PERB Decision No. 2267M

Gesamter Gesetzestext

OVERRULED IN PART by Los Angeles Unified School
District (2016) PERB Decision No. 2479
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MELVIN JONES, JR.,
Charging Party,
V.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-646-M
PERB Decision No. 2267-M
May 25, 2012
Appearances: Melvin Jones, Jr., on his own behalf; Cheryl Stevens, Lead County Counsel, for
County of Santa Clara.
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 exceptions filed by Melvin Jones, Jr., (Jones) to a proposed
decision of a PERB administrative law judge (ALJ) (attached) dismissing an unfair practice
charge. The complaint issued by PERB' s Office of the General Counsel alleged that the
County of Santa Clara (County) violated the Meyers-Milias-Brown Act (MMBA)1 by:
(1) terminating his employment in retaliation for having engaged in protected activity by filing
grievances related to his working conditions; (2) denying Jones the right to have an employee
organization representative present at a meeting at whichhe	he had a reasonable belief	belief would
result in disciplinary action or, in the alternative, the interview posed highly unusual
circumstances; and (3) interfering with protected rights by directing him to cease
communicating with his co-workers with regard to "any issues and concerns [he] may have."
1 The MMBA is codified at Government Code section 3500 et seq.

The ALJ determined that the evidence did not establish a violation of the MMBA and
dismissed the complaint and underlying charge.
The Board has reviewed the proposed decision and the record in light of Jones's
exceptions and supporting brief, the County's response, and the relevant law. Based on this
review, the Board adopts the ALJ's proposed decision as its own, subject to a discussion of the
following issues raised in the exceptions.
DISCUSSION
Exceptions
PERB Regulation 32300 authorizes the filing of exceptions to the ALJ's proposed
decision filed within 20 days of the date of service of the proposed decision. The ALJ's
proposed decision was served by mail on February 11, 2011. On February 18, 2011, Jones
filed 44 exceptions to the ALJ's proposed decision, accompanied by supplemental
documentation. Jones submitted additional exceptions and documentation on February 28,
March 1, March 4, March 7, and March 8, 2011, for a total of 74 separate exceptions. While
the exceptions were timely filed, the filing of multiple documents containing exceptions is
discouraged.
Credibility Determinations
The vast majority of Jones's exceptions relate to the ALJ's findings of fact and
credibility determinations, and the ALJ's application of the law to those factua
a well-established principle that the Board will give deference to redibility
determinations absent evidence to support overturning such conclusions. (Trustees of the
ERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
The County filed its response to Jones's exceptions on March 29, 2011. On April 1,
2011, Jones submitted a reply brief to the County's response. Because Board rules do not
provide for the filing of reply briefs, this reply is not considered.
2
The ALJ determined that the evidence did not establish a violation
of
the MMBA and
dismissed the complaint and underlying charge.
The Board has reviewed the proposed decision and the record in light
of
Jones's
exceptions and supporting brief, the County's response, and the relevant law. Based on this
review, the Board adopts the ALJ' s proposed decision as its own, subject to a discussion
of
the
following issues raised in the exceptions.
DISCUSSION
Exceptions
PERB Regulation 323002 authorizes the filing
of
exceptions to the ALJ's proposed
decision filed within 20 days
of
the date
of
service
of
the proposed decision. The ALJ' s
proposed decision was served by mail on February 11, 2011. On February 18, 2011, Jones
filed 44 exceptions to the ALJ' s proposed decision, accompanied by supplemental
documentation. Jones submitted additional exceptions and documentation on February 28,
March
1,
March 4, March 7, and March 8, 2011, for a total
of
74 separate exceptions. While
the exceptions were timely filed, the filing
of
multiple documents containing exceptions is
discouraged. 3
Credibility Determinations
The vast majority
of
Jones' s exceptions relate to the ALJ' s findings
of
fact and
credibility determinations, and the ALJ' s application
of
the law to those factual is l findings. It is It
a well-established principle that the Board will give deference to credibility ALJ c
determinations absent evidence to support overturning such conclusions. (Trustees
of
the
PPERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3 The County filed its response to Jones' s exceptions on March 29, 2011. On April 1,
2011, Jones submitted a reply brief to the County's response. Because Board rules do not
provide for the filing of reply briefs, this reply is not considered.
2

California State University (San Marcos) (2010) PERB Decision No. 2093-H; see also
Anaheim City School District (1984) PERB Decision No. 364a ("[T]he Board has determined
that it will normally afford deference to administrative law judges' findings of fact involving
credibility determinations unless they are unsupported by the record as a whole."]) Having
reviewed the record in its entirety, we find no basis to overturn the ALJ's credibility
determinations, factual findings, or legal conclusions. We briefly address the remaining issues
raised in the exceptions.
Additional Evidence on Appeal
On June 21, 2011, Jones requested that the Board consider additional evidence and/or
reopen the record. Attached to the request is a payroll warrant dated April 24, 2009, which
Jones asserts he did not receive until June 17, 2011.* Jones asserts that the warrant shows he
was granted 56 hours of leave without pay in April 2009. Also attached are what appear to be
pages from a memorandum of understanding (MOU) between the County and SEIU Local 715
for the period June 19, 2006 to June 14, 2009.
When considering a request to reopen the record to admit new evidence, the Board
applies the standard set forth in PERB Regulation 32410(a) for a request for reconsideration
based on the discovery of new evidence. (State of California (Department of Parks and
Recreation) (1995) PERB Decision No. 1125-S.) The regulation provides 	evant part:
A request for reconsideration based upon the discovery of new
evidence must be supported by a declaration under the penalty of
perjury which establishes that the evidence: (1) was not
previously available; (2) could not have been discovered prior to
the hearing with the exercise of reasonable diligence; (3) was
*On April 20, 2012, Jones submitted what he asserted was the original of the same pay
warrant.
On May 18, 2012, Jones submitted additional evidence and argument and requested
that the Board take official notice of two requests for injunctionelief (I.R.) he filed (PERB
Case Nos. I.R. 618 and I.R. 620). For the reasons set forth herein, these requests are denied.
California State University (San Marcos) (2010) PERB Decision No. 2093-H; see also
Anaheim City School District (1984) PERB Decision No. 364a ("[T]he Board has determined
that it will normally afford deference to administrative law judges' findings of fact involving
credibility determinations unless they are unsupported by the record as a whole."]) Having
reviewed the record in its entirety, we find no basis to overturn the ALJ's credibility
determinations, factual findings, or legal conclusions. We briefly address the remaining issues
raised in the exceptions.
Additional Evidence on Appeal
On June 21, 2011, Jones requested that the Board consider additional evidence and/ or
reopen the record. 	Attached to the request is a payroll warrant dated April 24, 2009, which
Jones asserts he did not receive until June 17, 2011.4 Jones asserts that the warrant shows he
was granted 56 hours of leave without pay in April 2009. Also attached are what appear to be
pages from a memorandum of understanding (MOU) between the County and SEIU Local 715
for the period June 19, 2006 to June 14, 2009. 5
When considering a request to reopen the record to admit new evidence, the Board
applies the standard set forth in PERB Regulation 32410(a) for a request for reconsideration
based on the discovery of new evidence. (State of California (Department of Parks and
Recreation) (1995) PERB Decision No. 1125-S.) The regulation provides,	, in relrelevant part:
A request for reconsideration based upon the discovery of new
evidence must be supported by a declaration under the penalty of
perjury which establishes that the evidence: (1) was not
previously available; (2) could not have been discovered prior to
the hearing with the exercise of reasonable diligence; (3) was
4 On April 20, 2012, Jones submitted what he asserted was the original of the same pay
warrant.
5 On May 18, 2012, Jones submitted additional evidence and argument and requested
that the Board take official notice of two requests for injunctive relief (LR.) he filed (PERB
Case Nos. LR. 618 and LR. 620). For the reasons set forth herein, these requests are denied.
3

submitted within a reasonable time of its discovery; (4) is
relevant to the issues sought to be reconsidered; and (5) impacts
or alters the decision of the previously decided case.
The new documents fail to meet this standard. While Jones asserts that he did not
receive the April 2009 pay warrant until June 2011, he has failed to explain why he did not
seek to obtain it earlier and therefore failed to establish that it could not have been discovered
prior to the hearing with the exercise of reasonable diligence. He also failed to explain why
the 2006-2009 MOU pages could not have been discovered and submitted previously." More
importantly, Jones has failed to demonstrate the relevance of these documents to the issues
before the Board or that the proffered evidence impacts or alters the decision in this case.
While Jones asserts that the evidence shows that the County "granted" him 56 hours of leave
without pay, it does not establish that such leave was authorized, but appears simply to reflect
the County's entry of the time as unpaid leave for accounting purposes. Therefore, we decline
to consider the new evidence on appeal.'
Failure to Accommodate Medical Condition
Jones asserts that the ALJ failed to take into account his medical condition (asthma) in
making credibility determinations during the hearing. We find this exception to be without
merit, as the record clearly reflects that the ALJ accommodated Jones's medical condition by
allowing multiple breaks upon request. While Jones submitted some evidence concerning the
possible side of effects of his asthma medication, there is no evidence in the record to indicate
that his asthma or medication affected his ability to testify competently.
at the hearing
"The multiple exceptions also include multiple attachments, including some that do not
appear to have been admitted into evidence at the hearing. In the absence of a showing that the
standards under PERB Regulation 32410(a) have been met, we also decline to consider any
new documents attached to the exceptions.
submitted within a reasonable time of its discovery; (4) is
relevant to the issues sought to be reconsidered; and ( 5) impacts
or alters the decision of the previously decided case.
The new documents fail to meet this standard. While Jones asserts that he did not
receive the April 2009 pay warrant until June 2011, he has failed to explain why he did not
seek to obtain it earlier and therefore failed to establish that it could not have been discovered
prior to the hearing with the exercise of reasonable diligence. He also failed to explain why
the 2006-2009 MOU pages could not have been discovered and submitted previously.6 More
importantly, Jones has failed to demonstrate the relevance of these documents to the issues
before the Board or that the proffered evidence impacts or alters the decision in this case.
While Jones asserts that the evidence shows that the County "granted" him 56 hours of leave
without pay, it does not establish that such leave was authorized, but appears simply to reflect
the County's entry of the time as unpaid leave for accounting purposes. Therefore, we decline
to consider the new evidence on appeal. 7
Failure to Accommodate Medical Condition
Jones asserts that the ALJ failed to take into account his medical condition (asthma) in
making credibility determinations during the hearing. We find this exception to be without
merit, as the record clearly reflects that the ALJ accommodated Jones's medical condition by
allowing multiple breaks upon request. While Jones submitted some evidence concerning the
possible side of effects of his asthma medication, there is no evidence in the record to indicate
that his asthma or medication affected his ability to testify competently.
We note that another section of the MOU offered Jones was admitted into "We note that another section of the MOU offered by Jones was admitted into evidence
at the hearing.
7 The multiple exceptions also include multiple attachments, including some that do not
appear to have been admitted into evidence at the hearing. In the absence of a showing that the
standards under PERB Regulation 32410(a) have been met, we also decline to consider any
new documents attached to the exceptions.
4

April 13. 2009 Letter
Jones asserts that the ALJ erred in failing to consider a letter dated April 13, 2009,
which Jones asserts showed that he was granted time off from work until April 30, 2009. The
letter was not introduced into evidence at the hearing and no testimony was offered about it.
Instead, it was attached as an exhibit to Jones's post-hearing brief and appears to also have
been submitted to PERB's Office of the General Counsel during the investigation of the
charge. In reviewing exceptions to a proposed decision, the Board may only consider record
evidence. (PERB Reg. 32300(b); California State University, San Francisco (1991) PERB
Decision No. 910-H.) The fact that a document is contained in a PERB file as part of a party's
submission during the investigation of an unfair practice charge does not automatically render
it part of the record evidence in an evidentiary hearing before an ALJ; all evidence must be
introduced properly and admitted during the hearing.
As set forth in in footnote 9 of the ALJ's proposed decision, the ALJ declined to
consider the April 13, 2009 letter as evidence and expressed concerns about its authenticity.
Jones requests that we consider the letter as additional evidence pursuant to PERB
Regulation 32635(b), which provides: "Unless good cause is shown, a charging party may not
present on appeal new charge allegations or new supporting evidence." On its face, this
provision is applicable to appeals from a Board agent's dismissal of an unfair practice charge,
not exceptions to a proposed decision after hearing. As indicated above PERB applies the
standards set forth in Regulation 32410(a) to requests to reopen the record to admit new
previously available and could not have been presented at the hearing before the ALI,
explained by witness testimony, and subject to cross-examination. Accordingly, we find no
reason to disturb the ALJ's determination on this issue.
April 13, 2009 Letter
Jones asserts that the ALJ erred in failing to consider a letter dated April 13, 2009,
which Jones asserts showed that he was granted time off from work until April 30, 2009. The
letter was not introduced into evidence at the hearing and no testimony was offered about it.
Instead, it was attached as an exhibit to Jones's post-hearing brief and appears to also have
been submitted to PERB' s Office of the General Counsel during the investigation of the
charge. In reviewing exceptions to a proposed decision, the Board may only consider record
evidence. (PERB Reg. 32300(b); California State University, San Francisco (1991) PERB
Decision No. 910-H.) The fact that a document is contained in a PERB file as part of a party's
submission during the investigation of an unfair practice charge does not automatically render
it part of the record evidence in an evidentiary hearing before an ALJ; all evidence must be
introduced properly and admitted during the hearing.
As set forth in in footnote 9 of the ALJ' s proposed decision, the ALJ declined to
consider the April 13, 2009 letter as evidence and expressed concerns about its authenticity.
Jones requests that we consider the letter as additional evidence pursuant to PERB
Regulation 32635(b), which provides: "Unless good cause is shown, a charging party may not
present on appeal new charge allegations or new supporting evidence." On its face, this
provision is applicable to appeals from a Board agent's dismissal of an unfair practice charge,
not exceptions to a proposed decision after hearing. As indicated above PERB applies the
standards set forth in Regulation 32410(a) to requests to reopen the record to admit new
evidence. The letter fails to meet those standards, as there is no showing that it was not
previously available and could not have been presented at the hearing before the ALJ,
explained by witness testimony, and subject to cross-examination. Accordingly, we find no
reason to disturb the ALJ' s determination on this issue.
5
evidence. fails to meet those standards, as there is no it was not

