State of California (Department of Corrections) (PERB 1329S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KEITH WIMER, 	ET AL.,
Charging Parties,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
CORRECTIONS),
Respondent.
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) 	Case No. 	LA-CE-507-S
PERB Decision No. 	1329-S
May 	3, 	1999
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Appearance; 	California 	State 	Employees Association by Keith
Wimer, 	Senior Steward, 	and Harold Lopez, 	Vice President/Chief
Steward, 	for Keith Wimer, 	et al.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
AMADOR, 	Member: 	This 	case comes before the Public
Employment 	Relations 	Board 	(Board) 	on appeal 	from a Board agent's
dismissal 	(attached) 	of Keith Wimer, 	et al.'s 	(Charging Parties)
unfair practice 	charge.1 The 	charge alleged that 	the 	State 	of
California 	(Department of Corrections) 	violated section 3519(a),
(b) 	and 	(c) 	of the Ralph C. 	Dills Act 	(Dills Act)2 by
1Although the 	original 	unfair practice 	charge was 	filed by
the 	Charging Parties as 	individual 	employees, 	California State
Employees Association 	(CSEA) 	now seeks 	to join the 	case on
appeal. 	PERB Regulation 32164 provides 	for joinder pursuant 	to a
written application procedure. 	(PERB regs. 	are codified at 	Cal.
Code of Regs., 	tit. 	8, 	sec. 	31001 et seq.) 	CSEA has failed to
comply with 	the provisions 	of 	this •regulation, 	and we deny the
request 	for 	joinder.
2The 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:

unilaterally 	changing 	the 	sick 	leave 	policy at 	the 	California
Men's 	Colony and 	retaliating 	against 	employees.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters, 	and Charging Parties' 	appeal. 	The Board finds 	the
warning and dismissal 	letters 	to be 	free 	of prejudicial 	error and
adopts 	them as 	the decision of 	the Board 	itself.3
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-507-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
(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.
(c) 	Refuse or fail 	to meet and confer in
good 	faith with 	a 	recognized 	employee
organization.
3In the appeal, 	Charging Parties 	claim that 	the Board
agent's 	dismissal 	fails 	to address 	an 	information 	request
allegation. 	Because an employer's 	obligation to provide
information is 	owed to the exclusive 	representative, 	Charging
Parties 	have no 	standing 	to 	file an unfair practice 	charge 	for an
alleged 	refusal 	to provide 	information.
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
January 29, 	1999
Keith 	Wimer
RE: 	Keith Wimer, 	et al. 	v. 	State of California, 	Department of
Corrections
Unfair 	Practice 	Charge No. 	LA-CE-507-S
DISMISSAL AND 	REFUSAL 	TO 	ISSUE A COMPLAINT
Dear Mr. 	Wimer:
I 	indicated to you, 	in my attached letter dated January 20, 	1999,
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
January 27, 	1999, 	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 January 20, 	1999, 	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. 	32635Ca).) 	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 	(2 0) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., 	tit. 	8, 	sec. 32635(b).)
,

LA-CE-507-S
Dismissal 	Letter
Page 2
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
TAMMY L. SAMSEL
Regional 	Director
Attachment
cc: 	Curtis Leavitt

STATE OF CALIFORNIA 	( 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
January 20, 	1998
Keith 	Wimer
RE: 	Keith Wimer, 	et al. 	v. 	State of California, 	Department of
Corrections
Unfair 	Practice Charge No. 	LA-CE-507-S
WARNING 	LETTER
Dear Mr. 	Wimer:
In 	the 	above-referenced charge 	the 	Charging 	Parties 	allege 	the
State of 	California, 	Department 	of Corrections 	(State) 	violated
the Ralph C. 	Dills Act 	(Dills Act or Act) 	§ 	3519(a) 	and 	(b) 	by
unilaterally 	changing 	the 	sick 	leave 	policy at 	the 	California
Men's 	Colony 	(CMC) 	and retaliating against 	the 	employees. 	My
investigation 	revealed 	the 	following 	information.
The 	Charging 	Parties 	are 	employees 	of 	the 	Respondent 	in
Bargaining Unit 	3, 	and are 	exclusively represented by the
California 	State Employees Association 	(CSEA).
Section 8.2, 	Sick Leave, 	of 	the 	1992-1995 Memorandum of
Understanding 	(MOU) 	between the 	State 	and CSEA provides 	in
pertinent 	part:
d. 	The 	department 	head or designee 	shall
approve 	sick 	leave 	only after 	having
ascertained that 	the 	absence 	is 	for 	an
authorized 	reason 	and may 	require 	the
employee 	to 	submit 	substantiating 	evidence
including, 	but not 	limited to, 	a physician's
or 	licensed practitioner's 	verification.
Such substantiation shall 	include, 	but 	not 	be
limited to, 	the general 	nature of 	the
employee's 	illness 	or 	injury, 	the 	anticipated
length of the absence, 	any restrictions 	upon
return 	to 	work 	and 	anticipated 	future
absences. 	If 	the department head or designee
does 	not 	consider the 	evidence adequate, 	the
request 	for 	sick 	leave 	shall 	be 	disapproved.
Upon request, 	a denial 	of 	sick leave 	shall 	be
in writing 	state 	the 	reasons 	for 	the 	denial.
. . . . .
e. 	An employee 	shall 	not 	be 	required 	to
provide 	a 	physician's 	verification of 	sick

