County of Orange * * * OVERRULED IN PART by Santa Clara Valley Water District (2013) Decision No. 2349- M (PERB 2155M)

OVERRULED IN PART by Santa Clara Valley Water District
(2013) PERB Decision No. 2349- M
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KURT HITCHCOCK,
Charging Party,
V.
COUNTY OF ORANGE,
Respondent.
KURT HITCHCOCK,
Charging Party,
V .
COUNTY OF ORANGE,
Respondent.
Case No. LA-CE-529-M
PERB Decision No. 2155-M
January 18, 2011
Case No. LA-CE-529-M
Appearances:	Appearances Linda A. Albers, Attorney, for Kurt Hitchcock; Mark R. Howe, Senior Deputy
County Counsel, for the County of Orange.
: Linda A. Albers, Attorney, for Kurt Hitchcock; Mark R. Howe, Senior Deputy
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.	Before Dowdin Calvillo, Chair; Mckeag and Wesley, Members.
DECISION	DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Kurt Hitchcock (Hitchcock) of a dismissal (attached) of his	(PERB or Board) on appeal by Kurt Hitchcock (Hitchcock) of a dismissal (attached) of his
unfair practice charge by a Board agent. The charge alleged that the County of Orange
(County) violated the Meyers-Milias-Brown Act (MMBA)'
McKEAG, Member: This case comes before the Public Employment Relations Board
by	lby denying him the opportunity to
participate in an arbitration. Hitchcock alleged that this conduct constituted a violation of
MMBA sections 3502, 3502.1 and 3506.
unfair practice charge by a Board agent. The charge alleged that the County of Orange
rr011nty\	\'-"'-'- .1.11, j violaterl	,-.1. 	11, "°" the	,_.__._..._ 	T\A"eyprs-M1'l1'as-Brown	..1,..Vl 	""' 	.A. .1. 	.1. 	Act (MMBA\.LJ 	.J. .1. .1. ..l..1..1. .J. 1,,.1. V V.t,J.l-'VJ._1,\..-&,..l..l..l.L tr.	LV
participate in an arbitration. Hitchcock alleged that this conduct constituted a violation of
MMBA sections 3502, 3502.1 and 3506.
Hitchcock alleges the County both interfered with his protected rights and retaliated
against him for engaging in protected conduct. With regard to the interference claim, the
Board agent found that Hitchcock did not have a right to participate in an arbitration
proceeding because the memorandum of understanding (MOU) which contained the arbitration
clause expired. Therefore, the Board agent concluded that the County's denial of arbitration
Hitchcock alleges the County both interfered with his protected rights and retaliated
1 MMBA is codified at Government Code section 3500 et seq.	MMBA is codified at Government Code section 3500 et seq.
PERB Decision No. 2155-M
January 18, 2011
County Counsel, for the County of Orange.
against him for engaging in protected conduct. With regard to the interference claim, the
Board agent found that Hitchcock did not have a right to participate in an arbitration
proceeding because the memorandum of understanding (MOU) which contained the arbitration
clause expired. Therefore, the Board agent concluded that the County's denial of arbitration
deny1ng h1m thP f"\t"\l"\A1"t11n1ty

did not constitute unlawful interference with a protected right. With regard to Hitchcock's
retaliation claim, the Board agent concluded that Hitchcock failed to establish the County's
denial
of
arbitration constituted an adverse action. In addition, the Board agent found that
Hitchcock failed to establish a nexus between his protected conduct and the alleged adverse
action. Finally, the Board agent found the employment termination allegation untimely filed.
did not constitute unlawful interference with a protected right. With regard to Hitchcock's
2.
Accordingly, the Board agent dismissed the charge for failure to state a prima facie case.
action. Finally, the Board agent found the employment termination allegation untimely filed
We have reviewed the entire record and find the warning and dismissal letters were
well-reasoned, adequately supported by the record and in accordance with applicable law.
Accordingly, the Board hereby adopts the warning and dismissal letters as the decision
of
the
Board itself, subject to the following brief discussion regarding Hitchcock's appeal.
We have reviewed the entire record and find the warning and dismissal letters were
3
Board itself, subject to the following brief discussion regarding Hitchcock's appeal."
well-reasoned, adequately supported by the record and in accordance with applicable law.
Accordingly, the Board hereby adopts the warning and dismissal letters as the decision of the
DISCUSSION	DISCUSSION
Interference	Interference
2
represented	Hitchcock alleges that the County interfered with his right to be represented according	Hitchcock alleges that the County interfered with his right to be 	according
to a grievance process contained in the MOU. The MOU, however, expired by its own termsto a grievance process contained in the MOU. The MOU, however, expired by its own terms
in June 2007. The Board agent found that Hitchcock failed to allege sufficient information to	
in June 2007. The Board agent found that Hitchcock failed to allege sufficient information to
conclude that the arbitration clause in the MOU continued in effect beyond the expiration
of	conclude that the arbitration clause in the MOU continued in effect beyond the expiration of
2
"I In the equitable tolling section
of
the dismissal letter, the Board agent noted that the
matter was not rendered timely by operation of Los Banos Unified School District (2009)
PERB Decision No. 2063 (Los Banos). Los Banos, however, did not involve equitable tolling.
Rather, the Board in Los Banos held that in cases involving terminations from employment in
retaliation for engaging in protected activities, the statute
of
limitations begins to run on the
date
of
actual termination, rather than the date of notification of the intent to terminate. 	In this
instant case, Hitchcock was terminated on January 28, 2007, almost fifteen months prior to the
filing of his charge. Accordingly, pursuant to Los Banos, the charge was not timely filed.
n the equitable tolling section of the dismissal letter, the Board agent noted that the
3 The Board does not adopt the references to Campbell Municipal Employees Assn.
v.
City
of
Campbell ( 1982) 131 Cal.App.3d 416 and San Leandro Police Officers Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d	Cal.App.3d 553 at p. 4 dismissal letter and p. 5 warning letter, as
support for the well-established discrimination test set forth in Novato Unified School District
( 1982) PERB Decision No. 210.
'The Board does not adopt the references to Campbell Municipal Employees Assn. v.
2
retaliation claim, the Board agent concluded that Hitchcock failed to establish the County's
denial of arbitration constituted an adverse action. In addition, the Board agent found that
Hitchcock failed to establish a nexus between his protected conduct and the alleged adverse
Accordingly, the Board agent dismissed the charge for failure to state a prima facie case.
matter was not rendered timely by operation of Los Banos Unified School District (2009)
PERB Decision No. 2063 (Los Banos). Los Banos, however, did not involve equitable tolling.
Rather, the Board in Los Banos held that in cases involving terminations from employment in
retaliation for engaging in protected activities, the statute of limitations begins to run on the
date of actual termination, rather than the date of notification of the intent to terminate. In this
instant case, Hitchcock was terminated on January 28, 2007, almost fifteen months prior to the
filing of his charge. Accordingly, pursuant to Los Banos, the charge was not timely filed.
City of Campbell (1982) 131 Cal.App.3d 416 and San Leandro Police Officers Assn. v. City of
San Leandro (1976) 55 	553 at p. 4 dismissal letter and p. 5 warning letter, as
support for the well-established discrimination test set forth in Novato Unified School District
(1982) PERB Decision No. 210.

