State of California (Department of General Services) (Chen) (PERB 1037S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KARIN Y. 	CHEN,
Charging 	Party,
v.
STATE OF CALIFORNIA, 	DEPARTMENT
OF GENERAL 	SERVICES,
Respondent.
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) 	Case No. 	LA-CE-287-S
PERB Decision No. 	1037-S
February 	11, 	1994
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Appearance: 	Karin Y. 	Chen, 	on her own behalf.
Before Caffrey, 	Carlyle and Garcia, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal by Karin Y. 	Chen 	(Chen) 	to a
Board agent's 	dismissal 	(attached hereto) 	of her unfair practice
charge. 	Chen alleged that 	the State of 	California, 	Department 	of
General 	Services violated 	" . . . 	Article 	5.6 	Ralph C. 	Dills Act,
Government Code 	19869 	- 	19877.1" 	by refusing to process her
Temporary Disability Benefit 	Workers' 	Compensation Award
according 	to 	the 	contract between the 	California State 	Employees
Association and 	the 	State 	of 	California.
Chen appealed 	the 	dismissal 	alleging 	improper processing 	of
the 	complaint 	and 	inadequate 	explanation of 	the 	dismissal.
The Board has 	reviewed the 	entire 	record in this 	case,
including 	the 	regional 	attorney's 	warning and dismissal 	letters,
the unfair practice 	charge and Chen's 	appeal. 	The Board 	finds
the 	regional 	attorney's dismissal 	of 	the 	charge 	to be 	free of
__)

prejudicial 	error and therefore adopts 	it as 	the decision of 	the
Board 	itself.
ORDER
The unfair practice charge 	in Case No. 	LA-CE-287-S 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Caffrey and Carlyle 	joined 	in this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governot
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
October 13, 	1993
Karin Y. 	Chen
Re: 	DISMISSAL OF CHARGE AND REFUSAL TO 	ISSUE 	COMPLAINT, 	Unfair
Practice Charge No. 	LA-CE-287-S, 	Karin Y. 	Chen v. 	State of
California. 	Department 	of General 	Services
Dear Ms. 	Chen:
In the above-referenced charge 	filed September 22, 	1993, 	you
allege 	that 	the State of 	California, 	Department 	of General
Services 	(State or DGS) 	violated Article 5.6 	(Supersession),
subsection a. 	(Government Code Sections), 	6 	(Industrial
Disability Leave), 	19869 	through 19877.1 of the Ralph C. 	Dills
Act 	(Dills 	Act).1
I 	indicated to you, 	in my attached letter dated October 5, 	1993,
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 12, 	1993, 	the charge would be dismissed.
1The Dills Act 	is 	found at Government 	Code 	section 3512 	et
seq. 	Article 	5.6 	of 	the 	1992-1995 	Agreement between the 	State
and the 	California State 	Employees Association 	(CSEA) 	for Unit 	4
(Office and Allied) 	states 	in part,
The 	following 	enumerated Government 	Code 	Sections 	and
all existing rules, 	regulations, 	standards, 	practices
and policies 	which 	implement 	the 	enumerated Government
Code 	Sections 	are 	hereby 	incorporated 	into 	this
Contract. 	However, 	if any other provision of 	this
Contract 	alters 	or 	is 	in conflict with any of 	the
Government 	Code 	Sections 	enumerated below, 	the Contract
shall 	be 	controlling 	and 	supersede 	said Government 	Code
Sections 	or parts 	thereof 	and any rule, 	regulation,
standard, 	practice 	or policy 	implementing 	such
provisions". 	The Government 	Code 	Sections 	listed below
are 	cited 	in Section 	3517.6 	of 	the Ralph C. 	Dills Act.

