State of California (Department of Corrections) (PERB 1559S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JESSE VICKERS,
Charging Party, Case No. SA-CE-1384-S

V. ; PERB Decision No. 1559-S§

STATE OF CALIFORNIA (DEPARTMENT OF November 21, 2003

CORRECTIONS),

Respondent.

Appearance: Jesse Vickers, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Jesse Vickers (Vickers) of a Board agent’s dismissal (attached)
of his unfair practice charge. The charge alleged that the State of California (Department of
Corrections) (State) violated the Ralph C. Dills Act (Dills Act)! by taking State vehicles away
from parole agents in Region III Headquarters assigned to the Immigration and Naturalization
Service (INS) unit in violation of the Memorandum of Understanding (MOU) between the
State and the California Correctional Peace Officers Association (CCPOA); by creating a new
supervision level, “DP”, in the INS unit in violation of the MOU; by reducing the status of INS

~cases in violation of the MOU; and, by local agreement between the Department -of—

Corrections’ Parole and Community Services Division (PCSD) and CCPOA, increasing

workloads for INS unit agents well beyond that allowed by the MOU. In November and

'The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

December 2000, Vickers filed grievances regarding these allegations.2 In July 2002, Vickers
alleged that he unsuccessfully requested information from Jerome Marsh (Marsh), PCSD
Region III about "local agreements." As a job steward, Vickers investigated the issues alleged
above, and as a result filed this charge on December 21, 2002. He alleges that the State's
conduct constituted a violation of Dills Act section 3519(a).
Upon review of the charge, the warning and dismissal letters, and Vickers' appeal, the
Board hereby affirms the Board agent's dismissal consistent with the discussion below.
BACKGROUND
Looking at the dates of the grievances attached to the charge, the Board agent found
that the allegations in the charge occurred beyond the six-months limitations period and
dismissed the charge on that basis. (Dills Act sec. 3514.5(a)(l); Gavilan Joint Community
College District (1996) PERB Decision No. 1177 (Gavilan); Tehachapi Unified School District
(1993) PERB Decision No. 1024; State of California (Department oflnsurance) (1997) PERB
Decision No. 1197-S.) The Board agent also found that the charge did not contain the
specificity required by PERB Regulation 32615(a)(5).3 (See State of California (Department
of Food and Agriculture) (1994) PERB Decision No. 1071-S (Food and Agriculture); United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944 (UTLA); and Charter Oak
Unified School District (1991) PERB Decision No. 873 (Charter Oak).) According to the
2The State's responses to Vickers' grievances were issued no later than the end of
December 2000. CCPOA in writing had refused to proceed with any of these grievances
through the MOU mini-arbitration process. The letters ofrefusal were issued no later than the
end 	February 2001. There is nothing in the file to indicate that since February 2001,
Vickers has appealed the grievances or that the grievances were ultimately submitted to
arbitration.
3PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
2

Board agent, although the charge alleged discrimination, Vickers did not explain how the
State's conduct resulted in such violations. The charge alluded to local agreements between
the State and the Parole Agent Association Chapter but failed to provide copies of these
agreements or the relevant provisions. The charge also did not provide the dates of these local
agreements or implementation of policies, or show how the referenced MOU provisions were
violated by the State's conduct. Finally, the Board agent found that Vickers failed to state a
prima facie case of discrimination under Section 3519(a) of the Dills Act. For example,
Vickers failed to provide information showing that the State's actions were taken as a result of
Vickers' grievances or even that the State's actions were directed at him.
Vickers raises several issues on appeal. He states that he was not allowed sufficient
time to file an amended charge.4 He also alleges that his allegations did not exceed the six-
month limitations period, but rather were continuous violations occurring from April 1, 2000
through July 1, 2002, citing Gavilan. In July 2002, Vickers unsuccessfully requested copies of
the local agreements from PCSD. According to Vickers, that led to the four listed allegations
in his charge. He believes his statements to be clear and concise and that Food and
Agriculture, UTLA and Charter Oak do not apply here.
Vickers further believes that his allegations state a prima facie case for violation of
Dills Act section 3514.5.5 With regard to removal of state vehicles from the INS unit, he says
4The warning letter was served on Vickers by 	on February 24, 2003 a..11d stated that
an amended charge had to be filed by March 3, 2003. Vickers states that he received the
warning letter on February 26, 2003 and had only four days to file an amended charge.
5Section 3514.5 provides, in pertinent part:
The initial determination as to whether the charges of unfair
practices are justified, and, if so, what remedy is necessary to
effectuate the purposes of this chapter, shall be a matter within
the exclusive jurisdiction of the board. Procedures for
investigating, hearing, and deciding these cases shall be devised
3

