State of California (Department of Corrections) (PERB 1155S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHARLES 	GREGORY,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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) 	Case No. 	S-CE-796-S
PERB Decision No. 	1155-S
June 	11, 	1996
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Appearances: 	Charles Gregory, 	on his own behalf; 	State of
California 	(Department 	of 	Personnel Administration) 	by Michael 	P.
Cayaban, 	Labor Relations Counsel, 	for State of California
(Department of Corrections).
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Charles Gregory
(Gregory) 	of a Board agent's dismissal 	(attached) 	of his unfair
practice 	charge. 	In his 	charge, 	Gregory alleged that 	the State
of California 	(Department 	of 	Corrections) 	(State) 	discriminated
against him in retaliation 	for his 	exercise 	of protected rights
in violation of section 3519(a) 	of the Ralph C. 	Dills Act 	(Dills Act).1
1The 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
_____ )

The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including Gregory's 	unfair practice 	charge, 	the warning and
dismissal 	letters, 	Gregory's 	appeal and the State's 	response
thereto.2 The 	Board 	finds 	the warning and dismissal 	letters 	to
be 	free 	of prejudicial 	error and adopts 	them as 	the 	decision of
the Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CE-796-S 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Garcia and Johnson 	joined 	in 	this 	Decision.
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
2In 	its 	response, 	the 	State 	incorrectly asserts 	that 	it was
not 	served with Gregory's 	appeal 	until 	after the 	filing deadline
provided 	for by 	PERB 	regulations. 	(PERB regs. are 	codified at
Cal. 	Code Regs., 	tit.8, 	sec. 	31001 et seq.) 	In fact, 	the State
was 	served with Gregory's 	appeal 	prior 	to 	the 	filing deadline
established pursuant 	to PERB Regulation 32130(c).
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
April 	4, 	1996
Charles 	Gregory
Re: 	Charles 	Gregory v. 	State 	of 	California 	(California
Department 	of 	Corrections)
Unfair 	Practice 	Charge No. 	S-CE-796-S
DISMISSAL 	LETTER
Dear Mr. 	Gregory:
On January 27, 	1996, 	you filed the above-referenced charge
alleging 	illegal 	discrimination 	by 	the 	California 	Department 	of
Corrections 	(CDC).
I 	indicated to you, 	in my attached letter dated March 	13, 	1996,
that 	the 	above-referenced 	charge 	did not 	state 	a prima 	facie
case. 	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 advisee 	that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew it prior to March
20, 	1996, 	the charge would be dismissed.
I 	have 	not 	received either 	an 	amended charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing the 	charge based on the
facts 	and reasons 	contained in my March 	13, 	1996 	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
S-CE-796-S
April 4, 	1996
Page 	2
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.)
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 Bernard 	McMonigle
Regional 	Attorney
Attachment
cc: 	Michael Cayaban, 	DPA

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
March 13, 	1996
Charles 	Gregory
Re: 	Charles 	Gregory v. 	State of 	California 	(California
Department 	of 	Corrections)
Unfair 	Practice 	Charge 	No. 	S-CE-796-S
WARNING 	LETTER
Dear Mr. 	Gregory:
On January 27, 	1996, 	you 	filed the 	above-referenced charge
alleging 	illegal 	discrimination by the 	California 	Department 	of
Corrections 	(CDC).
Your 	charge 	indicates 	that 	you 	have 	seven years 	of 	experience
with CDC 	and a 	teaching credential. 	However, 	you 	just 	found out
that 	you were 	not 	selected 	for 	a position of 	Vocational
Instructor. 	The 	selected candidate 	has 	had three promotions 	in
the 	last 	year 	and a 	half. 	You've 	interviewed 	for numerous
promotions 	and 	lateral 	transfers, 	but 	have 	not 	been 	selected 	for
any. 	Your charge 	states 	"I 	feel 	that 	I 	am being punished for
being a CSEA Union Steward 	in 	1989 	and 1990". 	On March 13, 	1996,
I 	telephoned your place 	of 	work 	and we 	briefly discussed 	the
charge 	and 	the 	fact 	that 	this 	letter would be 	forthcoming.
To 	demonstrate 	an 	illegal 	reprisal, 	the 	Charging 	Party must 	show
that 	the 	employee participated 	in a protected activity, 	the
employer had knowledge of 	such participation, 	the 	employer 	took
action adverse 	to 	the 	employee's 	interest, 	and unlawful 	motive
exists. 	In this case, 	you have not 	shown that 	those people
making the 	selection 	for 	the 	teaching position, 	were 	aware 	of
your union participation. 	Nor 	have 	you 	demonstrated unlawful
motive.
Circumstantial 	evidence 	of 	unlawful 	motive 	includes 	timing plus
another 	indicia 	of 	motive. 	Such 	indicia may 	include 	disparate
treatment 	of 	the 	employee, 	a departure 	from established
procedures, 	the 	employer's 	failure 	to offer 	justification to 	the
employee, 	the employer's 	inconsistent 	justifications, 	or a
pattern of 	obstructionist 	conduct. 	(Novato Unified 	School
District 	(1982) 	PERB Dec. 	No. 	210)
The 	significance 	of 	timing 	of 	employer 	conduct 	depends 	on 	the
circumstances. 	The 	Public 	Employment 	Relations 	Board evaluates
timing on a 	case 	by case 	basis. 	The 	Board has 	found an 	inference
of unlawful 	intent, 	where 	an employee's work 	schedule was 	changed

Warning 	Letter
S-CE-796-S
February 28, 	1996
Page 	2
six months 	after his 	participation 	in 	an unfair practice 	hearing.
(University of California 	(1984) 	PERB Dec. 	No. 	403-H) 	However,
in your case, 	it 	has been approximately five years 	since your
stated participation as 	a union 	steward. 	Such a 	lapse 	of 	time
does 	not 	lead to an 	inference 	of 	unlawful 	motive. 	Nor have you
supplied 	any other 	circumstantial 	evidence 	that 	the 	employer 	was
unlawfully motivated. 	Accordingly, 	this 	charge must 	be
dismissed.
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 additional 	facts 	which would correct 	the
deficiencies 	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 must be 	filed with PERB. 	If 	I 	do not 	receive 	an
amended charge or withdrawal 	from you before March 20. 	1996, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney
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