County Counsel's Communications with ALI
Jones objects to what he characterizes as inappropriate ex parte communications
between the County Counsel and the ALJ. The first communication is a letter dated
February 22, 2011, from County Counsel to the ALJ advising the ALJ of email
communications received from Jones and stating that counsel would not respond to those
communications. The letter also asserts that counsel did not receive Jones's post-hearing brief
in a timely manner. The second communication is a letter dated June 30, 2011 confirming that
the ALJ granted the County an extension of time to submit an opposition to a pending motion
before the ALJ. Both of these letters were copied to Jones. We find nothing inappropriate in
the communications. Moreover, there is no evidence that any of these communications were
made a part of the record or considered by the ALJ, or that they caused any prejudice to Jones.
Accordingly, we do not find merit to this exception.
Refusal to Allow Jones to Examine County Counsel as a Witness
Jones requests to reopen the record for the purpose of taking the testimony of County
Counsel Cheryl Stevens (Stevens), as well as additional witness testimony, concerning alleged
statements made by Stevens on behalf of the County in the County's submissions to PERB
during the investigation of the charge and in its post-hearing brief. It appears these statements
concerned alleged misrepresentations made by Jones on his employment application.
Alternatively, Jones asserts that the proposed decision should be reversed because the
ALJ did not grant a motion by Jones to examine Stevens as a witness in the hearing.
Construing the s a motion to exclude evidence of a defense based upon application
fraud, the ALJ denied Jones's pre-hearing motion to examine Stevens, but informed him that
the matter could be considered at a later point in the hearing if the County presented evidence
of such a defense during the hearing. Throughout the hearing, the County asserted that its
6
County Counsel's Communications with ALJ
Jones objects to what he characterizes as inappropriate ex parte communications
between the County Counsel and the ALJ. The first communication is a letter dated
February 22, 2011, from County Counsel to the ALJ advising the ALJ of email
communications received from Jones and stating that counsel would not respond to those
communications. The letter also asserts that counsel did not receive Jones's post-hearing brief
in a timely manner. The second communication is a letter dated June 30, 2011 confirming that
the ALJ granted the County an extension of time to submit an opposition to a pending motion
before the ALJ. Both of these letters were copied to Jones. We find nothing inappropriate in
the communications. Moreover, there is no evidence that any of these communications were
made a part of the record or considered by the ALJ, or that they caused any prejudice to Jones.
Accordingly, we do not find merit to this exception.
Refusal to Allow Jones to Examine County Counsel as a Witness
Jones requests to reopen the record for the purpose of taking the testimony of County
Counsel Cheryl Stevens (Stevens), as well as additional witness testimony, concerning alleged
statements made by Stevens on behalf of the County in the County's submissions to PERB
during the investigation of the charge and in its post-hearing brief. It appears these statements
concerned alleged misrepresentations made by Jones on his employment application.
Alternatively, Jones asserts that the s proposed decision should be reversed because ALJ's
ALJ did not grant a motion by Jones to examine Stevens as a witness in the hearing.
Construing the as a motion to exclude evidence of a defense based upon application motion a
fraud, the ALJ denied Jones's pre-hearing motion to examine Stevens, but informed him that
the matter could be considered at a later point in the hearing if the County presented evidence
of such a defense during the hearing. Throughout the hearing, the County asserted that its
6

decision to terminate Jones was based solely upon his failure to report for work and not on the
alleged application fraud. The record does not indicate that Jones ever renewed his motion to
examine Stevens, and he did not present any rebuttal witnesses. Therefore, we deny the
request to reopen the record for this purpose.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-646-M are
hereby DISMISSED.
Chair Martinez and Member Huguenin joined in this Decision.
On August 21, 2011, Jones filed a motion for litigation costs pursuant to Government
Code section 11455.30. In light of our decision, this motion is denied.
7
decision to terminate Jones was based solely upon his failure to report for work and not
on
the
alleged application fraud. 	The record does not indicate that Jones ever renewed his motion to
examine Stevens, and he did not present any rebuttal witnesses. Therefore, we deny the
8
request to reopen the record for this purpose.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-646-M are
hereby DISMISSED.
Chair Martinez and Member Huguenin joined in this Decision.
8 On August 21, 2011, Jones filed a motion for litigation costs pursuant to Government
Code section 11455.30. In light of our decision, this motion is denied.
7

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MELVIN JONES, JR.,
UNFAIR PRACTICE
Charging Party, 	CASE NO. SF-CE-646-M
V . 	PROPOSED DECISION
(February 11, 2011)
COUNTY OF SANTA CLARA,
Respondent.
Appearances: Melvin Jones, Jr., in propria persona; Cheryl Stevens, Lead County Counsel, for
County of Santa Clara.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
Melvin Jones, Jr. initiated this case under the Meyers-Milias-Brown Act (MMBA or
Act) by filing an unfair practice charge against the County of Santa Clara (County) on
April 20, 2009. On April 14, 2010, the Office of the General Counsel of the Public
Employment Relations Board (PERB or Board) issued a complaint alleging that the County
(1) retaliated against Jones by terminating his employment, (2) denied him his Weingarten
right, and (3) interfered with his right to engage in protected activity. This conduct is alleged
to violate sections 3506 and 3509(b) of the Act and PERB Regulation 32603(a) and (b).
On May 6, 2010, the County filed its answer to the complaint, denying the material
allegations of the complaint and raising affirmative defenses.
The MMBA is codified at Government Code section 3500 et seq. Hereafter
statutory references are to the Government Code unless othe
2 NLRB v. J. Weingarten (1975) 420 U.S. 251.
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MEL VIN JONES, JR.,
Charging Party,
V.
COUNTY OF SANTA CLARA,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-646-M
PROPOSED DECISION
(February 11, 2011)
Appearances: Melvin Jones, Jr., in propria persona; Cheryl Stevens, Lead County Counsel, for
County
of
Santa Clara.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
Melvin Jones, Jr. initiated this case under the Meyers-Milias-Brown Act (MMBA or
Act) 1 by filing an unfair practice charge against the County
of
Santa Clara (County) on
April 20, 2009. On April 14, 2010, the Office
of
the General Counsel
of
the Public
Employment Relations Board (PERB or Board) issued a complaint alleging that the County
(1) retaliated against Jones by terminating his employment, (2) denied him his Weingarten2
right, and (3) interfered with his right to engage in protected activity. This conduct is alleged
to violate sections 3506 and 3509(6)
of
the Act and PERB Regulation 32603(a) and (b). 3
On May
6,
2010, the County filed its answer to the complaint, denying the material
allegations
of
the complaint and raising affirmative defenses.
1 The MMBA is codified at Government Code section 3500 et seq. Hereafter all	all
statutory references are to the Government Code unless otherrwise indicated.	wise indicated.
2 NLRB
v.
J 	Weingarten (1975) 420 U.S. 251.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

On May 20, 2010, an informal settlement conference was held, but the matter was not
resolved.
On June 2, 2010, Jones filed a motion to amend the complaint. On July 1, 2010, the
motion was denied.
On November 9 and 10, 2010, a formal hearing was conducted in Oakland by the
undersigned. On January 18, 2011, the matter was submitted for decision upon receipt of post-
hearing briefs.
FINDINGS OF FACT
At all times relevant herein, Jones was a "public employee" within the meaning of
section 3501(d). The County of Santa Clara is a public agency within the meaning of
section 3501(c).
Hiring and Placement
The County's Probation Department maintains a juvenile detention facility in San Jose.
Juvenile wards reside in the Juvenile Housing Unit. The Probation Department's laundry unit
cleans the wards' clothes and linens for the Juvenile Housing Unit and a juvenile ranch unit.
The Juvenile Housing Unit facility employs three full-time (regular) employees. A total of
three extra-help workers are on staff for both facilities. The normal work shift is 6:00 a.m. to
2:00 p.m., seven days per week. Laundry workers belong to the bargaining unit exclusively
represented by the Service Employees International Union Local 521 (SEIU).*
Kevin Cooper is the Probation Department's food services manage 	s charged
with oversight of the laundry facility. 	008, Cooper requested a civil service examination
for the position of Laundry Worke 	e job specifications described responsibility for
operating commercial-type washers in a large laundry facility. Tasks for the position included
SEIU is an employee organization within the meaning of section 3501(a).
2
On May 20, 2010, an informal settlement conference was held, but the matter was not
resolved.
On June
2,
2010, Jones filed a motion to amend the complaint. On July
1,
2010, the
motion was denied.
On November 9 and 10, 2010, a formal hearing was conducted in Oakland by the
undersigned. On January 18, 2011, the matter was submitted for decision upon receipt
of
post-
hearing briefs.
FINDINGS OF FACT
At all times relevant herein, Jones was a "public employee" within the meaning
of
section 3501 (d). 	The County
of
Santa Clara is a public agency within the meaning
of
section 3501(c).
Hiring and Placement
The County's Probation Department maintains a juvenile detention facility in San Jose.
Juvenile wards reside in the Juvenile Housing Unit. The Probation Department's laundry unit
cleans the wards' clothes and linens for the Juvenile Housing Unit and a juvenile ranch unit.
The Juvenile Housing Unit facility employs three full-time (regular) employees. A total
of
three extra-help workers are on staff for both facilities. The normal work shift is 6:00 a.m. to
2:00 p.m., seven days per week. 	Laundry workers belong to the bargaining unit exclusively
represented by the Service Employees International Union Local 521 (SEIU). 4
Kevin Cooper is the Probation Department's food services manager.r. He iis charged
with oversight of the laundry facility.In 2 2008, Cooper requested a civil service examination
for the position of Laundry Workerr II. Th	The job specifications described responsibility for
operating commercial-type washers in a large laundry facility. 	Tasks for the position included
SEIU is an	* 	employee organization within the meaning of section 3501(a).
2

the loading of sorted and weighed laundry, adding of soaps, bleaches and other solutions as
appropriate to the load, regulating the flow of laundry, and cleaning of the machines.
Jones competed successfully in the examination. Cooper was on the interview panel.
In ranking him eligible, Cooper relied on Jones' representation, set forth in a supplementary
questionnaire to the application, that he had three or more years of experience in a commercial
laundry and extensive knowledge and experience with commercial equipment. Jones noted
that he had received a bachelor's degree from San Jose State University in Industrial
Technology. One of his courses was in occupational safety and health. Cooper was pleased to
learn this. Jones also earned a masters degree in human resource management from Golden
Gate University.
Cooper expected Jones to communicate effectively, work well within the team, and
function independently. Cooper was impressed with Jones' communication skills.
Communication skills come into play when, for example, laundry workers seek the cooperation
of juvenile counselors in obtaining the wards' compliance with rules regarding the collection
of dirty laundry.
Jones was processed for employment as a probationary employee on March 6, 2009.
He reported for duty on March 9. Jerry Stodulka was the immediate supervisor. A typical
work day for Jones began with sorting the soiled laundry. After checking the machines,
laundry loads were run through their wash and dry cycles. Special orders were processed next.
After the laundering work was complete around 11:00 a.m., clean laundry was folded and
loaded onto laundry carts for delivery back to ousing units.
Grievances
Jones initiated two informal grievances with Stodulka. On March 15, 2009, Jones
complained to Stodulka about being denied overtime. Cooper testified regular overtime is not
3
the loading
of
sorted and weighed laundry, adding
of
soaps, bleaches and other solutions as
appropriate to the load, regulating the flow
of
laundry, and cleaning
of
the machines.
Jones competed successfully in the examination. Cooper was on the interview panel.
In ranking him eligible, Cooper relied on Jones' representation, set forth in a supplementary
questionnaire to the application, that he had three or more years
of
experience in a commercial
laundry and extensive knowledge and experience with commercial equipment. Jones noted
that he had received a bachelor's degree from San Jose State University in Industrial
Technology. One
of
his courses was in occupational safety and health. Cooper was pleased to
learn this. Jones also earned a masters degree in human resource management from Golden
Gate University.
Cooper expected Jones to communicate effectively, work well within the team, and
function independently. Cooper was impressed with Jones' communication skills.
Communication skills come into play when, for example, laundry workers seek the cooperation
of
juvenile counselors in obtaining the wards' compliance with rules regarding the collection
of
dirty laundry.
Jones was processed for employment as a probationary employee on March 6, 2009.
He reported for duty on March
9.
Jerry Stodulka was the immediate supervisor. A typical
work day for Jones began with sorting the soiled laundry. After checking the machines,
laundry loads were run through their wash and dry cycles. Special orders were processed next.
After the laundering work was compl.ete around
11
:00 a.m., clean laundry was folded and
loaded onto laundry carts for delivery back tothe hhousing units.
Grievances
Jones initiated two informal grievances with Stodulka. On March 15, 2009, Jones
complained to Stodulka about being denied overtime. Cooper testified regular overtime is not
3

normally offered to regular employees. Instead, the "extra-help" employees fill the gap. Jones
was temporarily assigned overtime hours as a result of the absence of both a regular employee
and an extra-help worker. When the extra-help worker returned, she was assigned the fill-in
duties.
Jones testified that Stodulka "skipped over him" and offered overtime to another
employee with "less status." Jones notified his SEIU job steward of the purported violation of
the memorandum of understanding (MOU) and stated his intention to file a formal grievance.
Jones does not identify any specific language in the MOU supporting his grievance.
A short time later, Jones complained to Stodulka in two separate matters about working
conditions in the laundry room. Jones testified that the counselors were failing to monitor the
wards' submission of their laundry resulting in irregular levels of washing. Jones believed this
resulted in a health and safety issue in the housing unit because dirty laundry was being left in
the minors' rooms, where germs could multiply. The other complaint concerned wards who
were knotting their laundry, despite rules against it. Cooper was informed of both complaints.
Cooper testified that Stodulka intended to address the laundry flow problem with the
counselors. He denied this was a health and safety issue. He seemed to recall Jones
complaining about the wards knotting up shirts and towels, but asserted that enforcement of
orders against knotting should not have been a concern of Jones. Jones maintained that his
complaint was lodged with some justification based on his training and experience.
Jones elevated his grievances beyond Stodulka's level. This was accomplished by
e-mail, as opposed to submitting them on the ievance form. Jones first contacted
Human Resources Operations Manager Joanne Cox, who is the human resources operations
manager for the County. Cox responded that she was referring the e-mail to Janice Lawton, a
labor relations specialist in the same department, whom Cox described as "handling" the
4
normally offered to regular employees. Instead, the "extra-help" employees fill the gap. Jones
was temporarily assigned overtime hours as a result
of
the absence
of
both a regular employee
and an extra-help worker. When the extra-help worker returned, she was assigned the fill-in
duties.
Jones testified that Stodulka "skipped over him" and offered overtime to another
employee with "less status." Jones notified his SEIU job steward
of
the purported violation
of
the memorandum
of
understanding (MOU) and stated his intention to file a formal grievance.
Jones does not identify any specific language in the MOU supporting his grievance.
A short time later, Jones complained to Stodulka in two separate matters about working
conditions in the laundry room. Jones testified that the counselors were failing to monitor the
wards' submission
of
their laundry resulting in irregular levels
of
washing. Jones believed this
resulted in a health and safety issue in the housing unit because dirty laundry was being left in
the minors' rooms, where germs could multiply. The other complaint concerned wards who
were knotting their laundry, despite rules against it. Cooper was informed
of
both complaints.
Cooper testified that Stodulka intended to address the laundry flow problem with the
counselors. He denied this was a health and safety issue. He seemed to recall Jones
complaining about the wards knotting up shirts and towels, but asserted that enforcement
of
orders against knotting should not have been a concern
of
Jones. Jones maintained that his
complaint was lodged with some justification based on his training and experience.
Jones elevated his grievances beyond Stodulka's level. This was accomplished by
e-mail, as opposed to submitting them on the SEIU gr grievance form. Jones first contacted
Human Resources Operations Manager Joanne Cox, who is the human resources operations
manager for the County. Cox responded that she was referring the e-mail to Janice Lawton, a
labor relations specialist in the same department, whom Cox described as "handling" the
4