LA-CE-287-S
October 13, 	1993
Page 2
I 	called you on October 12, 	1993 	to determine 	if you were
amending or withdrawing the charge. 	You advised me, 	in part,
that you had not 	seen my October 5, 	1993 	letter, 	but would go to
your post 	office box to see 	if 	it was 	there now. 	I 	agreed to
hold off 	dismissing 	the 	case until 	10:00 	a.m. 	on October 	13,
1993, in 	order 	to 	give you a 	chance 	to 	review my 	letter and 	call
me back.
You called me back later on October 12, 	1993, 	after reviewing my
letter. 	After discussing this matter, 	including my letter, 	you
indicated, 	in part, 	that you were not going to withdraw or amend
the 	charge. 	You understood that 	I would have 	to dismiss 	the
charge. 	Around 10:00 a.m. 	on October 13, 	1993, 	I received a
telefax dated October 12, 	1993 	from you. 	In it, 	you 	indicated,
in part, 	that you never considered this a discrimination or
retaliation case, 	and that if I wanted to dismiss your case, 	I
may do so. 	Therefore, 	I am dismissing the 	charge based on 	the
facts 	and reasons 	contained above and 	in my October 	5, 	1993
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
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).)

LA-CE-287-S
October 13, 	1993
Page 3
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
Marc S. 	Hurwitz
Regional 	Attorney
Attachment
cc: 	Warren Curtis Stracener, 	Esq., 	Department of Personnel
Administration, 	Legal Office, 	Sacramento, 	California

STATE OF CALIFORNIA 	, 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
October 5, 	1993
Karin Y. 	Chen
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-287-S,
Karen Y. 	Chen v. 	State of California, 	Department 	of General
Services
Dear Ms. 	Chen:
In the above-referenced charge 	filed September 22, 	1993,
you allege that 	the State of California, 	Department of General
Services 	(State or DGS) 	violated Article 	5.6 	(Supersession),
subsection a. 	(Government Code Sections), 	6 	(Industrial
Disability Leave), 	19869 	through 19877.1, 	of the Ralph C.
Dills Act 	(Dills 	Act).1 As 	this appears 	to be a
reprisal/discrimination case, 	I am considering this 	case as
1The Dills Act 	is 	found at Government 	Code 	section 	3512 	et
seq. 	Article 	5.6 	of 	the 1992-1995 Agreement between 	the 	State
and the 	California State 	Employees Association 	(CSEA) 	for Unit 	4
(Office and Allied) 	states 	in part,
The 	following 	enumerated Government 	Code 	Sections 	and
all existing rules, 	regulations, 	standards, 	practices
and policies 	which 	implement 	the 	enumerated Government
Code 	Sections 	are hereby 	incorporated 	into 	this
Contract. 	However, 	if any other provision of 	this
Contract 	alters 	or is 	in conflict with any of 	the
Government 	Code 	Sections 	enumerated below, 	the 	Contract
shall 	be 	controlling and 	supersede 	said Government 	Code
Sections 	or parts 	thereof 	and any rule, 	regulation,
standard, 	practice 	or policy 	implementing 	such
provisions. 	The Government 	Code 	Sections 	listed below
are 	cited 	in Section 3517.6 	of 	the Ralph C. 	Dills 	Act.

LA-CE-287-S
October 5, 	1993
Page 2
alleging a violation of Dills Act 	section 3519(a)2 of 	the
California Government 	Code.
My 	investigation and 	the 	charge 	reveal 	the 	following
information. 	You worked 	for the 	Secretary 	of 	State 	for 	less 	than
six months 	in 1986. 	You worked for the Department 	of General
Services, 	Office of 	the State Architects 	from May 1987 	through
May 1991. 	Since 	late May 1991, 	you have worked 	for the 	Colorado
River Board 	of 	California. 	You are 	currently a 	Library Technical
Assistant. 	Your charge alleges as 	follows,
This 	is 	regarding Workers' 	Compensation case
#PAS009969. 	Findings 	and Award was 	issued on April 	22,
1993 by Workers' 	Compensation Appeal 	(sic) 	Board. 	Also
Opinion 	and Order Denying 	Petition 	for 	Reconsideration
was 	issued on July 8, 	1993 by WCAB. 	In the Denying
Petition for Reconsideration letter, 	the board states,
'...He notes 	that his 	comments 	in the opinion 	(sic) 	on
Decision were mere 	dicta and did not 	affect 	the
liability of 	defendant...' 	'...Defendant was not
aggrieved by 	the WCJ's 	comments 	in 	the 	Opinion 	on
Decision, 	in that those comments 	did not 	relate 	to
issues decided in the Findings and Award, 	and, 	in fact,
concerned matters beyond WCAB 	jurisdiction...' 	...DGS
ignored my request, 	Doctors' 	reports and the 	fact a
workers' 	comp. 	case was processing and insisted me
getting NDI pay.... 	Now Ms. 	Steiger use 	(sic) 	this as
an 	excuse not 	(sic) 	processing my Temporary Disability
Benefit. 	I mentioned again and again 	I 	am willing 	to
return NDI money anytime upon request. 	Ms. 	Steiger
still 	insisted WCJ 	should 	listen 	to her and 	she 	still
didn't 	process my case.
A fair 	reading 	of 	the 	charge 	reflects 	that 	you previously
sustained an 	injury and 	filed an 	claim for workers' 	compensation.
On April 22, 	1993, 	Christopher J. 	Lauria, 	Workers' 	Compensation
Judge made 	an award 	in your 	favor against 	the 	State 	of 	California
involving, 	in part, 	your temporary and permanent disability. 	The
2Section 3519(a) 	provides 	that 	it 	shall 	be unlawful 	for 	the
State to:
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.

