State of California (Department of Corrections and Rehabilitation) (PERB 1923S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

WILLIAM F. HORSPOOL,

Charging Party, Case No. LA-CE-634-S
Vv. PERB Decision No. 1923-S
STATE OF CALIFORNIA (DEPARTMENT OF September 27, 2007

CORRECTIONS & REHABILITATION),

Respondent.

Appearances: William F. Horspool, on his own behalf; State of California (Department of
Personnel Administration) by Lori A. Green, Legal Counsel, for State of California
(Department of Corrections & Rehabilitation).
Before Neuwald, Chair; Shek and McKeag, Members.

DECISION

NEUWALD, Chair: This case is before the Public Employment Relations Board

(PERB or Board) on appeal by William F. Horspool (Horspool) of a Board agent’s dismissal
(attached) of an unfair practice charge. The charge alleged that the State of California
(Department of Corrections & Rehabilitation) (State) violated the Ralph C. Dills Act (Dills
Act)! by retaliating against Horspool for his protected activities, interfering with his right to
engage in protected activities and by engaging in bad faith and surface bargaining. Horspool
alleged that this conduct constituted a violation of Dills Act sections 3517.61 and 3519.

The Board has reviewed the unfair practice charge, the amended unfair practice charge

and attached documents, the warning and dismissal letters, Horspool’s appeal of the dismissal,

The Dills Act is codified at Government Code section 3512, et seq.

and the State's opposition to the appeal. The Board finds the Board agent's dismissal to be
free of prejudicial error and adopts it as a decision of the Board itself.
On appeal, Horspool presents new charge allegations and new supporting evidence that
were not previously presented and that were known to Horspool when he filed his unfair
practice charge and amended unfair practice charge. PERB Regulation 32635(6)2 precludes a
charging party from raising new allegations or new supporting evidence on appeal without
good cause. 	Horspool has failed to demonstrate good cause for the presentation of new
allegations and/or supporting evidence on appeal, and nothing in the documents filed related to
the appeal indicates good cause.
ORDER
The unfair practice charge in Case No. LA-CE-634-S is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Shek and McKeag joined in this Decision.
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2

ST ATE
OF
CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
f
"
PUBLIC EMPLOYME~ 	RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-3008
Fax: (213) 736-4901
May 17, 2006
William F. Horspool
Re: 	William F. Horspool
v.
State
of
California (Department
of
Corrections &
Rehabilitation)
Unfair Practice Charge No. LA-CE-634-S
DISMISSAL LETTER
Dear Mr. Horspool:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 11, 2005. 	You allege that the State
of
California
(Department
of
Corrections & Rehabilitation) (CRC) violated the Ralph C. Dills Act (Dills
Act)1
by retaliating against you for your protected activities, interfering with your right to
engage in protected activities and by engaging in bad faith and surface bargaining.
I indicated to you in
my
attached letter dated April 17, 2006, 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
shouldamend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to April 27, 2006, the charge would be dismissed.
Youcontacted me on or about April 27, 2006 and I granted you an extension to May 10, 2006, to
file an amended charge. You contacted me again on or about May 10, 2006 and I told you I
would accept your amended charge after May 10, 2006 if you placed it in the mail on
May
10,
2006. I received your amended charge on May 12, 2006.
In your amended charge you provided the following information:
On September 24, 2001, you originally filed unfair practice charge LA-CE-570-S wherein you
discussed the same incidents and charges you discuss in this charge, that is, five grievances
you filed against the CRC b~tween December 21, 2000 and May 1, 2001: 1) miscalculation of
Industrial Disability Leave (IDL) benefits; 2) denied request for reclassification; 3) Letter
of
Instruction (LOI); 4) denial
of
paid status after medical clearance; and 5) LOIs you filed
onbehalf of Officer Buchanan. 	In LA-CE-570-S, you alleged that the CRC's actions that formed
the basis of your five grievances were also violations of the Dills Act in that the CRC failed to
bargain in good faith, made unilateral changes and retaliated against you.
1 The Dills Act is codified at Government Code section 3512 et seq. The text
of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-634-S
May
17,
2006
Page 2
(
On July 26, 2002, CRC sent PERB a letter waiving all contract based procedural defenses and
agreed to resolve LA-CE-570-S through contractual arbitration.
On October 31, 2002, the Board Agent in LA-CE-570-S dismissed your charge. The Board
Agent explained that you lacked standing
to
raise charges of bad faith bargaining and unilateral
change. The Board Agent also explained that in so far
as
your charge alleged the CRC
retaliated against you by miscalculating IDL benefits and denying paid status following
medical clearance, the allegations involved interpretation of the MOU and would be dismissed
and deferred to arbitration. The Board Agent issued a complaint regarding your allegation that
the CRC retaliated against you by denying your request for reclassification to full time
employment.2
On April 12, 2005, the California Correctional Peace Officers Association (Association)
refused to proceed to arbitration on your IDL grievance because MOU article 13.06(G) bars
arbitration of disputes relating to an employee's denial of benefits. Also on April 12, 2005, the
Association refused to proceed to arbitration on your grievance regarding the denial
of
paid
status following medical clearance grievance because CRC was allowed, under the MOU, to
inquire and request clarification of the medical clearance, which is what CRC did.
On May 4, 2005, you sent a letter to the Department of Personnel Administration (DP A) to
appeal the decision to refuse to proceed to arbitration over the denial
of
paid status following
medical clearance.
On May 12, 2005, you sent a letter to the DPA to appeal the decision to refuse to proceed to
arbitration over the IDL benefit dispute.
On August 23, 2005, Linda A. Mayhew, Administrative Law Judge at the DPA Statutory
Appeals Unit, wrote to inform you DPA had no jurisdiction over issues subject to resolution
through arbitration provided in the collective bargaining agreement. 	She also stated she was
forwarding your correspondence to Ed Takach, the Labor Relations Officer for Bargaining
Unit 6. She also stated she was forwarding your appeal of the IDL benefit calculation to Keith
Mentzer, Manager, DPA Benefits Division, for review under DPA Rule 599.768,
if
applicable.
On October 11, 2005, you filed this unfair practice charge and you claim the arbitration
proceedings are futile and you seek PERB's help in resolving your disputes with CRC.
Futility
In State of California (Department of Personnel Administration) (1986) PERB Decision
No. 600-S, the Board concluded that a lengthy grievance and arbitration machinery, in this
case estimated at 4 to 14 months, does not demonstrate futility. 	However, PERB has found
that deferral would be futile when the integrity of the arbitration process itself is at issue
2 This culminated in State of California (Department of Corrections) (2006) PERB
Decision No. 1806-S.

