State of California (State Teachers Retirement System (Ramirez and Roberts) (PERB 1202S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LYDIA RAMIREZ AND LINDA ROBERTS,
Charging Parties,
v.
STATE 	OF 	CALIFORNIA 	(STATE
TEACHERS 	RETIREMENT SYSTEM),
Respondent.
)
)
) 	Case No. 	SA-CE-890-S
PERB Decision No. 	1202-S
June 	4, 	1997
)
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)
Appearance: 	Lydia Ramirez, 	on her own behalf.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on appeal by Lydia
Ramirez 	(Ramirez) 	and Linda Roberts 	(Roberts) 	of a Board agent's
partial 	dismissal 	(attached) 	of 	their unfair practice 	charge.
In the charge, 	Ramirez and Roberts 	alleged that 	the State of
California 	(State 	Teachers 	Retirement 	System) 	engaged 	in various
acts 	of 	reprisal 	and 	interference 	in violation of 	section 3519(a)
and 	(d) 	of 	the Ralph C. 	Dills Act 	(Dills 	Act).1 The Board has
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	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
guaranteed by this 	chapter. 	For purposes 	of

this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(d) 	Dominate or interfere with the
formation 	or administration 	of 	any 	employee
organization, 	or contribute 	financial 	or
other support 	to 	it, 	or in any way encourage
employees 	to join any organization in
preference 	to another.
reviewed the 	entire 	record in this 	case, 	including the 	original
and amended unfair practice 	charge, 	the Board agent's 	partial
warning and partial 	dismissal 	letters, 	and the appeal 	thereto
filed by Ramirez 	and Roberts. 	The Board 	finds 	the partial
warning and partial 	dismissal 	letters 	to be 	free 	of prejudicial
error and hereby adopts 	them as 	the 	decision of 	the 	Board 	itself.
DISCUSSION
PERB Regulation 32635(b) 	states:
Unless good cause 	is 	shown, 	a charging party
may not 	present 	on appeal 	new charge
allegations 	or new supporting 	evidence.
In their appeal, 	Ramirez and Roberts 	offer new supporting
evidence and make new allegations. 	However, 	they offer no
explanation 	or 	showing 	of 	good 	cause 	for 	submitting 	this
information for the first 	time on appeal. 	Therefore, 	it may
not 	be presented 	for 	the 	first 	time 	on appeal 	and has 	not 	been
considered by 	the 	Board.2
20n January 30, 	1997, 	the Board agent 	issued a complaint
concerning those 	allegations 	by Ramirez 	and Roberts 	not
referenced in the partial 	dismissal 	letter. 	In their appeal,
Ramirez 	and Roberts 	assert 	that 	one 	of 	the allegations 	not
dismissed was 	not 	included in the 	complaint. 	The allegation
involves 	an allegedly harassing memorandum 	to 	Ramirez 	from her
supervisor, 	dated December 12, 	1996. 	The unfair practice charge
originally 	identified the 	date 	of 	the memorandum as 	November 	12,
1996, 	an error which Ramirez 	and Roberts 	corrected 	in their 	fifth
22

amended 	charge. 	The 	allegation 	concerning 	the memorandum 	is
included in the January 30, 	1997, 	complaint as paragraph 4(j).
ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	SA-CE-890-S 	is hereby AFFIRMED.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
33

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
January 30, 	1997
Linda Roberts
Re: 	NOTICE OF PARTIAL DISMISSAL
Lydia Ramirez and Linda Roberts v. 	State of California
(State Teachers Retirement 	System)
Unfair Practice Charge No. 	SA-CE-890-S
Dear Ms. Roberts:
I indicated to you, 	in my attached letter dated January 23, 	1997,
that 	certain allegations 	contained in 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 these allegations to state a prima facie case or
withdrew them prior to January 30, 	1997, 	the allegations would be
dismissed.
Your Fifth Amended Charge was received on January 29, 	1997, 	with
a notation that 	it was being filed 	"in response to partial
warning letter." 	The newly amended charge 	includes brief
statements of 	fact 	and/or argument 	intended to perfect 	the charge
allegations 	(numbered 17 through 23) 	addressed by my earlier
warning letter. 	The amended charge also clarifies 	that Linda
Roberts is a charging party in this case. 	Finally, 	the amended
charge adds five new allegations 	(referenced as 24 through 28).
