State of California (Secretary of State) (PERB 0812S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KARIN Y. 	CHEN,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(SECRETARY
OF 	STATE ) ,
Respondent.
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) 	Case No . 	LA-CE-196-S
PERB Decision 	No . 	812-S
June 	7, 1990
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Appearances: 	Karin Chen, 	on her own behalf; 	Department of
Personnel Administration by Linda M. 	Nelson, 	Labor Relations
Counsel, 	for State of California 	(Secretary of State).
Before Craib, 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
charging party, 	Karin Chen 	(Chen), 	and the State of California
(Secretary of State) 	(State), 	to a proposed decision of an
administrative 	law judge 	(ALJ). 	The ALJ 	found that the 	State
violated section 3519(a) 	of the Ralph C. 	Dills Act 	(Dills Act)1
by 	interfering with, 	restraining and 	coercing Chen 	in the
1Ralph C. 	Dills Act 	is 	codified at Government Code 	section
3512 	et 	seq. 	Unless otherwise indicated, 	all 	statutory
references 	herein are to the Government Code. 	Section 	3519(a)
states:
It 	shall be unlawful 	for the 	state to:
(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.
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______________ )

exercise of her protected rights. 	Specifically, 	the ALJ 	found
statements made by Chen's 	supervisors, 	Mabel Lee 	(Lee) 	and Janice
Long 	(Long), 	at a March 	12, 	1987 performance evaluation meeting,
i.e., 	that 	she 	should 	seek employment 	elsewhere, 	interfered with
her protected 	right 	to protest work assignments 	she 	believed were
outside her job description, 	improper, 	and unlawful.2
The ALJ dismissed Chen's 	allegation 	that 	the 	State
discriminated 	against her by 	issuing 	a proposed 	negative
probationary report, 	on the 	grounds 	Chen 	could not 	show an
"adverse 	consequence" 	resulting 	from the proposed 	evaluation.
Similarly, 	Chen's 	constructive discharge 	allegation was 	dismissed
because 	she was 	unable 	to 	show the 	State 	imposed new or more
burdensome 	duties 	on her because 	of 	her 	self-representational
activities. 	The ALJ 	also denied Chen's 	requests 	for punitive
damages 	and damages 	for 	emotional 	distress 	and psychological
injuries, 	since 	such remedies 	are not authorized 	in unfair
practice cases.
Chen excepts 	to the ALJ's dismissal of her: 	(1)
discrimination and constructive discharge claims; 	(2) 	request 	for
punitive damages; 	and 	(3) 	request for damages 	for emotional 	and
psychological 	injuries.
The 	State 	excepts 	to the ALJ's 	finding of 	an 	interference
violation and opposes Chen's 	appeal 	to the 	Board 	on the 	grounds
2The 	issuance 	of 	the 	report was 	neither plead nor 	litigated
as 	an interference allegation, 	but rather, 	as a discrimination
claim.
N	2

she 	failed to 	state any specific 	errors 	of procedure, 	fact, 	law,
or rationale, 	as required by PERB Regulation 32300(a).3
We 	have 	carefully reviewed the 	entire 	record, 	including the
proposed decision, 	transcript, 	exceptions and responses, 	and
affirm the ALJ's 	dismissal 	of 	Chen's 	constructive 	discharge
claim, 	request for punitive damages, 	and request 	for damages 	for
emotional 	and psychological 	injuries. 	We 	further 	find Chen's
interference 	and reprisal 	claims were 	not 	timely 	filed 	and,
therefore, 	reverse the ALJ on the 	finding of 	interference and
affirm the dismissal 	of Chen's 	reprisal 	claim, 	consistent with
the 	discussion below.