3
the agreement. Based on this finding, the Board agent concluded that Hitchcock did not have a
right to participate in an arbitration pursuant to the expired MOU. Accordingly, the Board
protected	agent found that Hitchcock failed to establish the County interfered with Hitchcock's
rights and dismissed this allegation. We agree with the Board agent's analysis and find this
allegation was properly dismissed.
the agreement. Based on this finding, the Board agent concluded that Hitchcock did not have a
In Trustees
ofthe
California State University (1997) PERB Decision No. 1231-H
PERB explicitly found that an arbitration clause in a grievance process does not
continue in effect after the expiration
of
the contract except for disputes that:
In Trustees of the California State University (1997) PERB Decision No. 1231-H
(1) involve facts and occurrences that arose before expiration;
(2) involve post-expiration conduct that infringes on rights
accrued or vested under the agreement; or (3) under normal
principles
of
contract interpretation, survive the expiration
of
the
agreement.
(1) involve facts and occurrences that arose before expiration;
In his appeal, Hitchcock argues that since he served as president
of
his local SEIU
chapter prior to the expiration
of
the MOU, he satisfied the first exception set forth in the
Trustees case and, therefore, the arbitration clause in the MOU survived the expiration
of
the
agreement. Notwithstanding his service as president, however, Hitchcock's termination,
grievance filing, arbitration request and arbitration denial all occurred after the expiration
of
the MOU. Consequently, since none
of
the conduct that ailegediy constituted an unfair
practice occurred before the expiration
of
the conduct, the first exception was not met.
(Coachella Valley Federation a/Teachers, CFTIAFT (Kok) (1998) PERB Decision No. 1302.)
In his appeal, Hitchcock argues that since he served as president of his local SEIU
occurred	In addition, Hitchcock argues on appeal that since his protected conduct 	prior
to the expiration
of
the MOU, he accrued the right to arbitration pursuant to the MOU and,
therefore, he satisfied the second exception set forth in the Trustees case. However, the MOU
provided that discharges may be appealed directly to arbitration. Since Hitchcock was
In addition, Hitchcock argues on appeal that since his protected conduct occurred prior
3
right to participate in an arbitration pursuant to the expired MOU. Accordingly, the Board
agent found that Hitchcock failed to establish the County interfered with Hitchcock's protected
rights and dismissed this allegation. We agree with the Board agent's analysis and find this
allegation was properly dismissed.
(Trustees), PERB explicitly found that an arbitration clause in a grievance process does not	(11°ustees),
continue in effect after the expiration of the contract except for disputes that:
(2) involve post-expiration conduct that infringes on rights
accrued or vested under the agreement; or (3) under normal
principles of contract interpretation, survive the expiration of the
agreement.
chapter prior to the expiration of the MOU, he satisfied the first exception set forth in the
Trustees case and, therefore, the arbitration clause in the MOU survived the expiration of the
agreement. Notwithstanding his service as president, however, Hitchcock's termination,
grievance filing, arbitration request and arbitration denial all occurred after the expiration of
the MOU. Consequently, since none of the conduct that allegedly constituted an unfair
practice occurred before the expiration of the conduct, the first exception was not met.
(Coachella Valley Federation of Teachers, CFT/AFT (Kok) (1998) PERB Decision No. 1302.)
to the expiration of the MOU, he accrued the right to arbitration pursuant to the MOU and,
therefore, he satisfied the second exception set forth in the Trustees case. However, the MOU
provided that discharges may be appealed directly to arbitration. Since Hitchcock was

4
terminated after the MOU expired, his contractual right to arbitrate his termination never
accrued. Accordingly, the second exception in the Trustees case was not met.
terminated after the MOU expired, his contractual right to arbitrate his termination never
Because none
of
the exceptions in the Trustees case were met, Hitchcock did not have a
right to participate in an arbitration and, therefore, failed to establish the County's failure to
arbitrate his claim constituted unlawful interference with his protected rights.
Because none of the exceptions in the Trustees case were met, Hitchcock did not have a
ORDER	ORDER
The unfair practice charge in Case No. LA-CE-529-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
The unfair practice charge in Case No. LA-CE-529-M is hereby DISMISSED
Chair Dowdin Calvillo and Member Wesley joined in this Decision.	Chair Dowdin Calvillo and Member Wesley joined in this Decision.
4
accrued. Accordingly, the second exception in the Trustees case was not met.
right to participate in an arbitration and, therefore, failed to establish the County's failure to
arbitrate his claim constituted unlawful interference with his protected rights.
WITHOUT LEAVE TO AMEND.

STATE OF CALIFORNIA	STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
PE.R.B
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
October 15, 2009	October 15, 2009
Linda Albers, Attorney
27794 Hidden Trail Road
Laguna Hills, CA 92653
Linda Albers, Attorney
27794 Hidden Trail Road
Laguna Hills, CA 92653
Re: 	Kurt Hitchcock v. County of Orange
Unfair Practice Charge No. LA-CE-529-M
DISMISSAL LETTER
Re: 	Kurt Hitchcock v. County of Orange
Unfair Practice Charge No. LA-CE-529-M
DISMISSAL LETTER
Dear Ms. Albers:	Dear Ms. Albers:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 21, 2009. Kurt Hitchcock (Hitchcock or Charging Party)
alleges that the County of Orange (County or Respondent) violated sections 3502, 3502.1, and
3506 of the 	Act (MMBA or Act)
The above-referenced unfair practice charge was filed with the Public Employment Relations
1 by interfering with his ability to
participate in a grievance arbitration.
3506 of the Meyers-Milias-Brown Act (MMBA or Act)' by interfering with his ability to
Board (PERB or Board) on April 21, 2009. Kurt Hitchcock (Hitchcock or Charging Party)
alleges that the County of Orange (County or Respondent) violated sections 3502, 3502.1, and
Meyers-Milias-Brown
participate in a grievance arbitration.
Charging Party was informed in the attached Warning Letter dated September 17, 2009, that
the above-referenced charge did not state a prima facie case. 	You were advised that, ifthere
were any factual inaccuracies or additional facts that 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 September 29, 2009, the
charge would be dismissed. 	You received an extension of time until October 12, 2009 to file
an amended charge. On that day, the Amended Charge was filed.
Charging Party was informed in the attached Warning Letter dated September 17, 2009, 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 that 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 September 29, 2009, the
charge would be dismissed. You received an extension of time until October 12, 2009 to file
an amended charge. On that day, the Amended Charge was filed.
In the Amended Charge, Hitchcock corrects certain factual representations made in the
September 17, 2009 Warning Letter. According to the Amended Charge, Hitchcock was the
president of the local chapter of Service Employees International Union (SEIU) that
represented the employees in Hitchcock's bargaining unit before it was decertified on
September 26, 2007 and replaced by the Alliance of Orange County Workers (AOCW).
In the Amended Charge, Hitchcock corrects certain factual representations made in the
2
September 26, 2007 and replaced by the Alliance of Orange County Workers (AOCW).
September 17, 2009 Warning Letter. According to the Amended Charge, Hitchcock was the
president of the local chapter of Service Employees International Union (SEIU) that
represented the employees in Hitchcock's bargaining unit before it was decertified on
On December 27, 2007, Hitchcock was involved in an accident at work that "occurred at least
in part because of supervisor failure."
On December 27, 2007, Hitchcock was involved in an accident at work that "occurred at least3 After the accident, Hitchcock's supervisor, Jeff	in part because of supervisor failure." After the accident, Hitchcock's supervisor, Jeff
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 w
The MMBA is codified at Government Code section 3500 et seq. The text of the
www.perb.ca.gov.	ww.perb.ca.gov.
2 The September 17, 2009 Warning Letter had misrepresented that Hitchcock served as
SEIU's vice president.
The September 17, 2009 Warning Letter had misrepresented that Hitchcock served as
3 In the Amended Charge, Hitchcock sometimes alleges that this incident occurred on
December 27, 2007 and at other times on December 27, 2008. Given the allegations in the
In the Amended Charge, Hitchcock sometimes alleges that this incident occurred on
MMBA and the Board's Regulations may be found on the Internet at
SEIU's vice president.
December 27, 2007 and at other times on December 27, 2008. Given the allegations in the

