State of California (Department of Insurance) (Nylander-McGuire) (PERB 1197S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LORELEI NYLANDER-McGUIRE,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT
OF 	INSURANCE),
Respondent.
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) 	Case No. 	LA-CE-371-S
PERB Decision No. 	1197-S
May 	6, 	1997
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Appearances; 	Lorelei Nylander-McGuire, 	on her own behalf; 	State
of 	California 	(Department 	of 	Personnel Administration) 	by Michael
P. 	Cayaban, 	Legal Counsel, 	for State of California 	(Department of
Insurance).
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This 	case 	is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Lorelei Nylander-
McGuire 	(Nylander-McGuire) 	of 	a Board agent's 	dismissal
(attached) 	of her unfair practice charge. 	In the charge,
Nylander-McGuire 	alleged 	that 	the 	State 	of 	California 	(Department
of 	Insurance) 	(State) 	violated the Ralph C. 	Dills Act 	(Dills
Act)1 by cancelling her benefits.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the unfair practice 	charge, 	the Board agent's warning
and dismissal 	letters, 	Nylander-McGuire's 	appeal 	and the 	State's
response 	thereto. 	The Board finds 	the warning and dismissal
1The Dills Act 	is 	codified at Government 	Code 	section 3512
et 	seq.
e

letters 	to be 	free 	of prejudicial 	error and hereby adopts 	them as
the decision of 	the 	Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-371-S 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
2
2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
December 6, 	1996
Lorelei Nylander-McGuire
Re: 	Lorelei Nylander-McGuire v. 	California State Employees
Association. SEIU. AFL-CIO. Local 1000
Unfair Practice Charge No. 	LA-CE-371-S
DISMISSAL AND REFUSAL TO 	ISSUE A COMPLAINT	_-	_-	------===- --Dear Ms. Nylander-McGuire:
In the above-referenced charge you allege the State of
California, 	Department of Insurance 	(State) 	violated the Ralph C.
Dills Act 	(Dills Act or Act) 	by cancelling your benefits.
You filed the above-referenced charge on October 21, 	1996. 	On
October 29, 	1996, 	I spoke with you regarding the above-referenced
charge. 	On November 1, 	1996, 	I issued a warning letter which
indicated if you did not amend your charge by November 8, 	1996,
that 	it would be dismissed.
On November 7, 	1996, 	I spoke with you regarding the warning
letter. 	I explained that you needed to provide facts in support
of your allegations. 	I reiterated that your charge must contain
a clear and concise statement of 	the facts and conduct alleged to
constitute an unfair practice. 	I also explained your charge must
include "the who, what, when, where, and how" of an unfair
practice. 	I granted your request 	for an extension to amend your
charge to November 12, 	1996.
On November 13, 	1996, 	I received several handwritten pages,
documents, 	and a newspaper article from you. 	You did not
indicate which documents were applicable to the above-referenced
charge and which were applicable to LA-CO-70-S, 	a separate charge
filed against your union. 	Nor did your proof of 	service 	indicate
that you served the information on the respondent.
On November 14, 	1996, 	I wrote you the attached letter granting
you an extension to amend the above-referenced charge to November
22, 	1996. 	That letter presented specific questions which I
indicated would be helpful 	to my investigation. 	With the
November 14, 	1996, 	letter I also enclosed two unfair practice
charge forms and proof of service forms for your use.
/·--------' 	--
(i)

