State of California (Department of Corrections) (PERB 1373S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION, 	LOCAL 1000, 	SEIU,
AFL, CIO-CLC,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
)
) 	Case No. 	SF-CE-165-S
PERB Decision No. 	1373-S
February 28, 	2000
)
)
)
)
)
)
)
)
Appearance; 	Terrence Ryan, 	Labor Relations Representative, 	for
California State Employees Association, 	Local 1000, 	SEIU, 	AFL,
CIO-CLC.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION AND 	ORDER
AMADOR, 	Member: 	This 	case comes before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by the 	California
State Employees Association, 	Local 1000, 	SEIU, 	AFL, 	CIO-CLC
(CSEA) 	to a Board agent's dismissal 	(attached) 	of 	its unfair
practice 	charge. 	CSEA filed a charge alleging that 	the State of
California 	(Department 	of 	Corrections) 	violated 	section 	3519(a)
and 	(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1 when it 	imposed
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

reprisals against 	Cori Nofuentes by: 	(1) 	recouping overpayments
for catastrophic time bank credits granted to her; 	(2) 	issuing
her a counseling memorandum; 	and 	(3) 	refusing to reasonably
accommodate her.
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.
After investigation, 	the Board agent 	dismissed the 	charge
for 	failure 	to 	establish a prima 	facie 	case 	of 	a violation of 	the
Dills Act. 	The Board has 	reviewed 	the 	entire 	record 	in this
case, 	including the unfair practice charge, 	the warning and
dismissal 	letters 	and CSEA's 	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.
The unfair practice 	charge 	in Case No. 	SF-CE-165-S 	is 	hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chairman 	Caffrey and Member Dyer joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
~
'S'
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
October 20, 	1999
Terrence 	Ryan
Labor 	Relations 	Representative
California 	State 	Employees 	Association
2020 	Challenger Drive, 	Suite 	102
Alameda, 	California 	94501-1017
Re: 	DISMISSAL 	OF UNFAIR 	PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
California State Employees Association, 	Local 	1000, 	SEIU,
AFL-CIO, 	CLC v. 	State of 	California 	(Department 	of
Corrections)
Unfair 	Practice 	Charge No. 	SF-CE-165-S
Dear Mr. 	Ryan:
The 	above-referenced unfair practice 	charge, 	filed on June 	18,
1997, 	and amended on August 29, 	1997, 	December 19, 	1997, 	and June
22, 	1998, 	alleges that the State of California 	(Department of
Corrections) 	(State or Department) 	discriminated against 	Cori
Nofuentes 	because 	of 	her 	activities 	on behalf 	of 	the 	California
State Employees Association, 	Local 100, 	SEIU, 	AFL-CIO, 	CLC
(Association). 	This 	conduct 	is 	alleged to violate Government
Code 	section 3519(a) 	and 	(b) 	of 	the Ralph C. 	Dills Act 	(Dills
Act) .
I 	indicated to you, 	in my attached letter dated October 	8, 	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
October 19, 	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 October 	8, 	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 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with 	the 	Board must 	contain

Dismissal 	Letter
SF-CE-165-S
October 20, 	1999
Page 2
the case name 	and number, 	and the original 	and 	five 	(5) 	copies 	of
all 	documents 	must 	be 	provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close 	of 	business 	(5 p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express 	United States 	mail, 	as 	shown
on 	the postal 	receipt 	or postmark, 	or delivered 	to 	a 	common
carrier promising 	overnight 	delivery, 	as 	shown on 	the 	carrier's
receipt, 	not 	later than the 	last 	day set 	for 	filing. 	(Cal. 	Code
Regs., tit. 	8, 	sec. 32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of 	business 	on 	the 	last 	day 	for
filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided 	the 	filing party also places 	the 	original, 	together with
the 	required number of 	copies 	and proof of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
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 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. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135 (c) .)

Dismissal 	Letter
SF-CE-165-S
October 20, 	1999
Page 3
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 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
DONN GINOZA
Regional 	Attorney
Attachment
cc: 	Robert Allen

