State of California (Department of Personnel Administration) (PERB 2123S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNION OF AMERICAN PHYSICIANS &
DENTISTS,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Respondent.
Case No. SA-CE-1803-S
PERB Decision No. 2123-S
July 28, 2010
Appearances: Davis, Cowell & Bowe by Andrew J. Kahn, Attorney, for Union of American
Physicians & Dentists; Shaun R. Spillane, Labor Relations Counsel, for State of California
(Department of Personnel Administration).
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the Union of American Physicians & Dentists (UAPD)
of a Board agent's dismissal of its unfair practice charge. The charge alleged that the State of
California (Department of Personnel Administration) (State) violated the Ralph C. Dills Act
(Dills Act)1 by imposing furloughs on physician employees but not on contract physicians
performing services for the State. The charge alleged that this conduct constituted unlawful
retaliation and discrimination against state employee union members for the exercise of their
protected rights, as well as interference with protected rights. 	The Board agent dismissed the
1 The Dills Act is codified at Government Code section 3 512 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

charge, finding that it failed to state a prima facie case of retaliation, discrimination or
interference under the Dills Act.
The Board has reviewed the dismissal and the record in light of UAPD's appeal, the
State's response, and the relevant law. Based on this review, the Board affirms the dismissal
of the unfair practice charge for the reasons discussed below.
BACKGROUND
This case stems from the Governor's issuance on December 19, 2008 of Executive
Order S-16-08, which directed that represented state employees and supervisors, as well as
excluded employees, be furloughed for two days per month. UAPD is the exclusive
representative of physicians and dentists in State Bargaining Unit 16. The most recent
agreement between the State and UAPD expired on June 30, 2008, but its provisions remain in
effect pursuant to Dills Act section 3517.8.2 The Department of Personnel Administration
(DPA) and UAPD have been negotiating a successor agreement since July 2008.
On December 19, 2008, the Governor issued Executive Order S-16-08. The Executive
Order directed DP A to "adopt a plan to implement a furlough of represented state employees
and supervisors for two days per month, regardless of funding source ... [and] for all state
2 Dills Act section 3517.8 provides, in relevant part:
(a) If a memorandum of understanding has expired, and the
Governor and the recognized employee organization have not
agreed to a nevv memorandum of understanding and have not
reached an impasse in negotiations, subject to subdivision (b ), the
parties to the agreement shall continue to give effect to the
provisions of the expired memorandum of understanding,
including, but not limited to, all provisions that supersede
existing law, any arbitration provisions, any no strike provisions,
any agreements regarding matters covered in the Fair Labor
Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.), and any
provisions covering fair share fee deduction consistent with
Section 3515.7.
2

managers, including excluded state employees, regardless
of
funding source." The Executive
Order mandated that furloughs would be effective February
1,
2009 through June 30, 2010.3
As a result
of
the Governor's Executive Order, DPA developed and executed a furlough
plan. UAPD contends that, by furloughing only state employees and not contractor physicians,
the State retaliated and discriminated against union members because
of
UAPD's public
opposition to the Governor's 2005 initiative proposals, his 2006 reelection campaign, and his
policies favoring contracting out. UAPD also contends that comments by the Governor critical
of
state employee unions demonstrated the State's anti-union animus. The charge also alleged
that this conduct constituted unlawful interference with protected rights because it encourages
physicians to quit their state civil service positions and instead obtain contractor positions with
state agencies, thereby losing union representation.
The General Counsel's office dismissed the charge on the ground that the charge failed
to state a prima facie case
of
retaliation or discrimination under the Dills Act. 	Specifically, the
Board agent found that the charge failed to contain specific allegations
of
protected activity by
UAPD or employer knowledge under the standards established by PERB. The Board agent
further found that the charge failed to state sufficient facts to establish unlawful motivation or
nexus, i.e., that the State imposed furloughs on UAPD members because
of
their protected
activities. The Board agent also dismissed the allegation that the same conduct unlawfully
interfered with protected employee rights.
On appeal, UAPD contends that its members engaged in protected activities by taking
visible actions in opposition to the Governor's re-election in 2006 and to his 2005 initiative
proposals. UAPD continues to contend that comments by the Governor critical of state
employee unions in general demonstrate the State's anti-union animus. UAPD further
3 On July 1, 2009, the Governor expanded the furloughs to three days per month.
3

contends that the decision to furlough unionized employees but not unrepresented contractors
discriminates against union members by interfering with their exercise
of
rights under the Dills
Act. UAPD asserts that this conduct constituted unlawful interference with protected rights
because it discouraged physicians from becoming employees and joining public employee
unions, instead choosing to obtain contractor positions rather that civil service positions.
The State argues that the Board agent correctly determined that the charge fails to
establish a prima facie case
of
unlawful discrimination or retaliation. The State further asserts
that UAPD waived its appeal
of
the dismissal
of
the interference charge on appeal.
DISCUSSION
1.
	Retaliation and Discrimination
To demonstrate that an employer discriminated or retaliated against an employee in
violation
of
Dills Act section 3519, subdivision (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; (3) the employer took adverse action against the employee; and (
4) the
employer took the action because
of
the exercise
of
those rights. (Novato Unified School
District (1982) PERB Decision No. 210 (Novato).) In determining whether evidence
of
adverse action is established, the Board uses an objective test and will not rely upon the
subjective reactions
of
the employee. (Palo Verde Unified School District (1988) PERB
Decision No. 689.) In a later decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Dec. No. 864; emphasis added; footnote
omitted.)
4

