County of Tehama (PERB 2122M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CARMEN FEGER,
Charging Party,
v.
COUNTY OF TEHAMA,
Respondent.
Case No. SA-CE-500-M
PERB Decision No. 2122-M
June 28, 2010
Appearances: Weinberg, Roger & Rosenfeld by J. Felix De La Torre and Gary P. Provencher,
Attorneys, for Carmen Feger; Renne, Sloan, Holtzman & Sakai by Timothy G. Yeung,
Attorney, for County
of
Tehama.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Carmen Feger (Feger)
of
a proposed decision (attached) by an
administrative law judge (ALJ) and on cross appeal by the County
of
Tehama (County). 	The
unfair practice charge alleged that the County violated the Meyers-Milias-Brown Act
(MMBA) 1 by discriminating against Feger for testifying on behalf
of
a co-worker at an
arbitration hearing and by failing to provide information. Feger alleged this conduct
constituted a violation
of
MMBA sections 3502 and 3506.
With regard to the discrimination claim, the ALJ found that Feger failed to establish a
prima facie case
of
discrimination. Additionally, the ALJ found that even
if
a prima facie case
was established, the County demonstrated legitimate non-discriminatory reasons that it would
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

have taken the same action in the absence
of
protected conduct. Accordingly, the ALJ
dismissed the discrimination claim. With regard to the failure to provide information claim,
the ALJ found that Feger failed to use the pre-discovery procedures set forth in PERB
Regulation 321502 and, therefore, was not entitled to the information requested. Accordingly,
the ALJ dismissed Feger's motion to exclude documentation and strike testimony based on the
County's failure to provide information.
We have reviewed the entire record and agree with the ALJ that Feger failed to
establish a prima facie case
of
discrimination. However, we disagree with the ALJ that the
destruction
of
the Eligibility Worker III (EW III) list constituted an adverse action.
Accordingly, we hereby adopt the proposed decision as the decision
of
the Board itself, subject
to the discussion below.
BACKGROUND
The proposed decision contains a thorough and accurate recitation
of
the facts
underlying the instant unfair practice charge and is hereby adopted by the Board in its entirety.
The following is a brief summary
of
the relevant facts to provide context for our discussion
below.
Feger began her employment with the County's Department
of
Social Services (DSS)
as an Office Assistant II in July 1998 and was later promoted to Office Assistant III. In 2000,
Feger was appointed as an Eligibility Worker I and was assigned to one of the Intake Units.
She was automatically elevated to Eligibility Worker II after she passed probation and
continues to work in the Intake Unit.
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

The executive management
of
DSS consists
of
Director Christine Applegate
(Applegate) and Deputy Director Teresa Curiel (Curiel). They have held their positions since
2002 and 2005, respectively. Curiel oversees all program managers
of
the various DSS
divisions, including the DSS Eligibility Division, and is responsible for all personnel matters.
The DSS Eligibility Division is managed by Program Manager Melody Finwick (Finwick) and
consists
of
six units which include multiple Intake and Continuing Units, and a Medi-Cal Unit.
Each
of
the six units has a supervisor and a lead worker. The leadworkers hold EW III
positions.
A. 	DSS Hiring Practices
The DSS operates under the Local Agency Personnel Standards (LAPS) regulations.3
In regards to the examination and selection
of
candidates for employment, LAPS
Regulation 17110 provides:
Recruiting, selecting and advancing employees shall be on the
basis
of
their relative ability, knowledge and skills, including
open consideration
of
qualified applicants for initial appointment.
Candidates for employment with a LAPS agency must participate in an examination for
each specific classification they desire employment. Once the examination is conducted,
ratings are assigned to the candidates and "eligible" lists are established. (LAPS Regs. 17444
and 17458.)
When a local agency operating under LAPS elects to fill a vacancy in a classification, it
notifies the State Personnel Board (SPB) and the SPB will certify to the agency the names
of
the five candidates with the highest ratings on the eligible list for that classification. (LAPS
Reg. 17470.) The local agency is allowed to contact candidates on the eligible list as to their
LAPS regulations are codified at California Code of Regulations, title 2,
section 17010 et seq.
3

"interest" in appointment and give them a "reasonable time to respond." (LAPS Reg. 174 73.)
Overall, appointments are made on the general requirement of competition. (LAPS
Reg. 17481.) If fewer than five of the candidates on the eligible list are "available to the
appointing authority," the SPB "may" consider that eligible list to be "exhausted." (LAPS
Reg. 17468.)
According to both Applegate and Curiel, DSS usually requests the abolishment of an
eligible list and a new examination when less than five candidates remain on the list or when
less than five candidates express interest in competing for a position when one vacancy exists
or when less than six candidates express interest in competing for a position when two
vacancies exist. DSS also requests the abolishment of an eligible list when the current eligible
list is over one-year old. In the past, when DSS asked for a new eligible list, SPB usually
granted the request; however, on one occasion, SPB denied such a request when five
candidates remained on the list.
B. 	Creation of March 15, 2006 Eligible List
On March 15, 2006, following an open examination, an EW III eligible list was issued
by SPB. Twelve individuals were on the list. Feger received the lowest rating of the
candidates and, therefore, was ranked at the bottom of the list. Prior to the issuance of this list,
Feger applied for at least one EW III position but was not selected.
C. 	Arbitration Proceedings
On December 16, 2006, and January 30 and 31, 2007, an arbitrator conducted a hearing
on disciplinary grievance regarding Donna4, an employee who allegedly made threatening
statements to her supervisor. Although she did not witness any of the events set forth in the
The last name of Donna as well as the last names of the candidates for Eligibility
Worker III positions are not used herein to protect their privacy as third parties to this matter.
4