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
October 8, 	1999
Terrence 	Ryan
Labor 	Relations 	Representative
California 	State 	Employees 	Association
2020 	Challenger Drive, 	Suite 	102
Alameda, 	California 	94501-1017
Re: 	WARNING LETTER
California State Employees Association, 	Local 	1000, 	SEIU,
AFL-CIO, 	CLC v. 	State of 	California 	(Department of
Corrections)
Unfair 	Practice 	Charge No. 	SF-CE-165-S
Dear Mr. 	Ryan:
The 	above-referenced unfair practice 	charge, 	filed on June 	18,
1997, 	and amended on August 29, 	1997, 	December 19, 	1997, 	and June
22, 	1998, 	alleges that the State of California 	(Department of
Corrections) 	(State or Department) 	discriminated against 	Cori
Nofuentes 	because 	of 	her 	activities 	on behalf 	of 	the 	California
State Employees Association, 	Local 100, 	SEIU, 	AFL-CIO, 	CLC
(Association). 	This 	conduct 	is 	alleged to violate Government
Code 	section 3519(a) 	and 	(b) 	of 	the Ralph C. 	Dills Act 	(Dills
Act) .
Investigation of 	the 	charge 	revealed the 	following. 	The
Association 	is 	an exclusive 	representative 	of 	the 	State
bargaining unit 	composed of 	office 	and allied workers. 	Cori
Nofuentes 	is 	a member of 	this 	bargaining unit 	who 	has 	been
employed at 	the California Medical 	Facility 	(CMF). 	At 	CMF, 	she
held the position of 	Office-Technician, 	Custody Timekeeper.
Nofuentes 	was 	certified as 	a 	steward 	for 	the Association 	in
September 	1993. 	She 	has 	engaged 	in representational 	activities
in this 	capacity, 	although the 	charge does 	not 	describe 	them in
any detail. 	At 	some unspecified time, 	she was 	also 	elected
treasurer of 	the Association's 	District 	Labor Council 	747.
In the 	1980s, 	Nofuentes was 	assaulted by an inmate 	and as 	a
result 	suffered an 	injury to 	the 	cervical 	portion of 	her 	spine.
Years 	later, 	in June 	1996, 	apparently as 	a result 	of 	the
cumulative 	stress 	of 	her 	computer work 	combined with 	the 	earlier
injury, 	she 	suffered 	a disability that 	required her 	to begin
taking 	a 	substantial 	amount 	of 	time 	off 	from work.
When Nofuentes 	returned to work 	later in the 	summer of 	1996, 	she
claimed 	that 	continued performance 	of 	duties 	on 	her 	computer
conflicted with her physician's 	restrictions. 	She 	made 	a 	request

Warning 	Letter
SF-CE-165-S
October 8, 	1999
Page 2
for 	reasonable 	accommodation. 	The 	request 	included numerous
ergonomic 	changes 	to her computer work station. 	The Department
failed to 	act 	immediately on her 	request. 	She 	filed a grievance
in August 	1996, 	alleging reprisals 	for union activity based on
the Department's 	refusal 	to discuss 	her requests with her. 	As 	a
result 	of 	the grievance, 	the Department, 	on or about 	September 3,
1996, 	agreed 	to 	move 	her 	computer 	to 	a 	table with adjustable
keyboard height, 	a 	lower monitor height, 	and a document holder.
In addition, 	she was provided with an ergonomic model 	chair.
For 	the period 	from June 	through 	September 	1996, 	Nofuentes 	was
granted leave 	hours 	from the 	Catastrophic 	Time Bank 	(CTB). 	This
followed the 	exhaustion of her own personal 	leave 	credits. 	The
CTB 	is 	a depository 	for employees 	wishing 	to 	donate 	excess 	leave
time 	to 	employees 	who 	have 	exhausted 	their personal 	leave 	and
face 	financial 	hardship without 	additional 	leave 	benefits.
Nofuentes 	received a 	total 	of 	290 	hours 	from the 	CTB.
According 	to 	the 	State, 	Nofuentes 	did not 	claim 	from the 	outset
that her spinal 	injury was work-related. 	In September 	1996, 	this
changed, 	after 	a diagnosis 	from her doctor 	that 	her 	injury was
work-related. 	She 	then 	applied 	for Worker's 	Compensation
benefits 	from the 	State Compensation 	Insurance 	Fund 	(SCIF). 	Her
was 	claim was 	granted retroactive 	to June 	5, 	1996. 	Beginning 	in
September 	1996, 	Nofuentes was 	allowed to 	charge her 	absences 	to
Worker's 	Compensation.
After 	SCIF granted her benefits, 	the 	Department 	retroactively
credited 	all 	used personal 	leave 	benefits 	that 	were 	covered by
Worker's 	Compensation. 	However, 	SCIF determined that 	the hours
taken from the 	CTB were not 	compensable.1 By State policy, 	a
person 	subsequently 	found 	eligible 	for Worker's 	Compensation 	is
deemed to be 	ineligible 	for CTB 	credits, 	because 	the person is no
longer 	considered to 	have 	had 	a 	financial 	hardship 	by virtue 	of
the 	retroactive 	benefits under Worker's 	Compensation. 	The
Department 	notified Nofuentes 	of 	this 	determination 	by memorandum
dated December 6, 	1996.
Since 	Nofuentes 	did not 	have 	sufficient 	personal 	sick 	leave 	to
cover the 	CTB hours, 	the 	excess 	time 	that 	she had taken was
charged backed to the Department, through the CTB... 	In turn, 	the
Department 	determined 	that 	Nofuentes 	had been 	overpaid by 	$738.00
1According to 	the 	State, 	the Department's 	action 	is merely
ministerial; 	the 	determination as 	to which days 	off 	are
compensable 	and which are 	not 	is 	determined by SCIF.

