City and County of San Francisco (PERB 2075M)

STATE OF CALIFORNIA
DECISION OF THE
PTTRT,Tr F,MPT,OVMENT RF,T,ATTONS ROA Rn
ALFRED LAM,
Charging Party,
V.
CITY & COUNTY OF SAN FRANCISCO,
Respondent.
Case No. SF-CE-574-M
PERB Decision No. 2075-M
November 4, 2009
Appearances: Alfred Lam, on his own behalf; Gina M. Roccanova, Deputy City Attorney, for
City and Countty of San Francisco.	City and Coun
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Alfred Lam (Lam) of a Board agent's
dismissal of his unfair practice charge. The charge alleged that the City and County of
San Francisco (City) violated the Meyers-Milias-Brown Act (MMBA) 1 by: (1) intimidating
local officers of Lam's exclusive representative, Service Employees International Union,
Local 1021 (SEIU), to not file/sign grievances on behalf of Lam; (2) colluding with SEIU to
close two grievances filed by Lam; 2 (3) failing to notify Lam or local SEIU officers of the
grievance closure; ( 4) retaliating against Lam for filing grievances and an unfair practice
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 SEIU's role in the closure of Lam's grievances is the subject of the unfair practice
charge in Case No. SF-CO-181-M. Lam's appeal of the dismissal of that charge is addressed
in a separate Board decision.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALFRED LAM,
Charging Party, 	Case No. SF-CE-574-M
V . 	PERB Decision No. 2075-M
CITY & COUNTY OF SAN FRANCISCO, 	November 4, 2009
Respondent.
Appearances: Alfred Lam, on his own behalf; Gina M. Roccanova, Deputy City Attorney, for
y of San Francisco.
Before Dowdin Calvillo, Acting Chair; Mckeag and Wesley, Members.
DECISION
DOWDIN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Alfred Lam (Lam) of a Board agent's
dismissal of his unfair practice charge. The charge alleged that the City and County of
San Francisco (City) violated the Meyers-Milias-Brown Act (MMBA)' by: (1) intimidating
local officers of Lam's exclusive representative, Service Employees International Union,
Local 1021 (SEIU), to not file/sign grievances on behalf of Lam; (2) colluding with SEIU to
close two grievances filed by Lam; (3) failing to notify Lam or local SEIU officers of the
grievance closure; (4) retaliating against Lam for filing grievances and an unfair practice
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 SEIU's role in the closure of Lam's grievances is the subject of the unfair practice
charge in Case No. SF-CO-181-M. Lam's appeal of the dismissal of that charge is addressed
in a separate Board decision.

charge; and (5) violating various sections of the City's Administrative Code. The Board agent
dismissed the charge for failure to state a prima facie case of any of the alleged violations.
The Board has reviewed the dismissal and the record in light of Lam's appeal, the
City's response and the relevant law. Based on this review, the Board affirms the dismissal of
the charge for the reasons discussed below.
BACKGROUND
Lam is employed by the City as a counselor in the Juvenile Probation Department. On
June 19, 2007, Lam filed a grievance alleging that he had been verbally harassed by his
supervisor in retaliation for filing a complaint against the supervisor.3 The grievance was
signed by an SEIU steward. On July 25, 2007, Lam filed a grievance alleging that Asian
American employees were being unfairly targeted for disciplinary action. Again, the grievance
was signed by an SEIU steward.
On August 15, 2007, Lam sent two letters to the Chief Probation Officer moving both
grievances to Levei II. SEIU Local Vice President Kirk Edwards (Edwards) signed both
letters. On September 5, 2007, Lam sent letters to the City's Employee Relations Division
moving both grievances to Level III because the City had not responded to the grievances at
Level II. Edwards again signed the letters.
In a letter dated January 25, 2008, City Labor Relations Manager Mary Hao (Hao)
2
charge; and (5) violating various sections of the City's Administrative Code. The Board agent
dismissed the charge for failure to state a prima facie case of any of the alleged violations.
The Board has reviewed the dismissal and the record in light of Lam's appeal, the
City's response and the relevant law. Based on this review, the Board affirms the dismissal of
the charge for the reasons discussed below.
