 	employee 	who 	had not 	sought 	to pursue 	the matter 	through
the 	contractual 	grievance procedure 	to arbitration. 	Thus, 	it 	is
established 	that 	an employee may not 	bypass 	the procedures 	set
forth 	in 	the 	CBA.
PERB 	has 	also 	found 	that 	a union's voluntary abandonment 	of
a grievance 	does 	not 	constitute 	exhaustion 	of 	the 	grievance
procedure or 	futility. 	(Eureka City School District 	(1988) 	PERB
Decision No. 	702 	(Eureka).) 	In Eureka. 	the union abandoned its
own grievance 	and pursued an unfair practice 	charge 	over 	the 	same
conduct. 	The union was unable 	to demonstrate 	futility because 	it
77

had voluntarily withdrawn 	the 	grievance 	three 	days 	before 	a
scheduled 	arbitration 	hearing.
In this 	case, 	Kalko and Ruger did not 	seek to bypass 	the
contractual 	grievance procedure, 	nor did they voluntarily
withdraw 	from this procedure, 	nor did they 	fail 	to 	timely 	file 	to
proceed with 	this 	procedure 	at 	every 	step 	or level 	within 	their
control. 	CAUSE 	refused 	to 	take 	Kalko and Ruger's 	grievance 	to
arbitration. 	CAUSE 	is not 	the 	charging party before 	PERB, 	nor
the grievant 	in the grievance process.
Refusal 	to defer to 	the 	grievance procedure 	in this 	case 	is
consistent 	with both 	the 	established practice 	of 	the National
Labor Relations 	Board 	(NLRB) 	and also with the 	clear language of
the Dills Act. 	In United Technologies Corp. 	(1984) 	268 NLRB 557
[115 	LRRM 1049], 	the NLRB determined that 	it would apply the
doctrine 	of 	deferral 	to a 	case 	of 	employer reprisal 	for protected
activity. 	However, 	that decision makes 	clear that 	such charges
are 	not 	to be 	deferred where 	the dispute 	is 	not 	promptly 	resolved
"by amicable 	settlement 	in the 	grievance procedure 	or 	submitted
promptly 	to arbitration" 	because 	of 	action or 	inaction of 	either
the 	employer or 	the union. 	(Accord Whirlpool 	Corporation 	(1975)
216 	NLRB 	183 	[88 	LRRM 1329] 	[no deferral where 	the union failed
to 	take 	the 	case 	to arbitration].)
The 	clear intent 	of 	Section 3514.5(a) 	is 	that 	this Board
defers 	to 	the 	contractual 	resolution of 	disputes where 	such 	is
available, 	and falls within the parameters 	of 	that 	section. 	Also
clear 	is 	the 	Legislature's 	intent 	that 	when such resolution 	is
8

not available, 	and resort 	to it would be 	futile, 	PERB 	is 	to 	issue
a 	complaint 	and 	resolve 	the matter.
In 	this 	case, 	Kalko and Ruger properly pursued 	their
allegations 	through the grievance procedure and, 	through no 	fault
of 	their own, 	have no mechanism available 	for resolution of 	the
dispute. 	Deferral 	to arbitration would be an empty act 	because
CAUSE has 	already indicated it will 	not 	present 	the 	case 	to an
arbitrator. 	Thus, 	Kalko and Ruger have demonstrated that 	they
have 	fully pursued 	the 	grievance procedure 	available 	to 	them;
further pursuit 	would be 	futile 	and deferral 	is 	not 	appropriate
in this 	case because 	there 	is 	in fact 	nothing to defer to.
Indeed, 	given the facts 	in this case, 	deferral 	is tantamount
to 	leaving the grievants, 	Kalko and Ruger, 	with no 	forum to be
heard 	even 	once 	on 	the merits 	of 	their action 	since 	the 	evidence
in 	this 	case demonstrates 	that 	arbitration 	is 	not 	an alternative.
To defer 	to a procedure 	that 	is 	unavailable as 	stated 	in 	the
conclusion of 	the dissenting opinion is highly perplexing, 	if not
misleading.
PERB has 	not 	had before 	it 	in any prior cases 	a situation
where 	the 	charging parties 	utilized 	the 	grievance procedure but
could not 	complete 	it 	through no 	fault 	of 	their own and then came
to 	PERB 	to 	seek 	redress 	against 	their employer 	for violation of
the Dills Act 	as 	alleged 	in their grievance. 	In all prior 	cases
before 	PERB, 	the 	charging party either sought 	to bypass 	the
grievance procedure 	altogether, 	or utilized 	said procedure 	but
could not 	complete 	it because 	the 	charging party was 	at 	fault,
99

either by missing 	a 	filing 	deadline 	or by withdrawing 	its 	own
grievance.
The 	dissent's 	heavy 	reliance upon a 	contract 	negotiation
theory 	is 	not 	relevant, 	and appears 	to be designed 	to 	camouflage
a unique view and interpretation as 	a means 	to an end. 	This 	is
---not 	a 	contract 	negotiation case. 	Kalko and Ruger are 	two
individuals 	claiming a Dills 	Act violation by 	their 	state
employer.
The 	dissent 	fails 	to 	recognize 	that 	PERB 	is 	a quasi-judicial
agency 	that 	does 	not 	possess 	broad quasi-legislative 	powers.
PERB's 	statutes, 	read in a manner 	consistent with 	court 	standards
on deferral 	and 	futility, 	define when 	remedies 	are available 	or
unavailable. 	This 	Board does 	not possess 	the power to make
policy based 	on 	speculation and must 	operate within 	the 	limits
granted by 	statute 	and 	court 	decisions.
The 	dissent 	concludes 	that 	futility has 	not 	been 	shown
because none 	of 	three 	standards 	has been met. 	The 	first 	two
standards 	enumerated are 	not 	relevant 	since 	they paraphrase
current 	law developed 	in 	response 	to 	those who would bypass 	the
grievance 	and arbitration procedure 	and 	seek 	PERB 	jurisdiction
without utilizing 	said procedure at 	all, 	or by 	failing 	to
complete 	it as 	a result 	of 	their own fault.
The 	third standard, 	however, 	is what 	the difference between
the majority and the dissent 	is 	all 	about. 	Whereas 	the majority
finds 	futility 	in this 	case because 	said procedure was 	utilized
in a 	timely 	fashion and 	cannot 	be 	completed 	through no 	fault 	of
10

Kalko and Ruger, 	the dissent would not 	so 	find, 	creating a new
standard 	and procedure 	in which 	Kalko 	and Ruger and union members
in similar circumstances 	in the 	future must prove 	that 	their
union 	"did not 	exercise 	in good 	faith 	its 	discretion under the
contractual 	grievance procedure 	and 	PERB precedent 	to pursue 	or
not 	pursue 	their grievance 	to arbitration."
In other words, 	under the dissent's view, 	if 	the charging
parties 	(union members) 	utilize 	the grievance procedure but
cannot 	complete 	it 	through no 	fault 	of 	their own, 	they must 	then
file 	two 	charges with PERB. 	The 	first 	one 	is against 	the 	state
employer 	for 	the 	gravamen 	contained 	in 	the 	grievance 	(this 	charge
is 	filed 	to prevent 	a statute 	of 	limitations problem and 	is 	held
by PERB 	in abeyance). 	The 	second one 	is 	against 	the 	charging
parties' 	own union alleging a violation of 	their union's 	duty of
fair 	representation 	for 	failing 	to 	take 	their grievance 	to
arbitration.
Assuming 	that 	many months 	later 	the 	charging parties 	in
question ultimately prevail 	against 	their union and 	PERB
concludes 	that 	such a duty of 	fair representation was violated,
the 	charging parties will 	have 	then demonstrated 	futility. 	They
can 	then have 	their 	charge 	against 	the 	state 	employer 	taken 	out
of 	abeyance and 	can then begin the whole process 	all 	over again.
Unfortunately 	for the 	charging parties 	in question, 	the
immediate 	legal 	position of 	the 	state 	employer upon PERB 	finding
such a violation will most 	likely be 	that 	said violation 	is 	prima
facie 	evidence 	of manipulation between 	the 	charging parties 	and
11

their union to 	forum shop as 	feared by the 	dissent 	and, 	as 	such,
the 	charging parties 	should not 	benefit 	from such deceit.
Of 	course, 	if 	the charging parties 	fail 	in their attempt 	to
prove a union violation, 	then their 	charge 	against 	the 	state
employer 	is 	unceremoniously dismissed, 	because under the
dissent's 	view 	the 	charging parties 	have 	not proved 	futility.
Section 3514.5(a) 	of 	the Dills Act 	statutorily creates 	an
exception 	to having 	to 	complete 	the 	contract 	grievance procedure
if 	futility can be demonstrated. 	Obviously, 	this 	is not 	an
exception which 	is 	utilized by the 	state 	employer. 	Further,
unless 	the 	state 	employer announces 	by word 	or deed 	that 	it 	will
not agree 	to arbitrate anything, 	this 	is not an exception which
is utilized by 	the union.4
Therefore, 	this 	statutory exception has as 	its main
beneficiary the union member. 	Meeting 	the 	test 	of 	futility
should not be 	easy or automatic. 	However, 	the position held by
the 	dissent 	would 	create 	a process 	so 	formidable 	and 	counter-
productive 	to union 	stability as 	to 	render 	this 	statutory
exception virtually unattainable 	once 	the 	grievance 	procedure 	has
been 	initiated but 	cannot 	be 	completed 	through no 	fault 	of 	the
union member.
4All 	collective 	bargaining 	agreements 	entered 	into 	between
the 	state 	employer and the union provide 	that 	only the union, 	and
not 	the 	employee, 	can decide whether or not 	to 	take a grievance
to arbitration.
12

ORDER
The motion to dismiss 	and defer 	is 	hereby DENIED. 	The
complaint and unfair practice 	charge 	in Case No. 	S-CE-667-S 	are
hereby 	DISMISSED.
Member Garcia 	joined in this 	Decision.
Chairman Caffrey's dissent begins 	on page 	14.
13

