Calaveras County Water District (PERB 2039M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SEID LOCAL 1021,
Charging Party,
V.
CALAVERAS COUNTY WATER DISTRICT,
Respondent.
Case No. SA-CE-510-M
PERB Decision No. 2039-M
June 19, 2009
Appearances: Weinberg, Roger & Rosenfeld, by Matthew J. Gauger, Attorney, for SEID
Local 1021; Downey Brand, by Jennifer R. Madden, Attorney, for Calaveras County Water
District.
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment RelationsBoard
(PERB or Board) on appeal by SEID Local 1021 (SEID) of a Board agent's partial dismissal of
its unfair practice charge. The charge alleged that the Calaveras County Water District
(District) violated the Meyers-Milias-Brown Act (MMBA)1 by: (1) interfering with the
protected rights of bargaining unit members; (2) engaging in acts of retaliation/discrimination
against certain union activists; (3) terminating the employment of a probationary employee
because she engaged in protected activity; (4) failing to provide requested information; and ( 5)
contracting out bargaining unit work.2
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2 A complaint issued on allegations of interference, retaliation against bargaining unit
employee Rick Griffin, and failure to provide requested information. The remaining
allegations were dismissed.

The Board has reviewed the entire record in this case, including but not limited to the
original and amended unfair practice charge, the Board agent's warning and dismissal letters,
SEIU's appeal and the District's response. Based on this review, the Board affirms the
dismissal
of
the allegation at issue for the reasons discussed below.3
BACKGROUND
The District operates five water treatment plants and twelve wastewater treatment
plants. SEIU has been the exclusive representative
of
the District's clerical, technical,
professional and blue-collar employees since 1997.
The memorandum
of
understanding between the parties expired on June 30, 2007.4 The
parties initiated negotiations for a successor agreement in April. Negotiations were at times
acrimonious before the parties reached agreement in October. During the course
of
negotiations, bargaining unit employees engaged in several concerted activities, including
mass picketing, "unity breaks," union meetings and wearing union insignia, including purple
SEIU shirts, at work.
Nicole Randall (Randall), a probationary employee, was employed by the District as an
administrative clerk. Prior to August, Randall participated in informational picketing
activities, signed pro-union petitions and wore union insignia at work.
Randall's immediate supervisor was Pat Emerson (Emerson), Director
of
Administrative Services. On August 3, Emerson learned that Randall was dating the SEIU
chapter president. She called Randall into her office "to give her advice about life and dating
and how Randall should not date [the chapter president]."
3 SEIU appealed only the dismissal of the allegation regarding termination of the
probationary employee's employment. Only those facts essential to the resolution of this
allegation are summarized herein. The remaining allegations in the partial dismissal were not
considered by the Board and are dismissed.
4 Unless otherwise noted, all dates hereafter refer to 2007.
2

Randall and Emerson at times had a difficult working relationship. At some point prior
to September 17, Randall and Emerson engaged in a verbal and physical altercation during
which Emerson touched Randall on the elbow to move her out
of
her office. During the
encounter, Randall told Emerson she wanted to have union representation at a future meeting
with Emerson for the purpose
of
working out their differences. Emerson told Randall she was
not allowed to have union representation.
On September 17, Emerson met with Randall and SEIU representative Tony Atnip to
discuss the prior incident. Emerson apologized for the way she had acted. Emerson told
Randall that she had no problems with her and that her work was good.
On October 10, District Board Member Ed Rich was talking to Randall and said words
to the effect that workers would be fired
if
they go on strike.
On October 11, Randall joined other employees in forming a "human chain" in the
District's parking lot, forcing drivers, including Emerson, to drive between the employee
"chains" on their way out
of
the parking lot. The employees all wore purple union t-shirts and
shouted "Settle the contract!"
On November
1,
Emerson called Randall to a meeting to go over her performance
review. After arriving at the meeting, Randall requested union representation. She was told
that she could have a union representative. 5
On November 9, a petition to remove Emerson from her duties was circulated by SEIU.
Randall signed her name to the petition. 6
5 Although not clear from the charge, it appears the performance review meeting was
rescheduled to November 19.
6 There are no facts alleged that the petition was actually submitted to the District or
that anyone in management was aware of the petition.
3