LA-CE-529-M
October 15, 2009
Page 2
LA-CE-529-M
October 15, 2009
Page 2
Southern, shouted at Hitchcock and did not permit Hitchcock to explain his account of the
events.
Southern, shouted at Hitchcock and did not permit Hitchcock to explain his account of the	4
On January 28, 2008, the County terminated Hitchcock's employment. Hitchcock filed a
grievance over his termination and the parties scheduled an arbitration for November 5, 2008.
When the parties appeared for the November 5, 2008 arbitration, the County informed
Hitchcock that it would not participate in the arbitration because Hitchcock's representative
was from SEIU and not from AOCW. The County then cancelled the arbitration. The County
is apparently willing to schedule a different arbitration date, but has not done so as of the date
of the amended charge.
On January 28, 2008, the County terminated Hitchcock's employment. Hitchcock filed a
5
I. 	Interference	I.
Hitchcock alleges that the County interfered with his right to be represented according to a
grievance process contained in a Memorandum of Understanding (MOU) between the County
and SEIU even though the MOU expired by its own terms in June 2007 and SEIU had been
decertified as the exclusive representative in September 2007. As explained in the September
17, 2009 Warning Letter, PERB has explicitly found that the arbitration clause in a grievance
process does not continue in effect after the expiration of the contract except for disputes that:
Hitchcock alleges that the County interfered with his right to be represented according to a
( 1) involve facts or occurrences that arose before expiration; (2)
involve post-expiration conduct that infringes on rights that
accrued or vested under the agreement; or (3) under normal
principles of contract interpretation, survive the expiration of the
agreement.
(1) involve facts or occurrences that arose before expiration; (2)
(State of California, Department of Youth Authority (l 992) PERB Decision No. 962-S; see also
Trustees of the California State University (1997) PERB Decision No. 1231-H.)
(State of California, Department of Youth Authority (1992) PERB Decision No. 962-S; see also
6
charge, it makes logical sense that the incident occurred in 2007 rather than 2008. For
example, if the incident occurred on December 27, 2008, then the accident would have
occurred after both Hitchcock's termination and after he filed his grievance even though the
accident precipitated each of these events.
charge, it makes logical sense that the incident occurred in 2007 rather than 2008. For
example, if the incident occurred on December 27, 2008, then the accident would have
occurred after both Hitchcock's termination and after he filed his grievance even though the
accident precipitated each of these events.
Trustees of the California State University (1997) PERB Decision No. 1231-H.)
4 The September 17, 2009 Warning Letter described this incident generally as "a loud
verbal altercation."
The September 17, 2009 Warning Letter described this incident generally as "a loud
5 The September 1 7, 2009 Warning Letter misrepresented that the County rescheduled
the arbitration for October 2009.
The September 17, 2009 Warning Letter misrepresented that the County rescheduled
6 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
When interpreting the MMBA, it is appropriate to take guidance from cases
events."
grievance over his termination and the parties scheduled an arbitration for November 5, 2008.
When the parties appeared for the November 5, 2008 arbitration, the County informed
Hitchcock that it would not participate in the arbitration because Hitchcock's representative
was from SEIU and not from AOCW. The County then cancelled the arbitration. The County
is apparently willing to schedule a different arbitration date, but has not done so as of the date
of the amended charge."
Interference
grievance process contained in a Memorandum of Understanding (MOU) between the County
and SEIU even though the MOU expired by its own terms in June 2007 and SEIU had been
decertified as the exclusive representative in September 2007. As explained in the September
17, 2009 Warning Letter, PERB has explicitly found that the arbitration clause in a grievance
process does not continue in effect after the expiration of the contract except for disputes that:
involve post-expiration conduct that infringes on rights that
accrued or vested under the agreement; or (3) under normal
principles of contract interpretation, survive the expiration of the
agreement.
verbal altercation."
the arbitration for October 2009.
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

LA-CE-529-M
October 15, 2009
Page 3
Hitchcock filed a grievance over his termination, which occurred on January 28, 2008, more
than six months after the SEIU MOU had expired. As explained in more detail in the
September 17, 2009 Warning Letter, Hitchcock has not provided sufficient information to
conclude that the arbitration clause in the expired MOU should continue in effect. Therefore,
Hitchcock does not establish that he was entitled to participate in an arbitration pursuant to the
expired MOU.
Hitchcock filed a grievance over his termination, which occurred on January 28, 2008, more
Hitchcock argues that the County should be required to apply the grievance arbitration
procedure contained in the expired SEIU MOU because the County is prohibited from
changing the terms and conditions
of
employment without first negotiating those changes with
the exclusive representative. This argument ignores the fact that, as explained above, PERB
regarding	has a well-established rule 	when an arbitration clause will survive the expiration
of
a
of
Youth Authority, supra, PERB	negotiated agreement. 	(See State
of
California, Department
Decision No. 962-S; see also Trustees
of
the California State University, supra, PERB
Decision No. 1231-H.) These Board decisions relied, in part, on United States Supreme Court
precedent which also expressly found that arbitration clauses only continue in effect after the
expiration
of
a contract under limited circumstances. (Litton Business Systems, Inc.
v.
NLRB
(1991)
501
U.S. 190, 209.) Here, Hitchcock does not establish that the MMBA protects his
right to participate in an arbitration pursuant to the SEIU MOU.
Hitchcock argues that the County should be required to apply the grievance arbitration
7 Thus, Hitchcock does not
establish that the County's actions interfered with a protected right and this allegation is
dismissed.
right to participate in an arbitration pursuant to the SEIU MOU.' Thus, Hitchcock does not
II. 	Retaliation	II. 	Retaliation
Hitchcock also alleges that the County retaliated against him because he served
as
president of
SEIU. 	Specifically, Hitchcock alleges that his termination on January 28, 2008, the delay in
scheduling the arbitration, and the requirement that Hitchcock be represented by AOCW in the
arbitration were all the result
of
unlawful discrimination by the County.
Hitchcock also alleges that the County retaliated against him because he served as president of
As explained in the September 17, 2009 Warning Letter, to demonstrate that an employer
discriminated or retaliated against an employee in violation of Government Code section 3506
and PERB Regulation 32603(a),
As explained in the September 17, 2009 Warning Letter, to demonstrate that an employer
8 the 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
and PERB Regulation 32603(a)," the charging party must show that: (1) the employee
discriminated or retaliated against an employee in violation of Government Code section 3506
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
'TTo the extent that Hitchcock alleges that the County unilaterally changed a policy
within the scope of representation, Hitchcock-as either an individual employee or as a
representative of a non-exclusive representative-does not have standing to raise this claim.
PERB Decision No. 1748.) An	(See Alum Rock Union Elementary School District (2005)
employer's duty to bargain in good faith is owed only to the exclusive representative. 	(Ibid.)
o the extent that Hitchcock alleges that the County unilaterally changed a policy
within the scope of representation, Hitchcock-as either an individual employee or as a
representative of a non-exclusive representative-does not have standing to raise this claim.
(See Alum Rock Union Elementary School District (2005) PERB Decision No. 1748.) An
employer's duty to bargain in good faith is owed only to the exclusive representative. (Ibid.)
LA-CE-529-M
October 15, 2009
Page 3
8 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
PERB's Regulations are codified at California Code of Regulations, title 8, section
than six months after the SEIU MOU had expired. As explained in more detail in the
September 17, 2009 Warning Letter, Hitchcock has not provided sufficient information to
conclude that the arbitration clause in the expired MOU should continue in effect. Therefore,
Hitchcock does not establish that he was entitled to participate in an arbitration pursuant to the
expired MOU.
procedure contained in the expired SEIU MOU because the County is prohibited from
changing the terms and conditions of employment without first negotiating those changes with
the exclusive representative. This argument ignores the fact that, as explained above, PERB
has a well-established rule regarding when an arbitration clause will survive the expiration of a
negotiated agreement. (See State of California, Department of Youth Authority, supra, PERB
Decision No. 962-S; see also Trustees of the California State University, supra, PERB
Decision No. 1231-H.) These Board decisions relied, in part, on United States Supreme Court
precedent which also expressly found that arbitration clauses only continue in effect after the
expiration of a contract under limited circumstances. (Litton Business Systems, Inc. v. NLRB
(1991) 501 U.S. 190, 209.) Here, Hitchcock does not establish that the MMBA protects his
establish that the County's actions interfered with a protected right and this allegation is
dismissed.
SEIU. Specifically, Hitchcock alleges that his termination on January 28, 2008, the delay in
scheduling the arbitration, and the requirement that Hitchcock be represented by AOCW in the
arbitration were all the result of unlawful discrimination by the County.
31001 et seq.