CAFFREY, 	Chairman, 	dissenting: 	John Kalko 	(Kalko) 	and David
Ruger 	(Ruger) 	have 	failed to demonstrate 	in this 	case 	that 	resort
to 	the 	contractual 	grievance procedure would be 	futile 	within 	the
meaning of 	section 3514.5(a) 	of 	the Ralph C. 	Dills Act 	(Dills
Act). 	Therefore, 	the Public Employment Relations Board 	(PERB or
Board) 	is 	without 	jurisdiction 	to 	consider Kalko and Ruger's
unfair practice 	charge, 	and I 	would reverse 	the administrative
law judge's 	(ALJ) 	denial 	of 	the State 	of 	California 	(Department
of 	Parks 	and Recreation) 	(State) 	motion to dismiss and defer this
matter 	to 	the 	contractual 	grievance 	and arbitration procedure.
The Dills Act 	describes 	as 	its 	primary purpose 	in
section 	3512 	"providing a 	reasonable method of 	resolving
disputes 	. 	. 	. 	between the state and public employee
organizations." 	Dills Act 	section 3515 	gives 	employees 	the 	right
to 	select 	an employee 	organization 	to 	represent 	them in 	their
employment 	relations with the 	state 	employer. 	Section 3515.5
provides 	that 	once 	an employee 	organization 	is 	recognized as 	the
exclusive 	representative 	of 	an appropriate bargaining unit, 	only
that 	employee 	organization has 	the 	right 	to 	represent 	the
bargaining unit 	in employment 	relations with the 	employer. 	The
state 	employer and 	the 	exclusive 	representative 	are 	required 	to
meet and confer in good faith regarding wages, 	hours, 	and other
terms 	and conditions 	of 	employment. 	(See Dills Act
sections 3517, 	3519 and 3519.5 (c).)
The U.S. 	Supreme Court 	in Ford Motor Co. 	v. 	Huffman 	(1953)
345 U.S. 	330 	[31 LRRM 2548, 	2551] 	(Ford Motor Co.) 	addressed the
14

authority of 	an 	exclusive 	representative 	to 	negotiate 	in good
faith 	on behalf 	of 	its bargaining unit members:
Any authority 	to 	negotiate 	derives 	its
principal 	strength 	from a delegation 	to 	the
negotiators 	of 	a discretion to make 	such
concessions and accept 	such advantages as, 	in
the 	light 	of all 	relevant 	considerations,
they believe will 	best 	serve 	the 	interests 	of
the parties 	represented. 	A major
responsibility of 	negotiators 	is 	to weigh the
relative 	advantages 	and disadvantages 	of
differing proposals. 	. 	. 	. 	Inevitably
differences 	arise 	in 	the manner and degree 	to
which 	the 	terms 	of 	any negotiated agreement
affect 	individual 	employees 	and 	classes 	of
employees. 	The mere existence of 	such
differences 	does 	not make 	them invalid. 	The
complete 	satisfaction of 	all 	who are
represented 	is 	hardly 	to be 	expected. 	A wide
range 	of 	reasonableness 	must be 	allowed a
statutory 	bargaining 	representative 	in
serving the unit 	it 	represents, 	subject
always 	to 	complete 	good 	faith and honesty 	of
purpose 	in the 	exercise 	of 	its discretion.
Thus, 	the discretion to make 	concessions 	and accept 	advantages 	in
order to 	serve 	the 	interests 	of 	the employees 	represented, 	is 	the
principal 	strength 	of 	the 	exclusive 	representative's 	authority.
The 	exercise 	of 	this 	discretion includes 	the authority 	to
negotiate 	a 	contract 	provision 	governing 	the 	dispute 	resolution
process which the parties have agreed to utilize; 	that 	is, 	a
grievance 	and arbitration procedure.
In Vaca v. 	Sipes 	(1967) 	386 U.S. 	171, 	190 	[64 LRRM 2369]
(Vaca), 	the U.S. 	Supreme Court addressed the necessity of
requiring 	adherence 	to 	a 	contractual 	grievance 	and 	arbitration
procedure 	which provides 	the 	exclusive 	representative with 	the
authority 	to 	determine 	whether 	a 	grievance 	should proceed 	to
arbitration:
15

If 	the 	individual 	employee 	could 	compel
arbitration of his 	grievance 	regardless 	of
its merit, 	the 	settlement machinery provided
by 	the 	contract 	would be 	substantially
undermined, 	thus 	destroying the 	employer's
confidence 	in 	the union's 	authority and
returning 	the 	individual 	grievant 	to 	the
vagaries 	of 	independent 	and unsystematic
negotiation. 	Moreover, 	under such a rule, 	a
significantly 	greater number 	of 	grievances
would proceed to arbitration. 	[Fn. 	omitted.]
This 	would greatly 	increase 	the 	cost 	of 	the
grievance 	machinery and 	could 	so 	overburden
the arbitration process 	as 	to prevent 	it 	from
functioning successfully. 	[Id. 	at p. 	2377.]
-
It 	is 	clear 	from these Supreme Court 	decisions 	that 	the exclusive
representative 	has 	the authority 	to 	negotiate 	a 	contractual
process 	for 	resolving employee disputes 	with the 	employer, 	which
the exclusive 	representative, 	and not 	the 	individual 	employee,
may decide how to utilize 	in any particular 	case. 	Moreover,
allowing 	individual 	employees 	to make 	such a decision may
undermine 	the purposes 	of 	collective negotiations.
Consistent with the Court's 	guidance 	in Ford Motor Co. 	and
Vaca. 	PERB 	has 	consistently held 	that 	an exclusive 	representative
is 	accorded 	considerable 	discretion 	in 	the 	negotiations 	process
to obtain 	terms 	and 	conditions 	of 	employment which are 	in the
best 	interests 	of 	the bargaining unit members 	it 	represents.
(American Federation of 	State. 	County and Municipal 	Employees,
Council 	10 	(Alvarez) 	(1993) 	PERB Decision No. 	984-H.) 	In fact,
the 	Board has 	held 	that 	this 	discretion 	includes 	the 	authority 	to
agree 	to 	contract 	provisions 	which adversely 	impact 	certain
employees, 	provided that 	there 	is a rational basis 	for the
16

exclusive representative's action. 	(Mt. 	Diablo Education
Association 	(DeFrates) 	(1984) 	PERB Decision No. 	422.)
Under the Dills Act, 	once a tentative agreement has been
negotiated by 	the 	exclusive 	representative 	and 	the 	state
employer, 	employees 	typically have 	the 	opportunity to either
ratify or reject 	the agreement. 	The agreement 	is 	also 	submitted
jointly by 	the 	state 	employer 	and 	the 	exclusive 	representative 	to
the 	California Legislature 	for ratification. 	Upon ratification
the 	state employer and the exclusive 	representative, 	and the
represented employees 	within the bargaining unit, 	are bound by
the terms of 	the 	collective bargaining agreement 	(CBA).
Individual 	employees 	are not permitted to 	repudiate 	the 	terms 	of
the 	agreement, 	or 	to bargain directly with the 	employer 	in an
attempt 	to 	achieve more 	favorable 	employment 	rights 	and/or 	terms
and 	conditions 	of 	employment. 	(Oxnard School 	District 	(1988)
PERB Decision No. 	667.)
•
The Dills Act provides 	any employee, 	employee organization
or 	employer with 	the 	right 	to 	file 	an unfair practice 	charge,
subject 	to 	two 	specific 	statutory limitations. 	Dills Act
section 3514.5(a) 	provides, 	in pertinent part, 	that the Board
shall not:
(1) 	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; 	(2) 	issue a complaint
against 	conduct 	also prohibited by 	the
provisions 	of 	the agreement 	between the
parties until 	the 	grievance machinery of 	the
agreement, 	if 	it 	exists and covers 	the matter
at 	issue, 	has been exhausted, 	either by
settlement 	or binding 	arbitration.
17

The 	first 	statutory 	limitation of 	PERB's 	jurisdiction over
alleged unfair practices 	is 	a procedural 	or 	timeliness
limitation. 	In Lake Elsinore School District 	(1987) 	PERB
Decision No. 	646 	(Lake Elsinore), 	the Board ruled that the second
statutory limitation set 	out 	in section 3541.5(a) 	of 	the
Educational 	Employment Relations Act1 also establishes 	a
nondiscretionary, 	jurisdictional 	bar 	to 	the 	Board's 	authority to
issue 	a 	complaint. 	The Board held that 	it must 	dismiss 	and defer
an unfair practice 	charge 	if: 	(1) 	grievance machinery exists
within 	the 	agreement 	between 	the 	employer and 	employee
organization which 	covers 	the matter at 	issue 	and 	culminates 	in
binding arbitration; 	and 	(2) 	the 	conduct 	complained of 	in the
unfair practice 	charge 	is 	prohibited by 	the provisions 	of 	the
agreement.
Therefore, 	the Dills Act 	specifically provides 	that 	the
right 	of 	an 	individual 	employee 	to 	file an unfair practice 	charge
at 	PERB 	is 	limited both Procedurally and by 	the 	agreement 	of 	the
state 	employer and 	the 	exclusive 	representative 	to a 	contractual
grievance 	and arbitration procedure.
It 	is 	important 	to note 	that 	the Board 	in Lake 	Elsinore
expressly 	distinguished 	decisions 	of 	the 	National 	Labor Relations
Board 	(NLRB) 	in considering when PERB's 	deferral 	to a 	contractual
grievance procedure 	is 	statutorily mandated. 	The NLRB employs 	a
discretionary deferral 	policy 	for which 	there 	is 	no underlying
statutory basis. 	(Collyer Insulated Wire 	(1971) 	192 	NLRB 	837
'Dills
18
1Dills 	Act 	section 3514.5(a) 	contains 	identical 	language.

[77 	LRRM 1931].) 	The Board 	in Lake 	Elsinore 	specifically
distinguished 	PERB's 	statutory 	jurisdictional 	limitation 	from
provisions 	of 	the National 	Labor Relations Act 	(NLRA),2 noting
that 	the 	federal 	act 	expressly permits 	the NLRB 	to disregard
contractual 	grievance procedures. 	The NLRA provides 	that:
- -
The 	[NLRB] 	is 	empowered 	. . . 	to prevent any
person 	from engaging 	in any unfair 	labor
practice 	. . . . 	This 	power 	shall 	not 	be
affected by any 	other means 	of 	adjustment 	or
prevention 	that 	has 	been 	or may be
established by agreement, 	law, 	or otherwise.
(29 U.S.C, sec. 160(a), emphasis added.)
The 	Lake 	Elsinore Board stated 	that 	this 	section of 	the NLRA:
. 	. 	. 	constitutes an expression of Congress'
intention 	for 	the NLRB's 	jurisdiction 	to be
paramount 	over 	any 	system which might 	be
devised by 	the parties 	to 	settle 	their
disputes, 	including binding arbitration
pursuant 	to 	a provision under 	the 	collective
bargaining agreement. 	[Citations.]
Therefore, 	quite unlike the jurisdiction of
PERB, 	that of 	the NLRB 	is not displaced by
the presence 	of 	an arbitration provision
within the parties' 	agreement 	covering the
matter at 	issue. 	On the contrary, 	even
though a breach of 	contract 	remediable
through arbitration occurs, 	the NLRB may
still, 	if it so chooses, 	exercise its
jurisdiction under 	the NLRA to 	prosecute
conduct 	which also 	constitutes 	an unfair
labor practice. 	[Citations.]
(Id. 	at p. 	29, 	emphasis added.)
The majority's 	reliance 	on 	"the 	established practice" 	of 	the NLRB
to 	support 	its 	refusal 	to defer 	the 	instant 	charge 	ignores 	this
fundamental 	distinction. 	NLRB policies 	governing 	the 	exercise 	of
its 	discretionary 	jurisdiction 	can not 	be 	relied upon 	to 	lift 	the
2The NLRA is 	codified at 	29 U.S.C, 	section 141 et 	seq.
19

statutory bar 	to 	PERB's 	jurisdiction, 	and are not 	determinative
of 	the 	issue presented by the 	instant 	case.
It 	is undisputed that under Lake Elsinore. 	PERB's mandatory
deferral 	standard has been met 	in the 	instant 	case, 	requiring
PERB 	to defer the unfair practice 	charge 	to 	the 	contractual
grievance and arbitration procedure. 	However, 	section 3514.5(a)
of 	the Dills Act 	further provides 	that:
. 	. 	. 	when the charging party demonstrates
that 	resort 	to 	the 	contract 	grievance
procedure would be 	futile, 	exhaustion shall
not 	be 	necessary.
The 	charging parties 	here 	argue 	that 	the 	futility 	of 	resorting 	to
the 	contract 	grievance procedure has been demonstrated, 	making
exhaustion of 	that 	procedure unnecessary.
In 	the 	instant 	case, 	Kalko and Ruger 	filed a grievance
alleging 	that 	they 	received 	counseling memos 	in 	retaliation 	for
filing grievances 	in the past. 	Section 2.6 	of. the CBA prohibits
retaliation by 	the 	State 	against 	employees 	because 	of 	the
exercise 	of 	their 	rights 	under 	the Dills Act 	or 	the 	CBA.
Article 	6 	of 	the CBA sets 	out 	the grievance procedure which
culminates 	in binding arbitration. 	This provision gives 	the
exclusive 	representative, 	the California Union of Safety
Employees 	(CAUSE), 	the exclusive right to submit a grievance to
arbitration.
Kalko and Ruger's 	grievance 	advanced 	through 	four 	levels 	of
the 	grievance procedure. 	The 	grievance was 	denied at 	the 	fourth
level on January 20, 	1993. 	On February 1, 	1993, 	CAUSE notified
the 	State 	that 	it was 	exercising 	its 	right 	to submit 	the
20

