State of California (Employment Development Department) (Gonzales) (PERB 1020S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ARTHUR 	ESPARZA 	GONZALES,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(EMPLOYMENT
DEVELOPMENT 	DEPARTMENT),
Respondent.
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) 	Case 	No. 	S-CE-648-S
PERB Decision N o . 	1020-S
October 	21, 	1993
)
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Appearance: 	Arthur Esparza Gonzales, 	on his 	own behalf.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
BLAIR, 	Chair: 	This 	case 	is before 	the 	Public 	Employment
Relations 	Board 	(Board) 	on appeal 	by Arthur 	Esparza Gonzales
(Gonzales) 	of 	a Board agent's 	dismissal 	(attached) 	of 	his unfair
practice 	charge. 	The 	charge 	alleged 	that 	the 	State 	of 	California
(Employment 	Development 	Department) 	violated 	section 	3519(a) 	and
(b) 	of 	the Ralph C. 	Dills Act 	(Dills A c t )1 by denying Gonzales
1 The Dills 	Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	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
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
e

his 	right 	to 	union 	representation and by 	retaliating 	against 	him
for 	engaging 	in protected union activity.
The 	Board has 	reviewed 	the 	entire 	record in 	this 	case 	and
finds 	the Board agent's 	dismissal 	to be 	free 	of prejudicial 	error
and adopts 	it 	as 	the decision of 	the Board itself.
The unfair practice 	charge 	in Case No. 	S-CE-648-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Caffrey and Carlyle 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
PEAR
PEAR
June 11, 	1993
Arthur 	Esparza 	Gonzales
Re: 	Arthur Esparza Gonzales v. 	State of 	California 	(Employment
Development 	Department)
Unfair 	Practice 	Charge No. 	S-CE-648-S
DISMISSAL 	LETTER
Dear Mr. 	Gonzales:
On March 12, 	1993, 	you filed a charge 	in which you allege 	that
the 	State 	of 	California 	(Employment Development Department) 	(EDD)
violated section 3519(a) 	of the Government Code 	(the Dills Act).
Specifically, 	you allege 	that 	EDD, 	denied your request 	for
representation during meetings on August 5, 	and 12, 	1992, 	and
issued you a notice of rejection on December 21, 	1992, 	as 	a
reprisal 	against 	you 	for 	exercising 	rights 	guaranteed by 	the
Dills Act.
I 	indicated to you, 	in my attached letter dated May 7, 	1993, 	that
the above-referenced charge did not 	state a prima 	facie 	case. 	In
addition, 	you were 	informed that your allegation that 	EDD 	issued
you a notice 	of 	rejection as 	a reprisal 	against 	you 	for
exercising 	rights 	guaranteed by the Dills Act 	was 	deferrable 	to
arbitration. 	You were also advised that, 	if 	there were any
factual 	inaccuracies 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained in 	that 	letter, 	you 	should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state a prima 	facie 	case 	or withdrew it 	prior to May
18, 	1993, 	the charge would be dismissed.
On May 17, 	1993, 	you requested an extension of 	time 	to 	file an
amended charge and we agreed to an extension until May 24, 	1993.
On May 20, 	1993, 	you filed an amended charge.
You 	attached a 	copy of EDD's Notice 	of 	Rejection dated December
21, 	1992 	to your amended charge and appear to allege 	that 	because
the Notice 	of Rejection was 	issued on December 	21, 	1992 	and EDD
used your 	request 	for 	representation as 	a 	reason 	for 	rejecting
you during probation, 	the unfair practice 	occurred on December
21, 	1992, 	thus, 	your original 	charge was 	filed within the six-
month statute 	of 	limitations. 	Your amended 	charge 	also 	for 	the

