State of California (Department of Health Services) (PERB 0762S)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RASH B. 	GHOSH,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
HEALTH 	SERVICES),
Respondent.
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) 	Case No. 	SF-CE-90-S
PERB 	Decision No. 	762-S
September 	13, 	1989
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Appearance: 	Rash B. 	Ghosh, 	Ph.D., 	on his own behalf.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	Shank and Camilli,
Members.
DECISION AND 	ORDER
This 	case 	is 	before 	the Public 	Employment Relations 	Board
(Board) 	on appeal 	by the 	charging party of 	a Board agent's
dismissal 	(attached hereto) 	of his 	charge that the respondent
violated 	section 3519 of the Ralph C. 	Dills Act 	(Gov. 	Code 	sec.
3512 	et 	seq.). 	We have reviewed the dismissal and affirm it
insofar as 	the 	Board agent 	found that 	the 	charge was 	untimely
filed. 	Given this 	finding, 	it is unnecessary to determine
whether the 	charge was 	otherwise 	sufficient 	to 	state 	a prima
facie case, 	and we decline to do so.
The unfair practice charge 	in Case No. 	SF-CE-90-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.1
By the 	BOARD
1The 	charging party's 	request 	for 	oral 	argument 	and
attorneys' 	fees is DENIED.
__)

STATE OF CALIFORNIA 	. 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER
O f f i c e 	o f 	t h e 	G e n e r a l 	Counsel
1031 18th Street, Room 200
Sacramento, CA 	95814-4174
(916) 	3 2 3 - 8 0 1 5
May 19, 	1989
Rash B. 	Ghosh, 	Ph.D
Re: 	Rash B. 	Ghosh v. 	State of California 	(Department of Health).
Unfair Practice Charge No. 	SF-CE-90-S
Dismissal 	of Charge and Refusal 	to 	Issue Complaint
Dear Dr. 	Ghosh:
On February 	17, 	1989, 	you filed an Unfair Practice Charge against
the Department of Health, 	State of California 	(State) 	alleging
violation of Dills Act 	section 3519(a) 	and 	(b). 	More 	specifically,
you allege that on November 24, 	1987, 	the State rejected you during
probation, 	effective December 4, 	1987, 	because on June 	10, 	1987 you
had 	informed Mr. 	Howard Hatayama that you had 	complained to 	the
Union in reference 	to harassment directed at you by your boss 	Mr.
Rick Notini.
You 	spoke with Peter Haberfeld, 	then the San Francisco 	Regional
Attorney, 	concerning the original charge on February 21, 	March 	10,
16 and 20, 	1989. 	During the conversations, 	you were informed that
the charge was deficient as originally filed. 	On March 22, 	1988,
PERB 	received a 	First Amended 	Unfair 	Practice 	Charge 	from you
alleging the 	same violations.
On April 	28, 	1989, 	I 	indicated to you 	in my attached 	letter that the
First Amended Charge did not 	state a prima 	facie case. 	You were
advised that 	if 	there were 	any 	factual 	inaccuracies 	or additional
facts 	that would 	correct 	the deficiencies 	explained 	in that 	letter,
you 	should amend the 	charge 	accordingly. 	You were 	further advised
that unless you amended the charge to state a prima 	facie case, 	or
withdrew it prior to May 5, 	1989, 	the charg	. . . " 	e would be dismissed. 	On
May 	4 	you requested and were 	granted a continuance 	to 	file 	the
amended charge by May 	18, 	1989. 	Your Second Amended Charge was 	sent
by certified mail on May 	17, 	1989.
In essence, 	the 	Second Amended Charge does 	not raise 	any 	new facts,
but merely repeats 	those 	facts 	already presented as 	well 	as 	making
additional 	legal 	arguments. 	First you assert 	that Mr. 	Hatayama
refused to transfer you, 	and repeat the 	statement which he made