A.
LA-CE-507-S
Warning 	Letter
Page 2
leave 	when he/she 	uses 	up 	to 	two 	(2)
consecutive days 	of 	sick 	leave 	except 	when:
(1) 	the 	employee has 	a demonstrable pattern
of 	sick leave abuse; 	or
(2) 	the 	supervisor believes 	the 	absence was
for an unauthorized 	reason; 	or
(3) 	the 	employee has 	an above 	average 	use 	of
sick 	leave.
In addition 	to 	the 	MOU, 	employee 	duty statements 	recommended 	that
employees 	strive 	to 	maintain 	a 	sick 	leave 	balance 	above 	the
established 	80 	hour minimum.
In February 1997, 	the Supervisor of Academic Education, 	R.
Sadowski 	implemented 	the 	"CMC 	Extraordinary Sick 	Leave 	Usage
Policy." 	The 	Charging Parties 	allege 	that 	document 	changed the
sick leave policy in Section 	8.2. 	In March 	1997, 	Warden Duncan
rescinded 	the 	"CMC 	Extraordinary 	Sick Leave 	Usage 	Policy" 	after
CSEA protested 	its 	implementation.
On July 1, 	1997, 	at 	least 	one of 	the Charging Parties 	received a
notice 	indicating 	he 	had demonstrated 	"a pattern of 	sick 	leave
abuse/an 	above 	average use 	of 	sick 	leave." 	The 	notice 	referred
to the MOU's 	Section 8.2(d) 	and 	(e). 	The notice 	also 	indicated
the 	employee 	must 	provide 	written verification 	of 	any absences
for the 	next 	12-month period. 	The 	Charging 	Parties 	allege 	these
notices 	established a new sick 	leave 	policy. 	The 	charge
provides:
In July of 	1997, 	R. 	Sadowski 	implemented the
"Sick 	Leave Abuse 	Policy" 	which 	cited nine
members 	for 	"abuse," 	had no 	specific dates of
usage, 	and a duration of one year. 	(see
Exhibit #1, 	Attachment #1) 	Supervisors gave
vague 	and 	conflicting 	reasons 	for placement,
(see Exhibit #1, 	Attachments #13 and #14, 	and
Exhibit 	#5)
In July 1997, 	CSEA Labor Relations Representative, 	Kathleen
Thompson, 	asked whether 	the 	State was 	implementing 	a new policy.
An Employee 	Relations 	Officer 	told her 	that 	there 	was 	not 	a new
policy. 	On 	...September 	26, 	1991 	Thompson 	met 	with 	Sadowski 	and
Connor regarding 	the 	sick 	leave 	issues. 	Thompson 	requested 	that
the 	sick 	leave 	notices be 	more 	specific 	regarding why the
employees 	were 	being placed on 	sick 	leave verification. 	On
October 9, 	1997, 	Associate Warden for Inmate Services, 	C. 	Wilson
wrote 	to 	Thompson 	and 	indicated 	that 	employees 	had been verbally
notified of 	the 	specific 	reasons 	which 	supported 	their placement
on 	sick leave 	verification. 	Wilson 	also 	agreed 	that 	future
I