grievance 	to arbitration. 	CAUSE 	and the 	State discussed the
grievance 	at 	a pre-arbitration 	settlement meeting 	on March 25,
1993. 	Section 6.13 	of the CBA requires CAUSE, 	within 14 days 	of
the pre-arbitration meeting, 	to 	"notify 	the 	State 	in writing 	that
it 	is 	requesting 	to meet with 	[the State] 	to jointly select an
arbitrator. 	If no request 	is 	forwarded, 	the grievance shall be
deemed withdrawn." 	CAUSE 	did not 	notify 	the 	State 	within 	the
14-day period that 	it 	desired to meet 	for the purpose 	of
selecting an arbitrator as 	required by 	section 	6.13. 	In an
April 	14, 	1993, 	letter to Kalko and Ruger, 	CAUSE informed them
that 	it 	had decided, 	based on the 	lack of merit 	of 	their case,
not 	to pursue 	their grievance 	to arbitration.
Based on 	these 	facts, 	Kalko and Ruger argue 	that 	futility
exists 	in 	this 	case 	because 	the 	contractual 	arbitration procedure
is unavailable 	to them due 	to CAUSE'S 	decision, 	in accordance
with the CBA, 	not 	to pursue 	their grievance to arbitration. 	They
assert, 	therefore, 	that 	they have 	the 	right 	to pursue 	their
charge at 	PERB.
The 	Board has 	previously 	considered 	circumstances 	in which
arbitration under a 	contractual 	procedure 	has 	been unavailable,
and 	the 	resulting 	exhaustion or 	futility 	of 	that 	procedure 	has
been at 	issue. 	In Eureka City School 	District 	(1988) 	PERB
Decision No. 	702 	(Eureka), 	the union withdrew its grievance three
days 	prior 	to 	the 	arbitration proceedings 	and 	filed an unfair
practice 	charge with PERB. 	The union argued that, 	since 	the
district 	refused 	to waive 	its 	procedural 	defense 	that 	the
21

grievance was 	untimely under 	the 	contractual 	procedure,
arbitration was 	unavailable 	and 	PERB 	should 	assume 	jurisdiction.
The Board disagreed and held 	that 	the 	employer's 	waiver 	or non-
waiver of 	procedural 	defenses 	to arbitration is 	irrelevant 	to
deferral 	under the 	statute. 	The Board 	concluded that:
. 	. 	. 	PERB has no legislative authority to
exercise 	its 	jurisdiction to 	issue a
complaint 	until 	or unless 	the 	grievance
process 	is 	exhausted or 	futility 	is
demonstrated, 	irrespective 	of 	respondent's
willingness 	to waive procedural 	defenses.
(Emphasis 	added.)
The 	Board has 	also 	declined 	to 	find 	futility where
arbitration 	is 	unavailable because 	the 	grievant 	has 	failed 	to
avail 	himself 	of 	the 	contractual 	grievance procedure at 	all.
(State of California 	(Department of Corrections) 	(1986) 	PERB
Decision No. 	561-S 	(Corrections).) 	However, 	where there is
evidence 	that 	an arbitrator 	lacks 	authority 	to 	resolve 	the
dispute 	under 	the 	contract 	or 	the 	integrity of 	the 	arbitration
process 	itself 	is at 	issue, 	the Board will 	find futility and
refuse 	to defer to 	the 	contractual 	grievance procedure.
(California State University 	(1984) 	PERB Decision No. 	392-H
(CSU).)
In addition, 	the Board has 	found that 	the 	exclusive
representative may 	exercise 	the 	discretion to 	refuse 	to pursue 	a
grievance 	to arbitration under 	the 	contractual 	procedure. 	In
United Teachers of Los Angeles 	(Collins) 	(19 82) 	PERB Decision
No. 	258, 	the Board held that:
A union may 	exercise 	its 	discretion 	to
determine 	how far 	to pursue 	a 	grievance 	in
22

the 	employee's behalf 	as 	long as 	it does not
arbitrarily 	ignore 	a meritorious 	grievance 	or
process 	a grievance 	in a perfunctory 	fashion.
A union 	is 	also 	not 	required 	to process 	an
employee's 	grievance 	if 	the 	chances 	for
success are minimal.
The Board has 	adopted the 	court's 	statement 	in Vaca 	of 	the
exclusive 	representative's 	discretion within 	the 	contractual
grievance 	and arbitration process. 	(Sacramento 	City Teachers
Association 	(Fanning, 	et al.) 	(19 84) 	PERB Decision No. 	42 8.) 	In
United Teachers 	of 	Los Angeles 	(Clark) 	(1990) 	PERB Decision
No. 	79 6 	(UTLA 	(Clark)), 	the Board stated:
Nor must 	a union 	take 	even a meritorious
grievance 	to arbitration. 	In determining
whether or not 	to 	take a grievance 	to
arbitration 	(or 	to 	file a grievance 	in the
first place) 	the union is 	free 	to consider
whether 	the 	grievance 	victory would 	damage
terms 	and conditions 	of 	employment 	for the
bargaining unit 	as 	a whole. 	[Citation.]
However, 	where 	the 	exclusive 	representative has 	decided not
to pursue 	an employee's 	grievance 	to arbitration 	for arbitrary,
discriminatory or other bad 	faith 	reasons 	(UTLA 	(Clark)),
including 	antagonism between 	the 	exclusive 	representative 	and 	the
employee 	(State 	of 	California 	(Department 	of 	Developmental
Services) 	(1985) 	PERB Order No. Ad-145-S), 	the Board will find
that 	the 	employee's 	resort 	to 	the 	contractual 	procedure would be
futile. 	In making 	this 	determination 	the Board will 	consider
evidence 	that 	the union 	committed 	itself 	to 	a position 	in
conflict 	with the 	employee, 	or acted to 	further 	the 	employer's
aims, 	or condoned the employer's actions. 	(Corrections.)
23

The 	Board must 	determine 	in 	this 	case whether Dills Act
section 3514.5 	mandates 	that 	individual 	employees have access 	to
either binding arbitration under a 	contractual 	procedure, 	or
PERB's process, 	in all 	grievances which also arguably constitute
unfair practices. 	If so, 	the unavailability of arbitration under
the 	contractual 	procedure here due 	to CAUSE'S 	decision,
constitutes 	a 	demonstration 	that 	resort 	to 	that 	procedure would
be 	futile within the meaning of Dills Act 	section 3514.5(a),
thereby 	reinstating 	PERB's 	jurisdiction over 	the 	dispute 	at
issue.
The majority 	concludes 	that 	employees 	do have 	a 	statutory
right 	to 	either arbitration under 	the 	contractual 	procedure 	or
PERB's 	unfair practice 	charge process 	to adjudicate 	their
disputes 	with the 	employer, 	unless 	they void that 	right by some
action of 	their own. 	Therefore, 	when arbitration under the
contractual 	grievance procedure 	is 	unavailable 	to 	employees
because 	the 	exclusive 	representative 	declines 	to 	take 	a 	grievance
to arbitration, 	further pursuit 	of 	that 	procedure would be 	futile
within the meaning of Dills Act section 3514.5(a), 	and deferral
to it 	is 	inappropriate. 	Thus, 	the majority adopts an
"arbitration unavailable 	through no 	fault 	of 	their own" 	futility
standard under which 	the 	good 	faith adherence 	to 	the 	contractual
procedure by 	the 	parties 	to 	the 	collective bargaining agreement
is 	irrelevant 	to 	the 	employee's 	statutory 	right 	to pursue a
charge against 	the 	employer 	to arbitration or at 	PERB.
24

I 	reject 	this view. 	The Dills Act provides 	no 	employee
entitlement 	to 	either binding arbitration under 	the parties'
contract 	or PERB's unfair practice 	charge process 	in all 	cases,
irrespective 	of 	the 	good 	faith application of provisions 	of 	the
parties' 	collective bargaining agreement. 	It does not provide
that 	the 	contractual 	grievance procedure must 	result 	in binding
arbitration 	of 	every employee 	grievance 	in 	order 	to bar 	PERB's
jurisdiction over the matter. 	Quite 	the 	contrary, 	the Dills Act
provides 	that 	the 	exclusive 	representative 	has 	the 	authority 	to
negotiate 	a 	contractual 	dispute 	resolution procedure 	on behalf 	of
the members of 	the bargaining unit. 	Further, 	the Dills Act
specifically provides 	that 	employee access 	to 	PERB's process may
be 	limited by 	the 	existence 	of 	such a 	contractual 	procedure.
Therefore, 	when the 	agreement 	between the 	state 	employer and
exclusive 	representative 	includes 	a 	grievance 	and 	arbitration
procedure 	to which 	PERB must 	otherwise 	defer under Dills Act
section 3514.5(a), 	futility is not demonstrated simply by the
fact 	that 	the 	good 	faith adherence 	to 	the 	contractual 	procedure
makes 	arbitration unavailable 	to 	individual 	employees 	in a
particular 	case.
There are 	several 	reasons why this 	approach 	is preferable 	to
the 	futility 	standard 	embraced by 	the majority.
First, 	it 	is 	consistent with the 	fundamental purposes 	of
collective bargaining and the Dills Act. 	Good faith, 	give-and-
take 	negotiations 	are 	the very 	essence 	of 	collective bargaining.
Collective bargaining agreements 	are 	the products 	of 	those
25

negotiations; 	they are the products of 	compromise. 	It 	is 	in this
context 	that 	the Dills Act 	states 	as 	its primary purpose,
providing 	a method 	for 	the 	state 	employer and 	employee
organizations to resolve disputes. 	Here, 	the State and CAUSE
entered 	into 	a 	collective 	bargaining 	agreement 	which 	includes 	a
grievance 	and arbitration procedure 	to which 	they agreed 	in 	the
give-and-take of 	collective negotiations. 	Accordingly, 	the
parties 	have 	agreed 	to be bound by a method 	for 	resolving
disputes 	which bars 	PERB's 	jurisdiction over matters 	which the
procedure covers, 	in accordance with Dills Act section 3514.5(a).
Among 	the 	elements 	of 	the 	procedure 	negotiated by 	the parties 	is
the provision that 	"Employees 	shall 	not 	have 	the 	right 	to move
grievances 	to arbitration without 	the approval 	of 	CAUSE." 	(CBA
Article 	6.6.) 	The union's 	authority to agree 	to 	this provision
and make 	decisions 	pursuant 	to 	it 	reinforces 	its 	status 	as
exclusive 	representative, 	and the 	employer's 	confidence 	in 	its
status, 	both of which are essential 	to successful 	collective
bargaining. 	Furthermore, 	the Dills Act 	clearly allows 	the
parties 	to agree 	to a 	contractual 	dispute 	resolution process
which bars 	PERB's 	jurisdiction 	over an 	individual 	employee's
unfair practice 	charge. 	It 	does not 	limit 	the bar to 	PERB's
jurisdiction 	to 	cases 	in which 	the 	employee grievance 	is pursued
through binding arbitration, 	or not pursued 	"through 	the 	fault"
of the employee. 	Instead, 	the Dills Act provides 	the parties
with broad authority and 	discretion 	to 	agree 	in good 	faith 	to a
26