Rash B. Ghosh, Ph.D.
May 19, 	1989
Page 2
concerning your visit to the union. 	Nothing further can be drawn
from this information to support a finding of nexus.
Second, 	you repeat your allegation that the settlement agreement
which you signed was an invalid agreement. 	Your argument that the
agreement is invalid because you signed a copy but not the original
of the agreement appears to have no basis in law.
Third, 	you assert that you filed your charge within six months from
the date on which the official paperwork regarding your demotion was
completed. 	The Public Employment Relations Board has consistently
found that the statute of limitation period runs 	from when the
charging party knew or should have known of the alleged illegal
conduct. 	Fairfield-Suisun Unified School District 	(1985) 	PERB
Decision No. 	547. 	You were aware in late November 1987 that the
State was rejecting you from probation, 	and that is the point at
which the statute of limitations began running.
Finally, 	you repeat your argument that equitable tolling should
apply to your case and that if it did, 	your charge would be timely.
In my letter I indicated that equitable tolling does not apply
because your original claim with the State Personnel Board was not
based on discrimination because of union activity. 	In your Second
Amended Charge you indicate that the original discrimination
complaint raised the same theory as your current charge with PERB.
Specifically, 	you rely on your March 26, 	1988 mailgram to the SPB.
However, 	a review of the mailgram indicates that you stated 	"my
former supervisor Mr. 	R. 	Notini made a plan to fire me soon after he
joined the SMU unit in January 1987 because he was biased and
racially prejudiced. 	. 	. This unit recently discriminated against
another Bengali. 	. 	.Mr. 	Notini and other people involved in this
matter should be investigated for breaking stat. .. e affirmative action
and civil right laws and economic 	wastefulness." 	Nowhere in your
mailgram or other documents 	submitted to the SPB do you mention your
claim that you were discriminated against because of your visit to
the union. 	Accordingly, 	equitable tolling is inappropriate in this
case.
Based on the reasons described above, 	as well as those contained in
my April 28 letter, 	this charge is dismissed for failure to state a
prima facie case.
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

Rash B. Ghosh, Ph.D.
May 19, 	1989
Page 3
to the Board itself within twenty 	(20) 	calendar days 	after 	service
of this dismissal 	(California Administrative Code, 	title 8,
section 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 	(5:00 p.m.) 	or sent by telegraph, 	certified or
Express 	United States 	mail postmarked no 	later than the 	last date
set for filing 	(California Administrative Code, 	title 8, 	section
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 calendar days 	following the
date of 	service of the appeal 	(California Administrative Code, 	title
8, section 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 California Administrative Code, 	title 8,
section 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 	calendar days 	before the 	expiration of 	the time
required for 	filing the document. 	The request must 	indicate good
cause for and 	if known, 	the position of each other party regarding
the extension, 	and shall be accompanied by proof of 	service of 	the
request upon each party 	(California Administrative Code, 	title 	8,
section 	32132).
- . . "

Rash B. 	Ghosh, Ph.D.
May 19, 	1989
Page 4
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will become 	final when the time 	limits 	have 	expired.
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By .
Robert 	Thompson
Deputy General Counsel
Attachment