FACTUAL 	SUMMARY
Chen was hired on November 6, 	1986, 	as 	an Office Assistant
II 	- 	Bilingual at the Los Angeles office of the State. 	Her
probationary period of 	employment ran for 	six months, 	during
3PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 	et seq. 	Regulation 32300(a)
provides, 	in pertinent part:
The 	statement of 	exceptions 	or brief 	shall:
(1) 	State the specific 	issues of procedure,
fact, 	law or rationale to which each
exception is taken;
(2) 	Identify the page or part of the decision
to which each exception is 	taken;
(3) 	Designate by page citation or exhibit
number the portion of the record, 	if any,
relied upon for 	each 	exception;
(4) 	State the grounds for each exception.
3

which time 	she received three 	evaluations, 	one occurring 	every
two months. 	Chen's 	first probationary report was 	issued on
January 	9, 	1987, 	and was 	generally considered 	favorable. 	In the
months 	that 	followed, 	Chen was requested to run numerous 	errands,
most 	of which 	she 	believed were 	not 	related 	to 	official 	state
business. 	Accordingly, 	she protested 	such assignments 	on the
grounds, they were outside her job description, 	improper, 	and
unlawful.
On March 	12, 	1987, 	Chen received a 	second probationary
report, 	which was 	not 	favorable 	and did not recommend her 	for
permanent 	civil 	service 	status. 	Although 	conflicting testimony
existed on these 	issues, 	the ALJ 	concluded that her protests 	were
a 	substantial 	factor 	in receiving the poor 	evaluation and 	that
she was 	told by her 	supervisors 	at 	the performance 	review meeting
she 	should 	consider 	finding 	another position within two weeks.
Immediately 	thereafter, 	Chen 	contacted her union representative
for assistance 	in appealing the 	negative 	evaluation.
On March 	13, 	1987, 	a meeting was held between Chen, 	Florence
Francis 	(Francis), Chen's CSEA representative, 	and Lee, 	Chen's
supervisor, 	to discuss the evaluation. 	At this meeting, 	Lee
agreed 	to destroy 	the 	evaluation 	if 	Chen 	improved 	over 	the 	next
30 days. 	Lee would, 	however, 	revert to the original report if
improvement was 	not 	shown. 	Chen was 	subsequently told by her
supervisors 	during 	this 	30-day period her 	job performance was
acceptable, 	a revised report with all 	the 	standard ratings would
be 	issued, 	and 	she 	could continue her employment. 	In 	spite 	of
4

this 	improvement, 	Chen tendered her two-week notice during this
reevaluation period, 	informing Lee 	she was 	transferring to
another civil 	service position. 	The notice was 	given, 	according
to 	Chen, 	because 	she 	feared her 	supervisors would again attempt
to 	discharge her if 	she 	challenged the 	job assignments. 	At 	the
request of the State's 	staff, 	however, 	Chen remained with the
office until April 30, 	1987.
PROCEDURAL 	BACKGROUND
Chen 	filed 	an unfair practice 	charge with 	PERB 	on
September 10, 	1987, 	against her exclusive representative, 	the
California State Employees Association 	(CSEA), 	alleging CSEA
incorrectly advised her that the duties 	she was 	requested 	to
perform were within her 	job description 	and/or 	did 	not 	violate
the 	contract. 	Chen submitted the 	same document as 	a 	charge
against 	the 	State, 	which the PERB regional 	attorney treated 	as
alleging a violation of 	section 3519(a) 	of the Dills Act. 	Both
charges 	were 	dismissed by the 	regional 	attorney 	on December 	11,
1987. 	The 	charge against CSEA was dismissed for 	failure 	to 	show
its 	conduct was arbitrary, 	discriminatory, 	or in bad faith. 	The
charge 	against 	the 	State was 	dismissed under the 	deferral 	to
arbitration doctrine 	articulated 	in 	Dry 	Creek 	Joint 	Elementary
School District 	(1980) 	PERB Order No. 	Ad-81a, 	which requires the
charging party 	to 	exhaust 	the 	binding 	arbitration provision 	of
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the 	collective bargaining 	agreement before 	filing 	a 	charge with
PERB.4
Chen 	subsequently 	initiated 	a 	formal 	grievance 	on January 	7,
1988, 	which CSEA declined to pursue to arbitration as 	arguably
untimely and not 	involving a violation of 	the 	contract.