that the policy was not applied consistently throughout the Department of Corrections.
Otherwise, Vickers simply reiterates the allegations in his charge. Because Vickers claims he
had such a short time to submit an amended charge, he asks the Board to treat his appeal as an
amended charge in order to allege a violation of Dills Act section 3514.5.
DISCUSSION
The Board agrees with the Board agent that the four allegations regarding changed
working conditions were untimely. Dills Act section 3514.5(a)(l) prohibits PERB from
issuing a complaint with respect to "any charge based upon an alleged unfair practice occurring
more than six months prior to the filing of the charge." The limitations period begins to run
once the charging party knows, or should have known, of the conduct underlying the charge.
(Gavilan Joint Community College District (1996) PERB Decision No. 1177.) The charging
party bears the burden of demonstrating that the charge is timely filed. 	(Tehachapi Unified
School District (1993) PERB Decision No. 1024; State of California (Department of
Insurance) (1997) PERB Decision No. 1197-S.) Whatever investigation that Vickers
conducted after his inquiry to Marsh in July 2002, he filed grievances over the same issues in
November and December 2000. The State responded to his grievances no later than the end of
December 2000. CCPOA refused to proceed to mini-arbitration on these grievances no later
and promulgated by the board and shall include all of the
following:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following: 	(1) 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;
(2) issue a complaint against conduct also prohibited by the
provisions of the agreement between the parties until the
grievance machinery of the agreement, if it exists and covers the
matter at issue, has been exhausted, either by settlement or
binding arbitration.
4

than February 2001. A charge would have to have been filed, depending on the issue, by June
2001. Vickers' charge however was filed on December 21, 2002 and so, is untimely. As a
result, the Board dismisses the four allegations in the charge regarding changes in working
conditions and declines to address their merits.
Vickers alleged in his charge and on appeal that he unsuccessfully requested
information in July 2002. That allegation was not addressed in the dismissal. The allegation
might be construed in two ways. First, Vickers might be saying that this unsuccessful request
led to his investigation of the issues leading to the November and December 2000 grievances.
In this circumstance, however, it is clear that he was aware of these issues in November and
December 2000 and cannot argue that they are a continuing violation just because he requested
information about them again in July 2002. A violation is not timely where the State's conduct
during the limitations period relates back to the original offense. (State of California
(Department of Consumer Affairs) (1994) PERB Decision No. 1066-S, warning letter p. 5,
citing El Dorado Union High School District (1984) PERB Decision No. 382.) For a
continuing violation, new conduct independent of the original conduct must occur during the
limitations period. (Id.) In this case, there is no evidence that the nature of the State's conduct
has changed since Vickers filed his grievances in November and December 2000.
Alternatively, the allegation might be construed as claiming, albeit inartfully, that the
State's refusal to provide Vickers with the requested information is the violation, and not
items grieved in November and December of 2000. The State's duty to provide information
arises out of the duty to bargain 	good faith. (Dills Act sec. 3519(c); see also, e.g., Stockton
Unified School District (1980) 	No. 143.) However, that obligation only
extends to the exclusive representative, in this case CCPOA, and not to an individual
5

employee. (Regents
of
the University
of
California (1996) PERB Decision No. 1148-H; State
of
California (Department
of
General Services) (2001) PERB Decision No. 1420-S, warning
letter at p. 2.) Vickers thus lacks the standing to raise this issue.
Finally, Vickers states that he lacked sufficient time to file an amended charge. Under
PERB Regulation 32132, Vickers could have requested an extension
of
time from the Board
agent to file an amended charge. He did not do so. Instead he asks that the appeal comprise
his amended charge. Vickers has not provided good cause to file a late amended charge and
therefore the Board denies this request. (PERB Reg. 32136; Los Angeles Unified School
District (2003) PERB Order No. Ad-318.)
ORDER
The unfair practice charge in Case No. SA-CE-1384-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Neima joined in this Decision.
6