LA-CE-287-S
October 5, 	1993
Page 3
State 	filed 	a 	Petition 	for Reconsideration 	on May 	17, 	1993. 	In
the July 8, 	1993, 	Workers' 	Compensation Appeals Board 	decision
denying the State's 	Petition for Reconsideration, 	the Board
stated 	in part,
[T]he Workers' 	Compensation judge 	(WCJ) 	found that
applicant 	had 	sustained 	industrial 	injury during 	the
period from May 1987 	through August 	29, 	1990, 	resulting
in temporary disability from August 29, 	1990, 	to
October 31, 199 0, and permanent disability of 17.5%.
On the Opinion on Decision, 	the WCJ also commented
that: 	"If defendant's 	employment benefits 	include a
provision 	that 	applicant 	be paid her 	full 	salary during
periods 	of work injury, 	then applicant 	is 	entitled to
be 	reimbursed 	for the 	full 	amount 	of her lost 	salary."
Defendant 	objects 	to 	this 	sentence and 	to any reference
to sick leave.
In his 	report, 	the WCJ recommends 	that we deny defendant's
petition for reconsideration. 	He notes 	that his
comments 	in 	the Opinion on Decision were mere 	dicta and
did not 	affect 	the 	liability of 	the defendant. 	After a
review of 	the 	record we 	concur. 	Labor Code 	section
5900 	provides 	that 	any person aggrieved directly or
indirectly by any final 	order, 	decision, 	or award made
or 	filed by 	the Appeals 	Board may petition 	the Appeals
Board 	for 	reconsideration 	in 	respect 	to any matters
determined or 	covered by the 	final 	order. 	Defendant
was 	not 	aggrieved by the WCJ's 	comments 	in the Opinion
on Decision, 	in that 	those comments did not 	relate to
issues 	decided in the 	Findings 	and Award and, 	in fact,
concerned matters 	beyond WCAB 	jurisdiction.
Accordingly, 	we will deny defendant's petition for
reconsideration.
By letter dated August 	5, 	1993, 	Susan Steiger wrote to Judge
Lauria and stated, 	in part, 	as follows:
The DGS 	has been, 	and remains unopposed to the WCAB
Findings and Award of April 22, 	1993. 	We, 	however,
remain unable 	to pay Findings of Fact 	(2) 	as written.
This 	is because:
-the 	language directs 	payment 	of 	temporary
disability when 	applicant 	may be 	eligible 	for
Industrial Disability Leave 	(IDL);
-the 	award 	ignores 	applicant's 	receipt 	of
Nonindustrial 	Disability 	Insurance 	benefits
during 	the 	disputed period, 	for which