Randall received her performance review in a meeting held on November
19.
	The
evaluation was described in the unfair practice charge as
"a
very bad review."
On January 31, 2008, while still a probationary employee, the District terminated
Randall's employment.
The charge also alleges Randall was subject to sexual harassment, although it does not
indicate when the conduct occurred. The charge states:
The employer tolerates sexual harassment
of
workers who
associate with Union activists. 	[Manager "A"], an Office
Manager constantly leers at Nicole Randall, inappropriately
complimenting her clothing (which is similar to the clothing the
other similarly situated workers wear), referring to her to [sic]
"Nordstrom", comes into her work area and speaks to her in a
flirtatious manner.
BOARD AGENT'S DISMISSAL
The Board agent concluded that SEIU's charge alleged sufficient facts to demonstrate
that Randail engaged in protected activity, the District had knowledge
of
some
of
that
protected activity, and the termination
of
her employment constituted adverse action.
However, the Board agent determined the charge did not establish a connection, or nexus,
between Randall's protected activity and the adverse action.
SEIU'S APPEAL
As noted above, SEIU appeals only the portion
of
the partial dismissal pertaining to the
termination
of
Randall's employment. In doing so, SEIU challenges the determination that this
allegation does not demonstrate nexus. SEIU contends that nexus is established by the
following conduct.
1.
	SEIU contends the District allowed the sexual harassment of Randall to continue
because of her protected activity, including Emerson's comment on August 3 that she should
not date the chapter president.
4

2. Randall asked for a future meeting with Emerson, including union representation, to
discuss the altercation that occurred in September. Emerson told Randall she was not
permitted to have a union representative. SEIU contends that, because a discussion regarding
the incident could give rise to discipline, Emerson improperly denied Randall the right to union
representation.
3.
	SEID asserts that the board member's comment to Randall on October 10, that
employees would be fired
if
they go on strike, demonstrates union animus.
4.
	The appeal states that Randall "received positive evaluations" and there was "no
evidence
of
performance problems except picayune and hypersensitive interpretations
of
work
rules." The charge alleges Emerson told Randall her work was good during the September
17
meeting. In contrast, the District terminated Randall's probationary employment for
performance and attitude issues. SEID contends this demonstrates shifting justifications.
5.
	SEIU states the District is under no obligation to explain why it decides to discharge
a probationary employee. Because the District provided the justification for Randall's
termination, SEIU argues this demonstrates disparate treatment.
6.
	Finally, SEID contends that because several
of
the allegations in the charge stated a
prima facie case, this demonstrates the District "was steeped in anti-Union animus."
In response to the appeal, the District asserts SEIU' s appeal contains new evidence not
included in the charge. The District also contends the Board agent properly concluded the
charge failed to demonstrate the necessary nexus element.
DISCUSSION
At issue is whether the charge alleges sufficient facts to establish a prima facie case that
the District dismissed Randall, a probationary employee, because she engaged in activity
protected by the MMBA. The Board agent concluded that the initial elements of a prima facie
5

case, protected activity, employer knowledge and adverse action, were present. The Board
concurs in these findings, which are briefly summarized below. SEIU's appeal, and the focus
of
the Board's analysis, address only the Board agent's determination that the facts alleged in
the charge do not demonstrate the nexus element necessary to establish a prima facie case.
To demonstrate that an employer discriminated or retaliated against an employee in
violation
of
MMBA section 3506 and PERB Regulation 32603(a),7 a charging party must show
that: (1) the employee exercised rights under MMBA; (2) the employer had knowledge
of
the
exercise
of
those rights; (3) the employer took adverse action against the employee; and (4) the
employer took the action because
of
the exercise
of
those rights. (Novato Unified School
District (1982) PERB Decision No. 210 (Novato USD); Campbell Municipal Employees Assn.
v.
City
of
Campbell (1982) 131 Cal.App.3d 416 (City
of
Campbell); San Leandro Police
Officers Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553 (City
of
San Leandro).)
Protected Activity
The charge alleges facts that demonstrate that Randall engaged in protected activity by:
(1) prior to August, she participated in informational picketing, signed pro-union petitions and
dressed in union insignia at work; (2) on September 17, accompanied by a union
representative, Randall met with her supervisor to discuss a prior altercation; (3) on
October 11, Randall participated in a "human chain" in support
of
a new contract, which
required drivers to drive through the parking lot between the employee "chains"; and ( 4) on
November 9, Randall signed a petition circulated by SEIU to remove her supervisor from her
duties.
7 PERB regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.
6

Knowledge
of
Protected Activity
Unlawful discrimination cannot be established unless the employer is aware
of
the
employee's participation in protected activity. (Sacramento City Unified School District
(1985) PERB Decision No. 492 (Sacramento City USD).) The charge does not allege facts to
establish that District representatives were aware that prior to August, Randall participated in
picketing, signed petitions and wore union insignia. In addition, the charge does not
demonstrate the District knew
of
the petition targeting Randall's supervisor and that Randall
had signed the petition. The charge establishes only that the District had knowledge
of
the
September 17 meeting with union representation, and that Randall's participation in the
October
11
parking lot protest was observed by her supervisor.
Adverse Action
The District took adverse action against Randall on November 19, when it issued her a
negative performance evaluation, and on January 31, 2008, when it terminated her
employment.
Nexus
When direct proof
of
unlawful motivation is not present, the record as a whole is
reviewed to determine
if
the inference
of
unlawful motive is established. Although the timing
of
the employer's adverse action in close temporal proximity to the employee's protected
conduct is an important factor (North Sacramento School District (1982) PERB Decision
No. 264 (North Sacramento SD)), it does not, without more, demonstrate the necessary
connection 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
7