LA-CE-371-S
Dismissal 	letter
December 6, 	1996
Page 2
On November 20, 	1996, 	I received an additional six handwritten
pages 	from you. 	I have not received an amended charge or a
request to withdraw the charge.
My investigation revealed the 	following information. 	On July 19,
1995, 	your supervisor, 	Chuck De Palma, 	issued a memorandum to
your personnel 	file documenting your behavior. 	On August 22,
1995, 	you replied to De Palma's memorandum. 	In your reply you
demanded the State take a lie detector test and volunteered to
take one yourself. 	You also informed the State that you had
filed a complaint with the 	"Bureau and State Personnel Board and
[were] 	claiming the whistleblower's 	[Act]."
On July 15, 	1996, 	you filed a grievance alleging the State had
violated the 	collective bargaining agreement's Article 11.5,
Timely Payment of Wages.
You further allege in October 1996, 	the State cancelled your
health, 	medical and dental benefits retroactively back to June 1,
1996.
The above-stated information fails 	to state a prima facie
discrimination violation within the jurisdiction of PERB for the
reasons that follow.
Dills Act 	§ 3513.5(a)(1) 	provides the Public Employment Relations
Board shall not, 	"issue a complaint in respect of any charge
based upon an alleged unfair practice occurring more than six
months prior to the filing of the charge." 	It is your burden, 	as
the charging party to demonstrate the charge has been timely
filed. 	(See Tehachapi Unified School District 	(1993) 	PERB
Decision No. 	1024.)
On July 19, 	1995, your supervisor, 	Chuck De Palma, 	issued a
memorandum to your personnel 	file documenting your behavior. 	The
six month period in which to file a charge regarding that 	conduct
concluded on January 19, 	1996. 	This charge was not filed until
October 21, 	1996. 	Therefore your allegation that the State
discriminated against you by placing 	this memorandum into your
personnel 	file is not within the six months statute of
limitations period. 	Thus this allegation must be dismissed.
You also allege the State violated the Dills Act by cancelling
your benefits in October 1996. 	While this allegation was timely
filed, 	the charge does not present a clear and concise statement
of any facts demonstrating a prima facie violation of the Dills
Act.
I 	. 	(

LA-CE-371-S
Dismissal 	letter
December 6, 	1996
Page 3
The State's action is remote in time to any of your activities
which could be considered protected under the Dills Act. 	Nor did
the charge factually demonstrate any of 	the other factors
indicative of nexus. 	Thus this allegation must also be
dismissed.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
an appeal 	to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 shall apply.
The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal to issue a complaint,
any other party may file with the Board an original 	and five
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635 (b) .)
Service
All documents authorized to be 	filed herein must also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of service"
must accompany each copy of a document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will be 	considered properly 	"served" 	when personally
delivered or deposited in the first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request 	for an extension of time, 	in which to file a document
with the Board itself, 	must be in writing and filed with the
Board at 	the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of 	the time required for filing the document.
I (

LA-CE-371-S
Dismissal 	letter
December 6, 	1996
Page 4
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of service of 	the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
Final Date
If no appeal 	is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
Tammy L. Samsel
Regional Director
Attachments
cc: 	Michael P. 	Cayaban

STATE OF CALIFORNIA 	{ 	. 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 660
Los Angeles, CA 90010-2334
(213)736-3127
November 14, 	1996
Lorelei Nylander-McGuire
Re: 	Lorelei Nylander-McGuire v. 	State of California 	(Department
of Insurance and Lorelei Nylander-McGuire v. 	California
-State Employees Association. 	SEIU, AFL-CIO. 	Local 1000
Unfair Practice Charg	__	e No. 	LA-CO-70-	-_---	S
Unfair Practice Charge No. 	LA-CE-370-S
Dear Ms. Nylander-McGuire:
You filed the above-referenced charges on October 21, 	1996. 	On
October 29, 	1996, 	I spoke with you regarding both of the above-
referenced charges. 	On November 1, 	1996, 	I issued separate
warning letters explaining your charges 	failed to state prima
facie violations as 	they were presently written. 	Those letters
indicated if you did not amend your charges by November 8, 	1996,
that 	they would be dismissed.
On November 7, 	1996, 	I spoke with you regarding those warning
letters. 	I explained that you needed to provide facts in support
of your allegations. 	I reiterated that your charge must contain
a clear and concise statement of 	the facts and conduct alleged to
constitute an unfair practice. 	I also explained your charge must
include "the who, what, when, where, and how" of an unfair
practice. 	I granted your request 	for extensions 	to amend your
charges to November 12, 	1996.
On November 13, 	1996, 	I received several handwritten pages,
documents, 	and a newspaper article from you. 	You did not
indicate which documents were applicable to which of your
charges. 	Nor did your proof of 	service indicate that you served
the information on the respective respondents.
I have enclosed two unfair practice charge forms, 	and proof of
service forms for your use. 	The amended charges should be
prepared on a standard PERB unfair practice charge forms, 	clearly
labeled First Amended Charge, 	contain all the facts and
allegations you wish to make, 	and be signed under penalty of
perjury by the 	charging party. 	The amended charges must be
served on the respondent and the original proofs of service must
be filed with PERB. 	If I do not receive amended charges or
withdrawals 	from you before November 22. 	1996 your charges
be 	dismissed.
3 will
I 	.
wi

