Monterey County Office of Education (PERB 0913E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JEANETTE G. 	GILLIGAN,
Charging 	Party,
v.
MONTEREY COUNTY OFFICE OF EDUCATION,
Respondent.
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) 	Case No. 	SF-CE-1415
PERB Decision No. 	913
December 	13, 	1991
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Appearances: 	Jeanette G. 	Gilligan, 	on her own behalf; 	Breon,
O'Donnell, 	Miller, 	Brown & Dannis by Martha Buell Scott,
Attorney, 	for Monterey County Office of Education.
Before Hesse, 	Chairperson; 	Shank and Carlyle, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by Jeanette G. 	Gilligan
(Gilligan) 	of 	the 	attached proposed decision by an administrative
law judge 	(ALJ). 	The ALJ dismissed the 	complaint which alleged
that the Monterey County Office of Education 	(MCOE) 	violated the
Educational Employment Relations Act 	(EERA) 	section 3543.5(a).1
The Board has 	reviewed the 	entire 	record, 	including the proposed
1BBRA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer 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.
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decision, 	Gilligan's 	exceptions and MCOE's response thereto, 	and
finds 	the ALJ's 	findings 	of 	fact 	and conclusions 	of 	law to be
free 	of prejudicial 	error and therefore 	adopts 	the proposed
decision as 	the decision of 	the 	Board 	itself.2 We write
separately, 	however, 	to briefly address MCOE's response to
Gilligan's 	exceptions.
MCOE asserts, 	in its response to Gilligan's exceptions,
that 	the 	Board 	agent 	erroneously 	issued 	the 	complaint 	because
the 	facts 	alleged 	in the 	complaint were 	taken 	from a 	telephone
conversation between the Board agent 	and Gilligan. 	MCOE 	argues
that 	PERB 	regulations 	require 	the 	Board 	agent 	to 	review only
written 	charges 	in the 	investigation of 	an unfair practice
charge. 	PERB Regulation 	326153 lists 	the 	information that
should be 	included 	in an unfair practice 	charge. 	Specifically,
Regulation 	32615(a)(5) 	states 	the charge 	shall 	contain 	"[a]
clear 	and 	concise 	statement 	of 	the 	facts 	and 	conduct 	alleged 	to
constitute 	an unfair practice." 	PERB Regulation 	326204 provides
2Gilligan requested 	oral 	argument pursuant 	to 	Regulation
32315. 	We 	find no need to grant the request as 	the matter was
thoroughly 	litigated by 	the parties 	and 	there 	are 	sufficient
facts 	in the 	record to allow the Board to 	reach 	its 	decision.
3PERB Regulations 	are 	codified 	at California Code 	of
Regulations, 	title 8, 	section 31001 et seq.
"Regulation 32620 	states:
(a) 	When a charge is filed, 	it shall be
assigned 	to a Board agent 	for processing.
(b) 	The powers 	and duties 	of 	such Board
agent 	shall be to:
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the procedure 	for processing an unfair practice 	charge. 	Under
Regulation 	32620, 	a Board 	agent 	is 	specifically 	empowered 	to
"make 	inquiries" 	and 	"facilitate 	communication 	and the 	exchange
of 	information between the parties." 	Further, 	Regulation
32620(c) 	requires 	that the respondent be 	apprised of 	the
allegations 	and be 	allowed 	to 	state 	its 	position during the
investigation.5
(1) 	Assist 	the 	charging party to 	state
in proper 	form 	the 	information 	required 	by
section 32615;
(2) 	Answer procedural questions 	of 	each
party 	regarding 	the processing 	of 	the 	case;
(3) 	Facilitate 	communication and the
exchange of 	information between the parties;
(4) 	Make 	inquiries 	and review the
charge 	and 	any 	accompanying 	materials 	to
determine whether 	an unfair practice 	has
been, 	or is being, 	committed, 	and determine
whether the charge 	is 	subject to deferral 	to
arbitration, 	or to dismissal 	for lack of
timeliness.
(5) 	Dismiss 	the charge or any part
thereof as provided 	in section 	32630 	if 	it 	is
determined that 	the 	charge 	or 	the 	evidence 	is
insufficient to 	establish a prima 	facie 	case;
or 	if 	it 	is determined that a 	complaint may
not 	be 	issued 	in 	light 	of 	Government 	Code
sections 	3514.5, 	3541.5 or 3563.2 	or because
a 	dispute 	arising under HEERA 	is 	subject 	to
final 	and binding arbitration.
(6) 	Issue a 	complaint pursuant to
section 32640.
(c) 	The respondent 	shall be apprised of 	the
allegations, 	and may 	state 	its position on
the 	charge during the 	course of 	the 	inquires.
