State of California (State Personnel Board) (PERB 1680S)

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

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

INTERNATIONAL UNION OF OPERATING
ENGINEERS,

Charging Party, Case No. SA-CE-1395-S

Vv. PERB Decision No. 1680-S

STATE OF CALIFORNIA (STATE PERSONNEL | AUgust 20, 2004

BOARD),

Respondent.

Appearances: Weinberg, Roger & Rosenfeld by Matthew J. Gauger, Attorney, for
International Union of Operating Engineers; Dorothy Backsai Egel, Attorney, for State of
California (State Personnel Board).
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the International Union of Operating Engineers (IUOE) from a Board
agent’s dismissal (attached) of its unfair practice charge. The charge alleged that the State of
California (State Personnel Board) (SPB) violated the Ralph C. Dills Act (Dills Act)! by
petitioning the Court of Appeal for a writ of prohibition and/or order staying proceedings, in,
inter alia, PERB Case No. SA-CE-1295-S,

The Board has reviewed the entire record in this matter, including the original, first
amended, and second amended unfair practice charge, the warning and dismissal letters,

IUOE’s appeal and SPB’s response. The Board finds the warning and dismissal letters to be

free of prejudicial error and adopts them as the decision of the Board itself.

'The Dills Act is codified at Government Code section 3512, et seq.

ORDER
The unfair practice charge in Case No. SA-CE-1395-S is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

=ST=A=T=E=O=F=C=AL=IF=O=RN=I=A== 	_D=A=VI=S=,=G_o=ve=r_no_r
PUBLIC EMPLOYMENT RELATIONS BOARD.
=·4r ~==========='=="(-"1-#====G=RA=Y
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8383
Fax: (916) 327-6377
June 3, 2003
Matthew Gauger, Attorney
Van Bourg, Weinberg, Roger & Rosenfeld
1006 4th Street, Suite 1050
Sacramento, CA 95814
Re: 	International Union of Operating Engineers v. State of California (State Personnel
Board)
Unfair Practice Charge No. SA-CE-1395-S
DISMISSAL LETTER
Dear Mr. Gauger:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 28, 2003. The International Union of Operating
Engineers (IUOE or Charging Party) alleges that the State of California (State Personnel
Board) (SPB or Respondent) violated the Ralph C. Dills Act (Dills Act)1 by petitioning the
Court of Appeal for a writ of prohibition and/or order staying proceedings in, inter alia, PERB
Case No. SA-CE-1295-S.2 On April 3, 2003, Charging Party filed a First Amended Charge
naming the Department of Personnel Administration (DPA) as an additional respondent in this
matter. 3 Charging Party filed its Second Amended Charge on April 24, 2003.
I indicated to you in my attached letter dated May 14, 2003, that the above-referenced charge
did not state a prima facie case. You were advised that, if there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to May 27, 2003, the charge would be dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my May 14, 2003 letter.
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations maybe found on the Internet at www.perb.ca.gov.
2 Unfair Practice Charge No. 1295-S was filed by IUOE against the SPB. In State of
California (State Personnel Board) (2002) PERB Decision No. 1491-S, the Board remanded
the charge for formal hearing and DP A was joined as a party. The formal hearing in that
matter concluded on March 30, 2003.
3 SPB filed oppositions both to the addition of DPA as a respondent and/or the joining
ofDPA as a party. It is unnecessary, for purposes of this letter, to address this dispute.

SA-CE-1395-S
June 3, 2003
Page2
Right to Appeal
Pursuant to PERB Regulations,4 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(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 Regulation 32135(d), provided the filing party also places the
original, together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention:· Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
4 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-1395-S
June 3, 2003
Page 3
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired. 	·
Sincerely,
ROBERT THOMPSON
General Counsel
By iefl~ =
G,Lf	Les Chisholm
Regional Director
Attachment
cc: 	Dorothy B. Egel
Linda D. Buzzini