Probation Department. The Probation Department has its own human relations section for
matters internal to the department (referred to as "Background/Human Resources"). Later,
Lawton responded, "You may submit [the grievance] to me, and I will forward a copy to the
Department. I will be the one to respond to your grievance." Despite a suggestion that he
contact SEIU, Jones indicated his preference for prosecuting the grievances on his own.
SEIU's MOU states that the first formal level of the grievance procedure is the
presentation of a written grievance to the "person designated by the appointing authority," with
a copy to the labor relations department. The second level is a presentation to the "County
Executive's designated representative."
Delores Nnam is the Probation Department's executive administrative services
manager. Cooper reports directly to her. Although she was not clear on the meaning of
"person designated by the appointing authority," Nnam testified that she expects grievances
will be presented informally to the "supervisor," followed by a formal meeting with the
supervisor (and typically the SEIU representative). She did not explain whether the first
formal level in Jones' case was with Stodulka or Cooper.
Jones also testified that he was fearful of talking with his SEIU job steward. Other
laundry workers had warned him not to complain. When Jones was introduced to an SEIU
worksite organizer in the laundry room, Stodulka looked at him with an expression of
disapproval. Stodulka did not testify.
April 3 Meeting
On April 3, 2009, toward the f the shift, around 1:40 p.m. Cooper approached
Jones and said they needed to talk. Jones testified he asked Cooper if it was a "good meeting
or a bad meeting." Cooper answered it was the latter. Cooper escorted Jones to the lunch area
5
Probation Department. The Probation Department has its own human relations section for
matters internal to the department (referred to as "Background/Human Resources"). Later,
Lawton responded, "You may submit [the grievance] to me, and I will forward a copy to the
Department. I will be the one to respond to your grievance." Despite a suggestion that
he
contact SEIU, Jones indicated his preference for prosecuting the grievances on his own.
SEIU's MOU states that the first formal level
of
the grievance procedure is the
presentation
of
a written grievance to the "person designated by the appointing authority," with
a copy to the labor relations department. The second level is a presentation to the "County
Executive's designated representative."
Delores Nnam is the Probation Department's executive administrative services
manager. Cooper reports directly to her. Although she was not clear on the meaning
of
"person designated by the appointing authority," Nnam testified that she expects grievances
will be presented informally to the "supervisor," followed by a formal meeting with the
supervisor (and typically the SEIU representative). She did not explain whether the first
formal level in Jones' case was with Stodulka or Cooper.
Jones also testified that he was fearful
of
talking with his SEIU job steward. Other
laundry workers had warned him not to complain. When Jones was introduced to an SEIU
worksite organizer in the laundry room, Stodulka looked at him with an expression
of
disapproval. Stodulka did not testify.
April 3 Meeting
On April 3, 2009, toward theend o
of
the shift, around 1:40 p.m. Cooper approached
Jones and said they needed to talk. Jones testified he asked Cooper
if
it was a "good meeting
or a bad meeting." Cooper answered it was the latter. Cooper escorted Jones to the lunch area
5

of a different building. Jones asked Cooper for his union representative, but Cooper refused.
Cooper said the meeting would proceed.
Cooper told Jones that he and Stodulka had tried to "make this department good," that
Jones was "making trouble for the department," and he should have come to Cooper first if he
was unsatisfied with Stodulka's response. He added that Jones should "just shut up and do
[his] job." Jones mentioned that he thought Cooper was pleased with his health and safety
background and believed he had been instructed to look for such issues. Jones added that he
was confused and asked if Cooper meant he could not file a grievance. Cooper responded,
"Put it like this, who do you work for. . . . You work for the probation department. And so if
you're going to be a team player then you be a team player. But if you're going to go off and
file a grievance left and right, well, I'm telling you, go through the proper chain of command."
At some point in the meeting, Cooper produced an already completed form entitled
"Employee Counseling" and handed it to Jones. In the body of the form, under the heading
"Topic(s) For Discussion," Cooper had written:
In order to preserve a harmonious work environment, any issues
and concerns you may have should be discussed with your
immediate supervisor. Furthermore, these issues should not be
discussed with coworkers in the laundry department. If at any
time you feel your issue or concern is not addressed adequately,
or in a timely manner, please take your concerns through the
chain of command in the Probation Department. I, Kevin
Cooper, Food Services Manager, would be the next person to
contact. My supervisor is Delores Nnam, Executive
Administrative Services Manager for the department and is
responsible for the Administrative Services Division to which we
belong. In turn, Her [sic] supervisor is Sheila Mitchell, Chief
Probation Officer.
In the future it is my expectation that any issues or concerns are
taken through the chain of command in the Probation
Department. Failure to follow this procedure could lead to
further disciplinary action up to and including separation.
6
of
a different building. Jones asked Cooper for his union representative, but Cooper refused.
Cooper said the meeting would proceed.
Cooper told Jones that he and Stodulka had tried to "make this department good," that
Jones was "making trouble for the department," and he should have come to Cooper first
if
he
was unsatisfied with Stodulka's response. He added that Jones should "just shut up and do
[his]
job."
Jones mentioned that he thought Cooper was pleased with his health andsafety
background and believed he had been instructed to look for such issues. Jones added
that
he
was confused and asked
if
Cooper meant he could not file a grievance. Cooper responded,
"Put it like this, who do you work for. . . . You work for the probation department.
And
so
if
you're
going to be a team player then.you be a team player. But
if
you're going to go
off
and
file a grievance left and right, well,
I'm
telling you, go through the proper chain
of
command."
At some point in the meeting, Cooper produced an already completed form entitled
"Employee Counseling" and handed it to Jones. In the body
of
the form, under the heading
"Topic(s) For Discussion," Cooper had written:
In order to preserve a harmonious work environment, any issues
and concerns you may have should be discussed with your
immediate supervisor. Furthermore, these issues should not be
discussed with coworkers in the laundry department.
If
at any
time you feel your issue or concern is not addressed adequately,
or in a timely manner, please take your concerns through the
chain
of
command in the Probation Department. I, Kevin
Cooper, Food Services Manager, would be the next person to
contact. My supervisor is Delores Nnam, Executive
Administrative Services Manager for the department and is
responsible for the Administrative Services Division to which we
belong. In tum, Her [sic] supervisor is Sheila Mitchell, Chief
Probation Officer.
In the future it is my expectation that any issues or concerns are
taken through the chain
of
command in the Probation
Department. Failure to follow this procedure could lead to
further disciplinary action up to and including separation.
6

Jones suggested that Cooper never made explicit the nature of the complaints he
allegedly raised with coworkers that prompted the counseling.
Cooper's version of the meeting differed in some material respects. Cooper sensed that
Jones' overall reaction to the meeting was positive. The meeting lasted for 45 minutes.
Cooper denied that Jones ever asked for a union representative. Cooper was aware the Jones
had raised some issues with Stodulka. His main objective was to quell a potential problem in
terms of Jones' relationships with his coworkers. Cooper had received the report that after
Jones was denied overtime, he told another worker that Cooper and Stodulka were "too stupid
to do their jobs." Jones also reportedly stated that Eva was "too stupid" to have passed the
qualifying examination for a regular position.
Cooper testified: "I explained to Mr. Jones that when I say not to discuss these matters
with the employees, I'm saying to create a harmonious work environment if you have issues
with someone's qualifications at work, do not discuss them with other employees because it
creates a[n] unharmonious work environment. You're telling the one employee that another
employee is too stupid to have her job and doesn't deserve her job. That's not what we do
here." Cooper also testified that he explained to Jones, "This is not about the grievance and
that he had every right to file a grievance." The point of emphasis was that Jones needed to
avoid disparaging the qualifications of others. Cooper ended the meeting by instructing Jones
to fill out the comments section on the counseling form and return it for further discussion.
Jones responded with the following comments: "I am confused and concerned that /
about hinderanc and/or retaliation as to said claus [sic] of union contract. As of 4/3/2009
I hav been provided with email, and phone # info as to 'counseling' with Mr. Cooper on
4/3/2009. I had not been even given a 'chain of command' procedure --- at all. Note: My
two grievances were filed prior to 4/3/2009. Also, I have never discussed any such issues with
7
Jones suggested that Cooper never made explicit the nature
of
the complaints he
allegedly raised with coworkers that prompted the counseling.
Cooper's version
of
the meeting differed in some material respects. Cooper sensed that
Jones' overall reaction to the meeting was positive. The meeting lasted for
45
minutes.
Cooper denied that Jones ever asked for a union representative. Cooper was aware the Jones
had raised some issues with Stodulka. His main objective was to quell a potential problem in
terms
of
Jones' relationships with his coworkers. Cooper had received the report that after
Jones was denied overtime, he told another worker that Cooper and Stodulka were "too stupid
to do their jobs." Jones also reportedly stated that Eva was "too stupid" to have passed the
qualifying examination for a regular position.
Cooper testified: "I explained to Mr. Jones that when I say not to discuss these matters
with the employees,
I'm
saying to create a harmonious work environment
if
you have issues
with someone's qualifications at work, do not discuss them with other employees because it
creates a[n] unharmonious work environment. You're telling the one employee that another
employee is too stupid to have her job and doesn't deserve her job. That's not what we do
here." Cooper also testified that he explained to Jones, "This is not about the grievance and
that he had every right to file a grievance." The point
of
emphasis was that Jones needed to
avoid disparaging the qualifications
of
others. Cooper ended the meeting by instructing Jones
to fill out the comments section on the counseling form and return it for further discussion.
Jones responded with the following comments: "I am confused and concerned
that/
about hinderance and/or retaliation as to e [sic] said claus [sic]
of
union contract. As of 4/3/2009
I havee not been provided with email, and phone# info as to 'counseling' with Mr. Cooper on
4/3/2009. I had not been even given a 'chain of command' procedure --- at all. Note: My
two grievances were filed prior to 4/3/2009. Also, I have never discussed any such issues with
7

co-workers." Jones added that Cooper had promised him a booklet containing the chain of
command.
On cross-examination, Jones attempted to elicit Cooper's admission that the meeting
was a factfinding mission. Cooper denied this, claiming that since Jones was only a two-week
employee with whom he had never spoken, the meeting was intended to be a forward-looking
counseling session. Jones also attempted to elicit Cooper's admission that he engaged in
questioning for investigative purposes. Cooper denied this as well. Jones identified no
specific questions that were posed. Cooper confirmed that a counseling memorandum is not
considered discipline and is not placed in the personnel file.
Corroborating Cooper, Nnam testified it was her understanding from Cooper that he
was meeting to address Jones' criticisms of other employees. Cooper reported to Nnam on the
meeting after it occurred.
I credit Cooper's denial that Jones asked for a union representative. Based on his
demeanor and the overall presentation of his case, I did not have confidence in Jones'
recollection of events. Jones was nervous and combative, and while he demonstrated some
skill in presenting his case, his evasiveness on cross-examination and the shading of many of
his answers betrayed a decidedly subjective outlook on the events in question. Cooper, on the
other hand, was reserved and professional during the hearing, including the times he was
present as an observer.
The logical probabilities favor Cooper as we ontext of the meeting and Jones'
decision to forego SEIU representation lead me to doubt he would ask for a representative
(especially during his first face-to-face contact with Cooper) on the sole basis that Cooper told
There were a couple of notable instances of bolstering. For example, in his e-mail
correspondence complaining about the late laundry, Jones asserted that germs would multiply.
At the hearing he suggested that the wards placed feces in the towels.
8
co-workers." Jones added that Cooper had promised him a booklet containing the chain
of
command.
On cross-examination, Jones attempted to elicit Cooper's admission that the meeting
was a factfinding mission. Cooper denied this, claiming that since Jones was only a two-week
employee with whom he had never spoken, the meeting was intended to be a forward-looking
counseling session. Jones also attempted to elicit Cooper's admission that he engaged in
questioning for investigative purposes. Cooper denied this as well. Jones identified no
specific questions that were posed. Cooper confirmed that a counseling memorandum is not
considered discipline and is not placed in the personnel file.
Corroborating Cooper, Nnam testified it was her understanding from Cooper that he
was meeting to address Jones' criticisms
of
other employees. Cooper reported to Nnam on the
meeting after it occurred.
I credit Cooper's denial that Jones asked for a union representative. Based on his
demeanor and the overall presentation
of
his case, I did not have confidence in Jones'
recollection
of
events. Jones was nervous and combative, and while he demonstrated some
skill in presenting his case, his evasiveness on cross-examination and the shading
of
many
of
his answers betrayed a decidedly subjective outlook on the events in question.5 Cooper, on the
other hand, was reserved and professional during the hearing, including the times he was
present as an observer.
The logical probabilities favor Cooper as well. ll. The ccontext
of
the meeting and Jones'
decision to forego SEIU representation lead me to doubt he would ask for a representative
( especially during his first face-to-face contact with Cooper) on the sole basis that Cooper told
5 There were a couple of notable instances of bolstering. For example, in his e-mail
correspondence complaining about the late laundry, Jones asserted that germs would multiply.
At the hearing he suggested that the wards placed feces in the towels.
8