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
O f f i c e 	o f 	t h e 	G e n e r a l 	C o u n s e l
1031 18th Street, Room 200
Sacramento, CA 	95814-4174
(916) 	3 2 3 - 8 0 1 5
April 	28, 	1989
Rash B. 	Gosh, Ph.D.
Re: 	Rash B. 	Gosh v. 	State of California 	(Department of Health).
Unfair Practice Charge No. 	SF-CE-90-S
Dear Dr. 	Gosh:
On February 	17, 	1989, 	you 	filed an Unfair Practice Charge against
the Department of Health, 	State of California 	(State) 	alleging
violation of Dills Act section 3519(a) 	and 	(b). 	More specifically,
you allege that on November 24, 	1987, 	the State rejected you during
probation, 	effective December 4, 	1987, 	because on June 10, 	1987 you
had 	informed Mr. 	Howard Hatayama 	that you had 	complained to 	the
Union 	in reference 	to harassment directed 	at you by your boss 	Mr.
Rick Notini.
You 	spoke with Peter Haberfeld, 	then the San Francisco Regional
Attorney, 	concerning the original charge on February 21, 	March 	10,
16 and 20, 	1989. 	During the conversations, 	you were informed that
the charge was deficient as originally filed. 	On March 22, 	1988,
PERB 	received 	a 	First Amended 	Unfair Practice 	Charge 	from you
alleging the same violations.
My 	investigation revealed the 	following 	information. 	On November
19, 	1986, 	you were appointed as an Associate Hazardous Waste
Specialist. 	You worked under the 	supervision of 	Howard Hatayama,
the Supervising Waste Management Engineer. 	On January 	12, 	1987, 	you
were placed under the 	supervision of Mr. 	Rick Notini.
You 	explained that 	during 	the 	initial weeks 	of work under
Mr. 	Notini's 	supervision, 	he lauded your work. 	You state that you
began to 	sense 	that he had a problem with you when he 	questioned why
Stanford had accepted you but not him. 	After a meeting between you
and a woman of some prominence on May 	13, 	1987, 	he became, 	in your
words, 	"tough". 	He became disapproving and, 	toward the end of May
indicated that he was 	going to fire you. 	In early June, 	he repeated
the 	threat 	and 	showed you a paper he 	appeared 	to be drafting which
• II.
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. 	... .

Rash B. Gosh, Ph.D.
April 28, 	1989
Page 2
evaluated your work performance 	negatively. 	On the 	next day, 	you
contacted 	the 	Union 	in Sacramento and were 	told that 	you would have
the right to 	file a rebuttal 	to a negative evaluation.
In reaction to the worsening relationship with Mr. 	Notini, 	you went,
on June 	10, 	1987, 	to speak with Mr. 	Howard Hatayama, 	Mr. 	Notini's
supervisor. 	You requested that he transfer you to a group which was
supervised by 	someone other than Mr. 	Notini. 	He 	expressed his
evaluation that your work was 	very good, 	and characterized Mr.
Notini's 	negative 	comments 	as 	arising 	from a 	"personality 	conflict".
He stated, 	further, 	that he would consider a transfer.
A 	few days 	later you 	spoke again with Mr. 	Hatayama about a transfer.
You mentioned at that 	time 	that you had gone 	to the 	Union and 	they
had told you of your right to rebut what appeared to be Mr. 	Notini's
forthcoming misrepresentation about you work performance. 	Mr.
Hatayama 	expressed anger that you had 	obtained assistance 	from the
Union to challenge the evaluation. 	He 	said:
"You went to the Union and want to fight 	it. 	Go
ahead. 	We also went to the Administration and we
will see."
From that point 	forward, 	Mr. 	Hatayama 	consistently 	supported the
negative evaluations prepared by Mr. 	Notini.
The First Amended Charge has 	attached to it, 	3 	separate evaluations
of your work prepared by Mr. 	Notini. 	The 	evaluation prepared 	for
the period commencing on March 	18, 	1987 was 	not 	signed by Mr. 	Notini
until July 7, 	1987 and thereafter sent to you. 	It rates your
performance as 	"improvement needed". 	You complain that Mr. 	Notini
concealed 	from you, 	prior to the dated your received the 	evaluation,
his 	conclusion that 	improvement was 	needed 	in 	specified areas. 	You
state 	that he had made no 	effort 	to 	correct 	or improve your work
during the 	first 	seven months 	he was 	your 	supervisor and 	express
your 	conclusion that 	he was 	motivated to 	get 	rid of 	you 	rather 	than
work with you 	to 	cure 	alleged 	defects 	in your performance.
The 	evaluation prepared 	for the period beginning July 	18, 	1987 	also
rates your performance as 	"improvement needed". 	The 	evaluation
signed by Mr. 	Notini on November 	18, 	1987 rates your performance as
"unacceptable". 	The comment 	indicates 	that there has been improve-
ment, 	but according to the evaluator, 	it is 	insufficient and does
not meet 	the 	standards 	appropriate 	for an Associate 	Hazardous
Material 	Specialist.