ST
ATE OF CALIFORNIA	
GRAY
DA
VIS, Governor	
rPUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
031
18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-7242
Fax: (916) 327-6377
March 6, 2003
Jesse Vickers
PO
Box 7506
La
Verne,
CA
91750
Re: 	Jesse Vickers v. State
of
California (Department
of
Corrections)
Unfair Practice Charge No. SA-CE-1384-S
DISMISSAL LETTER
Dear Mr. Vickers:
The above referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB
or
Board) on December 21, 2002. Jesse Vickers alleges that the State
of
California (Department
of
Corrections) violated the Ralph C. Dills Act section 3519(a).
I indicated to you in
my
attached letter dated February 24,2003, 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 March 3, 2003, the. charge would
bedismissed.
I have not received either an amended charge or a request for withdrawal but received yourmessage indicating you were waiting for me to issue the Dismissal Letter. Therefore, I amdismissing the charge based on the facts and reasons contained in my February 24, 2003 letter.
Right to Appeal
Pursuant to PERB Regulations, 	you may obtain a review
of
this dismissal
of
the charge byfiling an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain
the
case
name and number, and the original and five (5) copies
of
all documents must be provided to
··the Board;
1
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.
(Regulations 32135(a) and 32130.)
1 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-1384-S
March 6, 2003
Page 2
( 	(
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
Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 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. (Regulation 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 eacμ copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 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. (Regulation 32135(c).)
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
ofeach other_party regardingJhe extension_,and shall heaccompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.

SA-CE-1384-S
March 6, 2003
Page 3
Sincerely,
ROBERT THOMPSON
General Counsel
(
By~~~-
Heather McLaughlin
Board Agent
Attachment
cc: Crystal L. Mitchell, Legal Counsel
Department
of
Personnel Administration

STATE OF CALIFORNIA 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-7242
Fax: (916) 327-6377
February 24, 2003
Jesse Vickers
PO Box 7506
La Verne, CA 91750
Re: 	Jesse Vickers
v.
State
of
California (Department
of
Corrections)
Unfair Practice Charge No. SA-CE-1384-S
WARNING LETTER
Dear Mr. Vickers:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 21, 2002. Jesse Vickers alleges that the State
of
California (Department
of
Corrections) violated the Ralph
C.
Dills Act section 3519(a).
The charge details several actions taken by the State in alleged violation
of
the Dills Act, the
Memorandum
of
Understanding between the State and Bargaining Unit 6, and the
Department's Operational Manual. However, as presently stated, the facts alleged in the
charge fall outside PERB 's six month statute oflimitations and fail to state a violation
of
the
Dills Act.·
Facts:
1.
Removal
of
Vehicles: 	The charge alleges that the Department
of
Corrections Parole and
Community Services Division (P&SCD) and the Parole Agent Association Chapter
(Association) entered into an agreement to remove vehicles from agents working in the
Immigration and Naturalization Services (INS) Unit. It is further alleged that this agreement
was in violation
of
the Department's Operational Manual (DOM) and the Memorandum
of
Understanding (MOU).
MOU Section 19.07 states in its entirety:
Assigned state vehicles for home storage for all CDC P As I, II,
and Parole Service Associates (PSA) assigned to private and
public community correctional facilities; institution-based
revocation unites, gang coordinators, jail liaison duties,
INS/Deport Units, non-case carrying re-entry duties, Interstate
Unit, Regional/Parole Headquarters, administrative or special