5Here, 	MCOE does 	not 	assert that 	the 	Board agent 	failed 	to
inform MCOE 	of 	Gilligan's 	allegations, 	or 	failed to allow MCOE
to respond, 	but 	instead alleges 	the Board agent 	improperly
considered Gilligan's 	oral 	allegations. 	The Board 	finds 	that, 	as
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In Eastside Union School 	District 	(1984) 	PERB Decision
No. 	466, 	the Board found that a Board agent may not accept,
as 	conclusive, 	respondent's 	ex parte 	statements 	regarding the
allegations 	in an unfair practice charge. 	Further, 	the Board
held 	that Board agents 	may not 	rule on the ultimate merits 	of 	the
unfair practice charge. 	Except for this 	limitation, 	the Board
agent has 	the 	authority to 	conduct 	an 	investigation to determine
whether 	the unfair practice 	charge 	allegations 	state 	a prima
facie case.
Additionally, 	the 	Board has 	found that 	a 	charging party's
allegations were 	sufficient 	to 	state 	a prima 	facie 	case where
the 	unfair practice 	charge 	lacked 	in 	specifics 	and 	could have
been 	stated with greater 	clarity. 	(Regents 	of 	the University
of California 	(AFT. 	Local 	1474) 	(1987) 	PERB Decision No. 	654-H.)
Although 	the 	amended unfair practice 	charge may 	not 	be 	clear
and concise 	in the present case, 	the 	charge 	contains 	sufficient
factual 	allegations 	supporting 	the 	conclusion 	that 	a 	violation
may have occurred. 	Therefore, 	we 	find that the General Counsel
properly 	issued 	a 	complaint 	based 	on Gilligan's 	amended 	unfair
practice charge.
The unfair practice charge and complaint 	in Case No. 	SF-CE-
1415 	is 	HEREBY DISMISSED.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
MCOE was 	provided with 	the 	opportunity 	to 	respond 	to 	Gilligan's
allegations, 	MCOE was 	not prejudiced due to the Board agent's
consideration of 	Gilligan's 	oral 	allegations.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
JEANETTE G. 	GILLIGAN,
Charging 	Party,
v.
MONTEREY COUNTY OFFICE 	OF
EDUCATION,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-1415
PROPOSED 	DECISION
(8/16/91)
Appearances: 	Jeanette G. 	Gilligan, 	on her own behalf; 	Breon,
O'Donnell, 	Miller, 	Brown & Dannis, 	by Martha Buell Scott,
Attorney, 	for Monterey County Office of 	Education.
Before JAMES W. 	TAMM, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	unfair practice 	charge was 	filed by Jeanette 	G.
Gilligan 	(Charging Party or Gilligan) 	against the Monterey County
Office 	of 	Education 	(Employer or MCOE) 	alleging the 	Employer
retaliated 	against 	Charging 	Party because 	of 	her 	exercise 	of
protected rights, 	in violation of 	section 3543.5(a) 	of the
Educational 	Employment Relations Act 	(EERA).1 A complaint was
The EERA is 	codified at Government Code 	section 	3540 	et.
seq. 	The pertinent portion of 	section 	3543.5 	reads:
It 	shall 	be unlawful 	for a public 	school
employer to:
(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. 	. 	. 	.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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issued by the Office of 	the General 	Counsel 	for the Public
Employment 	Relations 	Board 	(PERB) 	alleging that the 	Employer 	took
adverse 	action against Gilligan by 	issuing her 	a 	Notice 	of 	Intent
to Dismiss.
At the 	start of the 	formal hearing, 	the Charging Party
amended her 	complaint 	on 	the 	record 	to 	allege 	that 	the 	adverse
action taken 	against her 	also 	included her 	actual 	dismissal.
At the 	conclusion of two days 	of testimony, 	the hearing was
recessed 	and 	the 	Charging 	Party was 	ordered 	to 	make 	an 	offer 	of
proof 	as 	to the remainder of her case. 	This 	decision is 	in
response 	to 	the 	evidence 	offered by Charging 	Party 	at 	the 	formal
hearing as well 	as 	her offer of proof.
FINDINGS 	OF 	FACT AND CONCLUSIONS OF 	LAW
Under the 	test 	set 	forth by the 	PERB 	in Novato 	Unified
School District 	(1982) 	PERB Decision No. 	210, 	a prima facie case
of 	discrimination or reprisal 	for protected activities 	is
established 	if 	the 	charging party 	can prove 	that 	the 	employee
participated 	in protected activities, 	that 	the protected activity
was 	known to the 	employer, 	and that adverse action taken by the
employer was motivated, 	at least in part, 	by the employee's
protected 	activities.
At 	the 	time 	Charging 	Party was 	notified 	she was 	being
dismissed, 	she was 	employed as 	a 	switchboard operator. 	Since at
least as 	early as April 	1989, 	Gilligan had been represented 	in
numerous 	meetings 	with her 	employer by 	the California 	School
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Employees Association 	(CSEA), 	the exclusive representative of
classified employees 	at MCOE.
Between April 	1989 	and July 	1990, 	Charging Party filed
numerous 	grievances; 	many of those grievances were 	filed with the
assistance of CSEA. 	The grievances 	covered a range of 	issues,
such as 	denial 	of 	sick leave benefits, 	her 	supervisor's 	alleged
refusal 	to meet with her, 	complaints by other employees 	against
her, 	disputes 	over job duties 	and placement of 	letters 	of
reprimand 	and 	other negative 	material 	into 	her personnel 	file.