Rash B. Gosh, 	Ph.D.
April 28, 	1989
Page 3
On November 24, 	1987, 	the State delivered to you a 	"Notice of
Rejection during Probation". 	The notice was 	signed on November 	18,
1987 and by its terms, 	became effective on December 	12, 	1987.
On December 7, 	1987, 	you signed a Stipulated Settlement Agreement
which was 	prepared by the 	staff 	attorney 	for the 	Department of
Health Services. 	John Sikora, 	your Union representative, 	asked you
to 	sign the 	stipulation, 	but you refused to 	sign the original.
Instead, 	you 	signed the copy, 	believing that 	it could not bind you
to the terms 	of 	the 	stipulation.
You asserted two reasons 	for rejecting the Settlement Agreement. 	In
your view, 	you became a permanent employee 	in the classification
Associate 	Hazardous 	Materials 	Specialist 	automatically on November
18, 	1987, 	one year after you commenced employment; 	you received the
rejection 	from probation six days 	after you became permanent. 	In
addition, 	you asserted that the rejection was 	motivated by discrimi-
nation and had nothing to do with your performance 	level.
As 	a 	result 	of 	the Stipulated Agreement, 	you were demoted 	from an
Associate 	Hazardous 	Materials 	Specialist to a 	Hazardous 	Materials
Specialist and began to receive a 	salary which has 	been reduced
between 	five 	and 	six hundred dollars per month.
You have attached, 	as 	an exhibit to the First Amended Unfair
Practice Charge, 	a notice dated March 29, 	1987, 	that you were being
paid 	a 	"revolving 	fund warrant" 	rather than a 	regular 	"Comptroller's
payroll warrant". 	Copies of mailgrams you sent on March 26, 	1988
and June 27, 	1988, 	indicate that you had begun to receive what you
termed a 	"substantially reduced" 	salary. 	The notice 	indicates
further that the State Administration was 	still 	in the process 	of
completing 	the 	necessary paperwork to 	reflect your demotion.
On March 25, 	1988, 	you received a 	letter from the State Personnel
Board 	(SPB) 	upholding the Stipulation. 	The SPB letter was dated
February 24, 	1988 	and the envelope indicates 	that 	it was 	sent on
February 26, 	1988. 	Prior to that communication you were unaware
either 	that 	the 	Stipulation was 	reviewed by 	the 	SPB 	or that you
would have 	had 	an opportunity 	to 	oppose 	the 	demotion and 	reduction
in pay.
1Under the 	agreement 	the 	state withdrew your rejection from
probation and you were demoted 	to the 	classification of 	Hazardous
Materials 	Specialist, 	Range B. 	In addition you agreed to waive
your SPB 	appeal 	and 	any 	alternative 	forms 	of 	appeal 	arising out
of 	the dispute.