Warning 	Letter
SF-CE-165-S
October 8, 	1999
Page 3
and 	commenced 	action 	to 	recoup 	its 	overpayment 	by 	reducing
Nofuentes's 	regular pay warrants, 	beginning 	in January 	1997.2
Nofuentes 	objected 	to 	the 	overpayment 	collection 	claiming 	that
once 	granted 	CTB 	credits 	are 	irrevocable. 	The Department
responded by 	stating 	that 	this 	was 	not 	so 	and that 	the 	provision
of 	the memorandum of 	understanding 	(MOU) 	upon which Nofuentes
relied provides 	only 	that 	donations 	to 	the 	CTB 	by employees 	are
irrevocable 	once 	made.
On or about June 	3, 	1997, 	Nofuentes's 	supervisor, 	Miriam Galarza,
issued 	a 	counseling memorandum 	to Nofuentes 	concerning 	her
timesheet. 	Galarza 	claimed that 	due 	to 	insufficient 	personal
leave 	credits, 	Nofuentes 	had not 	accurately cited whether certain
time-off was 	charged to her personal 	leave, 	as 	opposed to
industrial 	disability leave. 	When Galarza gave 	her 	the 	correct
information 	and 	instructed Nofuentes 	to make 	the 	entries 	on 	the
timesheet, 	Nofuentes objected, 	stating, 	"If 	I worked in another
department 	I 	would not 	have 	to 	do 	this." 	Galarza 	claimed 	that
she was 	not 	instructing Nofuentes 	to change her attendance, 	but
rather the 	accounts 	to which her absences 	had been 	charged. 	She
wanted Nofuentes 	to 	track her 	sick 	leave, 	and when exhausted,
indicate 	properly 	to 	which other 	account 	she 	was 	charging her
time. 	Galarza 	noted that 	in past 	instances 	as 	well 	when she 	had
brought 	this 	matter up, 	Nofuentes's 	behavior and 	language 	had
been 	"unprofessional."
In a grievance 	filed against 	the 	counseling memorandum, 	in which
she 	claimed 	reprisals 	for her union activities, 	Nofuentes
complained that 	she was 	counseled 	in the presence 	of 	a 	coworker.
This 	neighboring 	coworker had overheard 	the 	exchange. 	Nofuentes
also 	claimed 	that 	Galarza's 	claim that 	she 	had been
"unprofessional" 	was 	too vague. 	She 	also claimed that 	she was
the 	only employee 	required to make 	these 	types 	of 	notations 	as 	to
the 	charging 	of 	leave 	balances.
Galarza 	responded 	to 	the 	grievance 	by asserting 	that 	she 	did not
approach Nofuentes 	on June 	3 	with the 	purpose 	of 	counseling her
but 	merely to 	instruct 	her to make 	certain corrections. 	Galarza
claimed 	that 	she 	was 	instructing Nofuentes 	to make 	the 	notations
because 	as 	a 	supervisor, she was 	responsible 	for 	submitting
accurate 	timesheets 	for 	all 	her 	employees. 	She 	also 	stated that
it 	was Nofuentes's 	demeanor 	and questioning 	of 	an order 	that 	was
the 	basis 	for her 	charge 	of 	unprofessional 	behavior.
2The 	State 	notes 	that 	Government 	Code 	section 	19838
authorizes 	recoupment 	of 	overpayments 	in this manner.