him it was not going to be a "good" meeting. Most new probationary employees would be
reluctant to involve the union on the basis of so little information for fear of creating a negative
impression. Cooper noted that Jones seemed to be seeking reassurance that he would be able
to pass probation. Then, too, since the counseling memorandum had been drafted before the
meeting, and it confirms the purpose was corrective action rather than discipline, there would
have been no reason for Cooper to approach the meeting with investigatory purposes. I was
left with the strong impression that Jones' version of the meeting was crafted after-the-fact
with a view to establishing the elements of his Weingarten allegation.
Shortly after the meeting, Jones lodged a third grievance by e-mail alleging a denial of
his
Health Complaints and Commencement of Medical Treatment
Jones testified that during the April 3 meeting he complained about nosebleeds suffered
that day. Jones had not suffered nosebleed before that day. Although he apparently did not
express this to Cooper, Jones attributed the nosebleeds to chlorine vapors in the laundry room.
Jones had noted the presence of a strong odor of chlorine when entering the facility in the
morning. Taking the initiative to investigate, he discovered that the ventilation system was not
working properly.
Cooper denied Jones complained about nosebleeds, but admitted he asked if he could
wear a protective mask. Cooper learned of the nosebleeds in an e-mail from Jones, during the
subsequent time when Jones had not been appearing for work. Again, I credit Cooper on this
point based on his more credible presentation.
ones' written response to the counseling memorandum, wherein he complains he was
never provided a copy of the organizational chart for chain-of-command purposes corroborates
the thrust of Cooper's testimony. Jones testified that following the chain of command in his
case was excused because Cooper had already threatened him regarding his grievance activity.
him it was not going to be a "good" meeting. Most new probationary employees would be
reluctant to involve the union on the basis
of
so
little information for fear
of
creating a negative
impression. Cooper noted that Jones seemed
to
be seeking reassurance that he would be able
to pass probation. Then, too, since the counseling memorandum had been drafted before the
meeting, and it confirms the purpose was corrective action rather than discipline, there would
have been no reason for Cooper to approach the meeting with investigatory purposes. I was
left with the strong impression that Jones' version
of
the meeting was crafted after-the-fact
with a view to establishing the elements
of
his Weingarten allegation. 6
Shortly after the meeting, Jones lodged a third grievance by e-mail alleging a denial
of
his Weingarten rights.
Weingarte11i
rights.
Health Complaints and Commencement
of
Medical Treatment
Jones testified that during the April 3 meeting he complained about nosebleeds suffered
that day. Jones had not suffered nosebleed before that day. Although he apparently did not
express this to Cooper, Jones attributed the nosebleeds to chlorine vapors in the laundry room.
Jones had noted the presence
of
a strong odor
of
chlorine when entering the facility in the
morning. Taking the initiative to investigate, he discovered that the ventilation system was not
working properly.
Cooper denied Jones complained about nosebleeds, but admitted he asked
if
he could
wear a protective mask. Cooper learned
of
the nosebleeds in an e-mail from Jones, during the
subsequent time when Jones had not been appearing for work. Again, I credit Cooper on this
point based on his more credible presentation.
9
J Jones' written response to the counseling memorandum, wherein he complains he was
never provided a copy of the organizational chart for chain-of-command purposes corroborates
the thrust of Cooper's testimony. Jones testified that following the chain of command in his
case was excused because Cooper had already threatened him regarding his grievance activity.

Cooper was aware of the malfunctioning vent. Stodulka told him that a work order had
been submitted for its repair. Jones testified that Eva told him that the faulty vent had
aggravated her asthma. In response to this issue, instructions were issued to keep the windows
open. Cooper experienced the smell of chlorine during the washing cycles, but believed the
odor ceased when the laundry operations were completed, usually around 1 1:00 a.m. No other
employees had complained about the smell. Cooper appeared to be skeptical that the vapors
could be a serious problem, noting that the chlorine was automatically dispensed from closed
containers connected to the machines with tubing and rubber stoppers.
On April 6, 2009, Jones e-mailed the Probation Department's human resources
representative seeking to expedite his enrollment for medical coverage. He stated he needed to
see a doctor regarding eye irritation and nosebleeds "as to work conditions." The next day
Jones received confirmation of enrollment with Kaiser Permanente. However, because Jones
reported the condition as possibly work-related, the human resources representative instructed
Jones to see the County's workers' compensation medical group, U.S. Healthworks, as well.
Jones was told to obtain the appropriate forms from Stodulka. On April 7, Cooper confirmed
this instruction and directed to proceed to the County's doctor.
Also on April 6, Nnam sent an e-mail to Jones stating she was in receipt of his
grievances and was requesting a meeting to discuss them on April 10. The e-mail states that
Jones was welcome to bring a union representative. Lawton was copied on the e-mail. The
same day, Jones responded by "respectfully request[ing] that [Nnam] cease and desist and
follow the union contract as to such." He cited the fact that the grievances were at the formal
stage.'
"Ultimately, a principal labor relations representative from the Office of Labor
Relations informed Jones on April 20, 2009, that the three grievances mentioned, as well as
nine others Jones had presented, were being denied because Jones refused to discuss the issues
10
Cooper was aware
of
the malfunctioning vent. Stodulka told him that a work order had
been submitted for its repair. Jones testified that Eva told him that the faulty vent had
aggravated her asthma. In response to this issue, instructions were issued to keep the windows
open. Cooper experienced the smell
of
chlorine during the washing cycles, but believed the
odor ceased when the laundry operations were completed, usually around 11:00 a.m.
No
other
employees had complained about the smell. Cooper appeared to be skeptical that the vapors
could be a serious problem, noting that the chlorine was automatically dispensed from closed
containers connected to the machines with tubing and rubber stoppers.
On April 6, 2009, Jones e-mailed the Probation Department's human resources
representative seeking to expedite his enrollment for medical coverage. He stated he needed to
see a doctor regarding eye irritation and nosebleeds "as to work conditions." The next day
Jones received confirmation
of
enrollment with Kaiser Permanente. However, because Jones
reported the condition as possibly work-related, the human resources representative instructed
Jones to see the County's workers' compensation medical group, U.S. Healthworks, as well.
Jones was told to obtain the appropriate forms from Stodulka. On April 7, Cooper confirmed
this instruction and directed to proceed to the County's doctor.
Also on April 6, Nnam sent an e-mail to Jones stating she was in receipt
of
his
grievances and was requesting a meeting to discuss them on April 10. The e-mail states that
Jones was welcome to bring a union representative. Lawton was copied on the e-mail. The
same day, Jones responded by "respectfully request[ing] that [Nnam] cease and desist and
follow union contract as to such." cited fact that the grievances were at the formal
stage. 7
7 Ultimately, a principal labor relations representative from the Office of Labor
Relations informed Jones on April 20, 2009, that the three grievances mentioned, as well as
nine others Jones had presented, were being denied because Jones refused to discuss the issues
10

On or about April 7, Cooper replied in writing to Jones' response to the counseling
memorandum. He promised to provide Jones a department organizational chart. Cooper was
unable to meet with Jones that day and for several days thereafter because Jones had taken
time off to seek medical treatment. Also on April 7, Nnam sent an e-mail to Jones confirming
the April 10 meeting, adding that his failure to attend would be viewed as insubordination.
On April 7, Jones executed an unfair practice charge alleging retaliation, coercion and
threats against his job security as a result of having filed grievances."
On April 8, Jones visited his Kaiser physician. He was directed to use a face mask
when exposed to chlorine fumes and obtain an over-the-counter saline spray to keep his
nostrils moist. The next day, a second Kaiser physician generated a note verifying that Jones
was ill and unable to attend work from April 9, through April 10, 2009, but was cleared for
return on April 11 without restrictions.
On April 10, Jones was seen by the U.S. Healthworks physician regarding his
nosebleeds. The progress report states that the physician discussed the matter with Cooper.
The physician inquired with Cooper about the chlorine issue. Cooper responded by explaining
that the chlorine was stored in enclosed containers. The physician concluded that the condition
was not work related, and he released Jones to return to work without restrictions.
At the same appointment, Jones complained about shortness of breath and was given a
lung capacity test. He asserted that the test confirmed he had an abnormal condition,
with either his supervisor or a labor relations representative, and thus the County was without a
basis to substantiate any of the claims.
According to e-mails from Jones presented by the County, the authenticity of which
was not disputed, Jones filed charges with the National Labor Relations Board (NLRB) and the
Occupational Health and Safety Administration on April 8.
11
On or about April
7,
Cooper replied in writing to Jones' response to the counseling
memorandum. He promised to provide Jones a department organizational chart. Cooper was
unable to meet with Jones that day and for several days thereafter because Jones had taken
time
off
to seek medical treatment. Also on April 7, Nnam sent an e-mail to Jones confirming
the April
10
meeting, adding that his failure to attend would be viewed as insubordination.
On April 7, Jones executed an unfair practice charge alleging retaliation, coercion and
threats against his job security as a result
of
having filed grievances. 8
On April
8,
Jones visited his Kaiser physician. He was directed to use a face
mask
when exposed to chlorine fumes and obtain an over-the-counter saline spray to keep his
nostrils moist. The next day, a second Kaiser physician generated a note verifying that Jones
was ill and unable to attend work from April 9, through April 10, 2009, but was cleared for
return on April
11
witho1 ! t restrictions.
On April 10, Jone 5 was seen by the U.S. Healthworks physician regarding his
nosebleeds. The progres: report states that the physician discussed the matter with Cooper.
The physician inquired with Cooper about the chlorine issue. Cooper responded by explaining
that the chlorine was stored in enclosed containers. The physician concluded that the condition
was not work related, and he released Jones to return to work without restrictions.
At the same appointment, Jones complained about shortness
of
breath and was given a
lung capacity test. He asserted that the test confirmed he had an abnormal condition, lung
with either his supervisor or a labor relations representative, and thus the County was without a
basis to substantiate any of the claims.
8 According to e-mails from Jones presented by the County, the authenticity of which
was not disputed, Jones filed charges with the National Labor Relations Board (NLRB) and the
Occupational Health and Safety Administration on April 8.
11

which he attributes to asthma. Nowhere do the test results state such a deficiency. The only
notation suggestive of the overall results states: "normal spirometry."
Cooper expected Jones to be at work on April 10. However, because Jones submitted a
request for bereavement leave for the passing of his grandmother, he was granted leave for
April 10 and 11.
On April 10, Jones informed Cooper of his desire to initiate a reasonable
accommodation request due to asthma. Cooper responded with an e-mail, attaching the
appropriate forms and directing Jones to file his "Form A" with Probation Department Equal
Employment Opportunity Officer Rebecca Flores. Also on April 10, Jones notified Cooper by
e-mail that due to his nosebleed diagnosis he would be absent on April 11, 12, and 13, and that
he would provide further information following a doctor's appointment on April 13.
On April 13, Jones was examined by a Kaiser internal medicine physician. A report
generated by the doctor states that Jones was seen for nosebleeds. No definitive cause was
described, though high blood pressure was suggested as a possible cause. Jones received a
referral to the allergy clinic for evaluation of allergies.
Reasonable Accommodation Request
Following the Kaiser appointment but also on April 13, 2009, Jones called Flores
around 1:00 p.m. He asked for directions to her office and an appointment to review his
Form A. Flores responded that she was available later that day and the afternoon of the next.
Shortly after the call ended, Flores was surprised by a second call from Jones, announcing he
was in the lobby. Flores obliged Jones by meeting him and accepting his form. Since she had
time and wanted to review the form in his presence, she asked Jones to go to her office for that
purpose. Jones declined, stating he did not have the time.
12
which he attributes to asthma. Nowhere do the test results state such a deficiency. The only
notation suggestive
of
the overall results states: "normal spirometry."
12
Cooper expected Jones to be at work on April
10.
However, because Jones submitted a
request for bereavement leave for the passing
of
his grandmother, he was granted leave for
April
10
and 11.
On April 10, Jones informed Cooper
of
his desire to initiate a reasonable
accommodation request due to asthma. Cooper responded with an e-mail, attaching the
appropriate forms and directing Jones to file his "Form A" with Probation Department Equal
Employment Opportunity Officer Rebecca Flores. Also on April 10, Jones notified Cooper by
e-mail that due to his nosebleed diagnosis he would be absent on April 11, 12, and 13, and that
he would provide further information following a doctor's appointment on April 13.
On April 13, Jones was examined by a Kaiser internal medicine physician. A report
generated by the doctor states that Jones was seen for nosebleeds. No definitive cause was
described, though high blood pressure was suggested as a possible cause. Jones received a
referral to the allergy clinic for evaluation
of
allergies.
Reasonable Accommodation Request
Following the Kaiser appointment but also on April 13, 2009, Jones called Flores
around 1:00 p.m. He asked for directions to her office and an appointment to review his
Form Flores responded that she was available later that day and the afternoon
of
the next.
Shortly after the call ended, Flores was surprised by a second call from Jones, announcing he
was in the lobby. Flores obliged Jones by meeting him and accepting his form. Since she had
time and wanted to review the form his presence, she asked Jones to go to her office for that
purpose. Jones declined, stating he did not have the time.