BACKGROUND
Lam is employed by the City as a counselor in the Juvenile Probation Department. On
June 19, 2007, Lam filed a grievance alleging that he had been verbally harassed by his
supervisor in retaliation for filing a complaint against the supervisor.' The grievance was
signed by an SEIU steward. On July 25, 2007, Lam filed a grievance alleging that Asian-
American employees were being unfairly targeted for disciplinary action. Again, the grievance
was signed by an SEIU steward.
On August 15, 2007, Lam sent two letters to the Chief Probation Officer moving both
grievances to Level II. SEIU Local Vice President Kirk Edwards (Edwards) signed both
letters. On September 5, 2007, Lam sent letters to the City's Employee Relations Division
moving both grievances to Level III because the City had not responded to the grievances at
Level II. Edwards again signed the letters.
informed SEIU Worksite Organizer Margot Reed (Reed) that the Employee Relations Division
considered both of Lam's grievances closed. The letter informed SEIU that Lam had filed
discrimination claims with the City's Equal Employment Opportunity (EEO) office containing
In a letter dated January 25, 2008, City Labor Relations Manager Mary Hao (Hao)
informed SEIU Worksite Organizer Margot Reed (Reed) that the Employee Relations Division
considered both of Lam's grievances closed. The letter informed SEIU that Lam had filed
discrimination claims with the City's Equal Employment Opportunity (EEO) office containing
All of the documents referenced in this decision were provided by the City as part of
its position statement. In evaluating whether an unfair practice charge states a prima facie
case, PERB is not required to ignore facts provided by the respondent and consider only the
facts provided by the charging party. (Service Employees International Union #790 (Adza)
(2004) PERB Decision No. 1632-M.)
" All of the documents referenced in this decision were provided by the City as part of
its position statement. In evaluating whether an unfair practice charge states a prima facie
case, PERB is not required to ignore facts provided by the respondent and consider only the
facts provided by the charging party. (Service Employees International Union #790 (Adza)
(2004) PERB Decision No. 1632-M.)
2

the same allegations as the grievances. The letter stated that, pursuant to Article II.A.,
section 63 of the collective bargaining agreement (CBA) between SEIU and the City, Lam had
elected to pursue a remedy through the EEO office and thus could not maintain grievances
over the same subject matter.4
On July 21, 2008, Lam called the Employee Relations Division to ask about the status
of his two grievances. He was informed that both grievances were closed by Hao and Reed, on
behalf of the City and SEIU respectively, on January 25, 2008. The charge alleged that the
City did not inform Lam or any local SEIU official of the closure. The charge further alleged
that in early 2008, the Assistant Director of the Juvenile Probation Department intimidated
Edwards and the local SEIU chapter's chief steward into not signing anymore grievances for
Lam. Finally, the charge alleged that the City violated several sections of its Administrative
Code.
DISCUSSION
5
1. 	Compliance with PERB Regulation 32635(a)
The City contends that Lam's appeal fails to comply with PERB Regulation 32635(a),
which states in relevant part:
The Appeal shall:
(1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
· Article II.A., section 63 states in full:
In the event more than one administrative remedy may be
available within the City and County governmental system of
San Francisco, the Union and the employee shall elect only one.
The election is irrevocable.
5 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3
the same allegations as the grievances. The letter stated that, pursuant to Article II.A.,
section 63 of the collective bargaining agreement (CBA) between SEIU and the City, Lam had
elected to pursue a remedy through the EEO office and thus could not maintain grievances
over the same subject matter."
On July 21, 2008, Lam called the Employee Relations Division to ask about the status
of his two grievances. He was informed that both grievances were closed by Hao and Reed, on
behalf of the City and SEIU respectively, on January 25, 2008. The charge alleged that the
City did not inform Lam or any local SEIU official of the closure. The charge further alleged
that in early 2008, the Assistant Director of the Juvenile Probation Department intimidated
Edwards and the local SEIU chapter's chief steward into not signing anymore grievances for
Lam. Finally, the charge alleged that the City violated several sections of its Administrative
Code.
DISCUSSION
1. 	Compliance with PERB Regulation 32635(a)
The City contends that Lam's appeal fails to comply with PERB Regulation 32635(a),
which states in relevant part:
The Appeal shall:
(1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
Article II.A., section 63 states in full:
In the event more than one administrative remedy may be
available within the City and County governmental system of
San Francisco, the Union and the employee shall elect only one.