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 (North Sacramento)), 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 (City
of
Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003)
PERB Decision No. 1560); (5) the employer's failure to offer the employee justification at the
time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or the
offering
of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful rnotive. (North Sacramento, supra, PERB Decision
No. 264; Novato, supra, PERB Decision No. 210.)
5

a.
	Protected Activity and Employer Knowledge
PERB Regulation4 32615(a)(5) requires, inter alia, that an unfair practice charge
include a "clear and concise statement
of
the facts and conduct alleged to constitute an unfair
practice." Although a charging party's facts will be taken as true at the initial stage, a charge
must still contain a "clear and concise statement
of
the facts and conduct alleged to constitute
an unfair practice." (Ibid.; San Mateo County Office
of
Education (2008) PERB Decision
No. 1946; San Juan Unified School District (1977) EERB5 Decision No. 12.) Mere legal
conclusions are not sufficient to state a prima facie case. 	(State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S (Department
of
Food and
Agriculture), citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944;
Charter Oak Unified School District (1991) PERB Decision No. 873.)
The charge and supporting documents do not indicate that UAPD members engaged in
any specific protected activity other than their union membership.6 The allegations that public
employee unions generally opposed the Governor's reelection and initiative campaigns do not
provide the required specificity necessary to state a prima facie case. (Department
of
Food
and Agriculture.) The charge contains broad statements asserting that UAPD was among
many public employee labor organizations that engaged in "visible actions in opposition to [the
Governor's] election and [engaged in] visible actions to support his opponents in the
· PERB reguiations are codified at California Code of Regulations, title 8, section
31001 et seq.
5 Prior to January
1,
1978, PERB was known as the Educational Employment Relations
Board or EERB.
6 While joining a union is protected activity (State
of
California (Department
of
Personnel Administration) (2010) PERB Decision No. 2106-S), simply maintaining union
membership is not. ( Chula Vista Elementary School District (1997) PERB Decision
No. 1232.)
6

Legislature, including campaign donations, precinct walking and demonstrating at the
Governor's public appearances, and holding other demonstrations and press conferences."
While UAPD submitted various press articles describing union opposition to some
of
the
Governor's proposed ballot initiatives, none
of
the information submitted by UAPD identifies
or describes any specific protected activity taken by UAPD members.7 Thus, the charge fails
to establish that UAPD engaged in any identifiable protected activity or that the state employer
had knowledge
of
any such activity by UAPD. 	Accordingly, the charge fails to establish the
first two elements
of
the Novato test.
b.
	Adverse Action
The imposition
of
furloughs was a form
of
involuntary leave resulting in a reduction in
hours and therefore an adverse action. (Oakland Unified School District (2003) PERB
Decision No. 1529 (Oakland).)
c.
	Nexus
Even
if
we were to find that UAPD engaged in some protected activity, we would
nonetheless conclude that the charge fails to state a prima facie case
of
discrimination
or
retaiiation. As indicated above, the timing
of
the employer's adverse action in close temporal
proximity to the employee's protected conduct is an important factor in determining whether a
nexus exists between the protected activity and the adverse action. (North Sacramento.) In
this case, the alleged protected activity occurred in 2005 and 2006, more than two years before
the Governor's issuance
of
the December 2008 Executive Order. Any connection between
UAPD's involvement in the Governor's reelection campaign and the issuance
of
the Executive
7 In its brief, UAPD asserts that it "participated in a united Democratic public union
alliance that raised about $100 million to defeat Schwarzenegger's proposals in the November
2005 election." While documents submitted in support of the charge reference such an
alliance, the charge does not allege UAPD's involvement in the alliance, nor has any evidence
been provided concerning the nature or amount of UAPD's specific participation.
7

Order more than two years later is simply too attenuated to establish nexus under theNovato
standard. 	(Garden Grove Unified School District (2009) PERB Decision No. 2086; Oakland
Unified School District (2003) PERB Decision No. 1512.)
To support a prima facie finding
of
nexus between the alleged protected activity and the
adverse action, UAPD must allege facts showing that the timing
of
the adverse action occurred
in close temporal proximity to the protected conduct, plus facts establishing one or more
of
the
additional factors listed above. (Oakland; North Sacramento).) Because we find the timing
element not established in this case, we do not address whether any
of
the additional nexus
factors exist. 8
2. 	Interference
In its charge, UAPD alleged that the State's conduct constituted unlawful interference
with employee rights. In response to UAPD's appeal, the State asserts that UAPD waived this
issue by failing to raise it on appeal. 	We disagree. In its appeal, UAPD continues to assert that
the furlough
of
state employees but not contract physicians interferes with the exercise
of
rights under the Dills Act. 	These assertions are sufficient to put the State on notice
of
its
appeai
of
the dismissal
of
the interference aiiegation.
Nonetheless, we affirm the dismissal
of
the interference charge. UAPD's assertion that
physicians would prefer to be utilized as non-furloughed contractors rather than furloughed
employees is insufficient to establish that the State's decision to furlough its employees has
In its responsive brief, the State asserts that UAPD failed to appeal the Board agent's
determination on the timing issue. We find that, by challenging the Board agent'snexus
determination, the appeal adequately preserved all elements of the nexus issue on appeal.
8

interfered with the exercise
of
any protected activities.9 Thus, the charge fails to establish a
prima facie case
of
interference.
ORDER
The unfair practice charge in Case No. SA-CE-1803-S is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Wesley joined in this Decision.
As noted by the State, on June 8, 2009, the Governor issued Executive Order
S-09-09, ordering State departments to reduce their contract expenditures by 15 percent. 	Thus,
it is far from clear that physicians who wish to work for the State would have the option of
electing to serve as contractors rather than employees. Moreover, state law imposes strict
limits on the use of personal services contracts to perform work that is customarily performed
by civil service employees. (Gov. Code,§ 19130 et seq.)
9