According to Jones, Flores intimated that day that his reasonable accommodation
request would "go favorably" if he dropped his discrimination/retaliation claims. Flores
denied making such a statement. I credit Flores. Flores was not assigned to the human
resources area that handles grievances, and there is no evidence suggesting she would have
been aware of Jones' grievances. She denied as much. Moreover, Flores had previous
experience adjudicationg reasonable accommodation claims for the Department of Fair
Employment and Housing (DFEH). Her demeanor throughout the hearing was professional. I
doubt that a person with her background would make a risky offer that would compromise the
County's obligation to comply with all employment laws simultaneously.
Later that day, Jones sent Flores an e-mail to confirm delivery of the Form A. He
ended with the following: "Also, please take note of the fact that until my ADA request is
resolved (e.g. approved) I will remain on 'sick' leave (paid or unpaid) . . . which means I will
not be at work until said resolution." Jones testified that Flores granted him time off to
complete his medical appointments. He believed this extended to April 30, 2009. Flores
testified that she has no authority to approve time off."
The County's written response to Jones' DFEH discrimination complaint contained a
reference that he was granted time off for medical appointments. The response does not
identify Flores by name and does not indicate what appointments were covered. In his post-
hearing brief, Jones attaches as an exhibit a letter signed by Flores dated April 13, 2009, with
notations "Confidential" and "In person / Hand Delivery." No attempt was made to introduce
it at the hearing, and thus it is not considered as evidence. Jones offered no testimony that a
letter from Flores was hand-delivered on April 13, the first day he met her in person. Flores
purportedly writes, "As of April 13, 2009 this office grants your request for time off work. . . .
Please take note your expected return to work is April 30, 2009." As noted above, according
to the version of the Form A presented by the County, the form it claims to have received
contains no request to April 30. At the hearing, Jones was asked if he had something in
writing from Flores excusing him beyond April 13. He said he had something, but could not
locate it. Though the April 13 letter was provided to PERB prior to the hearing, it remains
suspicious in terms of authenticity, and like the differing Form A, casts further doubt on Jones'
credibility.
13
According to Jones, Flores intimated that day that his reasonable accommodation
request would "go favorably" if he dropped his discrimination/retaliation claims. Flores
denied making such a statement. I credit Flores. Flores was not assigned to the human
resources area that handles grievances, and there is no evidence suggesting she would have
been aware of Jones' grievances. She denied as much. Moreover, Flores had previous
experience adjudicating reasonable accommodation claims for the Department of Fair
Employment and Housing (DFEH). Her demeanor throughout the hearing was professional. I
doubt that a person with her background would make a risky offer that would compromise the
County's obligation to comply with all employment laws simultaneously.
Later that day, Jones sent Flores an e-mail to confirm delivery of the Form A. He
ended with the following: "Also, please take note of the fact that until my ADA request is
resolved (e.g. approved) I will remain on 'sick' leave (paid or unpaid) ... which means I will
not be at work until said resolution." Jones testified that Flores granted him time off to
complete his medical appointments. He believed this extended to April 30, 2009. Flores
testified that she has no authority to approve time off.9
13
" The County's written response to Jones' DFEH discrimination complaint contained a
reference that he was granted time off for medical appointments. The response does not
identify Flores by name and does not indicate what appointments were covered. In his post-
hearing brief, Jones attaches as an exhibit a letter signed by Flores dated April 13, 2009, with
notations "Confidential" and "In person/ Hand Delivery." No attempt was made to introduce
it at the hearing, and thus it is not considered as evidence. Jones offered no testimonythat a
letter from Flores was hand-delivered on April 13, the first day he met her in person. Flores
purportedly writes, "As of April 13, 2009 this office grants your request for off work. ...
Please take note your expected return to work is April 30, 2009." As noted above, according
to the version of the Form A presented by the County, the form it claims to have received
contains no request to April 30. At the hearing, Jones was asked if he had something in
writing from Flores excusing him beyond April 13. He said he had something, butcould not
locate it. Though the April 13 letter was provided to PERB prior to the hearing, it remains
suspicious in terms of authenticity, and like the differing Form A, casts further doubt on Jones'
credibility.

In the Form A, Jones states his medical in the following terms: "Eye and
nose irritation to smells/oders (sic) related to Laundry Dept. and/or soiled linen thereto, due to
resulting 'hyper-sensitivity' of employee to same." Jones' reasonable accommodation request
pertained to the following duties: (1) "Sorting & handling dirty laundry and/or solvents
thereto without 'breathing mask' (e.g. N-95 mask);" and (2) "Allow temporary work hour
change to 6 am to 12:00 noon for 4-weeks to allow for not having to have lunch period in said
facility. And to allow for specific possible allergies to be discovered and tested."
Flores determined that the request lacked sufficient documentation to be approved,
specifically, the absence of medical documentation supporting the need for work restrictions.
The documentation included the U.S. Healthworks report and accompanying spirometry report,
the April 8 Kaiser report, and an appointment scheduled for the next day, April 14, with the
Kaiser allergy department.
At the hearing, Jones presented a different copy of the Form A. It contained an
additional note at the bottom stating: "I have an appointment with an allergist on 4/14/09 (see
attached appointment confirmation). I need time off of work as an accommodation of approx
(est) 3 weeks for anticipated further medical appointments / attention to items noted in A.
above." (Italics added.)
Jones attended his April 14 appointment. According to documents generated from that
visit, the physician prescribed an allergy plan, including use of a nasal spray and antihistamine
tablets to address runny nose and itchy eyes. An asthma plan was also prescribed, which
included a prescription for an albuterol inhaler. Jones scheduled a follow-up visit on April 27
with the allergy clinic. Jones presented no evidence of treatment for asthma prior to working
for the County.
14
In the Form A, Jones states his medical conditionin the following terms: "Eye
and
nose irritation to smells/oders (sic) related to Laundry Dept. and/or soiled linen thereto, due to
resulting 'hyper-sensitivity'
of
employee to same." Jones' reasonable accommodation request
pertained to the following duties: (1) "Sorting & handling dirty laundry and/or solvents
thereto without 'breathing mask' (e.g. N-95 mask);" and (2) "Allow temporary work
hour
change to 6 am to 12:00 noon for 4-weeks to allow for not having to have lunch period
in
said
facility. And to allow for specific possible allergies to be discovered and tested."
condition
Flores determined that the request lacked sufficient documentation to be approved,
specifically, the absence
of
medical documentation supporting the need for work restrictions.
The documentation included the U.S. Healthworks report and accompanying spirometry report,
the April 8 Kaiser report, and an appointment scheduled for the next day, April 14, with the
Kaiser allergy department.
At the hearing, Jones presented a different copy
of
the Form A. It contained an
additional note at the bottom stating: "I have an appointment with an allergist on 4/14/09 (see
attached appointment confirmation). I need time
off
of
work as an accommodation
of
approx
(est) 3 weeks for anticipated further medical appointments I attention to items noted in A.
above." (Italics added.)
Jones attended his April 14 appointment. According to documents generated from that
visit, the physician prescribed an allergy plan, including use
of
a nasal spray and antihistamine
tablets to address runny nose and itchy eyes. An asthma plan was also prescribed, which
included a prescription for an albuterol inhaler. Jones scheduled a follow-up visit on April 27
with the allergy clinic. Jones presented no evidence
of
treatment for asthma prior to working
for the County.
14

Early on April 14, Jones notified Flores in an e-mail that while attending his
appointment he would be unavailable by telephone and asked Flores to send him any questions
by e-mail. Flores responded, asking for clarification as to whether e-mail was his preferred
mode of communication. In the final e-mail of the day Jones replied that e-mail was his
preference. He noted that he had complaints pending with the DFEH and PERB.
Jones admitted that he did not have a written doctor's verification excusing him from
work after April 13.
County's Decision to Release
On April 15, Cooper sent a letter to Jones citing his absences on April 11, 12, and 13
as being unauthorized in the absence of a doctor's excuse. The letter referenced the MOU,
which requires a physician's verification for sick leave in excess of three working days.
Cooper granted Jones until April 20 to provide a doctor's note covering his days of absence,
and to report back to work immediately unless he presented verification of the need for
additional days off for medical reasons. The letter warned of disciplinary action up to and
including termination.
Jones did not report to work as directed. He testified he was justified in doing so
because Flores had granted him permission until April 30 to complete his medical assessments.
In his April 13 e-mail stating his intent not to return to work, he characterized the basis as his
need to resolve the reasonable accommodation issue to his satisfaction (i.e., "until said
resolution"). Jones did not point to any specific e-mail or verbal statement of such grant of
permission, but appears to rely on Flores' silence in the face of his claimed need for further
medical assessments, and the note on his version of the Form A notifying her of the request for
time to April 30.10
But see footnote 9, above.
15
Early on April 14, Jones notified Flores in an e-mail that while attending his
appointment he would be unavailable by telephone and asked Flores to send him any questions
by e-mail. Flores responded, asking for clarification as to whether e-mail was his preferred
mode
of
communication. In the final e-mail
of
the day Jones replied that e-mail was his
preference. He noted that he had complaints pending with the DFEH and PERB.
Jones admitted that he did not have a written doctor's verification excusing him from
work after April 13.
County's Decision to Release
On April 15, Cooper sent a letter to Jones citing his absences on April 11, 12, and
13
as being unauthorized in the absence
of
a doctor's excuse. The letter referenced the MOU,
which requires a physician's verification for sick leave in excess
of
three working days.
Cooper granted Jones until April 20 to provide a doctor's note covering his days
of
absence,
and to report back to work immediately unless he presented verification
of
the need for
additional days off for medical reasons. The letter warned
of
disciplinary action up to and
including termination.
Jones did not report to work as directed. He testified he was justified in doing so
because Flores had granted him permission until April 30 to complete his medical assessments.
In his April
13
e-mail stating his intent not to return to work, he characterized the basis as his
need to resolve the reasonable accommodation issue to his satisfaction (i.e., "until said
resolution"). Jones did not point to any specific e-mail or verbal statement
of
such grant
of
permission, but appears to rely on Flores' silence the face of his claimed need for
medical assessments, and the note on his version of the Form A notifying of the request for
time to April 30. 10
1 But see footnote 9, above.
15

By letter dated April 21, 2009, Nnam notified Jones that the department was releasing
him from his probationary status as a Laundry Worker II. The merit system rule identifying
absence without leave as justifiable cause was cited as the basis for the decision. Nnam noted
the April 10 Healthworks and April 13 Kaiser notes were the only documentation that could be
considered a response to Cooper's April 15 demand for a doctor's excuse. Neither provider
excused Jones from work or identified medical restrictions as to regular duties.
By letter dated April 23, 2009, Jones requested an administrative hearing. The County
scheduled one for May 11, 2009. On May 5, Jones submitted a written response in lieu of
appearance. The County's administrative review officer reviewed Jones' written submission
and found nothing to justify the unauthorized absences. The release was upheld.
Jones submitted a letter dated November 2, 2010, from an allergy and asthma physician
stating that Jones has been an asthma patient since March 22, 2010.
ISSUES
1 . Did Cooper interfere with Jones' right to engage in protected activities by
instructing him on April 3, 2009, that his issues and concerns were to be discussed with his
immediate supervisor and not with coworkers in the laundry department?
2. Did Cooper deny Jones his Weingarten right during the April 3 meeting?
Did the County discriminate against Jones by releasing him from probation
because he had engaged in protected activities?
CONCLUSIONS OF LAW
Interference
The test for whether a respondent has interfered with the rights of employees under
the MMBA does not require proof of unlawful motive, only a showing of at least slight
harm to employee rights resulting from the challenged conduct. It has been stated that
16
By letter dated April 21, 2009, Nnam notified Jones that the department was releasing
him from his probationary status as a Laundry Worker II. The merit system rule identifying
absence without leave as justifiable cause was cited as the basis for the decision.
Nnam
noted
the April 10 Healthworks and April
13
Kaiser notes were the only documentation that could be
considered a response to Cooper's April
15
demand for a doctor's excuse. Neither provider
excused Jones from work or identified medical restrictions as to regular duties.
By letter dated April 23, 2009, Jones requested an administrative hearing. The County
scheduled one for May 11, 2009. On May 5, Jones submitted a written response in lieu
of
appearance. The County's administrative review officer reviewed Jones' written submission
and found nothing to justify the unauthorized absences. The release was upheld.
Jones submitted a letter dated November 2, 2010, from an allergy and asthma physician
stating that Jones has been an asthma patient since March 22, 2010.
ISSUES
1.
Did Cooper interfere with Jones' right to engage in protected activities by
instructing him on April 3, 2009, that his issues and concerns were to be discussed with his
immediate supervisor and not with coworkers in the laundry department?
2. Did Cooper deny Jones his Weingarten right during the April 3 meeting?
3. 3. Did the County discriminate against Jones by releasing him from probation
because he had engaged protected activities?
CONCLUSIONS OF LAW
Interference
The test for whether a respondent has interfered with the rights
of
employees under
the MMBA does not require proof of unlawful motive, only a showing of at least slight
harm to employee rights resulting from the challenged conduct. It has been stated that "[alll "[a
]11
16

[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." (Public
Employees Assn. v. Board of Supervisors (1985) 167 Cal.App.3d 797, 807.)
Whether statements made to an employee are coercive is judged by an objective
standard. The question is whether under the circumstances the statements would reasonably
tend to coerce employees in the exercise of their rights. (Clovis Unified School District (1984)
PERB Decision No. 389, pp. 14-15.)
In his post-hearing brief, Jones does not address the interference claim contained in the
complaint. Nevertheless, the complaint refers to the April 3 meeting, and the issue reasonably
construed is whether Cooper's counseling and the accompanying memorandum, instructing
Jones to follow the chain of command and not to speak to other employees about his "issues
and concerns," constituted a threat or otherwise coercive statement. This must be determined
in the context of the exchange between the two during their face-to-face meeting.
Cooper acknowledged awareness of Jones' grievances and his issues surrounding them.
Cooper credibly testified that he attempted to assure Jones he did not object to the grievances
themselves. Although Cooper did not explicitly identify the filing of the grievances with the
County's human resources department rather than internally, the counseling regarding the
chain-of-command and behind-the-back criticisms of coworkers suggests the more plausible
explanation for the counseling. Because Jones never attempted to resolve his issues with
Cooper informally prior to filing formal grievances, this, too, informs the question of Cooper's
intent in counseling Jones.
17
[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." (Public
Employees Assn. v. Board of Supervisors (1985) 167 Cal.App.3d 797, 807.)
,
Whether statements made to an employee are coercive is judged by an objective
standard. The question is whether under the circumstances the statements would reasonably
tend to coerce employees in the exercise of their rights. (Clovis Unified School District (1984)
PERB Decision No. 389, pp. 14-15.)
In his post-hearing brief, Jones does not address the interference claim contained in the
complaint. Nevertheless, the complaint refers to the April 3 meeting, and the issue reasonably
construed is whether Cooper's counseling and the accompanying memorandum, instructing
Jones to follow the chain of command and not to speak to other employees about his "issues
and concerns," constituted a threat or otherwise coercive statement. This must be determined
in the context of the exchange between the two during their face-to-face meeting.
Cooper acknowledged awareness of Jones' grievances and his issues surrounding them.
Cooper credibly testified that he attempted to assure Jones he did not object to the grievances
themselves. Although Cooper did not explicitly identify the filing of the grievances with the
County's human resources department rather than internally, the counseling regarding the
chain-of-command and behind-the-back criticisms of coworkers suggests the more plausible
explanation for the counseling. Because Jones never attempted to resolve his issues
Cooper informally prior to filing formal grievances, this, too, informs the question of Cooper's
intent in counseling Jones.
17

