State of California (Department of Transportation) (PERB 1172S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA STATE EMPLOYEES )

ASSOCIATION, , )
)
Charging Party, ) Case No. S-CE-802-S
yo...
Vv. ) PERB Decision No. 1172-S
)

STATE OF CALIFORNIA ‘(DEPARTMENT ) October 29, 1996
OF TRANSPORTATION) , ;

Respondent.

wer NS NS

‘Appearances: Anne M. Giese, Attorney, for California State
Employees Association; State of California (Department of
Personnel Administration) by Carol A. McConnell, Labor Relations
Counsel, for State of California (Department of Transportation).
Before Garcia, Johnson and Dyer, Members.
DECISION AND ORDER

JOHNSON, Member: This case is before the Public Employment
Relations Board (Board) on appeal of a Board agent's dismissal
(attached) of an unfair practice charge filed by the California
State Employees Association (CSEA). In its charge, CSEA alleged
that the State of California (Department of Transportation)

(State) violated section 3519 of the Ralph C. Dills Act (Dills

Act)* when one of its supervisors retaliated against several

‘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

employees.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	CSEA's 	appeal 	and the 	State's
response 	thereto. 	The Board 	finds 	the Board agent's 	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-802-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND..
Members 	Garcia and Dyer joined 	in 	this 	Decision.
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.
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
PERS
July 15, 	1996
Anne M. 	Giese, 	Staff Attorney-
California 	State 	Employees 	Association
1108 	0 Street
Sacramento, 	CA 95814
Re: 	DISMISSAL LETTER
California 	State 	Employees Association v. 	State 	of
California 	(Department 	of 	Transportation) -
Unfair 	Practice 	Charge No. 	S-CE-802-S
Dear Ms. 	Giese:
On January 26, 	1996, 	Cathy R. 	Hackett, 	Chief Steward for the
California State 	Employees Association 	(CSEA) 	filed the 	above-
captioned charge 	in which 	she 	alleged that 	the 	State 	of
California, 	Department 	of 	Transportation 	(CalTrans) 	violated the
Ralph C. 	Dills Act 	(Dills Act) 	by and through its 	supervisor Pete
Barrios 	taking reprisals 	against Unit 	14 	employee, 	Caroline
Dansby and employees 	Doug Blithe, 	Kenneth Kessler, 	Ivan Slayton,
Norma Campisi, 	Virgil 	Weatherford, 	Danny Carroll 	and Modesto
Rios. 	(Your July 3, 	1996, 	amendment fails to provide any
additional 	information regarding these 	individuals.) 	More
specifically, 	the 	allegations 	focus on violations of Dills Act
section 3519(a) 	by Barrios, 	against employees he supervised.
The 	alleged acts 	of 	reprisal 	against 	Dansby began on 	July 	26,
1995 	when Barrios 	suspended Dansby for 	five 	days. 	CSEA contends
this 	suspension 	occurred 	as 	a 	result 	of 	and 	in 	retaliation 	for
Dansby pursuing 	a grievance 	with CSEA, 	a 	sexual 	discrimination
charge 	and a 	request 	to 	file 	charges 	against 	Barrios 	by 	CSEA.
These 	actions 	were 	all 	the 	result 	of 	an 	incident 	during which you
allege 	Barrios 	struck 	Dansby with his 	arm/elbow on March 	21,
1995. 	You subsequently amended the 	charge on April 	19, 	1996 	by
alleging another act 	of 	retaliation, 	a 	twenty day suspension
dated October 	26, 	1995 	again alleging Barrios 	retaliated against
Dansby 	for 	the 	earlier 	filings.
I 	indicated to you, 	in my attached letter dated May 29, 	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 advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew 	it prior to 	June
10, 	1996, 	the charge would be dismissed. 	You were granted an
extension of 	time to July 3, 	1996, 	to submit 	additional 	facts.