This 	rather 	consistent pattern of 	the Charging Party
engaging 	in protected 	activity was 	admitted by 	the 	Employer,
either 	in the Answer to the 	Complaint 	or through the 	testimony of
Charging Party's 	immediate 	supervisor, 	Gary Bousum. 	Therefore,
the 	Charging Party has 	met 	two 	requirements 	of 	the Novato 	test;
that 	she 	engaged 	in protected 	activity 	and 	that 	the 	employer had
knowledge 	of 	that protected 	activity.
The 	Charging 	Party has 	also demonstrated that 	the 	Employer
took adverse 	action against her 	in the 	form of 	the Notice 	of
Intent 	to 	Dismiss, 	placing Charging Party on administrative 	leave
pending her dismissal, 	then finally, 	her actual termination from
employment.
What Charging Party has 	failed to demonstrate, 	however,
through 	either 	evidence offered at the 	formal hearing or the
offer of proof, 	is 	any connection or nexus between her protected
activity 	and 	the 	adverse 	action 	taken against her by 	the
Employer.
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What was 	established 	instead, 	by Charging Party's 	own
witnesses 	and documentary evidence, 	was 	that 	she was 	terminated
for 	reasons 	having 	no 	connection to 	her protected 	activity.
There was 	ample 	convincing 	evidence2 that 	Charging 	Party was
terminated 	for reasons 	such as 	her persistent refusal 	to 	follow
her 	supervisor's directions, 	rudeness 	towards other employees 	and
taking unauthorized actions. 	For example, 	Charging Party
continued 	to 	screen telephone 	calls 	rather 	than putting 	them
directly through to 	individuals who had been called. 	She had
been the 	subject 	of 	numerous 	complaints 	by other 	employees 	that
she had been extremely rude to them, 	sometimes 	in front of
members 	of 	the general public. 	Her unauthorized actions
included, 	for example, 	ordering a mail cart on an expedited basis
from 	a 	local 	stationery 	store 	and 	ordering work directly 	from
Pacific 	Bell without 	going through proper procedures. 	The
Employer's 	dismissal 	action 	included over 	25 	such allegations.
There was 	ample 	evidence 	that 	the 	Employer's 	action was
motivated 	solely by 	the 	allegations 	included 	in the 	dismissal
notice. 	There was 	no 	convincing evidence that the Employer was
motivated, 	in any way, 	by Charging Party's protected activity.
For instance, 	the timing of Gilligan's dismissal 	is 	not
suspicious 	because 	it 	came only after 	lengthy corrective 	efforts.
The 	Employer 	carefully 	investigated 	allegations 	prior 	to 	taking
any 	action and did not appear to 	overreact or to 	jump 	to
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2 The 	testimony 	of 	Gary Bousum was 	very credible.
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conclusions. 	There were 	no 	shifting 	justifications 	offered by
MCOE 	for 	its 	action. 	The 	Employer has 	consistently based 	its
action upon 	a well 	documented history of 	poor work performance,
inability 	or unwillingness 	to 	follow directions 	and rudeness 	to
other employees. 	There was 	never any 	failure to offer
justification 	to 	Gilligan 	at 	the 	time 	any disciplinary action was
taken. 	It was 	usually well 	documented along with 	efforts 	for
corrective 	action. 	MCOE 	followed 	standard policies 	in
disciplining Gilligan. 	She was 	never denied an opportunity to be
represented by her union or personal 	counsel. 	In fact, 	her
supervisor made 	efforts 	to accommodate her 	in that regard.
Meeting 	times were 	changed 	just 	so 	her Union representative 	could
be 	available. 	Any disparate 	treatment 	actually 	favored Gilligan.
For 	example, 	Gilligan was 	having difficulty performing certain
duties. 	They were then removed 	from her, 	given to another
employee 	and Gilligan was 	assured 	she would 	not 	be 	evaluated 	on
those duties.
The Charging Party has 	therefore 	not met the burden
established by Novato. 	i.e., 	that the adverse action taken
against 	her was 	motivated 	by 	her 	exercise 	of protected 	activity.
For that reason, 	this 	complaint must be dismissed.
SUMMARY AND 	ORDER
Jeanette G. 	Gilligan has 	demonstrated that 	she 	engaged 	in
protected activity, 	that 	the Monterey County Office 	of 	Education
(Employer) 	knew of 	that protected activity and that 	the 	Employer
took adverse 	action against her by terminating her. 	Gilligan has
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not proven 	any 	nexus 	between her protected 	activity 	and 	the
adverse action taken against her. 	This 	case 	is 	therefore
DISMISSED.
Pursuant to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement of 	exceptions with 	the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or 	exhibit number the portions 	of 	the record, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Reg., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" when actually
received before the 	close of business 	(5:00 p.m.) 	on the 	last day
set 	for filing 	". 	. 	. o r when sent by telegraph or certified or
Express 	United States mail, 	postmarked not 	later than the 	last
day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of Regs., 	title 8,
sec. 	32135; 	(Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must be 	served
concurrently with 	its 	filing upon 	each party 	to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany 	each 	copy 	served 	on 	a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	August 	16, 	1991
James W. 	Tamm
Administrative Law Judge
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