LA-CE-529-M
October 15, 2009
Page 4
Decision No. 210 (Novato); Campbell Municipal Employees Assn. v. City a/Campbell (1982)
131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Assn. v. City a/San Leandro
(1976) 55 Cal.App.3d 553 (San Leandro).) In determining whether evidence of adverse action
is established, the Board uses an objective test and will not rely upon the subjective reactions
of the employee. (Palo Verde Unified School District (1988) PERB Decision No. 689.) In a
later decision, the Board further explained that:
Decision No. 210 (Novato); Campbell Municipal Employees Assn. v. City of Campbell (1982)
131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Assn. v. City of San Leandro
(1976) 55 Cal.App.3d 553 (San Leandro).) In determining whether evidence of adverse action
is established, the Board uses an objective test and will not rely upon the subjective reactions
of the employee. (Palo Verde Unified School District (1988) PERB Decision No. 689.) 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.
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.)
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
A. 	Termination Allegation	A. 	Termination Allegation
Hitchcock also alleges that the County terminated him because of his protected activity. 	As
explained in the September 17, 2009 Warning Letter, PERB is precluded from issuing a
complaint regarding allegations occurring more than six months prior to filing the charge.
(PERB Regulation 32615(a)(5); Coachella Valley lvfosquito and Vector Control District v.
PERB (2005) 35 Cal.4th 1072.) In this case, the charge was filed on April 21, 2009, meaning
that the statutory period extends back until October 21, 2008. Hitchcock does not establish
that the allegations regarding his January 28, 2008 termination were filed within PERB 's six
month statute of limitations.
Hitchcock also alleges that the County terminated him because of his protected activity. As
explained in the September 17, 2009 Warning Letter, PERB is precluded from issuing a
complaint regarding allegations occurring more than six months prior to filing the charge.
(PERB Regulation 32615(a)(5); Coachella Valley Mosquito and Vector Control District v.
PERB (2005) 35 Cal.4th 1072.) In this case, the charge was filed on April 21, 2009, meaning
that the statutory period extends back until October 21, 2008. Hitchcock does not establish
that the allegations regarding his January 28, 2008 termination were filed within PERB's six
month statute of limitations.
1 . 	Continuing Violation Doctrine	Continuing Violation Doctrine1, .
Hitchcock contends that the allegations regarding his termination should not be dismissed as
untimely because of the continuing violation doctrine. Under this rule, "a violation \Vi thin the
statute of limitations period may 'revive' an earlier violation of the same type that occurred
outside of the limitations period." (Trustees of the California State University (Kyrias) (2009)
PERB Decision No. 2038-H; Compton Community College District (1991) PERB Decision
No. 915.) The violation within the statute of limitations period must, however, constitute an
independent violation without reference to the earlier violations. (Trustees of the California
State University (Kyrias), supra, PERB Decision No. 2038-H, citing North Orange County
Community College District (1999) PERB Decision No. 1342.)
Hitchcock contends that the allegations regarding his termination should not be dismissed as
untimely because of the continuing violation doctrine. Under this rule, "a violation within the
statute of limitations period may 'revive' an earlier violation of the same type that occurred
outside of the limitations period." (Trustees of the California State University (Kyrias) (2009)
PERB Decision No. 2038-H; Compton Community College District (1991) PERB Decision
No. 915.) The violation within the statute of limitations period must, however, constitute an
independent violation without reference to the earlier violations. (Trustees of the California
State University (Kyrias), supra, PERB Decision No. 2038-H, citing North Orange County
Community College District (1999) PERB Decision No. 1342.)
In State of California (Departments of Personnel Administration, Banking, Transportation,
Water Resources and Board of Equalization) (1998) PERB Decision No. 1279-S, an employer
enacted a policy to block certain employees from using e-mail, computers, or the fax machine
for union related business. 	Even though the policy was first applied outside of the statutory
period, the employer continued to deny that equipment to the employees well into the statutory
period. The Board held the employer's actions constituted a continuing violation because each
In State of California (Departments of Personnel Administration, Banking, Transportation,
Water Resources and Board of Equalization) (1998) PERB Decision No. 1279-S, an employer
enacted a policy to block certain employees from using e-mail, computers, or the fax machine
for union related business. Even though the policy was first applied outside of the statutory
period, the employer continued to deny that equipment to the employees well into the statutory
period. The Board held the employer's actions constituted a continuing violation because each
LA-CE-529-M
October 15, 2009
Page 4

LA-CE-529-M
October 15, 2009
Page 5
time the policy was applied, the same actions by the employer interfered with the employees'
rights.
time the policy was applied, the same actions by the employer interfered with the employees'
The Board reached the opposite conclusion under different facts in Sacramento City Teachers
Association, supra, PERB Decision No. 1959. In that case, the charging party alleged that
several different actions by her union, such as the failure to return telephone calls, the failure to
inform her of a grievance meeting, and misrepresenting the events of a grievance meeting
constituted breaches of the duty of fair representation. The union's alleged misrepresentation
occurred outside of the statutory period. Even though all the allegations concerned the duty of
fair representation, the Board found no continuing violation because the alleged
misrepresentation was not of the same "type" as the charging party's other, timely allegations.
The Board reached the opposite conclusion under different facts in Sacramento City Teachers
Association, supra, PERB Decision No. 1959. In that case, the charging party alleged that
several different actions by her union, such as the failure to return telephone calls, the failure to
inform her of a grievance meeting, and misrepresenting the events of a grievance meeting
constituted breaches of the duty of fair representation. The union's alleged misrepresentation
occurred outside of the statutory period. Even though all the allegations concerned the duty of
fair representation, the Board found no continuing violation because the alleged
misrepresentation was not of the same "type" as the charging party's other, timely allegations.
In this case, Hitchcock contends that allegations related to his termination should be
considered timely under the continuing violation doctrine due to the County's subsequent
conduct with respect to arbitrating his grievance. Hitchcock does not demonstrate that the
County's decision to terminate him qualifies as "the same type" of conduct as the County's
decision to either postpone Hitchcock's arbitration or to restrict who Hitchcock may select as a
representative at the arbitration. Accordingly, Hitchcock does not establish that the County's
actions constitute a continuing violation.
In this case, Hitchcock contends that allegations related to his termination should be
9
actions constitute a continuing violation."
considered timely under the continuing violation doctrine due to the County's subsequent
conduct with respect to arbitrating his grievance. Hitchcock does not demonstrate that the
County's decision to terminate him qualifies as "the same type" of conduct as the County's
decision to either postpone Hitchcock's arbitration or to restrict who Hitchcock may select as a
representative at the arbitration. Accordingly, Hitchcock does not establish that the County's
2. 	Equitable Tolling	2. 	Equitable Tolling
Because Hitchcock filed a grievance regarding his termination, it is appropriate to address
whether the statute of limitations should be tolled during the time that Hitchcock has been
participating in the grievance process. In Solano County Fair Association (2009) PERB
Decision No. 2035-M, the Board recognized the doctrine of equitable tolling under the
MMBA. 	In that case, the Board found that the statute of limitations:
Because Hitchcock filed a grievance regarding his termination, it is appropriate to address
whether the statute of limitations should be tolled during the time that Hitchcock has been
participating in the grievance process. In Solano County Fair Association (2009) PERB
Decision No. 2035-M, the Board recognized the doctrine of equitable tolling under the
MMBA. In that case, the Board found that the statute of limitations:
"is tolled during the period of time the parties are utilizing a non-
binding dispute resolution procedure if: (1) the procedure is
contained in a written agreement negotiated by the parties; the
procedure is being used to resolve the same dispute that is the
subject of the unfair practice charge; (3) the charging party
reasonably and in good faith pursues the procedure; and (4)
"is tolled during the period of time the parties are utilizing a non-
binding dispute resolution procedure if: (1) the procedure is
contained in a written agreement negotiated by the parties; the
procedure is being used to resolve the same dispute that is the
subject of the unfair practice charge; (3) the charging party
reasonably and in good faith pursues the procedure; and (4)
" Hitchcock argues that the standard for a continuing violation set forth in Richards v.
CH2M Hill, Inc. (2001) 26 Cal.4th 798 should apply in this case. In that case, the court found
that the continuing violation doctrine should apply to cases arising under the Fair Employment
and Housing Act where: 	(1) the unlawful actions at issue are similar in kind; (2) the violations
occurred with a degree of frequency: and (3) the violations had not achieved a degree of
permanence. (Id. at 802.) PERB has not adopted this analysis for the continuing violation
doctrine. 	However, even under this standard, Hitchcock has not demonstrated that a
continuing violation exists. Namely, Hitchcock does not demonstrate that his termination was
"similar to" the County's later conduct regarding his grievance.
Hitchcock argues that the standard for a continuing violation set forth in Richards v.
CH2M Hill, Inc. (2001) 26 Cal.4th 798 should apply in this case. In that case, the court found
that the continuing violation doctrine should apply to cases arising under the Fair Employment
and Housing Act where: (1) the unlawful actions at issue are similar in kind; (2) the violations
occurred with a degree of frequency: and (3) the violations had not achieved a degree of
permanence. (Id. at 802.) PERB has not adopted this analysis for the continuing violation
doctrine. However, even under this standard, Hitchcock has not demonstrated that a
continuing violation exists. Namely, Hitchcock does not demonstrate that his termination was
"similar to" the County's later conduct regarding his grievance.
LA-CE-529-M
October 15, 2009
Page 5
rights.