Dismissal 	Letter
S-CE-802-S
July 15, 	1996
Page 	2
On July 3, 	1996, 	you filed an amendment 	to the charge. 	Through
the 	amendment, 	you recite 	the 	series of 	incidents between Dansby
and Barrios 	that began with the March 21, 	1995, 	confrontation and
continued 	through 	two 	disciplinary actions 	in 	July and October
1995. 	You did not 	provide 	any further 	facts which support 	a
finding of 	the 	"nexus" 	element 	required 	for a prima 	facie 	case.
The 	allegation 	alleging 	interference 	with Dansby's 	protected
rights by her supervisor, 	Barrios, 	are dismissed.
In addition, 	for the 	first 	time, 	you raise an allegation of
interference 	and unilateral 	change 	by 	CalTrans 	supervisors 	on
October 19, 	1995. 	You contend that 	CalTrans supervisors removed
CSEA 	flyers 	from 	the 	break 	room 	and 	from Dansby's 	work 	station.
(In 	our 	telephone 	conversation 	regarding 	this 	allegation you
indicated that 	there 	was 	no 	evidence 	that 	Barrios 	was 	engaged 	in
.the 	removal 	of 	the 	flyers.) 	These 	flyers were posted in
customary 	locations 	where 	CSEA notices 	had been posted
previously.
Section 	3514.5(a)(1) 	of 	the 	Dills Act provides 	that 	PERB 	"shall
not 	issue 	a 	complaint 	in 	respect 	of 	any charge 	based on 	an
alleged unfair practice 	charge 	occurring more 	than 	six months
prior to 	the 	filing of 	the 	charge."
PERB 	has 	held 	that 	the 	six month period 	commences 	to 	run when 	the
charging party knew or 	should 	have 	known 	of 	the 	conduct 	giving
rise 	to 	the 	alleged unfair practice. 	(Regents 	of 	the University
of California 	(1983) 	PERB Dec. 	No. 	359-H.) 	Since the allegations
regarding 	interference 	and unilateral 	change were 	raised 	for 	the
first 	time on July 3, 	1996, 	the 	statute of 	limitations period
began to run on January 3, 	1996.
Therefore, 	I 	am dismissing this 	new allegation as being untimely
and 	the 	remainder of 	the 	charge 	for 	the 	facts 	and reasons
contained in my May 29, 	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 	(2 0) 	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-802-S
July 15, 	1996
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 	(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
Roger 	Smith
Board 	Agent
Attachment
Carol A. 	McConnell

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
PER
May 	2 9 , 	1996
Anne M. 	Giese, 	Staff Attorney-
California State 	Employees Association
1108 O Street
Sacramento, 	CA 95814
Re: 	WARNING LETTER
California State Employees Association v. 	State of
California Department 	of 	Transportation)
Unfair Practice Charge No. 	S-CE-802-S
Dear Ms. Giese:
On January 26, 	1996, 	Cathy R. 	Hackett, 	Chief Steward for the
California State Employees Association 	(CSEA) 	filed the above-
captioned charge 	in which she alleged that 	the State of
California, 	Department of Transportation 	(CalTrans) 	violated the
Ralph C. 	Dills Act 	(Dills Act) 	by and through its supervisor Pete
Barrios taking reprisals against Unit 14 employee, 	Caroline
Dansby and employees Doug Blithe, 	Kenneth Kessler, 	Ivan Slayton,
Norma Campisi, 	Virgil Weatherford, 	Danny Carroll and Modesto
Rios. 	More 	specifically the allegations 	focus on violations of
Dills Act 	section 3519(a) 	by Barrios against 	employees he
supervised.
The alleged acts of reprisal 	against Dansby began on July 26,
1995 when Barrios 	suspended Dansby for five days. 	CSEA contends
this 	suspension occurred as 	a result of and in retaliation for
Dansby pursuing a grievance with CSEA, 	a sexual discrimination
charge 	and a request 	to file 	charges against 	Barrios by CSEA.
These actions were all 	the result of an incident 	involving
Barrios striking Dansby with his arm/elbow on March 21, 	1995.
You subsequently amended the charge on April 	19, 	1996 by alleging
another act of retaliation, 	a twenty day suspension dated October
26, 	1995 	again alleging Barrios retaliated against Dansby for the
earlier filings.
The allegations 	involving acts of reprisal 	towards other
employees 	all 	occurred more 	than six months prior to this 	charge
being filed, 	or in the case of Virgil Weatherford, 	provide no
specific 	allegations 	regarding what 	adverse action he may have
suffered, 	or when. 	Section 3514.5(a) 	of the Dills Act states, 	in
pertinent part, 	that PERB shall not:
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.
==--~-	-_	- 	-

Warning 	Letter
S-CE-802-S
May 1, 	1996
Page 2
Those alleged reprisals occurring more 	than six months prior to
the 	filing of 	the charge will be dismissed.
Additionally, 	to demonstrate a violation of Dills section
3519(a), 	the charging party must show that: 	(1) 	the employee
exercised rights under the Dills Act; 	(2) 	the employer had
knowledge of the exercise 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.)
Although the 	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 the
necessary connection or 	"nexus" 	between the adverse action and
the protected 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,
supra; 	North Sacramento School District 	(1982) 	PERB Decision
No. 	264.) 	As presently written, 	this charge fails to demonstrate
any of 	these 	factors and therefore does not 	state a prima facie
violation of Dills section 3519(a).
The alleged acts of reprisal 	in July and October, 	1995, 	provide
none of 	the 	"nexus" 	information necessary to demonstrate a
violation of discriminatory conduct. 	The 	fact 	that Dansby had
earlier 	filed a grievance 	and a DFEH complaint may establish some
protected conduct but without more 	facts 	to establish the
"nexus", 	the charge does not 	state a prima facie case and will 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
I (

Warning 	Letter
S-CE-802-S
May 1, 	1996
Page 3
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 June 10. 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198 ext. 	358.
Sincerely,
Rge Smith
Roger Smith
Board Agent
cc: 	Cathy Hackett
((