The election is irrevocable.
PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

(2) Identify the page or part
of
the dismissal to which each appeal
is taaken;	is t
(3) State the grounds for each issue stated.
To satisfy the requirements
of
PERB Regulation 32635(a), the appeal must sufficiently place
the Board and the respondent "on notice
of
the issues raised on appeal." (State Employees
Trades Council United (2009) PERB Decision No. 2069-H.)
In his appeal, Lam alleges that the City unlawfully closed his grievances without
notifying him or local SEIU officers and that it retaliated against him because he filed
grievances and this unfair practice charge. As indicated by the City's discussion
of
the merits
of
these allegations in its response, Lam's appeal sufficiently put the Board and the City on
notice that Lam is appealing the Board agent's dismissal
of
the grievance closure/notice and
retaliation allegations.6 Therefore, the appeal complies with PERB Regulation 32635(a).
2. 	Collusion with SEIU to Close Grievances and Failure to Notify Lam or Local SEIU
Officers
of
Closure
The charge alleged that the City committed an unfair practice by closing Lam's
se
es
4
(2) Identify the page or part of the dismissal to which each appeal
ken;
(3) State the grounds for each issue stated.
To satisfy the requirements of PERB Regulation 32635(a), the appeal must sufficiently place
the Board and the respondent "on notice of the issues raised on appeal." (State Employees
Trades Council United (2009) PERB Decision No. 2069-H.)
In his appeal, Lam alleges that the City unlawfully closed his grievances without
notifying him or local SEIU officers and that it retaliated against him because he filed
grievances and this unfair practice charge. As indicated by the City's discussion of the merits
of these allegations in its response, Lam's appeal sufficiently put the Board and the City on
notice that Lam is appealing the Board agent's dismissal of the grievance closure/notice and
retaliation allegations." Therefore, the appeal complies with PERB Regulation 32635(a).
2. 	Collusion with SEIU to Close Grievances and Failure to Notify Lam or Local SEIU
Officers of Closure
The charge alleged that the City committed an unfair practice by closing Lam's
grievances on January 25, 2008, in collusion with SEIU. However, the charge provided no
facts showing that the City engaged in any conduct by which it conspired with SEIU to clo
Lam's grievances. The City sent a letter on January 25, 2008, to SEIU Worksite Organizer
Reed stating that the City considered the grievances closed based on the election
of
remedi
provision
of
the parties' CBA. The letter stated that Lam had elected to pursue a remedy
through the EEO office and thus could not maintain grievances over the same subject. There is
no indication that the letter was the result
of
any agreement or consultation with SEIU.
Because Lam's appeal does not challenge the Board agent's dismissai
of
the
allegations that the Assistant Director of Juvenile Probation intimidated local SEIU officials
and that the City violated sections of its Administrative Code, we do not address these
allegations further.
grievances on January 25, 2008, in collusion with SEIU. However, the charge provided no
facts showing that the City engaged in any conduct by which it conspired with SEIU to close
Lam's grievances. The City sent a letter on January 25, 2008, to SEIU Worksite Organizer
Reed stating that the City considered the grievances closed based on the election of remedies
provision of the parties' CBA. The letter stated that Lam had elected to pursue a remedy
through the EEO office and thus could not maintain grievances over the same subject. There is
no indication that the letter was the result of any agreement or consultation with SEIU.
Because Lam's appeal does not challenge the Board agent's dismissal of the
allegations that the Assistant Director of Juvenile Probation intimidated local SEIU officials
and that the City violated sections of its Administrative Code, we do not address these
allegations further.
4

The charge also alleged that the City committed an unfair practice by failing to notify
both Lam and local SEIU officers
of
the closure
of
his grievances. The charge did not
establish that the City owed a statutory duty to inform Lam directly
of
the closure. As for
informing SEIU, the City sent a letter on January 25, 2008, to SEIU Worksite Organizer Reed
stating that the City considered the grievances closed.
	Reed's
failure to communicate that
message to local SEIU officials is an internal union matter which PERB may not review
because Lam has not demonstrated that the lack
of
communication had a substantial impact on
his employment relationship with the City. (Service Employees International Union,
Local 221 (Kroopkin) (2009) PERB Decision No. 2006-M; Service Employees International
Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.) We therefore conclude that the
City's role in the closure
of
Lam's
grievances and its failure to inform him or local SEIU
officials
of
the closures did not violate the MMBA.