DISMISSAL 	LETTER 	S-CE-648-S
June 11, 	1993
Page 2
first 	time appears 	to allege 	that 	EDD violated section 3519(b).1
As 	I 	stated previously in my letter of May 7, 	1993, 	the alleged
denial of 	representation occurred on August 	5, 	and 12, 	1992.
Your 	charge was 	filed with 	the 	Public 	Employment 	Relations 	Board
(PERB) 	on March 12, 	19932, 	which means that for PERB to have
jurisdiction 	over any alleged unfair practice by 	EDD 	it 	would
have 	had 	to 	occurred during 	the 	six-month 	statutory period which
began on September 12, 	1992.
The 	six month limitation period 	runs 	from the date 	the 	charging
party knew or 	reasonably 	should have 	known 	of 	the 	alleged unfair
practice, 	if 	the knowledge was 	obtained after the 	conduct
occurred. 	Fairfield Suisun Unified School 	District 	(1985) 	PERB
Decision No. 	547.
Contrary to your position, 	the date 	of 	the 	conduct 	regarding 	the
denial of representation is not December 21, 	1992, 	the date you
received EDD's Notice of Rejection, 	but rather August 	5, 	and 12,
1992, 	the dates you requested and were denied representation.
Since 	the 	conduct 	you 	complained of 	and your 	receipt 	of 	knowledge
of 	that 	conduct 	occurred outside 	the 	six-month 	limitation period,
the allegations 	in your charge 	regarding 	the denial 	of
representation are untimely and must 	be 	dismissed.
In addition, 	your amended charge 	failed to address 	the allegation
regarding EDD's 	Notice 	of 	Rejection being a 	reprisal 	and 	subject
to being deferred to arbitration. 	Accordingly, 	that allegation
will 	be 	dismissed and deferred 	to 	arbitration.
Your amended 	charge 	also 	appears 	to allege 	that 	EDD's 	conduct
violates 	section 3519(b) 	of 	the Dills Act. 	To establish a
violation of 	section 3519(b), 	a charging party must 	show actual
denial 	of 	the union's 	rights under the Dills Act. 	A showing of
theoretical 	impact 	is 	insufficient. 	State 	of California
(Franchise Tax Board) 	(1992) 	PERB Decision No. 	954-S. 	Your
charge 	fails 	to demonstrate 	a denial 	of union rights 	under the
Dills 	Act 	separate 	and apart 	from the 	harm allegedly 	suffered by
you. 	Accordingly, 	that allegation shall be dismissed.
1Subsection 	6c 	on 	the 	unfair practice 	charge 	form has
"3519(b)" 	written in as an additional violation. 	There is no
other reference 	to 	section 	3519(b) 	of 	the Dills Act 	in your
amended 	charge.
2The 	Unfair 	Practice 	Charge 	filed by Charging 	Party 	is 	dated
January 11, 	1993. 	However, 	the charge was not received by PERB
until March 12, 	1993. 	Furthermore, 	the proof of 	service, 	signed
by Maryann Gonzales 	is dated March 10, 	1993.

DISMISSAL 	LETTER 	S-CE-648-S
June 11, 	1993
Page 3
Therefore, 	I am dismissing your 	charge based 	on 	the 	facts 	and
reasons 	contained 	in this 	letter and my May 7, 	1993 	letter.
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.
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.)
t

DISMISSAL 	LETTER 	S-CE-648-S
June 11, 	1993
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,
ROBERT 	THOMPSON
Deputy General 	Counsel
By Michael E. 	Gash
Regional 	Attorney
Attachment
cc: 	Claire Iandoli, 	Attorney
Warren Stracener, 	Labor Relations 	Counsel
•

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PEAR
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
PEAR
May 7, 	1993
Arthur 	Esparza 	Gonzales
Attorney
Re: 	Arthur Esparza Gonzales v. 	State 	of 	California 	(Employment
Development 	Department)
Unfair 	Practice 	Charge No. 	S-CE-648-S
WARNING 	LETTER
Dear 	Mr. 	Gonzales:
On March 	12, 	1993, 	you filed a charge 	in which you allege 	that
the 	State 	of 	California 	(Employment Development Department) 	(EDD)
violated section 3519(a) 	of 	the Government 	Code 	(the Dills Act).
Specifically, 	you allege 	that 	EDD, 	denied your request 	for
representation during meetings on August 5, 	and 12, 	1992, 	and
issued you a notice of 	rejection on December 21, 	1992, 	as a
reprisal 	against 	you 	for 	exercising 	rights 	guaranteed by 	the
Dills Act. 	My 	investigation reveals 	the 	following 	facts.
On or about August 	5, 	1992, 	Charging Party's 	request 	for
representation 	was 	denied 	during 	a meeting with 	Supervisor 	Coehlo
and Assistant Manager Guiroz. 	The meeting was 	about 	alleged
errors 	with 	Charging 	Party's 	work and was 	used to 	deny Charging
Party 	training. 	Charging 	Party also alleges 	that 	this meeting
was 	a 	reprisal 	against 	him for 	reporting 	the misconduct 	of
another 	supervisor.
On or about August 	13, 	1992, 	Manager Flores 	called Charging Party
into his 	office 	to 	admonish 	him 	for 	filing 	grievances 	and 	telling
other perspective managers. 	Charging 	Party alleges 	that 	Flores
thought 	he was 	a 	troublemaker 	for 	filing grievances. 	During 	this
meeting 	Charging 	Party was 	asked 	to 	defend his 	conduct 	and was
interviewed 	in 	an 	investigatory manner 	to 	obtain 	information 	to
be used as 	a basis 	for discipline. 	Charging 	Party 	read a 	card

