City and County of San Francisco (PERB 2207M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MICHAEL CRANDELL,
Charging Party, | Case No. SF-CE-671-M
v. | PERB Decision No. 2207-M
CITY & COUNTY OF SAN FRANCISCO, October 5, 2011
Respondent.

Appearance: Michael Crandell, on his own behalf.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION

MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Michael Crandell (Crandell) of a Board agent’s dismissal
(attached) of Crandell’s unfair practice charge against his employer, the City & County of
San Francisco (City). The charge alleges that the City violated the Meyers-Milias-Brown
Act (MMBA)! by wrongfully terminating Crandell in retaliation for filing bureaucratic
malpractice reports with City officials. The charge alleges that this conduct violates PERB
Regulation 32603.” The Board agent dismissed the charge, finding that it failed to state a
prima facie case.

We have reviewed Crandell’s appeal, the warning and dismissal letters and the entire

record in light of the relevant law. Based on this review, we find the Board agent’s warning

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

? PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

and dismissal letters3 to be well-reasoned, adequately supported by the record and in
accordance with applicable law. Accordingly, the Board hereby adopts the warning and
dismissal letters as the decision of the Board itself, supplemented by the brief discussion
below.
DISCUSSION
PERB Regulation 32635(a) provides that an appeal from a dismissal "shall" comply
with the following requirements:
(1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part of the dismissal to which each
appeal is taken;
(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 U"/1,ited (Ventura, et al.) (2009) PERB Decision No. 2069-H.)
An appeal that merely reiterates facts alleged in the unfair practice charge does not comply
with PERB Regulation 32635(a). The appeal in this case merely restates facts alleged in the
charge and arguments made before the Board agent. It fails to sufficiently place the Board on
notice of the issues raised on appeal and is therefore subject to dismissal on that basis alone.
(See, e.g., City of Brea (2009) PERB Decision No. 2083-M.)
3 By the Board's decision, we hereby correct typographical errors in various dates
contained in the warning and dismissal letters. The warning letter states the dates of two
bureaucratic malpractice reports to be October 8 and 15, 2008. Crandell alleges that those
reports are dated August 8 and 15, 2008. The dismissal letter refers to a positive performance
evaluation of November 2007. The date of the evaluation as alleged by Crandell is December
2007. These corrections affect no change in either the analysis or disposition of this matter.
2

ORDER
The unfair practice charge in Case No. SF-CE-671-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
3

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-25 I 4
Telephone: (510) 622-1021
Fax: (510) 622-1027
August 26, 2010
Michael Crandell
P. 0. Box 423803
San Francisco, CA 94142
Re: 	Michael Crandell v. City & County of San Francisco
Unfair Practice Charge No. SF-CE-671-M
DISMISSAL LETTER
Dear Mr. Crandell:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 18, 2009. Michael Crandell (Crandell or Charging Party)
alleges that the City & County of San Francisco (City or Respondent) violated the Meyers
Milias-Brown Act (MMBA or Act) 1 by allowing a hostile and retaliatory work environment.
Charging Party was informed in the attached Warning Letter dated July 7, 2010, that the
above-referenced charge did not state a prima facie case. Charging Party was advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, the charge should be amended. Charging Party was further advised
that, unless the charge was amended to state a prima facie case or v1ithdrawn prior to July 19,
2010, the charge would be dismissed.
On July 16, 2010, Charging Party filed with PERB a Tentative First Amended Charge and a
request for extension of time to August 11, 2010, to file an amended charge. By letter dated
July 20, 2010, PERB granted the request for extension of time. However, PERB has not
received a further amended charge. Accordingly, PERB will treat the Tentative First Amended
Charge as Charging Party's amended charge. The Tentative First Amended Charge seeks to
amend both the instant charge and Unfair Practice Charge No. SF-CE-665-M, filed by the
same Charging Party on June 10, 2009.
As discussed below, the Tentative First Amended Charge does not cure the deficiencies
discussed in the July 7, 2010 Warning Letter. Therefore, the charge is hereby dismissed based
on the facts and reasons set forth below and in the July 7, 2010, Warning Letter.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