disciplinary notice, Feger was subpoenaed by Donna's union representative to testify at the
January 30, 2007, hearing. Both Finwick and Curiel were aware that Feger was subpoenaed to
testify at the hearing. At the hearing, Feger testified that Donna had a strong personality, was
loud in her use of profanity, had a "potty mouth," and would rant and vent when she got passed
over for promotion, but Feger never heard Donna threaten others. Feger admitted that she had
been passed over for promotion before and was still upset about it. At that time, Feger
believed she had been "targeted" by Finwick.
D. 	January 2007 Certification List
On January 8, 2007, the March 15, 2006 EW III eligible list was certified again for
appointment(s). The list consisted of nine candidates, and Feger was ranked ninth.
At some point after January 8, 2007, Finwick approached Curiel with concern about the
list. Finwick told Curiel that since several candidates on the list had already been appointed to
other DSS positions, she did not believe five candidates would express interest in the two
vacancies. Curiel instructed Finwick to send out contact and waiver forms to determine who
was interested in the position. On or about January 30, 2007, DSS sent out the forms and
requested the candidates to complete the forms and return them by February 8, 2007. Feger
received the form in the mail, completed it on January 31, 2007, and indicated on it that she
was interested in the vacancy.
As of February 8, 2007, only four of the nine candidates on the certification list
responded that they were interested in the two vacancies: Marilyn, who was ranked third on
the list; Cami, who was ranked fifth; Luanne, who was ranked seventh; and Feger, who was
ranked ninth. Curiel asked Cami if she was truly interested in the vacancy as she had already
received an appointment to a Social Worker position. Cami replied that she was not interested,
5

but was asked by Marilyn to express her interest so the certification list would have at least
five candidates who expressed interest. 	Curiel then decided that Cami was not interested in the
vacancy. After discovering that only three candidates expressed interest, Curiel instructed
Finwick to request SPB to abolish the existing eligible list and conduct another examination so
that DSS could have a candidate pool
of
at least six candidates to fill the two EW III vacancies.
Curiel testified that neither Curiel or Finwick discussed Feger's arbitration testimony when
discussing whether to abolish the eligible list.
On February 8, 2007, Finwick completed the SPB form requesting a new examination
for the EW III classification. SPB granted Finwick' s request and conducted a new
examination. A new EW III list consisting
of
nine candidates was issued on April 16, 2007.
Feger was ranked seventh. Eventually, two people were selected from the list to fill the
vacancies. Feger was not one
of
the two candidates selected. Feger filed her original unfair
practice charge alleging the County's·conduct constituted unlawful discrimination on August
9,
2007.
E. 	Requests for Information in Preparation
of
a PERB Hearing
On April 4, 2008, prior to the hearing on her unfair practice charge, Feger's union
representative, Robert Belgeri (Belgeri), sent a letter to Linda Durrer (Durrer), Personnel
Consultant to the County's Chief Administrator, entitled, "Request for Information In the
Matter of Carmen Feger-Unfair Labor Practice Charge." In this letter, Belgeri requested
copies of Interagency Merit System certification lists for EW III from 2003 to 2008, contact
and waiver forms received from prospective candidates for EW III from 2003 to 2008 and any
and all documentation and/or correspondence from SPB in which a determination had been
made about an existing list being exhausted and a new list being generated. Belgeri admitted
6

that the requested information was to be used to support Feger's contentions at the PERB
hearing.
On April 8, 2008, Belgeri sent another letter to Durrer entitled "Second Request for
Information In the Matter
of
Carmen
Feger-Unfair
Labor Practice Charge" requesting
information regarding those candidates who were interviewed for an EW III position on
March 14, 2008, including the certification list, the interview/test scores
of
the interviewees,
the factor as to why no candidates from the certification list would be chosen and the names,
titles and contact telephone numbers
of
any officials
of
DSS who decided to dissolve the list.
Belgeri requested that information be provided by April 14, 2008. Belgeri admitted that he
requested the documents in order to prepare for the PERB hearing.
On April 14, 2008, the County's attorney responded to both the April 4 and
8,
2008
requests stating that PERB did not allow a right for pre-hearing discovery, but decided to
provide responses to the requests. The County provided some
of
the documents requested in
the April 4, 2008 request, but denied providing any
of
the documents in the April
8,
2008
request as being irrelevant to the complaint.
At the hearing, Feger's representative moved to exclude any documents or strike any
testimony based upon documents which it requested in its April 4 and 8, 2008 letters, and were
not provided by the County. The ALJ dismissed the motion based on Feger's failure to use the
pre-discovery procedures set forth in PERB Regulation 32150.
DISCUSSION
A. 	Abolishment of the List
The ALJ found the County's February 8, 2007, request to abolish the EW III list
constituted an adverse action. In making this determination, the ALJ explained:
7

Being prevented from competing in a selection interview which
could result in the increase
of
an employee's salary actually
harms Feger as it deprives her
of
an opportunity to advance,
especially when Feger would have been one
of
three candidates
competing for two vacancies. A reasonable person would
conclude that under these specific circumstances and this
particular candidate to vacancy ratio, such a deprivation
of
an
opportunity would have an actual adverse impact on an
employee's employment. Therefore, the February 8, 2007
request to abolish the eligible list constitutes an adverse action.
The Board has held that an employer's action is adverse
if
a reasonable person under
the same circumstances would consider the action to have an adverse impact on the employee's
employment. For example, the Board has found a counseling memorandum that threatens
future discipline to constitute an adverse action. (City
of
Long Beach (2008) PERB Decision
No. 1977-M.) The Board has also found that an involuntary reassignment
of
duties is
an
adverse action when the working conditions
of
the new position are less favorable than those
of
the previous position, even
if
the reassignment does not result in loss
of
pay or benefits.
(Trustees
of
the California State University (2009) PERB Decision No. 2038-H.) However,
the Board has held that an adverse action will not be found in situations involving a future
adverse impact on employment conditions when such impact is speculative. (County
of
San Diego (2009) PERB Decision No. 2005-M.)
Here, Feger claims that the abolishment
of
the list constituted an adverse action because
it deprived Feger
of
the opportunity to interview for a promotion, and possible opportunity to
advance. However, as indicated above, DSS operates under the merit principles set forth in the
LAPS regulations. 	Consequently, the mere fact that Feger was one
of
three employees who
remained on a depleted eligible list does not necessarily mean she would have been hired.
Considering she was ranked last on the list at its inception, it is simply speculative that she
would have been hired for the position, regardless of the number of interested candidates. In
8

fact, in a later hiring cycle (March 2008), Feger was one
of
only two individuals who
interviewed for an EW III position. However, notwithstanding the limited applicant pool,
neither individual received the promotion. According to Applegate, neither candidate
performed well on the interviews, maintained a record
of
exceptional job performance or
possessed the abilities to merit a promotion. Accordingly, Feger's potential loss
of
a
promotional opportunity is, at best, speculative and, therefore, insufficient to support a finding
of
an adverse action.
B. 	The County's Past Practice Regarding Exhausting Eligibility Lists
Feger claims the ALJ erred when he determined that the County had a past practice
of
exhausting eligible lists when less than five candidates expressed interest in the position.
According to Feger, the ALJ wrongfully relied exclusively on hearsay evidence in making this
determination. Therefore, Feger claims, the finding is not supported by the record and should
be rejected by the Board.
Hearsay evidence is evidence
of
a statement made by someone other than the testifying
witness that is offered to prove the truth
of
the matter asserted. (Evid. Code §1200.) Although
inadmissible in civil proceedings, hearsay evidence is admissible in PERB proceedings, but
insufficient, standing alone, to support a finding, unless it would be admissible over objection
in civil actions. (PERB Reg. 32176.)
In the instant case, both Curiel and Applegate testified about their understanding and
knowledge
of
the County's policy and practice. Although some of their knowledge may have
been acquired from third party sources, it was clearly based on their experiences with eligible
lists. 	Simply put, the testimony was not hearsay.
9

