County of San Bernardino (County Library) (PERB 2071M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DEBRA A. ROELEVELD,
Charging Party,
V.
COUNTY OF SAN BERNARDINO (COUNTY
LIBRARY),
Respondent.
Case No. LA-CE-450-M
PERB Decision No. 	2071-M
October 20, 2009
Appearance: Debra A. Roeleveld, on her own behalf.
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
DOWDIN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Debra A. Roeleveld (Roeleveld)
of
a Board
agent's dismissal
of
her unfair practice charge. The charge alleged that the County
of
San Bernardino (County Library) (County) violated the Meyers-Milias-Brown Act (MMBA or
Act) 1 by: (1) failing to follow its personnel rules when it interviewed Roeleveld for a full-time
Library Assistant position; and (2) failing to provide Roeleveld with a written rejection letter
or examination results both before and after Roeleveld requested them. 	The Board agent
dismissed the charge for lack
of
jurisdiction and failure to state a prima facie case
of
retaliation.
1 The MMBA is codified at Government Code section 3500 et seq. 	Unless otherwise
indicated, all statutory references are to the Government Code.

The Board has reviewed the dismissal and the record in light
of
Roeleveld' s appeal and
the relevant law. Based on this review, the Board affirms the dismissal
of
the charge for the
reasons discussed below.
BACKGROUND
Roeleveld has been employed as a part-time Library Assistant at the County's
Twentynine Palms Branch Library since 1991.2 On November 30, 2007, the library's regional
manager, Peggy Bryant (Bryant), sent an email to staff informing them
of
vacancies at the
various library branches. One
of
the available positions was a full-time Library Assistant I
position at the Twentynine Palms Branch. The minimum requirements section
of
the attached
job description did not contain a requirement that the applicant have childhood education
experience.
In a reply email to Bryant on December
1,
Roeleveld indicated her interest in the full
time Library Assistant I position. Roeleveld alleged that Bryant told her she did not need to
submit an.application for the position because she was currently a County employee but does
not allege when this conversation occurred.
Roeleveld interviewed for the full-time Library Assistant I position on December 10,
2007. The branch manager
of
the Twentynine Palms Branch, Linda Muller (Muller), who was
also Roeleveld's direct supervisor, was a member
of
the interview panel; Bryant was also on
the panel. On December 12, Muller informed Roeleveld verbally that another applicant was
selected for the position. When Roeleveld asked why she was not selected, Muller responded
that the chosen applicant had childhood education experience. Muller also told Roeleveld that
she was required to pretend she did not know Roeleveld during the interview.
2 Though her job title has changed several times over the years, Roeleveld alleges that
her job duties have remained the same for the entire period of her employment with the County
Library.
2

Unsatisfied with Muller's response, Roeleveld contacted Regional Manager Bryant,
who also told her that the other applicant was hired because she had childhood education
experience. Roeleveld contacted Assistant County Librarian Rick Erickson (Erickson) and
expressed concern about the hiring process. Erickson told her that job descriptions were
intentionally vague and that based on her years
of
experience working for the library, she
should have known that the library was looking for a "Youth Services Librarian," not a Library
Assistant.
On December 14, 2007, Roeleveld met with Dan Long (Long), a representative
of
the
San Bernardino Public Employees Association (SBPEA). 	When Long asked to see her
application, Roeleveld responded that Bryant and Muller had told her she did not need to
submit one. Long also asked Roeleveld for her rejection letter. When she responded that she
had not received one, Long said the letter was necessary for SBPEA to start the grievance
process and he would contact human resources and library administration to get more
information.
On February 12, 2008, Roeleveld requested that Bryant and Muller provide her with a
written rejection letter. 	Bryant told Roeleveld that the County did not send written rejection
letters but informed applicants
of
examination results verbally. In the meantime, SBPEA
continued to request documents relevant to Roeleveld's interview, including a written rejection
letter, from County management. In her appeal, Roeleveld claims that the County still has not
provided that information to her or SBPEA.
On April 14, 2008, Roeleveld contacted Kristy Dykas (Dykas) in the County's human
resources department. Dykas informed her that no recruitment for a full-time Library
Assistant I position had been conducted since April 2007. Two days later, Roeleveld spoke
with Kofie McCray (McCray), the applicant chosen instead of Roeleveld. McCray told her
3