Discussion
Both the new and carry-over allegations 	shall be addressed in
turn, 	and referenced following the numbering system adopted in my
January 23, 	1997 	letter and followed in the Fifth Amended Charge.
17. 	The amended charge states:
8-30-96 	letter was dated this date but not
given to Ms. 	Ramirez until 10-2-96. 	Back
dating of memo was an attempt to reprise
against Ms. Ramirez.
The charge as amended still 	fails to identify the content of the
memo sufficient 	to support a finding that 	its issuance
constitutes a reprisal under the 	standard discussed in my January
23, 1997 letter.
I
•
~~~-----

Dismissal Letter
SA-CE-890-S
January 30, 	1997
Page 2
19. 	The original allegation was that management had encouraged
"reprisal behavior" 	by Ramirez's co-workers. 	The amended charge
alleges that a luncheon was held at Mountain Mike's 	Pizza and the
"union is under the 	impression that management paid for
everyone's lunch." 	This allegation still 	fails to establish what
"reprisals" 	Ramirez's co-workers engaged in that would violate
her rights under the Ralph C. 	Dills Act 	(Dills Act).
21. 	The amended charge contains information concerning past
activities of Steve Fagundes which the union is concerned about,
and a statement 	that he is not 	in the chain of command over
Ramirez. 	This allegation still 	fails to posit a plausible theory
for why management's decision to include 	certain personnel 	in a
meeting constitutes 	an 	"adverse action" 	or discrimination under
the relevant legal tests.
22 	and 23. 	The amended charge reiterates 	that State 	Personnel
Board 	(SPB) 	rules ban discourteous treatment of employees. 	PERB,
however, 	lacks authority to enforce rules of the SPB and this
allegation does not 	state a prima facie violation of 	the Dills
Act.
24. 	This new allegation contends that Respondent violated
contractual 	and SPB 	confidentiality rules when a memo discussing
disciplinary action against Ramirez was 	left 	"by management"
sometime in January 1997 	for several hours on a printer used by
other employees. 	Under the Novato and Palo Verde test discussed
in my January 23, 	1997 letter, 	this allegation fails to state a
prima 	facie discrimination violation because it does not 	identify
how the action was 	"adverse" 	under an objective standard. 	This
allegation also does not meet the "who, 	what, 	when, 	where and
how" 	burden required for an unfair practice. 	(State of
California 	(Department of Food and Agriculture) 	(1994) 	PERB
Decision No. 	1071-S.)
25. 	This new allegation contends that the decision to send
Ramirez's 	supervisor to a course on 	"How to Legally Fire
Employees" proves Respondent's 	intent to take reprisals against
Ramirez. 	I am unaware of any case holding that management's
decision to provide training to supervisors on personnel matters
is itself an unfair practice. 	This allegation also fails the
applicable legal 	test 	and must be dismissed.
(
I

Dismissal 	Letter
SA-CE-890-S
January 30, 	1997
Page 3
Conclusion
I am dismissing those 	allegations 	identified as numbered
allegations 	17, 	19, 	21, 22, 23, 	24 and 251 based on the facts
and reasons set 	forth above and those contained in my January 23,
1997 letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of certain allegations
contained in 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).)
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.
1Two allegations addressed by my January 23, 	1997 	--
numbered allegations 	18 and 20 	-- 	are not dismissed by this
letter.
f

Dismissal 	Letter
SA-CE-890-S
January 30, 	1997
Page 4
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
By Les Chisholm
Regional Director
Attachment
cc: 	Robert Allen

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
January 24, 	1997
Linda Roberts
Re: 	PARTIAL WARNING LETTER
Lydia Ramirez v. 	State of California 	(State Teachers
Retirement 	System)
Unfair Practice Charge No. 	SA-CE-890-S
Dear Ms. Roberts:
The above-referenced charge was 	filed with the 	Public Employment
Relations Board 	(PERB or Board) 	on October 4, 	1996, 	and
subsequently amended on October 9 and 29, 	1996, 	December 18, 	1996
and January 17, 	1997. 	The charge concerns various alleged acts
of 	reprisal 	and interference by the State Teachers Retirement
System 	(STRS or State) 	against Lydia Ramirez and Linda Roberts 	in
violation of the Ralph C. 	Dills Act 	(Dills Act)1 at section
3519 (a) and (d).2
Background
Lydia Ramirez and Linda Roberts are employed by STRS, 	and are
included in bargaining units 	represented by the California State
Employees Association 	(CSEA). 	Both Ramirez and Roberts serve as
CSEA stewards. 	Ramirez has served as a steward for several
years, 	has held CSEA chapter offices and has participated in
grievances, 	lawsuits and demonstrations concerning employee
rights at STRS.