LA-CE-634-S
May 17, 2006
Page 3
(California State University (1984) PERB Decision No. 392 -H) and when a union
is
unwilling
to take an individual grievant's dispute to arbitration (State of California (Department
of
Parks
and Recreation) (1995) PERB Decision No. 1125-S).
Here, on July 22, 2002, CRC agreed to arbitrate LA-CE-570-S but on April 12, 2005, the
Association refused to take the grievances regarding IDL benefits and denied paid status after
medical clearance
to
arbitration. Therefore, you have demonstrated continued attempts to use
the arbitration process for these two allegations
is
futile.
You alleged in your IDL grievance that the CRC failed to pay IDL benefits in July and August,
1999 and failed
to
make calculations that reflected the full net pay or gross pay concerning
your February 11, 1997 and March 22, 1997 injuries. 	You filed your grievance on December
21, 2000. You alleged in your grievance over the denial of paid status following medical
clearance that the CRC improperly refused
to
place you on paid status on January 5, 2001.
You filed your grievance on March 16, 2001. On April 12, 2005, the Association refused to
proceed to arbitration on both grievances. You filed this unfair practice charge on October 11,
2005.
As stated in my April 17, 2006, letter, PERB
is
prohibited 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." Government Code section 3514.5(a) provides: " ... The
board
shall, in determining whether the charge was timely filed, consider the six-month limitation set
forth in this subdivision to have been tolled during the time it took the charging party to
exhaust the grievance machinery."
IDL grievance
You knew or should have known about the conduct underlying the IDL grievance by August
30, 1999 since part of that grievance alleges you were not paid IDL benefits for July and
August, 1999. You filed this unfair practice charge 6 years, 1 month and
11
days later
onOctober 11, 2005. · The statute of limitations is tolled while the grievance is pursued so the
period from December 21, 2000, until April 12, 2005, 4 years, 3 months and 22 days, is
subtracted from the 6 years, 1 month and
11
days. Therefore, considering section 3514.S(a)
tolling, approximately 1 year, 9 months and 20 days have elapsed since the date you knew or
should have known about the conduct underlying your IDL grievance. Since this
is
more than
six months, the allegation is time barred.
Grievance over denied paid status after medical clearance
You knew about the conduct underlying the denial of paid status grievance on January 5, 2001,
when Ms. Mallory, CRC Return to Work Coordinator, refused to return you to work. You
filed this unfair practice charge 4 years, 9 months and 6 days later on October 11, 2005. 	The
statute of limitations is tolled while the grievance is pursued so the period from March 16,
2001 until April 12, 2005, 4 years and 28 days, is subtracted from the 4 years, 9 months and 6
days. Therefore, considering section 3514.5(a) tolling, approximately 8 months and 8 days

LA-CE-634-S
May 17, 2006
Page4
r
I
have elapsed since the date you knew about the conduct underlying your denial of paid status
grievance. 	Since this
is
more than six months, the allegation
is
time barred.
Therefore, I am dismissing the charge based on the facts and reasons contained here and in my
April 17, 2006 letter.
Right to Appeal
Pursuant to PERB Regulations,3 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 during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close
of
business
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
therequired 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 theproceeding, 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.) Thedocument will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-634-S
May 17, 2006
Page 5
(
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
Mary Creith
Regional Attorney
Attachment
cc: Lori A. Green, Legal Counsel

..