LA-CE-507-S
Warning 	Letter
Page 3
notices 	would provide 	the 	specifics 	as 	to why 	the 	employees 	were
being 	placed 	on 	sick 	leave 	verification.
On January 5, 	1998, 	Wilson wrote 	to Thompson. 	The 	letter
indicated 	in pertinent 	part:
The 	question was 	raised if 	all 	employees 	had,
in 	fact, 	been verbally 	informed of 	the 	basis
for 	their 	placement 	on 	extraordinary 	sick
leave notice 	at 	the 	time 	they were 	reissued
same. 	Through further review, 	it 	appears
that 	not 	all 	had been verbally apprised, 	as 	I
believed to be 	the 	case.
Wilson 	and 	Thompson 	agreed 	to 	issue 	addendums 	to 	the 	Sick Leave
Abuse 	Policy Notices 	previously 	issued. 	The 	addendums 	would
provide 	specific 	reasons 	justifying 	the 	issuance 	of 	the 	notices.
In February 	1998, 	CMC supervisors 	issued 	"Addendums 	to 	Sick Leave
Notices" 	which detailed the 	sick 	leave 	usage of 	employees who had
been placed 	on notice 	in July 	1997.
The 	Charging 	Parties 	allege 	the 	addendum notices 	were
insufficient 	and 	contained 	errors 	in 	the 	calculated 	sick 	leave.
In February 	1998, 	employees 	filed 	individual 	grievances 	regarding
the 	addendum notices. 	The 	charge 	alleges 	during conferences
regarding these grievances, 	the 	supervisors 	indicated that
specific 	criteria 	for 	"abuse" 	did not 	exist, 	and that 	placement
on notice was 	up 	to 	supervisor discretion. 	The 	charge 	also
alleges 	Sadowski 	criticized 	the 	employees 	and 	Thompson 	for not
accepting 	the 	CMC 	Extraordinary 	Sick 	Leave 	Usage 	policy
originally 	implemented 	in 	February of 	1997 	which provided
specific 	criteria.
In March 	1998, 	several 	employees 	received 	"Sick Leave Abuse
Notices." 	In May 1998, 	Employee Relations Officer, 	Herb Connor,
refused 	to 	explain 	to 	employees 	the 	specific 	criteria 	defining
"abuse" 	and 	"above 	average use" 	of 	sick leave 	as 	those 	terms were
used 	in the 	notices.
In May 	1998 	through August 	1998, 	previously approved leaves 	of
absences 	were 	denied 	to 	five 	employees 	because 	of 	sick 	leave
abuse. 	I	. . . . .. n -July. 1998,Sadowski placed notes 	in the personnel
files 	and notes 	on the personnel 	evaluations 	of 	employees 	removed
from mandatory verification 	status 	which 	commended 	them 	for 	their
"more prudent" 	use of 	sick leave.
The 	above-stated 	information 	fails 	to 	state 	a prima 	facie
violation of 	the Dills Act 	for 	the 	reasons 	that 	follow.
(

LA-CE-507-S
Warning 	Letter
Page 4
Unilateral 	Change
The 	Charging 	Parties 	allege 	the 	State 	unilaterally 	implemented
new sick 	leave 	policies.
In determining 	whether 	a 	party has 	violated Dills 	Act 	section
3519(c), 	PERB utilizes either the 	"per se" 	or 	"totality of
the conduct" 	test, 	depending on the 	specific 	conduct 	involved
and the 	effect 	of 	such conduct 	on 	the 	negotiating process.
(Stockton Unified School 	District 	(1980) 	PERB Decision No. 	143.)
Unilateral 	changes 	are 	considered 	"per 	se" 	violations 	if 	certain
criteria are met. 	Those criteria are: 	(1) 	the employer
implemented 	a 	change 	in policy 	concerning 	a 	matter within 	the
scope of 	representation, 	and 	(2) 	the change was 	implemented
before 	the 	employer 	notified 	the 	exclusive 	representative 	and
gave 	it 	an opportunity to 	request 	negotiations. 	(Walnut Valley
Unified School 	District 	(1981) 	PERB Decision No. 	160; 	Grant Joint
Unified High School 	District 	(1982) 	PERB Decision No. 	196.)
Although 	the 	unilateral 	implementation of 	a new 	sick 	leave policy
could be 	a 	considered a 	"per 	se" 	violation of 	the 	Dills Act.
Individual 	employees 	do not 	have 	standing 	to 	allege 	unilateral
change violations. 	(Oxnard School 	District 	(Gorcey/Tripp) 	(1988)
PERB Decision No. 	667.) 	As 	the 	Charging Parties 	are 	individual
employees 	and not 	the 	exclusive 	representative 	they 	lack 	standing
to 	file a unilateral 	change violation. 	Thus, 	these 	allegations
must 	be 	dismissed.
Even 	if 	the 	Charging 	Parties 	have 	standing 	to 	file 	the 	unilateral
change allegation, 	the charge does not 	state a prima 	facie
violation 	for 	the 	reasons 	that 	follow.
Dills Act 	§ 	3514.5(a)(1) 	provides 	the 	Public Employment 	Relations
Board 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." 	It 	is your burden, 	as
the 	Charging 	Parties 	to 	demonstrate 	the 	charge 	has 	been 	timely
filed. 	(See 	Tehachapi Unified School 	District 	(1993) 	PERB
Decision No. 	1024.)
The 	Charging 	Parties 	allege 	the 	charge 	is 	timely 	filed 	for 	the
reasons 	stated below:
1. 	The unilateral 	changes were 	implemented
gradually, 	and 	important 	information was
withheld, 	making 	significant 	change 	obvious
only when viewed 	over 	time.
2. 	Grievances were 	filed asking 	for a meet
and 	confer/discuss 	in good 	faith. 	It 	was
reasonable 	to 	expect 	the 	California Men's
(

