Bay Area Air Quality Management District (Mauriello) (PERB 1807M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PAUL MAURIELLO,
Charging Party,
v.
BAY AREA AIR QUALITY MANAGEMENT
DISTRICT,
Respondent.
Case No. SF-CE-175-M
PERB Decision No. 	1807-M
J a n u a r y 	1 3 , 	2006
Appearance: Peter Rogosin, Representative, for Paul Mauriello.
Before Whitehead, Shek and Neuwald, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Paul Mauriello (Mauriello) of a Board agent's dismissal (attached) of
his unfair practice charge. 	The charge alleged that the Bay Area Air Quality Management
District (District) violated the Meyers-Milias-Brown Act (MMBA)1 by failing to follow the
grievance procedure outlined in the memorandum of understanding (MOU) between the
District and the Bay Area Air Quality District Employees Association.
The Board has reviewed the entire record, including the original unfair practice charge,
the amended unfair practice charge, the warning and dismissal letters of the Board agent, and
Mauriello's appeal. The Board finds the warning and dismissal letters to be free from
prejudicial error and adopts them as the decision of the Board itself, subject to the discussion
below.
MMBA is codified at Government Code section 3500, et seq.

2
DISCUSSION
On appeal, Mauriello reframes his charge to allege that the District conducted the
Step 1 grievance meeting with him without a representative being present. 	Mauriello also
alleges that the District had never disclosed the purpose of the telephone conversation with his
Supervisor, Yelena Karshtedt (Karshtedt), on January 27, 2004, was for conducting the Step 1
grievance meeting, thus depriving him of his right to representation. Mauriello further alleges
that the District departed from the procedures established in the MOU regarding the District's
obligation to provide a written response to his grievance, time limits for the filing of a Step 2
grievance, and dismissal of his grievance for Untimeliness.
Mauriello alleged in the original charge that he had filed a grievance on January 21,
2004. Filing a grievance is protected activity. The District's knowledge of Mauriello's
grievance was demonstrated by the facts that Karshtedt and Mauriello had a telephone
meeting regarding the grievance on January 27, 2004, and that Human Resources Officer,
Michael Rich, dismissed the grievance as untimely on March 5, 2004. However, there are no
facts to support the allegation that the District interfered with, restrained, or coerced Mauriello
because of the exercise of his protected rights.
In the amended charge, Mauriello alleges that because he filed the January 21, 2004
grievance, the District interfered with his right to representation at the Step 1 informal meeting.
However, the telephone conversation was consistent with the requirements of the informal
Step 1 grievance procedures under the MOU. It was not the District's responsibility to inform
Mauriello of his right to representation. 	Since Mauriello never requested representation during
the telephone conversation with Karshtedt, the District could not have denied Mauriello his
right to be represented. The District therefore did not deny Mauriello the right to have his
representative present at the Step 1 grievance meeting.

3
The right to representation at the informal Step 1 grievance meeting and the right to
submit the grievance to the next higher step are guaranteed by the MOU. The charge and
grievance allege that denial of representation at the Step 1 grievance meeting, and dismissal of
the Step 2 grievance, constituted at least two unilateral changes by the District. If Mauriello is
asserting that the District unilaterally changed the terms and conditions of employment when it
allegedly violated the MOU, he lacks standing to do so. PERB has held that individual
employees do not have standing to allege unilateral change violations (Oxnard School District
(Gorcey and Tripp) (1988) PERB Decision No. 667), nor allege violations of sections which
protect the collective bargaining rights of employee organizations. 	(State of California
(Department of Corrections) (1993) PERB Decision No. 972-S.) Thus, Mauriello does not
have standing to allege a unilateral change of the MOU provisions.
ORDER
The unfair practice charge in Case No. SF-CE-175-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neuwald joined in this Decision.
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'	STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
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San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
January 11,2005
Peter Rogosin, Representative
351 Lovell Avenue
Mill Valley, CA 94941
Re: 	Paul Mauriello v. Bay Area Air Quality Mngmnt Dist
Unfair Practice Charge No. SF-CE-175-M
DISMISSAL LETTER
Dear Mr. Rogosin:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 9, 2004. The charge alleges that the Bay Area Air Quality
Management District violated the Meyers-Milias-Brown Act (MMBA)1 by failing to follow the
grievance procedure outlined in the Memorandum of Understanding between the District and
the Bay Area Air Quality District Employees Association.
I indicated to you in my attached letter dated September 2, 2004, 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. An amended charge was filed on September 20, 2004.
As stated in my September 2 nd letter, the initial charge was deficient in that it lacked facts
demonstrating that the employer dismissed the grievance filed by Mr. Mauriello on January 21,
2004, because of his protected activities, which appeared to be limited to the filing of the
grievance itself.
In the amended charge, you state that Mr. Mauriello, who was on paid administrative leave at
the time, requested the Human Resources Department to facilitate the meeting between himself
and his immediate supervisor, Yelena Karshtedt. This meeting was Step 1 of the grievance
procedure in the MOU. The District "refused to facilitate the meeting and took no action on
the request." You assert that Mr. Mauriello's request was protected activity for which he was
retaliated against. However, you fail to state any facts in support of this assertion.
Rather, you submit various arguments and conclusions which purport to show that the District
and the exclusive representative colluded to deny Mr. Mauriello his rights under the MOU and
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-175-M
January 11, 2005
Page 2
have his grievance dismissed.2 The only fact submitted in support of these arguments is that
the District sent notice of his Skelly hearing to the wrong address, claiming it to be the only
one on file. The exclusive representative informed the District of its error, a new notice with
extended timelines was sent to the correct address, leaving Mr. Mauriello unharmed by the
District's error. This is clearly an insufficient basis for finding a prima facie case of unlawful
conduct.3 For the reasons stated above and in the attached letter, this charge is dismissed.
Right to Appeal
Pursuant to PERB Regulations,4 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. 	(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.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 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 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).)
2 Also	Also included in the amended charge are allegations of misconduct by the exclusive
representative, which are not properly raised in this forum and will therefore not be addressed.
3 It should also be noted that the District has agreed to take to arbitration a second
grievance filed by Mr. Mauriello on February 20, 2004, relating to the same underlying
matter. §§§
4 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-175-M
January 11,2005
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 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 rnail, 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 of
each other party regarding the extension, and shall be accompanied 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.
Sincerely,
ROBERT THOMPSON
General Counsel
By
Jerilyn Gelt
Labor Relations Specialist
Attachment
cc: Michael K. Rich