ST ATE OF CALIFORNIA	
(.
.
-==-==-======~
ARNOLD
SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-3008
Fax: (213) 736-4901
April 17, 2006
William F. Horspool
Re: 	· William F. Horspool
v.
State
of
California (Department
of
Corrections &
Rehabilitation)
Unfair Practice Charge No. LA-CE-634-S
WARNING LETTER
Dear
Mr. Horspool:
The
above-referenced unfair practice charge was filed with the Public Employment
Relations
Board (PERB or Board) on October 11, 2005. 	You allege that the State
of
California
(Department
of
Corrections & Rehabilitation) (CRC) violated the Ralph C. Dills Act
(Dills
Act) 1
by
retaliating against you for your protected activities, interfering with yourright to
engage in protected activities and
by
engaging in bad faith and surface bargaining.
On
December 21, 2000, you filed a grievance regarding incorrect payments and calculations of
Industrial Disability Leave (IDL) benefits. The CRC responded by performing an audit
and
they determined you were overpaid and docked your pay. 	You discovered errors in
the audit
and brought this to CRC' s attention during a grievance conference. You filed this grievance at
the third and fourth levels. You contend CRC's responses to your grievance at all four levels
were vague, ambiguous and unrelated to the grievance. 	You made a request for arbitration that
was denied on April 12, 2005. 	Since the grievance involved IDL, you were able to appeal the
denial
of
your request for arbitration to the Department
of
Personnel Administration
(DPA).
You
pursued the appeal at DP A but you state it has stalled and you are unable to get a response
fromDPA.
On
December 26, 2000, you filed a grievance questioning why you were not granted a change
in base time. 	You were eligible to go from permanent intermittent status to full time
status
and
you were first on the list. 	You filed an unfair practice charge, LA-CE-570-S, and PERB issued
a complaint. The case proceeded to the Administrative Law Division
of
PERB for hearing and
you state that on January 19, 2005, the Administrative Law Judge assigned to the case
dismissed it because he determined vou abandoned the case. 	You also state that the charge is
currently on appeal before the Board.
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-634-S
April 17, 2006
Page 2
( 	(,..
On March 9, 2001, you fi'led a grievance challenging a Letter of Instruction (LOI) given to you
on March 8, 2001. 	The LOI was dated July 15, 1998 and involved an incident that occurred on
April 11, 1997. Before the grievance conference, CRC, through its agent Lt. Halberg,
inadvertently' provided you a copy of CRC' s predetermined response to your grievance. 	You
believe this is proof that the CRC engaged in surface bargaining. You refused to return the
document to Halberg. Officer Agundez, your California Correctional Peace Officers
Association (CCPOA) Job Steward, was present during the incident. CRC threatened to
charge you with insubordination if you did not comply with Lt. Halberg' s orders that you
return the CRC's response to the grievance. On March 28, 2001, Sgt. Huskstep gave you a
memo warning you that you were insubordinate and it would not be tolerated. On April 2,
2001, you wrote a memo to the CCPOA documenting the incident. In April 2001, CRC
questioned Agundez about the incident and you believe CRC's questioning of Agundez
constituted unlawful intervention into a protected activity. 	You state that the grievance was
partially granted but none of the remedies have been granted.
On March 16, 2001, you filed a grievance regarding a dispute about your return to work. 	You
pursued the grievance through all four levels and the CRC' s response at each level was, you
state, vague, ambiguous, non-responsive and unrelated to the grievance. The CRC denied your
request for arbitration on April 12, 2005. You state that since this dispute involved Industrial
Disability Leave, you were able to appeal to the DPA. You state this appeal has stalled and
you are unable to get a response from DPA.
On May 1, 2001 a grievance was filed after you prepared it on behalf of another employee,
Officer Buchanan. You were listed as the representative but you were unable to attend the
grievance conference. You state that Officer Buchanan told you that CRC admitted there was
a problem but they denied the grievance. However, you state the grievance was later granted
in a "mini arb."
You contend that the above-described conduct demonstrates arbitration is futile and you also
appear to contend that CRC failed to meet in good faith, engaged in surface bargaining,
retaliated against you and interfered with your right to engage in protected activities.
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."
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. 1Q71-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.) In Regents of the University of
California (2004) PERB Decision No. 1592-H, the Board held that a conclusory statement
alleging violations of HEERA followed by 300 pages of documents failed to provide a clear
and concise statement of the facts as required by PERB Regulation 32615(a)(5).