LA-CE-529-M
October 15, 2009
Page 6
LA-CE-529-M
October 15, 2009
Page 6
purpose	tolling does not frustrate the
	of
the statutory limitation
period by causing surprise or prejudice to the respondent."
tolling does not frustrate the purpose of the statutory limitation
(Solano County Fair Association, supra, PERB Decision No. 2035-M, quoting Long Beach
Community College District (2009) PERB Decision No. 2002.)
(Solano County Fair Association, supra, PERB Decision No. 2035-M, quoting Long Beach
In this case, as discussed above, Hitchcock does not establish that the grievance procedure
used by Hitchcock was contained in a written agreement. 	Thus, Hitchcock does not
demonstrate that the doctrine
of
equitable tolling applies. Therefore, because Hitchcock's
termination occurred outside
of
the statutory period and no valid exception applies, this
allegation is dismissed as untimely.
In this case, as discussed above, Hitchcock does not establish that the grievance procedure
This case is also distinguishable from the facts considered by the Board in Los Banos Unified
School District (2009) PERB Decision No. 2063 (Los Banos). In that case, the Board found a
retaliation allegation timely, even though filed more than six months after notice
of
termination
had been given, because the charge was filed within six months
of
the date the Commission on
Professional Competence issued its decision dismissing the employee. (Ibid.) In the
Los
Banos case, the employee was exercising his statutory right to a hearing before the
Commission on Professional Competence. (Ibid.) No similar circumstances have been
demonstrated here, such that the date
of
the notice
of
termination would not serve to trigger the
start
of
the six-month statute
of
limitations period. As discussed above, Hitchcock has not
alleged sufficient facts to establish that he was entitled to a hearing on his termination under
the MMBA.
This case is also distinguishable from the facts considered by the Board in Los Banos Unified
B. 	The County's Conduct During Hitchcock's Grievance	B. 	The County's Conduct During Hitchcock's Grievance
Hitchcock also alleges that the County retaliated against him by postponing the arbitration
of
his grievance and by refusing to allow him to select an SEIU representative at the arbitration.
As already discussed above, Hitchcock does not demonstrate that he was entitled to participate
Valley Unified	in an arbitration with the County under the expired SEIU MOU. In Coachella
School District (1998) PERB Decision No. 1303, the Board found that it
\Vas
not an adverse
action for an employer to refuse to arbitrate a grievance, in part, because the contract
containing the grievance process had already expired. Similarly in this case, Hitchcock does
not establish that a reasonable person would find a delay or limit to a grievance process he or
she was not entitled to participate in to be adverse to employment.
Hitchcock also alleges that the County retaliated against him by postponing the arbitration of
arbitrate	Moreover, even
if
Hitchcock was entitled to 	his grievance under the expired MOU, he
does not show that the County's actions adversely affected his ability to do so. The County
has agreed to arbitrate his grievance and has agreed to allow Hitchcock to be represented by
his attorney. 	In a similar context, the Board has found that an employee organization did not
violate the MMBA when it took four years to process an employee's grievance, but preserved
all of its rights to advance the grievance to arbitration. (Service Employees International
Moreover, even if Hitchcock was entitled to arbitrate his grievance under the expired MOU, he
period by causing surprise or prejudice to the respondent."
Community College District (2009) PERB Decision No. 2002.)
used by Hitchcock was contained in a written agreement. Thus, Hitchcock does not
demonstrate that the doctrine of equitable tolling applies. Therefore, because Hitchcock's
termination occurred outside of the statutory period and no valid exception applies, this
allegation is dismissed as untimely.
School District (2009) PERB Decision No. 2063 (Los Banos). In that case, the Board found a
retaliation allegation timely, even though filed more than six months after notice of termination
had been given, because the charge was filed within six months of the date the Commission on
Professional Competence issued its decision dismissing the employee. (Ibid.) In the Los
Banos case, the employee was exercising his statutory right to a hearing before the
Commission on Professional Competence. (Ibid.) No similar circumstances have been
demonstrated here, such that the date of the notice of termination would not serve to trigger the
start of the six-month statute of limitations period. As discussed above, Hitchcock has not
alleged sufficient facts to establish that he was entitled to a hearing on his termination under
the MMBA.
his grievance and by refusing to allow him to select an SEIU representative at the arbitration.
As already discussed above, Hitchcock does not demonstrate that he was entitled to participate
in an arbitration with the County under the expired SEIU MOU. In Coachella Valley Unified
School District (1998) PERB Decision No. 1303, the Board found that it was not an adverse
action for an employer to refuse to arbitrate a grievance, in part, because the contract
containing the grievance process had already expired. Similarly in this case, Hitchcock does
not establish that a reasonable person would find a delay or limit to a grievance process he or
she was not entitled to participate in to be adverse to employment.
does not show that the County's actions adversely affected his ability to do so. The County
has agreed to arbitrate his grievance and has agreed to allow Hitchcock to be represented by
his attorney. In a similar context, the Board has found that an employee organization did not
violate the MMBA when it took four years to process an employee's grievance, but preserved
all of its rights to advance the grievance to arbitration. (Service Employees International

LA-CE-529-M
October 15, 2009
Page 7
10
Union, Local 250 (Hessong) (2004) PERB Decision No. 1693-M.) 	Hitchcock does not
establish that the County's actions adversely affected his ability to either arbitrate the
grievance or to be represented at the grievance. 	Therefore, he does not demonstrate that the
County took adverse action against him and these allegations are dismissed.
Union, Local 250 (Hessong) (2004) PERB Decision No. 1693-M.)" Hitchcock does not
Right to Appeal	Right to Appeal
Pursuant to PERB Regulations, Charging Party 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. 	(Cal. Code Regs, tit. 8, § 32635, subd. (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.
Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal of the
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (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 PERB 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. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
A document is considered "filed" when actually received during a regular PERB business day.
The Board's address is:	The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
Public Employment Relations Board
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. (Cal. Code Regs, tit. 8, § 32635, subd. (b).)
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. (Cal. Code Regs, tit. 8, $ 32635, subd. (b).)
In In that case, the Board considered whether the employee organization breached its
duty to represent its members equally and fairly. 	The Board found no violation because, like
here, the delays did not interfere with the employee's ability to arbitrate the grievance.
(Service Employees International Union, Local 250 (Hessong), supra, PERB Decision
No. 1693-M.)
that case, the Board considered whether the employee organization breached its
duty to represent its members equally and fairly. The Board found no violation because, like
here, the delays did not interfere with the employee's ability to arbitrate the grievance.
(Service Employees International Union, Local 250 (Hessong), supra, PERB Decision
No. 1693-M.)
LA-CE-529-M
October 15, 2009
Page 7
establish that the County's actions adversely affected his ability to either arbitrate the
grievance or to be represented at the grievance. Therefore, he does not demonstrate that the
County took adverse action against him and these allegations are dismissed.
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, $ 32635, subd. (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.
(Cal. Code Regs, tit. 8, $5 32135, subd. (a) and 32130; see also Gov. Code, $ 11020, subd. (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 PERB 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. (Cal. Code
Regs, tit. 8, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, $$ 32090 and
32130.)
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960

LA-CE-529-M
October 15, 2009
Page 8
Service	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 Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document 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 concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
All documents authorized to be filed herein must also be "served" upon all parties to the
Extension
of
Time	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
position
of
	filing the document. The request must indicate good cause for and,
if
known, the
each other party regarding the extension, and shall be accompanied by
proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)
A request for an extension of time, in which to file a document with the Board itself, must be
Final Date	Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,	Sincerely,
TAMI R. BOGERT
General Counsel
TAMI R. BOGERT
General Counsel
By .
Eric J. Cu
Regional Attorney
By~
EricJ.t
Regional Attorney
Attachment	Attachment
cc: Mark R. Howe	cc: Mark R. Howe
LA-CE-529-M
October 15, 2009
Page 8
7
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $ 32140 for the required
contents.) The document 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 concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, $ 32135, subd. (c).)
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. (Cal. Code Regs, tit. 8, $ 32132.)