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax:(510)622-1027
September 2, 2004
Peter Rogosin, Representative
351 Lovell Avenue
Mill Valley, CA 94941
Re: 	Paul Mauriello v. Bay Area Air Quality Management District
Unfair Practice Charge No. SF-CE-175-M
WARNING LETTER
Dear Mr. Rogosin:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 9, 2004. The charge alleges that the Bay Area Air Quality
Management District violated the Meyers-Milias-Brown Act (MMBA)1 by failing to follow the
grievance procedure outlined in the Memorandum of Understanding between the District and
the Bay Area Air Quality District Employees Association.
The charge was filed by Paul Mauriello, who was employed by the District as a webmaster at
all times relevant. On January 21, 2004, Mr. Mauriello initiated a grievance according to step
one of the MOU grievance procedure with his supervisor, Yelena Karshtedt. 	Mr. Mauriello
and Ms. Karshtedt had a telephone meeting regarding the grievance on January 27, 2004. At
no time did Ms. Karshtedt respond to the grievance in writing. MOU.2
On February 23, 2004, Mr. Mauriello filed the grievance with Human Resources Officer
Michael Rich pursuant to step two of the grievance procedure. A meeting to discuss the
grievance was held between Mr. Rich and Mr. Mauriello on March 4, 2004. 	On March 5,
2004, Mr. Rich dismissed the grievance as untimely.3 The charge alleges that the dismissal of
the grievance is "arbitrary and specious," and requests that it be overturned.
The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 Section 4.05 (Procedure) of the MOU states:
Step 1.: The grievant shall discuss the grievance with his or her- -
immediate supervisor and/or section manager who shall meet
with the employee and Association representative(s) and respond
to the grievance within the proper time limits as set forth I
Section 4.03.2 above. The response shall be in writing and set
forth the reason(s) therefore.
3Section 4.03 (Time Limits) of the MOU states, relevant part:

SF-CE-175-M .
August 25, 2004
Page 2
The only violation of MMBA that may be argued here is one of discrimination by the District
against Mr. Mauriello because of his protected activities, i.e., which appears to be limited to
the filing of the grievance.4
To establish a prima facie case of discrimination in violation of Government Code section
3506 and PERB Regulation 32603(a), the charging party must show that: (1) the employee -
exercised rights under MMBA; (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 employee because of the
exercise of those rights. (Campbell Municipal Employees Association v. City of Campbell
(1982) 131 Cal.App.3d 416 (Campbell): San Leandro Police Officers Association v. City of
San Leandro (1976) 55 Cal.App.3d 553.)
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 in protected conduct. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more of
the following nexus factors should be present: (1) the employer's disparate treatment of the
employee (Campbell, supra): (2) the employer's departure from established procedures and
standards when dealing with the employee (Sa	--------------	n Leandro Police Officers Association, supra.)	_,,;
(3) the employer's inconsistent or contradictory justifications for its actions (San Leandro
2. 	At each step District representatives shall have fifteen (15)
working days from the filing of the grievance to meet with the
grievant and Association representative(s) and to respond to the
grievance in writing. In the event that the District fails to respond
to a grievance within specified timelines the grievant has the right
to continue to process the grievance at the next higher step in the
process.
3. 	If a grievance is not resolved to the satisfaction of the grievant
at each step below, the grievant may within fifteen (15) working
days, submit the grievance in writing to the next higher step.
Failure of the grievant to act within the specified time limits,
unless such time limits are extended, shall dismiss and nullify the
grievance.
4 If Charging Party is asserting that the District unilaterally changed terms and
condition of employment when it allegedly violated the MOU, he lacks standing to do so.
PERB has held that individual employees do not have standing to allege unilateral change
violations, (Oxnard School District (Gorcey/Tripp) (1988) PERB Decision No. 667) nor allege
violations of sections which protect the collective bargaining rights of employee
organizations.4 (State of California (Department of Corrections) (1993) PERB Decision No.
972-S.)

SF-CE-175-M
August 25, 2004
Page 3
Police Officers Association, supra.); (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) employer animosity
towards union activists (San Leandro Police Officers Association, supra; Los Angeles County
Employees Association v. County of Los Angeles (1985) 168 CalApp.3d 683.).
This charge alleges no facts which would demonstrate that the District dismissed
Mr. Mauriello's grievance because of his protected activities and, therefore, the charge, as
presently written, does not state a prima facie case. 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 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
September 20,2004,1 shall dismiss your charge. If you have any questions, please call me at
the above telephone number.
Sincerely,
Jerilyn Gelt
Labor Relations Specialist
JAG