Rash B. Gosh, Ph.D.
April 28, 	1989
Page 4
On March 26, 	1988, 	you wrote a mailgram to the President of the SPB.
In that document, 	a 	copy of which is 	attached to the First Amended
Unfair Practice Charge, 	you explained that you had received the 	SPB
letter 	the previous 	day and 	asserted that 	the denial 	of probation
and demotion resulted 	from the racial prejudice which Mr. 	Notini
bears 	toward you. 	You concluded the mailgram by 	indicating 	that a
more 	detailed 	letter would 	follow.
During the 	first week of June 	1988, 	you received a 	letter from
Mr. 	Walter Vaughn, 	an Assistant Executive Officer with the SPB,
dated May 24, 	1988. 	It refers to your letter of April 	18, 	1988,
apparently the 	follow-up letter to the mailgram, 	and 	states 	that
your complaints of 	"discrimination, 	harassment, 	abuses and
incompetency 	in the Department of Health Services" 	raise 	issues
which 	should be discussed with an attorney. 	As 	to the 	issue of 	your
rejection on probation, 	the 	letter concludes 	that the 	stipulation is
controlling.
After receiving the SPB 	letter, 	you hired a private attorney to
address your concerns. 	He wrote a letter to the SPB. 	You
apparently 	sent a 	letter as well.
On September 6, 	1988, 	you received another letter from Mr. 	Vaughn.
He 	responds 	to your claim that the agreement was 	invalid by 	stating
that 	such an 	issue 	should have been raised by you as 	a response 	to
the SPB letter of February 24, 	1988. 	However, 	he points out, 	your
letter of March 26, 	1988 was not sent within the required thirty day
time period. 	He 	concludes 	that you have no 	further recourse before
the SPB.
You 	informed me 	that the SPB did not 	inform you, 	before you received
Mr. 	Vaughn's letter of September 6, 	1988, 	that you had thirty days
within which to appeal. 	More 	importantly, 	you point out that by the
time you received the SPB 	letter the appeal period had, 	by the SPB's
calculations 	terminated. 	The SPB had mailed the Order to the wrong
address 	and 	it 	had not 	found 	its way to 	you 	(after having been
routed once more through the SPB) 	before March 25, 	1988.
You 	apparently responded to 	the 	SPB 	letter by 	requesting 	formal
reconsideration of 	the 	conclusion that you had no 	further recourse
concerning the validity of the Stipulation. 	Mr. 	James C. 	Waller,
Chief Administrative Law Judge for the SPB, 	wrote you a 	letter,
dated January 31, 	1989, 	stating that he had reviewed SPB #23571—
Rash B. 	Gosh, 	finds both that a 	settlement was 	approved by the SPB
on February 	24, 	1988 	and that 	it became 	final 	thirty days 	after the

Rash B. 	Gosh, 	Ph.D.
April 28, 	1989
Page 5
SPB's approval. 	Therefore, 	he rules, 	your request to reconsider the
issues 	is denied.
On February 23, 	1989, 	a day after receiving Judge Waller's 	letter
from the law office of Mr. 	Barnard Cohn, 	you wrote a reply.
Based on the 	facts described above, 	your charge does 	not 	state a
prima 	facie violation of the Dills Act 	for the reasons which 	follow.
To 	state a prima 	facie violation of the Dills Act, 	Charging Party
must 	allege 	and ultimately 	establish 	that 	the 	alleged 	unfair
practice 	either occurred, 	or was discovered within the 	six month
period 	immediately preceding the 	filing of 	the 	charge with PERB.
Government Code 	section 3514.5(a)(1). 	San Dieguito Union High
School District 	(1982) 	PERB Decision No. 	194. 	Your charge complains
of 	your rejection 	from probation which you became 	aware of 	on
November 24, 	1987. 	That demotion was to be effective on December 4,
1987. 	On December 7, 	1987, 	you signed a copy of a Stipulated
Settlement Agreement which demoted you. 	The demotion was 	imple-
mented and your mailgrams 	of March and June 	of 	1988 	indicate 	that
you were paid pursuant to the agreement that you be demoted. 	It 	is
of no effect that the paperwork was only completed in August, 	1988.
Your charge was 	filed on February 	17, 	1989, 	clearly after expiration
of the six month period beginning on November 24, 	1987.
In State of California. 	Department of Developmental 	Services 	(Mata)
(1981) 	PERB Order No. 	Ad-122-S, 	PERB held that Section 3514(a)(2) 	of
the 	Dills Act 	tolls 	the 	statutory 	six month period of 	limitations
when the 	charging party has 	several 	legal 	remedies 	and reasonably
and in good faith pursues one. 	That test, 	in the Board's view,
satisfies 	the 	concern that the partly against which the claims 	are
filed 	is 	informed of 	the dispute within sufficient time to enable 	it
to 	identify and 	locate persons with knowledge 	of 	the 	events 	or
circumstances 	surrounding 	the 	injury.
Even applying the principles 	of 	tolling does 	not make your charge
timely. 	Although you 	filed materials 	with the SPB beginning on
March 26, 	1987, 	these materials did not raise with the SPB the issue
contained 	in your charge here, 	namely that your rejection was
because of your union activity. 	Thus, 	your activities with the SPB
do not toll 	the 	statute because they were not reasonable good 	faith
efforts 	to 	remedy your case of discrimination based on union
activity. 	Rather, 	the communications appear to raise the argument
that you were rejected 	for reasons 	of race and/or national origin.
Accordingly, 	your charge is untimely and will be dismissed.