In August 1996, 	Ramirez began work under a new supervisor, 	Diane
Alvord. 	On or about August 24, 	1996, 	Alvord assigned duties to
Ramirez which Ramirez believes are below the classification level
she holds. 	Ramirez protested the change in assignment, 	and was
represented in this action by Roberts.
1The Dills Act 	is codified at Government Code 	section 3512
et seq.
2As originally filed, 	the charge also alleged violations of
Government Code 	section 3519(c) 	which individual employees lack
standing to file. 	The charge as 	subsequently amended dropped
reference to these violations, 	and the allegations were re-filed
by the California State Employees Association in Unfair Practice
Charge No. SA-CE-920-S.
•

Warning 	Letter
SA-CE-890-S
January 24, 	1997
Page 	2
The 	Charge 	Allegations
The 	following 	summarizes 	my understanding of 	the 	allegations
contained 	in 	the 	charge 	as 	amended. 	These 	allegations 	have 	been
numbered herein 	to 	facilitate 	later 	reference 	to 	them.
1. 	August 27, 	1996: 	Ramirez 	received a corrective memo 	from
Alvord which 	imposed 	a 	requirement 	that 	she 	submit 	daily 	status
reports 	not 	required of 	other 	employees.
2. 	September 16, 	1996: 	Ramirez was denied sick leave by Alvord.
3. 	September 23, 	1996: 	Alvord changed Ramirez's time 	sheet 	to
delete 	one-half 	hour of 	time 	which she 	had worked 	to make 	up 	for
a 	long 	lunch.
4. 	September 25, 	1996: 	Ramirez 	received a 	"Letter of
Instruction" 	concerning her 	inability 	to 	follow 	instructions,
lack 	of proficiency 	in completing assignments 	and AWOL problems.
5. 	September 26, 	1996: 	Ramirez 	received a memo returning her
unapproved time 	sheet 	to 	her, 	which again 	stated Alvord's
concerns 	about 	Ramirez's 	ability to 	follow instructions.
6. 	October 2, 	1996: 	Management 	cancelled meeting with Ramirez
and Roberts, 	and then 	re-scheduled meeting with Ramirez 	and
another 	steward.
7. 	October 4, 	1996: 	Roberts 	received memo 	from Norma Applegate,
STRS Labor Relations Officer, 	regarding her use of 	OFFICEVISION
(E-mail) 	and 	threatening adverse 	action 	if 	she 	continued 	to use
it 	for communications 	regarding grievances.
8. 	On or about October 20, 	1996, 	STRS management moved Ramirez's
work 	station 	"to 	a 	non-ergonomic 	configuration 	in 	order 	to 	get
into the 	locked portion of her desk," 	and on October 20, 	1996,
management 	got 	into 	the 	locked portion of 	the 	desk where 	she
keeps 	files 	relating 	to 	her 	steward 	activity.
9. 	October 24, 	1996: 	"Letter of Performance" 	received from
Alvord 	which 	threatened 	further 	corrective 	or 	adverse 	action.
10. 	November 13, 	1996: 	Alvord issued memo to Ramirez 	concerning
"Cash Batch 	Process" 	and 	stating 	that 	Ramirez 	had performed her
duties 	in an 	"unacceptable" 	manner.
11. 	December 17, 	1996: 	Ramirez was served with notice of
adverse action 	(reduction in pay).

Warning Letter
SA-CE-890-S
January 24, 	1997
Page 3
12. 	December 18, 	1996: 	Alvord accused Ramirez verbally of being
on break and not working any time 	she 	is not at her work station.
13. 	December 23, 	1996: 	Alvord sent Ramirez an E-mail
"cautioning" 	her about her failure 	to turn in timely and complete
status reports.
14. 	December 26, 	1996: 	Ramirez received a memo from STRS
Manager Mercedes 	Ray informing her 	she was 	being charged with 4.5
hours of AWOL for December 17.
15. 	December 30, 	1996: 	Ramirez received a memo from Alvord
informing her she would be placed on AWOL for any time away from
her work station without Alvord's approval.
