State of California (Department of Real Estate) (PERB 0287S)

STATE 	OF 	CALIFORNIA
DECISION 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
COALITION 	OF ASSOCIATIONS 	AND
UNIONS 	OF STATE EMPLOYEES,
C h a r g i n g 	P a r t y ,
v .
STATE 	OF 	CALIFORNIA 	(DEPARTMENT 	OF
REAL ESTATE) ,
R e s p o n d e n t .
Case No. S-CE-87-S
PERB Decision No, 287-S
February 24, 1983
Appearances; 	Steven Allen for Coalition 	of Associations 	and
Unions 	of State Employees; 	Barbara T. 	Stuart, 	Attorney for
State 	of California 	(Department 	of Real Estate) .
Before Gluck, 	Chairperson; 	Tovar 	and 	Burt, Members.
DECISION
GLUCK, Chairperson: 	The Coalition of Associations 	and
Unions 	of State Employees 	(CAUSE) 	excepts 	to the refusal 	of 	a
hearing officer 	to 	issue 	a complaint 	on 	i t s 	charge 	that 	the
California Department 	of Real Estate 	(Department) 	violated
subsection 	3519(a) 	of 	the 	State Employer-Employee Relations Act
(SEERA)1 by making unfavorable comments 	in a third-level
1
SEERA 	is 	codified 	as 	Government 	Code 	section 	3512
et 	seq. 	All 	further 	statutory 	references 	are 	to 	the 	Government
Code 	unless 	otherwise 	noted.
Subsection 	3519 (a) 	provides:
It 	shall 	be 	unlawful 	for 	the 	state 	to:
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grievance response. 	The charge states 	that Stephen Potter
grieved 	the Department's refusal 	to pay him $7.00 in incidental
travel expenses 	and that the Department, when 	granting the
grievance, made the following remarks which violated the Act:
(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.
Although payment will be granted 	based on
precedence 	[sic] 	that was set by other
departments, 	I 	totally concur 	with
Mr. 	Liberator's judgment, and I 	do feel that
the payment of such nebulous expenses
strains 	ethical 	trust 	relationships 	that 	are
established 	between employee 	and employer.
I have seen a preponderance of examples
where I 	felt 	that individuals were 	being
victimized by government red tape and
regulations, 	but 	you have established the
distinction of demonstrating, at least to my
knowledge, 	a first for 	an individual 	to
victimize a government agency by using
government 	regulations.
The 	hearing officer 	dismissed the 	charge with leave 	to
amend, 	finding 	that 	it 	does 	not 	allege that the 	employee was
engaged in any protected right 	under SEERA and 	that, 	while the
above remarks were offensive, 	SEERA does not protect employees
from such 	comments 	unless 	they rise to the 	level of 	an 	unlawful
threat of 	reprisal or 	discrimination. 	CAUSE filed a timely
amendment 	to its 	charge, claiming that 	the employee was 	engaged
in the 	protected activity of 	filing a 	grievance 	and that 	the
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comments made 	in 	the 	grievance 	response 	amounted 	to 	a 	threat 	of
r e p r i s a l 	which 	"has 	the 	clear 	and major 	potential 	of 	having 	a
chillin g 	effect" 	on 	the 	employee's 	right 	to 	f i l e 	grievances.
With 	no 	explanation, 	the 	chief 	administrative 	law 	judge
dismissed 	the 	amended 	charge 	without 	leave 	to 	amend.
DISCUSSION
In 	deciding whether 	the 	charge 	s t a t e s 	a 	prima 	facie 	case
requiring a 	hearing on the 	merits, 	we must deem 	the 	"essential
facts 	alleged 	in 	the 	charge 	are 	t r u e . " 	San Juan Unified School
D i s t r i c t 	(3/10/77) 	EERB 	Decision No. 	12.2
The 	present 	charge 	raises 	only 	two material 	facts: 	an
employee 	filed 	a 	grievance 	and, 	in 	i t s 	response, 	the 	Department
made 	the 	quoted remarks. 	CAUSE 	contends 	that 	these f a c t s ,
alone, 	constitute 	a 	prima 	facie 	case 	of 	interference 	or
r e p r i s a l .
In 	a 	charge 	of 	interference, 	a 	prima 	facie 	violation 	is
established 	by 	alleging 	facts 	showing
a 	connection 	[nexus] 	between 	the 	employer's
act 	and 	the 	exercise 	of 	employee 	rights
. 	. 	. 	[and] 	the 	employer's 	action 	tended 	to
harm or 	did 	harm 	employee 	r i g h t s .