LA-CE-634-S
April 17, 2006
Page 3
(
You discuss five grievances in this unfair practice charge and you attached more than 200pages of documents.2 Your charge fails
to
meet your obligation under PERE Regulation
32615(a)(5)
to
provide a clear and concise statement of the facts and will be dismissed.
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) PERE Decision No. 1177.) The statute of limitations
is
an affirmative defense which
has been raised by the respondent in this case. (Long Beach Community College District
(2003) PERE Decision No. 1564.) Therefore, charging party now bears the burden of
demonstrating that the charge
is
timely filed. (cf. Tehachapi Unified School District (1993)
PERE Decision No. 1024; State of California (Department of Insurance) (1997) PERB
Decision No. 1197-S.)
From what I can gather, all the incidents you discuss occurred in 2000-2001 and
as
such, the
charge
is
not timely and will be dismissed. And, even if you were to clarify the issues
anddemonstrate the charge
is
timely, you lack standing to demonstrate a prima facie case
of
bad
faith bargaining or surface bargaining and you have not demonstrated a prima facie case
of
retaliation or interference,
as
explained below.
Bad Faith Bargaining
The Board has held that an individual employee does not have standing to pursue violations of
the rights
of
an employee organization. (State of California (Department of Corrections)
(1993) PERB Decision No. 972-S.) In addition, individual employees lack standing to allege
that an employer has failed to bargain in good faith. 	(Oxnard School District (1988) PERBDecision No. 667.)
Since you are
an
individual employee and not an employee organization, you do not have
standing to allege that the CRC failed to meet and confer in good faith.
Surface Bargaining
The charge alleges that the employer violated Dills Act section 3519(c) by engaging in
badfaith or "surface" bargaining. It
is
the essence of surface bargaining that a party goes through
the motions of negotiations, but in fact is weaving otherwise unobjectionable conduct into an
entangling fabric to delay or prevent agreement. (Muroc Unified School District (1978) PERE
Decision No. 80.)
2 You did not identify which documents among the attachments are relevant to which
charge nor did you provide an index or any other device to assist in navigating the voluminous
attachments.

LA-CE-634-S
April 17, 2006
Page4
(
Here, you allege the CRC engaged in surface bargaining when it predetermined its response to
your grievance. 	However surface bargaining refers to unlawful bargaining that occurs in the
context
of
negotiations between an employer and exclusive representative. While the CRC and
CCPOA have standing
to
allege surface bargaining, individual employees, such
as
yourself,
do
not have such standing.
Retaliation
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
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.)
Although the timing of the employer's advers
employee's protected conduct
is
an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, witp.out 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
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3)
the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (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; (6) ei;nployer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572:); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
e action in close temporal proximity to
the
You contend that the CRC retaliated against you for engaging in protected activities.
Apparently you are alleging that the outcomes of your grievances were determined in
retaliation against you. 	None of the information you provided demonstrates a nexus between
your protected activities and the CRC's conduct with regard to your grievances.
Interference
To demonstrate a prima facie case of interference, the charging party must show that the
respondent's conduct tends to or does result in some harm to employee rights guaranteed by the
Dills Act. 	(Carlsbad Unified School District (1979) PERB Decision No. 89, State of

LA-CE-634-S
April 17, 2006
Page 5
( 	(
California, Department of Developmental Services (1982) PERB Decision No. 228-S.) The
charging party must show that the employer's communications would tend to coerce or
interfere with a reasonable employee in the exercise of protected rights. The fact, that
employees may interpret statements, which are otherwise protected, as coercive does not
necessarily render those statements unlawful. 	(Regents of the University of California ( 1983)
PERB Decision No. 366-H, fn. 9, pp. 15-16; BMC Manufacturing Corporation (1955) 113
NLRB 823 [36 LRRM 1397].) The Board has also held that statements made by an employer
are to be viewed in their overall context (i.e., in light of surrounding circumstances) to
determine if they have a coercive meaning. (Los Angeles Unified School District (1988) PERB
Decision No. 659, p. 9, and cases cited therein.)
You allege that CRC's questioning of Agundez was unlawful intervention into a protected
activity. The information you provided does not demonstrate that CRC's inquiry into the
'incident wherein you refused to return the copy of CRC's response to your grievance would
tend to coerce or interfere with a reasonable employee in the exercise of any protected rights.
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 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
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 charge or withdrawal from you before April 27, 2006, I shall dismiss your charge. 	If
you have any questions, please call me at the above telephone number.
Sincerely,
Mary Creith
Regional Attorney
MC