In addition, the District presented unrebutted evidence that Cami, one
of
the four
candidates who expressed interest in February 2007 for the EW III position, was not actually
interested in the position. Instead, she indicated interest in the position at the request
of
Marilyn to ensure at least five candidates on the list expressed interest in the position. 	Clearly,
this conduct supports the proposition that both Marilyn and Cami believed the list would be
exhausted
if
it contained an insufficient number
of
interested candidates. For the purposes
of
the hearsay rule, Cami's actions are properly characterized as nonassertive conduct
demonstrating knowledge
of
the County's policy to exhaust lists containing less than five
interested candidates. Therefore, this evidence does not constitute hearsay. 	(See People
v.
Jurado (2006)
38
Cal.4th 72, 129.) Accordingly, we find there was adequate evidence
in
the
record to support the ALJ's finding that the County had a past practice
of
exhausting eligible
lists when less than five candidates expressed interest in the position.
C. 	The ALJ Properly Denied Feger's Motion to Exclude Documentation and Strike
Testimony
At hearing, Feger moved to exclude documentation and strike testimony based on the
County's alleged failure to provide requested documents. The ALJ denied the motion, ruling
that the union's right to information did not extend to extra-contractual forums such as PERB
proceedings. In her appeal, Feger argues the ALJ erred when he denied the motion.
PERB Regulation 32150 sets forth the procedure for obtaining subpoenas to compel to
production
of
documents and the attendance of witnesses. Feger, however, did not follow
these procedures. Instead, the charging party sought the information pursuant to a traditional
request for information. According to the ALJ:
Once a complaint is sent to formal hearing before a PERB Board
agent, a party's ability to obtain documentation to support its case
is set forth in PERB regulations.
10

Consequently, the ALJ denied the motion based on Feger's failure to follow the
Board's pre-hearing discovery procedures.
We find this analysis consistent with a recent Board decision, Carmichael Recreation &
Park District (2008) PERB Decision No. 1953-M, in which that Board held that a
union's
right
to information does not extend to extra-contractual forums. 	Consequently, we agree
with
the
ALI'
s analysis and conclusion and find the motion was properly dismissed. 5
ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-500-M are
hereby DISMISSED.
Chair Dowdin Calvillo and Member Wesley joined in this Decision.
5 In her appeal, Feger argues that the ALJ erred in ruling the union's request for
documents were excluded from the California Public Records Act (CPRA). 	The ALJ,
however, made no such ruling. 	Instead, the ALJ simply noted that similar to civil actions in
which the discovery mechanisms cannot be circumvented by CPRA requests, PERB pre-
hearing discovery procedures cannot be circumvented by union information requests. 	Thus,
when read in context, this comparison clearly was not the basis of his decision. Looking to the
merits of the argument, the requests were not made pursuant to the CPRA. Moreover, even if
such requests were made, PERB lacks the jurisdiction to enforce CPRA requests.
Consequently, this argument has no merit and is hereby rejected by the Board.
11

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CARMEN FEGER,
Charging Party,
V.
COUNTY OF TEHAMA,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-500-M
PROPOSED DECISION
(6/30/2008)
Appearances: Weinberg, Roger & Rosenfeld, by J. Felix De La Torre, Attorney, for Carmen
Feger; Renne Sloan Holtzman Sakai, LLP, by Timothy G. Yeung, Attorney, for the County
of
Tehama.
Before Shawn P. Cloughesy, Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges that a public employer abolished an eligible list in retaliation
of
an
employee's exercise
of
protected activities. The employer denies committing any unfair
practice.
On August 9, 2007, Carmen Feger (Feger), filed an unfair practice charge against the
County
of
Tehama (County). On November 16, 2007, the PERB Office
of
General Counsel
issued a complaint alleging that the County violated Meyers-Milias-Brown Act (MMBA) 1
sections 3506 and 3509(b) and Public Employment Relations Board (PERB) Regulation
32603(a) by abolishing a March 15, 2006 eligible list2 for Eligibility Worker III in retaliation
for Feger testifying on behalf
of
the exclusive representative in a coworker's discipiinary
Unless otherwise indicated, all statutory references are to the Government Code.
MMBA is codified at Government Code section 3500 and following. 	PERB regulations are
codified at California Code
of
Regulations, title 8, section 31001 and following.
2 The complaint actually refers to the abolishment of a January 8, 2007 certification
list, but according to the County's local regulations it is an eligible list which is abolished, not
a certification list.

arbitration. 	On December 6, 2007, the County answered the complaint and denied committing
any unfair practice.
An informal settlement conference was set for December 12, 2007, but was continued
to January 15, 2008. The case was not resolved.
The formal hearing was heard on April 15, 2008. Post-hearing briefs were initially set
to be received on June 2, 2008, but the submission date was extended to June 9, 2008.
FINDINGS OF FACT
Jurisdiction
The County is a public agency under MMBA section 3501(c) and PERB
Regulation 32016(a). The County Department
of
Social Services (DSS) is an entity within the
County. DSS Director Christine Applegate (Applegate) and Deputy Director Teresa Curiel
(Curiel) constitute DSS executive management and have held their positions since 2002 and
2005, respectively.
Under PERB Regulation 32016(b), the Joint Council ofinternational Union
of
Operating Engineers, Stationary Engineers, Local 39 and Service Employees International
Union, Local 1292 (Union) is the exclusive representative
of
the County's miscellaneous
bargaining unit which includes the classifications
of
Eligibility Worker II and III. Feger is a
public employee under MMBA section 3501(d).
DSS Civil Service Rules
The DSS is an agency that is operated under the Local Agency Personnel Standards
(LAPS) regulations.3 In regards to examination and selection
of
candidates for employment,
LAPS regulations generally require:
LAPS regulations are codified at California Code of Regulations, title 2,
section 17010 and following.
2