SF-CE-671-M
August 26, 2010
Page 2
Summary of Facts
The Tentative First Amended Charge alleges the following additional facts relevant to the
instant charge (SF-CE-671-M). Additional facts alleged by the Tentative First Amended
Charge which are relevant to Charge No. SF-CE-665-M will be addressed by a separate
document.
Crandell alleges that the City terminated him in retaliation for "filing malpractice reports with
the Mayor, Board of Supervisors and City administrators on behalf of workers and citizens."
These reports were based upon the City's: (1) out of class assignment of claims workers; (2)
over-assignment of employees; (3) suppression and substitution of documents; (4) false
accusations; (5) illegitimate accusations which are not valid or violate a Collective Bargaining
Agreement (CBA); (6) inconsistent standards; (7) retroactive actions; (8) untimely actions; (9)
non-substantive actions (those not affecting employees) and (10) malicious conduct.
Crandell alleges he has a long history of filing reports to complain about working conditions.
He filed malpractice reports in 1999 and 2000. In 2006 he was transferred to a different
worksite, allegedly in retaliation for his activities as a union and citizen advocate. In 2006
through 2008, Crandell reported, apparently to City management, regarding violations by the
City in over-assigning work to staff in the Workers' Compensation Department (Department)
and in requiring workers in the Department to perform out-of-class work. Crandell alleges that
Human Resources Division administrator, Priscilla Morse (Morse) misused department funds
for improper activities such as parties, despite budget cuts. In 2008, Crandell reported these
abuses to the Mayor and Board of Supervisors.
As a result of Crandell' s whistle-blowing activities and efforts at advocacy on behalf of
citizens and employees, the City imposed upon him a retaliatory performance improvement
plan. Crandell received a positive performance evaluation in November 2007. However, in
August 2008 he received a negative performance evaluation which, Crandell claims,
"suppressed" the earlier positive evaluation. Crandell alleges that "this was disparate hostile
~nd df'reptivf' frp~fmpnt nn]ihc.. nr inrnnsiStf'nt with th::it impo~ed On any other staff"
During 2008 Morse exhibited "patterns of immaturity and infantile hostility" towards Crandell
and "revealed a hyper-vindictive mental disposition." Morse, along with Crandell's supervisor
Tim O'Brien (O'Brien), subsequently stalked Crandell via cell-phone camera on various
occasions between July and December 2008. Crandell alleges that it appeared to him from the
behavior of O'Brien and another manager, Robin Masuda (Masuda), that Morse had directed
them to maintain close surveillance of him. Crandell also claims that O'Brien, Masuda, and/or
Morse would "abnormally monitor" him during staff meetings. 	Crandell also alleges. that
managerial staff changed wall clocks, and then accused Crandell of being late for work. 	On
September 10, 2008, Crandell filed a grievance against the employer because of its conduct in
stalking him via cell-phone camera.
On or about August 8, 2008, Crandell sent a report to the Human Resources administrator
(presumably Morse), the Mayor, and the Board of Supervisors, concerning the Department's

SF-CE-671-M
August 26, 2010
Page 3
policy of over-assigning work to its staff, which Crandell alleged caused late payments of
Workers' Compensation benefits and forced employees to work overtime without
compensation. As a result of this report, the Department reduced its workload assignment for
workers within Crandell' s classification.
On or about August 15, 2008, Crandell sent a report to the Mayor and the Board of Supervisors
concerning a wasteful and improper party the Department had held for staff in February 2008,
using City funds. 	Crandell alleges that City money was spent on items for the party such as
professional photography and catered food, during a time of financial suffering.
Crandall prepared a further report dated September 24, 2008, concerning "retaliation for
whistleblowing activity, reform candidacy for commissioner, and union stewardship during
2005-2006." This report, however, was "intercepted prior to submission to the Mayor."
Crandell alleges that these three reports constitute protected activity. Further, he alleges he
engaged in protected activity on unspecified dates by advising Workers' Compensation
claimants of their rights. Crandell alleges that these reports were "cited in employer
accusations in order to impose suspension and termination."2 Specifically, it appears that the
City alleged that Crandell improperly used work time in preparing them; Crandell denies that
he did this.
As stated in the Warning Letter, Crandell was terminated on December 19, 2008.
Legal Analvsis
As explained in the Warning Letter, to demonstrate that an employer discriminated or
retaliated against an employee in violation of Government Code section 3506 and PERB
Regulation 32603(a),3 the charging party must show that: (1) the employee exercised rights
under MMB}·~; (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 Urzified School District (1982) PERB Decision
No. 210 (Novato); San Leandro Police Officers Assn. v. City of San Leandro (1976) 55
Cal.App.3d 553 (San Leandro).) 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
2 These documents are not supplied.
3 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-671-M
August 26, 2010
Page 4
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S; (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104; San Leandro,
supra, 55 Cal.App.3d 553); (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; San Leandro, supra, 55 Cal.App.3d 553); (4) the employer's cursory investigation
of the employee's misconduct (City a/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 motive. (North Sacramento School
District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
1. 	Protected Activity
Crandell alleges that he had a long history of activism as a citizen and union advocate from
1999 through 2008. On August 8, 2008 he sent a "malpractice report" to various City officials,
including Morse, alerting them to negative working conditions in the Department. Employee
complaints which impact employees generally (i.e., not solely the complaining individual) are
considered protected activity. (Los Angeles Unified School District (2003) PERB Decision
No. 1552.) Crandell's report of August 8, 2008, appears to address collective concerns in that
he claimed employees of the Department were being assigned too much work and were not
receiving appropriate overtime pay. These would be matters of interest to other employees in
the bargaining unit and therefore Crandell's August 8, 2008, report constitutes protected
activity. The charging party must also show that the employer--specifically, the decision
maker taking adverse action against the employee-had knowledge of the protected activity.
(Metropolitan Water District of Southern California (2009) PERB Decision No. 2066-M.)
This report was given to Morse, who presumably was the decision maker with respect to