method other 	than PERB's 	process 	for resolving disputes, 	the
primary purpose 	of 	the Dills Act.
Conversely, 	it 	is 	inconsistent with the purposes 	of
collective bargaining and 	the 	Dills 	Act 	to 	conclude 	that
individual employees must, 	in all 	cases, 	have access to either
binding arbitration 	or 	PERB 	to 	resolve 	their disputes 	with 	the
employer. 	To do 	so 	is 	to allow individual 	employees 	to
circumvent 	the 	collectively negotiated 	dispute 	resolution process
in 	circumstances 	in which 	they are 	not 	satisfied with 	the 	results
of 	the good 	faith exercise 	of 	the 	exclusive 	representative's
discretion under that process. 	Essentially, 	Kalko and Ruger seek
to 	circumvent 	the 	agreement 	by CAUSE 	and 	the 	State 	to 	CBA
Article 	6.6, 	extract 	themselves 	from the 	contractual,grievance
and arbitration procedure, 	and pursue 	an unfair practice 	charge
at 	PERB. 	Such an action undercuts 	the 	statutory authority of
both 	the 	exclusive 	representative 	and 	the 	employer 	to 	exercise
their discretion 	in good 	faith 	to 	serve 	the 	interests 	of 	those
they represent. 	The 	interests 	of 	the employer, 	the employee
organization and 	employees 	are 	served by 	securing 	the benefit 	of
consistent, 	stable 	labor relations which results 	from adherence
by 	the parties 	to 	the 	terms 	of 	a 	collectively negotiated
agreement. 	This benefit, 	which extends to the public as well, 	is
diminished 	if 	the 	terms 	of 	the 	contractual 	dispute 	resolution
process, 	agreed to and adhered to 	in good 	faith by the 	State and
CAUSE, 	can be 	so 	easily circumvented by individual 	employees.
27

Second, 	a 	finding 	that 	futility has 	not been demonstrated by
Kalko 	and Ruger 	is 	completely 	consistent 	with prior Board
decisions. 	In this 	case, 	CAUSE 	failed to notify the State within
14 	days 	of 	the pre-arbitration settlement meeting, 	that 	it was
requesting 	joint 	selection of 	an arbitrator, 	as 	required by the
contractual 	procedure. 	As noted in Eureka. 	the employer is not
required 	to waive 	its procedural 	defenses 	while 	asserting 	that
the 	contractual procedure has 	not been exhausted. 	In that 	case,
the 	Board 	specifically held 	that 	the 	unwillingness 	to waive
procedural 	defenses 	does 	not 	constitute 	exhaustion or 	futility
and does 	not 	lift 	the bar 	to 	PERB's 	jurisdiction. 	From the
standpoint 	of 	the State, 	this 	case presents 	circumstances
identical 	to those 	of 	Eureka: 	the 	exclusive representative has
failed 	to meet 	the 	contractual 	timeline 	for proceeding 	to
arbitration. 	The 	State's unwillingness 	to waive 	this procedural
defense 	does 	not 	lift 	the 	statutory bar 	to 	PERB's 	jurisdiction 	in
this case.
Further, 	PERB has never 	found a 	contract 	grievance procedure
to be 	futile where 	there has 	been no 	showing that 	that
procedure's 	integrity or authority to resolve 	the dispute 	(CSU),
or 	the good 	faith efforts 	of 	the 	exclusive 	representative
(Corrections), 	are in question. 	Instead, 	the Board has held that
the 	exclusive 	representative 	has 	the 	discretion 	in good 	faith not
to process an employee's grievance, 	and not 	to 	take 	"even a
meritorious 	grievance 	to arbitration." 	(UTLA 	(Clark).) 	In my
view, 	it 	is 	inconsistent and confusing 	for PERB 	to simultaneously
28

hold that 	the Dills Act permits 	the 	exclusive 	representative 	to
exercise 	its 	discretion 	in good 	faith pursuant 	to 	the 	contractual
grievance 	procedure 	to drop 	an 	employee 	grievance,3 and 	that 	this
same 	good 	faith decision demonstrates 	the 	futility 	of 	the
contractual 	grievance procedure under 	the Dills Act.
Third, 	dismissal and deferral 	of 	the 	instant 	case 	insures
that 	the 	provisions 	of 	a 	collective bargaining agreement 	apply 	to
the parties 	to 	that 	agreement 	consistently and equally. 	The
State 	and 	CAUSE 	agreed 	to 	a 	contractual 	dispute 	resolution
process 	which bars 	PERB's 	jurisdiction 	over disputes 	covered by
that process. 	When that process 	is 	followed in good faith, 	the
parties have 	the 	right 	to 	expect 	that 	its 	conclusion, 	at whatever
point 	it 	occurs, 	represents 	the termination of 	the process 	for
resolving 	that 	dispute. 	Unfortunately, 	under the approach
advanced here by the majority, 	the parties 	can no 	longer
consistently 	rely on 	that 	result. 	Under 	collective 	bargaining
agreements 	which 	require 	an 	exclusive 	representative's 	approval
to proceed to grievance arbitration, 	individual 	employees 	can now
opt 	for 	PERB's 	process when 	the 	exclusive 	representative
exercises 	its 	discretion 	to 	terminate 	the 	contractual 	process
prior 	to arbitration. 	The 	state 	employer 	is now faced with 	the
prospect 	of 	responding to an unfair practice 	charge 	at 	PERB based
3I 	find 	it 	unnecessary 	to 	reach the merits 	of 	the unfair
practice 	charge here. 	I note, 	however, 	that both the ALJ and the
majority 	find the 	charge 	to be without merit, 	and dismiss 	it.
Clearly, 	if 	an exclusive 	representative 	can exercise 	its
discretion 	in good 	faith not 	to pursue 	a meritorious 	grievance 	to
arbitration, 	it 	can make a good 	faith decision not 	to pursue 	a
grievance 	it 	considers 	to be without merit.
29

on 	the 	same 	allegations 	which have 	been pursued under 	the
contractual 	procedure to a point 	of 	conclusion. 	The 	state
employer 	can no 	longer assume 	that 	the 	good 	faith 	termination of
the 	contractual 	procedure 	by 	the 	exclusive 	representative
consistently 	constitutes 	the 	conclusion of 	the 	dispute 	resolution
process. 	From the exclusive 	representative's 	standpoint, 	the
knowledge 	that 	the 	good 	faith 	exercise 	of 	its 	discretion under
the 	contractual 	procedure may allow 	individual 	employees 	to
pursue disputes 	through PERB's process, 	can lead to 	inconsistent
and uneven grievance 	handling and decision making, 	depending upon
the circumstances and employees 	involved. 	Moreover, 	this 	type of
inconsistency 	and unevenness 	can ultimately 	lead 	to manipulation
and forum shopping, 	as 	individual 	employees 	and/or 	the 	exclusive
representative 	simply decide 	whether 	the 	contractual 	arbitration
procedure 	or 	PERB 	is 	the preferred 	forum for a particular
employee grievance, 	and then act 	to effectuate 	that 	result.
Finally, 	PERB's 	jurisdiction over disputes under Dills Act
section 3514.5(a) 	must be determined consistently by PERB. 	It 	is
- -
axiomatic 	that 	no party 	to 	a 	collective bargaining 	agreement
should have 	the 	unilateral 	authority 	to activate 	or deactivate
the statutory limitation on PERB's 	jurisdiction. 	Yet, 	the
majority's 	approach 	leads 	to 	that 	result 	by allowing an 	exclusive
representative 	the 	ability 	to defer an 	employee 	dispute with 	the
employer 	to 	PERB's 	jurisdiction by declining 	to 	exercise 	its
discretion under 	the 	contract 	to pursue 	the matter 	to
arbitration.
30

Returning to the 	instant 	case, 	Kalko and Ruger have not
demonstrated 	that 	the 	integrity 	of 	the 	contractual 	grievance
procedure 	is 	in question here, 	or that 	the authority to resolve
the dispute under the procedure 	is at 	issue. 	Nor have 	they
demonstrated 	that 	CAUSE 	did not 	exercise 	in good 	faith 	its
discretion under 	the 	contractual 	grievance 	procedure 	and 	PERB
precedent 	to pursue 	or not pursue 	their grievance 	to arbitration.
Therefore, 	Kalko and Ruger have not 	demonstrated that 	resort 	to
the 	contractual 	procedure would be 	futile within 	the meaning 	of
the Dills Act. 	Accordingly, 	I would dismiss and defer the unfair
practice 	charge 	to 	the 	contractual 	grievance and arbitration
procedure.
31

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
JOHN KALKO AND DAVID 	RUGER,
Charging 	Parties,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF PARKS AND RECREATION),
R e s p o n d e n t .
)
) 	Unfair Practice
Case No. 	S-CE-667-S
PROPOSED DECISION
( 1 1 / 1 8 / 9 4 )
)
)
)
)
)
)
)
)
Appearances; 	John Kalko and David Ruger, 	on their own behalf;
Linda A. 	Mayhew, 	Labor Relations Counsel, 	for State of California
(Department of Parks and Recreation).
Before W. 	Jean Thomas, 	Administrative Law Judge.
INTRODUCTION
In this 	case 	two 	state park rangers 	contend that 	they were
disciplined 	in 	retaliation 	for 	their past 	grievance 	activity 	and
complaints 	about 	alleged misconduct 	of 	co-workers. 	They assert
that 	the 	discipline, 	which 	took the 	form of 	corrective 	counseling
memos, 	was motivated by the employer's 	disparate 	treatment 	of
employees 	engaged 	in 	such activity.
The 	employer admits 	issuing the memos, 	but denies 	that 	they
constituted 	"discipline" 	or had an adverse 	impact 	on the 	rangers'
employment 	status. 	The 	employer 	further argues 	that 	its 	actions
were 	an appropriate way 	to address 	a 	specific performance
problem, 	and 	the 	same actions 	would have been taken 	irrespective
of 	the rangers' 	participation in protected activities.
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
_)