LA-CE-507-S
Warning 	Letter
Page 5
Colony or 	the 	Department 	of 	Corrections 	to
grant 	such 	remedy at 	any 	stage 	of 	the
grievance 	process 	based 	on 	contract 	language
and 	the 	spirit 	of 	maintaining 	"harmonious"
and 	"peaceful" 	employer-employee 	relations
per BU 3 	and 4 	MOUs 	and Government Code, 	sec.
3512. 	Further, 	Gov. 	Code, 	sec 3514.5(a)
tolls 	the 	six-month 	filing 	deadline 	during
the 	grievance process.
3. 	This 	filing is within six months 	of
several 	of 	the 	unilateral 	changes 	(e.g.
issuance 	of 	removal 	of 	notices) 	and examples
of reprisals 	(e.g. 	denial of leaves).
The Charging 	Parties' 	arguments 	are unpersuasive. 	As 	an initial
matter Dills Act 	§ 	3514.5 (a) 	does not 	toll 	the 	statute of
limitations period when, 	as 	is the case here, 	the parties'
contract 	containing 	a 	grievance 	process 	ending 	in binding
arbitration 	has 	expired.
The 	charge 	alleges 	the 	State 	implemented 	the 	CMC 	Extraordinary
Sick Leave Usage 	Policy in February 	1997. 	The 	charge 	does not
deny that 	the 	Charging Parties 	had 	actual 	notice 	of 	the policy
change in February 1997. 	In fact, 	the charge 	indicates the 	State
rescinded 	the 	CMC 	Extraordinary 	Sick 	Leave 	Usage 	Policy 	in March
1997 	after CSEA protested 	its 	implementation. 	This 	charge was
filed on October 31, 	1998. 	As 	the 	charge was not 	filed within
six months of 	February 1997, 	it 	is untimely filed and outside of
the 	jurisdiction of 	PERB.
The 	charge 	also 	alleges 	the 	State 	unilaterally 	implemented 	the
Sick Leave Abuse 	Policy in July 	1997. 	Again the 	charge 	indicates
the 	Charging 	Parties 	had actual 	notice 	of 	the 	new policy 	in July
1997. 	Since 	this 	charge was not 	filed within 	six months 	of 	July
1997, 	this allegation is untimely filed and outside 	the
jurisdiction 	of 	PERB.
The 	charge 	also 	alleges 	that 	the 	State's 	issuance 	of 	the Addendum
to 	Sick Leave 	notices 	in February 	1998, 	and 	Sick Leave Abuse
Notices 	in March 	1998 	were also unilateral 	changes. 	There 	is
some 	question 	as 	to whether 	these 	notices 	are unilateral 	changes
separate _fronu.the_Sick Leave Abuse 	Policy implemented 	in July
1997. 	Even if 	considered as distinct unilateral 	changes, 	this
unfair practice 	charge was 	not 	filed within 	six months 	of
February 	1998. 	Nor was 	it 	filed within six months 	of March 	1998,
therefore 	these 	allegations 	are 	also 	untimely 	filed 	and outside
the 	jurisdiction of 	PERB.
(

LA-CE-507-S
Warning 	Letter
Page 6
Retaliation
The 	charge 	alleges 	the 	State 	retaliated against 	the 	Charging
Parties 	by taking various 	actions 	relating 	to 	sick 	leave.
As 	stated previously, 	under Dills Act 	§ 	3514.5(a)(1) 	PERB cannot
issue 	a 	complaint 	based upon unfair practices 	occurring more 	than
six months prior 	to 	the 	filing of 	the 	charge. 	Since 	this 	charge
was 	filed on October 31, 	1998, 	the charge's allegations of
adverse 	actions 	occurring before April 	31, 	1998 	are untimely
filed and outside 	the 	jurisdiction of 	PERB. 	Thus, 	those
allegations 	must 	be 	dismissed.
The 	charge 	alleges 	the 	State 	retaliated against 	the 	Charging
Parties on several 	occasions 	following April 	31, 	1998. 	These
allegations 	appear 	to 	be 	timely 	filed 	and 	are 	discussed below.
To demonstrate a violation of Dills Act 	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; 	Departmen	- 	t
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.)
(