SA-CE-1384-S
February 24, 2003
Page 2
(
assignments shall be subject to local agreements in each parole
region and the Community Correctional Facilities Program.
A. 	State vehicles may be made available for those parole
staff
at
their work locations for use during the scheduled work day. A
parole staff person, with prior supervisory approval, may be
permitted temporary overnight home storage
of
a state vehicle
based on workload or operational needs.
B. PAs, with prior supervisory approval, may be authorized to
use their private vehicle and be reimbursed for mileage.
C. Specially funded programs which provide state vehicles for
P As I and II are excluded from this provision.
2. Supervision Level
of
"DP": The charge alleges that the P&CSD implemented the
supervision level
of
"DP", for cases where the parolee has been deported and the case is no
longer active, in the INS Unit in violation
of
the DOM and MOU.
3. Case Reviews: The charge alleges that cases are being reduced to the
"MS"
standard
without reviews, in violation
of
the DOM, MOU, and the Penal Code.
4. Increase in Workload: The charge alleges that the P&CSD entered into a local agreement to
increase the workload
of
agents in the INS Unit, in violation
of
the DOM and MOU.
Statute
of
Limitations:
Dills Act section 3514.S(a)(l) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to
the
filing
of
the charge." The limitations period begins to run once the charging party knows,
or
should
have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The charging party bears the burden
of
demonstrating that
the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No.
1024; State
of
California (Department oflnsurance) (1997) PERB Decision No. 1197-S.)
With respect to the first allegation concerning the termination
of
the use
of
State vehicles for
agents in theUSINS unit,attached to thecharge is evidence that the Charging Party filed a
grievance on the matter in November 2000. The state denied the grievance also in November
2000. The Charging Party had until May 2001 to file an unfair practice charge with PERB.
The present charge was filed on December 21, 2002, therefore is untimely with respect to this
allegation.
The second allegation in the charge concerns the use of the supervisory level of "DP"
oncertain cases. The Charging Party filed a grievance in December 2000. The grievance was
denied in January 2001, and mini-arbitration on the grievance was denied in February 2001.
The Charging Party had until August 2001 to file an unfair practice charge with PERB on this

SA-CE-1384-S
February 24, 2003
Page 3
( 	(
matter. The present charge was filed on December 21, 2002 and is therefore untimely
with
respect to this allegation.
The third allegation in the charge concerns the reduction
of
cases without reviews. Again the
Charging Party filed a grievance in December 2000 which was denied in January 2001 as well
as mini-arbitration in February 2001. Charging Party failed to file a charge
by
August
of
2001
and therefore the present charge is untimely with respect to this allegation.
The last allegation in the charge concerns an increase in workload for UNINS agents.
	The
charge indicates that a grievance was filed by the Charging Party in November 2000.
	The
State denied the grievance in December 2000 and further denied mini-arbitration in January
2001. Charging Party had until July 2001 to file an unfair practice charge with PERB.
	The
present charge was filed on December 21, 2002, and is therefore untimely with respect to this
allegation.
Failure to Carry Burden of Specificity:
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."
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.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
The charge, as presently written, does not provide the required specificity for an unfair practice
charge. The Charging Party alleges violations
of
the Dills Act section 3 519( a) for
discrimination, yet fails to detail how the State's actions constitute such violations.
	The
charge
makes vague statements alleging agreements between the State and the Parole Agent
Association Chapter as well as local agreements, but does not provide these agreements. 	In
addition, it is unclear from the charge how referenced portions
of
the MOU are violated by
these alleged agreements. Furthermore the charge fails to give the dates
of
the alleged
agreements or implementation
of
policies, making it impossible to determine whether there is a
violation
of
the Dills Act.
Failure to State a Prima Facie Case:
It appears from the information in the charge that the Charging Party is alleging the State
discriminated against the Charging Party because
of
union activity. For the following reasons,
the charge fails to state a prima facie case
of
Discrimination.
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

SA-CE-1384-S
February 24, 2003
Page 4
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.)
Evidence
of
adverse action is also required to support a claim
of
discrimination or reprisal
under the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, the Board uses an objective test
and will not rely upon the subjective reactions
of
the employee. (Ibid.) In a later decision, 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
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. [Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
While the charge details several actions
by
the State which may have had an adverse effect on
the Charging Party, it fails to establish the elements
of
a Discrimination violation. TheCharging Party engaged in the protected activity
of
filing grievances. And the State
knew
of
this protected activity as evidenced by its participation in the grievance process. However, the
charge neglects to put forth any information supporting that allegations that the actions taken
by the State were in response to the Charging Party's actions, or that the State's conduct was
directed at the Charging Party at all. As presently written, the charge fails to establish
any
of
the elements
of
a prima facie case for Discrimination under the Dills Act.
For these reasons the charge, as presently written, does not state a prima facie case and the
facts supporting the charge fall outside the six month statute
of
limitations.
	If
there are any
factual inaccuracies in this letter or additional facts that 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 thecharging party. 	The amended charge must have the case number written on the top right hand
comer
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 chargs::orwithdrawal from you before March 3, 2003, I shall dismiss your charge.
	Ifyou have any questions, please call me at the above telephone number.
Sincerely,
Heather McLaughlin
Board Agent