State of California (Office of Emergency Services) * * * OVERRULED IN PART by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 11 * * * (PERB 1122S)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

* * * OVERRULED IN PART by multiple decisions, as recognized in State
of California (Department of Corrections and Rehabilitation) (2024)
PERB Decision No. 2926-S, pp. 16-19 & fn. 11 * * *

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

PARVIZ KARIM-PANAHI, , +)

Charging Party, ) Case No. LA-CE-320-S
)
Vv. ) PERB Decision No. 1122-S
)
STATE OF CALIFORNIA (OFFICE OF ) November 7, 1995
EMERGENCY SERVICES), )
)
Respondent. )
)
Appearance: Parviz Karim-Panahi, on his own behalf.

Before Carlyle, Johnson and Caffrey, Members.
DECISTON

JOHNSON, Member: This case is before the Public Employment
Relations Board (Board) , on appeal of the Board agent's dismissal
(attached hereto) of an unfair practice charge filed by Parviz
Karim-Panahi (Karim-Panahi). In his charge, Karim-Panahi alleged
that the State of California (Office of Emergency Services) (OES)
unlawfully discriminated and retaliated against him because of
his exercise of protected rights in violation of section 3519(a)

of the Ralph C. Dills Act (Dills Act) .* The charge further

‘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.

alleged 	that 	after verbal 	representations 	to 	the 	contrary, 	OES
unlawfully placed him in a 	lesser paying position, 	refused 	to
correct 	the 	error and unlawfully 	terminated him because 	he
notified both 	state 	and 	federal 	agencies 	of 	OES's violations 	of
the 	law.
The 	Board has 	reviewed 	the warning and dismissal 	letters,
Karim-Panahi's 	appeal, 	applicable provisions 	of 	the 	collective
bargaining agreement and the entire 	record 	in this 	case. 	The
Board 	finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision 	of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-320-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Carlyle 	and 	Caffrey 	joined 	in 	this 	Decision.
2
2

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
June 22, 1995
Parviz Karim-Panahi
Re: 	NOTICE OF DISMISSAL AND REFUSAL TO ISSUE COMPLAINT
Parviz Karim-Panahi v. 	State of California 	(Office of
Emergency 	Services)
Unfair Practice Charge No. 	LA-CE-320-S
Dear Mr. Karim-Panahi:
I indicated to you, 	in my attached letter dated June 8, 	1995,
that 	the above-referenced charge must be dismissed and deferred
to arbitration. 	You were 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 under PERB's jurisdiction or
withdrew it prior to June 20, 	1995, 	the charge would be
dismissed.
I have not received either an amended charge or a request 	for
withdrawal. 	You did, 	however, 	inform me by telephone on June 12,
1995 	that it was your intent to submit the issues raised by your
charge to the grievance procedure under the Unit 	11 agreement
between the State of 	California and the California State
Employees' 	Association 	(CSEA) . 	You subsequently sent me copies
of your letter to CSEA, 	and the response by CSEA, 	both dated June
12, 1995.
Your June 12 	letter to CSEA requested that they submit 	the issues
you raise to arbitration under the Unit 11 agreement. 	CSEA
responded by 	indicating a belief 	that 	certain issues 	you raise
are not within the scope of the Dills Act, 	or civil service
rules, 	or the collective bargaining agreement, 	and would have to
be addressed through civil 	litigation. 	CSEA further stated its
belief 	that 	a grievance 	over your alleged termination would 	fail
because you had not 	engaged in activity which is protected by the
"no retaliation" provision of the agreement. 	In sum, 	CSEA
declined to provide you with representation.
By letter dated June 16, 	1995, 	you argue that the foregoing
satisfies the 	"requirements" 	of my June 8 letter, 	and that PERB
should now issue a complaint 	in this matter.
i

Dismissal 	Letter
LA-CE-320-S
June 22, 1995
Page 2
Discussion
The additional 	information you have 	submitted does not 	change 	the
legal analysis 	required by the law and the facts of 	this 	case.
As noted in my June 8 letter, 	the Unit 11 agreement allows
individual 	employees 	to file grievances alleging violations by
the employer of the terms and conditions of that agreement. 	Your
charge alleges 	that you were threatened with reprisals and
terminated because you engaged in protected activity, 	and the
Unit 	11 agreement expressly prohibits 	the 	complained-of 	conduct
at Article 5, 	Section 5.5.
There are no 	facts alleged which show that either you or anyone
on your behalf has 	filed a grievance over your employer's alleged
retaliatory conduct.
The Board has 	ruled that 	it lacks 	jurisdiction to issue a
complaint, 	where conduct 	is arguably prohibited by a collective
bargaining agreement which is 	subject 	to binding arbitration,
until or unless 	the grievance procedure is exhausted or futility
is demonstrated. 	(Eureka City School District 	(1988) 	PERB
Decision No. 	702.) 	A charging party's 	"failure to exercise the
grievance process," 	even if that precludes further pursuit of the
grievance process and arbitration, 	"does not create futility."
(Desert Sands Unified School District 	(1995) 	PERB Decision No.
1102.)
Therefore, 	I am dismissing the charge based on the facts and
reasons 	set 	forth above as well as 	those contained in my June 	8,
1995 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