For Unfair Practice Charge No. 	LA-CE-371-S the following
information would 	further my 	investigation.
1. 	What did you do to exercise your rights protected under the
Dills Act?
2. 	On what date(s) 	did you exercise those rights?
3. 	What action did the State take against you?
4. 	On what date(s) 	did the State take action against you?
5. 	In the November 1, 	1996, 	warning letter I listed several
factors 	indicative of nexus. 	What facts do you have that
demonstrate 	the State's 	conduct was unlawfully motivated by
your exercise of rights protected under the Dills Act?
For Unfair Practice Charge No. 	LA-CO-70-S the following
information would 	further my 	investigation.
1. 	On what date(s) 	did you contact CSEA?
2. 	On those dates who did you speak with?
3. 	What did the CSEA representatives tell you?
4. 	What did CSEA do for you?
5. 	When did CSEA act?
6. 	What did CSEA fail 	to do for you?
7. 	When did CSEA fail 	to act?
Sincerely,
Tammy L. Samsel
Regional Director

STATE OF CALIFORNIA 	f 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
PERS
November 1, 	1996
Lorelei Nylander-McGuire
Re: 	Lorelei Nylander-McGuire v. 	State of California 	(Department
of Insurance
Unfair Practice Charge No. 	LA-CE-370-S
WARNING LETTER
Dear Ms. Nylander-McGuire:
In the above-referenced charge you allege the State of
California, 	Department of Insurance 	(State) 	violated the Ralph C.
Dills Act 	(Dills Act or Act) 	by cancelling your benefits.1
Your charges states in its totality:
The employer has delayed and withheld wages,
filed 	false and incorrect adverse action
against employee. 	Employer has committed
Gov. 	improprieties. 	Employer failed to
provide employee with information pertaining
to union matters, 	SROA matters. 	Had the
employee not found out by chance 	from a CAUSE
Union employee, 	the employee would not have
been able to assert SROA status. 	Employee is
an injured worker under doctor's 	care and is
an employee, 	yet the employer noticed the
employee that the employee's benefits
pertaining to health, 	medical and dental had
been cancelled in October 1996 	(1st week)
retroactively back to June 1, 	1996. 	I would
request 	PERB to have my insurance 	coverage
reinstated, 	monies paid forthwith and for
PERB upon receiving all facts, 	documents, 	and
evidences 	refer me those areas not 	covered by
1I received your notice of appearance 	form designating the
Public Employment Relations Board as your representative. 	PERB
cannot act as your representative. 	During our October 29, 	1996,
conversation you 	indicated your attorney would not be handling
this 	charge. 	You 	indicated your attorney was only handling your
workers' 	compensation claims. 	In any event, 	you did not provide
your attorney's name. 	Therefore I will direct all communications
to you.