that she had applied for the position in October 2007. In December 2008, County Librarian Ed
Kieczykowski responded to an anonymous post on a County intranet bulletin board by saying
that only those employees who are on an eligibility list created pursuant to a recruitment may
be interviewed for an open position.
Unfair Practice Charge and Dismissal
Roeleveld filed the instant unfair practice charge on April 23, 2008. The charge alleged
that the County violated its personnel rules by: (1) basing its hiring decision for the full-time
Library Assistant I position on a criterion, childhood education experience, not listed in the job
description; (2) hiring an applicant who was not on an eligibility list for the full-time Library
Assistant I position; (3) failing to consider Roeleveld's prior experience working with
children's programs at the library; and (4) failing to provide her with a written rejection letter
or examination results both before and after she requested them.
The Board agent sent Roeleveld a warning letter stating that PERB does not have
authority to enforce the County's personnel rules and that the charge failed to state a prima
facie case
of
discrimination. Roeleveld filed an amended charge on January 2, 2009, three
days after the Board agent dismissed the charge because he had not received an amended
charge or withdrawal by the deadline set forth in the warning letter. In County
of
San Bernardino (County Library) (2009) PERB Decision No. 2023-M, the Board found good
cause to excuse the late filing and remanded the charge to the Board agent for further
processmg.
Based on his review
of
the amended charge and additional material submitted as part of
Roeleveld's appeal of the dismissal, the Board agent dismissed the charge. The Board agent
concluded that the County's personnel rules were not local rules adopted pursuant to MMBA
section 3507, as Roeleveld argued in the amended charge. He also found the charge failed to
4

state a prima facie case
of
retaliation because Roeleveld' s protected conduct
of
using SB PEA
representation in her dispute over the Library Assistant I position occurred after she had not
been hired for the position.
DISCUSSION
1.
	Violation
of
Memorandum
of
Understanding and Personnel Rules
On appeal, Roeleveld argues that PERB has jurisdiction over her claims because both
the Memorandum
of
Understanding (MOU) between SBPEA and the County, and the County's
personnel rules, are local rules adopted pursuant to MMBA section 3507.3 Thus, she asserts, a
3 MMBA section 3507, subdivision (a) states, in full:
A public agency may adopt reasonable rules and regulations after
consultation in good faith with representatives
of
a recognized
employee organization or organizations for the administration
of
employer-employee relations under this chapter. The rules and
regulations may include provisions for all
of
the following:
(
1)
Verifying that an organization does in fact represent
employees
of
the public agency.
(2) Verifying the official status
of
employee organization officers
and representatives.
(3)Recognition
of
employee organizations.
(4) Exclusive recognition
of
employee organizations formally
recognized pursuant to a vote
of
the employees
of
the agency or
an appropriate unit thereof, subject to the right of an employee to
represent himself or herself as provided in Section 3502.
(5) Additional procedures for the resolution
of
disputes involving
wages, hours and other terms and conditions of employment.
( 6) Access of employee organization officers and representatives
to work locations.
(7) Use of official bulletin boards and other means of
communication by employee organizations.
5

violation
of
those rules may be processed as an unfair practice charge pursuant to MMBA
section 3509, subdivision (b).
Roeleveld contends that, because the County adopted the MOU after good faith
consultation with SBPEA, it constitutes a local rule under MMBA section 3507, subdivision
Section 4
of
the MOU's grievance procedure states, in
relevant part:
Any dispute which may arise between parties involving the
application, meaning, or interpretation
of
the Personnel Rules shall
be settled by the Civil Service Commission in accordance with the
appropriate appeal procedure established in the Personnel Rules.
Because the MOU explicitly states that the personnel rules are the exclusive means for
resolving Roeleveld's claims, we turn to whether the personnel rules constitute local rules
adopted pursuant to MMBA section 3507.
Section 3507, subdivision (a) allows public agencies to adopt rules and regulations "for
the administration
of
employer-employee relations under this chapter." Though the MMBA
does not define "employer-employee relations under this chapter," the type
of
relations
contemplated by the Act are described in section 3500, subdivision (a):
It
is the purpose
of
this chapter to promote full communication
between public employers and their employees by providing a
reasonable method
of
resolving disputes regarding wages, hours,
and other terms and conditions
of
employment between public
employers and public employee organizations.
It
is also the
purpose
of
this chapter to promote the improvement
of
personnel
management and employer-employee relations within the various
public agencies in the State of California by providing a uniform
basis for recognizing the right of public employees to join
organizations of their own choice and be represented by those
(8) Furnishing nonconfidential information pertaining to
employment relations to employee organizations.
(9) Any other matters that are necessary to carry out the purposes
of this chapter.
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organizations in their employment relationships with public
agencies.
As indicated by this preamble, the MMBA governs relations between public agency employers
and organizations representing their employees. Thus, the only type
of
local rules and
regulations that may be adopted pursuant to section 3507 are those that regulate relations
between the public agency and its employee organizations. Indeed, all eight
of
the specific
subjects addressed in section 3507, subdivision (a) pertain to employer-employee organization
relations.
The County's personnel rules, on the other hand, deal with relations between the
County and individual employees. The rules set forth procedures for classifying positions,
selecting individuals to fill positions, evaluating employee work performance and disciplining
employees. The personnel rules do not address relations between the County and its employee
organizations in any way.
The difference between these two types
of
public agency rules was highlighted in
Covina-Azusa Fire Fighters Union, Local 2415, IAFF, AFL-CIO
v.
City
of
Azusa (1978)
81
Cal.App.3d 48. In the beginning
of
its decision, the court stated:
In the case before this court, the City
of
Azusa did not adopt a
local employee relations procedure either by ordinance or by
resolution for the implementation
of
the act, as authorized by
Government Code section 3507. The city has followed its own
civil service rules and regulations in dealing with employee
organizations.
(Id. at p. 54, fn. omitted.)
The court then proceeded to address the city's obligation to recognize employee
organizations in the absence of local rules adopted pursuant to MMBA section 3507. We
therefore conclude that the County's personnel rules are not local rules adopted pursuant to
7