No. 459-S; City
of
Campbell); (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; City
of
San Leandro); (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; City
of
San Leandro); (4) the employer's cursory investigation
of
the employee's misconduct (City a/Torrance (2008) PERB Decision No. 1971-M; Coast
Community College District (2003) PERB Decision No. 1560); (5) the employer's offering
of
exaggerated, vague, or ambiguous reasons to justify its conduct (County
of
San Joaquin
(Health Care Service) (2001) PERB Order No. IR-55-M); (6) employer animosity towards
union activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M;
Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any other
facts that might demonstrate the employer's unlawful motive. (North Sacramento SD; Novato
USD.)
The charge demonstrates the timing factor is present. The District issued the negative
evaluation on November 19, within one to two months
of
her protected activity on
September 17 (attending a meeting with union representation) and October
11
(parking lot
protest). The employment termination occurred approximately three and one-half months after
Randall's participation in the October
11
protest. (San Mateo County Community College
District (2008) PERB Decision No. 1980 [four and one-half months arguably too long].) The
charge does not, however, allege facts that demonstrate other nexus factors.
SEIU contends the District allowed the sexual harassment
of
Randall to continue
because of her protected activity. The charge does not state when the alleged sexual
harassment by Manager "A" occurred in relation to Randall's protected activity. Further, there
8

is no evidence that Randall reported the alleged improper conduct by either manager. 	Without
knowledge
of
the alleged harassment, the District could not have addressed the matter.
SEIU asserts nexus is established because Emerson told Randall she was not entitled to
union representation when Randall asked for a meeting to discuss their altercation. SEIU
argues Randall had a right to union representation because discipline could arise from a
discussion
of
the incident.
An employee required to attend an investigatory interview with the employer is entitled
to union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. (Rio Hondo Community College District (1982) PERB Decision
No. 260.)
In the present case, it was Randall who requested a meeting with Emerson to discuss
the incident. There are no facts suggesting that an investigatory meeting would be held or that
Randall could reasonably believe discipline might result from the meeting she requested. As
the charge does not establish Randall had a right to union representation when she asked
Emerson for a meeting, Emerson's denial
of
representation before a meeting was scheduled
does not demonstrate nexus.
SEIU also contends that the District board member's comment to Randall, that
employees would be fired
if
they went on strike, establishes the required connection.
However, there are no facts alleged that the board member was aware
of
Randall's
participation in protected activity. Furthermore, there is no evidence the board member had
any role in the preparation
of
Randall's evaluation or the decision to terminate her
employment. (Sacramento City USD [animus cannot automatically be imputed to decision
maker].) Rather, the charge alleges that Randall's supervisor conducted the performance
9

review. Therefore, this conduct also fails to establish a connection between Randall's
protected activity and her termination. 8
The appeal states that Randall "received positive evaluations" and only minor
performance problems were documented. The charge alleges that during the September
17
meeting Randall's supervisor said her work was good. In contrast, the District terminated
Randall's employment for performance and attitude issues. SEIU contends this demonstrates
shifting justifications.
There are no facts alleged or copies
of
evaluations included in the charge, or facts
stated in the warning letter, that Randall had "received positive evaluations" or had only minor
performance problems, prior to receiving the negative evaluation on November 19. Pursuant
to PERB Regulation 32635(b ), "Unless good cause is shown, a charging party may not present
on appeal new charge allegations or new supporting evidence." As there is no explanation why
this information could not have been included in the charge, the Board does not find good
cause and declines to consider the new evidence.
The charge does allege that Randall's supervisor told her she was doing a good job.
However, the evidence does not demonstrate that Randall had a consistent, documented history
of
excellent work prior to receiving the negative evaluation and the reasons for her termination.
(San Joaquin Delta Community College District (1982) PERB Decision No. 261 [six year
unblemished record].) Absent these facts, the charge does not demonstrate shifting
justifications.
SEIU also contends that because the District provided the reason for Randall's
termination when it did not have to, this demonstrates disparate treatment. The appeal cites no
authority for this proposition. Further, the charge does not allege facts that any other similarly
An interference allegation concerning this statement was included in the complaint.
10

situated employee was treated in a different manner or that the District deviated from existing
policies.
Finally, SEIU argues that because several
of
the other charge allegations did state a
prima facie case, this is sufficient to establish nexus for the present allegation. However, it
is
a
charging party's obligation to allege facts that demonstrate the elements
of
a discrimination
claim under Novato
USD.
	(United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) SEIU has not met its burden to establish the elements
of
a prima facie case
of
discrimination.
ORDER
The partial dismissal
of
the unfair practice charge in Case No. SA-CE-510-M is hereby
AFFIRMED.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.
11