Recruiting, selecting and advancing employees shall be on the
basis
of
their relative ability, knowledge and skills, including
open consideration
of
qualified applicants for initial appointment.
(LAPS Regulation 17110.)
More specifically, candidates for "career service"4 or employment with a LAPS agency must
participate in an examination for each specific classification they desire employment. An
"open" examination is to be competitive.5 (LAPS Regulations 17430 and 17444). Once the
examination is conducted, ratings are assigned to the candidates and "eligible" lists are
established. (LAPS Regulations 17444 and 17458.)
Once a local agency operating under LAPS wants to fill a vacancy in a classification, it
notifies the State Personnel Board (SPB) and the SPB will certify to the agency the names
of
the five candidates with the highest ratings on the eligible list for that classification. (LAPS
Regulation 17470.) The local agency
is
aliowed to contact candidates on the eligible list as to
their "interest" in appointment and give them a "reasonable time to respond." (LAPS
Regulation 17473.) Overall, appointments are made on the general requirement
of
competition. (LAPS Regulation 17481.)
If
fewer than five
of
the candidates on the eligible
list are "available to the appointing authority," the SPB "may" consider that eligible list to be
"exhausted." (LAPS Regulation 17468.)
Applegate and Curiel testified as to the DSS past practice
of
requesting the abolition
of
an eligible list. DSS usually requested that the SPB abolish an eligible list and hold a new
examination whenever less than five candidates remained on the eligible list or less than five
candidates responded that they were interested in competing for the position of one vacancy
"Career service" is defined as all positions in a local agency except for the "executive
head" and "deputy executive head" of an agency, a confidential assistant, and unskilled labor.
(LAPS Regulations 17030 and 17200.)
5 An "open" examination is one that is open to the public to apply. (LAPS
Regulation 17444.)
3

and less than six candidates expressed interest in two vacancies. DSS also requested SPB
abolish an eligible list and conduct a new examination after one year passed from the date the
current eligible list was established. In the past, when DSS asked for a new eligible list,
the
SPB usually granted the request, but on one occasion SPB denied the request when five
or
more candidates remained on the eligible list.
After DSS conducts selection interviews and reference checks to fill a vacancy,
the
respective DSS program manager and Curiel approach Applegate with their recommendation
for selection and give an explanation supporting their recommendation. Applegate then
usually asks about the candidate's reference checks.
	If
the candidate is a DSS employee,
Applegate asks about the candidate's DSS
job
performance. Applegate will then either
approve or disapprove the recommendation
of
selection.
DSS Eligibility Division
Curiel oversees all program managers
of
the various DSS divisions, including the DSS
Eligibility Division, and is responsible for all personnel matters. The DSS Eligibility Division
is managed by Program Manager Melody Finwick (Finwick) and consists
of
six units
which
include multiple Intake and Continuing Units, and a Medi-Cal Unit. The Intake Units process
applications for benefits by interviewing applicants. Once the applicant is approved for
benefits, that benefit recipient is handled by the Continuing Units.
Each
of
the six units has a supervisor and a leadworker-Eligibility Worker III. 	The
Eligibility Worker III supports the supervisor as well as acts as a role model and trainer
of
the
Eligibility Worker I's and II' s. Eligibility Worker III' s are also to handle difficult
cases/situations.
4

Feger's Employment
In July 1998, Feger began her County employment as an Office Assistant II and was
promoted to Office Assistant III. In 2000, Feger was appointed as an Eligibility Worker I and
was the last person on the eligible list when she was appointed. She was assigned to one
of
the
Intake Units. 	She was automatically elevated to Eligibility Worker II after she passed
probation and continues to work in the Intake Unit.
March 2006 Eligible List and Termination
of
an Eligibility Worker II
On March 15, 2006, an Eligibility Worker III eligible list was established and issued by
SPB as a result
of
an open examination. Twelve individuals were on the list and Feger
received the lowest rating
of
the candidates and was on the bottom
of
the list. Also on that list
was Eligibility Worker II Marilyn6 who was rated as fifth on that list. Before this list issued,
Feger had applied for an Eligibility Worker III position on one or two occasions, but was never
selected.
On March 17, 2006, Finwick signed a "Notice
of
Proposed Disciplinary Action"
suspending Eligibility Worker II Donna for
15
days effective April 5, 2006 for threatening her
supervisor, Lorena Jones (Jones), on March 16, 2006. The remarks included "I hate that
fucking bitch," when referring to Jones. Also, when being counseled by Jones, Donna said in
Jones' presence, "did I tell you I have a shotgun, I haven't even taken it out
of
the box yet."
When Jones asked Donna whether she intended to take the shotgun out
of
the box, Donna
allegedly said, "you know those kids at a high school, the one with the trench coats that got
pushed over the edge
...
things happened at school to push those kids over the edge and you
never know, it could happen anywhere." The notice also accused Donna of laughing when
Finwick explained that she was being placed on administrative leave pending an investigation
The last name of Marilyn and other candidates for Eligibility Worker III are not used
in order to protect their privacy as they are third-parties to the proceeding.
5

of
the shotgun comment, not returning to her desk when Finwick instructed her, and throwing
things about her desk. The Union filed a grievance on Donna's behalf and represented her
throughout the grievance/arbitration process.
On August 9, 2006, the March 15, 2006 Eligibility Worker III eligible list was certified
in order to make an Eligibility Worker III selection. The eligible list had ten eligibles on the
list and Feger was the tenth on that list. Marilyn was third on the list. Laurie Nelson and
Supervisor Linda Shell told Feger that she would be interviewed. However, Feger was not
interviewed as two
of
the outside candidates on the certification list had not been properly
notified
of
the vacancy. 	When the two candidates were notified and expressed their interest,
Feger was too far down the list to be interviewed.
On December 16, 2006, and January 30 and 31, 2007, an arbitrator conducted a hearing
on Donna's disciplinary grievance. Donna was represented by her union through a union
attorney and DSS was represented by the County Counsel's office. The Union's labor
representative, Robert Belgeri (Belgeri), was present throughout the proceedings. The
County's witnesses included Applegate, Curiel, Finwick, and Jones. Finwick testified to being
the investigator which led to the termination action. Curiel also testified as to her involvement
in the investigation.
The Union subpoenaed Feger who testified on behalf
of
Donna on January 30, 2007,
although Feger did not witness any
of
the events set forth in the disciplinary notice. Feger
gave her subpoena to Finwick before she testified to ensure that she would be released to
attend the hearing. 	Curiel was also aware that Feger was subpoenaed. At the disciplinary
arbitration hearing, Feger testified that Donna had a strong personality, was loud in her use of
profanity, had a "potty mouth," and would rant and vent when she got passed over for
promotion, but Feger never heard Donna threaten others. Feger admitted that she had been
6