STATE OF CALIFORNIA	STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
.._.o'lt1,EIH
RE(4r,
r.,,,.e
~~
·c,,..._\fo9:--~
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
September 17, 2009	September 17, 2009
Linda Albers
The Law Offices
of
Linda
A.
Albers
27794 Hidden Trail Road
Laguna Hills, CA 92653
Linda Albers
The Law Offices of Linda A. Albers
27794 Hidden Trail Road
Laguna Hills, CA 92653
Re: 	Kurt Hitchcock
v.
County
of
Orange
Unfair Practice Charge No. LA-CE-529-M
WARNING LETTER
Re: 	Kurt Hitchcock v. County of Orange
Unfair Practice Charge No. LA-CE-529-M
WARNING LETTER
Dear Ms. Albers:	Dear Ms. Albers:
============,
filed	The above-referenced unfair practice charge was filed with the Public Employment Relations	The above-referenced unfair practice charge was 	with the Public Employment Relations
Charging Party)	Board (PERB or Board) on April 21, 2009. Kurt Hitchcock (Hitchcock or Charging Party)	Board (PERB or Board) on April 21, 2009. Kurt Hitchcock (Hitchcock or
alleges that the County
of
Orange (County or Respondent) violated sections 3502, 3502.1, and	alleges that the County of Orange (County or Respondent) violated sections 3502, 3502.1, and
3506
of
the Meyers-Milias-Brown Act (MMBA or Act) 1 by interfering with his ability to
participate in a grievance arbitration.
the	Prior to January 2008, Hitchcock was employed at 	County as a Landfill Equipment
Operator
II
for
18
years. This job classification, among others,
is
in a bargaining unit that was
exclusively represented by the Service Employees International Union (SEIU) until SEIU was
decertified on September 26, 2007. At that time, the Alliance
of
Orange County Workers
(AOCW) was selected as the exclusive representative
of
the bargaining unit in question. 	At a
time not specified by Hitchcock, Hitchcock served as vice president
of
SEIU. Shortly after
AOCW was certified, it began negotiations with the County over a Memorandum
of
Understanding (MOU) concerning the terms and conditions
of
employment. The MOU in
place between the County and SEIU expired by its own terms in June 2007.
Prior to January 2008, Hitchcock was employed at the County as a Landfill Equipment
On or around December 27, 2007, Hitchcock was involved in an accident at work. At the time
of
the accident, Hitchcock and his supervisor were involved in a loud verbal altercation. 	On
January 28, 2008, the County terminated Hitchcock's employment because
of
his role in the
December 27, 2007 accident. At a time not specified by Hitchcock, he filed a grievance over
his termination. Hitchcock and the County agreed to advance the grievance to arbitration. The
arbitration was scheduled for November 5, 2008.
On or around December 27, 2007, Hitchcock was involved in an accident at work. At the time
an	In June 2008, the County and AOCW each ratified an MOU concerning the terms and	In June 2008, the County and AOCW each ratified 	MOU concerning the terms and
conditions of employment for the bargaining unit in question. This MOU contains a grievance	conditions of employment for the bargaining unit in question. This MOU contains a grievance
process that states, in Article X, Section 4(A), "An employee may represent himself or herself	process that states, in Article X, Section 4(A), "An employee may represent himself or herself
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 wwww.perb.ca.gov.	ww.perb.ca.gov.
The MMBA is codified at Government Code section 3500 et seq. The text of the
3506 of the Meyers-Milias-Brown Act (MMBA or Act)' by interfering with his ability to
participate in a grievance arbitration.
Operator II for 18 years. This job classification, among others, is in a bargaining unit that was
exclusively represented by the Service Employees International Union (SEIU) until SEIU was
decertified on September 26, 2007. At that time, the Alliance of Orange County Workers
(AOCW) was selected as the exclusive representative of the bargaining unit in question. At a
time not specified by Hitchcock, Hitchcock served as vice president of SEIU. Shortly after
AOCW was certified, it began negotiations with the County over a Memorandum of
Understanding (MOU) concerning the terms and conditions of employment. The MOU in
place between the County and SEIU expired by its own terms in June 2007.
of the accident, Hitchcock and his supervisor were involved in a loud verbal altercation. On
January 28, 2008, the County terminated Hitchcock's employment because of his role in the
December 27, 2007 accident. At a time not specified by Hitchcock, he filed a grievance over
his termination. Hitchcock and the County agreed to advance the grievance to arbitration. The
arbitration was scheduled for November 5, 2008.
MMBA and the Board's Regulations may be found on the Internet at

LA-CE-529-M
September 17, 2009
Page 2
LA-CE-529-M
September 17, 2009
Page 2
or may be represented by the Union in the formal grievance/appeal procedure." Prior to that,
in February 2008, the County had imposed certain terms and conditions
of
employment
on
the
bargaining unit. The parties do not specify whether the imposed terms included some sort
of
grievance procedure.
or may be represented by the Union in the formal grievance/appeal procedure." Prior to that,
appeared	On November
5,
2008, Hitchcock and the County 	at the agreed upon location for the
arbitration
of
his grievance. However, the County would not agree to participate in the
arbitration because Hitchcock had brought a representative from SEIU, as opposed to AOCW,
to represent him in the arbitration. The County stated that it would proceed with the arbitration
if
Hitchcock agreed to be represented by AOCW. 	Hitchcock would not agree to this
arrangement and the arbitration was postponed so that Hitchcock could retain a private
attorney. Ultimately, the arbitration was rescheduled for October 2009, though Hitchcock
wanted an earlier date. Prior to the November 5, 2008 meeting, Hitchcock had informed the
County through correspondence that he intended to have an SEIU representative assist
him
in
the arbitration.
On November 5, 2008, Hitchcock and the County appeared at the agreed upon location for the
Discussion:	Discussion:
PERB Regulation 32615(a)(5)	PERB Regulation 32615(a)(5)" requires, inter alia, that an unfair practice charge include a	2 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."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State a/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.)
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the. alleged unfair practice occurred no more than six months
prior to the filing
of
the charge. (Los Angeles Unified School District (2007) PERB Decision
is prohibited	No. 1929; City a/Santa Barbara (2004) PERB Decision No. 1628-M.) 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. ( Coachella Valley Mosquito
and Vector Control District
v.
Public Employment Relations Board (2005) 35 Cal.4th I 072.)
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's burden also includes alleging facts showing that the unfair practice
I. 	Interference	Interference
Hitchcock alleges that the County interfered with his right to be represented by SEIU at his
arbitration hearing. 	The test for whether a respondent has interfered with the rights of
Hitchcock alleges that the County interfered with his right to be represented by SEIU at his
2 PERB Regulations are codified at California Code of Regulations, title 8, section
3100 l et seq.
in February 2008, the County had imposed certain terms and conditions of employment on the
bargaining unit. The parties do not specify whether the imposed terms included some sort of
grievance procedure.
arbitration of his grievance. However, the County would not agree to participate in the
arbitration because Hitchcock had brought a representative from SEIU, as opposed to AOCW,
to represent him in the arbitration. The County stated that it would proceed with the arbitration
if Hitchcock agreed to be represented by AOCW. Hitchcock would not agree to this
arrangement and the arbitration was postponed so that Hitchcock could retain a private
attorney. Ultimately, the arbitration was rescheduled for October 2009, though Hitchcock
wanted an earlier date. Prior to the November 5, 2008 meeting, Hitchcock had informed the
County through correspondence that he intended to have an SEIU representative assist him in
the arbitration.
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.)
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) 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. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
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.)
arbitration hearing. The test for whether a respondent has interfered with the rights of
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-529-M
September 17, 2009
Page 3
employees under the MMBA does not require that unlawful motive be established, only that at
least slight harm to employee rights results from the conduct. The courts have described the
standard as follows:
employees under the MMBA does not require that unlawful motive be established, only that at
All [a charging party] must prove to establish an interference
violation of section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise of those activities, and (3) that employer's conduct was
not justified by legitimate business reasons.
All [a charging party] must prove to establish an interference
(Public Employees Association of Tulare County, Inc. v. Board of Supervisors of Tulare
County (1985) 167 Cal.App.3d 797, 807.) Under the above-described test, a violation may
only be found if the MMBA provides the claimed rights. (Ibid.; Los Rios Community College
District (1998) PERB Decision No. 1274; State of California (Department of Developmental
Services) (1983) PERB Decision No. 344-S.)
(Public Employees Association of Tulare County, Inc. v. Board of Supervisors of Tulare
County (1985) 167 Cal.App.3d 797, 807.) Under the above-described test, a violation may
only be found if the MMBA provides the claimed rights. (Ibid.; Los Rios Community College
District (1998) PERB Decision No. 1274; State of California (Department of Developmental
Services) (1983) PERB Decision No. 344-S.)
The Board has previously held that the filing and processing of grievances under a negotiated
agreement constitutes protected activity under the MMBA. (MMBA, § 3502; City of Modesto
(2008) PERB Decision No. 1994-M; City of Long Beach (2008) PERB Decision No. 1977-M.)
The Board has also held, however, that the protected right of an individual employee to pursue
contractual grievances did not extend to allowing the employee to be represented by an
employee organization that is not the exclusive representative and is not a party to the contract.
(Los Rios Community College District (1998) PERB Decision No. 1274, citing Mt. Diablo
Unified School District (1978) PERB Decision No. 68; Mount Diablo Unified School District,
et al. (1977) EERB Decision No. 44.)
The Board has previously held that the filing and processing of grievances under a negotiated
3 In this case, Hitchcock does not establish that the
grievance he filed was pursuant to any negotiated agreement. It is unclear whether Hitchcock
contends that the grievance was filed pursuant to the terms of the expired MOU between the
County and SEIU, the MOU between the County and AOCW, or some other process
altogether.
grievance he filed was pursuant to any negotiated agreement. It is unclear whether Hitchcock
4 This is further complicated by the fact that Hitchcock does not specify when the
grievance was actually filed.	grievance was actually filed.
A Although these cases were decided under the Educational Employment Relations Act
(EERA), found at Government Code section 3540 et seq., the Board has interpreted the
language in MMBA section 3502 similarly to that found in EERA section 3543, as evidenced
by City of lvfodesto, supra, PERB Decision No. 1994-M and City of Long Beach, supra, PERB
Decision No. 1977-M. When interpreting the MMBA, it is appropriate to take guidance from
cases interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
lthough these cases were decided under the Educational Employment Relations Act
(EERA), found at Government Code section 3540 et seq., the Board has interpreted the
language in MMBA section 3502 similarly to that found in EERA section 3543, as evidenced
by City of Modesto, supra, PERB Decision No. 1994-M and City of Long Beach, supra, PERB
Decision No. 1977-M. When interpreting the MMBA, it is appropriate to take guidance from
cases interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
LA-CE-529-M
September 17, 2009
Page 3
4
* Hitchcock includes with his charge documents describing some, but not all, of a
grievance procedure he allegedly used but there is insufficient information in these documents
to determine whether this process is part of one of the two MO Us referenced above, or some
other process.
Hitchcock includes with his charge documents describing some, but not all, of a
least slight harm to employee rights results from the conduct. The courts have described the
standard as follows:
violation of section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise of those activities, and (3) that employer's conduct was
not justified by legitimate business reasons.
agreement constitutes protected activity under the MMBA. (MMBA, $ 3502; City of Modesto
(2008) PERB Decision No. 1994-M; City of Long Beach (2008) PERB Decision No. 1977-M.)
The Board has also held, however, that the protected right of an individual employee to pursue
contractual grievances did not extend to allowing the employee to be represented by an
employee organization that is not the exclusive representative and is not a party to the contract.
(Los Rios Community College District (1998) PERB Decision No. 1274, citing Mi. Diablo
Unified School District (1978) PERB Decision No. 68; Mount Diablo Unified School District,
et al. (1977) EERB Decision No. 44.)' In this case, Hitchcock does not establish that the
contends that the grievance was filed pursuant to the terms of the expired MOU between the
County and SEIU, the MOU between the County and AOCW, or some other process
altogether." This is further complicated by the fact that Hitchcock does not specify when the
grievance procedure he allegedly used but there is insufficient information in these documents
to determine whether this process is part of one of the two MOUs referenced above, or some
other process.