PROCEDURAL 	HISTORY
On June 28, 	1993, 	John Kalko 	(Kalko) 	and David Ruger 	(Ruger
or Charging 	Parties) 	filed an unfair practice 	charge with the
Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	against 	the
State 	of 	California 	(State) 	(Department 	of 	Parks 	and Recreation)
(DPR). 	The 	charge alleged that DPR engaged in conduct 	against
Kalko and Ruger 	that violated the Ralph C. 	Dills Act 	(Dills
Act).1
On August 31, 	1993, 	the Office of the General 	Counsel of
PERB 	issued a 	complaint 	alleging 	that 	the 	State violated 	section
3519(a)2 of the Dills Act.
The 	State answered the 	complaint 	on September 20, 	1993,
denying 	all 	material 	allegations 	of 	unfair 	conduct 	and asserting
affirmative 	defenses.
Informal 	conferences on October 19, 	November 10 	and
November 24, 	1993, 	failed to resolve the dispute.
A formal 	hearing was 	commenced before 	the 	undersigned 	on
March 31, 	1994. 	Prior to the hearing, 	the State 	filed a written
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	All 	statutory references 	herein are 	to 	the Government
Code 	unless 	otherwise 	noted.
2Section 3519 provides, 	in relevant part:
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 coerce
employees because 	of 	their exercise of 	rights
guaranteed by this chapter. 	. .. 	.
22

motion to dismiss on March 3, 	1994, 	asserting that 	PERB lacked
jurisdiction 	to 	issue 	the 	complaint 	because 	Kalko and Ruger had
failed 	to 	exhaust 	the 	contractual 	grievance procedure.3 At 	the
beginning of 	the hearing, 	the parties presented oral 	arguments 	on
the motion and the motion was 	denied. 	Thereafter, 	the hearing
proceeded and 	the 	Charging 	Parties 	concluded 	their 	case-in-chief.
The 	hearing was 	then 	recessed and 	scheduled 	to 	reconvene 	for 	the
State's 	case-in-chief 	and conclusion on June 	9, 	1994.
On April 20, 	1994, 	the State requested a continuance of the
hearing. 	The 	request was 	granted with the 	concurrence 	of 	Kalko
and Ruger and 	the 	hearing was 	rescheduled 	to 	convene 	on July 	7,
1994.
On May 20, 	1994, 	the State requested a second continuance
which was 	granted with the 	concurrence 	of 	the 	Charging 	Parties.
The matter was 	rescheduled for hearing on July 21, 	1994.
Thereafter, 	on June 22, 	1994, 	Kalko requested a continuance,
which was 	granted with the 	concurrence 	of all parties, 	and the
hearing reset 	to convene on September 8, 	1994.
On July 8, 	1994, 	the State 	filed an appeal 	of 	the March 31,
1994, 	denial 	of 	its motion to dismiss and defer to binding
arbitration and 	requested 	that 	the 	Board 	stay 	the 	hearing.
3This 	argument 	was 	grounded on the 	existence 	of 	a grievance
procedure 	in 	the 	collective bargaining 	agreement 	(Contract)
between 	the 	State 	of 	California 	and 	the 	California Union 	of
Safety Employees 	(CAUSE), 	Charging Parties' 	exclusive
representative. 	This grievance procedure 	terminates 	in 	final 	and
binding 	arbitration.
33

On August 	31, 	1994, 	the Board issued PERB Order No.
Ad-230-S, 	wherein it denied the State's appeal as untimely. 	The
Board also 	denied 	the 	State's 	request 	for a 	stay of 	the 	hearing.
Thereafter, 	on September 8, 	1994, 	the hearing was
reconvened. 	At 	the beginning of 	the hearing, 	the State 	renewed
its motion 	to dismiss and defer to binding arbitration. 	The
motion was 	again 	denied by 	the 	undersigned administrative 	law
judge.
The 	State put 	on 	its 	case-in-chief 	and all 	parties 	presented
oral 	summations 	on the 	record. 	No briefs were 	filed. 	At 	the
conclusion of 	the hearing, 	the 	case was 	submitted for proposed
decision.
FINDINGS 	OF 	FACT
Background
The parties 	stipulated, 	and it 	is 	therefore 	found, 	that
Kalko and Ruger are State 	employees 	and 	that 	the 	State 	is 	an
employer as 	those 	terms 	are 	defined by the Dills Act. 	Kalko and
Ruger are 	employed by the DPR as 	state park rangers 	(SPR) 	I's.
Kalko has been with the DPR 	for 25 	years 	and works 	on a permanent
intermittent basis. 	Ruger has worked for the DPR 19 	years 	and 	is
a 	full-time 	employee. 	Both employees 	have peace 	officer 	status.
Kalko 	and Ruger are both assigned 	to 	Crystal 	Cove 	State 	Park
(CCSP), 	located in the Orange Coast State Park District
(District), 	which is headquartered in San Clemente. 	Their duties
include patrol 	of 	the parks 	and beaches 	in CCSP. 	They coordinate
their patrol 	activities 	with 	the 	lifeguards 	assigned 	to 	the beach
44

areas. 	Some of the lifeguards are seasonal 	employees. 	Seasonal
lifeguards 	do not 	have peace 	officer status.
Michael Eaton 	(Eaton), 	a SPR II, 	has been the immediate
supervisor of both employees 	for almost 	four years. 	Ken Kramer
(Kramer), 	a lifeguard supervisor 	(LGS) 	I, 	is the first level
supervisor 	of 	the 	lifeguards 	who work with Kalko and Ruger.
Kramer and Eaton both report 	to Joseph Milligan 	(Milligan), 	a LGS
III who serves 	as 	the District's 	chief 	of visitor services.
Milligan, 	in turn, 	reports to Jack Roggenbuck 	(Roggenbuck), 	the
District 	superintendent. 	Roggenbuck has 	served 	in this 	capacity
since 1989.
Kalko 	and Ruger are members 	of 	State 	Bargaining Unit 	7
(Protective Services and Public Safety), 	which is exclusively
represented by 	CAUSE. 	The 	current 	Contract 	between 	CAUSE 	and 	the
State has an effective term from July 1, 	1992 	through June 	30,
1995.4
Protected 	Activities
The 	parties 	stipulated 	that 	Kalko and Ruger have 	engaged 	in
various 	activities 	that 	are 	"protected" 	within 	the meaning of 	the
Dills Act. 	Both Kalko and Ruger have a history with the DPR of
filing grievances 	and 	complaints 	about 	alleged 	illegal 	or
inappropriate activities 	by other DPR employees. 	Specifics 	of
relevant 	grievance/complaint 	activities 	are 	set 	forth below.
4Official 	notice 	is 	taken of 	the Contract, 	a 	copy of which
is maintained 	in the 	PERB Los Angeles Regional 	Office 	case 	files.
55

On or about November 2, 	1990, 	Kalko received a notice of
intent 	to 	take 	adverse action 	(six month's 	salary 	reduction)
against 	him based 	on his 	alleged non-adherence 	to 	a DPR policy
regarding 	the wearing of 	low profile peace 	officer protective
equipment. 	After consulting with Ruger, 	Kalko grieved the
adverse action on November 18, 	1990, 	in what he refers to as the
"gun belt" 	grievance. 	In this 	grievance he alleged that 	the
proposed 	adverse 	action was 	reprisal 	based 	on 	earlier protected
activity.
Following a 	"Skelly" 	pre-disciplinary action hearing,5 the
DPR notified Kalko by letter on November 21, 	1990, 	that 	the
adverse action had been rescinded. 	Nonetheless, 	because 	(1) 	the
letter refused 	to acknowledge 	that 	the 	supervisor had acted
inappropriately, 	and 	(2) 	stated that DPR manager, 	George Cook,
had 	concerns 	about 	Kalko's 	delay 	in 	conforming 	to 	the weapons
policy, 	Kalko refused to withdraw his 	grievance. 	The grievance
was 	pursued 	through all 	steps 	of 	the 	contractual 	grievance
procedure 	except 	arbitration.
In this 	grievance, 	Kalko asserted that 	he was being
subjected 	to 	"disparate 	treatment" 	with 	regard 	to disciplinary
actions 	imposed on employees. 	In support 	of 	this 	charge he 	cited
allegedly 	illegal 	activities 	by DPR 	lifeguards 	that 	had not 	been
addressed by management.
5Skelly v. 	State Personnel Board 	(1975) 	15 	Cal.3d 194 	[124
Cal.Rptr. 14].
66

On or about January 2, 	1992, 	Kalko became aware 	that his
allegations 	had been 	shared with 	other DPR 	employees 	who 	had 	"no
need to know" 	information about 	the grievance. 	Kalko 	filed
another grievance on January 27, 	1992, 	concerning this alleged
disclosure 	of 	confidential 	grievance 	information, 	asserting that
the disclosure 	of 	information was 	a 	form of 	reprisal 	against 	him
for having 	filed 	earlier grievances.
In an attempt 	to resolve 	the grievance, 	John Kelso-Shelton,
then CCSP park superintendent, 	issued a 	"confidentiality" 	memo 	to
all 	CCSP staff 	on January 27, 	1992, 	stressing the 	importance of
staff maintaining 	confidentiality of 	the 	details 	of
investigations 	of misconduct allegations. 	The 	specifics 	of 	the
problem giving 	rise 	to 	the memo were purposely 	left vague 	to
protect Kalko from recriminations. 	This memo, 	however, 	did not
satisfy Kalko and he pursued 	the 	grievance 	through all 	steps 	of
the 	grievance procedure 	except 	arbitration.6
Ruger's grievance activity prior to August 	16, 	1992, 	was
primarily 	limited 	to 	assisting 	Kalko 	with 	representation 	during
the processing 	of 	Kalko's 	grievances. 	Ruger did prepare a 	letter
regarding the 	"gun belt" 	issue 	in 1990. 	Kalko used this 	letter
at 	his 	"Skelly" 	hearing with DPR management.
6Official 	notice 	is 	taken of 	an earlier unfair practice
charge 	(LA-CE-277-S) 	filed by Kalko against 	the State 	(DPR) 	on
March 2, 	1993, 	alleging discrimination and reprisal 	actions
(employer disclosure 	of 	information 	from a 	grievance 	to
grievant's 	co-workers) 	because 	of his 	exercise of 	rights
protected by the Dills Act. 	In PERB Decision No. 	1031-S 	(1994),
the 	Board 	summarily affirmed a Board agent's 	dismissal 	of 	the
charge 	for 	failure 	to 	state a prima 	facie violation of 	section
3519(a).
77

In May 	1991, 	Ruger 	filed a 	complaint 	against 	Roggenbuck with
the State Auditor General's 	office. 	Ruger alleged, 	among other
things, 	misuse of State property, 	inexcusable neglect of duty,
and inappropriate use of State employees' 	time. 	The outcome of
this 	complaint 	was 	not 	revealed 	in 	the 	record.
In early July 1991, 	Ruger wrote an anonymous memo to
Roggenbuck 	reporting 	after-hours 	partying 	by DPR 	employees 	at
Bolsa 	Chica 	State Beach which he asserted was 	illegal. 	At 	about
the 	same 	time 	of Ruger's memo, 	Roggenbuck issued a memo 	to all
personnel on July 10, 	1991, 	regarding management's awareness of
possible misconduct by employees. 	This memo emphasized 	the need
for all 	employees 	to adhere 	to 	the DPR's 	standards 	of 	good
conduct 	whether on or off-duty. 	Ruger speculates 	that 	his memo,
along with other 	input 	submitted to management, 	was 	the 	impetus
for Roggenbuck's 	decision to 	issue 	the July 1991 memo. 	In any
event, 	the unlawful 	after-hours beach activities 	involving
employees 	ceased after Roggenbuck's memo.
The July 18, 	1992, 	Incident
On Saturday, 	July 18, 	1992, 	while on patrol, 	Ruger received
a 	radio 	call 	from seasonal 	lifeguards 	Steve Rogers 	(Rogers) 	and
Lee Graham 	(Graham) 	regarding 	a possible 	assault 	and brandishing
of 	a weapon on lifeguards by 	two male visitors 	at 	a CCSP beach
area. 	Ruger contacted Kalko, 	who was patrolling 	in a separate
vehicle, 	and asked him to meet 	Ruger to plan a 	strategy 	for
dealing with 	the 	situation.
88