Exhaustion of 	the 	grievance/arbitration provisions 	of 	the
contract appears 	to have been final on August 	18, 	1988. 	On
August 25, 	1988, 	Chen resubmitted her original unfair practice
charge against the State. 	It 	is 	not disputed that Chen's
resubmitted 	charge arises 	out 	of 	the 	same 	factual 	setting as 	her
original 	charge 	filed against 	the 	State.
DISCUSSION
Interference 	and 	Reprisal 	Claims
Section 3514.5(a),5 sets 	forth a 	jurisdictional prerequisite
which, 	if not met, 	requires 	the dismissal of a charge based upon
an alleged unfair practice 	occurring more 	than 	six 	months 	prior
4Subsequent to this 	action by the regional 	attorney, 	the
Board, 	in Lake Elsinore School District 	(1987) 	PERB Decision
No. 	64 6, 	overruled Dry Creek, 	supra. 	to the extent it required- -
application of 	the National 	Labor Relations 	Board's 	Collyer
Insulated Wire 	(1971) 	192 NLRB 837, 	842 	[77 LRRM 	1931] 	standard
for prearbitration deferral.
5Section 3514.5 provides, 	in relevant part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right to 	file 	an
unfair practice charge, 	except that the board--
shall not do either of the following: 	(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; 	. 	. 	.
(Emphasis 	added.)
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to the 	filing of the 	charge. 	(Calexico 	Unified School 	District
(1989) PERB Decision No. 	754, pp. 	5-7; 	see, also, California
State University 	(San Diego) 	(1989) 	PERB Decision No. 	718-H, 	pp.
8-14. ) 6
Further, 	where the Board is without 	jurisdiction with
respect 	to a matter before 	it, 	the Board must dismiss 	the matter
on its 	own motion, 	regardless 	of whether the 	jurisdictional 	issue
has 	been raised by the parties. 	(Lake Elsinore 	School 	District,
supra. p. 	18.)
Chen filed her original charge on September 	10, 	1987, 	which,
based upon the 	facts 	she relayed to the regional 	attorney, 	was
treated as 	alleging a violation of 	section 3519(a).7
There 	is 	no dispute the alleged acts 	of reprisal 	and
interference 	specifically 	complained 	about 	by 	Chen 	are 	the
negative evaluation and comments, 	respectively, 	she received at
the March 	12, 	1987 meeting. 	Assuming the March 	13 	meeting
between Chen, 	Francis, 	and Lee was 	an informal grievance meeting
6Although 	these 	decisions 	arise 	under the 	Educational
Employment Relations Act 	(EERA) 	and the Higher Education
Employer-Employee Relations Act 	(HEERA), 	the language contained
in those 	statutes 	requiring that 	a 	charge must be 	filed within
six months 	of 	the 	alleged unfair practice 	is 	identical 	to 	section
3514.5(a)(l) 	of the Dills Act. 	(See HEERA section 3563.2(a),
EERA 	section 3541.5(a).) 	Accordingly, 	we hold the 	same rules 	of
statutory 	construction and decisions 	of 	the 	Board 	are 	applicable
to section 3514.5(a).
7It 	is 	unclear 	from the 	charge 	itself what 	specific
violations 	she 	intended to allege. 	However, 	based upon the
regional 	attorney's 	investigation, 	it was 	determined 	she alleged
that 	the 	employer 	gave her a 	negative 	evaluation and 	recommended
she 	seek other 	employment 	in retaliation 	for protesting 	the
assignment of 	certain duties.