The fact that Cooper followed up his verbal counseling with the written memorandum
turns the focus to the contents of the memorandum. If Cooper intended to issue a threat, it is
unlikely he would have commemorated the counseling in writing. He would have chosen to
avoid any record of the meeting. Thus, there is a strong likelihood that the memorandum
mirrored what was conveyed in the meeting. The memorandum was carefully constructed and
consistent in emphasizing one particular point: raising issues through the chain of command.
Cooper specifically identifies the chain of command starting with the "immediate supervisor"
(Stodulka's name is not actually mentioned), himself, and then Nnam. Although the warning
to Jones not to discuss his issues with coworkers remains a questionable statement by
suggesting disapproval with concerted activity, it is set within the context of the chain-of-
command instruction.
As to additional statements made during the meeting, Cooper did not specifically deny
that he was upset with Jones for making his department look bad and instructed Jones to shut
up and focus on his work. And Jones asserted that Cooper never revealed precisely what kind
of unrest he had allegedly fomented with coworkers. Regardless, these kinds of statements do
not rise to the level of an unlawful threat when considered in context. The essential point was
that matters outside of Jones' immediate control and responsibility should not concern him. A
closely related point was that Jones should stop disparaging Cooper, Stodulka and Eva in front
of his coworkers for their purported incompetence. Avoidance of gossip, disparaging and
potentially insubordinate commentary in the workplace is consistent with this purpose. (See
Oakland Unified School District (2007) PERB Decision No. 1880, pp. 20-21 [personal attack
not advancing any legitimate employee interests].)" By filing formal grievances with the
"Jones' inability to comply with reasonable directives was revealed, when three days
after the counseling memorandum, he rebuffed Nnam's instruction to meet with her to address
18
The fact that Cooper followed up his verbal counseling with the written memorandum
turns the focus to the contents of the memorandum. If Cooper intended to issue a threat, it is
unlikely he would have commemorated the counseling in writing. He would have chosen to
avoid any record of the meeting. Thus, there is a strong likelihood that the memorandum
mirrored what was conveyed in the meeting. The memorandum was carefully constructed and
consistent in emphasizing one particular point: raising issues through the chain of command.
Cooper specifically identifies the chain of command starting with the "immediate supervisor"
(Stodulka's name is not actually mentioned), himself, and then Nnam. Although the warning
to Jones not to discuss his issues with coworkers remains a questionable statement by
suggesting disapproval with concerted activity, it is set within the context of the chain-of-
command instruction.
As to additional statements made during the meeting, Cooper did not specifically deny
that he was upset with Jones for making his department look bad and instructed Jonesto shut
up and focus on his work. And Jones asserted that Cooper never revealed precisely what kind
of unrest he had allegedly fomented with coworkers. Regardless, these kinds of statements do
not rise to the level of an unlawful threat when considered in context. The essential point was
that matters outside of Jones' immediate control and responsibility should not concern him. A
closely related point was that Jones should stop disparaging Cooper, Stodulka and Evain front
of his coworkers for their purported incompetence. Avoidance of gossip, disparaging and
potentially insubordinate commentary in the workplace is consistent with this purpose. (See
Oakland Unified School District (2007) PERB Decision No. 1880, pp. 20-21 [personal attack
not advancing any legitimate employee interests].)11 By filing formal grievances with the
11 Jones' inability to comply with reasonable directives was revealed, when three days
after the counseling memorandum, he rebuffed Nnam's instruction to meet with her to address
18

County human resources department, Jones was broadcasting internal issues to those outside
the department. Though management should not retaliate simply for this, it has a legitimate
concern when the communications are made without providing the supervisory staff an
opportunity to mediate the concerns. (See Riverside Unified School District (1987) PERB
Decision No. 622 [supervisor's frustrated statement disapproving of employee's apparent
unwillingness to "join the team" by agreeing to perform a particular task and intention to "find
someone who would" not unlawful].)
To the extent the complaint alleges that Cooper was impliedly threatening Jones or
instructing Jones to cease protected activity, the evidence fails to demonstrate that it was
reasonably likely such a statement had a coercive tendency as to protected activity.
Weingarten Claim
Under the statutes administered by PERB, including the MMBA, employees have a
right of participation by their employee organization representative in meetings conducted by
the employer and its agents, which are investigatory in nature or which otherwise present
circumstances that can be described as "highly unusual." (State of California (Department of
Forestry) (1988) PERB Decision No. 690-S; Rio Hondo Community College District (1982)
PERB Decision No. 260; Redwoods Community College Dist. v. Public Employment Relations
Bd. (1984) 159 Cal.App.3d 617, 626.) This right parallels the longstanding rule of the NLRB,
as described in NLRB v. J. Weingarten, supra, 420 U.S. 251. The Weingarten right attaches to
the meeting whether or not the employer chooses to label it "investigatory" in nature.
(Rio Hondo Community College District, supra, PERB Decision No. 260, p. 17.) However, it
the grievances, asserting his right to present them to human resources staff outside the
department.
19
County human resources department, Jones was broadcasting internal issues to those outside
the department. Though management should not retaliate simply for this, it has a legitimate
concern when the communications are made without providing the supervisory staff an
opportunity to mediate the concerns. (See Riverside Unified School District (1987) PERB
Decision No. 622 [supervisor's frustrated statement disapproving
of
employee's apparent
unwillingness
to
"join the team" by agreeing to perform a particular task and intention to "find
someone who would" not unlawful].)
To the extent the complaint alleges that Cooper was impliedly threatening Jones or
instructing Jones to cease protected activity, the evidence fails to demonstrate that it was
reasonably likely such a statement had a coercive tendency as to protected activity.
Weingarten Claim
Under the statutes administered by PERB, including the MMBA, employees have a
right
of
participation by their employee organization representative in meetings conducted by
the employer and its agents, which are investigatory in nature or which otherwise present
circumstances that can be described as "highly unusual." (State
of
California (Department
of
Forestry) (1988) PERB Decision No. 690-S; Rio Hondo Community College District (1982)
PERB Decision No. 260; Redwoods Community College Dist.
v.
Public Employment Relations
Bd. (1984) 159 Cal.App.3d 617, 626.) This right parallels the longstanding rule
of
the NLRB,
as described in NLRB
v.
J Weingarten, supra, 420 U.S. 251. The Weingarten right attaches to
the meeting whether or not the employer chooses to label it "investigatory" in nature.
(Rio Hondo Community College District, supra, PERB Decision No. 260, p. 17.) However, it
the grievances, asserting his right to present them to human resources staff outside the
department.
19

does not attach to "run-of-the-mill," "shop-floor conversations." (Regents of the University of
California (1983) PERB Decision No. 310-H, p. 28.)
Because a meeting with management whose essential purpose is to elicit incriminating
evidence has potential to impact the employment relationship, denial of the assistance of the
employee organization frustrates the statutory purposes of representation. (Placer Hills Union
School District (1984) PERB Decision No. 377, pp. 38-40.) But if the meeting's purpose is
otherwise, such as when the employer simply intends to deliver notice of a disciplinary
decision already made, the right does not attach. (Id. at p. 38; Trustees of the California State
University (2006) PERB Decision No. 1853-H.) For a violation to be found, the employee
must have: (a) requested representation, (b) for an investigatory meeting, (c) which the
employee reasonably believed might result in disciplinary action, and (d) the employer denied
the request. (San Bernardino County Public Defender (2009) PERB Decision No. 2058-M.)
Jones failed to establish that he made a request for union representation or that the
meeting was investigatory in nature. The purpose of the Weingarten rule is to ensure the
employee has the benefit of a representative when statements elicited during the meeting may
lead to discipline. In this case, the purpose of the meeting was not to investigate potential
discipline. Jones admits Cooper did not reveal the nature of the disparaging comments he
allegedly made about his supervisors. Therefore, Cooper's apparent objective was not to elicit
any admission or response as to the purported negative comments. Even assuming that the
counseling memorandum itself might be considered discipline under the MMBA---despite the
County's practice of not considering it formal discipline---Cooper's announcement of
discipline without also engaging in investigation was not unlawful. (Placer Hills Union
School District, supra, PERB Decision No. 377, pp. 38-40.)
The County did not deny Jones his Weingarten right.
20
does not attach to "run-of-the-mill," "shop-floor conversations." (Regents
of
the University
of
California (1983) PERB Decision No. 310-H, p. 28.)
Because a meeting with management whose essential purpose is to elicit incriminating
evidence has potential to impact the employment relationship, denial
of
the assistance
of
the
employee organization frustrates the statutory purposes
of
representation. (Placer Hills Union
School District (1984) PERB Decision No. 377, pp. 38-40.) But
if
the meeting's purpose is
otherwise, such as when the employer simply intends to deliver notice
of
a disciplinary
decision already made, the right does not attach.
(Id.
at p. 38; Trustees
of
the California State
University (2006) PERB Decision No. 1853-H.) For a violation to be found, the employee
must have: (a) requested representation, (b) for an investigatory meeting, (c) which the
employee reasonably believed might result in disciplinary action, and (d) the employer denied
the request. (San Bernardino County Public Defender (2009) PERB Decision No. 2058-M.)
Jones failed to establish that he made a request for union representation or that
the
meeting was investigatory in nature. The purpose
of
the Weingarten rule is to ensure the
employee has the benefit
of
a representative when statements elicited during the meeting may
lead to discipline. In this case, the purpose
of
the meeting was not to investigate potential
discipline. Jones admits Cooper did not reveal the nature
of
the disparaging comments
he·
allegedly made about his supervisors. Therefore, Cooper's apparent objective was not to elicit
any admission or response as to the purported negative comments. Even assuming thatthe
counseling memorandum itself might be considered discipline under the MMBA---despite the
County's practice
of
not considering it formal discipline---Cooper' s announcement
of
discipline without also engaging in investigation was not unlawful. (Placer Hills Union
School District, supra, PERB Decision No. 377, pp. 38-40.)
The County did not deny Jones his Weingarten right.
20

Release from Probationary Employment
To demonstrate that the County discriminated against him in violation of MMBA
section 3506 and PERB Regulation 32603(a), Jones must show that (1) he exercised rights
under MMBA, (2) the County had knowledge of his exercise of those rights, (3) it took
adverse action against him, and (4) the action was taken because of his exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210; County of Yolo (2009) PERB
Decision No. 2020-M.)
Facts establishing that the adverse action was taken because of the exercise of protected
activities may be shown by the following factors: (1) timing of the employer's adverse action in
close temporal proximity to the employee's protected conduct is an important factor, (2) the
employer's disparate treatment of the employee, (3) the employer's departure from established
procedures and standards when dealing with the employee, (4) the employer's inconsistent or
contradictory justifications for its actions, (5) the employer's cursory investigation of the
employee's misconduct, (6) the employer's failure to offer the employee justification at the time
it took action or the offering of exaggerated, vague, or ambiguous reasons, (7) employer
animosity towards union activists, and (8) any other facts that might demonstrate the employer's
unlawful motive. (County of Yolo, supra, PERB Decision No. 2020-M; Novato Unified School
District, supra, PERB Decision No. 210.)
An employee alleging discrimination 	a case involving a decision to reject on
probation bears a heavier burden in overcoming the employer's case for non-discriminatory
motive. (See Mcfarland Unified School District v. Public Employment Relations B 	1991)
228 Cal.App.3d 166 [probationary teachers may be dismissed without cause]; of. Moreland
Elementary School District (1982) PERB Decision No. 227 [regardless of employee's status,
employer in discrimination case need not prove just cause].)
21
Release from Probationary Employment
To demonstrate that the County discriminated against him in violation of MMBA
section 3506 and PERB Regulation 32603(a), Jones must show that (1) he exercised rights
under MMBA, (2) the County had knowledge of his exercise of those rights, (3) it took
adverse action against him, and (4) the action was taken because of his exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210; County of Yolo (2009) PERB
Decision No. 2020-M.)
Facts establishing that the adverse action was taken because of the exercise of protected
activities may be shown by the following factors: (1) timing of the employer's adverse action in
close temporal proximity to the employee's protected conduct is an important factor, (2) the
employer's disparate treatment of the employee, (3) the employer's departure from established
procedures and standards when dealing with the employee, (4) the employer's inconsistent or
contradictory justifications for its actions, (5) the employer's cursory investigation of the
employee's misconduct, (6) the employer's failure to offer the employee justification at the time
it took action or the offering of exaggerated, vague, or ambiguous reasons, (7) employer
animosity towards union activists, and (8) any other facts that might demonstrate the employer's
unlawful motive. (County of Yolo, supra, PERB Decision No. 2020-M; Novato Unified School
District, supra, PERB Decision No. 210.)
An employee alleging discrimination 	a case involving a decision to reject on	in
probation bears a heavier burden in overcoming the employer's case for non-discriminatory
motive. 	(See McFarland Unified School District v. Public Employment Relations d. ( (1991)
228 Cal.App.3d 166 [probationary teachers may be dismissed without cause]; cf. ,1\1oreland
Elementary School District (1982) PERB Decision No. 227 [regardless of employee's status,
employer in discrimination case need not prove just cause].)
21