SF-CE-671-M
August 26, 2010
Page 5
Crandell' s dismissal. Therefore, it appears that employer had adequate knowledge of this
protected activity.
Crandell' s sent another "malpractice report" to the Mayor and the Board of Supervisors on
August 15, 2008. This report concerned Crandell' s complaints about a "wasteful and
unjustified all-staff party" which Crandell claimed was a waste of public funds. 	Crandell
characterizes this report as a whistle blowing activity and argues that "persons of conscience
cannot participate in such misuse of pubic funds." However, Crandell does not allege any facts
to demonstrate that his concerns about using public money for Department activities were a
collective employment-related concern shared by other bargaining unit members. Therefore
this report is not considered protected activity for the purposes of the MMBA.4 (Metropolitan
Water District of Southern California, supra, PERB Decision No. 2066-M.)
Crandell filed a grievance on September 10, 2008, presumably pursuant to a CBA between the
City and Crandell' s exclusive representative, concerning the employer's alleged activity in
stalking him via cell-phone camera. The filing of a grievance is protected activity. (City of
Modesto (2008) PERB Decision No. 1994-M.)
Crandell alleges that he prepared a further report dated September 24, 2008, concerning
"whistleblowing activity, reform candidacy for commissioner, and union stewardship during
2005-2006." It cannot be determined from these facts whether the report addressed collective
concerns and, therefore, it is not considered protected activity. (Metropolitan Water District of
Southern California, supra, PERB Decision No. 2066-M.) Further, this report was
"intercepted" before it was submitted to the Mayor. From this allegation, it appears that the
City never received the report and therefore had no knowledge of this alleged protected
activity. Moreover, there is no. basis upon which to impute any knowledge of this report to the
decision-makers in Crandell's termination.
Crandell's allegations that he engaged in protected activity by advising Workers Compensation
claimants of their rights do not address collective concerns and therefore are not protected
activity '-Vi thin the meaning of the I\1I\1Bi\.
Accordingly, Crandell has alleged facts sufficient to find that he engaged in protected activity
with employer knowledge by (1) on August 8, 2008, submitting a "malpractice report" to
Morse and others, complaining about working conditions; and (2) on September 10, 2008,
filing a grievance with the employer.
2. 	Adverse Action
PERB is prohibited from issuing a complaint with respect to any charge based upon an alleged
unfair practice occurring more than six months prior to the filing of the charge. (Coachella
Valley Mosquito and Vector Control District v. Public Employment Relations Board (2005) 35
4 It also appears that this report was not sent to Morse.