After 	locating 	the 	two 	suspects, 	Kalko 	and Ruger detained
them, 	checked 	for weapons, 	and 	ran an 	identification 	check
through 	the DPR dispatcher. 	While 	checking 	for weapons, 	Ruger
observed 	several 	beer 	cans 	scattered 	in 	the 	area 	where 	one 	of 	the
suspects 	was 	located 	and 	also 	noticed 	that 	the 	suspect's 	breath
smelled 	of 	alcohol. 	Ruger also 	found a knife 	near 	the 	barbecue
unit 	being 	used by 	the 	suspects. 	After 	obtaining 	additional
information 	on 	the 	scene 	from lifeguards 	Paul 	Barnes 	(Barnes),
Graham and Timothy 	Shaw 	(Shaw), 	and 	evaluating 	the 	situation,
Kalko 	and Ruger 	decided 	to 	issue 	citations 	to 	the 	suspects 	and
eject 	them 	from 	the 	park.
Ruger 	cited 	one 	suspect 	for 	the 	following misdemeanors:
(1) 	violation of 	a posted 	order prohibiting alcoholic 	beverages,
(2) 	false 	identification, 	and 	(3) 	assault 	on a lifeguard 	(a
misdemeanor not 	committed 	in his 	presence). 	Kalko 	cited 	the
other suspect 	for: 	(1) 	violation of 	a posted order prohibiting
alcoholic beverages, 	and 	(2) 	assault 	on a lifeguard 	(a
misdemeanor not 	committed 	in his presence). 	This 	latter 	charge
was 	later amended 	to brandishing a weapon 	(knife).7
Issuance 	of 	the 	Counseling Memos
Eaton 	first 	heard of 	the 	July 	18, 	1992, 	incident 	from Kramer
on July 	20, 	1992. 	Kramer had heard about 	the 	incident 	from some
7These 	citations, 	along with a 	crime 	report 	and written
statements 	submitted by 	the 	lifeguards, 	were 	eventually 	forwarded
by DPR 	to 	the 	Orange 	County District 	Attorney's 	office. 	A 	formal
complaint 	was 	issued 	against 	both 	suspects 	on 	or 	about
September 29, 	1992, 	ordering 	them to appear 	in the Municipal
Court 	South 	Judicial 	District 	of 	Orange 	County 	for 	possible
prosecution.
99

of 	the 	lifeguards 	on the previous 	day. 	He 	expressed strong
displeasure 	to 	Eaton about 	the manner 	in which 	Kalko 	and Ruger
had allegedly handled the matter 	in 	terms 	of 	law enforcement
contact. 	Kramer voiced his 	belief 	that 	it 	should have been
handled differently, 	i.e., 	as a 	felony, 	and asked Eaton to look
into 	the matter. 	Eaton promised to do 	so and get back 	to Kramer.
Eaton 	spoke with Kalko about 	the 	incident 	later 	that 	same
day when Kalko 	reported 	for work. 	He 	asked 	for details,
including who was 	going 	to prepare 	the written report. 	Kalko
indicated 	that 	since 	Ruger was 	the 	lead 	officer 	on 	the 	suspect
contact, 	he would be preparing the 	report.
Eaton spoke with Ruger on July 25, 	1992, 	which was 	the 	first
time 	that 	they worked 	together after July 18. 	Eaton obtained
further 	information 	from Ruger about 	the 	incident.
Between the 	dates 	that 	Eaton spoke with Kalko and Ruger, 	he
had not 	received 	copies 	of 	either 	the 	citations 	or any kind 	of
written report 	about 	the 	incident. 	However, 	he did receive a
telephone 	call 	from Milligan who 	stated 	that 	he 	had 	received 	a
written 	complaint 	from Kramer about 	the 	July 	18 	incident.
Kramer's memo, 	dated July 25, 	1992, 	raised several questions
about 	Kalko's and Ruger's handling of 	the 	situation. 	After
directing Eaton to 	look 	into 	the matter, 	Milligan sent 	him a memo
on July 27, 	1992, 	requesting a written report addressing the
questions 	in his memo.
Eaton held 	informal 	conversations 	with both employees, 	in
his 	supervisory capacity, 	to 	elicit 	information regarding 	the
10

complaint 	about 	their job performance. 	He 	insists 	that 	he 	did
not 	initiate 	a 	formal 	investigation of 	the 	incident. 	He 	does
acknowledge 	that had a 	formal 	investigation been 	initiated, 	he
would have 	been 	required 	to apprise 	Kalko 	and Ruger of 	their
rights under the public 	safety officers' 	procedural bill 	of
rights 	(POBAR).8 Eaton also insists 	that, 	after speaking with
8The 	Public 	Safety Officer's 	Procedural 	Bill 	of 	Rights Act,
commonly referred to as 	POBAR, 	provides 	certain 	rights 	and
protection 	to 	State 	employees 	designated by 	law as 	peace
officers. 	POBAR is 	codified at 	section 3300 	et 	seq. 	Section
3303 	states 	in pertinent part:
When any public 	safety officer 	is 	under
investigation 	and 	subjected 	to 	interrogation
by his. commanding officer, 	or any other
member of 	the 	employing 	safety department,
which could lead to punitive action, 	such
interrogation 	shall 	be 	conducted under 	the
following 	conditions. 	For the purpose 	of
this 	chapter, 	punitive action is 	defined as
any action which may 	lead 	to dismissal,
demotion, 	suspension, 	reduction in salary,
written 	reprimand or 	transfer 	for purposes 	of
punishment.
This 	section shall 	not 	apply 	to any
interrogation 	of 	a public 	safety officer 	in
the normal 	course of duty, 	counseling,
instruction, 	or informal verbal 	admonishment
by, 	or other routine 	or unplanned contact
with, 	a 	supervisor or any other pubic 	safety
officer, 	nor shall 	this 	section apply to an
investigation 	concerned 	solely 	and 	directly
with alleged 	criminal 	activities.
Section 3305 	and Section 3306 	prohibit 	the placement 	of
adverse 	comments 	into a public 	safety officer's 	personnel 	file 	or
any 	other 	file used 	for any personnel 	purposes 	without 	the public
safety 	officer 	having 	first 	read and 	signed 	the 	instrument
containing 	the 	adverse 	comment 	indicating 	that 	he 	is 	aware 	of
such 	comment 	and 	is 	provided with an 	opportunity 	to 	file 	a
written 	response 	to any adverse 	comments 	placed 	in 	the personnel
file.
11

Kalko and Ruger, 	he did not 	speak with any other employee 	about
the July 18, 	1992, 	incident prior to submitting his 	report 	to
Milligan.
On August 4, 	1992, 	Eaton submitted a written report 	to
Milligan with a 	copy of 	the 	crime 	report prepared by Ruger, 	on or
about August 3, 	1992, 	attached. 	The crime report 	included
supplementary 	reports 	by Kalko and 	the 	three 	seasonal 	lifeguards,
Barnes, 	Graham, 	and Shaw. 	In his report, 	Eaton stated that he
supported Kalko's 	and Ruger's 	resolution of 	the 	situation, 	i.e.,
citation and ejection of 	the 	suspects 	from the park, 	given 	the
circumstances 	existing at 	the 	time. 	He did acknowledge, 	however,
that 	certain procedures, 	including report timeliness, 	were not
followed.
After receiving Eaton's 	report, 	Milligan directed Eaton 	to
have Ruger 	rewrite 	the 	crime 	report 	to 	delete what Milligan
regarded as 	"extraneous 	commentary." 	He 	also directed Eaton 	to
issue 	corrective 	counseling memos 	to both Kalko and Ruger
addressing 	the 	issues 	of 	private person's 	arrests 	and 	timeliness
in the preparation of 	crime 	reports.
Eaton met with Kalko and Ruger on August 	6, 	1992, 	and 	issued
corrective 	counseling memos 	to 	each of 	them. 	Both memos
addressed 	the 	issues 	recommended by Milligan, 	setting 	forth 	the
actions/DPR procedures 	to 	be 	followed 	in 	future 	law 	enforcement
contacts 	involving 	"private person's 	arrests." 	Ruger's memo also
addressed 	the 	timeliness 	of 	reports 	as 	required by existing
District 	policy.
12

Kalko and Ruger each registered verbal 	objections 	to Eaton,
and in writing over their signatures, 	to the 	contents 	of 	the
memos.
After issuing 	the memos, 	Eaton sent 	copies 	to Milligan and
placed the 	original 	copies 	in his personal 	"supervisor 	file." 	He
did not 	forward 	copies 	to 	the DPR personnel 	department 	or anyone
else.
After Milligan 	received copies 	of 	the memos 	from Eaton, 	he
reported 	to Roggenbuck the actions 	that he had 	taken, 	through
Eaton, 	with respect 	to the entire matter. 	Milligan and
Roggenbuck 	insist 	that 	Roggenbuck did not 	know about 	the 	July 	18
incident 	and 	its 	aftermath until 	Milligan 	reported 	it 	to him.
Milligan also maintains 	that 	the 	copies 	of 	the August 	6
counseling memos 	that 	he 	received 	from Eaton were 	retained 	in his
office. 	He 	did not 	forward 	them to anyone until 	the 	current 	case
arose, 	at which time 	they were 	given 	to 	the DPR management 	to
prepare 	for its 	defense.
Milligan did not 	discuss 	the memos with Kramer. 	He did,
however, 	tell 	Kramer that 	the July 18 	incident 	had been looked
into and 	resolved. 	According 	to Milligan and Roggenbuck,
Roggenbuck had no 	role 	in the 	decision to 	issue 	the 	corrective
memos 	to 	either Kalko or Ruger.
The 	1992-93 	Performance Appraisals
Subsequent 	to 	issuing the August 	6 memos, 	Eaton prepared
performance 	appraisals 	for both Ruger and Kalko. 	Ruger 	received
his performance appraisal 	on September 18, 	1992. 	The overall
13

appraisal 	rating was 	"satisfactory." 	The 	evaluation made 	no
reference 	to 	the 	counseling memo 	issued on August 	6. 	In 	fact,
Eaton made 	the 	following general 	comments,
Dave, your 	contributions 	to 	the unit
operations 	sometimes goes unrecognized, 	but 	1
appreciate 	the efforts. 	Keep up the good
work.
Kalko 	received a performance appraisal 	on May 31, 	1993. 	His
overall 	appraisal 	rating was 	also 	"satisfactory." 	His 	evaluation
also made no 	specific 	reference 	to 	the 	corrective August 	6, 	1992
memo. 	However, 	in the comments portion of 	the 	"Work Habits"
factor, 	he was 	encouraged to 	"read DOM 	[Department 	Operating
Manual] 	Chapter 	6 	Public Safety/Law Enforcement 	as a 	refresher."
Eaton 	explained 	that 	this 	reference 	was 	based primarily 	on his
observation 	of 	Kalko's performance 	in a 	defensive 	tactic 	training
session where 	he 	noted that 	Kalko was 	unfamiliar with
administrative procedures 	and 	the proper 	form to use 	in a 	drunk
driver scenario. 	Eaton maintains 	that he would have made 	the
same 	comment 	about 	Kalko's 	performance with 	respect 	to his 	work
habits, 	notwithstanting his 	issuance of 	the 	corrective 	counseling
memo in August 	1992.
Relevant 	DPR 	Policies 	and 	Procedures
A. 	Crime Reports 	- 	Routing
The District 	has 	a policy 	regarding 	the preparation and
routing 	of 	non-custody crime 	reports 	that 	has been 	in 	effect
since October 24, 	1986. 	This policy was 	issued to all peace
officer personnel 	by Roggenbuck when he 	served as 	the District's
14

chief 	of 	visitor 	services. 	The policy defines 	a non-custody
crime 	report 	as
. 	. 	. 	any report written in which a crime
occurred and no physical arrest was made. 	. 	.
Misdemeanor 	citations 	fall 	into 	this 	category
for routing purposes. 	. 	. 	.
The procedure 	requires, 	among other things, 	that all necessary
reports be written and submitted 	to 	the 	supervisor within 4 8
hours 	of 	the occurrence of an incident. 	If 	any employee has 	days
off 	in excess 	of 	the 48 	hours, 	the written report 	is 	required by
the end of 	the 	shift.
B. 	Private Person's Arrest 	Procedures
DPR Department Operating Manual 	(DOM), 	Chapter 6, 	section
0642, 	sets 	forth the policies and procedures pertaining 	to a
private person's 	arrest. 	A private person's arrest 	is 	authorized
by California 	Penal 	Code 	section 	837.
DPR's 	enforcement policy 	requires 	that 	a peace 	officer
advise 	a private person desiring 	to make 	a 	lawful 	arrest 	for a
public 	offense not 	committed in the 	officer's presence, 	that 	the
person may either 	(a) 	make a physical arrest, 	or 	(b) 	cause a
crime 	report 	to be 	completed. 	If 	a private person arrests
another and 	requests 	that 	a peace 	officer 	receive 	the 	arrested
person, 	the officer must 	do so. 	When accepting a private
person's 	arrest 	and 	issuing a 	citation, 	the peace 	officer must
have 	the 	arresting party 	(1) 	verbally 	inform the person arrested
of 	the nature 	of 	the 	charges 	and the 	statutory authority to make
the arrest; 	(2) 	complete the appropriate DPR form; 	and 	(3) 	sign
the 	citation 	in the appropriate 	space.
15