Dismissal 	Letter
LA-CE-320-S
June 22, 1995
Page 3
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 (2 0) 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.)
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
Les Chisholm
Regional Director
Attachment
cc: 	Edmund K. 	Brehl

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERB
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
June 8, 	1995
Parviz Karim-Panahi
Re: 	WARNING LETTER
Parviz Karim-Panahi v. 	State of California 	(Office of
Emergency Services)
Unfair Practice Charge No. 	LA-CE-320-S
Dear Mr. Karim-Panahi:
-
The above-referenced charge was 	filed with the Public Employment
Relations Board 	(PERB or Board) 	on May 1, 	1995. 	As Charging
Party, 	you allege that the State of California, 	Office of
Emergency Services 	(Employer or OES) 	unlawfully discriminated and
retaliated against you because of your exercise of rights
protected under the Ralph C. 	Dills Act 	(Dills 	Act).1 This
conduct is alleged to violate the Dills Act at section 3519(a).
Investigation of 	this charge revealed the 	following relevant
information. 	Charging Party is qualified as a professional
registered civil engineer. 	In January 1994, 	he responded to
emergency employment 	opportunity 	information concerning the need
of the Employer for civil engineers 	following the Northridge
earthquake. 	He was employed by OES effective February 3, 	1994 as
a Disaster Worker Specialty Services 	(DWSS) 	III, 	despite verbal
representations at the time that he would be employed at Level
IV. 	Level 	III employees are paid less than Level 	IV employees.
He was 	informed by a Notice of Personnel Action dated March 7,
1994, and again on June 22, 	1994, 	of his appointment and pay
status. 	He was further informed that his position was placed
within State Bargaining Unit 11 	- 	Engineering and Scientific
Technicians, 	represented by California State Employees
Association 	(CSEA) , 	rather than in Bargaining Unit 9 	-
Professional Engineers, 	represented by Professional Engineers in
California Government 	(PECG).
CSEA and the State of California are parties to a Memorandum of
Understanding 	(MOU) 	for Unit 11 which is effective for the period
July 31, 	1992 through June 30, 	1995. 	The MOU provides for a
grievance procedure in Article 6 	for the resolution of disputes
concerning the 	"interpretation, 	application or enforcement of the
1The Dills Act 	is codified at Government Code Section 3512
et seq.
___ 	---

Warning 	Letter
LA-CE-320-S
June 8, 	1995
Page 2
express 	terms" 	of 	the MOU. 	A grievance may be filed by any
employee covered by the MOU. 	(Article 	6, 	Section 6.2.) 	The
grievance procedure ends 	in binding arbitration. 	(Article 6,
Section 6.12.) 	The MOU also provides, 	in Article 5, 	Section 5.5,
as follows:
The State and 	[CSEA] 	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 	[MOU]. 	The principles of
agency shall be liberally 	construed.
Charging Party informed the Employer through his 	supervisors at
various 	times 	that he believed his placement at DWSS Level 	III
rather than Level 	IV was 	incorrect based on his qualifications
and the 	information originally communicated to him, 	and further
informed his 	supervisors 	that he believed his position should be
placed within Bargaining Unit 	9. 	He requested correction of his
classification and pay rate by letter dated March 23, 	1994.
Beginning in May 1994 	the Employer began the process 	of 	changing
emergency employment 	appointments 	to 	limited term appointments
and contest 	conducted tests and interviews as part 	of 	this
process.
The Employer responded to Charging Party, 	including by memo dated
August 19, 	1994, 	to the effect that his appointment was made at
the only level and status available at the time that he was hired
and that he was 	informed of his employment status at 	the time of
his appointment. 	The August 	19 memo did indicate he could be
considered for a Level 	IV appointment based on the 	results of 	the
DWSS exam then in progress.
On January 3, 	1995, 	Charging Party was offered a limited term
appointment as a DWSS Level III.
Charging Party also alleges 	that 	the hiring process 	for the DWSS
positions 	involved favoritism, 	nepotism and political
considerations, 	and was not based upon qualifications. 	He has
further alleged that the operations of 	the Employer have been in
violation of various State and Federal 	laws relating to disaster
assistance and standards for professional engineers, 	and has made
various allegations 	to the Employer and to other federal agencies
that 	the program has been corruptly administered and has
defrauded both federal 	and state disaster assistance and
emergency relief 	funds.