passed over for promotion before and was still "pissed
off'
about it. At that time, Feger
believed she had been "targeted" by Finwick.
Belgeri, a union representative for a number
of
years, testified that the County
expended more resources to prosecute Donna's disciplinary arbitration than he had seen
in
any
other disciplinary action proceeding and included the County seeking a restraining order
against Donna on behalf
of
some
of
its employees, including Jones. Criminal contempt
proceedings for violating the restraining order were also initiated against Donna.
January 2007 Certification List
On January 8, 2007, the March 15, 2006 Eligibility Worker III eligible list was certified
again for appointment(s). The certification list had nine eligibles on the list and Feger was
ninth on that list. Marilyn was third on the list. Marilyn was the most senior candidate
and
Feger was the next senior candidate.
Finwick approached Curiel and expressed concern over the existing Eligibility
Worker III certification list as she did not think five candidates would express interest
in the
two vacancies as several candidates on the list had already been appointed to other DSS
positions. Curiel instructed Finwick to send out Contact and Waiver forms7 to see who
was
interested in the position. Curiel wanted to wait until she determined how many candidates
expressed interest in the positions until she made a decision as to the viability
of
the list.
On or about January 30, 2007,8 DSS sent out Contact and Waiver forms to the
candidates on the eligible list requesting them to complete the fonns and return it by
7 Contact and Waiver forms allow the candidate to express interest in the vacancy,
decline interest in the vacancy or request removal from the list.
8 Curiel testified that the Contact and Waiver forms were sent out before
January 30, 2007 as Finwick and her were too busy with the arbitration on January 30, 2007 to
discuss the selection process of two Eligibility Worker III vacancies.
7

February 8, 2007. Feger received the form in the mail, completed it on January 31, 2007,
and
indicated on it that she was interested in the vacancy.
As
of
February
8,
2007, only four candidates on the certification list responded
that
they were interested in the two vacancies: Marilyn - third on the list; Kami - fifth on the list;
Luan - seventh on the list; and Feger - ninth on the list. Curiel
ask~ed
Kami
if
she was truly
interested in the vacancy as she had already received an appointment to a Social Worker
position. Kami replied that she was not interested, but was asked by Marilyn to express her
interest so the certification list would have at least five candidates who expressed interest.
Curiel then decided that Kami was not interested in the vacancy. After discovering that only
three candidates expressed interest, Curiel instructed Finwick to request SPB to abolish the
existing eligible list and conduct another examination so that DSS could have a candidate pool
of
at least six candidates to fill the two Eligibility Worker III vacancies. 9 Curiel testified that
neither Curiel or Finwick discussed Feger's arbitration testimony when discussing whether to
abolish the eligible list.
On February 8, 2007, Finwick completed the SPB form requesting a new examination
for the Eligibility Worker III classification. SPB granted Finwick's request and a new
examination was conducted by SPB.
10
After a new examination for Eligibility Worker III was
conducted, the new eligible list was issued on April 16, 2007 and had nine eligibles on the list.
Eligibility Worker II's Brinda, Sarah and Kelly scored in the top four positions on the list.
Marilyn and Feger scored in the sixth and seventh position. Eventually Brinda and Kelly were
Curiel understood that it was not mandatory to abolish a list
if
less than five
candidates expressed interest.
10 Examinations are usually conducted by three-person interview panels consisting ofone DSS representative, one SPB representative, and one community representative. Curiel
admitted that sometimes the panels consisted of one SPB representative and two DSS
representatives.
8

selected to fill the Eligibility Worker III vacancies. Feger had no knowledge
of
whether she
had been inappropriately ranked on the new eligible list.
Arbitrator's Opinion and Award
On April 20, 2007, the Arbitrator's Opinion and Award regarding Donna's grievance
of
her termination was issued to the Union's attorney and the County Counsel's office. The
penalty
of
termination was modified to a thirty working day suspension with a directive that
the grievant attend anger-management counseling. The entire Arbitration Opinion and A ward
was not offered into the evidentiary record so it is difficult to determine whether the arbitrator
believed that Feger's testimony was helpful to Donna's defense or not.
Curiel testified that she believed Feger's testimony did not play a large role in the
outcome
of
the arbitrator's opinion. Curiel admitted that she was surprised and not happy with
the arbitrator's opinion reinstating Donna. Applegate did not become aware
of
Feger's
involvement in the arbitration until she read the arbitrator's opinion. Applegate was not upset
that Feger testified, but only wanted to know what DSS had to do to comply with the
arbitrator's award.
October 2007 Selection
11
By September 2007, Jones replaced Finwick
as
the Program Manager on an interim
basis when Finwick received a temporary assignment. In October 2007, candidates on the
eligible list competed again for an Eligibility Worker III vacancy. The position was not
initially advertised as bilingual, but one of the Eligibility Worker III positions was being
upgraded to a bilingual position. Laura was eventually selected. Feger testified that Jones told
The selection processes subsequent to the February 8, 2007 request to abolish the
March 15, 2006 eligible list is examined for the purposes of determining an improper motive of
the February 8, 2007 request and determining the accuracy of the testimony of Applegate and
Curiel as to DSS' past practice of the selection process. The complaint was not amended to
allege that each selection after February 8, 2007 was also a retaliatory event.
9