Jones contends that nexus evidence exists in the form of timing, disparate treatment,
departure from standard procedures, inconsistent and contradictory justifications, cursory
investigation, and demonstrated animosity toward the union or union activities. He relies on
the County's purported failure to provide all the reasons it released him during the County's
hearing process, "to be lenient in granting time off for medical appointments, to conduct a full
investigation into his reasonable accommodation request and the justification for his release,
contradictions between the testimony of Cooper and Nnam and the officially stated reasons for
the release, and Cooper's failure to disclose the nature of the allegedly derogatory comments
he had made about coworkers.
Based on review of the entire record, the only evidence I find in support of the factors
of discriminatory intent is the close temporal proximity between the initiation of Jones'
grievance filings and his release from probationary employment.
Although Nnam did testify that the County discovered alleged misrepresentations
subsequent to the hiring and offered it as further justification, this evidence did nothing to
undermine the official reason for termination: Jones' failure to report to work as directed
absent a qualifying medical excuse. I therefore reject the claim that the County offered any
shifting justification for the release.
Jones suggests that the County's investigation of the grounds for release were cursory.
However, there was little in dispute that would have required investigation. Jones believed
that Flores had granted him time off until he had completed his doctors' appointments and
The County submitted a response to the Board agent investigating the charge,
designating it confidential, wherein it disclosed that an investigation undertaken by Nnam
revealed that Jones materially overstated his qualifications during the examination process in
terms of his experience with commercial washers. The County elicited testimony to the same
effect and argued that this was an additional reason for dismissing Jones, though never shared
with Jones for reasons of confidentiality.
22
Jones contends that nexus evidence exists in the form
of
timing, disparate treatment,
departure from standard procedures, inconsistent and contradictory justifications, cursory
investigation, and demonstrated animosity toward the union or union activities. He relies on
the County's purported failure to provide all the reasons it released him during the County's
hearing process,
12
to be lenient in granting time off for medical appointments,
to
conduct a full
investigation into his reasonable accommodation request and the justification for his release,
contradictions between the testimony
of
Cooper and Nnam and the officially stated reasons for
the release, and Cooper's failure to disclose the nature
of
the allegedly derogatory comments
he had made about coworkers.
Based on review
of
the entire record, the only evidence I find in support
of
the factors
of
discriminatory intent is the close temporal proximity between the initiation
of
Jones'
grievance filings and his release from probationary employment.
Although Nnam did testify that the County discovered alleged misrepresentations
subsequent to the hiring and offered it as further justification, this evidence did nothing to
undermine the official reason for termination: 	Jones' failure to report to work as directed
absent a qualifying medical excuse. I therefore reject the claim that the County offered any
shifting justification for the release.
Jones suggests that the County's investigation
of
the grounds for release were cursory.
However, there was little in dispute that would have required investigation. Jones believed
that Flores had granted him time off until he had completed his doctors' appointments and
1 The County submitted a response to the Board agent investigating the charge,
designating it confidential, wherein it disclosed that an investigation undertaken by Nnam
revealed that Jones materially overstated his qualifications during the examination process in
terms of his experience with commercial washers. 	The County elicited testimony to the same
effect and argued that this was an additional reason for dismissing Jones, though never shared
with Jones for reasons of confidentiality.
22

obtained a conclusive diagnosis of his allergies and/or asthmatic condition. He asserted that
Cooper should have known his Americans with Disabilities Act request was still in process and
that its investigation was an impediment to going forward with the release. Fatal to this claim
is Jones' failure to respond to Cooper's April 15 letter explaining the purported basis for his
absence without official leave (i.e., the alleged promise by Flores releasing him until his
medical diagnosis was completed).
Construed most favorably toward Jones, the circumstances of his release suggest that
Jones was the victim of his own misunderstanding about his right to be on leave without a
medical release. Even this highly charitable view does not reflect animus on the County's part
toward Jones' protected activity. Moreover, Jones asserted to Flores that he intended to be off
work until his reasonable accommodation request had been "resolved." No reasonable
employer could be expected to concede to such an open-ended request. Flores, who had
worked for the state agency enforcing non-discrimination in employment, appears to have
adhered to County protocol for processing reasonable accommodation requests." Cooper, for
his part, followed the contractual rule authorizing demand for a physician's verification of
illness in excess of three days.
Jones identifies no substantial evidence of departure from standard procedures or
disparate treatment. Jones relies on testimony from Flores that the County is "very lenient" in
granting time off for medical appointments. The statement is removed from context. Jones
presented no evidence from the County's written policies or unwritten practice that extended,
uninterrupted periods of leave are granted to employees seeking to obtain a definitive diagnosis
lores testified that reasonable accommodations are to be granted after a face-to-face
"interactive" meeting in which the employer explores in detail the nature of the employee's
request for accommodation. Consistent with his practice of avoiding the principals in his
disputes, Jones never made himself available for such a meeting.
23
obtained a conclusive diagnosis of his allergies and/or asthmatic condition. He asserted that
Cooper should have known his Americans with Disabilities Act request was still in process and
that its investigation was an impediment to going forward with the release. Fatal to this claim
is Jones' failure to respond to Cooper's April 15 letter explaining the purported basis for his
absence without official leave (i.e., the alleged promise by Flores releasing him until his
medical diagnosis was completed).
Construed most favorably toward Jones, the circumstances of his release suggest that
Jones was the victim of his own misunderstanding about his right to be on leave without a
medical release. Even this highly charitable view does not reflect animus on the County's part
toward Jones' protected activity. Moreover, Jones asserted to Flores that he intended to be off
work until his reasonable accommodation request had been "resolved." No reasonable
employer could be expected to concede to such an open-ended request. Flores, who had
worked for the state agency enforcing non-discrimination in employment, appears to have
adhered to County protocol for processing reasonable accommodation requests.13 Cooper, for
his part, followed the contractual rule authorizing demand for a physician's verification of
illness in excess of three days.
Jones identifies no substantial evidence of departure from standard procedures or
disparate treatment. Jones relies on testimony from Flores that the County is "very lenient" in
granting time off for medical appointments. The statement is removed from context. Jones
presented no evidence from the County's written policies or unwritten practice that extended,
uninterrupted periods of leave are granted to employees seeking to obtain a definitive diagnosis
23
F Flores testified that reasonable accommodations are to be granted after a face-to-face
"interactive" meeting in which the employer explores in detail the nature of the employee's
request for accommodation. Consistent with his practice of avoiding the principals in his
disputes, Jones never made himself available for such a meeting.

as to symptoms causing them concern. Indeed, this is contrary to the customary employer
practice of requiring an employee to periodically visit a treating physician to obtain clearance
to remain off work, or identify restrictions prohibiting a return to full duties.
Further, the County's failure to disclose the basis for its doubts about the veracity of
Jones' employment application statements about prior experience with commercial washing
machines does not demonstrate disparate treatment, departure from standard procedures, or
failure to justify. Since it was never articulated as a basis for the release in the documents
served on him, Jones would have suffered no harm in terms of his ability to defend against the
charges of absence without leave.
I find no animus based on the apparent tension created by Jones' asserted breach of the
chain of command as a result of filing his grievances with Office of Labor Relations rather
than the Probation Department Background/Human Resources section. Documents presented
by the County indicated that the Office of Labor Relations did not view his direct filing as
problematic. Nevertheless, the record is clear that Jones circumvented Cooper, denying him
any opportunity to address the grievances, and that he directly refused to communicate with
Nnam regarding the same.
Finally, Jones' bare testimony that Stodulka gave him a look of disapproval when he
was talking with his union steward, standing alone, is insufficient to demonstrate anti-union
animus beyond mere speculation.
Close timing, without more, is insufficient to demonstrate a nexus between the adverse
action and the protected conduct. (Charter Oak Unified School District (1984) PERB Decision
No. 404.)" Accordingly, I find that Jones has failed to demonstrate that the County
*Noted also is the pattern suggested here where a charging party seeks redress before
multiple administrative agencies simultaneously. The existence of the protected right of access
24
as to symptoms causing them concern. Indeed, this is contrary to the customary employer
practice of requiring an employee to periodically visit a treating physician to obtain clearance
to remain off work, or identify restrictions prohibiting a return to full duties.
Further, the County's failure to disclose the basis for its doubts about the veracity of
Jones' employment application statements about prior experience with commercial washing
machines does not demonstrate disparate treatment, departure from standard procedures, or
failure to justify. Since it was never articulated as a basis for the release in the documents
served on him, Jones would have suffered no harm in terms of his ability to defend against the
charges of absence without leave.
I find no animus based on the apparent tension created by Jones' asserted breach of the
chain of command as a result of filing his grievances with Office of Labor Relations rather
than the Probation Department Background/Human Resources section. Documents presented
by the County indicated that the Office of Labor Relations did not view his direct filing as
problematic. Nevertheless, the record is clear that Jones circumvented Cooper, denying him
any opportunity to address the grievances, and that he directly refused to communicate with
Nnam regarding the same.
Finally, Jones' bare testimony that Stodulka gave him a look of disapproval when he
was talking with his union steward, standing alone, is insufficient to demonstrate anti-union
animus beyond mere speculation.
Close timing, without more, is insufficient to demonstrate a nexus between the adverse
action and the protected conduct. (Charter Oak Unified School District ( 1984) Decision
No. 404.) 14 Accordingly, I find that Jones has failed to demonstrate that the County
1 Noted also is the pattern suggested here where a charging party seeks redress before
multiple administrative agencies simultaneously. The existence of the protected right of access
24

discriminated against him on the basis of his protected activity, and therefore it did not violate
the MMBA.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in
this case, the complaint and underlying unfair practice charge in Case No. SF-CE-646-M,
Melvin Jones, Jr. v. County of Santa Clara, are hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Board itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, $ 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, $8 32135, subd. (a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
to these agencies is not intended to provide culpable employees a shield against legitimate
managerial prerogatives.
25
discriminated against him on the basis of his protected activity, and therefore it did not violate
the MMBA.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in
this case, the complaint and underlying unfair practice charge in Case No. SF-CE-646-M,
Melvin Jones, Jr. v. County of Santa Clara, are hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Board itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing also places the original, together with the required number copiesprovided the filing party also places the original, together with the required number of copies
to these agencies is not intended to provide culpable employees a shield against legitimate
managerial prerogatives.
25

and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, $ 32135, subd. (b), (c) and (d);
see also Cal. Code Regs., tit. 8, $$ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $5 32300, 32305, 32140,
and 32135, subd. (c).)
Donn Ginoza
Administrative Law Judge
26
and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subd. (b), (c)
and
(d);
see also Cal. Code Regs., tit. 8,
§§
32090 and 32130.)
26
Any statement
of
exceptions and supporting brief must be served concurrently
with
its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Donn Ginoza
Administrative Law Judge

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

OVERRULED IN PART by Los Angeles Unified School
District (2016) PERB Decision No. 2479

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MELVIN JONES, JR.,
Charging Party, Case No. SF-CE-646-M
V. PERB Decision No, 2267-M
COUNTY OF SANTA CLARA, May 25, 2012
Respondent.

Appearances: Melvin Jones, Jr., on his own behalf; Cheryl Stevens, Lead County Counsel, for
County of Santa Clara.

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 exceptions filed by Melvin Jones, Jr., (Jones) to a proposed
decision of a PERB administrative law judge (ALJ) (attached) dismissing an unfair practice
charge. The complaint issued by PERB’s Office of the General Counsel alleged that the
County of Santa Clara (County) violated the Meyers-Milias-Brown Act (MMBA)! by:
(1) terminating his employment in retaliation for having engaged in protected activity by filing
grievances related to his working conditions; (2) denying Jones the right to have an employee
organization representative present at a meeting at which he had a reasonable belief would
result in disciplinary action or, in the alternative, the interview posed highly unusual
circumstances; and (3) interfering with protected rights by directing him to cease

communicating with his co-workers with regard to “any issues and concerns [he] may have.”

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

California State University (San Marcos) (2010) PERB Decision No. 2093-H; see also
Anaheim City School District (1984) PERB Decision No. 364a ("[T]he Board has determined
that it will normally afford deference to administrative law judges' findings of fact involving
credibility determinations unless they are unsupported by the record as a whole."]) Having
reviewed the record in its entirety, we find no basis to overturn the ALJ's credibility
determinations, factual findings, or legal conclusions. We briefly address the remaining issues
raised in the exceptions.
Additional Evidence on Appeal
On June 21, 2011, Jones requested that the Board consider additional evidence and/or
reopen the record. Attached to the request is a payroll warrant dated April 24, 2009, which
Jones asserts he did not receive until June 17, 2011.* Jones asserts that the warrant shows he
was granted 56 hours of leave without pay in April 2009. Also attached are what appear to be
pages from a memorandum of understanding (MOU) between the County and SEIU Local 715
for the period June 19, 2006 to June 14, 2009.
When considering a request to reopen the record to admit new evidence, the Board
applies the standard set forth in PERB Regulation 32410(a) for a request for reconsideration
based on the discovery of new evidence. (State of California (Department of Parks and
Recreation) (1995) PERB Decision No. 1125-S.) The regulation provides evant part:
A request for reconsideration based upon the discovery of new
evidence must be supported by a declaration under the penalty of
perjury which establishes that the evidence: (1) was not
previously available; (2) could not have been discovered prior to
the hearing with the exercise of reasonable diligence; (3) was
*On April 20, 2012, Jones submitted what he asserted was the original of the same pay
warrant.
On May 18, 2012, Jones submitted additional evidence and argument and requested
that the Board take official notice of two requests for injunctionelief (I.R.) he filed (PERB
Case Nos. I.R. 618 and I.R. 620). For the reasons set forth herein, these requests are denied.
California State University (San Marcos) (2010) PERB Decision No. 2093-H; see also
Anaheim City School District (1984) PERB Decision No. 364a ("[T]he Board has determined
that it will normally afford deference to administrative law judges' findings of fact involving
credibility determinations unless they are unsupported by the record as a whole."]) Having
reviewed the record in its entirety, we find no basis to overturn the ALJ's credibility
determinations, factual findings, or legal conclusions. We briefly address the remaining issues
raised in the exceptions.
Additional Evidence on Appeal
On June 21, 2011, Jones requested that the Board consider additional evidence and/ or
reopen the record. Attached to the request is a payroll warrant dated April 24, 2009, which
Jones asserts he did not receive until June 17, 2011.4 Jones asserts that the warrant shows he
was granted 56 hours of leave without pay in April 2009. Also attached are what appear to be
pages from a memorandum of understanding (MOU) between the County and SEIU Local 715
for the period June 19, 2006 to June 14, 2009. 5
When considering a request to reopen the record to admit new evidence, the Board
applies the standard set forth in PERB Regulation 32410(a) for a request for reconsideration
based on the discovery of new evidence. (State of California (Department of Parks and
Recreation) (1995) PERB Decision No. 1125-S.) The regulation provides, , in relrelevant part:
A request for reconsideration based upon the discovery of new
evidence must be supported by a declaration under the penalty of
perjury which establishes that the evidence: (1) was not
previously available; (2) could not have been discovered prior to
the hearing with the exercise of reasonable diligence; (3) was
4 On April 20, 2012, Jones submitted what he asserted was the original of the same pay
warrant.
5 On May 18, 2012, Jones submitted additional evidence and argument and requested
that the Board take official notice of two requests for injunctive relief (LR.) he filed (PERB
Case Nos. LR. 618 and LR. 620). For the reasons set forth herein, these requests are denied.
3

decision to terminate Jones was based solely upon his failure to report for work and not on the
alleged application fraud. The record does not indicate that Jones ever renewed his motion to
examine Stevens, and he did not present any rebuttal witnesses. Therefore, we deny the
request to reopen the record for this purpose.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-646-M are
hereby DISMISSED.
Chair Martinez and Member Huguenin joined in this Decision.
On August 21, 2011, Jones filed a motion for litigation costs pursuant to Government
Code section 11455.30. In light of our decision, this motion is denied.
7
decision to terminate Jones was based solely upon his failure to report for work and not
on
the
alleged application fraud. The record does not indicate that Jones ever renewed his motion to
examine Stevens, and he did not present any rebuttal witnesses. Therefore, we deny the
8
request to reopen the record for this purpose.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-646-M are
hereby DISMISSED.
Chair Martinez and Member Huguenin joined in this Decision.
8 On August 21, 2011, Jones filed a motion for litigation costs pursuant to Government
Code section 11455.30. In light of our decision, this motion is denied.
7