State 	of 	California 	(California Department 	of 	Corrections)
(5/5/80) 	PERB Decision No. 	127-S; 	Carlsbad Unified School
D i s t r i c t 	(1/30/79) 	PERB 	Decision No. 	89. 	Where 	the 	charge 	is
2 Prior 	to January 1, 	1978, 	the 	Public Employment
Relations Board was 	known 	as 	the Educational Employment
Relations 	Board.
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one of 	reprisal, 	it must state that 	the employee was 	engaged in
protected activity and such activity was 	a motivating factor 	in
the 	employer's conduct. 	State of California 	(Department 	of
Developmental Services) 	(7/28/82) 	PERB Decision No. 	228-S;
Novato Unified School District 	(4/30/82) 	PERB Decision No. 210.
Under 	either 	charge, CAUSE has failed to state a prima
facie case. 	On its face, the charge indicates 	that 	the
Department's 	comment was a reaction to what it 	considered to 	be
the 	picayune nature of 	the 	grievance 	rather 	than 	to the
employee's 	exercise of 	his 	right 	to 	present i t . 	Further, 	since
the grievance was granted, we do not find that the response,
standing alone, 	had a tendency to chill 	and interfere with the
employee's 	right 	to file grievances 	in 	the 	future.
Accordingly, we dismiss the charge without leave to amend.
ORDER
Upon 	the 	foregoing 	decision 	and 	the 	e n t i r e 	record 	in 	t h i s
c a s e , 	the 	Public 	Employment 	Relations 	Board 	ORDERS 	that 	the
charges 	f i l e d 	by 	the C o a l i t i o n 	of 	Associations 	and 	Unions 	of
S t a t e 	Employees 	be 	DISMISSED 	without 	leave 	to 	amend.
Members 	Tovar 	and 	Burt 	joined 	in 	t h i s 	Decision.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
COALITION 	OF 	ASSOCIATIONS 	AND
UNIONS OF STATE EMPLOYEES 	(CAUSE),
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT 	OF
REAL ESTATE),
Respondent.
Case No. 	S-CE-87-S
NOTICE OF REFUSAL TO
ISSUE COMPLAINT AND
DISMISSAL 	OF CHARGE
WITHOUT 	LEAVE 	TO AMEND
NOTICE 	IS 	HEREBY GIVEN 	that no complaint will 	be 	issued on
the 	above-captioned 	unfair 	practice 	charge 	and 	it 	is 	dismissed
without leave 	to 	amend.
This 	charge 	alleged 	that 	an 	employee 	of 	the Department 	of
Real 	Estate 	had 	an expense 	claim denied 	and 	filed 	a 	grievance
on which 	he prevailed 	at 	the 	third 	step. 	The offensive words
used 	in granting 	the 	grievance were 	found 	not 	to 	state 	a prima
facie charge.
Charging party was given until November 	19, 	1981, 	to either
amend 	the charge or 	appeal 	to 	the Board 	itself. 	On
November 	19, 	1981, 	charging party filed an amendment 	to charge
which contained no new factual allegations but, 	rather, 	made
legal arguments 	on why 	the charge 	states 	a prima 	facie charge.
The 	charge 	is dismissed 	without leave 	to amend 	for 	failing
to 	state 	a prima 	facie 	violation.
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Charging 	party may obtain 	review of 	this 	refusal 	to 	issue
complaint 	and dismissal of 	the 	charge 	by 	filing 	an 	appeal 	to
the Board 	itself 	within 	twenty 	(20) 	calendar 	days 	after 	service
of 	the Notice 	(section 32630(b)). 	Such appeal must be actually
received 	by 	the 	executive 	assistant 	to 	the Board 	before 	the
close of business 	(5:00 p.m.) 	on December 14, 1981, 	in order
to be 	timely filed. 	Such appeal must 	be 	in writing, 	must be
signed 	by 	the charging party or 	its 	agent, 	and must contain 	the
facts 	and 	arguments 	upon which 	the 	appeal 	is 	based 	(section
32630(b)). 	The 	appeal must be 	accompanied by proof of 	service
upon all parties 	(sections 32135, 	32142 and 32630(b)).
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DATED: 	November 	23, 	1981 	WILLIAM 	P. 	SMITH
Chief 	Administrative 	Law Judge
By
Sharrel J. 	Wyat/ t
Hearing 	Officer
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