her she finished a close second and further stated, "You understand that admin has issues with
you." Feger asked Jones what issues she was referencing and Jones responded that she did not
know. Feger asked Jones what she ever did against them except testify at Donna's arbitration.
Jones denied having any discussion with Feger about why she wasn't selected until the
December 2007 interviews occurred.
December 2007 Selection
In December 2007, a temporary vacancy for Eligibility Worker III in the Continuing
Unit was advertised to cover behind the absence of Eligibility Worker III Rachel Martinez.
Around December 20, 2007, Jones informed Feger that Sarah was selected. Jones testified that
Sarah and Feger were "neck and neck" with Sarah doing a "little bit" better. 	When she called
Feger to notify her that she had not been selected and that Sarah was selected, Jones informed
Feger that Sarah was bilingual, had the most experience working in the Continuing Unit
regarding Medi-Cal issues, and was a "better fit." Specifically, Jones was looking for an
employee who had experience in the Continuing Unit processing Medi-Cal food stamps. 	Jones
also told Feger to work on her interviewing skills.
Feger told Jones that she felt "picked on," that she was never going to promote, that
"admin had a problem with her," and that Finwick told her that if the scores were close that the
most senior person would get the appointment. Jones responded that she did not work that
way, but hired the best candidate for the job. Feger brought up the arbitration, but Jones did
not want to discuss it. Jones denies ever stating that "admin had a problem" with Feger.
Later, the same day of Jones' discussion with Feger, Jones sent an e-mail to John
Buckley, Feger's supervisor, which stated in part:
" ... however when I started to talk to her about improving on her
interviewing skills she pretty much lost it. She says she knows
that she needs to improve, but it shouldn't matter because her
seniority should count. I tried to explain to her the way things
10

work (or at least for me) but she feels she has been wronged by
Admin. I felt so bad for her. 	She was really upset and crying
when she stormed out
of
my office. Luckily it was late in the day
and I
don't
think anyone was here that heard her. I know she
feels like I am lying to her when I tell her I want to help her, I
wish she would give me a chance, but I know she feels I am part
of
the enemy. At least she has the next week off. Just wanted
you to know so you can be prepared
if
she talks to you about this.
(Emphasis added.)
March 2008 Interviews
In March 2008, another Eligibility Worker III position was advertised to be filled.
After the Contact and Waiver forms were received, only Marilyn and Feger expressed interest
in the position. Applegate decided to make an exception to her usual practice
of
requesting a
new eligible list and allowed Marilyn and Feger to be interviewed as Applegate was sensitive
to Feger's unfair practice charge regarding the February
8,
2007 request to abolish the list.
12
After the interviews
of
both Marilyn and Feger, Jones did not think either candidate had
the skills needed to perform as an Eligibility Worker III. Both Curiel and Jones went to
Applegate and suggested abolishing the eligible list. Applegate was told that both candidates
did "okay" in their interviews, but their job performance was not exceptional and their abilities
did not merit selection. Applegate agreed and DS S requested that the April 16, 2007 list be
abolished.
Feger testified that she believed that Donna prevailed on her arbitration because
of
all
the witnesses who testified on Donna's behalf, including herself. Other DSS rank and file
employees who testified on behalf
of
Donna were Sarah, Sue, Sherry, and Chris. However,
since January 30, 2007, Sherry was promoted to DSS Adult Protective Services Supervisor and
Sarah was appointed as an acting Eligibility Worker III (bilingual).
Jones testified that, other than in March 2008, she always interviewed at least five
candidates for a position that was filled.
11

Requests for Information for Preparation
of
the PERB Hearing
On April 4, 2008, Belgeri sent a letter to Linda Durrer, Personnel Consultant to the
County's Chief Administrator, entitled, "Request for Information In the Matter
of
Carmen
Feger-Unfair
Labor Practice Charge" which requested copies
of
Interagency Merit System
certification lists for Eligibility Worker III from 2003 to 2008; Contact and Waiver forms
received from prospective candidates for Eligibility Worker III from 2003 to 2008; and, any
and all documentation and/or correspondence from SPB in which a determination had been
made about an existing list being exhausted and a new list being generated. Belgeri admitted
that the requested information was to be used to support Feger's contentions at the PERB
hearing.
On April
8,
2008, Belgeri sent another letter to Durrer entitled "Second Request for
Information In the Matter
of
Carmen
Feger-Unfair
Labor Practice Charge" requesting
information regarding those candidates who were interviewed for an Eligibility Worker III
position on March 14, 2008, including the certification list, the interview/test scores
of
the
interviewees, the factor as to why no candidates from the certification list would be chosen and
the names, titles and contact telephone numbers
of
any officials
of
DSS who decided to
dissolve the certification list. Belgeri requested that information be provided by
April 14, 2008. Belgeri admitted that he requested the documents in order to prepare for the
PERB hearing.
On April 14, 2008, the County's attorney responded to both the April 4 and 8, 2008
requests stating that PERB did not allow a right for discovery, but decided to provide
responses to the requests. The County provided some of the documents requested in the
April 4, 2008 request, but denied providing any of the documents in the April 8, 2008 request
as being irrelevant to the complaint.
12

ISSUES
1.	
Was the County's February 8, 2007 request to abolish the eligible list taken
in
retaliation for Feger' s exercise
of
protected activities?
2. Are requests for information a proper discovery tool in a PERB formal hearing?
CONCLUSIONS OF LAW
Feger alleges that the County requested to abolish an eligible list because
of
her
exercise
of
protected activities under the MMBA, in
violation
ofMMBA
section 3506
and
PERB Regulation 32603(a). To establish a prima facie case ofretaliation, Feger must
show
that: 	(1) she exercised rights under MMBA; (2) the County had knowledge
of
the exercise
of
those rights; and (3) the County imposed or threatened to impose reprisals, discriminated
or
threatened to discriminate, or otherwise interfered with, restrained or coerced the employee
because
of
the exercise
of
those rights. 	(Campbell Municipal Employees Association v. City
of
Campbell (1982) 131 Cal.App.3d 4 I 6; San Leandro Police Officers Association v.
City
of
San Leandro (1976) 55 Cal.App.3d 553.) Once protected activity is established to be a
motivating factor, the burden shifts to the County to demonstrate that it would have taken the
same action even in the absence
of
protected conduct. (County
of
San Joaquin (Health Care
Services) (2003) PERB Decision No. 1524-M, adopting proposed ALJ decision at p. 23.)
To constitute an adverse action for purposes
of
determining a reprisal, the action must
involve "actual and not merely speculative harm" and the "inquiry is whether a reasonable
person under the same circumstances \vould consider the action to have an adverse impact on
the employee's employment." (City & County
of
San Francisco (2004) PERB Decision
No. 1664-M, p. 12, citing to Regents
of
the University
of
California (1998) PERB Decision
No. 1263-H, Palo Verde Unified School District (1988) PERB Decision No. 689, and Newark
Unified School District (1991) PERB Decision No. 864.)
13