3. 	Retaliation
To demonstrate that the City retaliated against him in violation
of
Section 3506 and
PERB Regulation 32603(a), Lam must show that: (1) he exercised rights under the MMBA;
(2) the City had knowledge
of
his exercise
of
those rights; (3) the City took adverse action
against him; and (4) the City took the action because
of
his exercise
of
those rights. (Novato
Unified School District (1982) PERB Decision No.
21
O;
San Leandro Police Officers Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553.)
Lam engaged in activity protected
by
the
tv1~v1BiiA
v1hen
he filed the June 19 and
July 25, 2007 grievances. (Bay Area Air Quality Management District (2006) PERB Decision
No. 1807-M.) It is undisputed that the City knew
of
Lam's protected activities because the
grievances were filed with the City.
5
The charge also alleged that the City committed an unfair practice by failing to notify
both Lam and local SEIU officers of the closure of his grievances. The charge did not
establish that the City owed a statutory duty to inform Lam directly of the closure. As for
informing SEIU, the City sent a letter on January 25, 2008, to SEIU Worksite Organizer Reed
stating that the City considered the grievances closed. Reed's failure to communicate that
message to local SEIU officials is an internal union matter which PERB may not review
because Lam has not demonstrated that the lack of communication had a substantial impact on
his employment relationship with the City. (Service Employees International Union,
Local 221 (Kroopkin) (2009) PERB Decision No. 2006-M; Service Employees International
Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.) We therefore conclude that the
City's role in the closure of Lam's grievances and its failure to inform him or local SEIU
officials of the closures did not violate the MMBA.
3. 	Retaliation
To demonstrate that the City retaliated against him in violation of Section 3506 and
PERB Regulation 32603(a), Lam must show that: (1) he exercised rights under the MMBA;
(2) the City had knowledge of his exercise of those rights; (3) the City took adverse action
against him; and (4) the City took the action because of his exercise of those rights. (Novato
Unified School District (1982) PERB Decision No. 210; San Leandro Police Officers Assn. v.
City of San Leandro (1976) 55 Cal.App.3d 553.)
Lam engaged in activity protected by the MMBA when he filed the June 19 and
July 25, 2007 grievances. (Bay Area Air Quality Management District (2006) PERB Decision
No. 1807-M.) It is undisputed that the City knew of Lam's protected activities because the
grievances were filed with the City.
S

It is arguable whether the City's closure
of
Lam's grievances and its failure to notify
him or local SEIU officers directly
of
the closure constituted adverse actions. (See City &
County
of
San Francisco (2004) PERB Decision No. 1664-M ["The adverse action must
involve actual and not merely speculative harm."].) Nonetheless, assuming that the actions
were adverse, the charge failed to establish the required nexus between Lam's protected
activities and the alleged adverse actions. The charge alleged no facts showing that Lam was
treated differently from other similarly situated employees or that the City in any way departed
from established procedures. Nor did the charge allege facts to demonstrate that the City
harbored animus toward SEIU or employees who used SEIU representation. The charge thus
failed to establish an inference that the alleged adverse actions were unlawfully motivated.
Accordingly, the charge did not state a prima facie case
of
retaliation.
ORDER
The unfair practice charge in Case No. SF-CE-574-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.
6
It is arguable whether the City's closure of Lam's grievances and its failure to notify
him or local SEIU officers directly of the closure constituted adverse actions. (See City &
County of San Francisco (2004) PERB Decision No. 1664-M ["The adverse action must
involve actual and not merely speculative harm."].) Nonetheless, assuming that the actions
were adverse, the charge failed to establish the required nexus between Lam's protected
activities and the alleged adverse actions. The charge alleged no facts showing that Lam was
treated differently from other similarly situated employees or that the City in any way departed
from established procedures. Nor did the charge allege facts to demonstrate that the City
harbored animus toward SEIU or employees who used SEIU representation. The charge thus
failed to establish an inference that the alleged adverse actions were unlawfully motivated.
Accordingly, the charge did not state a prima facie case of retaliation.
ORDER
The unfair practice charge in Case No. SF-CE-574-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Wesley joined in this Decision.
6