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Warning 	Letter
Page 	7
The 	charge 	alleges 	that 	in May 	1998 	the 	State 	denied 	employees
the 	specific 	criteria 	the 	State 	was 	using 	to 	determine 	whether
employees 	were 	engaging 	in 	"sick 	leave 	abuse" 	and 	"above 	average
use" 	of 	sick leave. 	The 	charge does not provide 	any facts
demonstrating 	the 	State 	is 	required 	to provide 	the 	employees
specific 	criteria 	for determining 	"sick 	leave 	abuse" 	and 	"above
average use" 	of 	sick leave. 	CSEA, 	as 	the exclusive
representative, 	negotiated with 	the 	State 	to 	include 	those 	terms
into 	the parties 	1992-1995 	Memorandum of 	Understanding. 	Section
8.2 (e) (1) 	and 	(3) 	use those terms without 	indicating the State
must 	further 	define 	those 	terms 	or provide 	the 	employees 	with
specific 	criteria. 	Thus, 	it 	does not 	appear that 	the 	State's
failure 	to 	further define 	those 	terms 	is 	an adverse 	action.
Thus, 	this allegation must be dismissed.
The 	charge 	alleges between May 	1998 	and August 	1998, 	the 	State
denied 	five 	employees' 	leave 	of 	absence 	requests 	because 	of 	the
employees' 	"sick leave 	abuse." 	The 	charge does 	not provide 	facts
indicating 	the 	names 	of 	the 	specific 	employees 	whose 	leave 	of
absence 	requests 	were 	denied. 	Nor does 	it 	provide 	facts
indicating 	that 	these 	five 	employees 	engaged 	in 	any protected
conduct. 	A charging party should allege the 	"who, 	what, 	when,
where, 	and how" 	of 	an unfair practice. 	(United Teachers-Los
Angeles 	(Ragsdale) 	(1992) 	PERB Decision 944.) 	Mere 	legal
conclusions 	are 	insufficient. 	(See 	State 	of 	California
(Department 	of 	Food and Agriculture 	(1994) 	PERB Decision No.
1071-S.) 	Even 	if 	the 	charge 	had provided 	such 	information 	the
charge does 	not 	state a prima 	facie violation. 	The 	charge 	does
not 	provide 	facts 	indicating 	the 	State may not 	discipline
employees 	for engaging 	in 	"sick 	leave 	abuse." 	As 	previously
stated, 	CSEA and 	the 	State 	negotiated an MOU 	including 	that 	term.
Thus, 	it 	appears 	the 	State's 	denial 	of 	leave of 	absence 	requests
was 	in. accord with the parties' 	MOU and not 	retaliatory. 	Thus,
this 	allegation must 	be 	dismissed.
The 	charge 	also 	alleges 	the 	State 	commended employees 	for 	their
more prudent 	use 	of 	sick leave 	in July 	1998. 	As 	this 	fact 	does
not 	allege 	any 	adverse 	action was 	taken or 	threatened but 	is
congratulatory in nature, 	it 	does 	not 	state 	a prima 	facie
violation.
Finally, 	the 	charge alleges 	that by. July-1998 	the 	State had
placed 	15 	employees 	on 	sick 	leave 	abuse 	status. 	The 	charge 	does
not 	provide 	the 	names or dates 	of 	when the 	employees 	were placed
on 	sick 	leave 	abuse 	status. 	A charging party 	should 	allege 	the
"who, 	what, 	when, 	where, 	and how" of an unfair practice. 	(United
Teachers-Los Angeles 	(Ragsdale) 	(1992) 	PERB Decision 944.) 	Nor
does 	it 	provide 	facts 	indicating 	that 	the 	employees 	engaged 	in
protected activities. 	In addition, 	the charge 	fails 	to 	factually
demonstrate 	that 	the 	State 	is 	prohibited 	from disciplining
i

LA-CE-507-S
Warning Letter
Page 8
employees 	for engaging in "sick leave abuse." 	Again the parties'
negotiated that term into the parties' 	1992-1995 MOU, 	and it
appears the State acted in accord with the parties' 	MOU.
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 have the case number written on the 	top right
hand corner of 	the charge 	form. 	The amended charge must be
served on the 	respondent's representative and the original proof
of service must be filed with PERB. 	If 	I do not receive an
amended charge or withdrawal from you before January 27, 	1999, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
TAMMY IT. SAMSEL
Regional 	Director