In the 	case 	of 	the July 18 	incident, 	the 	seasonal 	lifeguards
were 	regarded as 	"private persons" 	by 	the DPR because 	they do not
have peace 	officer 	status.9 Since 	the 	lifeguards 	complained
about 	the brandishing of weapons, 	an action not 	committed 	in 	the
presence 	of 	either Kalko or Ruger, 	when the 	citations were 	issued
to 	the 	suspects, 	the 	lifeguards 	should have been required to 	sign
the 	citations 	as 	the arresting parties, 	with Kalko and Ruger also
signing 	the 	citations 	as 	the 	officers 	receiving 	the 	arrested
persons. 	Copies 	of 	the 	citations 	issued to 	the 	suspects and the
necessary 	written 	reports 	should 	have 	been 	prepared 	and 	submitted
to Eaton within 48 	hours 	of 	the 	incident.
After 	reviewing 	Eaton's 	report 	regarding 	Kalko's 	and Ruger's
handling of 	the July 	18 	incident, 	Milligan decided that
corrective 	counseling was 	appropriate 	to 	advise 	Kalko and Ruger
of 	the 	appropriate procedures 	to 	follow 	in making a private
person's 	arrest 	and 	submitting 	timely 	reports.
Milligan 	insists 	that 	corrective 	counseling 	is 	not 	a
disciplinary action, 	but 	an attempt 	to help an employee 	improve
performance 	by avoiding 	similar behavior 	that 	could 	lead 	to
discipline 	in the 	future.
C. 	Retention Schedule 	for Documented Employer Actions
The 	DPR has 	a 	retention 	schedule 	for maintaining 	documented
employer actions. 	A corrective 	counseling memo 	is 	considered an
9See California Penal 	Code 	section 837,
16

informal 	action by 	the employer. 	It 	can be 	retained 	for one year
or until 	incorporated in the 	annual 	performance appraisal.10
There is no evidence that 	the August 	6, 	1992, 	corrective
counseling memos 	issued 	to 	Kalko 	and Ruger were 	ever placed 	in
either 	employee's 	personnel 	files maintained at 	the District's
office 	in San Clemente or the DPR's 	headquarters 	in Sacramento.
ISSUES
Did 	the DPR 	issue 	counseling memos 	to 	Kalko and Ruger 	in
retaliation 	for 	their having participated 	in protected
activities?
CONCLUSIONS 	OF 	LAW
Section 3515 	gives 	State 	employees 	the protected 	right 	to
form, 	join, 	and participate in the activities of 	employee
organizations 	of 	their own 	choosing 	for 	the purpose 	of
representation on all matters 	of 	employer-employee 	relations.
Employees 	also have 	the 	right 	to participate 	in other employment-
related activities 	on their own behalf. 	Section 3519(a) 	makes 	it
unlawful 	for a 	State 	employer 	to
. 	. 	. 	impose reprisals on employees, 	. 	. 	.
discriminate against 	employees, 	or otherwise
interfere with, 	restrain, 	or coerce employees
because 	of 	their 	exercise 	of 	rights 	. . . .
The 	complaint 	in this 	case alleges 	that 	the 	State 	took
adverse 	action 	against 	Kalko 	and Ruger because 	they 	engaged 	in
10The DPR's 	supervisor's 	guide 	to employee discipline, 	which
was prepared by the Office of 	Personnel Administration 	(DPA), 	and
is dated February 1, 	1991, 	does not 	refer to documented
corrective 	interviews/counseling 	as 	formal 	adverse 	action by 	an
employer.
17

protected activities. 	In order to prevail 	on these allegations,
the 	Charging Parties must 	establish proof 	of 	each element 	of 	a
discrimination violation.
To prove discrimination, 	the 	Charging 	Parties must 	first
demonstrate 	that 	they engaged 	in protected 	conduct. 	Then 	they
must 	show that 	the 	employer knew of 	this 	protected activity when
it 	took adverse 	action against 	them. 	The adverse action cannot
be 	speculative, 	but must 	constitute actual 	harm. 	(Palo Verde
Unified School District 	(1988) 	PERB Decision No. 	689 	(Palo
Verde); 	Newark Unified School District 	(1991) 	PERB Decision No.
864 	(Newark).)
Once protected conduct, 	employer knowledge, 	actual 	or
imputed 	(Moreland Elementary 	school 	District 	(1982) 	PERB Decision
No. 	227), 	and adverse action are established, 	the Charging
Parties must make a prima 	facie 	showing 	of unlawful 	motivation.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210
(Novato).) 	Unlawful motivation is 	the 	"nexus" 	in the
establishment 	of 	a prima 	facie violation. 	A nexus 	or connection
must 	be 	demonstrated between 	the 	employer's 	conduct 	and 	the
employee's 	exercise 	of 	statutory rights. 	The Novato 	test 	was
made applicable 	to 	the Dills Act by State 	of 	California
(Department of Developmental Services)(Monsoor) 	(19 82) 	PERB
Decision No. 	228-S.
PERB 	has 	adopted a 	test 	for determining unlawful 	motive
which 	is 	consistent 	with 	other California and 	federal 	precedents.
Pursuant 	to this 	case 	law, 	the 	trier of 	fact 	is 	required to weigh
18

both direct 	and 	circumstantial 	evidence 	to determine whether 	the
employer's 	action would, 	or would not, 	have been taken against an
employee but 	for the 	employee's 	exercise 	of protected rights.
(Novato; 	McPherson v. 	PERB 	(1987) 	189 	Cal.App.3d 293 	[234
Cal.Rptr. 	428]; Martori Brothers Distributors v. Agricultural
Labor Relations Board 	(1981) 	29 	Cal.3d 721 	[175 	Cal.Rptr. 	626]
(ALRB); Wright Line, 	Inc. 	(1980) 	251 NLRB 1083 	[105 LRRM 1169]
e n f d , 	in relevant part 	(1st Cir. 	1981) 	662 	F.2d 899 	[108 	LRRM
2513].)
Proving 	the 	existence of unlawful motivation, 	which is
required 	to 	link 	the 	employer's 	knowledge 	to 	the 	harm sustained
by the employee, 	can be difficult.
Since direct proof 	of unlawful motivation 	is 	rarely
presented, 	animus may be 	established by 	circumstantial 	evidence
and 	inferred 	from the 	record as 	a whole. 	(California 	State
University. 	Fresno 	(1990) 	PERB Decision No. 	845-H.) 	PERB has
found 	indicia 	of 	unlawful motivation 	in 	the 	following 	conduct:
(1) 	words 	reflecting retaliatory intent 	(Santa Clara Unified
School District 	(1979) 	PERB Decision No. 	104); 	(2) 	the timing of
the 	employer's 	actions 	in relation to 	the 	employee's
participation 	in 	the 	protected activity 	(North 	Sacramento 	School
District 	(1982) 	PERB Decision No. 	264); 	(3) 	failure to adhere to
regularly 	followed or accepted procedures 	(Novato; 	Woodland Joint
Unified School District 	(1987) 	PERB Decision No. 	628); 	(4)
disparate 	treatment 	of 	employees 	engaged 	in 	similar activity
(State of 	California 	(Department 	of Transportation) 	(1984) 	PERB
19

Decision No. 	459-S); 	(5) 	shifting or inconsistent justifications
for 	the 	employer's 	actions 	(Pleasant Valley School 	District
(1988) 	PERB Decision No. 	708); 	(6) 	cursory or inadequate
investigation 	(State 	of 	California 	(Department 	of 	Parks 	and
Recreation) 	(1983) 	PERB Decision No. 	328-S); 	or 	(7) 	imposition of
unusually harsh discipline 	against 	an 	employee 	with an 	otherwise
clean 	employment 	record 	(Baldwin 	Park Unified 	School 	District
(1982) 	PERB Decision No. 221).
Once 	the 	charging party has made 	a prima 	facie 	showing
sufficient 	to support 	an 	inference of unlawful motivation, 	the
burden shifts 	to 	the 	respondent 	to produce 	evidence 	that 	the
action would have 	occurred 	irrespective 	of 	the protected 	conduct.
(ALRB. 	at p. 	730.)
The 	Charging 	Parties 	here 	have 	established 	their protected
activity and 	their employer's 	knowledge 	of 	such 	conduct. 	Even
though both 	Eaton and Milligan maintain 	they were 	unaware 	of
Kalko's various past grievances, 	Roggenbuck, 	their District
manager, 	had personal knowledge of 	these activities. 	Considering
the 	closeness 	of 	the working 	relationship between Roggenbuck,
Milligan and Eaton, 	it 	is difficult 	to believe 	that 	Eaton and
Milligan were 	totally 	ignorant 	of 	the 	Charging 	Parties'
activities. 	Notwithstanding these supervisors' 	lack of
knowledge, 	the DPR does not 	dispute 	that 	these 	elements 	of 	a
discrimination 	charge 	have been 	satisfied.
20

Kalko 	and Ruger must 	also 	demonstrate 	that 	the 	DPR's 	action
adversely 	impacted 	them. 	In determining whether an adverse
action is 	established, 	in Newark. 	the Board 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. 	[Emphasis added; 	fn. 	omitted.]
This 	is 	an objective 	test. 	It does not 	rely on the 	subjective
reaction of 	the employee.
Applying this 	test 	to the evidence, 	it 	is 	concluded that 	the
Charging 	Parties 	have not 	shown how the 	issuance 	of 	the
corrective memos 	caused harm or had 	"impact 	on 	their 	employment."
They 	speculated 	that 	the 	counseling memos 	had 	the potential 	for
adverse 	employment 	consequences. 	This 	fear was based on 	their
belief 	that 	the memos 	would be placed 	in 	their personnel 	files
and remain there 	for possibly three years. 	However, 	there 	is no
proof 	that 	the memos are, 	or ever have been, 	in their personnel
files. 	Nor 	is 	there any evidence 	that 	they resulted 	in harm to
their 	employment 	status 	such as 	being used 	to 	support 	a 	negative
performance appraisal. 	(Palo Verde; 	State of California
(Department of Parks and Recreation). 	supra, 	PERB Decision No.
1031-S.)
In light 	of 	the 	conclusion that 	the 	Charging 	Paries 	failed
to prove 	that 	they were 	adversely 	impacted by 	the 	employer's
action, 	the Novato analysis may properly end.
21

