County of San Diego (PERB 2258M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SEIU LOCAL 221,
Charging Party, Case No. LA-CE-677-M
v. PERB Decision No. 2258-M
COUNTY OF SAN DIEGO, April 26, 2012
Respondent.

Appearances: Alexis English, Director, Internal Field Staff, for SETU Local 221;
Clint Obrigewitch, Labor Relations Officer, for County of San Diego.

Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by SETU Local 221 (SEIU) from the dismissal (attached) by
the Office of the General Counsel of an unfair practice charge. The charge alleged that the
County of San Diego violated the Meyers-Milias-Brown Act (MMBA)' by retaliating against
bargaining unit employee Dennis Bellus (Bellus) for having engaged in protected activity. The
Board agent dismissed the charge, finding that it failed to state a prima facie case of retaliation.

The Board has reviewed the dismissal and the record in light of SEIU’s appeal and the
relevant law. Based on this review, we find the dismissal and warning letters to be well-
reasoned, adequately supported by the record, and in accordance with applicable law.
Accordingly, the Board adopts the dismissal and warning letters as the decision of the Board

itself, subject to a discussion below of the issues raised on appeal.

"The MMBA is codified at Government Code section 3500 et seq.

DISCUSSION
Compliance with Requirements for Filing Appeal
Pursuant to PERB Regulation 32635(a),2 an appeal from dismissal must:
(
1)	
State the specific issues
of
procedure, fact, law or rationale
to
which the appeal is taken;
(2) Identify the page or part
of
the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
To satisfy the requirements
of
PERB Regulation 32635(a), the appeal must sufficiently
place the Board and the respondent "on notice
of
the issues raised on appeal." (State
Employees Trades Council United (Ventura,
et
al.) (2009) PERB Decision No. 2069-H
(State Employees Trades Council); City & County
of
San Francisco (2009) PERB Decision
No. 2075-M.) An appeal that does not reference the substance
of
the Board agent's dismissal
fails to comply with PERB Regulation 32635(a). (United Teachers
of
Los Angeles (Pratt)
(2009) PERB Order No. Ad-3
81
(Pratt); Lodi Education Association (Hudock) (1995) PERB
Decision No. 1124; United Teachers - Los Angeles (Glickberg) (I 990) PERB Decision
No. 846.) Likewise, an appeal that merely reiterates facts alleged in the unfair practice charge
does not comply with PERB Regulation 32635(a). (Pratt; State Employees Trades Council;
Contra Costa County Health Services Department (2005) PERB Decision No. 1752-M; County
of
Solano (Human Resources Department) (2004) 	Decision No. 1598-M.)
The appeal in this case merely restates facts alleged in the original charge. It fails,
however, to reference any 	of the Board agent's determination or otherwise n.,...,,,,.
..
_._
	the
specific issues of procedure, fact, law or rationale to which the appeal is taken, the page or part
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

of
the dismissal
to
which appeal is taken, or the grounds for each issue. Thus, it is subject to
dismissal on that basis. (City
of
Brea (2009) PERB Decision No. 2083-M.)
New Allegations and Evidence on Appeal
In its appeal, SEIU presents new factual allegations that were not presented in the
original charge or in an amended charge. "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." (PERB
Reg. 32635(b); see also CSU Employees Union, SEIU Local 2579 (Kyrias) (2011) PERB
Decision No. 2175-H.) The Board has found good cause when "the information provided
could not have been obtained through reasonable diligence prior to the Board agent's dismissal
of
the charge." (Sacramento City Teachers Association (Ferreira) (2002) PERB Decision
No. 1503.)
On June
7,
2011, the Board agent issued a letter advising SEIU that the charge failed to
state a prima facie case and warning SEIU that the charge would be dismissed unless it
amended the charge to state a prima facie case. SEIU did not file an amended charge, despite
repeated efforts by the Board agent to contact SEIU's representative. Therefore, on June 22,
2011, the Board agent dismissed the charge. On July 14, 2011, SEIU filed an appeal from the
dismissal
of
the charge. The appeal states that SEIU "is appealing [the dismissal] based on
new information that surfaced after the charge was filed and the warning letter was issued."
The appeal includes new factual allegations
of
protected activity 	Bellus in March, May and
August 2010, as well as new factual allegations and documentary evidence concerning his
transfer in February 2011. All of these allegations predate both the 	of 	charge and the
Board agent's dismissal of the charge. The appeal provides no reason why these allegations
and evidence could not have been alleged in the original charge or in an amended charge.
Thus, we do not find good cause to consider these new allegations.
3

ORDER
The unfair practice charge in Case No. LA-CE-677-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
4

STA
TE
OF
CALIFORNIA	
(
PUBLIC EMPLOYMEN'f
RELATIONS BOARD
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
June 22, 2011
Alexis English, Director, Internal Field Staff
SEIU, Local
221
4004 Kearny Mesa Road
San Diego, CA 92111
Re: 	SEIU Local 221
v.
County
of
San Diego
Unfair Practice Charge No. LA-CE-677-M
DISMISSAL LETTER
Dear Ms. English:
EDMUND G.
BROWN
JR., Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April
1,
2011. SEIU Local 221 (Union or Charging Party) alleges
that County
of
San Diego (County or Respondent) violated sections 3503, 3502.1, and 3503
of
the Meyers-Milias-Brown Act (MMBA or Act) 1 by transferring a Union-represented employee
to a different department.
Charging Party was informed in the attached Warning Letter dated June
7,
2011, 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 June 16, 2011, the charge would be
dismissed.
After not receiving either an amended charge or a request for withdrawal, the undersigned
attempted to contact you by telephone on June 16, 2011 to determine whether the Union
intended on filing any additional materials with PERB. The undersigned left you a voice-mail
message but, to date, the Union has not contacted PERB. In addition, PERB has not received
either an amended charge or a request for withdrawal. Therefore, the charge is hereby
dismissed based on the facts and reasons set forth in the June 7, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,2 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 	service of
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