16. 	January 15, 	1997: Alvord refused, 	because she "did not have
time," 	to allow a representative for Ramirez 	in a meeting which
included questions 	relating to prior adverse actions 	and threats
of 	future adverse action.
The charge also includes the following allegations:
17. 	A "harassing" memo was written on August 30, 	1996 	(author
unknown) 	and received by Ramirez on October 2, 	1996.
18. 	On October 2, 	1996, 	Alvord told Ramirez to stop making
copies and 	"get back to work," 	and 	"discouraged" 	Ramirez 	from
contacting her 	steward.
19. 	In October 1996, 	Alvord took co-workers of Ramirez to lunch
and 	"encouraged reprisal behavior."
20. 	November 12, 	1996: 	"Harassing memo received."
21. 	On November 18, 	1996, 	Alvord, 	Ray and Steve Fagundes met and
discussed this unfair practice 	charge 	"in violation of 	the
rules."
22. 	On November 21, 	1996, 	Ray allowed a co-worker to call
Ramirez a "bitch."
23. 	On various occasions, 	Alvord was 	"rude" to Ramirez 	"in
violation of SPB rules."
Discussion
PERB Regulation 32615(a)(5) 	requires, 	inter alia, 	that an unfair
practice charge 	include a 	"clear and concise 	statement of 	the
facts and conduct 	alleged to constitute an unfair practice."

Warning Letter
SA-CE-890-S
January 24, 	1997
Page 4
Thus, 	the charging party's burden includes alleging the 	"who,
what, 	when, 	where and how" of an unfair practice. 	(State of
California 	(Department of Food and Agriculture) 	(1994) 	PERB
Decision No. 	1071-S, 	citing United Teachers-Los Angeles
(Ragsdale) 	(1992) 	PERB Decision No. 	944.) 	Legal conclusions are
not 	sufficient to state a prima facie case. 	(Id.; 	Charter Oak
Unified School District 	(1991) 	PERB Decision No. 	873.)
The allegations 	identified above as numbered paragraphs 	17
through 23 	fail 	to state a prima facie violation of the Dills
Act. 	Numbered paragraphs 	17 and 20 	fail to identify who wrote
the memos, 	what 	the memos said or how the memo content would
violate any protected right of Ramirez.
Numbered paragraph 18 	fails 	to establish how Ramirez was
"discouraged" 	from contacting a steward. 	Numbered paragraph 19
fails to explain how Ray 	"encouraged reprisal behavior" 	by
Ramirez's co-workers, 	who the co-workers were or what 	"reprisal
behavior" 	they might be able to engage in which would violate the
Dills Act.
Numbered paragraphs 21, 	22 and 23 	fail to state a prima facie
discrimination violation. 	To demonstrate a violation of
Government Code 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 	(Novato); 	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.)
Prima 	facie evidence of 	some adverse action is 	required to
support 	a claim of discrimination or reprisal under the Novato
standard. 	(Palo Verde Unified School District 	(1988) 	PERB
Decision No. 	688; 	Newark Unified School District 	(1991) 	PERB
Decision No. 	864 	(Newark); 	State of California 	(Department of
Parks and Recreation) 	(1994) 	PERB Decision No. 	1031-S.) 	In
determining whether prima 	facie evidence of an adverse action is
established, 	the Board uses an objective test and will not 	rely
upon the subjective reactions of the employee. 	(Id.) 	In Newark.
the Board 	further explained that
The test which must be satisfied is not
whether the 	employee 	found the employer's
action to be adverse, 	but whether a

Warning Letter
SA-CE-890-S
January 24, 	1997
Page 5
reasonable person under the 	same
circumstances would consider the 	action to
have an adverse 	impact on the employee's
employment. 	(Emphasis added; 	footnote
omitted.)
The allegations identified above as numbered paragraphs 21, 	22
and 23 	do not allege 	facts 	to establish that 	the complained-of
conduct had "adverse impact" on Ms. 	Ramirez's employment, 	and
therefore do not 	state a prima 	facie violation of Government 	Code
section 3519(a).
Conclusion
For these 	reasons the allegations 	identified herein as numbered
paragraphs 17 through 23, 	as presently written, 	do 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 Fifth 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 January 31. 	1997. 	I shall dismiss the above-
described allegations from your charge. 	If you have any
questions, please call me at 	(916) 	322-3198, ext. 359.
Sincerely,
Les Chisholm
Regional 	Director