MMBA section 3507, subdivision (a). Accordingly, PERB has no authority to process an
alleged violation
of
those rules as an unfair practice charge.
2. 	Retaliation
To demonstrate that the County retaliated against her in violation
of
MMBA section
3506 and PERB Regulation 32603(a),4 Roeleveld must show that: (1) she exercised rights
under MMBA; (2) the County had knowledge
of
her exercise
of
those rights; (3) the County
took adverse action against her; and (
4) the County took the action because
of
her exercise
of
those rights. (Novato Unified School District (1982) PERB Decision No. 210; San Leandro
Police Officers Assn.
v.
City
of
San Leandro (1976)
55
Cal.App.3d 553.)
Roeleveld engaged in conduct protected by the MMBA when she enlisted SBPEA's
assistance in pursuing her complaints about the selection process for the full-time Library
Assistant I position. (County
of
Merced (2008) PERB Decision No. 1975-M.) The County had
knowledge
of
Roeleveld's protected conduct because SBPEA representatives contacted the
County's human resources department on several occasions seeking documentation related to
Roeleveld's participation in the selection process.
Roeleveld argues on appeal that the County took adverse action against her, not by
denying her the full-time Library Assistant I position, but by failing to provide her with a
written rejection letter or examination results and thereby preventing her from appealing the
denial to the County Civil Service Commission. Rule IV, section 20
of
the County's personnel
rules sets forth the process for appealing "any part or process
of
an examination." An appeal
must be filed "within thirty (30) calendar days after the date
of
mailing
of
examination
results." This implies that written examination results are a prerequisite to an appeal but the
4 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
8

section does not explicitly state such a requirement. Moreover, Roeleveld did not allege that
she attempted to appeal the denial without written results and her appeal was rejected.
Because the charge failed to establish that the Civil Service Commission would have rejected
Roeleveld's appeal under such circumstances, the County's failure to provide her with a
vvritten rejection or examination results was not an adverse action.
Even
if
the County's failure to provide written documentation was an adverse action,
the charge does not establish that the action was the result
of
unlawful motive. 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), it does not, without 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; San Leandro,
supra,
55
Cal.App.3d 553); (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; San Leandro, supra, 55 Cal.App.3d 553); (4) the employer's cursory investigation
of
the employee's misconduct (City
of
Torrance (2008) PERB Decision No. 1971-M; Coast
Community College District (2003) PERB Decision No. 1560); (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 (County
of
San Joaquin (Health Care Service) (2001) PERB Order
No. IR-55-M); (6) employer animosity towards union activists (Jurupa Community Services
9

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 School District, supra; Novato Unified School District,
supra.)
SBPEA contacted the County's human resomces department in late December 2007 or
early January 2008 seeking documentation about Roeleveld' s participation in the selection
process for the full-time Library Assistant I position. On February 21, 2008, Roeleveld told
Bryant, the library regional manager, that she needed a rejection letter so she could appeal the
denial
of
the position. Bryant responded that "they do not write rejection letters - it has always
been a verbal communication
of
their decision." This refusal to provide Roeleveld with a
rejection letter, however, was not a new act by the County. Rather it was the continuation
of
a
course
of
conduct that began with Muller's verbal notification on December 12, 2007, two
days before Roeleveld sought assistance from SBPEA. Thus, the charge failed to establish the
timing element. (Berkeley Unified School District (2004) PERB Decision No. 1702.) Nor
does the charge establish that Roeleveld was treated differently from other similarly situated
employees, that the County failed to follow established procedures, or that the County
harbored any animus toward SBPEA or employees represented by it. Accordingly, the charge
failed to demonstrate the required nexus between Roeleveld's use
of
SBPEA representation
and the County's failure to provide her with a written rejection letter or examination results.
ORDER
The unfair practice charge in Case No. LA-CE-450-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Neuwald and Wesley joined in this Decision.
10