Warning 	Letter
SF-CE-165-S
October 8, 	1999
Page 4
By memorandum dated July 7, 	1997, 	the Department's 	Return-To-Work
Coordinator 	informed Nofuentes 	that 	her 	120-day-per-year 	limit 	on
working 	on 	restricted 	duty had 	been 	exhausted 	and 	she 	could not
continue 	to work 	in 	that 	status.3 Nofuentes 	had been on
restricted duty from June 	27, 	1996 	through November 	12, 	1996.
Therefore, 	the 	Return-To-Work 	Coordinator 	informed Nofuentes 	that
she 	could 	not 	be 	accommodated 	on 	restricted 	duty until 	November
of 	1997, 	notwithstanding her physician's work restrictions 	noted
on June 	11, 	1997. 	Nofuentes 	challenged this 	action through the
State 	Personnel 	Board on August 	26, 	1997. 	She 	claimed that 	she
could 	continue 	to work with 	reasonable 	accommodations 	to 	her work
station which would 	obviate 	any 	reason 	to 	place 	her 	on 	restricted
duty. 	She 	also 	believed 	that 	the 	Department 	could have
restructured 	her 	job 	or 	reassigned her.
Sometime 	in late 	1997 	or early 	1998, 	Nofuentes notified the
Department 	that 	she was 	no 	longer able 	to 	return 	to work as 	an
office 	technician 	in 	the 	timekeeping 	office 	due 	to 	her medical
restrictions. 	She 	requested 	another position 	that 	conformed 	to
her medical 	restrictions, 	that 	did not 	require 	typing 	for more
than 	fifteen minutes 	at 	a 	time. 	The personnel 	office 	attempted
to 	find such 	a position and offered her 	two positions. 	These
were 	not 	acceptable 	to Nofuentes. 	A third vacant 	position 	in the
personnel 	services 	department 	was 	considered but 	not 	offered
because of 	the 	typing restriction. 	By letter dated June 	3, 	1998,
Nofuentes 	questioned why 	she 	was 	not 	offered a vacant 	position 	in
the mail 	room.4
In March 	1998, 	Nofuentes understood the personnel 	officer at 	CMF
as 	stating 	that 	her position had been posted because 	it 	had been
vacant 	for 	some 	period of 	time. 	She 	also believed 	that 	she 	faced
possible 	demotion because 	of 	her 	time 	off. 	The personnel 	officer
later 	assured Nofuentes's 	Association 	representative 	that 	the
Department was 	merely unsure of Nofuentes's medical 	status, 	that
3Nofuentes 	had 	received 	an 	earlier 	notice 	in October 	1996 atat
the 	time 	her 	12 0 	days 	of 	restricted duty had 	first 	been
exhausted. 	Nofuentes 	had 	returned 	to work on a 	half-time 	basis
in June 	1996. 	Later, 	she 	first 	returned to her full-time
position, 	though her 	typing duties were 	limited to 	two hours 	per
day. 	The 	Return-To-Work Coordinator had determined 	that 	the
latter 	assignment 	counted 	as 	restricted duty 	time.
4An earlier 	letter dated April 	28, 	1998 	from her physician
does 	state 	that 	Nofuentes 	has 	difficulty with 	repetitive 	hand
movements 	and 	that 	"sorting 	through mail 	would 	cause 	her
increased 	pain." 	The 	physician 	suggested 	rehabilitation 	and
training 	in her 	field of 	training, 	accounting and bookkeeping.

Warning 	Letter
SF-CE-165-S
October 8, 	1999
Page 5
it was not 	the 	Department's 	intent 	to demote her, 	and once 	it
knew what 	her medical 	restrictions 	were, 	it 	would do 	everything
possible 	to 	accommodate 	her 	in 	her 	current 	classification.
However, 	another personnel 	officer 	in a discussion 	told Nofuentes
in response 	to 	the question, 	"Are you going to accommodate me?,"
stated 	she 	would 	not.
Based on 	the 	facts 	stated above, 	the 	charge 	as 	presently written
fails 	to 	state 	a prima 	facie violation of 	the Dills Act 	for the
reasons 	that 	follow.
The Association 	alleges 	that 	the 	Department 	has 	imposed 	reprisals
against 	Nofuentes 	by 	(1) 	recouping overpayments 	for 	the 	CTB
credits granted to her, 	(2) 	issuing her the June 3, 	1997
counseling memorandum, 	and 	(3) 	refusing 	to 	reasonably accommodate
her.
To demonstrate 	a violation of Dills Act 	section 3519(a), 	the
charging party must 	show that: 	(1) 	the employee 	exercised rights
under 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. 2 64.)