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
===========~ 	-=,============-=- 	======-=======
PUBLIC EMPLOYMENT RELATIONS BOARD
(·- 	r-
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8383
Fax: (916)327-6377
May 14, 2003
Matthew Gauger, Attorney
Van Bourg, Weinberg, Roger & Rosenfeld
1006 4th Street, Suite 1050
Sacramento, CA 95814
Re: 	International Union of Operating Engineers v. State of California {State Personnel
Board)
Unfair Practice Charge No. SA-CE-1395-S
WARNING LETTER (Second Amended Charge)
Dear Mr. Gauger:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 28, 2003. The International Union of Operating
Engineers (IUOE or Charging Party) alleges that the State of California (State Personnel
Board) (SPB or Respondent) violated the Ralph C. Dills Act (Dills Act)1 by petitioning the
Court of Appeal for a writ of prohibition and/or order staying proceedings in, inter alia, PERB
Case No. SA-CE-1295-S.2 On April 3, 2003, Charging Party filed a First Amended Charge
naming the Department of Personnel Administration (DPA) as an additional respondent in this
matter. 3 Charging Party filed its Second Amended Charge on April 24, 2003.
In Case No. SA-CE-1295-S, IUOE alleges that SPB violated the Dills Act by refusing to
approve settlement agreements for employees who participated in the Board of Adjustment
disciplinary review procedure that was a result of the negotiated agreement between IUOE and
the State of California. This dispute between IUOE and SPB has also been the subject of
litigation, including the matter captioned as California State Personnel Board v. California
Department of Personnel Administration, et al., Sacramento County Superior Court, No.
01CS00109.
On January 10, 2003, SPB filed with the Court of Appeal, Third Appellate District a Petition
for Writs of Prohibition and/or Notice of Motion and Motion for Orders to Stay PERB Case
No. SA-CE-1295-S and/or Sacramento County Superior Court Case No. 02CS01750 Pending
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations maybe found on the Internet at www.perb.ca.gov.
2 Unfair Practice Charge No. 1295-S was filed by IUOE against the SPB. In State of
California {State Personnel Board) (2002) PERB Decision No. 1491.:.S, the Board remanded
the charge for formal hearing and DP A was joined as a party. The formal hearing in that
matter concluded on March 30, 2003.
3 SPB filed oppositions both to the addition of DPA as a respondent and/or the joining
of DPA as a party. It is unnecessary, for purposes of this letter, to address this dispute.

SA-CE-1395-S
May 14, 2003
Page2
C
the Determination of the Appeal in Case No. 3 Civil C040263. In other words, SPB sought a
stay of the PERB case filed by IUOE, and a separate, related action filed by IUOE in the
Sacramento County Superior Court,4 pending the determination of the appeal filed by DP A
regarding the Superior Court's judgment in California State Personnel Board v. California
Department of Personnel Administration, et al., Sacramep.to County Superior Court, No.
01CS00109.
The Court of Appeal denied SPB's petition on February 4, 2003. The Court's ruling stated,
"Remedy by appeal and writ of review is adequate."
In the instant charge, relying on Bill Johnson's Restaurants, Inc. v. National Labor Relations
Board (1983) 461 U.S. 731 (Bill Johnson's) and Inglewood Unified School District (1990)
PERB Decision No. 792 (Inglewood), as well as the more recently-decided BE & K
Construction Co. v. National Labor Relations Board (2002) 536 U.S. 516 [122 S.Ct. 2390] (BE
& K), IUOE alleges that the SPB, by filing the above-described petition with the court,
violated the Dills Act at section 3519(a) and (b).
Discussion
In Inglewood, citing both Bill Johnson's and Rim of the World Unified School District (1986)
PERB Order No. Ad-161, the Board observed that "it is an unfair labor practice for an
employer to prosecute a baseless lawsuit with the intent of retaliating against employees for
their exercise of protected rights." As made explicit in Bill Johnson's, retaliatory motive and
lack of reasonable basis "are both essential prerequisites" to the standard applied by the
National Labor Relations Board (NLRB). However, in BE & K, the U.S. Supreme Court
revisited the holdings of Bill Johnson's.
The Court, noting that in Bill Johnson's, as well as in Professional Real Estate Investors, Inc.
v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, regulation oflitigation had been
limited to "suits that were both objectively baseless and subjectively motivated by an unlawful
purpose," (emphasis in original), turned its attention to the "class of reasonably based but
unsuccessful lawsuits." (BE & K.) Observing that "the genuineness of a grievance does not
tum on whether it succeeds," and that legitimate interests may be advanced by the pursuit even
of unsuccessful suits, the Court concluded that petitioning may be "genuine both objectively
and subjectively'' so long as the plaintiffs purpose is to stop conduct reasonably believed to be
illegal. (Id.)
Further, the Court questioned the NLRB' s reliance on anti union animus to infer retaliatory
motive, as "ill will is not uncommon in litigation." (Id.) The Court, examining the relevant
provision of the National Labor Relations Act (NLRA) at 29 U.S.C. 158(a)(l), which parallels
the Dills Act language relied on here by IUOE, concludes "there is no suggestion that these
4 IUOE's petition to the Sacramento County Superior Court was filed in November
2002.