Rash B. 	Gosh, 	Ph.D.
April 28, 	1989
Page 6
Even assuming the charge is 	timely, 	it 	still does 	not 	state a prima
facie case. 	To demonstrate a violation of 	section 3519 of the Dills
Act, 	the charging party must 	show that: 	(1) 	the employee exercised
rights under the EERA, 	(2) 	the employer had knowledge of the exer-
cise of those rights, 	and 	(3) 	the employer imposed or threatened to
impose reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained 	or coerced the 	employees
because of 	the 	exercise of 	those rights. 	Novato Unified School
District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; 	Department of Developmental
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University. 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.
The 	charge as presently set 	forth 	fails 	to 	state a prima 	facie
violation of Section 3519(a) 	of 	the Dills Act. 	You alleged that 	in
June 	1987, 	you obtained the assistance of the Union and as a
consequence, 	were represented by the Union, 	through the date in
December, 	1987, 	when you signed the Stipulated Agreement that you
would be working 	in a 	lower classification at a 	lower salary. 	You
have also alleged that the employer in November, 	1987, 	demoted you,
and thereafter 	commenced paying you a 	lower 	salary. 	Consequently,
the 	charge 	contains 	allegations which technically 	satisfy the 	first
two pleading requirements 	in a discrimination charge: 	that you
engaged in protected activity under the Dills Act, 	and that you were
treated adversely by 	the 	employer.
However, 	there are no allegations 	to 	satisfy the third element:
that 	there was 	some 	connection between your 	exercise of protected
activity and the 	employer's 	adverse 	treatment. 	Although 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 a 	connection between the employee's
conduct and the 	employer's 	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 r 	supra:
North Sacramento School District 	(1982) 	PERB Decision No. 	264. 	You
allege 	that Mr. 	Hatayama knew you had gone to the Union 	for
assistance 	and 	stated: 	"You went to the 	Union and want to 	fight 	it.

Rash B. Gosh, Ph.D.
April 28, 	1989
Page 7
Go ahead. 	We also went to the Administration and we will 	see."
This 	statement 	is 	insufficient 	to 	suggest that the State demoted you
and 	reduced your 	salary because 	you 	sought 	and 	obtained 	assistance
from the 	Union.
As presently written, 	this 	charge 	fails 	to demonstrate any of 	these
factors 	and therefore does 	not 	state a prima 	facie violation of
section 3543.5(a).
Finally, 	your charge 	fails 	to 	state a violation of the Dills Act
because you waived your right 	to pursue 	a 	remedy with the 	Public
Employment Relations 	Board 	(PERB) 	when you 	signed the 	settlement
agreement 	in December 	1987. 	Although you challenge the validity of
this 	agreement, 	you have benefitted 	from portions 	of the agreement.
There 	is 	no 	evidence 	that 	this 	agreement 	should be voided now.
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 any 	additional 	facts 	that would correct 	the deficiencies
explained above, 	please amend the charge accordingly. 	The amended
charge 	should be prepared 	on a 	standard PERB unfair practice 	charge
form clearly 	labeled First Amended Charge, 	contain all 	the 	facts 	and
allegations 	you wish to make, 	and must 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 May 5, 	1989, 	I 	shall dismiss your charge. 	If you have any
questions, please call me at 	(916) 	323-8015.
Sincerely,
Robert 	Thompson
Deputy General 	Counsels
RT:ckc