LA-CE-287-S
October 5, 	1993
Page 4
credit/reimbursement 	is payable 	to EDD,
mandated under 	Government 	Code;
-the 	award 	erroneously discusses 	credit 	for
sick 	leave paid.
At 	this 	time 	we 	request 	that 	an Amended 	Findings 	and Award
be 	issued, 	omitting 	the 	current 	language 	in Findings 	of
Fact 	(2) 	to:
-Applicant 	was 	temporarily 	disabled beginning
August 29, 	1990 	to and including October 31,
1990. 	Rate of disability pay is 	to be
adjusted by the parties. 	Defendant 	is
entitled 	to Nonindustrial 	Disability
Insurance 	(NDI) 	credits previously paid.
Please be 	further advised that, 	due 	to 	the age of 	the
dates ordered payable in Findings of Fact 	(2),
additional 	State 	control 	agencies must 	become 	involved
in 	the payment process 	(State 	Controller and Board of
Control). 	Such involvement 	is State-mandated. 	Please
advise all 	parties 	that 	this may delay payment 	of
Findings of Fact 	(2).
On August 	30, 	1993, 	you filed a formal grievance requesting
that 	the 	State process 	the WCAB Award according 	to 	the Agreement
between 	the State and CSEA. 	You claimed a violation of Article
5.6, 	Government 	Code 	19869 	through 19877.1. 	You allege 	that 	CSEA
did not process your grievance. 	Edmund A. 	Hernandez, 	Labor
Relations 	Representative, 	advised you that you have no right 	to
file any grievance. 	I note 	that by letter dated September 20,
1993 	to Ms. 	Steiger, 	Mr. 	Hernandez requested an opportunity to
discuss 	the matter with her 	in order to resolve 	it 	in a 	timely
manner.
Based on the above 	facts, 	the 	charge 	fails 	to state a prima
facie violation of 	the Dills Act 	for the 	reasons 	that 	follow:
To demonstrate a violation of Dills Act 	section 3519(a), 	you
must 	show that: 	(1) 	you exercised rights under the Dills Act;
(2) 	your employer had knowledge of 	the exercise of 	those rights;
and 	(3) 	your 	employer 	imposed or 	threatened to impose 	reprisals,
discriminated 	or 	threatened 	to 	discriminate, 	or otherwise
interfered with, 	restrained or 	coerced you 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.)

LA-CE-287-S
October 5, 	1993
Page 5
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 Act section 3519(a).
You 	have not 	demonstrated 	that 	you previously engaged 	in any
recent protected/union activity. 	Filing a Workers' 	Compensation
claim is 	not protected activity under the Dills Act. 	I do note
that you 	filed at 	least one Unfair Practice Charge, 	State of
California 	(Secretary of State) 	(1990) 	PERB Decision No. 	812-S.
Next, 	you have not demonstrated the 	required 	"nexus" 	between
any protected activity and 	the adverse action. 	On the 	contrary,
Ms. 	Steiger's 	actions 	appear motivated by a desire 	to 	follow
certain procedures 	and make payment 	under an amended award. 	You
have not demonstrated that 	she has an unlawful motive. 	Thus,
without 	the 	critical 	elements 	of protected activity and nexus,
you 	have 	not 	shown a 	reprisal/discrimination violation under 	the
Dills Act.3
Next, 	Dills Act section 3514.5(b) 	provides,
The board shall 	not 	have authority 	to enforce agreements
between the parties, 	and shall 	not 	issue a 	complaint 	on
any 	charge 	based 	on 	alleged violation 	of 	such an
agreement 	that 	would 	not 	also 	constitute 	an unfair
practice under 	this 	chapter.
3See 	Labor 	Code 	section 	132a where 	discrimination 	for 	filing
a Workers' 	Compensation claim is 	addressed. 	PERB is not 	the
proper 	forum 	for 	such 	a 	discrimination 	claim.

LA-CE-287-S
October 5, 	1993
Page 6
Even 	if 	the 	State violated Article 	5.6 	of 	the agreement 	and
the 	Industrial 	Disability Leave 	laws, 	PERB does not enforce
agreements. 	Therefore, 	as a prima 	facie violation has not been
demonstrated, 	the 	charge 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
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 	respondent4 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 12, 	1993, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney
MSH:wc
4Warren Curtis Stracener, 	Esq., 	Dept, 	of Personnel
Administration, 	Legal Office, 	Sacramento, 	CA.