LA-CE-370-S
Warning Letter
November 1, 	1996
Page 2
PERB, 	to the ADA Act and civil 	issues and to
segregate and give assistance to those
matters 	in which PERB adjudicates. 	Please
provide a contact name, 	address, phone nb.
and case file no. 	so that I 	(Lorelei) 	may
send copies of grievances, 	letters and
documents and evidences from: 	CSEA-Union,
employer, 	and self. 	Thank you. 	[sic]
(emphasis in original.)
On October 29, 	1996, 	I spoke with you regarding this charge.2
You explained you had evidence 	regarding State and/or CSEA
misconduct which dated back several years. 	I indicated the
Public Employment Relations Board's 	(PERB or Board) 	jurisdiction
is limited to a six month statute of limitations period.
You expressed a 	concern that my decision or any later decision by
the Public Employment Relations Board 	(PERB or Board) 	may be
unduly influenced. 	I indicated to you that 	I would provide you
with a written explanation of my analysis of your charge, 	and
that you would have an opportunity to respond. 	This 	letter
contains my analysis of your charge as your charge is presently
written.
The charge fails 	to state a prima facie case for the reasons that
follow.
PERB regulation 32615(a)(5) 	states a charge shall contain a
"clear and concise statement of 	the 	facts and conduct alleged to
constitute an unfair practice." 	A charging party should allege
the "who, what, when, where, and how" of an unfair practice.
(United Teachers-Los Angeles 	(Ragsdale) 	(1992) 	PERB Decision No.
944.) 	Mere legal conclusions are insufficient. 	(See State of
California 	(Department of Food and Agriculture 	(1994) 	PERB
Decision No. 	1071-S.)
To demonstrate a violation of Dills Act section 3519(a), 	the
charging party must show that: 	(1) 	the employee exercised rights
protected under the Dills Act; 	(2) 	the employer had knowledge of
the exercise of those rights; 	and 	(3) 	the employer imposed or
threatened to impose reprisals, 	discriminated or threatened to
discriminate, 	or otherwise interfered with, 	restrained or coerced
the employees because of the exercise of those rights. 	(Novato
Unified School District 	(1982) 	PERB Decision No. 	210; 	Carlsbad
2We also discussed Unfair Practice Charge No. 	LA-CO-70-S,
which you filed against 	the California State Employees
Association.
I

LA-CE-370-S
Warning Letter
November 1, 199 6
Page 3
Unified School District 	(1979) 	PERB Decision No. 	89; Department
of Developmental Services 	(1982) 	PERB Decision No. 	228-S;
California State University 	(Sacramento) 	(1982) 	PERB Decision
No. 211-H.)
Although the timing of the employer's adverse action in close
temporal proximity to the employee's protected conduct 	is an
important factor, 	it does not, 	without more, 	demonstrate the
necessary connection or 	"nexus" 	between the adverse action and
the protected conduct. 	(Moreland Elementary School District
(1982) 	PERB Decision No. 	227.) 	Facts establishing one or more
of 	the following additional 	factors must also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's 	departure 	from established procedures 	and 	standards
when dealing with the employee; 	(3) 	the employer's inconsistent
or contradictory justifications for its actions; 	(4) 	the
employer's 	cursory investigation of 	the employee's misconduct;
(5) 	the employer's failure to offer the employee justification at
the time it took action or the offering of exaggerated, 	vague, 	or
ambiguous reasons; 	or 	(6) 	any other facts which might demonstrate
the employer's unlawful motive. 	(Novato Unified School District.
supra; 	North Sacramento School District 	(1982) 	PERB Decision
No. 264.)
Your charge does not 	include 	facts demonstrating the above-stated
factors. 	To state a prima facie case you must allege facts
indicating you engaged in a protected activity which the State
had knowledge of, 	and that your protected activity motivated the
State to eliminate your benefits.3
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this 	letter or additional 	facts which would correct 	the
deficiencies explained above, 	please amend the charge. 	The
3In the event 	that you are not 	trying to allege a
discrimination violation, 	but 	instead a unilateral 	change
violation please make note of the following information.
Government Code section 3519(c) 	makes 	it unlawful 	for a public
employer to 	"refuse or fail 	to meet and confer in good faith with
a recognized employee organization." 	(emphasis added) 	Thus,
however meritorious 	the allegations 	of dissatisfied individual
employees may be concerning wages, 	hours, 	or their terms and
conditions of employment, 	an individual employee does not have
standing to file a charge of bad faith bargaining or unilateral
change against an employer. 	(Oxnard School District 	(1988) 	PERB
Decision No. 	6 6 7 . 	For this reason, 	this charge fails to state a
prima facie unilateral 	change violation.

LA-CE-370-S
Warning Letter
November 1, 	1996
Page 4
amended charge 	should be prepared on a standard PERB unfair
practice charge form, 	clearly labeled First Amended Charge,
contain all 	the facts and allegations you wish to make, 	and
be signed under penalty of perjury by the charging party. 	The
amended charge must be served on the respondent and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before November 8. 	1996 	. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3008.
Sincerely,
Tammy L. 	Samsel
Regional Director