LA-CE-529-M
September 17, 2009
Page 4
LA-CE-529-M
September 17, 2009
Page 4
Assuming that Hitchcock's grievance was filed pursuant to the MOU with AOCW, Hitchcock
does not establish that the County unlawfully interfered with his ability to pursue the
grievance. At the time the grievance was filed, AOCW, not SEIU was the exclusive
representative
of
Hitchcock's bargaining unit. Accordingly, Hitchcock does not demonstrate
that he
is
entitled to representation by SEIU. (See Los Rios Community College District
(1998) PERB Decision No. 1274 [other citations omitted].) In addition, according to the terms
of
that grievance process, Hitchcock was entitled to pursue the grievance without
representation or with a representative
of
"the Union," which presumably in this case is
AOCW.
Assuming that Hitchcock's grievance was filed pursuant to the MOU with AOCW, Hitchcock
5 Thus, Hitchcock does not establish that he has the right to be represented by SEIU at
his arbitration according to the terms
of
the MOU. Because Hitchcock does not establish that
he was entitled
to
have an SEIU representative present during his arbitration, he does not
establish that the County interfered with any rights protected by the MMBA.
AOCW. Thus, Hitchcock does not establish that he has the right to be represented by SEIU at
Assuming that Hitchcock's grievance was filed pursuant to the expired MOU with SEIU,
Hitchcock does not establish that the County was obligated to pursue this grievance. While
Hitchcock does not specify when he filed the grievance, it
is
clear that it was filed sometime
after September 26, 2007, the date the MOU between the County and SEIU had already
expired. PERB has held that the arbitration clause in a grievance procedure does not continue
in effect after the expiration
of
the contract except for disputes that:
Assuming that Hitchcock's grievance was filed pursuant to the expired MOU with SEIU,
(1) involve facts or occurrences that arose before expiration; (2)
involve post-expiration conduct that infringes on rights that
accrued or vested under the agreement; or (3) under normal
principles
of
contract interpretation, survive the expiration
of
the
agreement.
(1)
(State
of
California, Department
of
Youth Authority (1992) PERB Decision No. 962-S; see also
Trustees
of
the California State University (1997) PERB Decision No. 1231-H.)
(State of California, Department of Youth Authority (1992) PERB Decision No. 962-S; see also
In this case, Hitchcock was given notice
of
his termination on January 28, 2008, based on his
conduct on December 27, 2007. Both the accident and the termination occurred at a time after
the MOU with SEIU expired. Similarly, any right Hitchcock had to participate in an
arbitration accrued or vested upon his termination, again, after the MOU expired. Finally,
Hitchcock does not provide any other facts or argument demonstrating any other reason why
the grievance procedure in the MOU with SEIU should survive the expiration
of
that
In this case, Hitchcock was given notice of his termination on January 28, 2008, based on his
5
AAlthough the term "the Union" is not defined by any of the contract provisions
provided by either party, it is reasonable to interpret that term to mean the union that is a party
to the MOU, i.e., AOCW.
lthough the term "the Union" is not defined by any of the contract provisions
does not establish that the County unlawfully interfered with his ability to pursue the
grievance. At the time the grievance was filed, AOCW, not SEIU was the exclusive
representative of Hitchcock's bargaining unit. Accordingly, Hitchcock does not demonstrate
that he is entitled to representation by SEIU. (See Los Rios Community College District
(1998) PERB Decision No. 1274 [other citations omitted].) In addition, according to the terms
of that grievance process, Hitchcock was entitled to pursue the grievance without
representation or with a representative of "the Union," which presumably in this case is
his arbitration according to the terms of the MOU. Because Hitchcock does not establish that
he was entitled to have an SEIU representative present during his arbitration, he does not
establish that the County interfered with any rights protected by the MMBA.
Hitchcock does not establish that the County was obligated to pursue this grievance. While
Hitchcock does not specify when he filed the grievance, it is clear that it was filed sometime
after September 26, 2007, the date the MOU between the County and SEIU had already
expired. PERB has held that the arbitration clause in a grievance procedure does not continue
in effect after the expiration of the contract except for disputes that:
involve facts or occurrences that arose before expiration; (2)
involve post-expiration conduct that infringes on rights that
accrued or vested under the agreement; or (3) under normal
principles of contract interpretation, survive the expiration of the
agreement.
Trustees of the California State University (1997) PERB Decision No. 1231-H.)
conduct on December 27, 2007. Both the accident and the termination occurred at a time after
the MOU with SEIU expired. Similarly, any right Hitchcock had to participate in an
arbitration accrued or vested upon his termination, again, after the MOU expired. Finally,
Hitchcock does not provide any other facts or argument demonstrating any other reason why
the grievance procedure in the MOU with SEIU should survive the expiration of that
provided by either party, it is reasonable to interpret that term to mean the union that is a party
to the MOU, i.e., AOCW.