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MELVIN JONES, JR.,
UNFAIR PRACTICE
Charging Party, CASE NO. SF-CE-646-M
V . PROPOSED DECISION
(February 11, 2011)
COUNTY OF SANTA CLARA,
Respondent.
Appearances: Melvin Jones, Jr., in propria persona; Cheryl Stevens, Lead County Counsel, for
County of Santa Clara.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
Melvin Jones, Jr. initiated this case under the Meyers-Milias-Brown Act (MMBA or
Act) by filing an unfair practice charge against the County of Santa Clara (County) on
April 20, 2009. On April 14, 2010, the Office of the General Counsel of the Public
Employment Relations Board (PERB or Board) issued a complaint alleging that the County
(1) retaliated against Jones by terminating his employment, (2) denied him his Weingarten
right, and (3) interfered with his right to engage in protected activity. This conduct is alleged
to violate sections 3506 and 3509(b) of the Act and PERB Regulation 32603(a) and (b).
On May 6, 2010, the County filed its answer to the complaint, denying the material
allegations of the complaint and raising affirmative defenses.
The MMBA is codified at Government Code section 3500 et seq. Hereafter
statutory references are to the Government Code unless othe
2 NLRB v. J. Weingarten (1975) 420 U.S. 251.
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MEL VIN JONES, JR.,
Charging Party,
V.
COUNTY OF SANTA CLARA,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-646-M
PROPOSED DECISION
(February 11, 2011)
Appearances: Melvin Jones, Jr., in propria persona; Cheryl Stevens, Lead County Counsel, for
County
of
Santa Clara.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
Melvin Jones, Jr. initiated this case under the Meyers-Milias-Brown Act (MMBA or
Act) 1 by filing an unfair practice charge against the County
of
Santa Clara (County) on
April 20, 2009. On April 14, 2010, the Office
of
the General Counsel
of
the Public
Employment Relations Board (PERB or Board) issued a complaint alleging that the County
(1) retaliated against Jones by terminating his employment, (2) denied him his Weingarten2
right, and (3) interfered with his right to engage in protected activity. This conduct is alleged
to violate sections 3506 and 3509(6)
of
the Act and PERB Regulation 32603(a) and (b). 3
On May
6,
2010, the County filed its answer to the complaint, denying the material
allegations
of
the complaint and raising affirmative defenses.
1 The MMBA is codified at Government Code section 3500 et seq. Hereafter all all
statutory references are to the Government Code unless otherrwise indicated. wise indicated.
2 NLRB
v.
J Weingarten (1975) 420 U.S. 251.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

On May 20, 2010, an informal settlement conference was held, but the matter was not
resolved.
On June 2, 2010, Jones filed a motion to amend the complaint. On July 1, 2010, the
motion was denied.
On November 9 and 10, 2010, a formal hearing was conducted in Oakland by the
undersigned. On January 18, 2011, the matter was submitted for decision upon receipt of post-
hearing briefs.
FINDINGS OF FACT
At all times relevant herein, Jones was a "public employee" within the meaning of
section 3501(d). The County of Santa Clara is a public agency within the meaning of
section 3501(c).
Hiring and Placement
The County's Probation Department maintains a juvenile detention facility in San Jose.
Juvenile wards reside in the Juvenile Housing Unit. The Probation Department's laundry unit
cleans the wards' clothes and linens for the Juvenile Housing Unit and a juvenile ranch unit.
The Juvenile Housing Unit facility employs three full-time (regular) employees. A total of
three extra-help workers are on staff for both facilities. The normal work shift is 6:00 a.m. to
2:00 p.m., seven days per week. Laundry workers belong to the bargaining unit exclusively
represented by the Service Employees International Union Local 521 (SEIU).*
Kevin Cooper is the Probation Department's food services manage s charged
with oversight of the laundry facility. 008, Cooper requested a civil service examination
for the position of Laundry Worke e job specifications described responsibility for
operating commercial-type washers in a large laundry facility. Tasks for the position included
SEIU is an employee organization within the meaning of section 3501(a).
2
On May 20, 2010, an informal settlement conference was held, but the matter was not
resolved.
On June
2,
2010, Jones filed a motion to amend the complaint. On July
1,
2010, the
motion was denied.
On November 9 and 10, 2010, a formal hearing was conducted in Oakland by the
undersigned. On January 18, 2011, the matter was submitted for decision upon receipt
of
post-
hearing briefs.
FINDINGS OF FACT
At all times relevant herein, Jones was a "public employee" within the meaning
of
section 3501 (d). The County
of
Santa Clara is a public agency within the meaning
of
section 3501(c).
Hiring and Placement
The County's Probation Department maintains a juvenile detention facility in San Jose.
Juvenile wards reside in the Juvenile Housing Unit. The Probation Department's laundry unit
cleans the wards' clothes and linens for the Juvenile Housing Unit and a juvenile ranch unit.
The Juvenile Housing Unit facility employs three full-time (regular) employees. A total
of
three extra-help workers are on staff for both facilities. The normal work shift is 6:00 a.m. to
2:00 p.m., seven days per week. Laundry workers belong to the bargaining unit exclusively
represented by the Service Employees International Union Local 521 (SEIU). 4
Kevin Cooper is the Probation Department's food services manager.r. He iis charged
with oversight of the laundry facility.In 2 2008, Cooper requested a civil service examination
for the position of Laundry Workerr II. Th The job specifications described responsibility for
operating commercial-type washers in a large laundry facility. Tasks for the position included
SEIU is an * employee organization within the meaning of section 3501(a).
2

Release from Probationary Employment
To demonstrate that the County discriminated against him in violation of MMBA
section 3506 and PERB Regulation 32603(a), Jones must show that (1) he exercised rights
under MMBA, (2) the County had knowledge of his exercise of those rights, (3) it took
adverse action against him, and (4) the action was taken because of his exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210; County of Yolo (2009) PERB
Decision No. 2020-M.)
Facts establishing that the adverse action was taken because of the exercise of protected
activities may be shown by the following factors: (1) timing of the employer's adverse action in
close temporal proximity to the employee's protected conduct is an important factor, (2) the
employer's disparate treatment of the employee, (3) the employer's departure from established
procedures and standards when dealing with the employee, (4) the employer's inconsistent or
contradictory justifications for its actions, (5) the employer's cursory investigation of the
employee's misconduct, (6) the employer's failure to offer the employee justification at the time
it took action or the offering of exaggerated, vague, or ambiguous reasons, (7) employer
animosity towards union activists, and (8) any other facts that might demonstrate the employer's
unlawful motive. (County of Yolo, supra, PERB Decision No. 2020-M; Novato Unified School
District, supra, PERB Decision No. 210.)
An employee alleging discrimination a case involving a decision to reject on
probation bears a heavier burden in overcoming the employer's case for non-discriminatory
motive. (See Mcfarland Unified School District v. Public Employment Relations B 1991)
228 Cal.App.3d 166 [probationary teachers may be dismissed without cause]; of. Moreland
Elementary School District (1982) PERB Decision No. 227 [regardless of employee's status,
employer in discrimination case need not prove just cause].)
21
Release from Probationary Employment
To demonstrate that the County discriminated against him in violation of MMBA
section 3506 and PERB Regulation 32603(a), Jones must show that (1) he exercised rights
under MMBA, (2) the County had knowledge of his exercise of those rights, (3) it took
adverse action against him, and (4) the action was taken because of his exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210; County of Yolo (2009) PERB
Decision No. 2020-M.)
Facts establishing that the adverse action was taken because of the exercise of protected
activities may be shown by the following factors: (1) timing of the employer's adverse action in
close temporal proximity to the employee's protected conduct is an important factor, (2) the
employer's disparate treatment of the employee, (3) the employer's departure from established
procedures and standards when dealing with the employee, (4) the employer's inconsistent or
contradictory justifications for its actions, (5) the employer's cursory investigation of the
employee's misconduct, (6) the employer's failure to offer the employee justification at the time
it took action or the offering of exaggerated, vague, or ambiguous reasons, (7) employer
animosity towards union activists, and (8) any other facts that might demonstrate the employer's
unlawful motive. (County of Yolo, supra, PERB Decision No. 2020-M; Novato Unified School
District, supra, PERB Decision No. 210.)
An employee alleging discrimination a case involving a decision to reject on in
probation bears a heavier burden in overcoming the employer's case for non-discriminatory
motive. (See McFarland Unified School District v. Public Employment Relations d. ( (1991)
228 Cal.App.3d 166 [probationary teachers may be dismissed without cause]; cf. ,1\1oreland
Elementary School District (1982) PERB Decision No. 227 [regardless of employee's status,
employer in discrimination case need not prove just cause].)
21

Jones contends that nexus evidence exists in the form of timing, disparate treatment,
departure from standard procedures, inconsistent and contradictory justifications, cursory
investigation, and demonstrated animosity toward the union or union activities. He relies on
the County's purported failure to provide all the reasons it released him during the County's
hearing process, "to be lenient in granting time off for medical appointments, to conduct a full
investigation into his reasonable accommodation request and the justification for his release,
contradictions between the testimony of Cooper and Nnam and the officially stated reasons for
the release, and Cooper's failure to disclose the nature of the allegedly derogatory comments
he had made about coworkers.
Based on review of the entire record, the only evidence I find in support of the factors
of discriminatory intent is the close temporal proximity between the initiation of Jones'
grievance filings and his release from probationary employment.
Although Nnam did testify that the County discovered alleged misrepresentations
subsequent to the hiring and offered it as further justification, this evidence did nothing to
undermine the official reason for termination: Jones' failure to report to work as directed
absent a qualifying medical excuse. I therefore reject the claim that the County offered any
shifting justification for the release.
Jones suggests that the County's investigation of the grounds for release were cursory.
However, there was little in dispute that would have required investigation. Jones believed
that Flores had granted him time off until he had completed his doctors' appointments and
The County submitted a response to the Board agent investigating the charge,
designating it confidential, wherein it disclosed that an investigation undertaken by Nnam
revealed that Jones materially overstated his qualifications during the examination process in
terms of his experience with commercial washers. The County elicited testimony to the same
effect and argued that this was an additional reason for dismissing Jones, though never shared
with Jones for reasons of confidentiality.
22
Jones contends that nexus evidence exists in the form
of
timing, disparate treatment,
departure from standard procedures, inconsistent and contradictory justifications, cursory
investigation, and demonstrated animosity toward the union or union activities. He relies on
the County's purported failure to provide all the reasons it released him during the County's
hearing process,
12
to be lenient in granting time off for medical appointments,
to
conduct a full
investigation into his reasonable accommodation request and the justification for his release,
contradictions between the testimony
of
Cooper and Nnam and the officially stated reasons for
the release, and Cooper's failure to disclose the nature
of
the allegedly derogatory comments
he had made about coworkers.
Based on review
of
the entire record, the only evidence I find in support
of
the factors
of
discriminatory intent is the close temporal proximity between the initiation
of
Jones'
grievance filings and his release from probationary employment.
Although Nnam did testify that the County discovered alleged misrepresentations
subsequent to the hiring and offered it as further justification, this evidence did nothing to
undermine the official reason for termination: Jones' failure to report to work as directed
absent a qualifying medical excuse. I therefore reject the claim that the County offered any
shifting justification for the release.
Jones suggests that the County's investigation
of
the grounds for release were cursory.
However, there was little in dispute that would have required investigation. Jones believed
that Flores had granted him time off until he had completed his doctors' appointments and
1 The County submitted a response to the Board agent investigating the charge,
designating it confidential, wherein it disclosed that an investigation undertaken by Nnam
revealed that Jones materially overstated his qualifications during the examination process in
terms of his experience with commercial washers. The County elicited testimony to the same
effect and argued that this was an additional reason for dismissing Jones, though never shared
with Jones for reasons of confidentiality.
22

and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, $ 32135, subd. (b), (c) and (d);
see also Cal. Code Regs., tit. 8, $$ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $5 32300, 32305, 32140,
and 32135, subd. (c).)
Donn Ginoza
Administrative Law Judge
26
and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subd. (b), (c)
and
(d);
see also Cal. Code Regs., tit. 8,
§§
32090 and 32130.)
26
Any statement
of
exceptions and supporting brief must be served concurrently
with
its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Donn Ginoza
Administrative Law Judge

County of Santa Clara * * * OVERRULED IN PART by Los Angeles Unified School District (2016) PERB Decision No. 2479 (PERB 2267M)

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