LA-CE-677-M
June 22, 2011
Page 2
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.
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.)
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
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).)
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).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position of
each other party regarding the extension, and shall be accompanied by proof of service
of
the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)

LA-CE-677-M
June 22, 2011
Page 3
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
General Counsel
Regional Attorney
Attachment
cc: 	SusanBrazeau

STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
June 7, 2011
Alexis English, Director, Internal Field Staff
SEIU, Local 221
4004 Kearny Mesa Road
San Diego, CA 92111
Re: 	SEJU Local 221
v.
San Diego County
Unfair Practice Charge No. LA-CE-677-M
WARNING LETTER
Dear Ms. English:
EDMUND G.
BROWN
	Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 1, 2011. SEIU Local 221 (Union or Charging Party) alleges
that San Diego County (County or Respondent) violated sections 3503, 3502.1, and 3503
of
the Meyers-Milias-Brown Act (MMBA or Act) 1
by transferring a Union-represented employee
to a different department.
The Union is an employee organization that represents the interests
of
workers in the County.
Dennis Bellus is employed in the County as a Protective Service Worker and is a steward for
the Union. Bellus's responsibilities as a steward include representing co-workers in
disciplinary meetings, participating in labor-management meetings, and speaking out regarding
employee working conditions.
In February 2011, the County involuntarily transferred Bellus from the Foster Home Licensing
Department to the Child Welfare Services Department.
Discussion:
To demonstrate that an employer discriminated or retaliated against an employee in violation
of
Government Code section 3506 and PERB Regulation 32603(a),2 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).) In determining whether evidence
of
1 The MMBA is codified at Government Code section 3500 et seq. The text
of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
3100 I et seq.

LA-CE-677-M
June7,2011
Page 2
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.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
. District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following
additional factors must also be present: (1) the employer's disparate treatment
of
the employee
(State a/California (Department a/Transportation) (1984) PERB Decision No. 459-S; (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104; (3) the
employer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S; (4}the employer's
cursory investigation
of
the employee's misconduct (City a/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 ( Oakland
Unified School District (2003) PERB Decision No. 1529) or the offering
of
exaggerated,
vague, or ambiguous reasons (McFarland Unified School District (1990) PERB Decision No.
786); (6) employer animosity towards union activists (Jurupa Community Services District
(2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986)
PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
unlawful motive. (North Sacramento School District, supra, PERB Decision No. 264; Novato,
supra, PERB Decision No. 210.)
The Union alleges that the County took adverse actions against Bellus because
of
his Union
activities. PERB has previously found that activities on behalf
of
a union were protected.
(City a/Torrance (2008) PERB Decision No. 1971-M.) However, there is insufficient
information to conclude that 	relevant individuals at the County were aware
of
Bellus' s
protected acts. In Metropolitan Water District
of
Southern California (2009) PERB Decision
No. 2066-M, the Board declined to impute knowledge
of
an employee's protected activity to
decision-makers at the employer where it was shown that the only people aware of such
activity were not involved in the decision to take the adverse action. 	(See also Regents
of
the
University
of
California (Los Angeles) (2008) PERB Decision No. 1995-H.) In this case, the

LA-CE-677-M
June 7, 2011
Page 3
Union does not establish who made the decision to transfer Bellus and whether that person or
those people were aware
of
his Union activities.
In addition, the Union does not provide sufficient information to conclude that Bellus's
involuntary transfer was an adverse employment action. In Oakland Unified School District
(2004) PERB Decision No. 1645, the Board found that the charging party must demonstrate
that a reasonable person in the same circumstance would find the transfer to be objectively
adverse to employment. (Citing Compton Unified School District (2003) PERB Decision
No. 1518.) In contrast, in Fresno County Office
of
Education (2004) PERB Decision
No. 1674, the Board found that a transfer was an adverse employment action because, from an
objective standpoint, it resuited in less favorable working conditions such as a lengthy
commute, less security, and lack
of
climate control. In the present case, the Union does not
establish that the County's decision to transfer Bellus resulted in any change in working
conditions. Accordingly, there is insufficient information to conclude whether a reasonable
person under the same circumstances would find the transfer to be adverse to employment.
(Newark Unified School District, supra,PERB Decision No. 864.)
In addition, the Union does not establish a sufficient nexus between Bellus's Union activities
and the County's decision to transfer him. The Union does not allege when Bellus engaged in
his Union-related activities. Thus, PERB is unable to measure the temporal proximity between
Bellus's Union activity and the County's decision to transfer him. Nor does the Union provide
facts demonstrating the existence
of
any
of
the above-referenced nexus factors or any other
information supporting a causal connection.
In addition, the Union does not establish a sufficient nexus between Bellus's Union activities
and the County's decision to transfer him. The Union does not allege when Bellus engaged in
his Union related activities. Thus, PERB is unable to measure the temporal proximity between
Beiius's Union activity and the County's decision to transfer him. Nor does the Union provide
· facts demonstrating the existence
of
any
of
the above-referenced nexus factors or any other
information supporting a causal connection.
For these reasons the charge, as presently written, does not state a prima facie case.3 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
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.)

LA-CE-677-M
June 7, 2011
Page 4
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 June 16, 2011,4 PERB
will dismiss your charge.· If you have any questions, please call me at the above telephone
number.
Regional Attorney
EC
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)