issued by 	the 	California State 	Employees Association 	(CSEA) 	which
requested 	CSEA representation. 	Manager 	Flores 	denied 	Charging
Party's 	request 	and 	informed 	Charging 	Party 	that 	no
representation was 	necessary 	since 	the 	interview or 	outcome 	would
not 	be 	used adversely against 	the 	employee.
On or about December 21, 	1992, 	Charging Party received a notice
of 	rejection which used the interview of August 	13, 	1992 	and
Charging 	Party's 	exercise 	of 	"employee 	rights" 	as 	a basis 	for the
rejection.
In 	order 	to 	state 	a prima 	facie 	case 	a 	Charging 	Party must 	allege
and 	ultimately 	establish 	that 	the 	conduct 	complained 	of 	either
occurred 	or was 	discovered within 	the 	six-month period
immediately preceding 	the 	filing of 	the 	charge. 	San Dieguito
Union High School District 	(1982) 	PERB Decision No. .194.
Government 	Code 	section 3514.5(a) 	states 	in relevant part:
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, 	. . .
Your 	charge was 	filed with 	the 	Public 	Employment 	Relations 	Board
(PERB) 	on March 12, 	19931, 	which means that for PERB to have
jurisdiction 	over any alleged unfair practice by 	the 	EDD 	it 	would
have 	had 	to 	occurred during 	the 	six-month 	statutory period which
began on September 12, 	1992.
The 	six month 	limitation period runs 	from the date 	the 	charging
party knew or 	reasonably 	should have 	known 	of 	the 	alleged unfair
practice, 	if 	the knowledge was 	obtained after the 	conduct
occurred. 	Fairfield Suisun Unified School District 	(19 85) 	PERB
Decision No. 	547.
On August 	5, 	and 12, 	1992, 	you requested and were denied
representation. 	Since 	the 	conduct you 	complained of 	and your
receipt 	of knowledge 	of 	that 	conduct 	occurred outside 	the 	six-
month 	limitation period, 	the 	allegations 	in your 	charge 	regarding
the 	denial 	of 	representation are 	untimely and must 	be 	dismissed.
1The Unfair 	Practice 	Charge 	filed by Charging 	Party 	is 	dated
January 11, 	1993. 	However, 	the charge was not 	received by PERB
until March 12, 	1993. 	Furthermore, 	the proof of service, 	signed
by Maryann Gonzales 	is dated March 10, 	1993.
22

Your charge also alleges 	that 	EDD 	issued a notice 	of 	rejection on
December 21, 	1992 	as a reprisal 	against you 	for exercising 	rights
guaranteed by 	the Dills Act. 	There 	is 	a Collective Bargaining
Agreement 	(Agreement) 	between the 	State and 	the 	CSEA with
effective dates of July 1, 	1992 	through June 30, 	1995.
Article 	5, 	subsection 5.5, 	of 	that 	contract provides 	the
following 	provision:
The 	State 	and CSEA Local 	1000 	shall be
prohibited 	from 	imposing 	or 	threatening 	to
impose 	reprisals 	by discriminating 	or
threatening 	to 	discriminate 	against
employees, 	or otherwise 	interfering with,
restraining, 	or coercing employees because 	of
the 	exercise 	of 	their rights 	under 	the Ralph
C. 	Dills Act 	or any 	right 	given by this
Contract. 	The principles 	of 	agency shall 	be
liberally 	construed.
In addition, 	Article 6 	of 	the Agreement 	contains a grievance
procedure which 	culminates 	in 	final 	and binding arbitration.
Section 3514.5(a)(2) 	of the Dills Act states, 	in pertinent part,
that PERB,
shall not. 	. 	. 	issue a complaint against
conduct 	also prohibited by 	the provisions 	of
the. 	. 	. 	[collective bargaining agreement 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, 	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. 	PERB Rule
32620(b)(5) 	(California Code of Regs., 	tit. 	8, 	sec. 	32620(b)(5))
also 	requires 	the 	investigating board agent 	to dismiss 	a 	charge
where 	the 	allegations 	are 	properly deferred 	to binding
arbitration.
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 	EDD 	took
W3

reprisals 	against 	you 	for 	exercising 	rights 	guaranteed by 	the
Dills Act 	is arguably prohibited by Article 	5, 	subsection 	5.5 	of
the agreement.
Accordingly, 	this 	allegation must be deferred to arbitration and
will be dismissed. 	Such dismissal 	is 	without prejudice 	to 	the
Charging Party's 	right, 	after arbitration, 	to seek a repugnancy
review by 	PERB 	of 	the 	arbitrator's 	decision under 	the 	Dry 	Creek
criteria. 	See PERB Regulation 32661 	(California Code of 	Regs.,
tit. 	8, 	sec. 	32661; 	Los Angeles Unified School District 	(1982)
PERB Decision No. 	218; 	Dry Creek Joint 	Elementary School
District. 	(1980) 	PERB Order No. 	Ad-81a.
If 	there 	are any 	factual 	inaccuracies 	in 	this 	letter 	or any
additional 	facts 	which would require 	a 	different 	conclusion 	than
the 	one explained above, 	please amend the 	charge. 	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 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 	filed with PERB. 	If 	I do not 	receive an amended charge
or withdrawal 	from you before May 18, 	1993, 	I shall dismiss 	the
above-described allegation 	from your charge. 	If 	you have 	any
questions, please call me at 	(916) ' 322-3198.
Sincerely,
Michael E. 	Gash
Regional 	Attorney
4