It is uncontested that on January 30, 2007, Feger testified in a coworker's disciplinary
arbitration which was represented by the Union. By testifying on behalf
of
a union-represented
grievance/arbitration, Feger participated in the activities
of
her exclusive representative in their
representation
of
a coworker on all "matters
of
employer-employee relations." (MMBA
section 3502.) Curiel admitted that she was aware that Feger was subpoenaed to testify for the
Union and Finwick received Feger's subpoena so she could be released to testify. Feger has
met the first two elements
of
establishing a prima facie case
of
retaliation that Feger exercised
protected activity by testifying on behalf
of
a coworker in a union-represented
grievance/arbitration and that Curiel and Finwick were aware
of
her protected conduct.
The next element is whether the February
8,
2007 request to abolish the eligible list
constituted an adverse action. Being prevented from competing in a selection interview which
could result in the increase
of
an employee's salary actually harms Feger as it deprives her
of
an opportunity to advance, especially when Feger would have been one
of
three candidates
competing for two vacancies. A reasonable person would conclude that under these specific
circumstances and this particular candidate to vacancy ratio, such a deprivation
of
an
opportunity would have an actual adverse impact on an employee's employment. Therefore,
the February 8, 2007 request to abolish the eligible list constitutes an adverse action.
Feger must next demonstrate that Curiel's decision to request SPB to abolish the
eligible list was motivated by Feger's testimony at the arbitration. Feger contends that Curiel's
February 8, 2007 decision was based upon her testimony which occurred only eight days
earlier. However, February
8,
2007 was also the date that the Contact and Waiver forms were
due back and the date that Curiel discovered that only three candidates were interested in
filling two vacancies. While it is not clear whether Curiel and Finwick were aware of the
content of Feger's testimony on February 8, 2007, her testimony would not be viewed as
14

particularly helpful to Donna and in some ways appeared helpful to the County. While she
testified that she never heard Donna threaten others, she painted Donna
as
someone who was
not afraid to rant and vent and say something that was offensive. Feger also admitted at the
arbitration that she was still angry for being passed over for an Eligibility Worker III
promotion. Additionally, there were many employees who testified on behalf
of
Donna, some
had been promoted and Feger did not demonstrate that anything negative happened to the other
witnesses.
It is clear that on a singular occasion after one
of
the Eligibility Worker III interviews,
either Jones or Feger stated something about "admin" having problems with or wronging
Feger. Feger testified to this occurring after the October 2007 selection
of
Laura and Jones
testified it occurred after the December 2007 selection
of
Sarah. 	Because Jones' testimony is
corroborated by an unsolicited e-mail to Feger's supervisor which reflected only compassion
towards Feger, Jones' testimony is credited over that
of
Feger's and it is found that Jones never
told Feger that "admin had issues" with her.
Lastly, the record does not show that Applegate/Curiel substantially deviated from the
past practice that they usually requested a new eligible list be established when less than five
candidates expressed interest in a vacancy. While Feger was appointed as the last candidate on
an Eligibility Worker I list, that occurred before Applegate became the Director. Applegate' s
exception
of
allowing both Marilyn and Feger to interview in March 2008 was a concession to
Feger because of the unfair practice charge. Applegate should not be penalized for giving
Feger a break. 	Curiel's request that SPB establish a new eligible list on February 8, 2007,
given the lack of a competitive selection process, fell within Applegate's established past
practice.
15

Even assuming that Feger had proven a prima facie case
of
discrimination, the
County
produced non-discriminatory reasons that it would have taken the same actions in the absence
of
such protected activities. While the LAPS regulations do not require the local agency
to
request a new eligible list as a result
of
the interest shown for the selection process, it
cannot
~
l'<n
h~
"~in
that the County violated the rules by makmg sucu a request.	
'T't..
1.
uc;
uvc;rnu
gu1urng
requirement for the selection process is that the process be competitive. Having three
candidates for two vacancies can hardly be considered competitive for a critical leadworker
position when the regulation allows the local agency to request a new list when fewer
than
five
of
the candidates on the eligible list are "available" to DSS. (LAPS Regulation 17468.)
Lastly, the legitimacy
of
Curiel's request was further demonstrated by SPB's approval
ofit.
•
	1-,.	
11
	'
,.l
'
Feger failed to demonstrate by a preponderance
of
the evidence that her protected
activities were motivating factors to Curiel' s decision to request that the eligible list be
abolished on February 8, 2007. Even assuming Feger had met her burden, the County
established that it would have taken the same actions even in the absence
of
such protected
conduct. No violation
of
MMBA sections 3506 and 3509(b) and PERB Regulation 32603(a) is
therefore found.
Refusal to Provide Information for a PERB Hearing
At the hearing, Feger's representative moved to exclude any documents or strike any
testimony based upon documents which it requested in its April 4 and 8, 2008 letters, as the
Union requested the County to provide these documents and, for the most part, the County did
not provide them. Respondent contended that the Union's information request circumvented
the PERB formal hearing process set forth in the PERB regulations as it was made in order to
obtain documents for the hearing whereas the Union should have requested the issuance
of
a
16

subpoena duces tecum pursuant to PERB Regulation 32150 instead. In the alternative,
Respondent contended that it properly responded to the request for information.
It is well established under PERB and National Labor Relations Board (NLRB) case law,
an exclusive representative is entitled to information sufficient to enable it to understand and
intelligently discharge its duty to represent bargaining unit members. "Necessary and relevant"
information must be furnished for representing employees in contract negotiations and for
policing the administration of an existing agreement/grievance processing. (Stockton Unified
School District (1980) PERB Decision No. 143 (Stockton); Chula Vista City School District
(1990) PERB Decision No. 834; NLRB v. Acme Industrial Co. (1967) 385 U.S. 432; and Procter
& Gamble Mfg. Co. v. NLRB (8th Cir. 1979) 603 F.2d 1310.)
Certain information requested by an exclusive representative is presumed to be relevant.
The Board has found various types of information relevant when requested for collective
bargaining or contract administration. (Stockton, supra, - health insurance data; Trustees of the
California State University (1987) PERB Decision No. 613-H - wage survey data and Newark
Unified School District (1991) PERB Decision No. 864 - staffing and emollment projections.)
Information pertaining to mandatory subjects of bargaining is also presumptively relevant.
(State of California (Departments of Personnel Administration and Transportation) (1997) PERB
Decision No. 1227-S.)
Whether an exclusive representative is entitled to employer information in an extra-
contractual forum, such as PERB, 13 under current PERB case law is not easy to resolve. In Los
Angeles Unified School District (1994) PERB Decision No. 1061 (Los Angeles USD), three
Board members wrote three separate opinions regarding a district which refused to provide
sexually-explicit magazines to the exclusive representative to review in preparation of a
13 SEIU Local 1000, CSEA (Burnett) (2007) PERB Decision No. 1914-S.
17