Warning 	Letter
LA-CE-320-S
June 8, 	1995
Page 3
On January 17, 	1995, 	Charging Party addressed a memo to the
Director of OES 	requesting administrative and criminal
investigations by state and federal authorities. 	The memo
alleges violations by the Employer of 	the Professional 	Engineers
Act and regulations 	of 	the California State Board of Registration
for Professional Engineers and Land Surveyors; 	that negligence
and violations of 	these 	laws had resulted in waste and fraudulent
expenditure of disaster relief monies; 	that Damage Survey Reports
(DSRs) 	had been signed by persons unqualified to do so; 	that his
objections 	to these practices had resulted in harassment by his
supervisors; 	and that OES had engaged in discriminatory and
fraudulent testing and hiring practices, 	including the failure to
appoint Charging Party to a level 	consonant with his background
and qualifications.
On January 20, 	1995, 	Charging Party was required to meet with
Field Operations Manager D.A. 	Christian. 	Christian both verbally
and in writing reprimanded Charging Party for alleged conduct and
performance problems, 	including specifically his attempt to send
the January 17 memo to the OES Director. 	The written reprimand
included a warning that 	failure 	to 	follow the established
correspondence procedure 	could result 	in 	"severe disciplinary
action."
On January 23, 	1995, 	Charging Party wrote a second memo
requesting FBI and state investigation, 	prosecution and
protection which incorporated the allegations of 	the January 17
memo. 	The January 23 memo further alleged that he had been
subjected to retaliation based on the earlier memo, 	including
being ordered to sign DSRs 	that he did not believe to be
legitimate. 	On January 24, 	1995, 	Christian verbally ordered
Charging Party to withdraw his January 23 memo, 	and warned that
he would be terminated if he did not do so.
Charging Party was 	informed by a Notice of Personnel Action,
Report of Separation, 	dated March 22, 	1995, 	that he had been
terminated by OES.
Discussion
Section 3514.5(a) 	of the Ralph C. Dills Act 	(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

Warning 	Letter
LA-CE-320-S
June 8, 	1995
Page 4
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 Regulation
32620(b) (5) 	(Cal. 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 MOU covers 	the dispute raised by the
unfair practice 	charge and culminates 	in binding arbitration.
Second, 	the conduct complained of 	in this charge that the
Employer threatened and took reprisals 	against 	Charging Party
because of his exercise of rights protected by the Dills Act 	is
arguably prohibited by the express provisions of Article 5,
Section 5.5 of the MOU.
I discussed the question of deferral 	to arbitration with you by
telephone on June 8, 	1995. 	You indicated that you had not 	filed
a grievance under the Unit 	11 MOU because of your belief 	that you
were not properly assigned to that unit. 	You also cite a
speculative belief 	that 	CSEA would not be supportive of your
grievance because of your efforts 	to be placed in Unit 9 and
complaints over other matters such as hiring practices. 	Such
speculation is not evidence that resort 	to the grievance
procedure would be futile, 	nor would mere 	"disagreement or
personal preference 	[be sufficient to] 	bypass the statutory
deferral 	requirement." 	(State of California 	(Department of
Corrections) 	(1986) 	PERB Decision No. 	561-S, 	citing State of
California (Department of Developmental Services) (19 85) PERB
Order No. 	145-S.)
You also argued, 	in part, 	that PERB should exercise jurisdiction
over this case because it is PERB's role to determine the
appropriate unit placement of state employees. 	This argument is
not persuasive, 	however, 	since the instant charge is not an

Warning 	Letter
LA-CE-320-S
June 8, 	1995
Page 5
appropriate vehicle 	to resolve unit placement,2 and individual
employees 	lack standing to 	file a unit modification petition.
(Riverside Unified School District 	(1985) 	PERB Order Nos. 	148 and
148a, 	and California School Employees Association 	(Petrich)
(198.9) PERB Decision No. 	767.)
Accordingly, 	this charge 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 Reg. 32661 	[Cal. 	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 June 20, 	1995, 	I shall dismiss your
charge without leave to amend. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	extension 359.
Sincerely,
4
Les 	Les 	Chisholm
•
I
Regional Director
2PERB's unit modification regulations are found at
California Code of Regulations, 	title 8, 	section 32781 et seq.
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•	
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