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under her 	collective bargaining agreement, 	the processing of
which tolled the 	running of 	the 	six-month 	filing period, 	the
final 	filing date 	for Chen's 	unfair practice 	charge would have
been September 	13, 	1987.8 (See 	Saddleback Valley Unified School
District 	(1985) 	PERB Decision No. 	558 	in which the Board
established a 	formula for calculating the 	six-month period.)9
Thus, 	when Chen filed her charge on September 	10, 	1987, 	she had
three 	days 	remaining of 	the 	six-month 	statutory period 	in which
to file her claim. 	On December 	11, 	1987, 	PERB dismissed the
charge 	and deferred 	the 	matter to 	binding arbitration.
Chen did not 	file 	a 	formal 	grievance with CSEA until
January 	7, 	1988. 	However, 	assuming arguendo that the 	six-month
statute of limitations period was tolled, 	(1) 	between
December 	11, 	1987 and January 7, 	1988, 	on the theory Chen was
preparing to 	file 	a grievance during that period,10 and 	(2)
88 Lee's 	agreement at the March 	13 	meeting to withdraw the
negative 	evaluation that 	same day resolved the 	contractual 	issues
and 	the 	statutory period would 	commence 	to 	run on March 	14.
(Los Angeles Unified School District 	(Siamis) 	(1983) 	PERB
Decision No. 	311.)
9The Board in Saddleback, 	supra. 	at p. 	3 held:
Consistent with 	section 	12 	of the Code of
Civil 	Procedure, 	we hold that the 	six-month
period 	is 	to be 	computed by 	excluding the day
the 	alleged misconduct 	took place 	and
including the 	last day, 	unless 	the last day
is a holiday, 	and then it is also excluded.
10Except 	for the March 	13 meeting, 	there 	is no 	evidence Chen
initiated 	the 	grievance procedure 	of 	the 	collective 	bargaining
agreement 	formally or informally with CSEA until 	January 	7, 	1988.
To 	the 	contrary, 	considerable 	evidence 	exists 	that CSEA advised
Chen her 	complaints 	were 	not 	covered by the 	contract 	and
therefore not grievable. 	Accordingly, 	the 	statute was 	not tolled
8

between January 7, 	1988 to August 	18, 	1988, 	the period from her
filing of the grievance to 	its 	final denial, 	Chen's 	resubmission
of the unfair practice charge to PERB on August 25, 	1988, 	was
untimely. 	As 	noted above, 	at the time Chen filed her original
unfair practice 	charge, 	she had three days 	remaining of 	the 	six-
month 	limitation period. 	Having 	let 	seven days 	lapse between the
denial 	of her grievance and the refiling of her charge, 	Chen's
filing was 	untimely by 	four days.
during the period between March 	14, 	1987 and September 	10, 	1987,
on a 	theory 	she was preparing to 	file a grievance. 	(See
California 	School 	Employees Association 	(Spiegelman) 	(1984)
PERB 	Decision No. 	400, 	where the Board noted that tolling did not
occur where 	the 	grievant 	knew the 	union was 	not pursuing 	his
grievance.)
Accordingly, 	we 	find Chen's 	interference and 	reprisal 	claims
are 	timebarred and that 	PERB 	lacks 	jurisdiction to 	issue 	a
complaint on either allegation. 	We, 	therefore, 	reverse the ALJ
on the 	finding of 	an 	interference 	violation by the 	State 	and,
while we 	agree with the ALJ 	that 	Chen's 	reprisal 	claim must 	be
dismissed, 	we do 	so on the grounds 	it was 	not timely 	filed.
Constructive 	Discharge 	Claim
With respect 	to Chen's 	constructive discharge 	claim, 	we 	find
the 	charge 	is 	timely filed, 	but affirm the ALJ's dismissal.
Chen alleges 	she was 	constructively discharged 	out 	of 	fear
the 	State would 	issue a 	negative 	evaluation 	in retaliation 	for
her 	continued protests 	of 	job assignments.