SF-CE-671-M
August 26, 2010
Page 6
Cal.4th 1072.) The limitations period begins to run once the charging party knows, or should
have known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.)5 A charging party bears the burden of demonstrating that
the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No.
1024; State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.)
The instant charge was filed on June 18, 2009. The only alleged adverse action which
occurred within the limitations period was Crandell's termination, on December 19, 2008.
(Los Banos Unified School District (2009) PERB Decision No. 2063 [limitations period for
retaliation claim based on adverse action of termination begins on date of termination].)
Alleged reprisals occurring prior to December 18, 2008, cannot be used as a basis for a charge
ofretaliation. (Ibid.) Dismissal of an employee is an adverse action. (Rainbow Municipal
Water District (2004) PERB Decision No. 1676-M.) Accordingly, Crandell's termination on
December 19, 2008, constitutes adverse action for purposes of the MMBA.
3. 	Nexus
Crandell's termination occurred more than four months after his protected activity of
submitting the August 8, 2008 report, and more than three months after filing his grievance on
September l 0, 2008. Even if these events are considered close in time, an employer's unlawful
motive cannot be inferred from temporal proximity alone. 	(Moreland Elementary School
District, supra, PERB Decision No. 227.)
Crandell does not allege any other facts to show that the City terminated him because of his
protected activity. He does not allege, for example, that the City conducted a cursory
investigation of him or that it lacked justification for its action in terminating his employment.
Crandell's allegation that his negative performance evaluation in August 2008 was "disparate
hostile and deceptive treatment unlike or inconsistent with that imposed on any other staff' is
not supported by specific factual allegations. Mere legal conclusions are not sufficient to state
a prima facie case. (Charter Oak Unified School District (1991) PERB Decision No. 873.)
Crandell's general allegations that City personnel stalked him or conducted surveillance of him
by cell phone camera6 and that Morse exhibited hostility towards him, lack any specific factual
basis which would establish that there was a connection between his protected activity and his
5 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with'
parallel provisions. (Fire Fighters Union v. City a/Vallejo (1974) 12 Cal.3d 608.)
6 In determining whether a prima facie case exists, PERB must accept Charging Party's
facts as true. 	(Golden Plains Unified School District (2002) PERB Decision No. 1489.)

SF-CE-671-M
August 26, 2010
Page 7
termination, or that the City possessed anti-union animus. 7 Accordingly, these allegations do
not support a finding of unlawful motive by the City.
Because Crandell does not establish that the City took adverse action against him because of
his protected activity, no prima facie case is stated.
Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (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 PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, C.Ai 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs, tit. 8, § 32635, subd. (6).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
7 These allegations are raised in more detail by Unfair Practice Charge No. SF-CE-665-
M.

SF-CE-671-M
August 26, 2010
Page 8
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
aura Davis
Regional Attorney
Attach111ent
cc: Gina Roccanova, Deputy City Attorney

ST A TE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-25 l 4
Telephone: (5 l 0) 622- l 02 I
Fax: (510) 622-1027
July 7, 2010
Michael Crandell
P. 0. Box 423803
San Francisco, CA 94142
Re: 	Michael Crandell v. City & County of San Francisco
Unfair Practice Charge No. SF-CE-671-M
WARNING LETTER
Dear Mr. Crandell:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 18, 2009. Michael Crandell (Crandell or Charging Party)
alleges that the City & County of San Francisco (City or Respondent) violated the Meyers
Milias-Brown Act (MMBA or Act) 1 by allowing a hostile and retaliatory work environment.
Summary of Facts
On or about December 19, 2008, Crandell was terminated from his employment with the City.
Crandell had been employed as a Workers Compensation benefits technician in the City's
Human Resources Department. Tim O'Brien (O'Brien) is the Workers Compensation
supervisor, Priscilla Morse (Morse) is the Workers Compensation Director, and Micki
Callahan (Callahan) is the Human Resources Director.
On October 8, 2008, Crandell submitted a "bureaucratic malpractice report" to City Hall. 	In
this report, Crandell complained about the declared policy of overassignment in the Workers
Compensation division. 	On October 15, 2008, Crandell submitted another report to City Hall
which complained about the lack of efficiency, incompetence and wasteful practices within the
Workers Compensation division. On an unspecified date, Morse replaced a positive
performance evaluation of Crandell with a negative one. 	It appears that, at some point in 2008,
Crandell was placed upon a three month "work plan," which he alleges was retaliatory.
Crandell also alleges that Morse and O'Brien stalked him via cell-phone camera and searched
his desk.
On October 2, 2008, the City provided a Notice of Suspension and Skelly Recommendations
(apparently, recommendations regarding Crandell the City made following a Skell/ hearing.)
, 1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 This is an apparent reference to pre-termination due process required by Skelly v. State
Personnel Board (1975) 15 Cal.3d 194.