LA-CE-529-M
September 17, 2009
Page 5
agreement. Thus, Hitchcock does not establish that he was entitled to arbitrate his grievance
under the MOU with SEIU.
agreement. Thus, Hitchcock does not establish that he was entitled to arbitrate his grievance6
Assuming that Hitchcock's grievance was filed pursuant to some other process entirely
separate from either the MOU with SEIU or the MOU with AOCW, Hitchcock does
not
provide sufficient detail about this grievance process. Unlike the circumstances considered in
City
of
Modesto, supra, PERB Decision No. 1994-M or City
of
Long Beach, supra,
PERB
Decision No. 1977-M, Hitchcock does not demonstrate that his grievance was filed pursuant to
a negotiated grievance procedure or filed to enforce a contractual right. Accordingly,
Hitchcock does not establish that he has an MMBA-protected right to file and pursue this
grievance. 	Moreover, Hitchcock does not discuss the terms
of
this process and whether he is
entitled to have an SEIU representative at the grievance arbitration. For these reasons,
Hitchcock has not met his burden to establish that the County interfered with Hitchcock's
protected rights.
Assuming that Hitchcock's grievance was filed pursuant to some other process entirely
II. 	Retaliation	II. 	Retaliation
Hitchcock also alleges a violation
of
MMBA section 3502.1, which prohibits the County from
taking punitive action against Hitchcock because
of
"lawful action as an elected, appointed, or
recognized representative
of
an employee bargaining unit." To demonstrate that an employer
discriminated or retaliated against an employee 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;
(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); Campbell Municipal Employees Assn.
v.
City
of
Campbell (1982)
131	
131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Assn.
v.
City
of
San Leandro
(1976) 55 CaLti~pp.3d 553 (San Leandro).) In determining whether evidence
of
adverse action
is established, the Board uses an objective test and will not rely upon the subjective reactions
Unified School District ( 1988) PERB Decision No. 689.) In a
	of
the employee. (Palo Verde
later decision, the Board further explained that:
Hitchcock also alleges a violation of MMBA section 3502.1, which prohibits the County from
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.
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.
LA-CE-529-M
September 17, 2009
Page 5
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
Even if the expired SEIU MOU did apply, Hitchcock does not provide sufficient
information to conclude that he had the right to be represented at the grievance by anyone
other than the incumbent exclusive representative.
Even if the expired SEIU MOU did apply, Hitchcock does not provide sufficient
information to conclude that he had the right to be represented at the grievance by anyone
other than the incumbent exclusive representative.
under the MOU with SEIU.
separate from either the MOU with SEIU or the MOU with AOCW, Hitchcock does not
provide sufficient detail about this grievance process. Unlike the circumstances considered in
City of Modesto, supra, PERB Decision No. 1994-M or City of Long Beach, supra, PERB
Decision No. 1977-M, Hitchcock does not demonstrate that his grievance was filed pursuant to
a negotiated grievance procedure or filed to enforce a contractual right. Accordingly,
Hitchcock does not establish that he has an MMBA-protected right to file and pursue this
grievance. Moreover, Hitchcock does not discuss the terms of this process and whether he is
entitled to have an SEIU representative at the grievance arbitration. For these reasons,
Hitchcock has not met his burden to establish that the County interfered with Hitchcock's
protected rights.
taking punitive action against Hitchcock because of "lawful action as an elected, appointed, or
recognized representative of an employee bargaining unit." To demonstrate that an employer
discriminated or retaliated against an employee 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;
(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); Campbell Municipal Employees Assn. v. City of Campbell (1982)
Cal.App.3d 416 (Campbell); San Leandro Police Officers Assn. v. City of San Leandro
(1976) 55 Cal.App.3d 553 (San Leandro).) In determining whether evidence of adverse action
is established, the Board uses an objective test and will not rely upon the subjective reactions
of the employee. (Palo Verde Unified School District (1988) PERB Decision No. 689.) In a
later decision, the Board further explained that:
omitted.)

LA-CE-529-M
September 17, 2009
Page 6
LA-CE-529-M
September
17,
2009
Page 6
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
action and the protected conduct. 	Elementary School	"nexus" between the adverse 	(Moreland
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;
Campbell, supra,
131
Cal.App.3d 416); (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
	of
the	553); (4) the employer's cursory investigation 	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
(6) employer	
of
San Joaquin (Health Care Service) (2001) PERB Order No. IR-55-M);
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(7)
Sacramento School District, supra, PERB Decision No. 264; Novato, supra, PERB Decision
No. 210.)
Although the timing of the employer's adverse action in close temporal proximity to the
In this case, Hitchcock makes no specific reference to any lawful action he took "as an elected,
appointed, or recognized representative
of
an employee bargaining unit." (MMBA, § 3502.1.)
Hitchcock does allege that he was the president
of
SEIU at some point prior to its
decertification in September 2007. To the extent that Hitchcock alleges that either his
termination on January 28, 2008 or the County's conduct during the arbitration on November
5, 2008, was in retaliation for his activities as SEIU president, there is insufficient information
to establish a violation. Hitchcock: does not describe any activities he engaged in \vhile he was
SEIU president. More importantly, SEIU's role as the representative
of
the bargaining unit
ended when it was decertified in September 2007, several months before either the termination
or the first arbitration date. Thus, any activities Hitchcock could have engaged in as "an
elected, appointed, or recognized representative
of
an employee bargaining unit" (MMBA, §
3502.1) ended at the latest in September 2007. The time period between these events is not
sufficiently close to support a nexus. (Los Angeles Unified School District (1998) PERB
Decision No. 1300.) In addition, Hitchcock does not provide other facts demonstrating a
connection between his service as SEIU president and the County's actions. Therefore,
of
	Hitchcock does not establish a violation 	MMBA section 3502.1.
In this case, Hitchcock makes no specific reference to any lawful action he took "as an elected,
7
7 In addition, to the extent that Hitchcock alleges that his termination was made in
retaliation for protected activities, he has not met his burden of showing that this allegation
was filed within PERB's six-month statute of limitations period. (See Los Angeles Unified
School District, supra, PERB Decision No. 1929; City of Santa Barbara, supra, PERB
In addition, to the extent that Hitchcock alleges that his termination was made in
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;
Campbell, supra, 131 Cal.App.3d 416); (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 District (2007) PERB Decision
No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or
any other facts that might demonstrate the employer's unlawful motive. (North
Sacramento School District, supra, PERB Decision No. 264; Novato, supra, PERB Decision
No. 210.)
appointed, or recognized representative of an employee bargaining unit." (MMBA, $ 3502.1.)
Hitchcock does allege that he was the president of SEIU at some point prior to its
decertification in September 2007. To the extent that Hitchcock alleges that either his
termination on January 28, 2008 or the County's conduct during the arbitration on November
5, 2008, was in retaliation for his activities as SEIU president, there is insufficient information
to establish a violation. Hitchcock does not describe any activities he engaged in while he was
SEIU president. More importantly, SEIU's role as the representative of the bargaining unit
ended when it was decertified in September 2007, several months before either the termination
or the first arbitration date. Thus, any activities Hitchcock could have engaged in as "an
elected, appointed, or recognized representative of an employee bargaining unit" (MMBA, $
3502.1) ended at the latest in September 2007. The time period between these events is not
sufficiently close to support a nexus. (Los Angeles Unified School District (1998) PERB
Decision No. 1300.) In addition, Hitchcock does not provide other facts demonstrating a
connection between his service as SEIU president and the County's actions. Therefore,
Hitchcock does not establish a violation of MMBA section 3502.1.'
retaliation for protected activities, he has not met his burden of showing that this allegation
was filed within PERB's six-month statute of limitations period. (See Los Angeles Unified
School District, supra, PERB Decision No. 1929; City of Santa Barbara, supra, PERB

LA-CE-529-M
September 17, 2009
Page 7
For these reasons the charge, as presently written, does not state a prima facie case. 8 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may 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 an authorized agent of 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 an amended charge or withdrawal is not filed on or before September 29, 2009
If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may 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 an authorized agent of 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
For these reasons the charge, as presently written, does not state a prima facie case.
,	PERB. If an amended charge or withdrawal is not filed on or before September 29, 2009,"9
PERB will dismiss your charge. If you have any questions, please call me at the above
telephone n 	er.
PERB will dismiss your charge. If you have any questions, please call me at the above
telephone number.
Sincerely,
FRYC J. Cu
Regional Attorney	Regional Attorney
Decision No. 1628-M.) In this case, the charge was filed on April 21, 2009, and he was
notified of his termination more than one year prior, on January 28, 2008. Charging Party
provides insufficient information to establish that an exception to the statute of limitations
applies.
Decision No. 1628-M.) In this case, the charge was filed on April 21, 2009, and he was
notified of his termination more than one year prior, on January 28, 2008. Charging Party
provides insufficient information to establish that an exception to the statute of limitations
applies.
LA-CE-529-M
September 17, 2009
Page 7
8 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
In Eastside Union School District (1984) PERB Decision No. 466, the Board
9 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)
" A document is "filed" on the date the document is actually received by PERB,
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
including if transmitted via facsimile. (PERB Regulation 32135.)