On April 	9 	1987, 	Chen submitted a 	letter notifying the
State 	she would be transferring to 	another position 	in two weeks.
y
99

Nevertheless, 	Chen remained in her position, 	at the State's
request, 	until April 	30, 	1987. 	Assuming arguendo Chen's
constructive discharge claim accrued April 	30, 	1987, 	she had
until October 30, 	1987 to file her charge. 	Thus, 	the filing of
her original charge on September 	10, 	1987, 	left 	50 days on the
limitations 	period. 	Chen's 	constructive discharge 	claim,
therefore, 	is 	arguably timely filed.
In order 	to 	establish 	constructive 	discharge 	based upon
protected activity, 	the Board has 	held the 	charging party must
show: 	(1) 	that the burden imposed must 	cause and be 	intended to
cause a 	change 	in working conditions 	so difficult 	or unpleasant
as 	to 	force the employee to resign; 	and 	(2) 	the burden was
imposed because of 	the 	employee's 	union activities. 	(Hacienda
La Puente Unified School District 	(1988) 	PERB Decision No. 	685;
Marin Community College District 	(1980) 	PERB Decision No. 	145.)11
Chen 	fails 	to provide 	any evidence 	that 	the 	State 	imposed
the objectionable duties with the intent to retaliate against her
for 	engaging 	in protected activities. 	The 	letter 	from her
supervisor, 	Lee, 	to her CSEA representative, 	Francis, 	which Chen
offers as evidence of a threat, 	is nothing more than a
confirmation of the agreement reached at their March 	13, 	1987
meeting 	that 	the 	negative 	evaluation would be withdrawn.
11Although these decisions 	arise under EERA, 	we hold the
test 	for 	constructive 	discharge 	established 	by 	those 	decisions
are 	equally applicable to 	cases 	arising under the Dills Act.
(See State of California 	(Franchise Tax Board) 	(1982) 	PERB
Decision No. 	229-S 	in which the Board held EERA's 	standard 	for
evaluating reprisal 	claims 	is 	applicable to 	cases 	arising under
the 	Dills Act.)
10

Finally, 	there is no evidence that the negative evaluation, 	or
any other conduct by the State, 	imposed a change 	in working
conditions 	so burdensome as 	to 	cause Chen to transfer.12
Accordingly, 	Chen's 	constructive discharge claim is
dismissed.
Punitive 	Damage. 	Emotional 	and Psychological 	Injury Claim
We 	affirm the ALJ's 	decision that PERB 	is without 	authority
to 	award punitive damages 	or damages 	for 	emotional 	or
psychological 	injuries 	in unfair practice cases. 	PERB also 	lacks
jurisdiction to 	issue a 	complaint 	or provide a 	remedy based upon
alleged 	violations 	of 	Government 	Code 	section 	19990 	and 	Penal
Code 	section 424.13 Accordingly, 	Chen's 	requests 	for 	such relief
are 	dismissed.1 4
12It is not the job assignments themselves but, 	rather, 	only
reprisals 	taken in response 	to protesting those assignments 	that
could 	form the basis 	of 	a violation of 	the 	Dills Act 	in this
case.
13PERB's 	authority 	is 	limited to 	enforcing the three
collective bargaining 	statutes 	it 	is 	charged with administering.
In this 	case, 	the applicable 	statute is 	the Dills Act and the
fact 	that Government Code 	section 	19900 	and Penal 	Code 	section
424 	are 	incorporated 	into 	Chen's 	collective 	bargaining 	agreement
does 	not 	confer any additional 	authority upon the Board. 	(Grant
Joint Union High School District 	(1982) 	PERB Decision No. 	196.)
14 Chen also 	requests 	reimbursement 	for 	an outstanding 	travel
voucher. 	The 	Board 	is without authority to order reimbursement
of 	the travel 	claim, 	unless 	nonpayment occurred in retaliation
for Chen's 	protected activity. 	Since 	such 	facts 	are 	not 	alleged
in this 	case, 	Chen's request for reimbursement 	is 	also dismissed.
11
"

ORDER
The complaint 	in Case No. 	LA-CE-196-S 	is hereby DISMISSED.
Members 	Craib and Shank 	joined 	in this 	Decision.
12