SF-CE-671-M
July 7, 2010
Page 2
Crandell disputes many of the findings of this Notice. 	On December 19, 2008, the City
provided a Notice of Termination and Skelly Recommendations. Contrary to the allegations of
the December 19, 2008 Notice of Termination and Skelly Recommendations, Crandell alleges
that: his performance was not poor or substandard; he had a backlog of work due to his
suspension; the City had a practice of overassignment and assigned him too much work
without providing sufficient training or assistance; the stalking via cell-phone camera created a
hostile work environment; and he did not use work site resources for personal purposes.
Legal Analysis
The charging party's burden includes alleging facts showing that the unfair practice charge was
timely filed; i.e., that the alleged unfair practice occurred no more than six months prior to the
filing of the charge. (Los Angeles Unified School District (2007) PERB Decision No. 1929;
City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited from issuing
a complaint with respect to any charge based upon an alleged unfair practice occurring more
than six months prior to the filing of the charge. 	(Coachella Valley Mosquito and Vector
Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.) The
limitations period begins to run once the charging party knows, or should have known, of the
conduct underlying the charge. 	(Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
In Saddleback Valley Unified School District (1985) PERB Decision No. 558, the Board held
that the six months statute of limitations period provided by the Educational Employment
Relations Act "is to be computed by excluding the day the alleged misconduct took place and
including the last day." Thus, where the school employer adopted a proposal on June 20, 1984,
the Board calculated that "the six-month period started on June 21, 1984, the day after the
school board adopted the proposal, and ended at the close of business ori December 20, 1984."
(Ibid.; see also California State University, Fullerton (1986) PERB Decision No. 605-H.) The
same method of calculation should be applied to the statute of limitations under the MMBA.3
The charge was filed on June 18, 2009. Therefore, any events occurring before December 18,
2008, are untimely. Most of the allegations in the charge occurred outside of the limitations
period, except for the termination which occurred on December ] 9, 2008, within the
limitations period.
Retaliation On the Basis of Protected Activity
It should be noted that the MMBA does not extend a remedy against all acts of perceived
unfairness or discrimination against public employees. Rather, PERB 's jurisdiction is limited
to resolving claims of unfair practices, as defined, which violate the Acts enforced by PERB.
3 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

SF-CE-671-M
July 7, 2010
Page 3
(See, e.g., Los Angeles Unified School District (1984) PERB Decision No. 448.) In an attempt
to assist the Charging Party, the following information is provided.
To demonstrate that an employer discriminated or retaliated against an employee in violation
of Government Code section 3506 and PERB Regulation 32603(a), the charging party must
show that: 	( 1) the employee exercised rights under MMBA; (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); San Leandro Police Officers Assn. v.
City of San Leandro (1976) 55 Cal.App.3d 553 (San Leandro).) 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 Decision No. 864; emphasis added; footnote
omitted.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State a/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; San Leandro,
supra, 55 Cal.App.3d 553); (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; San Leandro, supra, 55 Cal.App.3d 553); (4) the employer's cursory investigation
of the employee's misconduct (City a/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 motive. (North Sacramento School
District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)

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July 7, 2010
Page 4
1. 	Protected Activity
Employee complaints may be considered protected activity if they are "a logical continuation
of group activity" and address concerns impacting employees generally. 	(Los Angeles Unified
School District (2003) PERB Decision No. 1552.) Complaints undertaken for the benefit of a
single employee, however, are not protected activity. (Ibid.) From the facts alleged, it is
unclear whether the "bureaucratic malpractice reports" Crandell sent to unspecified individuals
at City Hall were designed to address collective concerns of employees or whether they were
intended to redress Crandell's own concerns. Accordingly, Charging Party does not establish
this element of a prima facie case, and thus cannot establish employer knowledge of protected
activity.
2. 	Adverse Action
Termination from employment constitutes adverse action for purposes of a discrimination
analysis. (Rainbow Municipal Water District (2004) PERB Decision No. 1676-M.)
3. 	Nexus
Even assuming, arguendo, that Crandell' s complaints to City Hall constitute protected activity
within the meaning of the MMBA, Crandell alleges no facts to show that the adverse action of
termination was taken because of his protected activity. 4 The reports were filed in August and
Crandell' s termination was four months later in December; therefore close temporal proximity
is not demonstrated. Nor does Crandeli allege facts to establish any other indicia of unlawful
motive. In short, Crandell does not allege sufficient facts to show that the employer had an
unlawful motive in terminating him.
For these reasons the charge, as presently written, does not state a prima facie case. 5 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent of Charging Party. The amended charge must have the case
4 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; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
· 5 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)

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July 7, 2010
Page 5
number written on the top right hand corner of the charge form. 	The amended charge must be
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before July 19, 2010,6 PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
Laura Davis
Regional Attorney
LD
56 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)