SA-CE-1395-S
May 14, 2003
Page 3
provisions [ of the NLRA] were part of any effort" to prohibit all reasonably based but
unsuccessful suits filed with a retaliatory purpose. (Id.)
Retaliatory Motive
With respect to the assertion of retaliatory motive, IUOE contends that PERB may, under Bill
Johnson's, consider the fact that SPB's petition was denied by the Court of Appeal. However,
IUOE offers no additional facts in support of the claim that SPB filed its petition with
retaliatory motive, except by reference to the facts alleged by IUOE in PERB Case No.
SA-CE-1295-S. Thus, IUOE asserts that:
The SPB filed this petition out of anti-union animus to impose
upon IUOE the costs of litigation, regardless of the outcome.
This petition is simply one piece of a broader course of conduct
aimed at harming the Union and interfering with employees'
exercise of their rights under the Dills Act. IUOE, and its
members, should not have to pay for SPB's frivolous petition.
To demonstrate a violation of Dills Act section 3519(a), the charging party must show that:
. (1) the employee exercised rights under the Dills Act; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) eniployer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)

SA-CE-1395-S
May 14, 2003
Page4
(
Evidence of adverse action is also required to support a claim of discrimination or reprisal
under the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, ~he Board uses an objective test
and will not rely upon the subjective reactions of the employee. (Ibid.) In a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. [Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
In Bill Johnson's, the NLRB relied in large part for motive on direct evidence that agents of
the petitioner had made threats to "get even with" and "hurt" the defendants. Here, IUOE asks
PERB to rely largely on actions taken by SPB some two or more years earlier, and to infer
unlawful motive from that "broader course of conduct" and SPB's more recent actions that
assert its legal position in on-going litigation over decisions it made earlier.
Given the holdings of BE & K, it is clear that SPB' s lack of success with its recent stay request
is not, alone, enough to support an inference ofretaliatory motive. IUOE's argument that an
inference of unlawful motive should be taken from SPB's earlier conduct is likewise not
persuasive.
Reasonable Basis
Regarding the "reasonable basis" prong of the Bill Johnson's test, IUOE argues that SPB's
petition was frivolous as to the PERB case because, in the absence of exceptional
circumstances, parties to an administrative proceeding must wait for the appeal process.
(Leedom v. Kyne (1958) 358 U.S. 184; Tex-Cal Land Management v. Agricultural Labor
Relations Board (1979) 24 Cal.3d 335.) IUOE further notes that the Dills Act provides, at
section 3520, the proper route for appeal of Board decisions. IUOE also asserts, with regard to
the Superior Court case, that SPB could have sought relief from the trial court rather than filing
the disputed petition. Finally, with regard to the lack of reasonable basis, IUOE cites the
ruling of the Court of Appeal denying the petition.
As already noted, SPB 's lack of success with its petition is not sufficient to find that its suit
was without a reasonable basis under BE & K. As currently written, though the charge asserts
that SPB had other outlets to pursue its position at a later time, the charge does not allege
specific facts to establish that SPB's purpose in filing the petition lacked a reasonable basis,
subjectively or objectively. 	·

SA-CE-1395-S
May 14, 2003
Page 5
Conclusion
(
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled Third Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before May 27, 2003, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
LLes Chisholm
Regional Director