However, 	even assuming, 	arguendo. 	that the issuance of the
memos 	constituted a negative 	impact 	on their employment, 	there 	is
insufficient 	direct 	or 	circumstantial 	evidence 	from which 	an
inference 	of unlawful 	motivation may be 	drawn.
From the Charging Parties' 	perspective, 	there 	is direct
evidence 	of unlawful motivation 	in the 	form of words 	reflecting
retaliatory 	intent 	allegedly made 	by 	Roggenbuck 	and 	Kramer.
There 	is 	also 	circumstantial 	evidence 	from which an 	inference 	of
unlawful motivation may be drawn, 	namely, 	timing, 	disparate
treatment 	accorded 	to 	them, 	and departure 	from established
procedures 	and 	standards.
1. 	Direct 	Evidence 	of Animus
As 	direct 	evidence 	of 	the 	employer's 	animosity 	toward Kalko
because 	of 	his 	grievance activity, 	Kalko and Ruger both testified
about 	comments 	allegedly made by Roggenbuck about 	Kalko.
According to Kalko, 	SPR Mike Ash 	(Ash) 	told him that while
waiting 	to 	speak with Roggenbuck in March or April 	1991, 	he
overheard Roggenbuck tell 	someone 	on 	the 	telephone, 	"Kalko will
screw up 	and 	I'll 	be waiting 	for him." 	Ash did not 	know 	to whom
Roggenbuck was 	speaking, 	but 	this 	comment was made after the
rescission of 	Kalko's proposed adverse action 	in November 	1990.
Although 	Kalko 	testified 	that Ash prepared a 	declaration
regarding 	these 	comments, 	he 	did not present 	the 	document 	or any
other 	evidentiary 	support 	for 	this 	claim.
Kalko 	and 	Ruger 	also 	testified 	that 	shortly 	after 	Kalko's
1990 	"gun belt" 	grievance and his 	allegations 	about management's
22

failure 	to deal with the misconduct 	of 	some 	lifeguards, 	Eaton
told them that Roggenbuck, 	in the presence of 	Kramer, 	said to
Eaton, 	" . . . 	Heads are going 	to roll 	and it won't be 	the
lifeguards 	. 	. 	. 	." 	According to them, 	Eaton allegedly implied
that 	Roggenbuck was 	specifically referring 	to 	Kalko. 	In this
same meeting, 	Kramer is 	reported to have 	stated that 	"Kalko 	is
trying 	to 	ruin my program."
These statements, 	if true, 	could show some evidence of
animus 	towards 	Kalko's exercise 	of his 	statutory rights.
However, 	absent 	credible proof 	of 	the 	comments 	and the 	context 	in
which they were made, 	it 	is 	difficult 	to 	infer that 	they prove
employer hostility 	toward Kalko because 	of 	his 	participation 	in
protected 	activities.
2. 	Indirect 	Evidence 	of Animus
a. 	Timing 	of 	the 	Counseling Memos
Kalko and Ruger argue 	that 	the 	timing 	of 	the 	counseling
memos 	support 	an 	inference 	that 	they were motivated by 	animosity
toward 	them because 	of 	their protected activities.
Both 	Charging 	Parties 	believe 	that 	pre-existing 	hostility
harbored 	against 	them by 	Kramer 	and 	Roggenbuck provided 	the
impetus 	for the 	counseling memos 	in August 	1992. 	They point 	out
that 	Kramer 	initiated the 	complaints 	about 	the 	July 	18 	incident
which, 	it 	is argued, 	provided a suitable opportunity for
retaliation 	against 	them 	for 	earlier protected 	conduct.
However, 	when all 	the evidence is examined, 	the timing of
the 	counseling memos 	does 	not 	support 	the 	Charging 	Parties'
23

position 	for several 	reasons. 	First, 	Kalko acknowledged that DPR
management 	attempted 	to 	take 	corrective 	action 	in 	response 	to his
January 	1992 	breach of 	confidentiality grievance. 	Kelso-
Shelton's January 27, 	1992, 	memo to all 	CCSP staff was 	intended
as 	a positive 	response 	to 	the 	issue presented 	in 	that 	grievance,
even though Kalko 	regarded 	it 	as 	insufficient.
Secondly, 	although Kramer 	initiated 	the 	inquiry about 	the
Charging 	Parties' 	performance during 	the July 	18 	law enforcement
contact, 	there 	is 	no evidence 	that 	either he or Roggenbuck played
a 	role 	in the 	decision to 	issue 	the 	counseling memos. 	Indeed,
Roggenbuck did not 	know about 	the 	July 	18 	incident 	or 	the
counseling memos until 	informed, 	after the 	fact, 	by Milligan.
Finally, 	neither Milligan nor Eaton are accused of 	harboring
animus 	toward 	Kalko 	or Ruger 	for any 	reason. 	Both deny knowing
about 	the Charging Parties' 	grievance activity, 	even though Kalko
and Ruger describe 	it 	as 	common knowledge at 	CCSP. 	The 	timing of
the 	decision about 	the 	corrective 	counseling memos 	appears
related 	to nothing more 	than 	the 	supervisor's 	judgment 	about 	the
appropriateness 	of 	Kalko's 	and Ruger's 	performance 	on a 	specific
occasion.
It 	is 	thus 	concluded that 	the 	timing 	of 	the 	circumstances
surrounding 	the 	issuance 	of memos 	does 	not 	support 	an 	inference
of unlawful motive 	on the part 	of 	the 	employer.
b. 	Disparate Treatment
Kalko and Ruger maintain 	that 	the August 	1992 	counseling
memos 	provide 	strong 	evidence 	of 	their 	subjection 	to disparate
24

treatment. 	This 	claim is based on 	their contention 	that 	District
management 	has 	failed 	to 	discipline 	lifeguards 	and other
employees 	for similar or worse 	conduct, 	whereas 	they were
unfairly 	disciplined 	even 	though 	taking 	appropriate 	action under
the 	circumstances. 	At 	the heart 	of 	this 	allegation is 	the
Charging 	Parties' 	view that 	the 	counseling memos were 	an
unjustified 	criticism of 	their 	judgment 	regarding 	the 	handling 	of
the July 	18 	incident.
Aside 	from the bare allegations 	of 	"disparate 	treatment," 	no
evidence was 	offered of 	instances where 	other SPR's 	were accorded
more 	favorable 	treatment 	by 	either 	Eaton 	or Milligan under
circumstances 	similar to that 	of 	the Charging Parties. 	Nor was
any showing made 	to demonstrate what 	similarities, 	if any, 	exist
between 	the 	law enforcement 	responsibilities 	of 	SPRs 	and
lifeguards. 	Although Kalko and Ruger 	claim that most 	lifeguard
misconduct was 	ignored for years by District management, 	they
admit 	that 	they have 	no personal 	knowledge 	about 	disciplinary
measures 	that may have been 	taken against 	other CCSP 	employees 	as
a 	result 	of 	their 	self-described 	"watch dog" 	activities.
In explaining his decision, 	Milligan testified, 	that after
receiving Eaton's 	report 	of 	Kalko's 	and Ruger's 	handling 	of 	the
July 	18 	incident, 	he 	concluded that 	the 	Charging Parties 	had a
performance problem in the areas 	described earlier. 	He 	decided
that 	corrective 	counseling with documentation was 	appropriate 	to
make 	the 	employees 	aware 	of 	the problems 	and how to 	improve
future performance 	to avoid possible 	discipline.
25

According 	to Milligan, 	he has 	issued or directed 	the
issuance 	of 	counseling memos 	to other 	subordinate 	employees.
None of 	these, 	however, 	concerned performance 	in connection with
following 	the DPR private person's 	arrest 	procedures.
Given 	the 	absence 	of 	any adverse 	consequences 	associated
with the 	counseling memos, 	and the absence 	of 	evidence 	that
District 	supervisors 	or management 	have 	treated 	similarly
situated employees more 	favorably, 	it 	is 	concluded that 	there 	is
no 	support 	for an 	inference 	of 	unlawful 	motive based on disparate
treatment 	by 	the 	employer.
c. 	Departure 	from Established 	Procedures 	and Standards
Most 	of 	the 	conflict 	related to 	this 	factor 	focuses 	on
whether DPR 	conducted an 	"investigation" 	of 	the 	events
surrounding 	the July 	18 	incident. 	Kalko and Ruger 	contend that
when Eaton commenced questioning them on July 20, 	and 25, 	1992,
he 	was 	initiating a 	formal 	investigation 	that 	fell 	within 	the
requirements 	of 	POBAR because 	it 	could have 	led 	to punitive
action. 	(See fn. 	8, 	p. 	11.) 	As such, 	he should have advised
them of 	their POBAR rights, 	including 	the 	right 	to
representation.
Eaton denies 	that his 	informal 	discussions with Kalko and
Ruger amounted 	to an 	investigation within 	the meaning 	of 	POBAR or
that 	they were 	held with 	the 	intent 	of 	imposing 	discipline 	on
either employee.
There 	is 	no evidence 	to 	refute 	Eaton's 	assertion that 	his
conversations 	with Kalko 	and Ruger were 	no more 	than normal
26

supervisory 	contacts 	regarding 	a 	complaint 	about 	their
performance.11 In this 	regard, 	PERB 	is not 	charged under the
Dills Act with determining whether the 	employer's 	reason(s) 	for
pursuing 	the matter 	in the manner chosen was appropriate. 	PERB
is 	concerned with 	such reasons 	only 	to 	the 	extent 	that 	they are
pretextual, 	i.e., 	do the reasons 	support an inference that 	the
employer's 	true motivation 	for 	its 	action was 	the 	employee's
protected activities. 	The mere 	fact 	that 	an employee
participates 	in protected activity does not, 	however, 	immunize
the 	employee 	from routine 	employment 	decisions, 	no matter how
much 	the 	employee may disagree 	with an employer's 	decision.
There 	is 	no basis 	in this 	case 	for 	concluding 	that 	the
employer 	ignored 	established procedures 	and 	standards 	nor 	can
unlawful 	motivation be 	inferred 	from the 	employer's 	actions 	in
this 	regard. 	(ALRB.)
d. 	Summary
After a 	thorough review of 	the 	evidence, 	as 	analyzed under
the Novato standard, 	it 	is 	concluded that 	Kalko and Ruger have
not 	proven a prima 	facie 	case 	of 	discrimination 	or 	retaliation
regarding 	the DPR's 	issuance 	of 	corrective memos 	to 	them in
August 	1992. 	Failure of proof 	dictates 	a conclusion that 	the DPR
has not violated section 3519(a).
11As an aside, 	it 	is noted that 	section 3303 	does not 	apply
to 	the 	"interrogation of 	a public 	safety 	officer 	in 	the 	normal
course of duty. 	. 	. 	by . . . 	a supervisor. 	. 	."
27

CONCLUSION
For all 	the 	reasons 	set 	forth above, 	the 	complaint 	and 	its
underlying 	charge must 	be 	dismissed.
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the entire 	record in this 	case, 	it 	is 	ordered that 	the complaint
and 	the 	underlying unfair practice 	charge 	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
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within
20 	days 	of 	service 	of 	this Decision. 	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. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	323 	00.) 	A 	document 	is 	considered 	"filed" 	when
actually 	received before 	the 	close 	of business 	(5:00 	p.m.) 	on 	the
last 	day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United States mail, 	postmarked not 	later
than 	the 	last 	day set 	for 	filing 	. . . " 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
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Proof 	of 	service 	shall 	accompany 	each 	copy 	served 	on a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
W. 	JEAN THOMAS
Administrative 	Law Judge
29
I