Personnel Commission disciplinary appeal hearing in which it was representing its member. 	The
district instructed the exclusive representative to subpoena the magazines pursuant to the
Personnel Commission's procedures. The exclusive representative did not, but filed an unfair
practice charge. The Board by a 2-1 vote concluded that the unfair practice charge should
be
dismissed.
The majority opinion held that the district rebutted the relevance
of
the disclosure
of
this
information by contending that it was being used solely in an extra-contractual forum and that
SEIU failed to overcome the burden
of
the relevance
of
the request to it's statutory
responsibilities. The concurring opinion held that the duty to provide information extended to
extra-contractual forums, but the district satisfied its obligation when it allowed the exclusive
representative to review the magazines at an earlier time and at the first day
of
the disciplinary
hearing. The dissenting opinion held that the exclusive representative had the right to obtain
employer information needed to represent an employee before an extra-contractual forum and
found that the district did not turn over the information when it was needed and therefore
violated the Educational Employment Relations Act (EERA). While the unfair practice charge
was dismissed, two Board members found a right to employer information existed when
it
was
necessary to represent an employee in an extra-contractual forum.
However, four years later in San Bernardino City Unified School District (1998) PERB
Decision No. 1270 (San Bernardino), PERB held that the employer's failure to provide a witness
list requested for a Personnel Commission disciplinary appeal hearing did not violate EERA. The
Board found the witness list did not relate to a mandatory subject
of
bargaining or grievance
processing, but only to an extra-contractual forum. The burden was on the exclusive
representative to show that the witness list was relevant and necessary to its representational
18

duties, but the union did not meet that burden. 14 PERB' s decision in San Bernardino
contradicted the opinions of two of the Board members in Los Angeles USD.
The NLRB applies a dual purpose rule when the information requested can both be
used outside the bargaining relationship, such as before an extra-contractual forum, and within
the collective bargaining relationship. (\Vestinghouse Electric Corp. (1978) 239 NLRB 106
(Westinghouse).) As long as one of the purposes for which the information is to be used is
within the collective bargaining relationship, the information must be considered to be
provided if it is presumptively relevant. If the exclusive representative has not demonstrated
how the information is relevant to its representation role, but is only to be used in anticipation
of litigation, then the NLRB will not enforce the information request. (Sahara Las Vegas
Corp. (1987) 284 NLRB, 337, 344, information requested solely for filing an unfair practice
charge and Southern California Gas Co. (2004) 342 NLRB 613, information requested solely
for filing a safety complaint with the California Public Utilities Commission.)
Based upon the face of the April 4 and 8, 2008 letters from Belgeri to Durrer, Belgeri
requested the information in preparation of the PERB hearing, as both letters specifically
referred to "In the Matter of Carmen Feger-Unfair Labor Practice Charge" and the contents
requested pertained to the subject matter of what Feger contended at the hearing. The
requested production date set was to be the day before the scheduled PERB hearing. Clearly,
the purpose of the request for information was to aid Feger in her litigation against the County.
No other purpose was set forth at the hearing or in the post-hearing briefs.
Once a complaint is sent to formal hearing before a PERB Board agent, a party's ability
to obtain documentation to support its case is set forth in PERB regulations. 	(PERB
Regulations 32150 and 32170(c).) Feger did not follow these procedures to obtain specific
1 San Bernardino did not mention or distinguish Los Angeles USD.
19

documents helpful in prosecuting her complaint. To allow Feger to use the request for
information process to obtain documents helpful in prosecuting her case also causes the Board
Agent to have to determine whether the non-producing party committed an unfair practice,
thereby conducting an unfair practice hearing within an unfair practice hearing. 15
In other areas of lavv vvhere a party to a ci·vil action requests documents of an opposing
governmental party outside the process set forth in the civil discovery statute, such as the
California Public Records Act (CPRA) (Gov. Code, section 6250 et seq.), a party is prohibited
from using the CPRA to make such request while those parties are engaged in pending
litigation. (Government Code section 6254(b ).) This prohibition exists to prevent a litigant
who had taken an action against a public entity from using the CPRA to "accomplish earlier or
greater access to records pertaining to pending litigation or tort claims than would otherwise be
allowed under the rules of discovery .... " (Poway Unified School District v. Superior Court
(1998) 62 Cal.App.4th 1496, 1504.) Clearly, the same analysis applies in this case where
Feger sought to get pre-hearing discovery when the PERB regulations only provide for
documents to be brought on the day of hearing. (PERB Regulation 32150(a).)
For all of the these reasons, Feger's motion to exclude documentation, and motion to
strike testimony is therefore denied.
If an unfair practice charge was filed after the previous hearing was conducted
alleging that a request for employer information was requested in preparation of the hearing
and denied by the employer, a second hearing would be conducted which could impact factual
findings of the previous hearing due to a requested remedy similar to that requested in this
case. Judicial economy, efficiency and order dictate that documents be obtained pursuant to
PERB Regulations 32150 and 32170 where a subpoena duces tecum would be served and an
appropriate motion to quash the subpoena be brought before the same Board Agent conducting
the initial hearing.
20

PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SA-CE-500-M,
Carmen Feger v. County
of
Tehama, 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
Public Employment Relations Board (PERB or 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 95811-4174
(916) 322-8231
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, sec. 32300.)
A document is considered filed when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code sec.
11020(a).) A document is also considered filed when received by facsimile transmission
before the close
of
business together with a Facsimile Transmission Cover Sheet which meets
the requirements
of
California Code
of
Regulations, title 8, section 32135(d), provided the
filing party also places the original, together with the required number
of
copies and
proof of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see also Cal. Code
Regs., tit. 8, secs. 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
21

on a party or filed with the Board itself. (See Cal. Code Regs., tit.
8,
secs. 32300, 32305,
32140, and 32135(c).)
22
Shawn P. Cloughesy
Administrative Law Judge