Warning 	Letter
SF-CE-165-S
October 8, 	1999
Page 6
As 	a preliminary matter, 	it 	is 	noted that 	the 	charge 	consists
almost 	entirely of 	documents 	and has 	no 	narrative 	description
indexing the 	relevant 	portions 	of 	the 	documents. 	This 	has made
analysis 	of 	the 	charge difficult 	and time-consuming. 	The
Association has 	been 	asked on 	several 	occasions 	to 	outline 	the
pertinent 	elements 	of 	the 	charge 	of 	discrimination but 	has 	failed
to do 	so. 	Therefore, 	the 	following analysis of the 	charge
represents 	simply a best 	effort 	to 	decipher 	the 	elements 	of 	the
charge, 	while 	indulging 	in all 	inferences 	that 	reasonably can be
drawn 	from the 	information contained 	in 	the 	charge.
With 	respect 	to 	the 	allegation 	that 	the 	Department 	recouped
overpayments 	in 	retaliation 	for union activity, 	the 	charge 	as
presently written 	fails 	to 	demonstrate 	the 	necessary 	"nexus"
factors 	and therefore 	does 	not 	state 	a prima 	facie violation of
section 3519(a). 	Although some 	evidence of 	timing 	can be
inferred, 	it 	is 	extremely weak. 	Nofuentes 	has been a 	job 	steward
and District 	Labor 	Council 	officer 	on 	an ongoing basis 	since
1993. 	The 	charge 	mentions 	no 	specific 	activities 	that 	occurred
in 	close 	temporal 	proximity to 	the 	recoupment 	of 	overpayments.
The Association's 	claim that 	the 	recoupment 	of 	overpayments
violated 	the 	MOU 	and 	therefore 	departed 	from established
procedures 	is 	unsupported. 	Nothing 	in the MOU indicates 	that 	CTB
credits 	are 	irrevocable 	once 	granted 	to 	the 	employee 	in 	the
circumstances 	of 	this 	particular 	case 	where 	a 	retroactive 	grant
of 	Worker's 	Compensation benefits 	triggers 	the 	determination of
an overpayment 	by SCIF. 	Moreover, 	there 	is 	nothing 	suggesting
that 	SCIF 	had 	knowledge 	of 	Nofuentes's 	protected 	activity.
With 	respect 	to 	the 	allegation 	that 	the 	Department 	imposed
reprisals 	by 	issuing Nofuentes 	the 	counseling memorandum, 	the
charge 	also 	fails 	to demonstrate 	the 	required 	"nexus" 	factors.
Again, 	evidence 	of 	timing 	is 	extremely weak. 	There 	appears 	to be
a 	suggestion of 	disparate 	treatment. 	However, 	this 	element 	is
unsupported by 	relevant 	evidence. 	The 	counseling memorandum grew
out 	of 	a 	specific 	encounter 	that 	was 	related to Nofuentes's
ongoing 	conflicts 	over her restricted work 	status. 	There 	is 	no
evidence 	suggesting 	how other 	employees 	with 	industrial 	injuries,
who 	had not 	engaged 	in protected 	activities, 	were 	treated more
favorably. 	The 	counseling memorandum 	itself 	does 	not 	appear 	to
be 	an 	excessive 	form of 	discipline 	under 	the 	circumstances 	nor
does 	its 	justification appear vague 	or 	inconsistent.
Finally, 	with respect 	to 	the 	allegation that 	the Department
discriminated 	against 	Nofuentes 	by 	failing 	to 	reasonably
accommodate Nofuentes, 	the 	charge 	fails 	to demonstrate 	the
required 	"nexus" 	factors. 	Though not 	until 	after a grievance was
filed, 	the 	Department 	did alter Nofuentes's 	computer work 	station
to 	incorporate 	ergonomic 	elements. 	Nofuentes's 	injury was 	so

Warning 	Letter
SF-CE-165-S
October 8, 	1999
Page 	7
limiting 	that 	the 	Department's 	inability 	to 	restructure 	her 	job
or reassign her does 	not 	appear to be unusual. 	Then, 	too, 	the
Department 	did offer 	some vacant 	positions 	to Nofuentes. 	The
Association has 	not 	demonstrated 	the 	existence 	of 	any other
vacant 	positions 	that 	the Department 	failed 	to 	offer her. 	The
imposition 	of 	the 	120-day 	restricted 	duty 	limitation 	appears 	to
be 	based on 	standard procedure. 	The 	alleged 	threat 	to 	demote
Nofuentes 	was 	retracted 	shortly 	after Nofuentes 	complained 	to 	the
Association. 	The 	isolated 	statement 	by another personnel 	officer
that 	the 	Department 	would not 	accommodate 	is 	not 	sufficient 	to
demonstrate 	a violation. 	The 	full 	context 	of 	the 	statement 	is
lacking; 	it 	could have been limited 	to 	that 	point 	in 	time 	when no
appropriate vacant positions 	existed. 	In any event, 	the 	duty to
accommodate 	is 	not 	absolute but 	is 	subject 	to a 	standard of
reasonableness. 	The 	charge 	does 	not 	demonstrate why 	the 	failure
to 	reasonably accommodate 	was 	violative 	of 	standard procedure.
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 	October 	19, 	1999, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
DONN 	GINOZA
Regional 	Attorney